Fundraising Boost For Service As Tamworth Solicitors Celebrate Milestone

The Westpac Rescue Helicopter Service (WRHS) is proud to announce a new event partnership with Tamworth based Everingham Solomons Solicitors, as the law firm celebrates its 150th anniversary of serving the North West.

The partnership, with an investment of $20,000, will give five of the Service’s prestigious local events critical support, after two years of disrupted fundraising through the pandemic and natural disasters.

“We are excited in 2022 to be able to deliver our signature events again to the New England North West, as well as adding some new ones. This support from Everingham Solomons will play a valuable role in ensuring the Rescue Helicopter is ready to respond to those who need it in our region,” said WRHS Event Coordinator Jeff Galbraith.

Everingham Solomons Solicitors Director George Hoddle says the 150th anniversary provides the ideal opportunity to acknowledge an incredible milestone for the company whilst supporting a well-respected and trusted local charity.

“This year marks 150 years serving North West NSW since 1872. Charities and events have had a tough time in recent years so we really wanted to give back to the community as part of our anniversary celebration rather than hold a private function. The chance to support such an important charity that plays a vital role in the community made this the ideal scenario,” said Everingham Solomons Director George Hoddle.

“At Everingham Solomons, helping you is our business and this aligns perfectly with the Westpac Rescue Helicopter who help people in their greatest time of need. We look forward to supporting the Rescue Helicopter throughout the year,” Mr Hoddle announced.

The agreement will see the iconic Tamworth law firm sponsor a series of WRHS fundraising events across the New England North West region throughout 2022, including the Tamworth Rescue Ball, Golf Day, Charity Race Day, Ride for the Chopper and other regional events, with all funds raised supporting the Service’s Tamworth Base.

Event Organisers and dangerous recreational activities

Headshot of Libby Campbell - Solicitor at Everingham Solomons Tamworth

On 6 April 2022 the High Court handed down their decision, overturning the previous Supreme Court and Court of Appeal decision, of Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd.

Ms Tapp, who was 19 at the time, was competing in a campdrafting competition near Scone. There had already been two days of competition and Ms Tapp was competing at approximately 7pm on the second day. In the hour prior to Ms Tapp’s run, there had been four contestants fall and they had been described as “bad falls”. There were also two warnings provided by a fellow experienced contestant that the campdraft needed to be stopped as “the ground was getting a bit slippery”. The Committee did pause the event on two occasions and conferred with each other concluding that the riders would need to ride to the conditions and that the competition should proceed noting it would be unfair to stop as other competitors had already ridden on the current surface. It was accepted that the ground prior to Ms Tapp’s ride was identified “as being dangerous”. Ms Tapp then competed and was in the main arena when the front feet of the horse she was riding slipped on the ground of the arena causing the horse and Ms Tapp to fall, resulting in a serious spinal injury to Ms Tapp.

The High Court held by a majority 3/2, that the association had breached its duty, the breach caused the injury, and the injuries were not the result of an obvious risk of a dangerous recreational activity. Ms Tapp did not know about the earlier falls and had not inspected the track and therefore the risk of injury was not obvious to her. Ms Tapp’s injuries were not caused by her participation in a dangerous recreational activity, but rather it was caused by the dangerous surface of the arena, which was not obvious to a reasonable person. For all your legal needs contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Libby Campbell.

Don’t make promises you don’t intend to keep

Headshot of Lesley McDonnell - Senior Associate at Everingham Solomons TamworthDuring their lifetimes, the deceased and her late husband had a longstanding share farming arrangement with David “[T]heir aspiration to be able to enjoy an idyllic farming property depended upon their being able to secure the services of a farmer like David, who was prepared to work hard for very little income”. In 1988, after the death of her husband, the deceased represented to David that the farm was to pass to him upon her death, together with a sum of money. The deceased died in 2016. The deceased was survived by her 2 daughters Hilary and Jocelyn.  At the time of her death, the deceased was the owner of the farm that she left by her will to Hilary and a bequest of $200,000 to David in her will.

David applied to the Court alleging that by leaving the farm to Hilary in her will rather than to him, the deceased had acted unconscionably in conflict with a promise that had been made to him by the deceased to the effect that the farm would one day be his, in return for David continuing throughout the deceased’s lifetime to conduct share farming on the farm. David claimed that he continued with the share farming agreement, and undertook additional tasks on the farm, in the expectation that the deceased would uphold the promise and leave the farm to him.

Proprietary estoppel by encouragement “comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part”.

The Court was “satisfied that David acted on the faith of that assurance to his detriment by continuing the farming operation” on the farm “for about 23 years thereafter in the belief that he would inherit that property” under the deceased’s will. “The average income received by David was in the order of one third of the average annual total male income calculated on the basis of 2020 equivalent dollars”. The deceased ought to have known that part of David’s “motivation for continuing was the expectation that he would inherit the farm”. “In those circumstances, it was unconscionable” for the deceased “not to have left the farm to David in her will”. Accordingly, David established his case and was entitled to the farm.

A promise or representation made by a willmaker to another may be enforceable particularly when another person acts on the faith of a promise or representation to their own detriment believing they will inherit property. At Everingham Solomons we have the expertise and experience to advise you on your legal rights because Helping You is Our Business.

Click here for more information on Lesley McDonnell

When there is a Will, there is a way

Headshot of Terry Robinson - Accredited Specialist and General Counsel at Everingham Solomons TamworthBut what if there isn’t a Will?  Well… there still is a way, but it does become a bit trickier and more involved process for the relatives of the deceased person.

If a person dies without making a Will or if they make a Will, but it fails to dispose of all assets properly or there is no beneficiaries who have survived the testator, then that person is deemed to have died intestate.

The Succession Act 2006 (NSW) deals with intestacy and outlines the general rules for who will benefit from a person’s estate if they die intestate.

So who gets your things if you die without a Will?

That really depends on your situation. Generally speaking, if you have a spouse, they will be entitled to your estate. The exceptions are if you have more than one spouse or you have children from a previous relationship.

If you have more than one spouse, your spouses are entitled to equal distribution of your estate.

If you have children from a previous relationship, then your spouse will be entitled to your personal effects, a gift of $350,000.00 (adjusted by CPI) and half of the rest and residue of the estate. Your children will be entitled to the balance of the rest and residue to be shared between them equally.

If you do not have a spouse, the general order for entitlement is as follows:

  1. Your children (but where a child has died and left children, their share will go to your grandchildren); and if none
  2. Your parents; and if none
  3. Your siblings (but where a sibling died and left children, their share will go to your nieces and nephews); and if none
  4. Your grandparents; and if none
  5. Your aunts and uncles; and if none
  6. Your first cousins; and if none
  7. The NSW Government.

If there is more than one beneficiary, then the share will be divided equally between them.

It is a common misconception that if you die without a Will, then the Government will receive all your assets. As you can see this is only true if the person who died had no immediate relatives that survived them.

Overall, it is much simpler for your relatives if you make a Will before you die because the process to administer an Estate of a person who died intestate is more complex and costly as the deceased did not give any person the authority to administer the Estate. This means that a grant of Letters of Administration must be sought so that there is someone with the authority to do the things necessary. More importantly, without a Will, your assets may not go to the people you wish to benefit.

If you would like to make a Will or have any questions about making a Will, please contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Terry Robinson

Development and the requirement for Council approval

Headshot of Jessica Wadwell - Conveyancer at Everingham Solomons TamworthDoes all development need Council approval? 

The type and size of the development will determine whether Council approval is required.  Generally, minor development such as small decks or garden sheds are identified as exempt development and can be undertaken without Council approval.  Development such as home additions will require Council approval.  Prior to undertaking any development, you should seek Council or legal advice specific to your development.

How do I obtain Council approval of an unapproved structure? 

The owner or an authorised third party can apply for a Building Information Certificate.  This certificate is issued by Council and is confirmation that Council will not issue an order, or take proceedings for an order or injunction, for the repair, demolition, alteration, addition or rebuilding of the building.  Applying for this certificate will require a survey report of the property and Council’s inspection of the structure.  If Council refuses to issue the certificate, Council must notify the applicant setting out the reasons for its decision and the work required to be undertaken to permit a certificate to issue.  Depending upon the type of work required, this may result in additional costs.  Once issued, the certificate is for a period of seven (7) years and covers such matters which exist at the time of issue of the certificate.

Selling a property with an unapproved structure?

Vendors should discuss any unapproved structures on their property with their solicitor.  This is due to the prescribed warranty under the Conveyancing (Sale of Land) Regulation 2017 that provides ‘the vendor warrants that, as at the date of the contract and except as disclosed in the contract … there is no matter in relation to any building or structure on the land … that would justify the making of any upgrading or demolition order’.  A breach of this warranty by the vendor may result in the purchaser being permitted to rescind the Contract.

Purchasing a property? 

Be alert to structures that require Council approval.  Initially, you or your solicitor should make enquiries of the vendor to obtain copies of the Council approvals held.  If the vendor does not hold approvals, Council records can be inspected with consent of the vendor.  These records may take time to obtain, so parties should be conscious of potential delays.

Important reminder!

If you are planning to undertake development upon your property, check whether Council approval is required.  If so, ensure all approvals are in place before works are commenced and the works are consistent with the development consent.  Don’t forget to schedule the appropriate inspections during construction to obtain that final approval known as an occupation certificate.

Feeling overwhelmed by the process of obtaining Council approval?  Contact the friendly and experienced team at Everingham Solomons, where Helping You is Our Business.

Click here for more information on Jessica Wadwell

Zoe’s Law

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthNew South Wales is the first state of Australia which has introduced Laws that makes it a criminal offence to cause the loss of an unborn child.

The legislation came into effect in late March and includes two new offences.

The first is a stand-alone offence which makes it a crime to cause the loss of a fetus. Previously, NSW laws only recognised the loss of an unborn child as an injury to the gestational parent. Now, there is a separate charge for the loss of a fetus.

This new law will be used in circumstances where the parent survives but loses an unborn child because of a crime being committed. This will now apply to a range of crimes including driving offences, bodily harm offences and the like.

This offence can carry a punishment of five (5) years to twenty-eight (28) years imprisonment, depending on the circumstances of the offence.

The second offence will be charged when a gestational parent is killed because of a crime. The punishment for this offence will be an additional three (3) years in prison (added to the sentence for killing the parent).

It is important to note that a person can only be charged with causing the loss of a fetus in circumstances where the fetus is at least 400g in weight or once the gestation period exceeds 20 weeks.

The new legislation also means that family members will also be able to submit victim impact statements to the Court addressing the loss of the unborn child. Victim impact statements are used by the Court when determining what sentence is appropriate for an offender.

The NSW Government have also announced a bereavement payment of $3,000.00 to be paid to the family of the victim/s if a person is charged with one of these offences.

For all your legal needs contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Sarah Rayner.

 

But that’s mine!

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthA common document that many people put in place when completing their estate planning is a Power of Attorney. This allows another person to make financial and legal decisions on behalf of that person.

A person’s financial affairs can be quite intricate and the person who is acting as the Attorney can sometimes be required to make some complicated decisions.

Specifically, the Attorney can be put into a difficult position when the person they are acting for has significant expenses, but there is not enough money to pay for them. The Attorney does not have much of a choice other than to sell some of the person’s assets.

This is quite common when a person becomes elderly or their care needs increase.

In order to pay for care facilities, many people will have to sell some of their assets, such as property, to be able to afford the entry payments.

An Attorney generally also has the power to sell these assets on behalf of another person, but what if by doing so, they are effectively stripping a third-party of their benefit under that person’s Will?

S22 of the Power of Attorney Act 2003 deals with this very issue.

When a Power of Attorney, which has been drafted in accordance with this legislation, sells an asset that has been gifted to a third party under a Will, the Estate of that person will be obligated to account for this, by way of Ademption. This is a fancy way of saying that the Beneficiary, who was disadvantaged by the Attorney’s actions, will receive a cash payment of the net proceeds of sale (or whatever is left over) out of the Estate, before the rest of the estate is distributed.

So even if a person’s gift is sold by an Attorney, they will be compensated for the value of that asset, so far as possible.

If you have questions about Attorney’s duties or more generally Estates contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Sarah Rayner.

Have You Met the Disclosure Requirements relating to Substantially Prejudicial Terms?

Headshot of Ya Zhang - Solicitor at Everingham Solomons TamworthFrom 1 January 2021, businesses dealing with consumers in New South Wales (NSW) are liable to penalties if they do not disclose to consumers:

  • terms of contracts that substantially prejudice the interests of the consumer;
  • if the business receives a commission or referral fee when recommending the consumer buys goods or services from another supplier.

The legislation applies to businesses (companies and individuals) whether located inside NSW or not that are dealing with “consumers” in NSW.

Disclosure of substantially prejudicial terms

Businesses caught by the new law must take reasonable steps to make customers aware of the substance and effect of terms that may ‘substantially prejudice’ the interests of consumers.

Currently there is no clear provision defining what constitutes a substantially prejudicial term.

Disclosure of substantially prejudicial terms must be made before supplying the goods or services. For example, before the consumer signs the contract or makes a payment.

Disclosure of commission or referral arrangement

Where a business acts as an intermediary receiving a financial incentive from another supplier, it must take reasonable steps to make customers aware of any commission or referral arrangements with another supplier when recommending goods or services provided by that supplier.

Disclosure must be made before acting under such commission or referral arrangement. For example, before the consumer is redirected from the intermediary to the supplier or before the consumer makes the purchase.

What constitutes “reasonable steps”?

There is no guidance in the legislation as to what constitutes “reasonable steps”.  According to the NSW Department of Fair Trading, “reasonable steps” means taking actions that “one would reasonably expect would create awareness in a consumer” and should be:

  • appropriate in the circumstances; and
  • sufficient to create awareness in the consumer.

What businesses need to do if they supply goods or services to NSW consumers

If your business supplies goods or services to NSW consumers, you should:

Step 1   Identify any terms which might “substantially prejudice” the interests of a consumer.

Step 2   Consider what “reasonable steps” you need to take to alert consumers of these terms before supplying the consumer with the relevant goods or services.

Step 3   Take those reasonable steps.

In light of the lack of guidance in the legislation, steps 1 and 2 will very much depend on the nature of your business and how you supply your goods and services.

The fines for breaching this law are substantial – up to $110,000 for corporations and $22,000 for individuals so don’t take the risk. We are here to help.

If you need assistance in reviewing your terms and conditions of supply, please contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Ya Zhang.

What happens to a mortgage for land when a person dies?

Headshot of Suzanne Hindmarsh - Conveyancer at Everingham Solomons TamworthAfter your funeral and your family has had time to process the loss of a loved one, it is necessary for the executor to deal with the deceased’s assets and liabilities.

As land is involved and a Will was made, Probate will need to be obtained. This is a document issued by the Supreme Court acknowledging the validity of the deceased’s Will and authorizes the executor/s to administer the Estate.

If a Will was not left, the next of kin of the deceased will need to apply for Letters of Administration. This is a document issued by the Supreme Court authorizing the next of kin (known as the “Administrator”) to administer the Estate according to intestacy rules.

The executor needs to contact the Bank to advise of the death and provide certified copies of the Death Certificate and Probate in due course.

There are three ways you can hold land in NSW and transfer the land.

They are:-

Sole Owner

The deceased holds land only in their name. The land will be dealt with as part of the deceased’s Estate. Subject to the deceased’s Will, the land may be sold or left to a beneficiary.  If left to a beneficiary, a new loan needs to be prepared. Written consent from the Bank needs to be obtained prior to the land being transmitted to the beneficiary. A Transmission Application form is required to be lodged with NSW Land Registry Services through the electronic conveyancing platform called PEXA.

Joint tenant

The deceased and another person holds the land as joint tenants. This is the most common way married or de facto couples own land. Whilst each person holds an individual interest in the land, when one person dies, the legal concept of “survivorship” takes place. That is, the interest of the deceased person will automatically pass to the surviving joint tenant. The land does not form part of the deceased’s Estate. The surviving joint tenant needs to speak to the Bank about continuing on the mortgage payments and the Bank needs to provide their consent prior to the lodgement of a Notice of Death form to NSW Land Registry Services by PEXA.

Tenants in Common

The deceased and another person are co-owners of the same land holding as tenants in common in equal shares or hold an unequal share, for example 80/20. When a person dies their individual share in the land does not automatically pass to the other surviving owners. Instead, the deceased person’s share in the land will form part of their Estate and be distributed in accordance to their Will or if they did not leave a Will, by the laws of intestacy. If the land is not to be sold but instead to be transmitted to a beneficiary, the beneficiary needs to prepare new mortgage documents. A Bank’s written consent needs to be provided prior to lodgement of Transmission application to NSW Land Registry Services by PEXA.

At Everingham Solomons, we have the expertise to assist you with all legal matters regarding your land, because Helping You is Our Business.

Click here for more information on Suzanne Hindmarsh.

Financial Management and Guardianship Orders: For those who don’t plan for the future.

Headshot of Nick Hawkins - Solicitor at Everingham Solomons TamworthA Power of Attorney (POA) and Appointment of Enduring Guardian (AEG) are documents that allow you to appoint another person to make major decisions on your behalf, usually when you do not have capacity to make such decisions yourself.

While these are very useful and practical documents to have, many people do not have a POA or AEG.  So what happens if a family member or someone you know loses capacity to make decisions in their own best interests without having a POA and AEG in place?

For small decisions it is usually fine for close family members or carers to act informally on behalf of the person that does not have capacity. However, they do not have authority act on that person’s behalf to make major decisions; such as if they needed to sell their house or dispose of other assets, make decisions in relation to the medical treatment that person receives or give consent for them to be cared for in an institution.

In order to legally make decisions on behalf of someone that does not have capacity and does not have a POA or AEG you must make an application to the NSW Civil and Administrative Tribunal (NCAT).

An application for a Financial Management Order is required when you need to make financial or legal decisions on behalf of someone else and an application for a Guardianship Order is required to make medical and lifestyle decisions.

These applications require you to provide information about yourself, the person you are making the application for and any other family member or persons who may be affected if the orders are granted. You will also be required to provide details of why you are making the application and evidence that the person you are making the application on behalf of, no longer has capacity to make decisions in their own best interests.

Once the application has been received by NCAT you will receive a hearing date. Usually, both the person or people making the application and the person whom the application is made for are required to attend the hearing.  At the hearing, the application will be considered and the Tribunal Members will want to hear evidence from the person making the application as well as any other significant person, which may include family members or treating doctors of the person that no longer has capacity.

This will allow the Tribunal to decide if the desired order should be made, and if so, who the best person or people are to grant the order to. Simply submitting the application to NACT does not guarantee that such an order will be made in your favour to make decisions on behalf of the person who does not have capacity.

If you need assistance or advice regarding Financial Management Orders or Guardianship Orders or wish to submit an application to the NCAT office in Tamworth, contact a solicitor at Everingham Solomons because Helping You is Our Business.

Click here for more information on Nick Hawkins.