“[T]he complexity which attaches to family relationships” is never more apparent than in the arena of family provision cases. For one Queensland family “the bonds of family life were tested to extremes”, leaving some of the children “hurt and resentful by the actions of their father [the deceased]”. This case is significant because it is the largest provision order made ($3,000,000) by a Queensland Court to date.
The deceased died in 2010 aged 78 years leaving a will made in 2000 and codicil in 2008. The deceased left behind a wife and children and a $27,000,000 estate. The applicant in this case was Steven, a son of the deceased. The deceased named his widow, Jane as executor of his Will and left her the majority of his estate save only for some real estate left to one son, Jonathon. The deceased made no provision for Steven or his daughters, Natasha or Tania setting out reasons for each in the Will.
There were three other applications for provision made by Jonathon, Tania and Natasha. Each of them was settled out of Court.
Steven contested his father’s Will arguing that his father failed to make adequate provision for him in the Will. Steven relied upon the work he had undertaken over many years for his father, and the extent to which that work assisted in the amassing of the estate. Also Steven had been involved in a motorcycle accident prior to his father’s death, sustaining injuries that prevented Steven from working as a pilot and restricted him performing physical work.
The Court’s role was to determine whether Steven had been left without adequate provision for his proper maintenance, education and advancement in life. There were a number of factors that the Court was required to take into account. The following factors were persuasive for the Court in finding that Steven had been left without adequate provision:-
(a) The estate was very large.
(b) Steven worked long and hard for his father and contributed to the growth of his father’s property interests.
(c) At the date of death Steven had substantial assets but also had substantial liabilities which were subject to the vagaries of the financial market.
(d) Two of the reasons for the deceased not providing for Steven in the will were either misconceived or based on a misunderstanding of their value.
(e) Steven‘s injury meant he could no longer be a pilot and he could not perform labouring work on his own properties.
(f) The provision made during the deceased‘s lifetime was subject to Steven entering into debt in order to obtain the benefit of the properties. In other words, what was received was not a gift but, in effect, a discounted sale.
At Everingham Solomons we have the expertise and experience to assist you in all aspects of family provision claims because Helping You is Our Business.
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There are certain classes of people that may contest a Will. The law appreciates that a person has the right to choose who their Estate is left to, but the Succession Act 2006 allows some people to challenge a Will if they have been unfairly left out.
The people that are able to challenge a Will include the following;
A wife or husband;
Those that are in a de facto relationship, with the deceased, at the time of death;
A child of the deceased;
A former wife or husband of the deceased; and
A grandchild or member of the household that has been dependent on the deceased.
Once the Court is satisfied that the Plaintiff is “an eligible person” they will then look at the factors as outlined in Section 60(2) of the Succession Act 2006. These include the type of relationship between the Plaintiff and deceased, the nature and extent of the obligations or responsibilities, financial resources of the Plaintiff, financial situation of people cohabitating with the Plaintiff, any physical or intellectual disability of the Plaintiff as well as character and conduct of the Plaintiff during the deceased’s life time. All of these factors are considered by the Court when looking at whether there should be some provision for the Plaintiff.
The Court will also consider any provisions made for the Plaintiff during the life of the deceased. That is to say that if the deceased help the Plaintiff financially during his or her life time that will be relevant to any claim made by him or her.
If you wish to challenge a Will or defend a Will if you are an Executor, please contact us at Everingham Solomons for assistance because Helping You is Our Business.
Many businesses register intellectual property rights to protect their products, logos and brands. You might think that once the IP rights have been registered, there is nothing further to do, however this can be a trap with serious ramifications.
As discovered in a recent case involving a large well-known US camper van company, failing to take action on IP infringement can be costly.
The case involved an Australian business utilising the name and a similar logo to that of the US company. The Australian business began using the name and logo in the late 1970s, however it wasn’t until 1985 that the US company discovered the “copy-cat”.
Trading on the goodwill and reputation of another business is known as “passing off”. Passing off is usually designed to mislead and deceive consumers, and is also a breach of IP rights – by registering a trademark, the owner has a legally enforceable right to exclusive use of the trademarked item.
In this case, the passing off was clear. The big issue was why it took the US company until 1992 to challenge the use of its name and branding by the Australian business, and until 2010 to commence court proceedings.
Whilst the US company submitted various reasons for its delays, ultimately the court found that the US company had “sat on its hands” and done nothing to prevent the Australian competitor from continuing to use its name and logo. The court therefore allowed the Australian business to continue using the name and logo.
The case is a warning to all holders of IP that registration does not of itself provide protection – IP owners need to regularly review any potential infringements of their intellectual property, and act quickly if there is any sign of passing off.
If you need assistance with IP protection, contact the team at Everingham Solomons. We are well equipped to assist you with all your intellectual property enquiries because Helping You is Our Business.
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When parties to a relationship have separated, both parties can continue to make financial and other contributions towards the assets and members of the family. This could involve running a business or being a stay at home parent to care for a child.
This issue was recently raised in the Full Court of the Family Court of Australia appeal of Marsh and Marsh [2014] FamCAFC 24. The parties were married in 1979 and separated in 2000. The parties were divorced in 2008 and in June 2010, the wife commenced proceedings before the Court for the purposes of dividing the parties’ assets.
There was a period of 10 years between the time the parties separated and the application before the Court. As you could imagine, contributions were made by each of the parties and these had to be considered.
In the first instance, the Court stated that due to the large earning capacity of the husband and his financial contributions since separation, he was entitled to a greater share of the assets than the wife.
The wife appealed this decision on the basis that her contributions of homemaker and parent after separation were not taken into consideration. Since 2000, the wife had continued her role as mother (the youngest child being 10 at separation) and continued to maintain the home.
The Full Court agreed with the wife that despite the husband’s overwhelming financial contribution, the Court at first instance failed to give any weight to the wife’s contributions as a mother and homemaker. By the wife continuing that role, the husband was able to make the larger financial contributions.
When adjusting property adjustments at the end of the relationship, the Court must take into account the contributions by both parties at the commencement of the relationship, during the relationship and after the relationship.
If you have any issues in relation to contributions that have been made throughout a relationship, including after separation, you should contact Everingham Solomons because Helping You is Our Business.
The last number of months has seen the media filled with a number of high profile criminal cases which has in turn generated a great deal of media attention and public discussion about the court’s effectiveness in dealing with criminals.
In criminal matters the court has two essential tasks. The first is concluding whether or not the defendant is guilty. If he or she is so found to be, the second task is to decide what sentence is appropriate in all of the circumstances.
It often appears as though the court’s second task, the exercise of sentencing discretion, is the one that draws the most public attention. With that in mind, it is useful to look at exactly what courts are entitled to consider when embarking upon a sentencing exercise.
The starting point comes from section 3A of the Crimes (Sentencing Procedure) Act 1999. That section guides the court by setting out the purposes for which a court may impose a sentence on an offender. They are:
to ensure the offender is adequately punished;
to prevent crime by deterring the offender and other persons from committing similar offences;
to protect the community from the offender;
to promote the rehabilitation of the offender;
to make the offender accountable for his actions;
to denounce the conduct of the offender; and
to recognize the harm done to the victim of the crime and the community.
In applying the purposes above, section 21A of the Act says that the court is to take into account the aggravating and mitigating circumstances of the offence, and any other objective or subjective factors that affect the relative seriousness of the offence.
The sort of things that aggravate an offence include the offender’s record for similar offences, the level of planning that went into the offence, the harm caused by the offence, the vulnerability of the victim and the offender’s personal benefit arising from the offence.
The sort of things that tends to mitigate an offence include provocation or duress of the offender, the offender’s good character, the offender’s prospects of rehabilitation and the remorse shown by the offender.
In most circumstances, the court is also bound to take into account an offender’s early plea of guilty as a demonstration that the offender has accepted responsibility for the crime.
If you have questions about a criminal matter, please don’t hesitate to contact Everingham Solomons, because Helping You is Our Business.
The form of power of attorney (‘POA”) now used in NSW is a very simple but often misunderstood form.
Whilst the standard form is simple, it will often be appropriate to make significant changes to it to reflect the individual circumstances of the person giving the POA.
The issues that may need to be covered by a POA are constantly evolving. A good example of this is the treatment of so-called “digital assets” which are becoming more and more important to all of us.
Research in the USA indicates –
More than half of individuals over 65 use the Internet;
95% of people have an online presence from the age of 2; and
A representative sample of Internet users had, on average, 25 passwords.
So what happens to our online presence should we lose capacity? It would certainly be reasonable to expect that a POA given without qualifications should allow an attorney to access information and deal with assets online. Unfortunately, the practicality is not that easy, particularly when the relevant account can only be operated online.
At a conference I recently attended, the presenter recounted a case that he had recently been involved with where an elderly lady (let’s call her “Edna”) had placed a large amount of money into an online investment account. She had been “cyber safe” and kept her pass words and indeed the existence of the account to herself.
At the age of 78, Edna suffered a severe stroke and lost capacity. She had previously given a standard form POA but her attorney was not aware of the account until receiving a letter from the financial institution notifying Edna of changes to unclaimed monies legislation entitling the Commonwealth to take any money from a person’s bank account which had not been operated for 3 years. Ironically, that is what happened to Edna’s money and ultimately it took several years and much expense before it could be retrieved and accessed by the attorney. These difficulties could have been avoided had Edna –
specifically dealt with digital assets and information in her POA; and
left her password and account details in a form that could be accessed by her attorney readily if the need arose.
At Everingham Solomonswe can provide expert advice on POA issues because Helping You is Our Business.
If your business that wants to sponsor somebody from overseas there are a number of requirements, most of which are relatively straight forward, but the one that many businesses are not able to comply with straight away is that of “training benchmarks”.
Training benchmarks are evidence that an employer, has spent or will spend a certain amount on training. The purpose is to ensure that employers are investing in Australian employees before they are able to sponsor overseas workers.
There are two ways that an employer can meet the training benchmarks.
The first way is to provide evidence that in the twelve months prior to lodging the application that at least 1% of payroll has been spent on training of employees of the business. This also needs to maintained through the life of the approval.
Apprentices and trainees wages would be included as would fees paid for TAFE, University or funding of scholarship courses. Evidence of payment of external providers, tuition fees and conferences would be required. Also expenditure on “on the job training” needs to be a structured learning with identifiable outcomes and relevant to business activities.
If a business is unable to meet the 1% of payroll obligations, the second way for the business to comply is to pay 2% of their payroll to an industry training fund. This is obviously not always attractive and the preferable approach is to train your own workers.
As a sponsor you will need to continue to meet the training benchmark requirements for the life of the sponsorship.
If you require any assistance in respect to becoming a sponsor of 457 visas, please contact us at Everingham Solomons for assistance because Helping You is Our Business.
The Privacy Amendment (Enhancing Privacy Protection) Act 2012 amends the existing Privacy Act 1988.
When?
New laws taking effect from 12 March 2014.
Who is effected?
The new laws effect businesses and most government bodies that collect and transfer personal information in Australia.
What are the main changes?
Of the 13 newly introduced Australian Privacy Principles (APPs), the most significantly changed are as follows:-
APP 1 (open and transparent management of personal information): Entities must ensure that they manage personal information in an open and transparent way. Entities must have a clearly expressed and up to date privacy policy which deals with a number of prescribed matters.
APP 4 (unsolicited personal information): If an entity receives unsolicited information, the entity must, within a reasonable period, determine whether it could have legally collected the information itself, and if not, the entity must, as soon as practicable, destroy or un-identify the information.
APP 5 (notification of collecting personal information): The requirements regarding notifying an individual of the collection of personal information have been greatly expanded.
APP 7 (direct marketing): An organisation must not use or disclose personal information collected about an individual for the purpose of direct marketing, unless one of the various prescribed exceptions apply.
APP 8 (cross-border disclosure of personal information): Before an APP entity discloses personal information about an individual to an overseas recipient, the entity must take such steps as are reasonable in the circumstances to ensure that the overseas recipient does not breach the Australian Privacy Principles. In certain circumstances, an entity may now be deemed to be liable for a breach of the APPs by an overseas recipient of personal information disclosed by the entity.
Non-compliance
Non-compliance with the new legislation risks civil penalties of up to $1.7 million for corporations and $340,000 for individuals.
How to Proceed
In light of the impeding changes in the law, now is the time for businesses to be familiarising themselves with the new APPs and reviewing and updating their privacy policies accordingly.
For advice on whether of not your business’ privacy policy complies with the new law, please contact the experienced team at Everingham Solomons because Helping You is Our Business.
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Hello, my name is Keiran Breckenridge. I started with Everingham Solomons about a month ago in the role of Special Counsel. Before joining Everingham Solomons, I worked for another firm in the region for two years and, before that, I worked in Sydney at a couple of mid-sized commercial law firms. My family and I made our ‘tree change’ over three and half years ago, and we are all very happy to live, work and learn in this beautiful part of the world.
I have been admitted as a solicitor for over 17 years now. My practice is mainly in the commercial / business law field with particular focus on commercial disputes and insolvency law and practice. I am also assisting Everingham Solomons’ clients with their employment law needs. Each of these practice areas involves complex, challenging and emotional issues. After all, nobody in business likes being involved in a dispute with a customer, a supplier or a joint venture partner. So many people are impacted, both emotionally and financially, when businesses and individuals find themselves in financial difficulty. Everyone at home and at work is affected when an unfair dismissal occurs, someone is bullied or discriminated against, or it becomes necessary to lay people off. My job is to work with our clients when they find themselves in such situations and help find fast, commercially sensible and cost effective solutions. Sometimes we have to take up the fight for our clients. When that occurs, I am able to draw on years of experience in the various courts and tribunals in New South Wales and in the federal jurisdictions.
Outside work, my wife and I try to keep up with our daughters’ activities. Yes, the usual – basketball, then netball, then swimming, then hockey, the flute, double bass and so on. But I also play in an over 35s hockey competition myself, follow the league and the union (and any other sport really), try my hand at some DIY, and manage a vege patch and some chooks.
I am proud to now work for Everingham Solomons. Our firm has invested wisely in excellent people, systems and processes, which lets our lawyers focus on the needs of our clients and getting the job done. I amalready enjoying being part of the team.
Click here for more information on Keiran Breckenridge.
In Eufrosin & Eurfrosin [2013] FamCA 311, recently decided in the Family Court of Australia, the court was required to consider the division of a $6 million dollar lottery win by a wife, six months after the parties had separated.
The facts were the parties married in 1987 and separated in 2008. The husband was aged 62 and the wife aged 55 at the time of the hearing. The parties had adopted “traditional roles” of the husband being the principal breadwinner and the wife being the primary home maker and carer of the children throughout the marriage. Their joint pool of assets had a net value of over $2.4 million at the time of separation.
The wife purchased a “gambling” ticket in early 2009 along with her sister and won $6 million, whereby $1 million was given to her sister and $5 million retained by the wife (paid to the wife soon after the win). The husband argued that he had contributed to the gambling win because the funds used to purchase the winning ticket had came from the parties pool of assets and as such the winnings should be included in the joint asset pool and divided accordingly.
The court concluded that the funds used to purchase the winning ticket, could have come from a number of sources of the wife, or from a combination of the sources. For example, the funds may have come from the wife’s sister, the wife’s tax return, or from money owed to the wife from her husband’s company.
The Judge found that it was “impossible to identify the precise source of the funds used by the wife to purchase the winning ticket”. Furthermore, “the husband could not simply assert that the purchase money came from ‘joint funds’ ”.
For that reason the wife was entitled to keep all of her gambling winnings which were placed in a separate pool of assets to the joint pool. That pool was not adjusted by the court owing to their being no contribution made by the husband toward the winnings. The parties each received 50% of the joint asset pool, however the court still made an adjustment of $500,000 in favour of the husband on account of the husband’s age, limited earning capacity and based on his future needs.
Ultimately, in property proceedings before the Family Court, the central principle which underpins any judgment is that the orders made concerning the property of the parties are just and equitable. If you require advice in regard to potential property proceedings, at Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
“[T]he complexity which attaches to family relationships” is never more apparent than in the arena of family provision cases. For one Queensland family “the bonds of family life were tested to extremes”, leaving some of the children “hurt and resentful by the actions of their father [the deceased]”. This case is significant because it is the largest provision order made ($3,000,000) by a Queensland Court to date.
