Swimming Pool Owners should check before diving in

RHGNew legislation that comes into force shortly will ensure that both landlords and vendors looking to sell properties with a swimming pool have undertaken all works necessary to make the pool compliant with safety regulations.

From 29 April 2015, all properties with a swimming pool or spa pool that are sold or rented must have a valid swimming pool certificate of compliance.

The laws apply to pools associated with private dwellings (houses, townhouses & strata and community schemes), moveable dwellings, motels and backpacker, B&B and farmstay accommodation.

The definition of “swimming pool and spa pool” includes in-ground, above-ground, indoor and portable pools that are capable of being filled with 300mm of water.… Read More

Creditor’s Statutory Demand for Payment of a Debt – An Action Against a Company

GRHThis is an option for enforcement of a judgment when the judgment debtor is a company and the judgment debt exceeds $2,000.00.

A creditor’s statutory demand for payment must be made in the prescribed form and must be accompanied by an affidavit from or on behalf of the creditor stating that the judgment debt is owing. On service of the demand the options for the judgment debtor company are as follows:

  1. Pay the creditor the judgment debt; or
  2. Bring an application in the Supreme Court of New South Wales to have the demand set aside.

If the judgment debtor company does not respond to a statutory demand within 21 days of service, it is deemed to be insolvent under the Corporations Act.… Read More

How does the court determine who gets what in a property settlement?

SKNThe Family Court and Federal Circuit Court have the jurisdiction in Australia to make orders in relation to division of matrimonial assets between separating spouses and de-facto partners.

When the Courts are asked to make a determination in regards to dividing matrimonial assets, the courts use a number of steps:

  1. Firstly they identify and assess the assets and liabilities of the matrimonial pool;
  2. There is a consideration of contributions made by the parties, being both financial and non-financial, direct and indirect;
  3. The next step relates to “section 75(2) factors” which include a non-exhaustive list of further considerations such as the parties’ ages and health status, whether a party cares for children, and the future needs and earning capacities of the parties;
  4. Finally, the Courts are required to make an order which is appropriate and fair, also known as being “just and equitable”.
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Personal Property what?

KXBbwMany businesses gloss over the Personal Property Securities Act 2009 (Cth) (PPSA). How is it relevant to my business? Doesn’t it have something to do with people’s personal property – their furniture, TVs, iPads, watches and the like?

In fact, the PPSA is more relevant to the property of businesses than it is to the goods used in people’s households for domestic use. Personal property is essentially all property except for land and items affixed to the land. It includes the plant and machinery of a business, and its inventory. It includes the crops and livestock of a farming business.… Read More

What can happen to a tenant if a landlord goes bust?

ATHEffect of Willmott Growers Group v Willmott Forests

In Willmott Growers Group v Willmott Forests (“the Willmott case”) the High Court has confirmed that a liquidator can disclaim a lease if a landlord company is liquidated.

Facts of the case

  • Willmott Group (“Willmott”) leased land to a tenant for a period of 25 years.
  • Willmott subsequently became insolvent and was wound up.
  • Willmott’s liquidators disclaimed the lease in accordance with the Corporations Act (“the Act”).

Result

The High Court found that the liquidator was entitled to disclaim the lease.

The tenant lost its rights in regards to the land and was left only with a claim as an unsecured creditor in the liquidation.… Read More

High Court says Employers and Employees can’t Trust one Another

CCCommonwealth Bank of Australia v Barker –

An interesting case arose recently in the High Court of Australia (‘HCA’) when a loyal employee took on his former employer, one of Australia’s largest banks.

Mr Barker had been employed by the Commonwealth Bank of Australia (CBA) for about 18 years in its financial services sector, which was being restructured.

On 2 March 2009, Mr Barker was told by his bosses that the bank had decided to make him redundant.  The bank was going to try and find Mr Barker another suitable position within the bank (‘the redeployment’), but failing that, he would be terminated four weeks later (‘the notice period’). … Read More

Employees going AWOL

RHGPeople change jobs for a variety of reasons, from not getting on with the boss to career advancement. Usually notice is given by the employee and they will work with their employer to train a replacement. But how should an employer react when an employee abandons their position?

Abandonment of employment arises where an employee:

  • is absent from work
  • without a reasonable excuse
  • for an unreasonable period of time
  • without having advised their employer why

The employee is, by their actions (or lack thereof), demonstrating an intention to no longer be bound by the terms of their contract of employment.

Abandonment of employment is a repudiation of the employment contract, however the contract isn’t terminated until the abandonment is accepted by the employer.… Read More

“Is the Christmas Party a Workplace?”

TRWith the temperatures rising, and Christmas just around the corner, the annual office Christmas parties are now in full swing.

For both employers and employees this presents a welcome relief from their yearly work commitments and a time in which an employer can show appreciation for the year’s hard work to their employees.

What should be remembered, however, is, put simply, the Christmas party is a ‘workplace’, regardless of when and where it is held.

Employers can be liable for the actions of their employees at work-related events, such as seminars, conferences, work functions and Christmas parties.

In the spirit of the season, Everingham Solomons now presents a ‘do’s and don’ts’ for both employees and employers for office Christmas parties.… Read More

When Actions Speak Louder than Words

Lesley McDonnellA recent NSW decision has ignited the debate amongst those who oppose fettering a testator’s right to testamentary freedom against the proponents of current legislation which seeks to protect the family of the deceased by providing for members of the family who would otherwise be left without adequate provision. A recent case saw an applicant bring a successful family provision claim against her former lover’s estate.

The deceased died in 2011 aged 65 years. The deceased left a Will made in 2006. The Will provided for the estate to be divided equally between the deceased’s wife, son and daughter. The estate was worth over $6 million.… Read More

Workers Entitled to Accrue Annual Leave

MKG-newAs a result of a decision by the Federal Court of NSW on 11 November 2014, workers in NSW are entitled to accrue annual leave whilst they are receiving weekly payments of compensation.

The case, NSW Nursing & Midwives Associations v Anglican Care [2014] FCCA 2580, involved a lady by the name of Ms Copas, who was receiving weekly payments of compensation as a result of a workplace injury for a number of years.

The question the Court had to answer was whether Ms Copas was entitled to accrue annual leave whilst she was not working and receiving weekly payments of compensation. … Read More