What rights does a Vendor have to reclaim goods sold after delivery where the Purchaser becomes insolvent and is unable to pay?
In a recent Supreme Court decision of Gilgandra Marketing Co-Operative Limited v Australian Commodities and Merchandise Pty Limited and Others the parties entered into Contracts for the sale of a large quantity of wheat which was supplied from the Narrabri area to the Sydney container terminal and then shipped to Bangladesh.
At the time of litigation, the wheat was at the port in Bangladesh but the purchaser had not taken physical delivery.
The seller instituted proceedings seeking among other things a right to take possession of the wheat based on a claim that the title to the goods had not passed to the Purchaser because the Purchaser had not taken actual delivery of the wheat from the carrier.
The Judge held that under the specific Contract terms, title in the wheat passed to the purchaser on the delivery of the wheat to the Sydney terminal and that was deemed to be delivery to the Buyer at that time.
The Vendor also argued that under Section 42(1)(b) and (c) of the Sale of Goods Act (NSW) that where the Purchaser becomes insolvent, the unpaid vendor has a right of stopping the goods in transit even if the title in the goods may have passed to the purchaser.
The Court agreed with this argument and the Vendor was entitled to re-take possession of the goods because they were still in the course of transit.
It is always worth seeking legal advice regarding your circumstances, you might be surprised..
At Everingham Solomons we have the experience to help you because Helping You is Our Business.
Your first marriage did not succeed but you have now found a partner with whom you want to share the remainder of your life with. You both have children from a previous marriage but no children together. Your only asset is the matrimonial home and life is pretty comfortable.
What happens when either you or your spouse need to leave the matrimonial home due to ill health? Who is going to pay the costs when the cash is tied up in the matrimonial home? What happens when adult children become concerned for the welfare of their parent, not the marriage?
This was a question for the Full Court of the Family Court to determine in the matter of Stanford & Stanford [2011] Fam CAFC 208 after the children appeared on behalf of their parents. The facts of this case were that the husband and wife were aged 87 and 89 respectfully. They had been married for 40 years, each having been married previously and each having adult children.
The wife was the husband’s carer for a number of years in the matrimonial home after he suffered 2 strokes. On 30 December 2008, the wife suffered a stroke herself and had to remain in full time residential care. The husband had recovered well from his strokes and he was able to remain in the former matrimonial home. He visited his wife three times per week and placed $40,000 into a trust account for her use.
The parties still were married but separated due to the ill health of the wife. The wife was in a nursing home which was paid for by her pension however her children were not happy with the level of care that she was receiving. Her children wanted to move the wife into a nursing home that required a $300,000 bond. The difficulty was that all funds of the wife were held in the matrimonial home and the husband did not want to sell as he was still able to live there.
In that regard, the Full Court of the Family Court had to decide whether it had the jurisdiction and the power to order that assets be divided when the marriage had not ended.
After much consideration the Full Court found that it did have the power to make Orders in circumstances whereby the elements of the marriage were gone despite the parties still being married. The Court outlined that it had to be just and equitable to make such an Order to ensure that both parties had the adequate support and financial provisions.
This is a significant case for those couples who have entered into second marriages and their funds have intermingled. Adult children may often seek to be involved to ensure that what they think is the best for their parent even if it may be to the detriment of that parent’s spouse.
If you have entered into a second marriage and want to protect your assets, or make provisions in the future for events such as above, please contact us to make an appointment because at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business
No-one, man or woman, should be subject to harassment of a sexual nature in any circumstances and particularly not in the workplace.
Whilst notions of equality and commonsense should dictate that sexual advances in the work environment are not condoned, unfortunately sexual harassment by both employers and co-workers remains problematic in Australian businesses.
Obviously the emotional and health effects of sexual harassment impact severely on the victim. But rarely do employers expect a sexual harassment claim to affect their business.
Employers need to be aware of the ramifications of an employee bringing a claim for sexual harassment, and should take positive steps to prevent an incident occurring in the workplace.
It is vital that all businesses have a harassment policy in place, preferably in conjunction with anti-discrimination and equal opportunity strategies.
Employers need to ensure that not only is a policy in place, but that complaints regarding sexual or any other form of discrimination are dealt with in a confidential and responsive manner, and that all grievances raised are adequately addressed.
Unfortunately many instances of sexual harassment result in the victim’s employment being unfairly terminated. In such a situation, the employer can expect OH&S implications to flow from a failure to create a safe working environment, together with an unfair dismissal or unlawful termination claim being filed by the employee.
A breach of the general protections grounds under the Fair Work Act (which include sexual discrimination and filing of a complaint) can result in the employee being awarded compensation, together with the employer being fined up to $33,000 for a corporation or $6,600 for an individual, for each offence.
It is therefore important that employers have the necessary written policies in place to comply with their legislative obligations.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues from provision of written policies, advice regarding termination of employees and redundancy, contracts of employment and warning letters, to the application of the Modern Awards, because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Everingham Solomons are still accepting applications from Tamworth, Quirindi, Gunnedah or Manilla students for the Sir Adrian Solomons Memorial 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.
The Principals of local High Schools have been contacted and advised of the correct format for submitting applications. 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.
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, 2011 with interviews conducted during December. A final decision as to the recipient is made in January once university acceptances are confirmed.
Helping You is Our Business
Click here for more information on the Sir Adrian Solomons Law Bursary.
Click here for more information on Terry Broomfield.
The Law Society of New South Wales operates the Specialist Accreditation Scheme to help the general public find Solicitors who have proven expertise in particular areas of the law.
Before gaining accreditation a Solicitor seeking Specialist Accreditation must pass rigorous assessments in communication, problem solving, client relations and the law in the relevant area.
A successful applicant for Specialist Accreditation is also required to commit to ongoing mandatory continuing legal education in the specialty area which means that the Specialist must undertake twice the mandatory continuing legal education of a non-accredited Solicitor.
In the end result, people dealing with Accredited Specialists can be confident that they are dealing with a person of proven expertise in the particular field who is also required to continually update and maintain their skills.
The Specialist Accreditation Scheme commenced in 1992 and has been actively supported by Everingham Solomons since that time. At one stage Everingham Solomons was the only firm in New South Wales of more than four Principals where all the Principals were Accredited Specialists in various areas of the law.
With that background, the Directors of Everingham Solomons are very pleased to announce that Jennifer Blissett has been awarded accreditation in the area of Family Law. Jennifer becomes the sixth of the current solicitors of Everingham Solomons to achieve Specialist Accreditation.
Jennifer joined Everingham Solomons in 1999 and is the Director in charge of the firm’s Family Law section. She practices extensively in the areas of-
Property division and settlements
Parenting issues
Care arrangements for children
Divorce
De facto relationships
Child support
Spousal maintenance
At Everingham Solomons we can offer a range of Accredited Specialists to meet your specific legal needs.
Modern attitudes to corporate responsibility have greatly increased the scope for directors to be personally liable for what would otherwise be corporate responsibilities.
We already have significant director liability provisions in Corporations, Occupational Health and Safety and Taxation legislation.
In October the Federal Government introduced legislation which will significantly extend the scope for liability of directors and their associates in the taxation and superannuation areas.
In releasing the legislation, the Government stressed the need to –
crack down on companies which ignore their tax and superannuation responsibilities to obtain a competitive advantage over other businesses and
protect workers entitlements
by “ensuring every Australian business plays by the rules”.
Under the current legislation, company directors receive a warning and a period of notice before becoming personally liable for company tax liabilities. That will no longer be the case. The ATO will be able to take action against directors without prior notice where a company’s pay as you go (“PAYG”) withholding tax or superannuation guarantee obligations are unpaid for three months.
It is very likely that this proposed legislation will become law. It will have significant implications for –
Companies with existing PAYG withholding liabilities. Ideally they will need to deal with those liabilities in one of the presently allowed ways before the new legislation takes effect;
People offered directorships will need to make due diligence enquiries before accepting appointment at the risk of otherwise becoming liable for unpaid tax or superannuation amounts due before they accepted appointment; and
Existing asset protection strategies. The proposed legislation extends to directors and their associates. This term includes relatives, partners, spouses and children. This will require all directors to review whatever asset protection strategies they might have in place before the legislation becomes effective.
At Everingham Solomons we have the expertise to assist you with these issues and all your other corporate and business legal issues because Helping You Is Our Business.
The growth of social media creates problems for both employers and employees alike. The lines between what happens inside and outside work have become blurred especially now that so much work happens outside the confines of the four walls that used to be well defined as the ‘workplace’.
Fair Work Australia, in a recent case, upheld the decision of the employer to dismiss a retail worker for his Facebook rant. The worker was employed by a large retail store and was paid by commission. He was allegedly not paid properly on three occasions. The first two occasions the problem was rectified.
On the third occasion however the problem had not been rectified so the worker jumped onto his Facebook account and his update was along the lines of that his employer was useless and he also said “they are going down tomorrow” which Fair Work Australia took as a threat.
The worker had 70 Facebook friends, 11 of which were work colleagues. Needless to say the employer found out pretty quick smart and took a dim view of the posting. The employer determined that it was a threat against the operations manager and was also a breach of its policies and procedures.
The worker lodged an application with Fair Work Australia claiming that he was unfairly dismissed. Fair Work Australia found that the employer had justifiably dismissed the worker. On the point of Facebook and whether the employee’s argument that it occurred away from work, and whether that had any merit, the member of Fair Work Australia said ‘The fact that the comments were made on the (employee’s) home computer, out of work hours, does not make any difference. The comments were read by work colleagues and it was not long before the (employer) was advised of what occurred. As the employer has said, in my view, the separation between home and work is now less pronounced than it once used to be’. Another salient fact in this case was that the employer had a policy dealing with harassment and bullying. Although it would have been preferential for it to also have a policy dealing with Facebook, given the uncontested facts in the matter, it was unnecessary.
At Everingham Solomons we can help you with all such policies and procedures and have packages dealing with all aspects of employment because Helping You is Our Business.
There is a lot of it going around and it can have a lethal affect on one’s financial health.
The Australian Law Reform Commission defined “sexual transmitted debt” as:
“the transfer of responsibility for a debt incurred by a party to his/her partner in circumstances in which the fact of the relationship, as distinct from an appreciation of the reality of the responsibility of the debt, is the predominant factor in the partner accepting liability”.
Probably, the most common way of catching sexually transmitted debt is by signing a guarantee at the request of one’s partner without thinking about it or taking advice. Standard form finance company (including trade financiers) and bank guarantees are usually unlimited and contain an “all monies” clause which makes the guarantor liable for ever dollar that the lender advances to the partner/customer. The guarantor is also liable for all interest and charges and the lender’s legal costs on a full indemnity basis.
As well as containing an “all monies” clause, standard form guarantees usually contain a clause by which the guarantor charges all of his or her property, including real estate, with payment of the debt of the borrower/partner. This amounts to an agreement to grant a mortgage over the guarantor’s real estate, which gives the lender the right, after taking some legal steps, to sell the family home or any other real property owned by the guarantor.
Not only that, standard form guarantees usually provide that the lender can take action against the guarantor without first bothering to try to recover the debt from the defaulting borrower/partner
The law provides considerable protection to the vulnerable from the consequences of sexually transmitted debt. That protection comes from the principles of equity, including a special wives’ equity, the Contracts Review Act, the Competition and Consumer Act and the Australian Securities and Investments Commission Act. However, court cases are extremely expensive, time consuming and stressful. Court cases are best left to those whom for such cases are just business e.g. banks, finance companies, insurance companies and the like. They are certainly not for guarantors fighting a rear guard action trying to save their home.
So, guarantees are extremely dangerous to one’s financial health. One’s first response to a request for a signature on a guarantee should be: “Sweetie, if you want a guarantee, buy a toaster.” The second response should be to take legal and financial advice.
At Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
I have my dress chosen, the high heels co-ordinated; I am wondering whether elbow-length gloves and some pearls would be the final additions to my outfit? I am getting frocked-up for the Women in Business Charity Movie Night co-hosted by Eversols and the National Australia Bank.
With the assistance of Forum 6 Cinema, we have secured a private screening of the classic “High Society”, starring the glamorous Grace Kelly, in support of Ovarian Cancer.
As the event will support Frocktober, we are asking attendees to wear a dress to the movie. For those more daring, 1950s Hollywood glamour will be the theme of the night.
So channeling the enchanting Princess of Monaco, I have selected my dress and I am gathering all my loose change together for the raffles and auction items that will feature at intermission.
I am most looking forward to the auction of several blokes who will kindly donate their time & handy-man skills to the highest bidder. Andrew Warden, winner of this year’s Young Auctioneer competition at the Sydney Royal Easter Show and stock & station agent with Ray White Garvin & Cousens, will convene our auction and talk up the fellas (as if they don’t do it enough themselves!) who will be available for “purchase”. We are hoping that the highest bidder will utilise the team of blokes for a business renovation or better still, donate the boys to a charity who could use some hands-on assistance. Hopefully the ladies who attend the night will be in need of some muscle and will be willing to bid up the boys in aid of a great cause.
Modern awards have covered most workplaces from 1 January 2010. A common misconception is that paying above award rates will automatically release an employer from compliance with award obligations. Unfortunately, it is not that simple.
Awards govern more conditions than just pay rates, for example, rostering arrangements, allowances, and shift penalties. An employer needs to take positive steps to comply with, vary, or exclude the operation of these and other award conditions.
A breach of award conditions can attract civil penalties of up to $33,000 for a corporate employer and individuals involved can also be penalised up to $6600 for each breach.
Off-setting arrangements
As a general principle, over-award payments can only satisfy entitlements to which the payment is directed. For example, paying a higher hourly rate than the modern award rate of pay will not necessarily off-set penalties or loadings in the modern award, unless it is clear that the parties intended it to do so.
In view of this, a good starting point is to include a ‘set-off’ clause in your employment contracts.
Individual Flexibility Arrangements
This type of clause can be complemented by entering into an Individual Flexibility Arrangement with a particular employee in order to vary the effect of the application of certain terms of the award (e.g. overtime, allowances, loading).
Whether you are an employer or employee, Everingham Solomons will be more than happy to assist you with any employment queries because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
What rights does a Vendor have to reclaim goods sold after delivery where the Purchaser becomes insolvent and is unable to pay?
