A recent matter in the District Court of NSW considered a claim of negligence brought against a Council.
The claimant was a high school student participating in a touch football competition on a sports field maintained and owned by the Council.
During the game, the claimant fell to the ground alleging her foot got stuck in a hole in the playing surface of the field causing her injury to her knee.
To succeed in her claim, the claimant needed to prove on a balance of probabilities, that there was a hole in the playing surface of the field that caused her to sustain her injury.
The claimant admitted that she did not see any hole in the ground and ultimately was unable to establish that she fell into one.
The Council was also able to show evidence that groups such as touch football associations were issued permits to allow them to play on sports fields on the condition that the sporting entity had to inspect the playing field and surrounding areas prior to play for hazards and defects (such as holes) and any identified risks needed to be fixed before play and reported to the Council.
There was no evidence presented of any reports or defects in the playing surfaces from the touch football association or other sporting bodies who had recently used the sporting field.
Further the sporting Association gave evidence that their usual practice was to inspect the playing fields for risks prior to play and this was supported by a completed checklist which did not identify the hole in the surface of the field.
Additionally, Council had a system of maintenance of the park where the fields were regular inspected by a number of workers and no reports had been lodged of any defects in the playing surface.
The case highlights the importance of bodies having the control or ownership of public areas, having risk management procedures integrated into the day-to-day operation and management of public places such as sports fields, parks etc, to enable the early reporting, identification and elimination of risks on public land.
It also highlights that a claimant should have sufficient evidence and documentation to prove negligence and to prove their case as otherwise it could be an expensive gamble.
At Everingham Solomons Solicitors, we have the legal expertise to advise you regarding all of your legal matters, because Helping You is Our Business.
In Australia, a party to a marriage is able to make an Application for Divorce under Section 48 of the Family Law Act 1975 (Cth).
In order for an Application for Divorce to be granted, the Court must be satisfied of the following:
1. That there is a valid marriage;
2. That you:
a) Are an Australian Citizen; or
b) Live in Australia and regard Australia as your permanent home, or
c) Ordinarily live in Australia and have done so for at least 12 months before filing the Application for Divorce;
3. That the marriage has broken down irretrievably;
4. That the parties to the marriage separated and thereafter lived separately and apart for a period of not less than 12 months; and
5. That there is no reasonable likelihood of cohabitation being resumed.
On occasion, we have been required to consider what it means for parties to be “separated” and to have lived “separately and apart”.
In 1976, the Family Court of Australia considered this concept In the Marriage of Todd (No 2).
The facts relevant to the Application for Divorce were as follows:
Mr. Todd married Mrs. Todd in 1960;
Mr. Todd and Mrs. Todd has two children;
In November 1974, Mrs. Todd relocated from the former matrimonial home with the two children of the marriage;
In April 1975, Mrs. Todd and the children returned to the matrimonial home;
In 1976, an Application for Divorce was made.
In his judgment, the Late Justice Watson determined the following:
1. ‘Separation’ means more than physical separation – it involves the destruction of the marital relationship. Separation can only occur where one or both parties to the marriage form the intention to sever or not resume the marital relationship and act on that intention. Considering what comprises the marital relationship will vary for each couple.
2. ‘Living separately and apart’ – Unless there is a substantial resumption of the marital state, this element is considered present. It is important to note, casual intimate relations with your estranged spouse do not constitute an interruption to separation.
3. ‘Resumption of cohabitation’ – Once the necessary period of separation has been established, a Divorce should be granted unless the Court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
In the Marriage of Todd (No 2), the Late Justice Watson found that the marriage had irretrievably broken down and that the parties had lived separately and apart since November 1974. Despite the parties resuming their cohabitation in 1975, Justice Watson determined the matrimonial relationship was never restored and accordingly, it was appropriate for the Court to make and Order for Divorce.
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.
Recently, the Federal Government announced a permanent Australian-wide firearms amnesty, commencing on 1 July 2021. The amnesty will allow a person to produce illegal or unregistered firearm or firearm related item for registration, sale or destruction without penalty. The process of producing firearms for sale or destruction, can be done anonymously.
Items for surrender can be produced to your Local Police station or to a participating licenced firearms dealer.
Should you wish to surrender a firearm or related item/s for destruction, there is no cost to do so.
There is also the option to surrender your firearm with the view to registering it and adding it to your licence. This can be done at the Police station or at a licenced firearms dealer as well. There are some fees that are associated with this including registration fees and fees for a replacement (once updated) licence. There is no guarantee that the firearm can be registered, but the Police or your firearms dealer can provide further details on the requirements.
You may also be able to enter into a private sale arrangement to sell the firearm to a Licenced Firearms dealer. This will have to be negotiated between the dealer and yourself, but the amnesty makes provisions for this.
The Police and registered dealers will also accept the surrender of any registered firearms that are no longer required or wanted.
Don’t forget to book in for an appointment in advance with the Police or firearms dealer, because if you get caught with the unregistered firearms, fines and penalties will apply!
For help with any firearm offences, contact Everingham Solomons because Helping You is Our Business.
Saving money to buy property, or even pay a deposit, can be very difficult especially when buying property for the first time. Fortunately, the government is currently offering a number of grants and schemes that can make it a little easier.
First Home Buyer Assistance Scheme
The First Home Buyer Assistance Scheme provides an exemption for first home buyers from having to pay stamp duty on their purchase. The requirement to pay stamp duty is completely waived for first home buyers purchasing a new or existing home for $650,000 or less or buying vacant land for $350,000 or less. A first home buyer may still be eligible for a partial exemption it the value of the property exceeds these amounts.
To be eligible for the scheme you and your spouse must never have owned any interest is residential property in Australia and at least one of the first home buyers making the application must be an Australian citizen or permanent resident. There is also an additional requirement that you must live in the property for 6 months within the first 12 months of buying the property.
First Home Buyer Deposit Scheme
An additional expense for first home buyers is lenders mortgage insurance (LMI). LMI can cost thousands of dollars and is required to be paid by first home buyers that have less than a 20% deposit saved to purchase a property. Under the First Home Buyer Deposit Scheme, eligible people only need to have a 5% deposit saved and the government will guarantee the remaining 15%.
However, there are currently only 10,000 places available between 1 July 2021 and 30 June 2022 for first home buyers to qualify for this scheme. You must also be an Australian citizen and have a taxable income of less than $125,000 for an individual or $200,000 for couples to be eligible. This scheme is not available for individuals with permanent residency status in Australia.
First Home Super Saving Scheme
The First Home Super Saving Scheme allows first home buyers to release funds from their superannuation to buy property. The benefit of this scheme is that purchasers can draw from their superannuation to help fund their purchase or pay a deposit. It also makes it easier to save for a deposit as funds put straight into your superannuation are usually taxed at a lower rate than income tax.
Importantly, only voluntary contributions you have made to your super fund can be released under this scheme. Super contributions made by your employer cannot be released. You can also only release up to $15,000 of voluntary contributions you have made from any one financial year. The total amount of voluntary contributions that can be released is capped at $30,000.
If you need any assistance with purchasing your first property, or any other property transactions, please contact a solicitor or conveyancer at Everingham Solomons because Helping You is Our Business.
If you are a tenant, you need to understand how you can use the leased premises when entering into a commercial or retail lease. For example, you may intend to use the premises as a restaurant or as a bookstore in Tamworth. How you can use the lease premises is negotiated and agreed before you enter into the lease and is provided in the “permitted use” clause of the commercial or retail lease.
The permitted use clause should accurately describe how you intend to use the premises during the lease term, including what you will be doing on the premises now and in the future, and any products or services you will manufacture or sell on the premises. The permitted use clause, even just a few words, is an important commercial term in the lease.
First of all, the permitted use has an impact on the future of the tenant’s business. A broader description of the permitted use is preferred as it will allow a range of activities to be carried out. A narrow description may restrict the tenant’s ability to expand the business. Therefore, tenants need to consider if the permitted use is broad enough to adequately cover their core business and any ancillary activities.
Secondly, tenants should consider the ability to transfer the lease to a third party. A highly restrictive permitted use may affect the tenant’s ability to assign the lease if the landlord is not willing to consent to a change to the permitted use. This is particularly relevant if the tenant intends to sell the business. A broad description of permitted use in the lease would make it easier to find a purchaser of the business.
Lastly, permitted use is closely related to the development approval. Before entering into the lease, tenants should research and enquire about whether the premises are suitable for their intended use and ascertain whether their intended use is permitted on the premises. If the intended use of the premises has not been approved by the council, the tenant will need to lodge an application and obtain the development approval from the council.
If you have any inquiries in respect of your commercial or retail lease, please contact Everingham Solomons because Helping You is Our Business.
From 11 October 2021, all paper Certificates of Title for land in NSW will be cancelled and converted to electronic Certificates of Title.
What does this mean for me as a landowner?
1. If you hold a paper Certificate of Title, that paper title will be cancelled.
2. Those who pay off their mortgage will not receive a paper title.
3. A cash purchaser of land will not receive a paper title following settlement.
4. When a parcel of land is subdivided, consolidated or in any other way created, a paper title will not be issued for that new parcel of land.
Don’t panic! The cancellation of your paper Certificate of Title will not change the ownership of your land.
The Torrens Title Register is the primary register for land held in NSW. This register records land ownership and will continue to be the primary source recording a person’s interest or estate in land in NSW.
The purpose of the cancellation of paper Certificates of Title is in line with the Registrar General’s transition to 100% electronic Conveyancing.
Whilst most dealings with land registered on the Torrens Title Register must already be lodged electronically by a subscriber i.e. solicitor or conveyancer, once this transition is complete, all documents must be lodged electronically by a subscriber.
At Everingham Solomons, we strive to complete your conveyancing transaction efficiently, accurately and securely, because Helping You Is Our Business.
Everingham Solomons Solicitors has seen significant growth over the last 12 months.
We have welcomed a number of new staff and our existing staff have continued to develop in their careers.
Recently we celebrated Nick Hawkins and Lachlan Ennis being admitted as Solicitors to the Supreme Court of New South Wales. Nick Hawkins works in our Property Law team and Lachlan Ennis works in our Family Law team.
Today, it is with great pleasure that I announce that Solicitors Libby Campbell and Sarah Rayner have been promoted to Associates.
Libby has been with our firm since 2017 and has been a shining light in the Workers Compensation and Personal Injury space.
Sarah has been with our firm since 2019 and has had a huge impact in our Property Law team.
Libby and Sarah have shown exceptional leadership qualities and we are so proud to have them as part of the Everingham Solomons team.
When the company was founded in Tamworth almost 150 years ago, it would have been hard to imagine it would grow to become one of the largest regional law firms in NSW.
With over 20 full-time lawyers, solicitors and conveyancers specialising in everything from property law, family law, criminal law, business law and personal injury, Everingham Solomons has all your legal needs covered. Helping You is Our Business so give us a call.
Click here for more information on Libby Campbell or Click here for more information on Sarah Rayner.
As a huge fan of the iconic Australian movie “The Castle”, my commitment to our clientele is more than a ‘vibe’. Dedication to assisting the individual client with understanding and achievable outcomes is my commitment.
In 2017 I graduated with a Bachelor of Arts and Bachelor of Laws from Macquarie University. In 2021 I completed a Post-Graduate Diploma of Legal Practice from the College of Law. Shortly thereafter I was admitted to practice as a solicitor by the Supreme Court of New South Wales.
I have been living in Tamworth since 2015 and love the numerous opportunities and lifestyle choices that the region offers.
I have a passion for all things farming and agriculture, and in my spare time I enjoy assisting my parents on their rural property. I have also been known to participate in rugby union, usually spotted standing on the wing like all good forwards.
As a member of the Everingham Solomons Family Law team, I practice in all areas of divorce of matrimonial property, spousal maintenance and parenting matters. I look forward to continuing to learn and contributing to our community with Everingham Solomons, where Helping You is Our Business.
Over the past few years, The NSW Property Law system has been progressively moving towards a system in which land dealings are being lodged electronically. The electronic system is known as eConveyancing.
Recently, the Office of the Register General has announced the date in which NSW will become a 100% electronic system.
This date is being referred to as the Cessation Date.
The Cessation date of 11 October 2021 brings with it a multitude of changes.
One of the bigger changes to the system is the abolition of the Certificate of Title (CT), or more commonly known as the title deed. The Real Property Amendment (Certificates of Title) Act 2021 now dictates that CTs will no longer be issued when completing a property transaction and further still all CTs in existence will be cancelled.
This will mean that a CT will no longer be a legal document.
However, current advice is that you shouldn’t immediately run to the shredder to destroy any CT you have lying around your house, but that you should retain these Certificates for at least six (6) months after the Cessation date.
The NSW Torrens Title Register will remain the sole way of proving Legal ownership of Property in NSW.
In place of a CT being issued, the NSW Land Registry Service will be issuing an Information Notice.
The Information Notice is said to contain details of the Land affected, the dealing registration number, the date of the dealing and other important information.
With these changes, you can expect that your legal representative will now be required to carry out exhaustive identification checks before they will be able to proceed with your transaction.
For all your property transactions contact Everingham Solomons because Helping You is Our Business.
You’ve been saving hard and have the deposit to purchase your first home. You’ve looked at many houses and finally found the one. You’ve made an offer through the real estate agent and your offer has been accepted by the vendor.
You organize your pest and building reports. You know your finance is arranged as you’ve been pre-approved by your chosen lender. WRONG!
A pre-approval of finance from a lender is only an “indication” of the amount the lender considers you may borrow based on your previous financial circumstances.
Until you make a formal loan application for the house you have chosen and subsequently you receive written confirmation of finance approval from your lender noting the details of the house you intend to purchase plus a signed loan offer, the lender is under no obligation to provide you with finance.
If you were to exchange contracts based on the “pre-approval letter”, you may not be able to complete your purchase as the finance has not been formally approved for that house.
Not being able to complete your purchase may result in the vendor being able to terminate the Contract, keep your deposit, sue you for any shortfall in the price upon resale of the property (if any) and also sue you for costs and expenses associated with your inability to complete the Contract.
Once your offer has been accepted, you need to make an appointment with your lender as soon as possible to complete a loan application for your chosen home. In most cases, your lender will arrange for a valuation of the property to be carried out to ascertain whether it will provide them with adequate security for their loan.
Many lenders need to submit your loan application to their mortgage departments located either in Sydney, Melbourne, or Adelaide. With Covid-19 in the mix, this takes time so you need to contact your lender quickly as this will enable you to safely exchange contracts and secure the property you wish to buy.
Some lenders provide a letter stating your loan has been approved subject to various conditions set out in the loan contract. This means you must wait to see the loan contract document to find out what terms and conditions you must comply with before the loan will be approved.
At Everingham Solomons, we take our role of protecting your interests very seriously. We work hard to help you secure the home you wish to purchase and make sure you do not end up in the position where you risk incurring a significant financial loss because you were unable to complete your contractual obligations. It might seem like it can take a long time before contracts are exchanged, but it’s all in the interests of looking after you – our client, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
A recent matter in the District Court of NSW considered a claim of negligence brought against a Council.
In Australia, a party to a marriage is able to make an Application for Divorce under Section 48 of the Family Law Act 1975 (Cth).
Recently, the Federal Government announced a permanent Australian-wide firearms amnesty, commencing on 1 July 2021. The amnesty will allow a person to produce illegal or unregistered firearm or firearm related item for registration, sale or destruction without penalty. The process of producing firearms for sale or destruction, can be done anonymously.
Saving money to buy property, or even pay a deposit, can be very difficult especially when buying property for the first time. Fortunately, the government is currently offering a number of grants and schemes that can make it a little easier.
From 11 October 2021, all paper Certificates of Title for land in NSW will be cancelled and converted to electronic Certificates of Title.
Everingham Solomons Solicitors has seen significant growth over the last 12 months.
As a huge fan of the iconic Australian movie “The Castle”, my commitment to our clientele is more than a ‘vibe’. Dedication to assisting the individual client with understanding and achievable outcomes is my commitment.
You’ve been saving hard and have the deposit to purchase your first home. You’ve looked at many houses and finally found the one. You’ve made an offer through the real estate agent and your offer has been accepted by the vendor.