When can somebody lodge a caveat over land? The answer is when they have an interest over the land.
What exactly does it mean to have an interest over the land? Common examples of caveatable interests are interests of a purchaser under a contract for the sale of land, interests of a mortgagee and somebody who contributes to the purchase price of a property. Options to purchase land can also invoke a caveatable interest.
Interests that do not give you a caveatable interest over the land are, debts (that do not involve land), or any other contractual rights that do not involve the land.
A more difficult question is if there is a contract between the owners of the land and a builder. This wouldn’t ordinarily give rise to a caveatable interest over the land unless the interest is elevated by the owner giving the builder a charge over the land. In that instance the contractual right would become a caveatable interest over the land and a caveat could be lodged.
This type of scenario was considered in Composite Buyer v Soong (1995) 38 NSWLR 286. This was a matter where the owners of the land gave a charge to the lenders of money. This was held to be a caveatable interest as it was expressly stated that a charge was to be put over the property.
In the case of Epple v Wilson [1972] VR 440 VSC, an employee owed his employer money and they reached an agreement that said in part ‘Any proceeds due to me from the sale of my house is to be paid to (the employer)’. This was held not to be a caveatable interest as although the money was to come out of the proceeds it did not create an interest over the land.
If you should have any queries in respect to caveats, please do not hesitate to contact the offices of Everingham Solomons because Helping You is Our Business.
The Family Court and the Federal Magistrates Court will be asked at times to make orders in relation to where a child should live and how much time they are to spend with the other parent. When these Courts make orders, the orders are based on the current circumstances that surround a child’s life. However, life is full of changes and sometimes, the orders that were previously made are not practical anymore.
What then will these Courts do if you want to change such orders?
The leading case on such matters is Rice v Asplund (1979) FCL 90-725 whereby Chief Justice Evatt said the Court “… should not lightly entertain an application … To do so would be to invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances.”
Recently, in the case of Fante & Joyce (no.1) [2012] FMCAfam 741, Federal Magistrate Coker had to determine whether he should allow parents to change the orders that were made almost 4 years ago, taking into account what Chief Justice Evatt said in the case of Rice v Asplund.
The facts in Fante v Joyce were the orders were made in 2008. In these orders the mother was given sole parental responsibility for the child. The father’s new application sought for there to be joint parental responsibility as he felt he was excluded from important decision making. In 2008 there was evidence that there was extreme conflict and mistrust between the mother, her family and the father. This mistrust did not allow the Federal Magistrate to come to the view that sharing the parental responsibility between the parents would be in the child’s best interests.
Federal Magistrate Croker found that nothing had changed in the father’s circumstances to alter this view and stated “The parents still communicate appallingly with each other.” In that regard, the Federal Magistrate was not convinced that the father had met the rule in Rice v Asplund, that is there was not a significant change in circumstances, and did not grant leave for him to proceed with his application to change the orders.
If you have current children’s orders and you believe that there may have been a significant change in your circumstances in that the orders no longer work, you should seek legal advice from Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.
For some families, caring for a son or daughter with a severe disability is part of everyday life. For parents of a child with a severe disability, discussion will inevitably turn to the issue of what happens when those parents are no longer able to provide support for that child? Quite often parents will want to make provision for their child without affecting their child’s entitlement to an income support payment. For some parents the answer may lie in setting up a Special Disability Trust for their child.
A Special Disability Trust can be set up while parents are alive or in their Wills.
The purpose of a Special Disability Trust is to meet the reasonable care and accommodation needs of the principal beneficiary, for example a child with a severe disability, during the lifetime of the beneficiary. A Special Disability Trust may also financially benefit the principal beneficiary under the Centrelink assets test.
Before a Special Disability Trust can be set up, the principal beneficiary must fall within the definition of ‘severe disability’. Section 1209M of the Social Security Act 1991 sets out the definition of ‘severe disability’.
Due to the fact that Centrelink assesses whether or not a trust is a Special Disability Trust, it is very important to ensure that the Trust strictly complies with legislative requirements. To this end a model trust deed exists which contains the necessary clauses required for the trust to be classified as a Special Disability Trust.
A Special Disability Trust can have assets up to the value of $596,500 (indexed annually, and current as at 1 July 2012) (“the limit”) plus a residence held in the trust without these assets impacting on the principal beneficiary’s income support payment.
Where the assets of a Special Disability Trust exceed the limit, the amount in excess of the limit will be counted as assessable assets for the principal beneficiary and will be assessed against the relevant assets test threshold.
For the parents, a one off gifting concession may apply to a gift of up to $500,000 if the parent is a recipient of a social security pension and has reached the qualifying age, or receives a service pension and has reached veterans’ pension age, or receives a veterans’ income support supplement and has reached the qualifying age for the payment. Gifts in excess of the gifting concession are assessed under the normal gifting rules.
If you are considering making provision for a family member with a severe disability, it is important to obtain specialist legal advice. At Everingham Solomons we have the expertise and experience to assist you with all your estate planning needs, because Helping You is Our Business.
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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 was first given in 1998. It provides financial assistance for the successful applicant during their first year as well as an opportunity to gain valuable 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.
If you require any further information Everingham Solomons are holding a information night on Wednesday 10th October at our Marius Street office from 6pm – 7pm. If you would like to come along please follow the below link to register.
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 November, 2012.
Click here for more information on Terry Broomfield.
If you are owed money by someone then you have the right and opportunity to recover that money through the court system.
If the amount of money owing is less than $10,000 the claim will generally be heard in the small claims division of the local court, which uses simplified rules to quickly and efficiently resolve the matter.
The process is initiated when a statement of claim is filed in the court and then served on the party that owes the money (‘debtor’). It is important that the statement of claim be drafted competently as it provides to the debtor an outline of the claim that they must meet.
The debtor then has the option to file a defence, which sets out there reasoning as to why the money is not owed, or why the amount owed is less than the amount claimed.
The debtor has 28 days to file a defence. If a defence is not filed with 28 days, the person owed the money (‘plaintiff’), can ask that the court make a judgment in their favour without hearing from the debtor.
If there are problems with the drafting of a statement of claim, or a defence, those problems can later hinder your case when evidence is being heard.
If the debtor responds by filing a defence, the court will try to assist the parties to come to a compromised agreement. If that is not possible the matter is given a further court date at which point the parties will have a chance to tell their stories and explain their claim or defence.
In the small claims division, both parties will generally be ordered by the court to make written statements of their version of events and to give those statements to the other party. Usually the court will then determine the dispute based on the written statements.
The preparation of written statements is a crucial step in the litigation process and it is important that all the legal elements of the claim are made out in that evidence. The failure to mention one small event or discussion can often be the difference between winning and losing the case.
Despite the importance of the preparing well drafted written statements, the hearing itself is conducted with as little formality and does not require strict compliance with the rules of evidence.
If you would like more advice about debt recovery and small claims please contact us because at Everingham Solomons Helping You is Our Business.
There’s usually a relative, sometimes one who is hurt and sad because he or she has been left out of the Will or otherwise treated unfairly.
The hurt can be undone. Under the Succession Act 2006 (NSW), the Supreme Court can rewrite an unfair Will on the application of wives, husbands, de factos, children, former wives or husbands, dependents, grandchildren or members of the household of, or those living in a close personal relationship with the deceased.
An applicant for relief must show a need by reference to his or her age, health, financial situation, earning capacity and the like. An applicant must be “deserving” that is to say to have had such a relationship with the deceased that it might be expected that he or she would benefit under the Will. The applicant must show that the relief sought is reasonable given the size of the estate, and weighing the claims of the applicant against the claims of other people for whom the deceased person was under a moral obligation to make provision.
There is a time limit on applications. The proceedings must be commenced not later than 12 months after the date of death. Time can be extended on sufficient cause being shown.
A Will may be unfair because the deceased did not have sufficient mental capacity at the time that he or she made it. In this case, the Court can strike down the Will, which will revive the most recent former Will made by the deceased at a time that he or she had sufficient capacity The test of capacity centres on the deceased’s understanding of what constitutes his or her estate and who is entitled to benefit from such estate and why.
A Will may be unfair because it was made under undue influence. There are all sorts of unseemly relationships, which involve undue influence by one person over another. The Court has power to strike down a Will which is the product of undue influence.
Where there’s a Will there’s usually also a lawyer. At Everingham Solomons we have lawyers able to give expert advice in relation to claims arising out of unfair Wills and your first consultation with us will be free and absolutely confidential because Helping You is Our Business.
Recently the Local Court Magistrate was required to rule on whether a couple whose Islamic marriage included a contract that the husband pay his wife a $50,000 “deferred dowry” if he left her was enforceable.
The short facts were that the parties had married under Islamic Law in 2004. The man divorced his wife under Islamic Law by telling her during an argument “you are divorced”. The magistrate upheld the contract between the parties and found the contract was enforceable. The decision was appealed to the Supreme Court of New South Wales on a number of grounds.
These included:
the Magistrate did not have the jurisdiction, as it was a matter involving “Sharia Law”;
the agreement was not properly executed pursuant to the New South Wales Property (Relationships) Act; and
a further ground of appeal was that the contract (being the delayed payment of a dowry of $50,000) should not be enforceable as it was contrary to public policy.
In effect, it was argued the agreement was of certain “servitude”. The requirement to pay $50,000 if the husband initiated separation or divorce was to compel the husband to remain married. Also, it was argued that the payment was a penalty clause and was, therefore, void for illegality.
All these arguments were rejected by the Supreme Court of New South Wales and the magistrate’s decision was upheld. The New South Wales Supreme Court went on to refer to decisions in other countries where such contracts were upheld.
Finally, the Supreme Court noted there was no Australian case law on this matter where cultural or religious tradition is raised and that this question and issue would be referred to both the Commonwealth and New South Wales Law Reform Commission for review.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
Obtaining registration of trademark can be a lengthy and at times costly process. Creating an intellectual property right from the seed of an idea is however a worthwhile pursuit – provided all the hard work doesn’t go to waste by your failure to use it.
IP Australia, the government agency responsible for administering intellectual property rights and legislation, is warning holders of trademarks to use their IP or risk losing their rights – failure to utilise your intellectual property can see a person or company apply to have your trademark removed from the register.
An application for removal can be commenced if you have not utilised your trademark for a period of three years, or if you did not have an intention of using the trademark when you filed your application for approval (as evidenced by never having utilised your trademark).
Obviously competitors are the most common applicants for removal – they might be wishing to register a similar trademark and your IP is hindering their registration. And fair enough where you are effectively “sitting” on a trademark to deliberately prevent your competition from being able to utilise similar words or logos, without actually using the trademark in your own marketing or business.
An application for removal must be defended by the holder of the trademark – failure to oppose the application will see it succeed and your trademark will be deregistered. Deregistration not only means your competitor will get a foot in the door, but also that you will need to re-apply for registration which could be difficult if your competitor has since filed a similar trademark.
So the moral of the story is as simple as “use it or lose it”. If your business has gone to the effort and expense of registering a trademark, taking time to manage your IP rights by ensuring the trademark is used regularly is a worthwhile investment to maintain your market advantage.
If you are considering IP registration, contact the team at Everingham Solomons. We are well equipped to assist you with all your intellectual property enquiries becauseHelping You is Our Business.
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Most employers implement policies and procedures to minimise liability which may arise from their employees’ actions. It is also important for employers to make their employees aware of the policies, train and implement them into the workplace, and penalise employees who breach those policies and procedures.
A recent case before the Administration Decisions Tribunal (ADT) shows how these actions can make all the difference.
In this case the Applicant, ‘C’, received a piece of paper at a training session from ‘L’ which contained sexually explicit material. C felt so violated it led her to the police station. C returned to work and made a complaint against L alleging sexual harassment.
C also sued her employer, claiming it was vicariously liable for the conduct of L.
The ADT dismissed C’s complaint against the employer and found the employer never authorised L’s action and took ‘all reasonable steps’ to prevent this behaviour.
This was established because:
The employer had provided employees with relevant policies and procedures
L was provided with the Code of Conduct on five occasions
L had undertaken mandatory training on harassment, bullying, and the Code of Conduct on four occasions
The employer acted upon the complaint immediately by conducting an investigation
The employer apologised to C
As a result of this investigation, L was disciplined and provided with a first and final warning
The ADT substantiated the complaint of sexual harassment against C, and L was ordered to pay $10,000 in damages to C.
Employer tip
To avoid your business being held vicariously liable for an employee’s conduct, ensure it is taking all reasonable steps to educate staff about what is acceptable behaviour in the workplace.
A good practice is to:
Have policies and procedures in place
Implement the policies
Provide regular education and training sessions to all employees
Deal with all complaints promptly, and investigate the situation thoroughly
Penalise breaches of the polices and conduct
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
<In 2009 Safe Work Australia, a national statutory body was given the job of nationalising state occupational health and safety laws. This was designed to harmonize the laws across the various jurisdictions.
On 1 July 2012, the Work Health & Safety Act (NSW) 2011 (WHS Act) commenced operation replacing the Occupation Health & Safety Act (NSW) 2000. The NSW legislation, although not identical, is very similar to the legislation across the various States in Australia.
The reason for the changes has been the change in the workforce. Over the years workplaces have become far less structured. It is becoming far more common for people to do their work from home, be employed by labour hire companies, use contractors, sub-contractors as well as volunteers. These changes to the workforce are reflected in the changes to the legislation and it attempts to encompass all workers as more broadly defined.
For NSW employers, there has been a shift away from an ‘absolute duty’ towards a duty to ensure safety ‘insofar as it is reasonably practicable’. Having said that it also requires employers to be more proactive in respect to the safety measures they implement and their obligations are far broader.
What is ‘reasonably practicable’ depends on a number of factors which include the time and expense it takes to eliminate or reduce the risk. If the steps required are disproportionate to the risk, then they may not be reasonably practicable.
The WHS Act also requires an ‘officer’ of the business to exercise due diligence to ensure the person conducting the business complies with its duties. To exercise due diligence requires positive action which is to say it cannot be passive or disinterested in its obligations.
There is also a raft of regulations that have been introduced to place further obligations on employers and require them to, in effect, self regulate themselves. This includes the introduction of health and safety representatives which will be discussed in a later advertorial.
If you should have any queries in respect to the Work Health & Safety Act, please contact the writer to discuss because Helping You is Our Business.
When can somebody lodge a caveat over land? The answer is when they have an interest over the land.
