Under section 66 of the Workers Compensation Act 1987 workers are able to claim for permanent impairment for injuries which are assessed at greater than 10% whole person impairment (WPI) for physical injuries, or 15%WPI or more for psychological injuries. If the date of injury was to occur today the maximum payout, or 100%WPI for permanent impairment would be $598,560.
If death results from an injury, the worker’s dependents, such as a spouse or child, are able to claim a lump sum death benefit claim under section 25 of the Workers Compensation Act 1987. If death was to occur today the current pay out figure is $781,900.
Since the workers compensation changes in 2012 no one has tried to claim permanent impairment as well as a death benefits claim until a recent case of Hunter Quarries Pty Limited v Alexandra Mexon as Administrator for the Estate of Ryan Messenger [2017].
In this case, Mr Messenger, a machine operator, died at his workplace in the Hunter Valley, from crush injuries to his chest, which occurred after the 40 tonne excavator he was operating, tipped over and crushed the cabin in which he was working. Mr Messenger died 9 minutes after the accident occurred. Mr Messenger was married.
Mr Messenger’s estate made a claim for death benefits and funeral expenses which was accepted by the insurer. Mr Messenger’s estate later made a claim under s66 of the Act for whole person impairment. The insurer did not accept this claim.
Proceedings were commenced in the Workers Compensation Commission and the claim was referred for assessment of Mr Messenger’s degree of permanent impairment. In April 2016, initially Mr Messenger’s permanent impairment was assessed at 100%, the assessor making note his death was inevitable within a short timeframe. Then in August 2016 the assessor reconsidered the assessment and the final assessment was 0%. The 0% Medical Assessment Certificate was appealed against and the Appeal Panel found Mr Messenger’s permanent impairment was in fact 100%. Their reasoning was that Mr Messenger suffered destruction of his respiratory system and that was a permanent impairment, it was not a temporary injury that could improve with or without medical treatment. The length of time until his death was irrelevant, also irrelevant was that the injury caused his death.
Justice Schmidt of the Supreme Court agreed with the argument that the injury was a permanent injury despite death occurring shortly afterward. It was also confirmed this second claim for compensation was permitted. The Act does not state if you receive permanent impairment compensation you cannot claim for death benefits compensation and vice versa.
This case is currently before the court on appeal, but if it is confirmed to be law then it will provide for a number of people to claim further compensation. If you think you have a similar scenario to the above then please make an appointment to speak with us because Helping You is Our Business.
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Employers failing to pay superannuation could be hit with Court ordered penalties and even 12 months prison stints under draft legislation released recently.
The legislation aims to protect workers superannuation entitlements, while modernising the way the super guarantee is enforced. The introduction of Single Touch Payroll for employers from 1 July 2019 will make it much easier for the Australian Taxation Office to monitor and identify employers who skip their superannuation obligations, rather than the current regime of self-reporting.
The Single Touch Payroll system allows employers to report salaries, wages, PAYG tax and super directly to the ATO from their payroll systems.
This will allow the ATO to access real-time compliance information regarding superannuation payments.
This will support earlier detection and proactive prevention of non-payment of superannuation that is due to employees.
The government has indicated that there will be serious consequences for employers who break the law.
There will be strengthened systems for Director Penalty Notices where directors can become personally liable for unpaid superannuation payments.
Further, the ATO will be able to apply for Court ordered penalties against the employers including up to 12 months imprisonment.
The ATO will also have the power to require employers to undertake compulsory training regarding their payment obligations.
The legislation will also close a loophole that allowed unscrupulous employers to short-change workers who salary sacrifice their salary into their super.
For all your legal needs, consult Everingham Solomons Solicitors, because Helping You is Our Business.
Settlement, or the Completion Date under a Contract, is essentially the day a Purchaser hands over the money to buy a property and in return is provided with the title documents and the keys.
In New South Wales settlement takes place in one of two ways:
In person via a paper settlement – this is still the most common way for settlements to proceed. It involves the legal representatives for each party (the buyer and the seller) as well as their banks meeting in person at a scheduled time. At this meeting the title documents and bank cheques are exchanged between the parties. The Certificate of Title, Transfer and any Discharges of Mortgage or new Mortgages are then sent to the Land Registry for registration.
PEXA/Online settlement – the online settlement portal allows for a settlement to take place electronically without the need for the parties to physically meet. Funds are transferred electronically and the title to the property is transferred into the new owners names immediately on settlement.
What do you need to do to prepare?
Usually the settlement date is a set number of days after the exchange of Contracts, usually 42 days (6 weeks), so hopefully you have had plenty of time to prepare.
For a Vendor (owner) – you need to vacate the property prior to the settlement date. The property should be left in a neat and tidy condition inside and out. You should also contact your service providers (electricity, gas etc) and let them know you are moving. Your insurance for the property needs to stay in place until after settlement.
For a Purchaser (buyer) – you will need to do a final inspection of the property prior to settlement. This is essentially your ‘last look’ at the property before handing over the purchase money. The property should be neat and tidy and in the same condition it was when you made your offer. The final inspection is arranged through the selling agent who will meet you at the property.
Insurance – the Purchaser needs to take out an insurance policy for the replacement value of the property that is effective from the time that settlement takes place. If you are obtaining finance to assist with the purchase your bank will probably specify a figure that they want the property insured for. They will also require the bank’s name to be noted on the policy as mortgagee.
Prior to settlement the Purchaser should contact their preferred service providers and arrange the connection of utilities on the settlement date.
What can go wrong?
Unfortunately there are times when settlement doesn’t take place on the due date. This can be for many reasons, sometimes it is simply a matter of a document not arriving on time. Rest assured your Solicitor or Conveyancer will do everything they can to avoid delays to settlement, we know you are keen to move on or move in!
When can I have the keys?
As soon as settlement takes place your Solicitor or Conveyancer will let you know. You can then collect the keys from the selling agent and move in.
Are you looking to buy or sell a property? Speak with our Property Law team today at Everingham Solomons because we have the expertise & experience to assist you in your property transactions because Helping You is Our Business.
A recent decision of the Western Australian Supreme Court was a timely reminder of the need to be specific when making a Will.
The deceased was a wealthy grazier who died leaving a number of farms and a significant number of Murray Grey cattle.
In his Will he made a provision gifting a farm to a particular person. The Will went on to say that the gift of land included all farming plant and machinery on that land.
The issue before the Court was whether the cattle that were normally grazed on that land were included in the gift or putting it in another way, whether cattle came within the accepted meaning of “plant and machinery”.
Perhaps not surprisingly, the Court held that the cattle did not come within the gift.
The Court did not find a definition for the phrase “plant and machinery” but found that extending the words to cover livestock would be beyond the natural meaning of the term particularly when, in the particular case, there was no evidence that the deceased intended to provide the beneficiary with a “working farm”.
The lesson is that in providing instructions to your solicitor to prepare your Wills, you need to be very specific about what you require. For instance, in a farming context, if the intention is to give a beneficiary a working farm you need to consider everything that is required for the operation of the farm. This will generally include machinery, stock and perhaps particular water entitlements. You also need to factor in that quite often these “operating” type assets of a farm may actually be held through a different structure such as a partnership or company. Failure to be specific could easily result in your intentions not being carried into effect.
At Everingham Solomons, we have the expertise and experience to assist you with all your estate planning matters whether involving farms or any other type of business because Helping You is Our Business.
In 2008 the deceased died at the hands of one of her two sons. In 2012, son Brent was tried and convicted before the Supreme Court of Western Australia for the murder of his mother. In 2014 this family was again touched by sadness when Brent’s brother and only other child of the deceased, Adrian passed away. Adrian died without leaving a Will which meant his estate would be distributed according to the rules of intestacy. In 2016 a grant of letters of administration of Adrian’s estate was made to the Public Trustee (WA).
The Public Trustee (WA) made an application for direction from the Court as to how to distribute the part of Adrian’s estate which was made up of inheritance from his deceased mother’s estate. Pursuant to the rules of intestacy, two persons were entitled to benefit from Adrian’s estate when he died namely Brent and Adrian’s half-brother, Gary. Gary was not a child of Adrian’s deceased mother.
In the deceased mother’s estate, the Court made orders that by reason of Brent having murdered his mother, he forfeited his entitlement to take in intestacy from her estate. But Brent’s entitlement to a share of Adrian’s Estate does not arise directly from Brent’s crime committed in 2008 by the murder of his mother. It arises from Adrian’s death in 2014 and the fact that Adrian died intestate and the effect of the rules of intestacy. There was no suggestion that Brent was responsible for Adrian’s death. However Adrian would not have had an entitlement to the whole of his mother’s estate but for her death at Brent’s hand.
Perhaps mercifully the Court noted “there appears to be no Australian authority directly on point”. “Intuitively it would seem to be a logical extension of the rule of forfeiture to hold that a person in the position of Brent, a convicted murderer, could not benefit directly or indirectly as a consequence of his crime”.
Ultimately the Court decided that the application of the common law forfeiture rule meant that Brent should not receive any part of Adrian’s estate which derived from his late mother’s estate.
In the above cases, both mother and son died without leaving a Will. A carefully drafted Will could have avoided some of the uncertainty associated with the rules of intestacy. At Everingham Solomons, we have the expertise and experience to assist you with all your estate planning matters because Helping You is Our Business.
Click here for more information on Lesley McDonnell
An easement is, put simply, the right of one landowner to use land belonging to another.
In the recent Supreme Court case of Pullen v Smedley, the court was asked to take a close look at the rights and obligations of rural landholders affected by easements.
Pullen had a particular type of easement known as a right of way across Smedley’s farm. It was Pullen’s only way of accessing the main road. Along the right of way there were five sets of gates designed to allow cattle to be rotationally grazed around Smedley’s farm.
A dispute arose because Smedley wanted the gates to be kept shut, whereas Pullen wanted them open so he didn’t have to get in and out of the car ten times before he hit the main road.
As is often the case the neighborly relationship broke down and a number of other issues were raised. Pullen complained about the Smedley’s cattle grazing the right of way and Smedley complained about Pullen constructing a gravel road along it without approval and using fill containing asbestos.
The court, after considering the issues, sided mostly with Smedley, holding that:
It was a trespass for Pullen to construct a substandard road without approval and the dumping of asbestos constituted an offence under environmental legislation.
The fact that Smedley’s cattle grazed and crossed the right of way was not an actionable interference, so the grazing could continue.
Neither the presence of the gates along the right of way, nor the insistence that they be kept shut, constituted any real or substantial interference with Pullen’s use of the right of way.
Accordingly, like many before them, Pullen was sternly ordered to ‘leave the gate as you found it.’
If you have any enquiries relating to rural property, contact Everingham Solomons because Helping You is Our Business.
My name is Alexandra Long and I have recently joined the team at Everingham Solomons as a Law Graduate.
I graduated from UNE in September 2017 and am currently undergoing my Graduate Diploma of Legal Practice through the College of Law and will be admitted in June 2018 as a Solicitor
I was born and raised in Gunnedah and went to boarding school in Sydney. I completed my Bachelor of Laws through the University of New England, attending the university and Robb College in 2012 and undertaking the remainder of the degree by correspondence. I spent the last 4 years in the Northern Territory contract mustering and running the livestock administration for a Livestock Export Yard in Katherine, NT.
I come from a strong agricultural background having worked in many different sectors from cropping, grain handling, cattle and horses and growing up on the farm.
In my spare time, I love competing in camp drafting on my three horses and droving cattle. It’s been a big change going from the paddock to the office however I have to say, that I have loved my first week and can’t wait for my second.
I am very excited about my move to Tamworth and cannot wait to get involved in the lifestyle and great opportunities offered by this diverse region. I’ve always played a range of different sports and am amazed at the variety of sporting activities that Tamworth offers.
I’ve had previous experience as a Law Clerk in Gunnedah and at Everingham Solomons I will be working with Director Terry Robinson and his team in Property and Business Law. I look forward to meeting with clients, providing excellent service and advice and developing new working relationships because at Everingham Solomons, Helping You is Our Business.
One area of recent reform to the Victorian Residential Tenancies Act is aimed at providing tenants with clear rights in relation to the keeping of pets. Currently, the Victorian Act permits landlords to include a ‘no pets’ clause in their residential tenancy agreements. However, changes to the Victorian Act will prohibit such clauses. Whilst tenants will still be required to obtain landlord’s consent, such consent cannot be unreasonably refused.
But what are the rights of landlords and tenants in New South Wales?
The NSW Residential Tenancies Act is silent in relation to allowing, prohibiting or requiring consent for the keeping of pets. Most landlords will include a term in their residential tenancy agreement whereby the keeping of pets is prohibited without their consent. Such a term is currently not prohibited in NSW. The result is that the consent of the landlord is at the landlord’s sole discretion, except in relation to assistance animals.
The standard form residential tenancy agreement published by NSW Fair Trading stipulates, as an additional term, that “The tenant agrees not to keep animals on the residential premises without obtaining the landlord’s consent”. The standard form also provides that “The landlord agrees that the tenant may keep the following animals on the residential premises:”. These additional terms can be deleted upon approval by the landlord and tenant at the time of entering into the agreement. It is therefore important that both the landlord and tenant understand the terms of their agreement at the time of entering into the agreement.
Accordingly, the keeping of pets in residential rental properties in NSW is, in most instances, at the sole discretion of landlords and tenants, except where a strata scheme is involved. Most strata schemes will have a by-law restricting animals without the owners corporation’s consent or a by-law prohibiting animals altogether.
For tenants entering or currently in the rental market who are considering or already have a pet, the RSCPA makes several recommendations in facilitating a pet-friendly rental. For instance, preparing a pet resume with information on the pet together with references including previous landlords and supplying images of enclosures for birds or pocket pets.
One of the major concerns landlords have when considering consenting to the keeping of pets is the potential for property damage. One of the major concerns for tenants is having freedom within their rental property. Understanding each other’s concerns and obligations, and addressing potential issues at the outset may alleviate potential disputes.
For all your property needs, contact Everingham Solomons because Helping You is Our Business.
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When deciding to sell residential property, whether you list with a Real Estate Agent or you intend to sell privately, the law requires that you have a copy of the proposed Contract for the sale of the property available for inspection by a prospective purchaser. The Contract must have prescribed documents as set out in the Conveyancing Act before it can be signed by a Purchaser. If Contracts are signed and exchanged without the relevant prescribed documents being attached, the purchaser may have a right of rescission (able to get out of the Contract).
You should contact your Solicitor or Licensed Conveyancer who will assist in preparation of the proposed Contract. In addition to various prescribed documents additional documents may be required.
Things to consider:-
Is there a Swimming Pool? If so, you should ensure that the Swimming Pool is registered on the NSW State Government NSW Swimming Pool Register. You should also ensure that you have a current Swimming Pool Certificate of Compliance – these remain valid for 3 years so if you either haven’t obtained a Swimming Pool Certificate of Compliance or have one which is expired or close to expiry you should arrange for this to be obtained as soon as possible.
Has any residential building work as defined in the Home Building Act been carried out in the last 6 years? If yes and the cost the building work is over $20,000.00 then a Home Building Compensation Fund (HBCF) Certificate of Insurance should be attached to the Contract. If this is not attached to the Contract or subsequently provided to a Purchaser prior to settlement a Purchaser may have the right to get out of the Contract at any time prior to completion.
Where Council approval is required you should ensure that it has been obtained and an Occupation Certificate issued by Council or an Accredited Certifier which should also be attached to the Contract.
Anything you do now to prepare your property for sale, both from an appearance and contractual point of view, may ultimately save you time and effort when it comes to selling your property and may mean that Contracts are exchanged sooner rather than later.
There may be other issues that should be identified in a Contract. To avoid issues between exchange and settlement, see your Solicitor or Licensed Conveyancer without delay.
At Everingham Solomons, we have the expertise to assist you in all of your property transactions because, Helping You is Our Business.
Airbnb and other similar types of short-term accommodation are now very widely used in NSW.
This has been controversial particularly in strata title developments. The perception of “permanent” strata residents has been that short term occupancies are disruptive and sometimes actually damaging to strata property. This has led many strata developments to pass bylaws intended to prohibit short-term lettings which in many cases have been ignored by owners seeking to maximise rental returns from their properties. The issue has become whether strata developments can legally restrict short-term letting?
The NSW Department of Fair Trading view is/was that-
“Strata laws prevent an owner’s corporation restricting an owner from letting their lot, including short-term letting. The only way short-term letting can be restricted is by council planning regulations.”
This view was endorsed by a 2017 NCAT Tribunal decision which held that a bylaw restricting letting to a minimum of 30 days was unenforceable. However, a more recent Privy Council decision has taken entirely the opposite view.
Whilst decisions of the Privy Council are not directly binding upon NSW Courts and Tribunals, the view of most experts is that the decision will be followed when the issue next comes before a NSW court or tribunal. The decision dealt with legislation that was materially identical to the NSW legislation and it also referenced with approval a 2017 Western Australian Court of Appeal decision to similar effect.
A sensible balance needs to be struck between the interests of permanent residents and those seeking to utilise Airbnb arrangements. The NSW Government commissioned a parliamentary enquiry into the adequacy of regulation of short-term holiday lettings. The government response to the report of that enquiry is available on the NSW Government website- www.parliament.nsw.gov.au .
At Everingham Solomons we have the experience and expertise to assist you with all leasing and property matters because Helping You is Our Business.
Under section 66 of the Workers Compensation Act 1987 workers are able to claim for permanent impairment for injuries which are assessed at greater than 10% whole person impairment (WPI) for physical injuries, or 15%WPI or more for psychological injuries. If the date of injury was to occur today the maximum payout, or 100%WPI for permanent impairment would be $598,560.
What is settlement?
