Forge was a company in the business of building power stations and had contracted with the Western Australian government to build one at Port Hedland. Forge leased four turbine generators from General Electric and put them in the power station.
Shortly after the turbines were installed, Forge went broke and its liquidator took the generators to sell. General Electric, as the owner, appealed to the court. Forge’s liquidator argued that the lease fell within the auspices of the Personal Property Securities Act (PPSA) which required such leases to be registered. As the lease was not registered, upon liquidation the PPSA provides that title to the leased goods passed to the liquidator.
Of course, General Electric didn’t want to give up the turbines and argued that the PPSA didn’t apply. One of the arguments was that the generators were fixed to the land, rather than being a good detachable from the land (which would have excluded the arrangement from the PPSA).
On that issue the court looked at the usual matters that separate a good (an item separate to land) from a fixture (an item that becomes part of the land, like a house). The court looked at the extent to which the generators were bolted down, plumbed in and the purpose for which they were placed on the land. The court concluded that they were goods rather than fixtures and accordingly that the PPSA applied. General Electric lost the generators.
The case highlights the problems that arise in leasing and financing goods, particularly goods that may become fixtures. Semi fixed plant like stock yards, pumps, fuel tanks, fit-out items, storage containers, and large stationary machinery are pressing examples.
If there is any doubt as to whether a particular piece of plant is a fixture, the secured party should register a PPSA interest and also have the mortgagee of the land disclaim any interest in the plant.
If you need help with any commercial leasing or financing arrangements, contact Everingham Solomons Solicitors because Helping You is Our Business.
If your circumstances suddenly changed and you could no longer manage your own affairs, do you have the necessary documentation in place to authorise another person to make financial and legal decisions on your behalf?
If you don’t then you ought to consider making a Power of Attorney.
A Power of Attorney is a document which allows you to appoint someone to manage your financial and legal affairs. For example it empowers your Attorney to manage your assets and operate your bank accounts.
The document may be structured in many different ways so that it is tailored to suit your needs, for example:
You may appoint more than one person.
If you appoint more than one person you can appoint them jointly or independently of each other.
You can make a Power of Attorney for a limited period of time, for example, if you are planning to travel overseas.
You can make an enduring Power of Attorney so it continues to operate even after you lose mental capacity.
You can authorise your Attorney to give reasonable gifts on your behalf.
You can authorise your Attorney to use your money to benefit another person, for example spouse or children.
You can authorise your Attorney to act immediately, or you can require your Attorney to produce evidence of your mental or physical incapacity before they can make decisions on your behalf.
You can impose conditions and limitations on the Attorneys power.
You can give directions regarding management of certain assets.
At Everingham Solomons we have the knowledge and experience to assist you in drafting a Power of Attorney to suit your needs because Helping You is Our Business.
Everingham Solomons are pleased to announce that once again a Tamworth, Quirindi, Gunnedah or Manilla Year 12 student wishing to undertake university study in Law will have a valuable opportunity to receive the benefits of our Law Bursary.
The Sir Adrian Solomons Memorial Law Bursary provides financial assistance for the successful applicant during their first year of university as well as an opportunity to gain valuable paid work experience in our offices periodically throughout the duration of their studies.
All Principals of local High Schools have been contacted and advised of the details. Interested students should liaise with the Principal or Careers Advisor of their school, who will assist them in making a formal application for this Bursary.
We emphasise that the selection process does not depend solely on academic merit. We appreciate that students come from a variety of backgrounds and accordingly the selection process concentrates on the attributes of the student as a whole, rather than solely academic achievement.
The Bursary has gained widespread interest since its inception and continues to provide a valuable opportunity for current Year 12 students wishing to pursue a legal career. The Bursary is also open to students currently undertaking a gap year who will be commencing university study in 2018.
Everingham Solomons view the Bursary as a continuing commitment to young people in the communities of Tamworth, Quirindi, Manilla and Gunnedah and we encourage interested students to apply. Applications will be accepted until 30 September 2017.
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The willmaker was survived by 4 adult children. When the willmaker died he left his $2.25 million estate to 3 of his 4 children. The excluded son, John contested his father’s will claiming his father had failed to make adequate provision for him in the Will. The executors of the Will opposed John’s claim for the following reasons:
(1) John had deliberately estranged himself from his father, and indeed his mother, for most of his life, causing them both great distress; and
(2) John had no need for provision out of his father’s estate, because of his and his wife’s existing personal wealth.
As a child of the deceased John was an “eligible person” to seek to make a family provision claim against his father’s estate. Having met this initial criterion, the Court was required to determine whether there was inadequate provision for John’s “proper maintenance, education and advancement in life”. What is proper means “proper in all the circumstances of the case” taking into account matters such as competing claims on the estate, the needs of the applicant and the testator’s ability to meet such claims having regard to the size of the estate.
The Court held that the provision was not inadequate for John for a number of reasons. Firstly, John had substantial assets already about double the size of the willmaker’s estate, from which provision was being sought. Secondly, this estate was one upon which the beneficiaries of the Will had real and genuine claims. The Court could see “no reason to diminish at all the entitlement of any of the other beneficiaries in this estate, who (as to at least two of them) suffer real and oppressing financial concerns of their own and whose asset positions are considerably less advantageous than John and his wife”. The beneficiaries’ interests weighed heavily in the Court’s view against the notion of any reduction of their share in the estate in John’s favour. The Court found this last consideration to be even stronger when the “tumultuous family history” was taken into account finding that John was the “prime aggressive mover in creating family chaos and disharmony over the years”.
If you have you been left out of a Will, or you are an Executor who is faced with defending a Will, you need to seek professional legal advice. At Everingham Solomons we have the expertise and experience to assist you with all issues relating to Estates because Helping You is Our Business.
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Before you embark on a new business or venture, one of the most important decisions you will need to make is what type of structure should be set up for the venture.
Should your venture operate as a sole trader, partnership, company, discretionary trust, unit trust, a company with a discretionary trust as a shareholder or a of combinations of these?
To make this decision you need to work out what your priorities are.
The major drivers when choosing a structure include but are not limited to:
Asset protection – are your personal assets exposed to creditors and lawsuits?
Legal minimisation of income tax.
Minimisation of potential capital gains tax on future disposal.
The ability to utilise and carry forward losses.
Family considerations – is the business to be conducted by one family or a number of families. Is the business to be passed down the generations and is income to be distributed to family members?
Does the entity need to be flexible to allow parties to enter and exit the venture?
Do the owners of the entity understand the structure and what the cost of administering that structure is?
Will the business derive income from the provision of personal services of the principal? Generally, personal services income cannot be split, for example, with a spouse.
Will the business or investment have significant assets? Should the assets be held in one entity whilst the operating business utilises another entity?
Does the business venture have a high risk exposure from a legal suit?
A client needs to consider what their priorities are when considering what operating structure is to be utilised.
It may be that tax is not the main focus of a structure. In many cases, asset protection is more important for some clients.
The clients may have other priorities such as the provision for family members, the ability to increase their retirement savings.
Some structures expose the proprietors to personal liability whilst other structures provide insulation from personal suit.
Accordingly, the structure should be tailored to meet the client’s priorities as best as it can.
Unfortunately there is no one entity that satisfies all of the above considerations.
If you are thinking of establishing a business or new venture, we at Everingham Solomons have the expertise to assist you because
The Roads and Maritime Service (RMS) has the power to suspend driving licences in certain circumstances. If your licence is suspended by the RMS for speeding by more than 30 kilometres per hour, or loss of demerit points if you are a provisional licence holder, you can appeal the suspension to the Local Court.
The Court does not determine guilt or innocence at the appeal. It determines whether the suspension should be upheld or whether the appeal should be allowed. In making this decision the Court will take into consideration the following:
the circumstances of the offence, for example where you were driving from and where you were going, how you came under notice, why you were speeding;
your traffic record, for example how long you have been driving for and if you have committed any prior offences; and
your need for a licence for example if you will lose your job if you lose your licence, or if a sick relative is reliant upon you to drive them to medical appointments, or no availability of public transport.
To support your application we recommend:
obtaining a reference from your employer, or someone who has known you for a lengthy period, attesting your good character; and
attending the Traffic Education Program conducted by the PCYC. This program is designed to increase participants’ awareness of their obligation as road users and the consequences of dangerous driving in the hope that it will reduce the rate of reoffending.
If you need advice and / or representation for a traffic matter, the solicitors at Everingham Solomons can assist you because Helping You is Our Business.
Security agreements are a safety mechanism for business. The most well-known security agreement is a mortgage. A mortgage is commonly applied to land. The essence of a mortgage is that if you don’t repay the bank, they can sell your land to repay themselves.
But security agreements of a similar effect apply to personal property as well – that is, property other than land. Security agreements over personal property are important where you sell goods on trading credit or a vendor finance basis.
A well drafted security agreement will give the person wearing the credit risk a right to repossess and resell the goods supplied on credit (and often any other goods held by the debtor).
One of the beauties of the security arrangement is that it does not normally end with those original goods provided on credit. It can continue in the proceeds generated by those goods.
To take a simple example, if you sell a vehicle to a first buyer on a secured credit arrangement, and, the first buyer on sells the vehicle to a second buyer, you have a number of choices against both buyers if your security documents are in order.
Firstly, exercising your power of attorney over the first buyer’s bank accounts you may be able to directly access the cash proceeds of the sale.
Alternatively, if the first buyer took the cash out of the bank and purchased a boat with those same monies, you may be able to repossess the boat.
If the first buyer was involved in an accident and wrote off the vehicle, you may be able to access the insurance proceeds directly from the insurer.
Separately, you may be able to take and repossess the vehicle directly from the second buyer, now in possession of it.
However, your interest in the proceeds ceases once the proceeds are no longer identifiable or traceable. To take proceeds you must be able to follow an item of property directly as it is transformed into other items of property. There must be a close and substantial connection between the two pieces of property so that the property rights in the original, flow through to the subsequent.
Enforceable personal property securities are accordingly very useful to businesses. If we can help with any security arrangements, contact us at Everingham Solomons Solicitors because Helping You is Our Business.
Upon the continuous service of 10 years a worker in most circumstances is able to qualify for long service leave. It is worth noting however, that in certain situations an employee may be able to qualify for long service leave on a pro rata basis before the expiry of obtaining 10 years continued service.
The Long Service Leave Act provides that an employer must pay an employee (with more than five years but less than 10 years’ service) their pro rata long service leave entitlements where the employee resigns from their employment “on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker.”
To be able to satisfy a claim for pro rata long service leave a worker must be able to satisfy the following;
Was the reason claimed for termination one which fell within the section?
Was the reason generally held by the worker not simply colourable or a rationalisation?
Although the reason claimed may not be the sole ground which led the worker in his decision to terminate, was it the real and motivating reason?
Was the reason such that a reasonable person in the circumstances in which the worker found himself/herself placed might have felt compelled to terminate his employment?
When considering whether or not an employee is entitled to a pro rata long service leave after five years will be fact-specific. For example the Supreme Court has recognised that uncertainty regarding the future of one’s employment and the need for security of employment both for an employee’s professional reasons, and to support their family, is a circumstance which can be taken into account when determining whether or not an employee resigned on account of “pressing necessity”.
Whilst less than 10 years, pro rata long service leave entitlements can be significant. Whether you’re an employee or an employer it is worth considering whether or not the circumstances give rise to a payment or claim for pro rata long service leave. At Everingham Solomon’s we can provide you that advice, because Helping You is Our Business.
In NSW if a Will maker fails to make adequate provision in their Will for the proper maintenance, education and advancement in life of those entitled to such maintenance and support, a court is empowered to make an order for family provision to an eligible applicant. This applies equally where a person dies without leaving a Will and the rules of intestacy fail to adequately provide for an eligible applicant. Only an “eligible person” as defined in the legislation can apply to the court for provision. In NSW a category of “eligible person” includes a former wife or husband of the deceased.
In 2014 the deceased died without leaving a Will. The deceased was survived by a daughter and a former wife. Pursuant to the rules of intestacy the deceased’s estate of $5 million would pass to his daughter. The deceased’s former wife made an application to the court for family provision.
As a divorced former spouse of the deceased, the deceased’s former wife was an “eligible person” to bring an application seeking provision be made for her from the deceased’s estate. In doing so, the court was required to determine whether, in its opinion, “having regard to all of the circumstances of the case (whether past or present), there are factors which warrant the making of the application”.
The following factors warranted the court in this case making provision in favour of the applicant former wife:-
The applicant’s current circumstances of need;
The respective post-divorce deterioration in the applicant’s circumstances, and great improvement in those of the deceased;
The impact of the applicant’s care responsibility for the daughter of their relationship, for 15 years after the matrimonial property settlement, on her earning capacity, and her corresponding indirect contribution to the deceased’s estate;
The relative paucity of the matrimonial estate at the time of the property settlement, compared to the ample resources now available; and
Where the only other claim on the estate was from the daughter, for whom ample estate will remain after making proper provision for the applicant.
The court ordered by way of provision from the estate of the deceased a lump sum of $750,000 in favour of the applicant.
If you are unsure about your rights to challenge a Will or the laws relating to intestacy when a person dies without leaving a Will, please contact Everingham Solomons because Helping You is Our Business.
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Married couples and de-facto parties may seek to have their property divided when they go their separate ways.
If this is to occur, the Family Court must consider whether it is just and equitable for the assets of separated parties to be adjusted. There is no automatic “right” to a property settlement.
The recent decision of Chancellor & McCoy [2016] FamCAFC256 delivered in the full Court of the Family Court reinforces this principle.
The facts of that case were as follows:
The parties lived together in a 27 year same sex de-facto relationship;
The parties lived in homes owned solely by one party with a small amount of money paid weekly to the other party for her occupation of the homes;
The parties were of similar age and both had worked full time;
There was no intermingling of finances;
There was no joint bank account;
Each party acquired property in their sole names;
Each party was responsible for their own debts;
Each party could use their wages as they chose;
Neither party made provision for the other in their Wills or life insurance policies.
The applicant in this case had assets worth $720,000. The respondent had assets worth $1.7 million. The most significant difference in the value of the assets was due to the respondent making greater contributions to her superannuation over a number of years, such that her superannuation was worth $887,724 whereas the applicant’s superannuation was worth $204,177.
The trial Judge who presided over the preliminary matter had said:
“It is easy to assume that where parties have been together in a recognised legal relationship, whether a marriage or a de-facto relationship, and during that relationship the parties have accumulated property, that it automatically flows that a property settlement will occur following separation.
In the majority of cases this is true…. but….this is not always the case.
There are matters due to their particular facts which cannot fall within that assumption and where it is not just inequitable to progress to an alteration of property.”
Accordingly the appeal was not allowed and the decision made by the trial Judge was upheld, that there be no adjustment of property.
In essence the lack of financial intertwining and financial planning for the future by the parties, as well as their evident separation of finances and continued individual ownership of property, meant that the Court was not prepared to allow the appeal and accordingly the property interests of the parties remained unchanged.
It is very important that you seek legal advice before embarking on a property settlement. At Everingham Solomons we have the expertise and experience to assist you with property matters because Helping You is Our Business.
Forge was a company in the business of building power stations and had contracted with the Western Australian government to build one at Port Hedland. Forge leased four turbine generators from General Electric and put them in the power station.
