I WANT MY SHARE – Natasha Wood

NKW-booksHow do you go about leaving unequal provision of your children in your Will?

Most people either don’t make a Will because they think their wishes won’t take effect or they execute a poorly drafted document which can burden their Executor with having to defend a Family Provision claim with no evidence of why they did what they did.

A Family Provision claim is an application made by an eligible person (spouse, child, dependent etc.) to the Supreme Court seeking that they receive a greater share of your estate to adequately provide for their proper education, maintenance and advancement in life.… Read More

Considering a DIY Will Kit? Then consider an Epic Will Kit Fail – Lesley McDonnell

LAMMaking a valid Will is one of the most important things a person can do to protect their loved ones. Over time a Will needs to be reviewed and updated so that it properly reflects life changing events. It is imperative that a Willmaker takes proper professional advice to ensure the Will reflects their wishes and is in conformity with the law. The pitfalls of not doing so are highlighted in a recent Western Australia case.

The Willmaker died leaving a ‘will kit’.  The Willmaker was survived by a daughter.  The Will left the estate to the daughter who was still a minor at the time of her mother’s death with conflicting trust provisions.… Read More

Bank fees class action fails – Keiran Breckenridge

KXBbwA class action bought by credit card, consumer and business deposit customers of a bank in relation to dishonour fees, late payment fees and the like has failed in the High Court.

We have all experienced these fees and felt annoyed at having to wear such a large amount for what seems to be a minor default on a credit card or bank account. The customers in this case argued that the fees they paid were not a reasonable estimate of the actual costs to the bank of their default.  They argued that the fees amounted to the imposition of a penalty by the bank and were unenforceable. … Read More

More Personal Liability for Directors – Ken Sorrenson

KJSbwWhilst businesses always plan to succeed, statistics show that about 1 in 2 new businesses fail in the short to medium term. For this reason, it is always relevant when choosing a business structure to consider the personal liabilities for the business owners should things not go as planned.

Traditionally, trading through a structure like a company offered a significant degree of insulation from personal liabilities. With some fairly narrow exceptions, the worst-case result for the business owners was the loss of the money they put into the business. Business failure did not spill over to the separate assets of the business owners.… Read More

Restraint of Trade – George Hoddle

GRHOften, after the separation of employment both employees and employers are concerned about whether or not restraints will apply to the former employee as part of their post-employment obligations to their former employer.

In New South Wales a restraint is valid to the extent to which it is not against public policy bearing in mind an employer is not entitled to be protected against mere competition but is protecting its legitimate interests by enforcing the restraints. Such interests may include employer’s trade secrets, confidential information, the employer’s goodwill, including its connections with its customers.

It is also worth noting that there are statutory obligations under the Corporations Act that an employee cannot use information obtained to gain advantage for themselves or for someone else which may cause detriment to a corporation.… Read More

Do Work. Get Paid. – Clint Coles

CCUndertaking work before being paid is a part of business. If you’ve been in business for a while you’ll know the difficulties that can arise in getting paid after the fact.

This is a situation where prevention is much better than cure. There are a number of steps that a business can take to greatly reduce the likelihood of payment problems arising.

Although it seems simple, the first is often overlooked. It is important to properly identify who your business is dealing with and to make an assessment of the creditworthiness of the entity you are contracting with.  People and companies can enter into contracts, but nobody else. … Read More

Not wearing a seat belt cost $375,000 – Mark Grady

MKG-newEarlier this year Judge Mahoney of the District Court reduced an award of damages of $1.57m by 25% because the injured passenger was not wearing a seat belt and got into a car with a person he knew or ought to have known was under the influence of alcohol.

The case of Vance v Chambers [2016] NSW DC 79 involved two friends who, after fishing and consuming alcohol together drove along a beach at Sandon River, just south of Yamba.  The vehicle hit a ‘washout‘ on the beach and as a result the car being driven by the defendant rolled. … Read More

When Duty and Personal Interests Collide – Lesley McDonnell

LAMAn enduring Power of Attorney is a legal document that permits a person (‘the Principal’) to appoint a trusted friend or family member, or more than one (‘the attorney’) to step into the Principal’s shoes and manage their legal and financial affairs if for some reason the Principal’s decision making ability is lost. This type of Power of Attorney is aptly named an enduring Power of Attorney because the attorney’s power to make decisions for the Principal endures or continues if the Principal loses their mental capacity to manage their own affairs.

Any person who acts as an attorney pursuant to an enduring Power of Attorney document has a number of duties.… Read More

Can I move with my children if I separate from my spouse? – Sophie Newham

SKNWhen parents separate, often one parent will wish to move away with their children. This can be for a range of reasons including obtaining new employment, to seek support of their family or to live with a new partner.

Relocation matters are becoming increasingly common in the family law courts, however they do not form a discrete subset of cases but rather are determined in accordance with the guiding principle of the law, namely whether it is in the best interests of the children to relocate, which forms the framework of the Family Law Act 1975.

The best interests of children are met by:

  1. Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives; and
  2. Protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence;
  3. Ensuring that children receive adequate and proper parenting to help them achieve their full potential;
  4. Ensuring that parents fulfil their duties, and meet their responsibilities concerning the care, welfare and development of their children.
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Can I cash out my employees’ annual leave? – Keiran Breckenridge

KXBbwOften a business will have staff who hoard their annual leave, whether it is to insulate themselves for a rainy day, to seek longer periods of leave in the future, or perhaps they just prefer to work rather than holiday.

For a business, this hoarding can create issues. Greater financial provision has to be made for annual leave entitlements.  Uncertainty can exist as to whether those staff members may seek long periods of leave at a time not suitable to the business.  Employee errors or even fraud can remain undetected if an employee never takes annual leave.

The ability for an employer and an employee to agree to cash out some of an employee’s annual leave has not featured in most Modern Awards.… Read More