Recently, the High Court handed down a ruling in favour of Roseanne Beckett, a woman who had been wrongfully arrested, convicted and imprisoned for 10 years for the alleged attempted murder of her husband. After protesting her innocence for 26 years, Ms Beckett was awarded $2.3 million in damages to be paid by the state of NSW for ‘malicious prosecution’. In fact, she had been framed by a dodgy detective with a vendetta against her family. Although this is an extreme case, it begs the question: do you know your rights when you are arrested?
The police can arrest you if:
you are committing an offence or
they have reasonable grounds to suspect you have committed an offence
you are breaching the peace
you have breached any bail conditions you may have
a warrant has been issued for your arrest or
you are to be served with an Apprehended Violence Order.
However, the police officer arresting you should:
(1) tell you that you are under arrest
(2) give you reasons why you are being arrested and
(3) tell you his or her name and place of duty.
In 2014, the Law Enforcement (Powers and Responsibilities) Act 2002 was amended so that if a police officer does not provide you with their name and place of duty their arrest will still be lawful, however if you ask a police officer for the information and they do not provide it, your arrest will not be lawful.
Once at the police station, the Police will inform you of your rights, and this includes your right to have a solicitor or other person present. Generally, when being questioned you have a right to silence, although in most circumstances you will need to provide your name and address and in some circumstances proof of age or, in the case of traffic offences, your driver’s licence. Aside from this, however, you are not obliged to answer any questions. If you are unsure, your best option is to request that the police wait to question you until you can seek legal advice.
At Everingham Solomons Solicitors we have the expertise and experience to assist you because Helping You is Our Business.
If you hold a judgement against an individual a Garnishee Order is an option to recover your judgment debt. This is an Order from the court that requires monies to be taken from a judgment debtor’s bank accounts, wages or from someone else who holds money on behalf of the judgment debtor.
For example a real estate agent may be collecting rent on behalf of a judgment debtor. In those circumstances a garnishee order would require the real estate agent to deduct monies held on behalf of the judgment debtor.
In the event that an institution or person that is holding money on behalf of the judgment debtor, fails to deduct money in accordance with a garnishee order then that person or institution may become liable for part or whole of the judgment.
The more information provided about the judgment debtor the more effective a creditor can be at recovery. Information such as which bank the debtor holds accounts at, who is their employer or what real estate agent they use, allows a more precise drafting of any Garnishee Order and with it better prospects of success. The filing fee for a Garnishee Order in the Local Court is $78 for an individual creditor or $156 for a company creditor.
A downfall of the Garnishee Order is if there is no monies available at the time the Order is received by the institution or individual then no monies can be deducted. Timing is important and it can sometimes come down to luck.
A Garnishee Order can be an efficient and cost effective way of recovering monies owed under a judgment. If you hold a judgment and wish to enforce it you should contact a solicitor to discuss your options.
At Everingham Solomons, our dispute resolution team is committed to providing the most time and cost efficient outcome when pursuing enforcement of judgments because Helping You is Our Business.
When parents separate there may be some disagreement in respect of the parenting arrangements of their children.
If parents are unable to enter into an agreement they are first required to attend compulsory dispute resolution, also referred to as mediation. If mediation is unsuccessful or one parent refuses to attend, the parents are issued with a “Section 60I Family Dispute Resolution Certificate” from an authorised Family Dispute Resolution Practitioner. This in turn allows either parent to make an application in the Federal Circuit Court or Family Court for parenting orders.
In deciding whether to make particular parenting orders in relation to a child, a court must regard the best interests of the child as the paramount consideration. Parenting orders which are made by the court and are usually considered final and will reflect the dispute between parties parents coming to an end.
From time to time, after the court has made a final order in regards to parenting arrangements, a parent or a child’s life can significantly change. For example, a child may become seriously ill and require medical treatment requiring, the parent, with whom the child resides, having to move. In circumstances such as these, a parenting order will require to be changed. Parents may do this by way of agreement, negotiation or make an application to the court. Courts, generally, are very reluctant to change final parenting orders and subject the children and the parties to further litigation. Prior to a court making any change to any parenting order, it must be proved that there has been a significant change in circumstances.
In the case Carriel & Lendrum (2015) FLC 96-640, a mother made an application to change parenting orders. The original orders were made in 2010. The orders outlined that the child would live with her father and spend supervised time with her mother. The mother argued her situation had significantly changed. Previously, she was addicted to illegal substances and alcohol. She, now considered herself, as a recovering alcoholic and drug addict, and it would be in the child’s best interest that she have unsupervised time with her child. The father, argued, that there should be no change in the orders made in 2010, as the mother could not provide evidence that would guarantee that she would not relapse into further alcohol abuse or drug addiction. The mother’s application was dismissed. The court found there was no merit in the mother’s application.
At Everingham Solomons we have the expertise and experience to assist you with parenting orders and any other family law matter because Helping You is Our Business.
The number of self managed superannuation funds (SMSFs) is increasing exponentially. This growth has been particularly prompted by changed laws allowing SMSFs to borrow to purchase investments such as real estate.
The primary rule of self managed superannuation is a requirement that all the members (a maximum of 4) must either be trustees of the fund or directors of the trustee company if the fund has a corporate trustee.
Normally, trustees must act unanimously. Unless the prospect for dispute or deadlock between trustees is considered and dealt with upfront, disputes will ultimately find their way to the Supreme Court which is all of, very expensive, uncertain and time-consuming.
This means that it necessary in every case to consider how disputes or deadlocks between trustees will be resolved.
The most common type of SMSF is still the “mum and dad” version in which a married or de facto couple are the only persons involved in decision-making. Increasingly however we are also seeing more complicated relationships that present a greater degree of risk that disputes will arise e.g. SMSFs that include children, in-laws, other relatives or business associates.
A properly drafted SMSF deed can provide a process to resolve disputes relatively quickly and inexpensively. For instance, the rules of the SMSF may provide for decisions to be made on the basis of member account balances or by a certain majority of trustees in the event of deadlocks or disputes. Similarly, the Constitution of a corporate trustee might require that decisions of the board of directors of the company can be made on a pre-agreed basis.
The eventual result of a need to resort to a formalised dispute settlement process is generally that one or both of the disputing parties will leave the SMSF and make other ongoing arrangements. Whilst that can be inconvenient in some cases, it is certainly preferable to reaching the same position after a lengthy court battle.
The key points for planning are: –
Always consider at the outset who you share an SMSF with. Even in the best of families, parents and children don’t always see eye to eye particularly as children grow up and form their own relationships and families;
Anticipate and plan for the possibility of disputes. This means that you need to ensure that your SMSF documentation is properly drafted at the outset or, if that opportunity has passed by, have your current structure reviewed by an expert and where necessary restructure.
The laws relating self managed superannuation and trusts generally are complex. At Everingham Solomons we have the experience and expertise to assist you in all your superannuation and trust issues because Helping You is Our Business.
Stalking, harassment and intimidation are against the law but there appears to be a commonly held misconception regarding what those words actually mean.
The definition of stalking is: intentionally and repeatedly following, watching or contacting another person with the intention of causing that person to fear physical or mental harm.
The definition of harassment is: persistent conduct designed to torment, threaten, intimidate or cause fear of violence.
The definition of intimidation is: repeated threatening behaviour that causes reasonable apprehension of injury, violence or damage to property.
These three definitions encompass a wide range of actions and in turn impose a standard that defines criminality.
For example without the presence of one of more of the above elements, someone frequenting a public place for a legitimate purpose is not stalking; someone you dislike sporadically driving past your house on the way to their destination is not intimidation; and someone acting in a manner in which you find irritating or annoying is not harassment. However, if a person acts in a threatening manner intending to cause fear, or with the knowledge that their actions would cause a reasonable person in the same situation to fear for their safety, that person has committed an offence.
Stalking, intimidation and harassment are serious offences. If after considering the definitions of what constitutes stalking, harassment and intimidation you have any concerns that you are the victim of such conduct, or alternatively if you are being unjustly accused of such conduct, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
The Federal Government is currently legislating to allow unfair terms in standard form contracts that small businesses enter to be declared void. Currently, only consumers who enter into such contracts are protected against unfair terms.
Why is this important? Small businesses are regularly offered contracts by their larger and more resourced counterparties, or even other small businesses, on a “take it or leave it” basis. Small businesses often lack the resources to fully understand and negotiate contract terms. Competition is fierce and who wants to “bite the hand that feeds”. The profit margin in a contract may not be enough to justify obtaining legal advice. As a result, unfair terms remain in these contracts and the risks of the contracts get allocated to small businesses, which are not always able to manage those risks.
By providing small businesses with a remedy against unfair contract terms, the Federal Government seeks to discourage the inclusion and enforcement of unfair terms in small business contracts. The theory is that contract risks will be more appropriately allocated between the parties and that small businesses will become more confident when contracting.
So, some FAQs:
When? From early 2016, so now is the time to review contracts you issue for any unfair terms.
What is a small business? One which has less than 20 employees, so most businesses in our region.
What is a small business contract? One where the agreed price for the supply or sale at the time of the contract is less than $100,000 or $250,000 if the contract term is more than 12 months. For larger contracts, small businesses will still have to undertake careful due diligence.
What are unfair terms? Those that cause imbalance between the rights and obligations of the parties and are not reasonably necessary to protect the advantaged party, and which would cause detriment to the other party if relied on.
At Everingham Solomons, we can assist you to get your contract terms in order before the changes occur because Helping You is Our Business.
Click here for more information on Keiran Breckenridge.
All employees in Australia are subject to 10 employment entitlements that are provided to all employees under the National Employment Standards (“NES”). In respect of notice periods under the NES the minimum notice periods are as follows;
Employee’s period of continuous service with the employer at the end of the day the notice is given
Period
Not more than 1 year
1 week
More than 1 year but not more than 3 years
2 weeks
More than 3 years but not more than 5 years
3 weeks
More than 5 years
4 weeks
There is a common misconception that the notice periods set out in the NES are the notice periods an employer can actually rely upon in terminating an employee’s employment. The law is that the National Employment Standards only set out a minimum, so, in circumstances where there is no employment contract or enterprise agreement with a clause stating precisely what the period of notice is a ‘reasonable notice period’ will be implied instead.
This was highlighted in a recent Supreme Court of New South Wales case being, Susanna Ma v Expeditors International Pty Limited [2014] NSWSC 859.
The case of Susanna Ma involved an employee at a global shipping company who had 24 years of service. There was no termination of employment clause in her contract, therefore the Court was able to find that a ‘reasonable notice period’ of 10 months be applied to the employee in these circumstances. This is in contrast to 4 weeks as a notice period under the NES for more than 5 years of continuous service.
The Court in this case looked at the employee’s circumstances such as her age (which was 49 years), the relatively high wage and the seniority of her position.
Cases such as Susanna Ma highlight the need for employers to have well-drafted contracts of employment in place. In circumstances where there is no express clause in relation to notice periods a Court may well interpret a reasonable notice period as being in excess of the National Employment Standards. It is important to have employees on current and clearly defined employment contracts with sufficiently drafted termination clauses.
If you are an employer who wishes to review their employment contracts, or an employee facing termination in their employment, Everingham Solomons can assist, because Helping You is Our Business.
The requirement that before a property can be sold or leased, the owner or landlord must have an up-to-date swimming pool certificate of compliance, has been postponed until April 2016.
Whilst that date may seem a little way off, if you are intending to sell your property or you have a rental property that has a swimming pool, you ought to think seriously about obtaining a swimming pool inspection to ascertain whether or not your property complies and if not taking the necessary corrective action to obtain a certificate.
Undoubtedly there will be a rush in the early part of 2016 to obtain such certificates and it appears likely that there will be insufficient inspectors and insufficient trades’ persons in the short term to manage the anticipated influx of applications and repair work that will be required.
Anecdotally it is reported that 80% of swimming pools will not comply with the Act.
A swimming pool is defined as an excavation, structure or vessel capable of being filled to a depth of greater than 300 mm and which is used or designed to be used for the purpose of swimming, paddling or human aquatic activity. It includes a spa pool, does not include a spa bath or anything situated within a bath room. It applies to both private and commercial properties.
It will apply to strata, community and neighbourhood developments and accordingly owners corporations will need to ensure that pools comply with the Act so as proprietors of lots are able to lease their property andor sell their property when needed.
There are many different rules and it does depend on when a swimming pool has been constructed as to what rules apply. For example, a swimming pool which was installed before 1 July 2010 and is situated on premises having an area of 2 ha or more is not required to be surrounded by a child resistant barrier provided access is restricted from the home in accordance with regulations. These rules are different if the same pool was constructed on the same property today.
All pool owners are required to have registered their pool on a central registry. Non-registration can result in a penalty, however to date, it does not appear that any prosecutions have been issued.
Swimming pools can be inspected by local council inspectors or private accredited certifiers.
If you own a swimming pool or spa, it is best to be prepared well in advance. If you are a landlord or if you are intending to sell, then you should act sooner rather than later to ensure that your pool or spa complies.
At Everingham Solomons, we have the expertise to assist you with all of your legal matters because Helping You is Our Business.
Making 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. Making a homemade Will can subject an estate to significant delay and expense not to mention stress to the parties involved whilst they await the outcome of a court determination of the Will. A Queensland case provides an insight into one family’s predicament when husband and wife willmakers signed their 2006 joint Will having drawn it up themselves.
The husband willmaker died in 2012 survived by his second wife, Elizabeth. Both the willmakers had been previously married and had children from their previous relationships, but no children from their marriage together. An application was brought before the court to determine a number of issues surrounding the uncertain terms of the Will and the destiny of the family home which contrary to the terms of the Will had been held by the willmakers as joint tenants.
Broadly speaking, the intention behind the joint Will was that the survivor of the husband willmaker and Elizabeth was to be looked after during their lifetime but, on their death, the property of both husband and wife willmakers was to be equally divided so that it went half to the husband willmaker’s children and the other half to Elizabeth’s daughter. The court observed “The drafting of the Will in this case is so poor that I wondered whether or not I could sensibly give any effect to it”.
At the time the 2006 Will was made and at the death of the husband willmaker, the main asset owned by the willmakers was their home, which they held as joint tenants. Normally when property is held as joint tenants upon the death of the first titleholder, the property passes by survivorship to the surviving titleholder who is thereafter free to deal with the property as they see fit. And that’s exactly what Elizabeth did when she sold the home. Here the complicating factor was the existence of a joint Will which sought to limit each willmakers freedom to dispose of assets.
In this case the court found that there was a joint Will where both parties pursuant to an agreement in the form of their Will, made provisions that after the death of either one of them, the survivor was only to have a life interest in the property which they held as joint tenants. That agreement was inconsistent with the continued existence of the joint tenancy. The Court put it back on the family to reach an agreement as to the division of the remaining sale proceeds of the home rather than pursue further litigation which would see none of them gaining any of the benefit that their parents intended for them.
At Everingham Solomons we have the expertise and experience to assist you in making a Will that is in conformity with current law and deals with your particular circumstances Because Helping You is Our Business.
Click here for more information on Lesley McDonnell
The ability to lease land and buildings is important for business.
Leasing property rather than purchasing it allows businesses to retain working capital to fund their primary enterprise.
Because leases are so common, they are frequently the subject of costly disputes.
Prevention is better than cure and one of the best ways to avoid your business coming into a dispute over a lease is ensure that the initial document is drafted by a lawyer who is mindful of the potential for disputes to arise.
Law firms like Everingham Solomons encounter a lot of disputes over lease agreements which have been drafted without the assistance of a lawyer, so we’ve developed a keen eye for spotting the type of risks that should be anticipated at the outset.
People immediately turn their mind to the obvious issues like the length of the lease and the rent payable, but they should consider less obvious issues, like:
who will be responsible for any repairs to the premises during the term of the lease and whether there are to be contributions between the parties for expenses relating to the land;
if it’s not immediately obvious, what legal access the lessee has to premises;
in addition to the lease of land, whether the lessor grants any licences to the lessee, say for the use of vehicles, or to display signage
who will maintain insurances for the building, public liability and any chattels that the lessee is licenced to use;
whether there will be rental increases each year and whether there are to be any non-monetary contributions made between the parties;
how the lessor will secure its rental payments if the lessee defaults, or in the case of a company lessee, if it becomes insolvent;
whether the rights acquired by the lessee can be assigned to someone else, or whether the premises can be sublet.
Whether you are negotiating to enter a lease, or are in difficulty because of one, Everingham Solomons has the expertise & experience to assist you because Helping You is Our Business.
Recently, the High Court handed down a ruling in favour of Roseanne Beckett, a woman who had been wrongfully arrested, convicted and imprisoned for 10 years for the alleged attempted murder of her husband. After protesting her innocence for 26 years, Ms Beckett was awarded $2.3 million in damages to be paid by the state of NSW for ‘malicious prosecution’. In fact, she had been framed by a dodgy detective with a vendetta against her family. Although this is an extreme case, it begs the question: do you know your rights when you are arrested?
When parents separate there may be some disagreement in respect of the parenting arrangements of their children.
