Once upon a time, there was a woman by the name of Mrs Donoghue. One day, Mrs Donoghue and her friend went to a cafe, where her friend purchased her an ice cream and ginger beer. Sitting down to enjoy a nice catch up, Ms Donoghue took a large gulp of the beverage contained in the dark bottle. She decided to share with her friend, who poured the remainder of the ginger beer into a clear tumbler. Along with the rest of the liquid, came a decomposed snail. Undoubtedly, both parties were shocked and horrified at what they saw, and more importantly, what they had consumed. Days later, Mrs Donoghue fell ill with gastroenteritis and shock.
Sounds like a made-up story, right? This case was in fact a landmark decision in English Tort Law which established the foundation of negligence, called Donoghue v Stevenson [1932] AC 562. The case involved the defendant, Stevenson, who was the manufacturer of the ginger beer, and Donoghue, the woman who consumed the ginger beer with the decomposed snail in it.
Mrs Donoghue commenced legal action against the defendant, but the idea of success seemed slim – there was no breach of contract as she did not purchase the drink, and there was no way to prove that Stevenson had sold the woman a faulty product. However, her solicitor argued that the defendant owed a duty of care to his consumers. This was, to take reasonable care to ensure that his products were safe for consumption.
The case was held before the House of Lords in 1932 where Lord Atkin proclaimed, “and with the knowledge that the absence of reasonable care in the preparation of putting of the products will result in an injury to the consumers life or property, owes a duty to the consumer to take that reasonable care.”
The threshold of duty of care and reasonable care is maintained in Australian common law today and is most common in the area of personal injury and public liability. If you find that you have suffered an injury due to the other party being in breach of their duty of care, you may be able to claim compensation under the law of public liability.
If you have questions, we at Everingham Solomons can assist you because, Helping You is Our Business.
Yes, entering into a Contract can be frustrating but did you know there is a legal doctrine known as “frustration”. This is where a Contract is brought to an end because of a supervening event that is beyond the control of the parties.
For example a Contract between A and B, where B agrees to hire a local hall on a particular night may be frustrated as a result of a wind storm that removed the roof from the hall. Hence despite the best efforts of A and B, the Contract cannot be performed and is deemed to be “frustrated”.
The doctrine of frustration only applies in a limited range of circumstances where the event renders performance of the Contract something fundamentally different from that anticipated by the parties. The Courts are unlikely to be sympathetic if the event could have been anticipated and therefore provided for by the parties in the terms of their Contract.
If a Contract is found to be frustrated, it is automatically terminated and all future obligations of the parties to the Contract are discharged.
Examples of where frustration is likely to bring a Contract to and end are where:
The subject matter of a contract is destroyed
There is an excessive delay in performance due to unforeseen circumstances
A party to the Contract dies or is incapacitated
The expected method of performance becomes impossible due to unforeseen circumstances
There is a natural disaster or terrorist attack.
There is no legislative test to determine whether a Contract has been frustrated, however a Court will consider factors such as whether the event in question was foreseeable and whether obligations under the contract have become impossible to perform.
Some Contracts do contain terms to deal with a frustrating event.
A Contract will not be found to be frustrated and at an end where a party simply faces loss or inconvenience or the event in question could have been reasonably foreseen.
If you have questions or requirements regarding Contract Law, we can at Everingham Solomons assist you, because Helping You is Our Business.
Security of your identity is not only important during your lifetime but also after death. Having unmanaged online accounts poses a risk to your identity and can be stressful for your loved ones. With the increasing amount of work and socialising that occurs online, it is prudent to have a plan on how you want your digital assets to be managed after death.
As there is currently no specific law in NSW that applies to a person’s digital assets when they die, online account providers adopt their own varying processes in dealing with a deceased person’s account. Some providers may be prepared to share the content with the executor, next of kin or beneficiaries whilst others close the account immediately. The differing requirements and processes of providers can be overwhelming. It is therefore important to have a Digital Asset Plan to help guide your loved ones.
A Digital Asset Plan usually consists of:
A list of your online accounts.
Your username for each account.
How your passwords can be accessed. For instance, whether they are stored on a “password safe” application or in a further secure location.
Your wishes for your accounts i.e. memorialise, closure, deletion, etc.
It is important you keep this information in a safe and secure place to minimise the risk of identity theft or cybercrime.
Some providers enable you to nominate a legacy contact with them direct. You can also appoint a person to liaise with those providers to manage those assets on your behalf. This can be done by including a power in your Power of Attorney to permit your attorney to manage your digital assets during your lifetime in the event of your incapacity. A power can also be included in your Will to permit your executor to manage your digital assets after your death.
Whilst the legislation in this area is still evolving, at Everingham Solomons we have the expertise and experience to guide you with all your estate planning needs, because Helping You is Our Business.
Click here for more information on Jessica Wadwell
When it comes to fences, I often think about the great barriers built around the world throughout the course of history. For instance, The Great Wall of China was built to keep Mongolian raiders out, whilst Hadrian’s Wall in the United Kingdom, was built to keep the Picts out of Roman Britannia. Whilst in Australia, we have the Dingo Fence stretching for some 5,600 kilometres, which was built to keep the dingoes out of the better farming land.
In my work as a lawyer, however, when there is a “fencing matter” rather than involving Genghis Khan and his hordes, clans of marauding Caledonians, or a pack of howling dingoes, it usually involves a dispute between neighbours about the fence that currently exists or is to be built between their adjoining properties.
Issues that arise with boundary fences commonly are:
– that the existing fence is not on the boundary line;
– that one neighbour wants one type/style of fence whilst the other wants something different;
– that there are trees or other vegetation that need to be cleared to construct a fence; and/or
– that one neighbour is refusing to contribute or contribute equally to the construction of the fence.
The key piece of legislation that regulates dividing fences in NSW is the Dividing Fences Act 1991 (NSW) (“the Act”).
Where there is an issue about the boundary line, section 18 of the Act provides that a neighbour can give written notice to the other of intention to have the boundary defined by a registered surveyor.
Where there is an issue about the type/style/standard of the fence, section 4 of the Act sets out the standard is a “sufficient dividing fence” and outlines the various factors that are to be considered in this regard.
Where there is an issue about vegetation needing to be trimmed or removed, sections 3 and 7(3) of the Act outline the requirements for the removal of vegetation for fencing work.
Where there is an issue in terms of financial contribution, sections 6 and 7 of the Act provide that neighbours are liable to contribute in equal proportions for fencing work necessary for a sufficient dividing fence.
Resolving a fencing issue via a negotiated settlement is the ideal way to manage these types of disputes, as like it or not, you have to live next door to the person on the other side of the fence. If negotiation isn’t possible, both the NCAT and the Local Court have jurisdiction to hear these matters pursuant to section 13 of the Act.
Should you require assistance with a boundary fence matter, please call the team at Everingham Solomons because Helping You is Our Business.
The deceased died in 2019 survived by his adult son, two adult stepchildren and a former spouse. By his Will the deceased appointed his son executor and sole beneficiary of his estate. The estate was not a large one at just under $500,000. The deceased’s adult stepson applied to the Court claiming adequate provision for his proper maintenance and advancement in life had not been made by the deceased’s will and he sought $240,000 from the estate.
The Court could only make an order for provision in favour of the stepson if it was satisfied the stepson was an eligible person. As an ex-stepchild, he was eligible to make an application as a person who was partly dependent on the deceased and a member of the deceased’s household from 1973 to 1981, except for a short break in 1978 provided he could establish there were factors that warranted the making of his application.
In undertaking a review of the evidence, the Court noted “I accept that there would be a range of views within the community as to whether a testator, who had been divorced from their adult stepchild’s parent for nearly 30 years and who had had no contact with that stepchild for over 14 years, would have any moral obligation to provide for them. There is also an absence of evidence of the deceased himself acknowledging any ongoing relationship…for some years. Nevertheless, a relationship existed that was, in my view, close enough to that of a parent/child relationship for a significant period of his life, particularly during his teenage years and young adulthood, such that he [the stepson] could be considered a natural object of testamentary recognition, and I consider that it warrants the making of his application”.
Before making an Order for provision out of the deceased’s estate, the Court had to be satisfied, that adequate provision for the stepson’s proper maintenance, education or advancement in life had not been made by the deceased’s will. In undertaking this assessment, the Court took into consideration all the factual circumstances relevant to the application not least of which included the deceased’s testamentary wishes and the interests of the deceased’s son as the sole beneficiary under the deceased’s will and the competing claimant to the stepson’s application.
Notwithstanding the history of the relationship between the deceased and the stepson and the stepson’s needs, making an evaluative judgement based on all the circumstances of the case assessed at the date of the hearing, the Court held “it was open for the deceased, acting as a wise and just testator, to provide for” his son to the exclusion of his stepson. Accordingly, no provision from the estate was ordered in favour of the stepson.
At Everingham Solomons we have the expertise to assist you with all matters relating to Family Provision Claims, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
With rental properties becoming more and more difficult to obtain, there has been a trend of Real Estate Agents engaging in a process referred to as rental bidding between prospective tenants.
Rental bidding is a practice in which Agents encourage a prospective tenant to increase their rental offer on a property because it may increase their prospects of securing the property. Essentially an auction is conducted between the prospective tenants to decide what rent will be paid, playing each offer against the other, which results in a higher rent being required.
A recent change to the Property and Stock Agents Regulations now prohibits Licensed Real Estate Agents from engaging in this practice.
From 17 December 2022, Agents can no longer invite offers of rent that is higher than the advertised price for a residential property.
These changes also effect the ways in which a residential property can be marketed for rent. A price range or a “starting price” can no longer be utilised by licensed agents. There must be a fixed rent amount listed on the advertisement.
This does not mean however that a higher offer cannot be accepted, however agents are prohibited from disclosing if higher offers have been made and they certainly cannot suggest you offer an amount over and above the rent noted in the advertisement.
There is, however, a bit of a catch. This change only applies to residential properties which are being managed by a licensed real estate. These changes do not apply to anyone who is privately advertising a residential property for lease.
Real estate agents can individually face fines of $550.00 and businesses of up to $1,100.00 for breaching these regulations. General or ongoing non-compliance can see businesses faced with Court imposed fines of up to $11,000.00.
If you need legal assistance, contact Everingham Solomon’s team of experienced Solicitors because Helping You is Our Business.
Stamp duty (now called transfer duty in NSW) is a tax imposed by the NSW Government upon the transfer of the title to a property from a Vendor to a Purchaser. Transfer duty must be paid when you buy any property in NSW whether it be your home, holiday home, investment, vacant land, or faming properties.
Generally, stamp duty must be paid on the earlier of the following:
Completion of the Contract (also called settlement); or
Three (3) months from the date of exchange of Contract
In New South Wales, “premium stamp duty” may be payable, in addition to transfer duty, on properties that attract a higher value. The purpose of premium stamp duty is to raise additional revenue from high-value properties.
Premium duty is calculated as a percentage of the value of the property above a specified threshold. Each year the threshold for premium duty is adjusted in accordance with CPI. The rate of premium stamp duty varies based on the value of the property and is applied for residential properties worth more than $3,268,000.00. Premium Duty does not apply on properties that are rural.
The same timeframes for payment of premium duty are applicable in terms of when stamp duty is payable. Revenue NSW provides a number of online calculators so you can determine stamp duty payable on your property transaction.
If you need legal assistance, contact Everingham Solomon’s team of experienced Solicitors because Helping You is Our Business.
The Covid-19 pandemic has seen a significant uptake in technology and innovation as a result of face-to-face restrictions and travel bubbles.
Everingham Solomons has undertaken renovations to accommodate new facilities and practices to help better serve our clients. Some of these changes include offering two audio visual link dedicated rooms, which allow our clients access to psychiatrist medical assessments, Court proceedings, and other relevant assessments and consultations.
These are being utilised successfully and take significant pressure and stress off our clients as we have the technology set up ready for the assessment and our clients can simply walk into the room, complete the assessment or attend the consultation without having the additional stress of technology concerns or travel that otherwise would be required, particularly to Sydney.
Our firm has also invested in significant technology upgrades and programs which will continue to assist our clients with signing forms electronically, briefing barristers with the touch of a button, and organising large cases with clarity and seamless organisation. Such technology will assist with preparing matters for Court and ensuring the Judge also has documents easily identifiable and accessible.
We have seen the introduction of these measures as significantly reducing the costs for clients and increasing the speed of the progression of matters.
Everingham Solomons, while being regionally based, is still able to provide clients with direct contact with Sydney based barristers and medical assessors without the expense of traveling.
We hope the new additions will continue to provide for greater access and flexibility to our clients because Helping You is Our Business.
Click here for more information on Libby Campbell.
Land in NSW can be held 3 ways by a person. Firstly, as an individual, secondly, jointly with another person, and thirdly, as tenants in common with one or more persons. All these holdings are dealt with separately on death. In this article, I will only deal with holding the land individually.
The first step is to ascertain if the deceased left a Will. If the deceased left a Will, the executor needs to apply for a Grant of Probate (“Probate”) from Supreme Court of NSW (“Court”). Probate is issued by the Court acknowledging the validity of the deceased’s Will and authorizing the executor to administer the Estate. If there is no Will, the next of kin of the deceased needs to apply for Letters of Administration. This is issued by the Supreme Court of NSW authorizing the next of kin (known as the “Administrator”) to administer the Estate according to intestacy rules. Once Probate or Letters of Administration has been obtained, the land is able to be dealt with.
If the land has not been left to a beneficiary in the Will, the land will be sold and sale proceeds will be distributed to the beneficiaries in the Estate.
In order for the property to be sold, a Contract for Sale of Land (“Contract”) needs to be prepared by your solicitor/conveyancer. This can be prepared prior to receiving a Probate/Letters of Administration. In the special conditions of the Contract, your solicitor will have a clause making completion of the contract subject to Probate being obtained. The time period is usually 3 months to allow sufficient time for the Probate to be obtained and registration of the Transmission Application to executor to enable the executor to sell the land.
Currently, the time frame for the Court to process Probate is approximately ten weeks from the time your solicitor has lodged the probate application with the Court. If a requisition is received from the Court, this will take a further period of a few weeks in order to comply with the requisition and that means a further delay in obtaining Probate.
In all likelihood, your solicitor will be extending the period of the special condition regarding Probate to be obtained to 4 or 5 months to ensure sufficient time is allowed to obtain Probate so the executor will not be in default of the Contract.
Settlement of a matter cannot take place until the Probate is obtained as this is the document required to enable the Transmission to the Executor to be lodged with the Land Registry Services.
At Everingham Solomons, we have the expertise to assist you in Estate and conveyancing matters because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
A recent decision of the Victorian Supreme Court has confirmed that the consequences for a Trustee are potentially disastrous if the Trust Deed is mislaid and cannot be located.
A Trustee of a Trust has a duty to keep proper accounts and records of the Trust. This includes all documents which detail the terms of the Trust, including the initial Deed as well as subsequent variations and amendments.
Technology has simplified this process however where Trust Deeds have been set up decades ago before the advent of email and scanning, clients often find themselves searching for copies of old Trust Deeds.
Without a Trust Deed, the Trust may be deemed, void for uncertainty.
In Mantovani v Vanta P/L, it was common ground that the Deed to the Family Trust had been lost. The only document that could be located was a schedule page indicating the date of the Deed, the name of the Trust, the Settlor, the Settled Sum, the Appointor and Beneficiaries.
The Trust held several properties, one of which had been lived in by Giovanni for several decades. Giovanni was not a Director of the Trustee and was not named as a beneficiary of the Trust.
The trustee and the named beneficiaries wish to sell that property. Giovanni bought the matter to the Supreme Court seeking a Declaration that the Trust had failed for uncertainty.
There was no evidence to clarify the contents and terms of the Deed or the nature of the Trust. Was it a Fixed or Discretionary Trust? What was the basis for making trust distributions and what was the vesting procedure?
The Court observed that the Trust had been administered by the Trustee without any knowledge of its terms and such guesswork amounted to a breach of Trust by the trustee.
Further the loss of the Trust Deed rendered the Trustee incapable of determining how it could act in the future, meaning there was no basis upon which the Trust could continue to operate.
Therefore, the Court held that the Trust failed for uncertainty.
Record keeping for Trustees of privately managed trusts, such as Discretionary Trusts, Self Managed Superannuation Funds and Unit Trusts are therefore critical.
If you need assistance with respect to creating, amending, locating or advice regarding your Trust, contact us at Everingham Solomons because Helping You is Our Business.
Once upon a time, there was a woman by the name of Mrs Donoghue. One day, Mrs Donoghue and her friend went to a cafe, where her friend purchased her an ice cream and ginger beer. Sitting down to enjoy a nice catch up, Ms Donoghue took a large gulp of the beverage contained in the dark bottle. She decided to share with her friend, who poured the remainder of the ginger beer into a clear tumbler. Along with the rest of the liquid, came a decomposed snail. Undoubtedly, both parties were shocked and horrified at what they saw, and more importantly, what they had consumed. Days later, Mrs Donoghue fell ill with gastroenteritis and shock.
Yes, entering into a Contract can be frustrating but did you know there is a legal doctrine known as “frustration”. This is where a Contract is brought to an end because of a supervening event that is beyond the control of the parties.
Security of your identity is not only important during your lifetime but also after death. Having unmanaged online accounts poses a risk to your identity and can be stressful for your loved ones. With the increasing amount of work and socialising that occurs online, it is prudent to have a plan on how you want your digital assets to be managed after death.
When it comes to fences, I often think about the great barriers built around the world throughout the course of history. For instance, The Great Wall of China was built to keep Mongolian raiders out, whilst Hadrian’s Wall in the United Kingdom, was built to keep the Picts out of Roman Britannia. Whilst in Australia, we have the Dingo Fence stretching for some 5,600 kilometres, which was built to keep the dingoes out of the better farming land.
The deceased died in 2019 survived by his adult son, two adult stepchildren and a former spouse. By his Will the deceased appointed his son executor and sole beneficiary of his estate. The estate was not a large one at just under $500,000. The deceased’s adult stepson applied to the Court claiming adequate provision for his proper maintenance and advancement in life had not been made by the deceased’s will and he sought $240,000 from the estate.
With rental properties becoming more and more difficult to obtain, there has been a trend of Real Estate Agents engaging in a process referred to as rental bidding between prospective tenants.
Stamp duty (now called transfer duty in NSW) is a tax imposed by the NSW Government upon the transfer of the title to a property from a Vendor to a Purchaser. Transfer duty must be paid when you buy any property in NSW whether it be your home, holiday home, investment, vacant land, or faming properties.
The Covid-19 pandemic has seen a significant uptake in technology and innovation as a result of face-to-face restrictions and travel bubbles.
Land in NSW can be held 3 ways by a person. Firstly, as an individual, secondly, jointly with another person, and thirdly, as tenants in common with one or more persons. All these holdings are dealt with separately on death. In this article, I will only deal with holding the land individually.