Kells Your Lawyers

Why you shouldn’t rely on AI for legal advice

Fri, 24 Apr 2026 04:42:15 GMT

Artificial intelligence is rapidly changing the way people access information, but when it comes to legal advice, it’s important to understand its limits.

AI tools can generate fast, confident responses to legal questions, which can make them appear authoritative. However, they do not “understand” the law. Instead, they predict patterns based on existing data. This means they can produce answers which may sound correct, but they could be incomplete, outdated, or entirely wrong.

Courts, such as the NSW Supreme Court , expect legal professionals and self-represented litigants to take certain precautions, and at times make certain declarations, with respect to generative AI for documents that come before the court. Both legal professionals and self-represented litigants have been negatively impacted by their use of generative AI in matters before the court.

AI doesn’t apply legal reasoning

Unlike a qualified lawyer, AI does interpret legislation or apply legal principles to a specific set of facts. It does not weigh competing authorities, assess credibility, or consider how courts have applied the law in practice.

Legal advice requires:

Understanding current legislation and case law;
Applying that law to your unique circumstances; and
Exercising professional forensic judgment.

AI simply cannot replicate this process.

The risk of incorrect or outdated information

AI-generated responses may:

Misinterpret statutes or legal terminology;
Rely on outdated laws or cases; and
Overlook key exceptions or nuances.

The result is advice that may appear reliable, but could expose you to significant legal risk if acted upon.

Privacy and confidentiality concerns

When you input information into an AI tool, you may unknowingly disclose sensitive or confidential details. This can include:

Personal information;
Financial details; and
Sensitive communications.

Consequences using of AI in legal services

It is clear there are many risks of using AI for legal advice or to prepare a dispute that may go before the courts and there are many potential consequences of relying on AI for legal services. It is important that people know when and how using AI could impact their potential legal matter.

The bottom line

Legal matters are rarely one-size-fits-all. AI cannot properly assess your individual situation or provide advice tailored to your needs. It also carries no professional responsibility or accountability for the outcomes of its responses.

There is growing recognition that while AI can assist with general information, it should not replace qualified legal advice.

AI can be a helpful starting point for general knowledge, but it is not a substitute for professional legal guidance.

If you’re dealing with a legal issue, particularly something as important as family law, property settlements, or contractual matters, seeking advice from an experienced lawyer remains essential.

Legal issues deserve careful consideration and trusted expertise. Our experienced lawyers are here to provide clear, tailored advice to protect your interests. If you need guidance, we encourage you to reach out to our team.

Get legal advice you can actually rely on.

If you need clear, accurate legal guidance, speak with the team at Kells. As a full‑service law firm, we provide practical advice tailored to your circumstances, so you understand exactly where you stand and the best course of action to take. With five offices across the Illawarra and an office in the Sydney CBD, wherever life is taking you, we’re ready to help you get there with confidence.

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Kells supports Helensburgh Community through Salvation Army Wills Day

Wed, 22 Apr 2026 02:25:39 GMT

Kells recently took part in the Salvation Army Community Wills Day held at Helensburgh

Community Centre, reinforcing the firm’s ongoing commitment to giving back to the communities it serves.

As part of the initiative, Estate Planning lawyers Nicki McNamara and Genevieve Van Yzendoorn volunteered their time on the day, working directly with community members to assist with the preparation of Wills and contribute to an initiative focused on practical support and community connection.

Community Wills Days, delivered in partnership with The Salvation Army, bring together legal

professionals and local organisations to provide accessible estate planning services in a

welcoming community setting.

Managing Partner Paul Magagnino said initiatives like the Helensburgh Community Wills Day

reflect Kells’ broader approach to community involvement.

“Giving back is a core part of who we are at Kells. Community events like this allow us to use our skills in a practical way while building meaningful connections with the people and organisations

that make our region strong. It was fantastic to see our team involved and to support the important work being done by The Salvation Army.”

Kells continues to support communitybased initiatives across the Illawarra and surrounding

regions, with a focus on access, connection, and contributing positively to local communities.

For more information on Salvation Army Community Wills Days, visit .

Kells has grown to become a leading full-service law firm in Sydney and the Illawarra region,

working alongside our clients and evolving our services to meet our clients’ changing needs. We have a team of passionate, energetic, and client-focused legal professionals with over 70 staff based across 6 offices in Sydney and throughout the Illawarra.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Long Service Leave changes explained: are you meeting the new requirements?

Tue, 21 Apr 2026 02:24:34 GMT

Long Service Leave (LSL) has long been one of the most misunderstood areas of employment compliance in New South Wales. With evolving work arrangements, varying employment types, and inconsistent interpretations over the years, many businesses have faced uncertainty, and in some cases, costly disputes, around employee entitlements.

That’s now changing.

The NSW Government has released updated Long Service Leave guidance in March 2026 , providing much-needed clarity on how LSL should be calculated, applied, and managed across a wide range of employment scenarios. For employers, this marks a significant shift, and an important opportunity to ensure compliance.

What’s changed?

The updated guidance provides clearer direction on several key areas, including:

Accurate LSL calculations
Improved guidance on how to calculate entitlements, particularly for employees with irregular hours, bonuses, or varying pay structures.
Pro-rata entitlements
More detailed explanations around when employees may be entitled to pro-rata LSL, especially in cases of resignation, redundancy, or termination.
Casual and part-time employees
Clarification on how continuous service is assessed for non-full-time employees, an area that has historically caused confusion.
Service continuity and breaks
Updated interpretation of what constitutes “continuous service,” including how gaps, stand-downs, or changes in employment status are treated.
Record-keeping obligations
Reinforced expectations for employers to maintain accurate, detailed records to support compliance.

Why this matters for employers

These updates are not just administrative, they carry real risk if misunderstood or ignored.

Incorrect LSL calculations or misinterpretation of entitlements can lead to:

Employee disputes and claims
Back payments and penalties
Reputational damage
Increased scrutiny from regulators

With clearer rules now in place, there is less room for ambiguity, meaning businesses are expected to get it right.

What you should do next

If you employ staff in NSW, now is the time to:

Review your current LSL policies and calculations
Audit employee records and entitlement tracking
Ensure payroll systems align with the updated guidance
Seek advice where situations are complex (e.g. long-term casuals, variable hours, or employment breaks)

Need help navigating the changes?

If you’re unsure how the new guidance affects your business, or you want to review your LSL practices, our highly experienced employment law team can help you navigate the changes and ensure you’re fully compliant.

Staying proactive now can help you avoid issues later, and give you confidence that your business is meeting its obligations under the updated LSL framework.

Contact our employment law team today for understand how we can help you navigate this new law.

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NSW e‑bike safety standards update

Thu, 26 Mar 2026 22:28:52 GMT

Electric bikes, or e-bikes, have exploded in popularity across New South Wales, offering an affordable, eco-friendly and fun way to get around cities like Sydney, Newcastle and Wollongong. But rising use has also brought safety concerns, legal confusion, and a raft of new laws designed to keep riders and pedestrians safe.

What is a legal e-bike in NSW?

Under NSW law, an e-bike is treated as a bicycle, but with specific technical standards:

The motor must be pedal-assisted only, meaning the motor helps only while you pedal.
The motor must cut out when the bike reaches 25 km/h.
Maximum continuous motor power is being reduced and aligned with national standards to 250 watts .

E-bikes that don’t meet these criteria may not be suitable for riding on roads or shared footpaths.

Road rules still apply

Even if your e-bike is legal to own and ride, you must still follow normal road and path rules, including:

Riders must wear an approved helmet .
You must obey all applicable NSW road rules , including those about mobile phones, traffic signals, and riding on paths and shared spaces.

Legal e-bikes must essentially behave like bicycles, meaning motor assistance must cut out at 25 km/h and you cannot use throttle-only propulsion above walking speed.

Age restrictions under consideration

Safety concerns , particularly around injuries to younger riders, mean that NSW is examining minimum age limits for e-bike use which includes possibly setting a minimum age (possibly between 12 and 16) for riding e-bikes.

The aim is to curb risky behaviour and reduce serious accidents involving children on high-powered or modified e-bikes.

Crackdown on illegal e-bikes

One of the biggest legal shifts in 2026 is a crackdown on non-compliant and high-powered e-bikes. These crackdown operations are currently being carried out by NSW Police .

What happens if you ride an illegal e-bike?

Riding a non-compliant e-bike can attract fines. It as anticipated that consequences may expand with new legislative changes and e-bike riders should keep themselves informed of their rights and obligations under the law.

As authorities have emphasised, the crackdown isn’t just punitive, it’s about safety and ensuring e-bikes are a sustainable mode of transport, not a source of harm.

Looking ahead

Due to increasing popularity and uptake of e-bikes in NSW and the associated dangers of e-bike use, it is anticipated that there are still changes to come in regard to the use of e-bikes. As discussed, this may include minimum age requirements or other methods of keeping track of people who own and operate e-bikes.

Whether you’re commuting, exercising or just enjoying a ride through your local neighbourhood, understanding these laws helps you stay safe and legal, and make the most of your e-bike experience.

If you’re unsure whether your e-bike meets legal requirements, check the manufacturer’s specifications against the NSW government criteria, and consider professional advice on compliance.

If you, or somebody you know, have been injured while riding your electric (or non-electric) bike or scooter, and need help or advice navigating rights and entitlements to compensation, please reach out, we are here to help and are only a phone call or online enquiry away.

Our experienced personal injury team offers a FREE, no-obligation consultation to assess whether you may be entitled to make a claim. If you decide to proceed, our services are provided on a no win, no fee basis. Contact us today to discuss your options.

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Common conveyancing mistakes when buying or selling property in NSW

Sun, 22 Mar 2026 22:34:14 GMT

Buying or selling property is often one of the largest financial transactions a person will make. While the conveyancing process may appear straightforward, even small mistakes can lead to costly delays, disputes, or unexpected liabilities. Understanding some of the most common conveyancing pitfalls can help buyers and sellers avoid unnecessary stress and ensure a smoother property transaction.

What is conveyancing?

Conveyancing is the legal process of transferring ownership of property from one party to another. It involves preparing and reviewing contracts, conducting searches, ensuring compliance with legal requirements, and coordinating settlement to finalise the transfer.

For many people, the process can seem administrative. However, each transaction carries significant legal and financial risks that need to be carefully managed.

Failing to review the contract before signing

One of the most common mistakes is entering into a contract without first obtaining legal advice.

A contract for sale may contain special conditions that affect the buyer or seller’s rights. These can include clauses relating to conditions that have to be met prior to settlement, defects, additional fees, and restrictions to the use of the property in question.

Once contracts have exchanged, parties are generally legally bound to complete the transaction. Having a solicitor or conveyancing review the contract before signing or alternately during a cooling off period, can help you identify the potential risks and allow amendments to be negotiated before you are bound by the terms.

Not conducting proper due diligence

Buyers should ensure appropriate searches and inspections are carried out before committing to the purchase.

Important due diligence steps may include:

Pest and building inspections;
Title and zoning searches;
Reviewing council approvals for structures on the property; and
Checking for easements, restrictions or covenants.

Failure to investigate these matters can result in unexpected issues after settlement, including development problems, disputes with neighbouring properties and hidden costs.

Overlooking settlement adjustments

The settlement process involves parties adjusting on financial items such as:

Council rates;
Water rates;
Strata levies; and
Land tax (if applicable).

If these adjustments are not properly calculated, either party may end up paying more than they should. Experienced solicitors and conveyancers ensure these adjustments are verified and accounted for when exchanging figures prior to settlement.

Delays caused by missing documents

Property transactions often involve strict deadlines. Missing documents, incomplete disclosure, or delays in obtaining mandatory certificates can slow the process and potentially jeopardise your position putting you at risk of costs and rescission.

Working with a solicitor or conveyancer early in the process can help ensure all necessary documentation is prepared and exchanged in accordance with set timeframes.

Not seeking legal advice for complex transactions

While many property transactions follow a standard process, some situations can involve additional legal complexity.

Examples include:

Purchasing property through a company or trust;
Buying off-the-plan developments;
Rural or large land purchases;
Subdivisions or development potential; and
Transfers between family members.

In these cases, legal advice can help ensure the structure of the transaction is appropriate and compliant with the relevant laws.

The value of experienced conveyancing advice

Property transactions involve significant financial commitments and legal obligations. Even experienced buyers and sellers can encounter unexpected issues if risks are not properly identified.

Seeking professional conveyancing advice early in the process can help:

Identify and mitigate potential risks found in contracts;
Ensure appropriate searches are conducted using the correct platforms;
Manage settlement deadlines to remove the stress from you; and
Avoid costly mistakes which you may be liable for.

With the right guidance, the conveyancing process can proceed smoothly, allowing buyers and sellers to focus on the next stage of their property journey.

Contact the number one conveyancing team in the Illawarra today. We are experienced, approachable, and here to ensure your transaction is smooth and stress-free.

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Kells continues support for Kiama Nippers, celebrating five years of community involvement

Tue, 17 Mar 2026 23:58:52 GMT

As the Kiama Nippers season draws to a close this month, Kells Lawyers is proud to continue its longstanding sponsorship of the Kiama Nippers, a cornerstone of the Kiama community.

The Kiama Nippers, part of the Kiama Surf Life Saving Club, provide children aged 5–14 with the skills, confidence, and enjoyment of surf lifesaving through a safe, structured, and fun program.

Kells Lawyers has been a flag-year sponsor for the past five years, reinforcing the firm’s

commitment to investing back into the communities that have supported its growth and prosperity.

Michael Hatfield, Partner at Kells’ Kiama office and local resident, commented "Supporting the Kiama Nippers is about more than sponsorship, it’s about giving back to the community that has given us so much. Over the past five years, we’ve seen firsthand the positive impact this program has on children and families across Kiama. Being part of this tradition, and helping nurture young lifesavers, is something we’re proud to contribute to."

Through its ongoing support, Kells Lawyers helps the Nippers continue to deliver a program that builds confidence, skills, and a love of the ocean, while strengthening community connections across Kiama.

"Investing in grassroots initiatives like the Nippers is part of how we give back to the region,"

Michael Hatfield added. "Our firm’s success is tied to the health and vibrancy of the community around us, and we’re committed to supporting programs that make a real difference."

Kells’ sponsorship underscores the firm’s broader commitment to local sport, youth programs, and community development across the Illawarra and Shoalhaven region.

For more information, visit Kiama Surf Life Saving Club Nippers .

Kells has grown to become a leading full-service law firm in Sydney and the Illawarra region, working alongside our clients and evolving our services to meet our clients’ changing needs. We have a team of passionate, energetic, and client-focused legal professionals with over 70 staff based across 6 offices in Sydney and throughout the Illawarra.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Kells Lawyers dives in to support Bellambi Bluebottles Winter Swimming Club

Thu, 12 Mar 2026 00:09:54 GMT

Community, camaraderie and a dash of cold-water courage will continue this winter thanks to a new sponsorship partnership between Kells Lawyers and the Bellambi Bluebottles Winter Swimming Club.

The Bellambi Bluebottles are a long-standing local winter swimming group that gathers regularly during the colder months at the iconic Bellambi Rock Pool, where swimmers take to the ocean pool for friendly competition, social connection and the challenge of winter swimming.

Kells Lawyers Partner Patrick Schmidt, a regular attendee of the club’s swims, said the

sponsorship reflects the firm’s belief in supporting grassroots community initiatives that bring people together.

“Winter swimming is one of those uniquely local traditions that captures the character of the Illawarra, resilience, humour and a strong sense of community,” Mr Schmidt said.

“I’ve had the pleasure of joining the Bellambi Bluebottles on many occasions, and what stands out most is the camaraderie. It’s not just about the swim, it’s about the friendships, the shared stories and the simple joy of being part of something local.”

The Bellambi Bluebottles Winter Swimming Club is a not-for-profit organisation that meets through autumn and winter at Bellambi’s ocean rock pool, a well-known coastal swimming spot located along the northern beaches of Wollongong.

Through the partnership, Kells Lawyers will help support the club’s ongoing activities and its role in maintaining a welcoming, community-focused environment for swimmers and locals alike.

Mr Schmidt said supporting community organisations is a natural extension of the firm’s connection to the region.

“As a firm that has grown alongside the Illawarra community, we recognise that our success is tied to the strength of the people and organisations around us,” he said.

“We believe in reinvesting in the communities that have supported us over many years. Sponsoring the Bluebottles is a small way of giving back to the place that has contributed to our prosperity.”

The partnership highlights Kells Lawyers’ continued commitment to local sport, community organisations and grassroots initiatives that strengthen the social fabric of the Illawarra.

For the Bellambi Bluebottles, the support ensures the club can continue its long-standing tradition of winter swimming, where the cold water may be bracing, but the community spirit is always warm.

For more information, visit The Bellambi Bluebottles .

Kells has grown to become a leading full-service law firm in Sydney and the Illawarra region,

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Digital assets in a property settlement: what you need to know

Wed, 11 Mar 2026 23:21:20 GMT

As more aspects of our lives move online, digital assets are increasingly forming part of family law disputes. From cryptocurrency and online businesses to social media accounts and digital intellectual property, these assets can hold significant value and may be considered when property is divided following separation.

Understanding how digital assets are treated in a property settlement can help parties ensure that all assets are properly identified and fairly distributed.

What are digital assets?

A digital asset is any asset that exists in digital form that holds a value. In the context of family law, this can include a wide range of items, such as:

Cryptocurrency holdings (such as Bitcoin or Ethereum)
Online businesses and e-commerce stores
Domain names and websites
Digital intellectual property, including software, designs or online content
Social media accounts that generate revenue
Digital advertising accounts or monetised platforms
NFTs (non-fungible tokens)
Online investment accounts
Digital wallets or payment platforms

In many cases, these assets may not be immediately visible in traditional financial documents, which can make them harder to identify during a property settlement.

Are digital assets included in the asset pool?

Under Australian family law, the Court considers the total asset pool of the parties when determining a property settlement. This includes assets held individually by the parties, jointly, or by the parties through companies or trusts. Digital assets are treated the same as other forms of property. If an asset has financial value, it is generally included in the property pool regardless of whether it exists physically or digitally.

The importance of full financial disclosure

All parties involved in family law proceedings are required to provide full and frank disclosure of their financial circumstances. This includes digital assets.

Because some digital assets can be difficult to detect, issues can arise where one party fails to disclose them. For example, cryptocurrency wallets or online trading accounts may not appear on standard bank statements. If undisclosed digital assets are later discovered, the Court has the power to revisit or set aside a property settlement that was reached without consideration of these assets.

The growing role of cryptocurrency

Cryptocurrency has become one of the most common digital assets appearing in modern day property settlements.

Because cryptocurrency transactions can occur outside traditional banking systems, they can be more difficult to trace. However, blockchain analysis and forensic accounting techniques are increasingly used to identify crypto holdings and transaction histories.

Protecting digital assets during separation

If you are separating and hold digital assets, it is important to take steps to properly disclose them.

This may include:

Recording all digital assets and accounts you hold
Preserving transaction histories
Obtaining professional valuations where necessary
Seeking legal advice early to ensure proper disclosure

Early identification of digital assets can reduce disputes and help ensure a smoother property settlement process.

Seeking legal advice

The complexity, volatility and sometimes hidden nature of digital assets can create challenges if they are not properly identified and managed. Obtaining legal advice early in the separation process can help ensure that such assets are correctly disclosed, valued and included in the overall asset pool.

If you are navigating a property settlement involving digital assets, experienced legal guidance can assist in protecting your interests and achieving a fair outcome.

Do you need family law advice? We specialise in all areas of family law and have a team of experienced, caring family lawyers conveniently located throughout the Illawarra region and the Sydney CBD.

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Property settlements after separation: what you need to know

Wed, 04 Mar 2026 03:33:24 GMT

Separation is rarely simple, particularly when property (including businesses and superannuation) and children are involved. One of the most common questions we are asked is: “Who gets what?”

In Australia, property settlements are governed by the Family Law Act 1975 . The process is structured, but outcomes depend heavily on the specific circumstances of each relationship. No each case is the same.

Step 1: Identifying the asset pool

The first step is identifying and valuing the total asset pool. This includes:

Real estate
Savings and investments, including cryptocurrency and shares
Businesses and trusts
Superannuation
Vehicles and personal property
Liabilities and debts

Importantly, the asset pool includes everything owned individually, jointly, or through entities such as companies or discretionary trusts.

Step 2: Assessing contributions

The court then considers the contributions made by each party, including:

Financial contributions (such as income earned by the parties during the relationship, assets brought into the relationship, and the payment of the mortgage, rates and utilities during the relationship and post-separation)
Non-financial contributions (such as renovations conducted on any real estate during the relationship and post-separation, care provide to family members, and the completion of housework)
Homemaker and parenting contributions

Contributions are not assessed in dollar terms. Raising children or supporting a partner’s career are recognised as relevant contributions.

Step 3: Future needs

The court also considers future factors, which include (but are not limited to):

Income earning capacity
Age and health
Care of children
Length of the relationship

Adjustments may be made if one either party have a future need.

Time limits apply

Strict time limits exist:

Married couples must apply for property settlement within 12 months of a divorce order being made.
De facto couples must apply within 2 years of separation.

Missing these deadlines can significantly complicate your position, such it is important to get advice regarding your matter as soon as possible after separation to avoid being “out of time”.

Do I need to go to court?

Most property settlements are resolved through negotiation (whether through parties themselves or solicitor correspondence) or mediation. Court proceedings are generally a last resort. However, formalising any agreement through Consent Orders or a Binding Financial Agreement is critical to ensure finality and protection from future claims.

Early advice makes a difference

Every separation is different. Business structures, trusts, inheritances and superannuation can significantly affect outcomes.

Obtaining early legal advice helps clarify:

The likely asset pool
Your contribution position
Potential future needs adjustments
Strategic options for resolution

If you are considering separation or have recently separated, our family law team can provide clear, practical guidance tailored to your circumstances.

Do you need family law advice? Kells specialises in all areas of family law and have a team of experienced dedicated family lawyers conveniently located throughout Sydney and the Illawarra.

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Understanding claims for psychological injuries after a fatal road accident

Wed, 04 Mar 2026 01:04:17 GMT

The occurrence of fatal road accidents are a tragic reality of people using our roads to travel and get around.

Sadly earlier this week a cyclist in Dapto was allegedly struck by a bus and died due to his injuries. The outcome of an accident like this has consequences, not just for the untimely death of the cyclist but also for their family and persons who may have witnessed the fatal accident at the scene.

Although it is reported that no one else was physical injured in this incident, it is possible that people may suffer a psychological injury as a result of having witnessed a tragic event such as this. Even close family members of a deceased person injured in a motor vehicle accident may suffer a psychological injury as a result of their untimely and tragic death. Psychological injuries may not be as obvious or visible as physical injuries and people who suffer psychological injuries may not realise they have sustained any injury unless and until they seek the opinion of a qualified medical practitioner or psychologist.

People who have suffered a physical or psychological injury as a result of a motor vehicle accident may be entitled to compensation. This may also include people who have witnessed a motor vehicle accident that has resulted in a serious or fatal injury to another person or family members to a person injured or killed in a motor vehicle accident. If you or somebody you know has witnessed a tragic motor vehicle accident that has resulted in the death or serious injury of another person and believe that as a result, you may have suffered a psychological injury, you should discuss your potential rights and entitlements to compensation with our team of compensation lawyers.

Your potential entitlements to compensation may include:

payment of your regular weekly salary while you recover
treatment expenses
a claim for pain and suffering
where you may not be able to return to work indefinitely, a claim for your future economic loss.

It is important that you seek legal advice early with respect to your rights and entitlements to motor accident claims, especially within the first three months since the date of the injury.

Being involved in or witnessing a road accident can be overwhelming and upsetting. At Kells, we understand what you’re going through and are here to help. Speak with one of our experienced personal injury lawyers for guidance on your options and whether you may be entitled to a claim. Our services are offered on a no win, no fee basis, with a free initial consultation, so you can focus on your recovery.

Have questions or need legal guidance?

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Kells Kiama Sevens delivers a spectacular 2026 tournament

Wed, 04 Mar 2026 00:34:46 GMT

The 2026 Kells Kiama Sevens has once again cemented its place as one of Australia’s premier rugby sevens tournaments, drawing elite teams, passionate supporters, and the wider community together for a day where speed met spectacle and tradition met ambition.

Held at the iconic Kiama Showground, the tournament delivered fast-paced rugby, electric sideline energy, and a standard of competition befitting its reputation as the Southern Hemisphere’s longest-running sevens event.

In a gripping Cup Final, Manly defeated Easts, claiming the 2026 title in emphatic fashion. The final showcased the very essence of sevens rugby, precision, pace and pressure, thrilling the crowd from first whistle to final siren.

Kells Lawyers congratulates Manly on their championship victory, Easts on an outstanding campaign, and all divisional winners and participating clubs whose skill and sportsmanship defined the day.

Beyond the scoreboard, the Kiama Sevens remains a powerful engine for community impact. Through the Kiama Sevens Foundation and the enduring work of the Kiama Rugby Union Club, proceeds from the tournament are reinvested directly into grassroots rugby — supporting junior development pathways, coaching programs, player welfare initiatives, and the long-term sustainability of the sport within the region.

The event also continues to deliver meaningful economic benefits to the local area, with visiting teams, families and supporters contributing to accommodation providers, hospitality venues and local businesses throughout the weekend. For Kiama, the Sevens is more than a tournament; it is a celebration of community identity and regional pride.

Kells Lawyers commits to a further two years as Naming Sponsor

Following the success of the 2026 tournament, Kells Lawyers is proud to confirm its commitment as naming sponsor of the Kells Kiama Sevens for a further two years.

This renewed partnership provides the strategic certainty required for organisers to plan ambitiously for future tournaments, enhancing player experience, strengthening commercial partnerships, and ensuring the long-term growth of the event.

“As a firm deeply embedded in the Illawarra and Shoalhaven region, our commitment to the Kiama Sevens is about more than sponsorship,” said Paul Magagnino, Managing Partner at Kells. “It’s about investing in community, backing grassroots sport, and supporting an event that brings extraordinary energy and opportunity to the Kiama region. Securing our partnership for another two years allows the tournament to plan strategically and build on its remarkable legacy.”

With the extended sponsorship in place, anticipation is already building for the next chapter with the 2027 Kells Kiama Sevens set to take place on 27 February 2027.

Kells Lawyers looks forward to standing alongside players, volunteers, sponsors and supporters as the tournament continues to evolve, proudly championing rugby excellence while reinvesting in the community that makes it possible.

For more information, visit Kells Kiama Sevens .

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

From laps to legacy: Kells backs Dapto Swimming Club

Tue, 24 Feb 2026 23:22:01 GMT

As Dapto Swimming Club celebrates 60 remarkable years of fostering swimming talent, community spirit, and family fun, Kells is proud to have supported last Sunday’s milestone carnival as a Lane Sponsor.

Being a lane sponsor isn’t just about signage or a name on the pool deck, it is about investing in the heartbeat of Dapto and the wider community. It is about encouraging young swimmers, celebrating local achievements, and supporting an inclusive environment where families and athletes thrive. Through sponsorship, we are helping the club provide opportunities for its swimmers, honour decades of history, and continue fostering the friendly, family atmosphere that makes Dapto Swimming Club so special.

“Supporting Dapto Swimming Club is more than sponsorship, it’s an investment in community, opportunity, and the next generation of talent,” said Paul Magagnino, Managing Partner at Kells. “We are proud to give back to the region that gives so much to all of us and to play a part in helping young swimmers reach their potential.”

From families and swimmers to volunteers and committee members, the carnival was a true celebration of sport, teamwork, and local pride.

This sponsorship reflects Kells’ ongoing commitment to local partnerships that make a difference through events like this, the firm continues to see the value of investing in relationships that go beyond the office.

For more information, visit Dapto Swimming Club .

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

E-Bikes and scooters: know your legal rights

Wed, 04 Feb 2026 23:34:40 GMT

In the last few years, the number of people who own and operate electric bikes and scooters has risen. As these electric bikes and scooters become more affordable many people are choosing to upgrade from their previously non-electric counterparts to speed up their method of transport. Not to mention, these electric bikes and scooters can be fun.

Although there has always been the possibility of road accidents for non-electric bikes and scooters – many of us now ask ourselves – ‘are these electric bikes and scooters more dangerous than the non-electric ones’? Although this a complex question and not one that this article will answer the reality is – what are your legal rights and entitlements if you are involved in an accident and injured while riding an electric bike or scooter.

Fortunately, in New South Wales, if you have been injured in an accident while riding your electric bike or scooter (or even if you were a passenger) or if you have been injured as a result of being in an accident with an electric bike or scooter – you may be entitled to compensation.

Your potential entitlements to compensation may include:

payment of your regular weekly salary while you recover;
treatment expenses;
a claim for pain and suffering; and
where you may not be able to return to work indefinitely, a claim for your future economic loss.

Road accidents can be serious and lifechanging.

It is important that you seek legal advice early with respect to your rights and entitlements to motor accident claims, especially within the first three months since the date of your injury.

Here at Kells, our compensation team is always ready and happy to help people with advice that they need to navigate their rights and entitlements after an injury.

If you, or somebody you know, have been injured while riding your electric (or non-electric) bike or scooter, and need help or advice navigating rights and entitlements to compensation, please reach out – we are here to help and are only a phone call or online enquiry away.

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NSW criminal records what appears and what you need to know

Mon, 02 Feb 2026 23:49:38 GMT

A criminal record is an official record of a person’s criminal convictions and interactions with the criminal justice system. What shows up on your record during a background check can vary depending on the type of offences and who is conducting the check.

Are all offences included in my criminal record?

Not every offence results in a criminal record. Some minor offences can be dealt with by Police on the spot (sometimes called an infringement or a ‘ticket’), rather than through the courts. This is usually a matter of discretion for the police, depending on the seriousness of the offence.

If your matter goes to court and you are found guilty and sentenced, it will appear on your criminal record.

How long does a criminal record last in NSW?

Your criminal record is usually permanent, and a lifelong record is held by the police and the courts. However, some convictions can be:

“Quashed” (overturned by the court)
“Extinguished” (for certain historical offences which are no longer crimes), or
Become “spent”, meaning they aren’t fully erased but become non-disclosable in most situations.

What are ‘spent’ convictions?

In NSW, the Criminal Records Act 1991 creates a scheme which allows minor criminal convictions to become "spent" after a crime-free period. Once a conviction is spent, you generally don't need to disclose it and it usually won’t show on a police check.

This scheme was designed to prevent discrimination for people who have demonstrated a change in behaviour.

There are exceptions to this scheme for more serious crimes and disclosure for certain jobs like teaching and policing.

All offences can become “spent”, except:

Convictions with prison sentences of more than 6 months
Convictions for sexual offences
Convictions imposed against bodies corporate
Any offences set out in the regulations.

Note: The “spent” convictions scheme applies to offences and convictions in jurisdictions outside of New South Wales (such as other states) which correspond (or which correspond as closely as possible) to the relevant New South Wales offences and convictions.

When is a conviction spent?

Under Section 8(1) of the Criminal Records Act 1991 a conviction is spent on completion of the relevant ‘crime free’ period. This is automatic and you do not need to apply to have a conviction spent after the crime free period.

For adults, this period is 10 consecutive years after the date of the conviction, during which:

The person has not been convicted of an offence punishable by imprisonment
The person has not been in prison because of a conviction for any offence and has not unlawfully been at large
There is no statutory or prescribed exclusion that applies.

For convictions in the Children’s court, this period is 3 consecutive years, where:

The person has not been subject to a control order, and
The person has not been convicted of an offence punishable by imprisonment, and
The person has not been in prison because of a conviction for any offence and has not been unlawfully at large.

Who can see my “spent” convictions?

If a conviction is “spent”, you generally do not have to disclose it, and any questions about your criminal history are taken to refer only to unspent convictions.

However, there are exceptions. Spent convictions may still appear when checks are made for certain roles, including:

working with children
police officers / law enforcement
teachers and teacher’s aides
disability support work
corrective services staff
in immigration detention centres
firefighting or fire prevention

Law enforcement agencies, including all State and Territory police, can also access and share information about spent convictions to other law enforcement agencies and the court. Archives and libraries can also disclose to a member of public or to another library or archive material that contains information relating to spent convictions if the material is normally available for public use.

Can someone disclose my spent convictions?

It is an offence for anyone with lawful access to conviction records to disclose information about spent convictions without lawful authority. The maximum penalty for doing so is $5,500 fine and/or 6 months imprisonment.

It is also an offence to obtain or attempt to obtain information concerning a spent conviction fraudulently or dishonestly, and this carries the same penalty.

If you have a criminal record and are unsure about what will show up, or whether a conviction is spent, you should get in touch with a criminal lawyer. Contact our highly experienced criminal and traffic law team for a FREE consultation to help you understand your criminal record and what it means for you.

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Former Kells Lawyers Chairman of Partners Roger Downs Awarded OAM

Fri, 30 Jan 2026 23:25:39 GMT

Kells Lawyers proudly acknowledges the outstanding achievement of former Partner Roger Downs, who has been awarded the Medal of the Order of Australia (OAM) as part of the 2026 Australia Day Honours.

This prestigious national honour recognises Mr Downs’ decades-long commitment to community service throughout the Illawarra. Fewer than one thousand Australians were recognised this year, with recipients selected by the independent Council for the Order of Australia following a comprehensive assessment process.

After concluding a legal career spanning more than four decades in the Illawarra, Roger stepped away from day-to-day practice but did not step away from public life. He has continued to dedicate his knowledge and experience to community and not-for-profit organisations across the region he has called home since 1979. Over many years he has contributed his professional skills to assist a range of institutions focused on health, justice and community wellbeing, offering strategic, legal and governance support to organisations including the NSW Justice Health and Forensic Mental Health Network, Illawarra Shoalhaven Local Health District, the Law Society of NSW and the Illawarra Credit Union.

Roger’s long-standing involvement with Warrigal further reflects his commitment to service and leadership. His association with the organisation began in 1997 when he became a company member and shortly thereafter joined the Board, later being appointed Vice Chairman. In recent years he led the Board Risk and Audit Committee through a significant period of reform within the aged care sector and continues to serve on key governance committees. His steady guidance and oversight have contributed to Warrigal maintaining exemplary governance standards, including achieving full compliance with all Aged Care Quality Standards.

Managing Partner of Kells Lawyers, Paul Magagnino, congratulated Roger on the honour, stating, “Roger’s contribution to both the legal profession and the broader community has been exceptional. His integrity, dedication, and commitment to service set a standard we are incredibly proud of. This recognition is richly deserved, and everyone at Kells Lawyers extends their warmest congratulations on this remarkable achievement.”

Roger Downs’ recognition reflects a lifetime of professional excellence, volunteer leadership, and enduring service to the Illawarra community. Kells Lawyers joins community members and colleagues in celebrating this well-earned honour.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Australia's 2025–26 permanent migration program: key insights

Mon, 26 Jan 2026 23:39:23 GMT

The Australian Government has recently confirmed the planning levels for the 2025–26 permanent Migration Program, maintaining a cap of 185,000 places to balance economic needs with sustainable population growth. This program plays a crucial role in attracting skilled talent, supporting family reunion, and addressing labour market shortages across the country. In this article, we'll break down the key components, highlight notable changes from previous years, and discuss what this means for prospective migrants.

Overview of the program streams

The 2025–26 program is divided into three main streams, with a strong emphasis on skills to boost Australia's productive capacity:

Skill Stream: Allocated 132,200 places (about 71% of the total program). This stream focuses on filling skill gaps, particularly in regional areas, and includes categories such as Employer Sponsored (44,000 places), Skilled Independent (16,900), Regional (33,000), State/Territory Nominated (33,000), Business Innovation & Investment (1,000), and the new Talent and Innovation category (4,300).
Family Stream: Comprising 52,500 places (around 28%), this stream prioritises reuniting families. It includes Partner visas (40,500 indicative places), Parent (8,500), Child (3,000 indicative), and Other Family (500). Note that Partner and Child categories are demand-driven, meaning the actual numbers may vary based on applications.
Special Eligibility Stream: A smaller allocation of 300 places for unique circumstances, such as permanent residents returning after time abroad.

Notable changes and priorities

Compared to 2023–24, the overall cap has been reduced and stabilised at 185,000 places, reflecting a shift towards more targeted migration. Key updates include the introduction of the Talent and Innovation category, which aligns with the new National Innovation Visa aimed at exceptional talent. This replaces older global talent pathways and emphasises state specific needs.

The program continues to prioritise regional and state-nominated visas, which together make up 50% of the Skill stream. This focus helps address local labour challenges and supports economic growth in less populated areas.

Other developments include visa fee increases and higher income thresholds effective from 1 July 2025, which applicants should factor into their planning. Tighter priorities for skilled visas and changes to invitation rounds for visas like the 189 also aim to better match migrants' skills with Australia's needs.

What this means for applicants

For skilled migrants, the stable allocations in employer-sponsored and regional categories offer opportunities, but competition remains high in independent streams. Family applicants can expect consistent processing for partners and parents, though demand-driven categories may see fluctuations.

If you're considering migrating to Australia, it's essential to stay informed about these changes and ensure your application aligns with current priorities. Professional advice can make all the difference in navigating complex requirements.

At Kells, our migration law experts are here to guide you through the process. Whether you're exploring skilled pathways or family reunification, contact us today for personalised assistance.

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New Year, new you: why making a Will should be a priority for 2026

Mon, 05 Jan 2026 22:33:49 GMT

The start of a new year is often a time for fresh goals and positive change. Many of us focus on health, finances, or personal growth, but one crucial task is often overlooked: making a Will. In New South Wales (NSW), having a legally valid Will is the most effective way to ensure your wishes are carried out and your loved ones are protected.

Why having a Will matters in NSW

A Will sets out how your assets will be distributed after your death. Without one, your estate is distributed according to t he NSW intestacy laws, which m ay not reflect your personal wishes or family circumstances. This can result in delays, legal complications, or disputes among family members during an already difficult time.

By having a properly drafted Will, you can:

Decide who inherits your assets
Appoint a trusted executor to manage your estate
Nominate guardians for minor children
Minimise the risk of family disputes
Ensure clarity and certainty for your loved ones.

Life changes and your Will should change too

Major life events such as marriage, divorce, the birth of children, purchasing property, or starting a business can all affect your estate planning needs. NSW law recognises that a Will can become outdated after such changes. A new year is the perfect opportunity to review your Will and ensure it reflects your current circumstances and intentions.

Even if you already have a Will, it may not comply with NSW legal requirements. A Will must meet specific conditions to be valid in NSW, including being signed by you and witnessed correctly in the presence of two independent persons.

Peace of mind for you and your family

One of the greatest benefits of making a Will is peace of mind. Knowing that your affairs are in order can relieve anxiety and give you confidence that your loved ones will be cared for according to your wishes. For your family, a clear and legally valid Will can significantly reduce emotional and financial stress.

Start the year prepared

“New year, new me” is not just about personal goals, it is about planning ahead and protecting what matters most. Making a Will in NSW is a simple but powerful step toward securing your legacy and caring for those you love.

If you have been putting it off, now is the time to act. A professionally prepared Will ensures your wishes are clear, your assets are protected, and your future is planned with confidence. Contact us to make an appointment to discuss and plan for your future .

Navigating the probate process in NSW: tips for executors in 2026

Fri, 02 Jan 2026 00:07:37 GMT

Losing a loved one remains one of life's most difficult experiences, and the responsibilities of administering their estate can add significant burden. In New South Wales, sec uring a grant of probate co ntinues to be an essential step for many executors to lawfully handle and distribute the deceased's assets. With the NSW Supreme Court's Online Registry now well-established as the primary platform for uncontested applications, the process is more digital and efficient than ever, yet ongoing high volumes can still lead to delays.

As dedicated wills and estates lawyers, the Kells team regularly guides executors through these matters, helping to ensure compliance while easing the emotional and administrative load.

What is probate and when is it required?

A grant of probate is a court order validating the will and empowering the executor to manage the estate's assets, including property, bank accounts, shares, and any superannuation directed to the estate.

Probate is generally required for substantial assets held solely in the deceased's name, such as:

Real estate (not jointly owned)
Bank or investment accounts exceeding institutional thresholds (typically $50,000–$100,000)
Shares or securities.

Jointly held assets pass directly to the surviving owner, and small estates may not need probate. Without a Will, the process involves applying for letters of administration.

The probate application process in 2026

The mandatory use of the NSW Supreme Court's Online Registry for most uncontested applications, in place since 2023, remains the standard. Key steps include:

Publish a Notice of Intention: At least 14 days prior to filing, allowing time for potential claims.
Prepare and Lodge Documents: Upload the original will, death certificate, asset inventory, and affidavits via the online system.
Court Assessment: The registry reviews the application; requisitions for additional information are frequent if documents are incomplete.
Grant Issued: Approved grants are delivered digitally.

Processing times fluctuate with demand, but straightforward cases are typically resolved in 4–8 weeks. More complex matters or those requiring requisitions may extend beyond this.

Common challenges and how to avoid delays

Executors often face hurdles that extend timelines:

Errors in documentation (e.g., mismatched names, incomplete valuations)
Disputes among beneficiaries or untraceable parties
International assets needing extra verification
Slow responses to court requisitions.

Best practices to streamline the process:

Collect documents and valuations promptly.
Notify beneficiaries early.
Use professional services for accurate online submissions.
Respond swiftly to any court requests.

How Kells can assist you

We have a team of highly experienced lawyers who can manage your entire application, from document preparation and lodgement to addressing requisitions.

We prioritise empathetic, clear guidance to help you fulfil your duties efficiently and honour your loved one's intentions.

If you're an executor seeking support with probate, letters of administration, or related estate issues, reach out for a confidential consultation . We're committed to making this process as smooth as possible for you.

Navigating companion animals in family law property settlements

Thu, 01 Jan 2026 00:00:09 GMT

In the ever-evolving landscape of Australian family law, recent amendments to the Family Law Act 1975 have introduced significant updates aimed at making property settlements fairer and more reflective of modern family dynamics. One noteworthy change, effective from June 2025, allows courts to formally consider companion animals (commonly known as family pets) when dividing property after separation.

For many Australian families, pets are cherished members of the household, providing emotional support and companionship, especially during challenging times like relationship breakdowns. Previously, pets were often treated simply as property under the law, similar to furniture or vehicles, with ownership determined based on contributions or legal title. This approach frequently led to emotional disputes and overlooked the wellbeing of the animal and the bonds formed with family members.

Key changes introduced

The Family Law Amendment Act 2024 recognises the unique role pets play in families by empowering courts to make specific orders regarding companion animals in property proceedings. Courts can now:

Determine who retains ownership of the pet.
Order the transfer of ownership from one party to the other or a sale of the pet. Consider factors such as the pet's welfare, the emotional attachment of family members (including children), and any history of care provided by each party, among other factors.

These provisions build on broader reforms that emphasise fairness, including the explicit recognition of economic impacts from family violence. While pets are still classified as property (not children), this update ensures decisions are more holistic and compassionate.

Importantly, these changes apply to both married and de facto couples, and they encourage parties to reach agreements outside of court where possible, through negotiation, mediation, or consent orders.

Practical implications for separating couples

If you and your former partner disagree about who keeps the family dog, cat, or other pet:

Prioritise Agreement: Many couples successfully resolve pet arrangements amicably, often agreeing on primary ownership based on practical factors like living arrangements and the pet's routine.
Consider the Pet's Best Interests: Courts will look at evidence of who has been the primary carer, veterinary records, the ability of each party to care for the animal without support from the other party and the impact on children if applicable.
Seek Early Advice: Documenting your contributions (e.g., purchase receipts, vet bills) can strengthen your position.

At Kells, our experienced family law team has seen how disputes over pets can add unnecessary stress to an already difficult process. We recommend addressing this issue early in property settlement discussions to avoid prolonged conflict.

How Kells can assist you

Our accredited family law specialists in Wollongong, Sydney, and the Illawarra are up-to-date with the 2025 amendments and can guide you through property settlements that consider all assets, including your beloved pets. We focus on practical, client-centred solutions, whether through mediation or court applications, to achieve fair outcomes efficiently.

If you're navigating separation and have questions about pets, property division, or any family law matter, contact us for a confidential initial consultation . We're here to support you during this transition.

What are the workers’ compensation changes in 2026?

Thu, 18 Dec 2025 03:35:32 GMT

Early last year the NSW Parliament had proposed reforms to the Workers Compensation legislation which were set to have significant impacts on injured workers across NSW and especially those who have suffered a psychological injury. The most contentious of the proposed changes was an increase to the Whole Person Impairment threshold required under the legislation for psychological injuries to be raised from the current 15% up to 30%.

The original proposal and early concerns

It was noted by a number of commentators that this was an overly restrictive threshold under the current assessment regime and may have the effect of excluding a number of injured

workers from receiving benefits. This caused extended parliamentary discussions with respect to the proposed reforms, and as a result, the implementation of these reforms was put on hold while they were debated.

In November 2025, it was announced that certain agreements had been reached in Parliament and that these changes would come into effect under the Workers Compensation Legislation Amendment Bill 2025. However, at this time, no changes were agreed upon as to the Whole Person Impairment threshold increase for psychological injuries.

Within a few weeks, in early December 2025, it was confirmed that there would be an increase to the Whole Person Impairment threshold and that this would be raised to 25%. It was also noted that the NSW Chief Psychiatrist would be investigating whether other assessments regimes may be more appropriate to determining Whole Person Impairment than the currently implemented regime. Although the 25% Whole Person Threshold is lower than the earlier proposed 30% - this still raises a number of concerns for Workers who have already suffered a psychological injury under the current Workers Compensation scheme and for persons who may suffer a psychological injury in the future.

Key legislative changes under the amendment bill

Some of the significant changes that are to be incorporated into the current legislation following the implementation of the Workers Compensation Legislation Amendment Bill 2025 include:

Changes to the definitions of key words in legislative instruments in relation to psychological injuries;

Referral of certain psychological claims to the Industrial Relations Commission (instead of the Personal Injury Commission);

Permeant impairment assessments to be by one medical assessor;

Psychological injury weekly payments to be capped at 130 weeks unless a Worker is found to have a Whole Person Impairment assessment of 21% or higher; and

Changes to the definition of what is required for medical treatment approval from ‘reasonably necessary’ to ‘reasonable and necessary’.

There is still much uncertainty as how these changes and the proposed increase of the Whole Person Impairment threshold will impact workers who fall under the Workers Compensation scheme.

How Kells can help you

Here at Kells the Lawyers, our Compensation Team is keeping up to date with these changes are ready to help people with the support and advice they need as these changes are implemented and begin to have effect.

If you, or somebody you know, have been injured at work and need help or advice navigating rights and entitlements to Workers Compensation, reach out , we are here to help and are only a phone call or online enquiry away.

NSW Bail Laws just got tougher: what the 2024 – 2025 changes really mean

Wed, 03 Dec 2025 21:50:38 GMT

If you or someone you know has been charged with a serious offence in New South Wales lately, you’ve probably noticed one thing: getting bail isn’t as straightforward as it used to be.

Major amendments to the Bail Act 2013 that took effect from mid-2024 have dramatically tightened the rules. The NSW Government’s stated aim was to reduce re-offending while on bail, particularly for domestic violence, youth crime, and serious property and firearms matters. The result? Far more people are spending weeks, or months, in custody before their trial even begins.

The key changes at a glance

Expanded “show cause” requirement: Now applies to a longer list of serious offences including aggravated break-and-enter, commercial drug supply, and certain firearms offences. The accused must positively prove why their detention is not justified.
Heavier emphasis on “unacceptable risk”: Courts must give greater weight to criminal history, patterns of offending, and the need to protect the community and victims.
Presumption against bail strengthened for repeat domestic violence offenders and high-risk youth matters.
More use of electronic monitoring and strict conditions when bail is granted.

What this means in the real world

First court appearances are now make-or-break. Magistrates expect comprehensive submissions, character references, employment letters, proof of drug or alcohol counselling, sureties, right from day one.
Self-representation is riskier than ever. Missing the “show cause” argument or failing to address risk factors properly almost guarantees a trip to the cells.
Appeals to the Supreme Court are on the rise, but they’re costly and stressful.

At Kells, we’re still successfully obtaining bail for clients every week by preparing targeted applications that directly address the new tests. Whether it’s a young tradie charged with aggravated B&E in Wollongong or a parent facing repeat AVO breaches in Western Sydney, early and skilled intervention is making the difference.

Don’t leave it to chance

The law has changed, but your right to apply for bail, and to have an experienced lawyer fight for it, hasn’t.

Kells’ criminal law team is available 24/7 . Call us now on 0410 593 059 or submit an online enquiry for urgent, confidential advice. In the new bail landscape, time and expertise matter more than ever. Contact Kells today.

Kells Lawyers teams up with Dapto Cricket Club for Inaugural Women’s Side

Tue, 02 Dec 2025 21:41:48 GMT

Kells is proud to announce its sponsorship of the inaugural women’s cricket team at Dapto Cricket

Club, one of the Illawarra region’s oldest and most respected cricket clubs.

Founded in 1857, Dapto Cricket Club, affectionately known as the “Canaries,” has a long-standing

tradition of fostering cricket at all levels, from juniors to seniors. This season, the club will take an

important step toward inclusivity and growth in local sport by launching its first-ever women’s

team.

As the naming sponsor, Kells will support the team’s development, providing resources,

equipment, and community engagement opportunities to help the players thrive on and off the

field. The sponsorship highlights Kells’ commitment to supporting grassroots sport and

empowering women in the community.

"We are thrilled to partner with Dapto Cricket Club for this historic moment", said Paul Magagnino,

Managing Partner at Kells. "Supporting the first women’s team is not only about cricket — it’s

about fostering community, inclusion, and opportunity for aspiring female athletes in the Illawarra.”

This sponsorship reflects Kells’ ongoing commitment to local partnerships that make a difference

through events like this, the firm continues to see the value of investing in relationships that go

beyond the office.

For more information, visit Dapto Cricket Club’s website .

Kells has grown to become a leading full-service law firm in Sydney and the Illawarra region,

working alongside our clients and evolving our services to meet our clients’ changing needs. We

have a team of passionate, energetic, and client-focused legal professionals with over 70 staff

based across 6 offices in Sydney and throughout the Illawarra.

For more information contact:

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Busting common myths about Wills in NSW: what you need to know in 2026

Fri, 28 Nov 2025 21:54:53 GMT

Wills are one of those things we all know we should sort out, but too often, misinformation keeps us from getting it right. In New South Wales, where the Succession Act 2006 governs how your estate is handled, myths about Wills can lead to costly family disputes, invalid documents, or even unintended tax hits. With estate values rising amid property booms in Sydney and regional spots like the Southern Highlands, now's the time to separate fact from fiction.

We've seen it all at Kells, from DIY Wills that unravel in court to clients shocked by superannuation surprises. Here are four of the biggest myths we hear every week, debunked with NSW specific insights.

Myth 1: "My Will is done, I don't need to review or update it"

Reality: Life changes fast, whether it be a new baby, a marriage breakdown, or the purchase of property. Under NSW law if you marry your current Will is automatically revoked unless it states otherwise.

Pro Tip: Review your Will with an experienced solicitor every three to five years, or after major life events.

Myth 2: "I do no need a Will, I have nothing"

Reality: To ensure your assets whether large or small are passed to the person who you wish to inherit your items, you need a Will in place. Under NSW law, there is a set order of how your estate will be distributed if you die without a Will. This means your personal items could end up in the hands of a person who you do not want to leave anything to.

Pro-Tip: We handle cases where people die without a Will which can cause significant stress on family members or close loved ones who believe the person had alternate intentions. Save the drama and get a Will in place!

Myth 3: "I can disinherit my child completely or leave them $1 so they cannot challenge my Will"

Reality: While you have testamentary freedom, under NSW law adult children can still contest your Will if they can prove "inadequate provision" for their proper maintenance, especially if they are facing hardship.

Pro-Tip: You need to protect your estate in the best way possible which could mean changing the structure of your assets or leaving further documents to support your testamentary wishes as to why you do not want your child to receive an inheritance.

Myth 4: "Superannuation and joint assets automatically go to my partner"

Reality: Not always. Super death benefits will follow your binding nomination (pending the validity) which will bypass the wishes in your Will entirely. Jointly owned property passes to the surviving person mentioned on title. Sometimes you may forget that you nominated a beneficiary for your super who is not your partner or you may own a property with another person who is not your partner.

Pro-Tip: Ensure your binding death benefit nomination is up to date and that your jointly owned assets are owned with a person whom you wish to inherit your share on your death.

The Bottom Line: do not let these common myths affect your estate

Wills are not just legal documents, they are your final gift to your family, minimising stress and maximising what they receive. In the evolving landscape of NSW, a tailored Will is more crucial than ever.

At Kells, we're here to cut through the noise with expert advice across Sydney and the Illawarra region. Your peace of mind starts with one call, let's make sure your Will is myth-proof.

Kells tees up the support for The Disability Trust as Platinum Sponsor of Annual Charity Golf Day

Fri, 14 Nov 2025 06:04:07 GMT

Kells is proud to be the Platinum Sponsor of the annual Disability Trust Charity Golf Day, held at

The Links, Shell Cove on Friday 14 November.

This much-loved community event brings together local businesses, golfers, and supporters for a

day of sport, connection, and giving back, all in support of The Disability Trust’s Sport and

Recreation programs.

As Platinum Sponsor, Kells is honoured to stand alongside The Disability Trust in their mission to

enrich the lives of people with disability through inclusive, community-based activities. All

proceeds from the event go directly to these vital services, helping individuals build confidence,

friendships, and independence through sport.

“We’re thrilled to support an event that reflects our values of inclusion, community, and

meaningful impact,” said Michael Hatfield, Partner at Kells. “The Disability Trust does incredible

work, and we’re proud to help raise awareness and funds for their programs.”

The Golf Day promises a full day of fun, including a round of golf, lunch, prizes, and plenty of

laughs. Kells team members will be on-site throughout the day, proudly connecting with fellow

attendees.

This sponsorship reflects Kells’ ongoing commitment to local partnerships that make a difference

through events like this, the firm continues to see the value of investing in relationships that go

beyond the office.

For more information about the event visit The Disability Trust .

Kells has grown to become a leading full-service law firm in Sydney and the Illawarra region,

working alongside our clients and evolving our services to meet our clients’ changing needs. We

have a team of passionate, energetic, and client-focused legal professionals with over 70 staff

based across 6 offices in Sydney and throughout the Illawarra.

For more information contact:

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Australia Partner Visa Requirements: tips for a successful application

Wed, 01 Oct 2025 07:08:03 GMT

If you are in a genuine relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen, the Australia Partner Visa allows you to live in Australia with your partner. Whether you are married, in a de facto relationship, or engaged, understanding the visa types, requirements, and application process is essential.

Types of Australia partner visas

There are several subclasses depending on your location and relationship status:

Subclass 820/801 (Onshore Partner Visa): For applicants already in Australia. The 820 is temporary, and the 801 is the permanent visa stage.
Subclass 309/100 (Offshore Partner Visa): For applicants outside Australia. The 309 is temporary, and the 100 is permanent.
Subclass 300 (Prospective Marriage Visa): For fiancés planning to marry an Australian citizen or permanent resident.

Australia partner visa eligibility requirements

To qualify for a partner visa in Australia, you must meet the following:

Relationship Status: Must be married or in a genuine de facto relationship. De facto relationships generally require 12 months of cohabitation.
Health and Character Checks: Applicants must meet medical and character requirements, including police clearances.
Sponsor Requirements: Your partner (sponsor) must be an Australian citizen, permanent resident, or eligible New Zealand citizen.

Evidence required for Australia partner visa

A successful application depends on strong evidence proving your relationship is genuine and ongoing:

Shared Finances: Joint bank accounts, bills, or property ownership.
Living Arrangements: Shared lease agreements, utilities, or household responsibilities.
Social Recognition: Photos together, invitations, or communication showing your relationship is recognised by friends and family.
Commitment: Evidence of shared life plans, mutual obligations, and long-term commitment.

Processing times and costs

Processing times vary depending on visa subclass.

Costs include:

Visa application fee
Health checks
Police clearances
Translation of documents (if required)
Optional legal or migration agent fees

Tips for a strong Australia partner visa application

Collect evidence early to avoid delays.
Ensure all documents are accurate, consistent, and complete.
Include multiple types of evidence: financial, social, and household.
Be transparent about previous relationships or visa history.

Applying for an Australia partner visa can be complex, but careful preparation, thorough evidence, and understanding eligibility requirements can significantly improve your chances of a successful application.

Do you need immigration advice? Our migration/immigration law team at Kells specialises in supporting individuals and employers with migration matters. We recognise the obstacles and stress involved in visa and citizenship processes, both for individuals hoping to make Australia their home and for businesses aiming to bolster their workforce with overseas talent. We are here to ease these challenges.

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Cold case justice: Sydney’s Night Stalker rapist finally caught

Wed, 01 Oct 2025 07:06:42 GMT

After more than 30 years, Glenn Gary Cameron, known as Sydney’s “Night Stalker,” has pleaded guilty to 13 sexual assault charges committed in the early 1990s.

NSW police solved the case using advanced DNA technology. Evidence from four victims was linked to Cameron through a familial match with his daughter. Police then discreetly collected his DNA from a beer glass and fork at Sydney International Airport, confirming the match and leading to his arrest.

Cameron, now 61, had lived a seemingly ordinary life while evading justice, working at a funeral parlour and raising a family. He is scheduled to be sentenced in October 2025.

This case demonstrates the growing role of forensic science in criminal investigations. Even decades-old cases can be reopened and solved, showing that serious crimes are never truly forgotten.

At Kells Lawyers, our criminal law team understand the complexity of criminal cases and the importance of forensic evidence. Whether defending clients in contemporary cases or providing guidance on historical matters, our experienced criminal law team is here to protect your legal rights.

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Separation under one roof: Family law advice

Wed, 01 Oct 2025 07:04:48 GMT

Sometimes living together following a separation is necessary for a range of reasons, but it comes with important legal implications. Here’s what you need to know under Australian family law:

Proof of separation

Courts may sometimes need evidence that a genuine separation has occurred, particularly if the parties do not agree on a date of separation.
Factors considered by the court can include the use of separate bedrooms, independent finances, and clearly communicated intentions.

Property settlements

Sharing a home does not prevent either party from seeking a property settlement. Many couples continue to reside together until an agreement has been reached or the property sold.
Seek legal advice to protect your financial interests during this period.

Parenting arrangements

Separation under one roof doesn’t change responsibilities to your children.
Clear routines and written agreements help avoid disputes. Shared parenting still occurs when parents are separated under the one roof.

Financial support

Living together may influence spousal maintenance or child support assessments.
It does not stop either party from making legitimate claims.

Tips for managing separation under one roof

Document sleeping arrangements, finances, and parenting responsibilities.
Document whether homemaking duties (including cooking, cleaning etc) are still being performed by one party for the other or whether you are each undertaking your own now.
Maintain clear boundaries to reduce conflict.
Consult a family lawyer early on to ensure your rights are protected.

Conclusion
Separation under one roof pending a finalisation of property and/or parenting issues is legally possible but requires careful planning. Professional family law advice ensures your rights and responsibilities are safeguarded while navigating this transitional period.

Do you need advice? Our experienced family lawyers in Sydney and the Illawarra are always here to support you. Contact us today.

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Optus Outage in Dapto – compensation claims available

Wed, 01 Oct 2025 06:59:36 GMT

Recently, a major Optus network outage in Dapto left many residents unable to contact emergency services when they were most vulnerable and needing urgent help. The Dapto outages follow a broader outage across the Optus network only days earlier, with such disruptions being linked to several lives lost. Those incidents highlight the devastating consequences of telecommunications failures.

If you or a loved one were affected by this outage, you may be entitled to seek compensation. Our experienced and compassionate personal injury lawyers are here to listen, provide clear advice, and guide you through your options.

We offer a free and confidential consultation, with absolutely no obligation to proceed. Should you decide to move forward with a claim, our services are provided on a no win, no fee basis – meaning you won’t pay legal fees unless your case is successful.

Our offices are conveniently located in Dapto, and we are committed to standing by our community during this difficult time.

Call us today to discuss your situation with a dedicated lawyer who understands the toll such events can take on families.

Does my Will deal with my business?

Wed, 03 Sep 2025 07:25:49 GMT

For many people, their family business is their most valuable asset. Once a person has decided on the structure of their business it is crucial they plan their business succession to ensure they protect the best interests of the business and their family. A well thought out business succession plan not only affects the owners of a business but also their family members and beneficiaries in the event of their death.

What your Will can cover?

Your Will sometimes sets out who inherits your shares or your interest in the business. This can provide certainty, ensure there is a smooth transition and help avoid disputes. If you are the sole owner, your Will may direct that the business be sold, and the proceeds distributed to your beneficiaries.

What can’t my Will deal with?

Many people believe their Will can transfer all of their assets to their loved ones when they pass away. This can have significant consequences when assets are held in entities such as companies or trusts. It is important to review:

Company structures: If the business is run through a company, your Will only deals with the shares you own, not the company assets.
Partnerships: Partnership agreements often set out what happens if a partner dies, which can override the wishes in your Will.
Trusts: If the business operates through a family trust, your Will does not directly control trust assets, and the assets will be dealt with in accordance with the Trust Deed.

Why planning is essential?

To avoid the risk of your family members having no control over your assets when you pass away, a properly devised business succession plan can provide a more thorough understanding of how the business will continue to operate or be distributed. Without clear planning, your family may face uncertainty, delays, or even disputes after your death. Business succession planning, alongside your Will, ensures a smooth transition, protecting the value of the business, and supporting both your family and employees. In the event you do not have a succession plan in place, the Executor of your Will may be burdened with the task of handling the operations of your business and nominating an alternate person to take on the role of carrying out the best interests of the business.

What can I do?

Your Will is an important part of protecting your family business, but it is only one piece of the puzzle. To make sure your wishes are carried out, it is essential to review your business structure, agreements, and succession plan regularly with a lawyer.

Thinking about the future of your family business? Our estate planning team can help you ensure your Will and business succession plan work hand-in-hand.

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How is property settlement determined?

Wed, 27 Aug 2025 00:03:52 GMT

When a couple separates or divorces in Australia, one of the most important legal steps is deciding how to divide their property, assets and debts. This process is called a property settlement , and it can apply whether or not the couple was married or in a de facto relationship.

The Family Law Act 1975 sets out the legal framework, and the courts follow a structured approach to ensure that the division is just and equitable. While many settlements are reached through negotiation or mediation without going to court, the same principles usually apply.

Step 1: Identify and value the property pool

The first step is to identify and value all of the existing assets, liabilities and financial resources of both parties. This step requires all financial disclosure documents to be exchanged.

This includes:

Real estate (family home, investment properties, land)
Bank accounts, shares, superannuation
Vehicles, personal belongings and businesses
Debts, such as mortgages, credit cards, personal loans

All property is included, regardless of whether it is in one person’s name, joint names or held through a company or trust.

Step 2: Assess contributions

The court considers what each party contributed to the relationship, both financially and non-financially.

This can include a consideration of :

Initial contributions (what each person brought into the relationship)
Financial contributions during the relationship (income, paying bills, buying property)
Non-financial contributions (renovations or maintenance work)
Contributions to the welfare of the family (homemaking, parenting)
Contributions after separation (such as paying the mortgage or caring for children)

The court is also required to consider the effect of any family violence to which one party to the relationship has been subjected and the impact of same on the ability of that party to make contributions.

Step 3: Consider the current and future circumstances

The court also looks at the current and future circumstances of each party to ensure fairness.

Factors may include:

The effect of any family violence
Age and health of each party
Earning capacity and employment prospects
Care of children and level of parental decision making
Financial resources available to each person

Step 4: Ensure the outcome is just and equitable

Finally, the court considers whether the proposed division is fair in the circumstances. This does not necessarily mean a 50/50 split—settlements are based on what is reasonable, taking into account contributions and the current and future circumstances of both parties to the relationship.

Resolving property settlements

Most couples reach an agreement through negotiation or with the help of lawyers and mediators. If an agreement is reached, it can be formalised by:

A Binding Financial Agreement, or
Consent Orders approved by the Federal Circuit and Family Court of Australia.

If agreement cannot be reached, the court make a decision about what division will be just and equitable in all the circumstances.

Property settlements in Australia follow a structured process designed to balance past contributions and future needs. Every case is different, and the division depends on the unique circumstances of the couple.

Do you need advice? Our experienced family lawyers in Sydney and the Illawarra are always here to support you and will provide you with a clear property settlement outcome.

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Kells welcomes back Estate Planning Specialist

Thu, 14 Aug 2025 00:04:27 GMT

Kells Lawyers is delighted to announce the return of Nicki McNamara , an experienced estate planning lawyer, to our team. Nicki rejoins the firm after residing overseas for a period of time and will once again be assisting clients from our Shellharbour and Wollongong offices.

With extensive experience in all areas of estate planning, Nicki has a particular passion for helping families and individuals structure their assets and ensure their wishes are clearly documented and respected. Known for her empathetic approach and exceptional legal skills, she is trusted by clients seeking clarity, security, and peace of mind for their future.

Managing Partner Paul Magagnino shared his enthusiasm for Nicki’s return: “We are delighted to have Nicki back at Kells Lawyers. She is a tremendous asset to our firm, and her personable nature and genuine care for clients make her an invaluable member of our team”.

Nicki’s return strengthens Kells Lawyers’ commitment to delivering exceptional, personalised legal services across the Illawarra.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Can I make a claim on an estate without a lawyer?

Fri, 25 Jul 2025 00:22:10 GMT

Yes, it is possible to make a claim on an estate without a lawyer, but it can be complex and challenging to do on your own.

If you believe you have been unfairly left out of a Will or not properly provided for, you may be eligible to make a family provision claim. While you are not legally required to have a lawyer, there are many important factors to consider before applying on your own.

Things you need to do:

Determine if you are eligible to make a claim (e.g. spouse, child, or dependent).
Prepare your legal documents including your summons and affidavit (these documents must adhere with the strict guidelines of the Supreme Court).
File the claim within the limitation period (for New South Wales this is within 12 months from the date of death. Other jurisdictions may have different timeframes).
Understand the Court rules and procedures including what the next steps look like (case management hearings, mediations, and trials).

Risks of not instructing a lawyer to represent you:

You may miss important deadlines or fail to disclosure important information.
Preparing the required paperwork is time-consuming and collating your evidence in accordance with the guidelines can be confusing.
You may not know how to negotiate effectively or respond to legal arguments raised from the opponent.
If your claim is unsuccessful, you may be ordered to pay legal costs for initiating the proceedings, which can exceed $50,000.

Why legal advice helps

An experienced family provision lawyer can help assess the strength of your claim, manage the process, and negotiate a fair outcome, more than often without going to court.

Do you need advice? Reach out to our highly experienced and successful family provision lawyers today.

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How do I make a TPD insurance claim?

Fri, 25 Jul 2025 00:19:16 GMT

If you’re unable to work due to illness or injury, you may be eligible to make a Total and Permanent Disability (TPD) insurance claim through your superannuation fund or a standalone policy – and often notwithstanding how that injury or illness occurred. TPD insurance can provide a lump sum payment to help support you financially when you can no longer earn an income.

Steps to making a TPD claim:

1. Check Your Policy
Review your superannuation statement or insurance documents to confirm you have TPD cover. Each policy has its own definition of what qualifies as a "total and permanent disability". You may have numerous policies with numerous super funds, and if so then you may be entitled to claim against multiple policies.

2. Gather Supporting Documents

You’ll typically need:

Medical reports from your treating doctors
Proof of employment history and income
Completed claim forms from your insurer or super fund – these can be requested directly from the super fund or their insurer.

3. Submit Your Claim
Lodge the forms and supporting documents directly with your super fund or insurer. Make sure everything is complete to avoid delays.

4. Wait for Assessment
The insurer will assess whether your condition meets the policy definition of TPD. This process can take several months and may involve independent medical assessments.

5. Consider Legal Help
If your claim is delayed, denied, or you’re unsure about the process, seeking legal advice can help you understand your rights and improve your chances of success. Seeking early legal advice prior to lodgement of the claim can result in a better prepared application, mitigation of delays in the assessment process and, if a dispute does arise, your legal representative will be better placed to contest the decision.

Need help with your TPD claim? Contact Kells for trusted compensation legal advice and support throughout your claim process.

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Retaining wall disputes: what you need to know

Fri, 25 Jul 2025 00:15:36 GMT

Retaining wall disputes between neighbours are more common than you might think. These disagreements often arise over issues like who owns the wall, who is responsible for its maintenance or repair, and whether damage caused by the wall affects neighbouring properties.

Common causes of disputes:

One neighbour builds a wall that impacts the stability or appearance of the other’s property.
Water run-off from the wall causes damage.
The wall is deteriorating and needs repairs, but no one agrees on who should pay.

Who is responsible?

Responsibility often depends on:

Whose property benefits from the wall.
Where the wall is built, on the boundary line or within a single property.
Whether the wall supports land that has been altered (such as cut or fill work).

Because each situation is unique, it’s important to get legal advice early to understand your rights and responsibilities.

How to handle a dispute

Try to resolve it informally by discussing it with your neighbour.
Keep records of communication, quotes, photos, and any agreements.
Seek legal advice if informal discussions don’t work.
Consider mediation as a way to avoid the stress and cost of going to court.

Involved in a retaining wall dispute? Contact Kells' conveyancing team for legal advice to help protect your property and resolve the issue.

ID 197700766 © Jpldesigns | Dreamstime.com

How young Australians can avoid being underpaid

Fri, 25 Jul 2025 00:11:50 GMT

A recent report has revealed that nearly one-third of young Australians are not being paid correctly, with many also denied their entitled breaks or superannuation. Whether you're starting your first job or juggling casual work while studying, it’s vital to know your rights and how to protect yourself from dishonest employment practices.

Spotting red flags

There are a few common signs that your employer may not be doing the right thing:

You're not given a proper payslip or employment contract.
You're paid in cash with no clear breakdown of hours or deductions.
You’re asked to work unpaid "trial" shifts beyond what’s reasonable.
Your hours or pay rates keep changing without explanation.
You're discouraged from asking questions about pay, breaks, or entitlements.

Know what you're entitled to

To check if you're being paid correctly:

Visit the Fair Work Ombudsman’s Pay Calculator ( fairwork.gov.au ) to check the minimum wage and penalty rates for your job.
Log into MyGov to view your superannuation payments and ensure your employer is contributing at least 12% of your ordinary earnings.

What if you’re denied breaks or back pay?

Under the National Employment Standards, most workers are entitled to rest and meal breaks depending on the hours worked. If you're not getting them, or if you're being intimidated when asking for your entitlements, you have legal options:

Document your hours, breaks, and pay.
Raise concerns in writing to your employer or HR.
Seek advice from the Fair Work Ombudsman or an experienced employment lawyer .

What if your employer is bankrupt?

If your employer is in liquidation, under administration or deregistered, you may still be able to recover unpaid wages and entitlements through the Fair Entitlements Guarantee (FEG) scheme. This government program helps eligible employees recover unpaid wages, annual leave, and redundancy pay.

Afraid to speak up?

Many young workers worry about the consequences of raising issues with their employer. But remember, it is unlawful for an employer to threaten, demote or dismiss you for asserting your legal rights.

If you're unsure about your pay or workplace rights, contact Kells for trusted legal advice. We're here to help you stand up for what you're entitled to.

ID 144404972 | Young Working © Piksel | Dreamstime.com

Kells announces new Partner and four Associate promotions

Wed, 02 Jul 2025 02:25:00 GMT

Kells Lawyers is proud to announce the promotion of David Addinall to the position of Partner and the promotion of four outstanding lawyers to the position of Associate, effective 1 July 2025. This exciting announcement reflects the firm’s ongoing growth, commitment to excellence, and dedication to delivering outstanding legal services to our clients.

David Addinall, Commercial Litigation

We are thrilled to announce the promotion of David Addinall to Partner in our Sydney office, who specialises in commercial litigation. Over the years, David has consistently demonstrated exceptional skill, sharp legal acumen, and a relentless commitment to delivering high-quality results with no fuss. His ability to navigate complex commercial disputes has made him an invaluable asset to our Sydney commercial litigation practice.

We are also pleased to announce the following four promotions to Associate.

Cassandra Bujaroska, Family Law
Cassandra, based in both our family law Wollongong and Sydney practices, has distinguished herself with a remarkable combination of skill, presence, and work ethic. A passionate advocate for her clients' rights, Cassandra consistently delivers results with unwavering dedication and a positive attitude that embodies the Kells values.

Taylah Jensen, Family Law
Taylah has proven herself to be a dedicated and industrious member of our Wollongong family law team. She is hard working, displays a genuine care for her clients, and with her results-driven approach makes her a standout performer.

Karsandra Mantis, Commercial, Business & Corporate Law
A valued member of our Wollongong office, Karsandra has been with Kells for almost 8 years, demonstrating loyalty, accuracy, and professionalism in all her work. Her quiet yet determined approach makes her a reliable and long-term contributor to the firm’s success.

Brooke Sharp, Conveyancing & Estate Planning Law

Based in our Thirroul office, Brooke has made a tremendous impact on the team, strengthening the office through her exceptional work ethic and client-focused approach. Her strong ethics and outstanding communication skills have earned her the trust and admiration of her clients, making her a true asset to the firm.

Commenting on these promotions, Paul Magagnino, Managing Partner of Kells said:

“We are extremely proud of the accomplishments of David, Brooke, Cassandra, Karsandra, and Taylah. Their promotions are a direct reflection of their significant contributions to the success of the firm. Each of them embodies the four core values that we hold dear at Kells – People, Innovation, Ethics and Results – and their hard work and dedication have helped us achieve growth in both the legal services we provide and the communities we serve. Our success would not be possible without the dedication of talented individuals like them, and we remain committed to expanding our services and continuing to provide excellent legal support to our clients.”

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Minimum wage increase from 1 July 2025

Thu, 26 Jun 2025 00:23:28 GMT

From 1 July 2025, Australia’s national minimum wage will increase by 3.5%, rising to $24.95 per hour or $948.00 per week for full-time employees. This change applies to employees not covered by an award or registered agreement, and updates will also apply to minimum award wages across a wide range of industries. The updated rates take effect from the first full pay period on or after 1 July 2025. Employers should ensure payroll systems are updated and employment contracts reflect the new minimum pay rates.

The adjustment is part of the Fair Work Commission’s annual wage review and is designed to ensure minimum wage earners keep pace with cost-of-living pressures.

It also coincides with an increase to the superannuation guarantee rate, which will rise from 11.5% to 12%.

It’s essential for businesses to review their wage obligations carefully to remain compliant with workplace laws and avoid any risk of underpayment. Employees should also check that their new rates are correctly applied.

Our highly experienced employment lawyers are available to provide advice to organisations on minimum entitlements and compliance with the Fair Work Act.

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Can I sue my school for bullying?

Thu, 26 Jun 2025 00:22:37 GMT

School bullying remains a pressing concern in New South Wales, with significant emotional and often long-lasting psychological impact upon students. Tragic cases, such as the suicide of 12-year-old Hamish Carter in 2022 , underscore the devastating consequences of unchecked bullying.

Between 2019 and 2024, NSW public schools paid over $2.8 million in bullying-related claims, with around 40 payouts, including one of $1.2 million . With these high statistics and the fast-paced growth of technology and social media, bullying has emerged as one of the most pressing challenges affecting children today. Addressing bullying in schools is legally complex, largely because many victims are too frightened to speak up, and in some cases, school staff may fail to respond to complaints appropriately.

Under NSW law, schools (including teachers and staff) owe a duty of care to their students, requiring them to take reasonable steps to prevent foreseeable harm, including bullying. This encompasses implementing effective anti-bullying policies, supervising students adequately, and responding promptly to reported incidents. A failure in these responsibilities can constitute a breach of duty – the cornerstone of “negligence”.

Students who suffer psychological harm (i.e. a diagnosed psychological injury) due to bullying may have legal grounds to sue their school for negligence. Successful claims typically demonstrate that the school failed in its duty of care, leading to significant harm.

If you or someone you know is affected by school bullying, below are the steps you should consider:

Document incidents: Keep detailed records of bullying episodes, including dates, descriptions, and any communications with the school.
Report to school authorities: Inform teachers or principals about the bullying and request written responses outlining the actions taken. It is imperative that these communications are documented in writing. If you speak with the school, principal, or teacher, always send a follow-up email to confirm the outcome of the discussion.
Seek external support: If the school's response is inadequate, consider contacting the NSW Department of Education or the NSW Ombudsman.
Legal consultation: Consult with an experienced bullying at school lawyer to explore the possibility of a negligence claim.

Please note if you are being bullied and require immediate assistance, please contact organisations like Kids Helpline (1800 55 1800) and Lifeline (131114) who can help you.

Addressing school bullying requires a collaborative effort between schools, families, and the broader community to ensure a safe and supportive environment for all students.

Strict time limits can apply in pursuing a claim for negligence, and seeking timely legal advice is essential.

If you require legal advice, our bullying at school lawyers provide a free consultation with no obligation to proceed. If you do wish to proceed, our legal services are provided on a no win, no fee basis.

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How frameworks agreements can improve a supply chain

Thu, 26 Jun 2025 00:21:39 GMT

Supply chains faced unprecedented strain during the pandemic, and in the years since, they have undergone significant transformation. Building greater resilience has become the ultimate goal, driven by strategies such as supplier diversification, data-driven forecasting, automation, and the shift from linear to integrated networks.

Legal tools such as framework agreements play a critical role in enhancing the performance and adaptability of supply chains. These agreements establish pre-negotiated terms and conditions for the ongoing supply of goods or services, enabling businesses to operate efficiently without needing to enter into separate negotiations for each transaction.

By reducing the need for repeated tendering and contract drafting, framework agreements save time and administrative costs. This streamlined process leads to faster procurement cycles, allowing businesses to respond more quickly to changing needs or market conditions.

Framework agreements also provide cost certainty and predictability. With pricing and service terms locked in for a set period, businesses can better manage budgets and forecast expenses. This consistency helps minimise financial risk and reduces the likelihood of disputes.

Another advantage with entering into framework agreements is scalability. As demand grows or fluctuates, framework agreements make it easier to adjust volumes without the delays that can occur with ad hoc contracting. This flexibility is especially valuable in dynamic or high-volume environments.

Moreover, long-term agreements foster stronger relationships with suppliers. This can lead to better service levels, improved quality, and more strategic collaboration, further strengthening the supply chain.

In summary, framework agreements and similar legal tools offer a practical way to simplify procurement, reduce costs, and build a more responsive and scalable supply chain.

For further support, chat to our expert contract lawyers who specialise in crafting agreements that align with the latest 2025 standards.

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What Is bail?

Thu, 26 Jun 2025 00:20:16 GMT

Bail is a legal mechanism that allows a person charged with a criminal offence to be released from custody while awaiting their matter to be heard in court. Bail may be granted by the police shortly after arrest, or in more serious or contested cases by a magistrate in court.

When granting bail, the court can impose specific conditions designed to address concerns about the accused person’s behaviour or flight risk. These conditions may include:

Residing at a particular address
Reporting regularly to police
Abstaining from contact with certain individuals
Not consuming alcohol or drugs
Surrendering a passport or refraining from international travel

Bail is not guaranteed, and the court must weigh various factors before deciding whether release is appropriate.

Do I need a criminal lawyer for a bail application?

If you or a loved one has been arrested and is facing the possibility of remaining in custody, one of the most pressing concerns is often securing bail.

A common question is whether you need a criminal defence lawyer to apply for bail. While it's not legally required to have a lawyer represent you in a bail application, engaging an experienced criminal lawyer can significantly improve your chances of a successful outcome.

Although individuals can technically apply for bail themselves, the process can be legally complex and emotionally overwhelming, particularly for those unfamiliar with the criminal justice system.

A lawyer experienced in criminal law can assist in multiple ways:

Understanding the law and procedure

The court considers various legal criteria when deciding whether to grant bail. These include:

Whether the accused is an unacceptable risk (e.g. of reoffending, fleeing, interfering with witnesses, or endangering the community).
The seriousness of the alleged offence.
The strength of the prosecution’s case.
The personal circumstances of the accused.

An experienced criminal lawyer understands how to address these issues and present a persuasive case for release.

Thorough bail preparation

A criminal lawyer can:

Gather supporting documents, such as character references or medical reports.
Organise a surety (a person willing to offer a financial guarantee for your compliance).
Identify suitable accommodation arrangements.
Draft affidavits or statements that explain your personal circumstances.
Anticipate and respond to likely objections from the prosecution.

Having this material properly prepared and presented gives the court a clearer, more favourable picture of why you should be released.

There are situations where legal representation is particularly important, such as:

Serious or indictable charges such as drug supply, assault, robbery, or sexual offences.
Previous criminal convictions or breaches of past bail conditions.
Being on parole, community corrections orders, or other court-imposed obligations.
Cases where the police or prosecution are opposing bail.
Vulnerable accused persons, including those with mental health concerns, language barriers, or disabilities.

These circumstances heighten the complexity and risks involved, and a lawyer can tailor a strong, informed application that meets the court’s expectations.

An experienced criminal defence lawyer can help you put your best case forward, increasing your chances of securing bail quickly and under fair conditions.

If you or someone you know is facing criminal charges and needs help with a bail application, don’t leave it to chance, speak to one of our qualified and experienced criminal lawyers as soon as possible.

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Kells named among Australia’s Best Law Firms for second consecutive year

Wed, 04 Jun 2025 02:48:07 GMT

Kells Lawyers is proud to announce its recognition in the 2026 edition of Best Law Firms in Australia, a prestigious national ranking that highlights the country’s top legal practices.

In the latest edition, Kells Lawyers has been ranked Tier 2 nationally for Family Law and Tier 3 for Personal Injury Law, with both accolades awarded for the Sydney region.

The Best Law Firms recognition is the result of a rigorous evaluation process within the legal industry. It draws on insights from more than 4,500 surveyed lawyers, over 2,000 client references, nearly 200 interviews with practice group and firm leaders, and detailed law firm data collected through the Best Lawyers "Law Firm Survey." Importantly, eligibility is limited to firms with at least one lawyer already recognised in The Best Lawyers in Australia , reinforcing the high standard of individual and collective excellence required for consideration.

This recognition reflects Kells’ ongoing commitment to professional excellence, legal expertise, and exceptional client service. “We are honoured to be included again in the Best Law Firms rankings,” said Paul Magagnino, Managing Partner. “These distinctions are a testament to the hard work and dedication of our firm, particularly in the areas of family and personal injury law, two areas where the needs of our clients are especially personal and profound.”

“At Kells, we are committed to delivering not just legal outcomes but meaningful support and guidance to our clients through every stage of their journey.” said Paul Magagnino.

The recognition underscores Kells Lawyers’ strong reputation in the legal community and its continued focus on delivering outcomes that matter to clients across the Illawarra and Sydney regions

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

New rental reforms in NSW: What renters need to know

Mon, 26 May 2025 00:15:23 GMT

After years of advocacy, the NSW Government has passed the Residential Tenancies Amendment Act 2024, bringing changes that strengthen renters’ rights across the state. These reforms mark a major step forward for tenants and will roll out in stages, with key provisions taking effect on 19 May 2025.

What has changed?

The new laws have:

Ended ‘no grounds’ evictions.
Made it easier to keep pets in rental homes.
Limited rent increases to once every 12 months for most tenancy agreements.
Has introduced fairer rental payment options.

What’s already in effect?

While not all changes have commenced, some important reforms are already in place:

Rent increase cap: For most agreements, landlords can now only raise the rent once every 12 months.
No background check fees: Renters can no longer be asked to pay for background checks during the application process.
Rental Bond Board representation: The NSW Rental Commissioner is now a member of the Board.
Water efficiency: All rental property toilets must be dual flush to meet water-saving standards.

What changed on 19 May 2025?

The following reforms came into effect on this date:

Stronger protection against unfair evictions.
Greater clarity and consistency around pet approvals.
Fee-free rental payment options.

For further information visit the NSW Fair Trading website for clear, up-to-date guidance on the new rental laws and their rights and obligations.

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Compensation pay-out for NSW Police Officers injured on the job

Mon, 26 May 2025 00:13:58 GMT

Police officers with a permanent impairment level of at least 15%WPI could remove themselves from the workers compensation scheme in exchange for a tax-free lump sum payment.

These claims are known as Work Injury Damages (WID).

Eligibility

Whilst the first criteria to bring such claim is satisfying the above impairment threshold (for a section 66/67 claim), negligence by the Police Force, in causing your injury, must also be established.

Psychiatric injuries

Recent Court decisions in Briggs and Sills established some principles around proving the liability of the Police Force for psychological injury sustained by their officers.

Briggs missed out on work injury damages because he failed to identify a system of work which was not, but allegedly should have been, in place.

Sills, was successful. By contrast they did not argue the Force was negligent because it had an inadequate system of work, which could have been better. What was challenged was the proper implementation of a safe work system in dealing with the Officer, in circumstances where the Force knew of the Officer’s exposure to multiple traumatic incidents in a short period of time, and that the officer was suffering from PTSD. Evidence showing that the Police Force neglected to act upon the recommendations by a police psychologist and PMO (police medical officer) about providing protective strategies, mentorship and monitoring the officer helped establish the failure to properly implement it’s system of work, which gave rise to the breach.

Compensation payable

A WID claim is limited (by Law) to economic loss only, which is made up of: Loss of past earnings; Loss of future earnings; Loss of superannuation – on past and future loss of wages; & Tax paid on your workers compensation weekly benefits.

Medical expenses, domestic assistance and pain and suffering cannot be claimed.

Claim Process

These claims are dealt with outside of the workers compensation scheme. In order to initiate a claim, a Notice, setting out required particulars of the case, is to be served upon the Police Force.

The Insurer is to determine the claim within 2 months of receiving the above notice. If liability is denied (and it usually is), the next requirement is to serve a pre-filing statement of claim, setting out pleadings, particulars and all evidence to be relied upon as if the matter were to proceed to Court. A Defence is to be served in reply no later than 42 days from receipt of the PFSOC.

The parties are then required to attend a mediation, before commencing Court Proceedings.

Advantages of a WID claim

A successful WID claim results in the receipt of an upfront, tax-free, lump sum payment. It essentially removes officers off the drip system, as it brings to an end all of their rights and entitlements to workers compensation benefits. Many, if not all, find the pay-out desirable – not just from a financial perspective but also in terms of their recovery. They no longer have to deal with an insurer and they can get on with their lives, freely, focusing on their health and wellbeing – and that’s what matters most!

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How to change from a visitor visa to a work visa in Australia

Mon, 26 May 2025 00:08:38 GMT

Australia is known for its high quality of life, vibrant economy, and excellent work-life balance. It's no surprise that many visitors consider extending their stay to work and live here. However, navigating the visa system—especially transitioning from a visitor visa to a work visa—can be complex. This guide explains how to legally make that shift, including eligibility, visa types, and application steps.

Can You Work on a Visitor Visa in Australia?

No. The Australian Visitor Visa (Subclass 600) is intended strictly for tourism, short business visits, or medical purposes—not for employment. Working while on a visitor visa is prohibited and can lead to visa cancellation or removal from the country. However, if you wish to work in Australia, it may be possible to apply for a different visa while you're in the country, if your current visa conditions allow it (i.e. no “8503 – No Further Stay” condition).

How to Change from Visitor Visa to Work Visa in Australia

While you can't directly "convert" a visitor visa into a work visa, you can apply for an eligible work visa provided you meet the criteria.

Step 1: Understand Work Visa Eligibility

Before applying for a work visa, make sure you meet these core requirements:

Work Experience: generally you must have employment experience in your occupation to apply for a work visa.
Skills Assessment: You may need to have your qualifications and experience assessed by a relevant authority.
English Proficiency: Most work visas require you to meet minimum standards (e.g., IELTS or PTE).
Health and Character Checks: You must pass standard health examinations and provide a police clearance certificate.

Step 2: Explore Work Visa Options

Here are the main work visa pathways for visitors seeking employment in Australia:

1. Temporary Skill Shortage (TSS) Visa – Subclass 482

For skilled workers sponsored by an approved Australian employer.

2. Employer Nomination Scheme – Subclass 186

For workers who are nominated by an employer for permanent residency.

Step 3: Secure a Job Offer or Sponsorship

To qualify for most work visas, you’ll need:

A job offer from an Australian employer.
An employer who is willing to sponsor you.

Ways to find a sponsor:

Use job portals like Seek, Indeed, and LinkedIn.
Connect with recruitment agencies that specialise in sponsoring overseas workers.
Leverage professional networks and attend industry events or virtual career fairs.

Step 4: Apply for the Appropriate Work Visa

We recommend engaging a migration professional or lawyer to assist with this step.

Commonly Required Documents:

Job offer or contract
Valid passport
Educational qualifications
Skills assessment (if applicable)
English test results
Health insurance (if required)
Police clearance certificate

Note: Depending on your visa type, you may need to leave Australia to lodge your application or apply for a Bridging Visa to remain in the country while it’s processed.

Step 5: Wait for Visa Processing

Visa processing times vary based on:

The type of visa
Your individual circumstances
The completeness of your application

You can monitor the status of your application through your ImmiAccount.

Frequently Asked Questions

Can I work in Australia on a visitor visa?
No. Visitor visa holders are not allowed to work in Australia.

Can I switch to a work visa while in Australia?
Yes, provided your visa conditions allow it (e.g., no 8503 condition) and you meet the eligibility for a work visa.

Can I get a TSS visa from a visitor visa?
Yes, if you secure sponsorship from an approved Australian employer and meet all requirements.

Final Thoughts

Working in Australia can be a rewarding experience, but transitioning from a visitor visa to a work visa requires careful planning, the right job offer, and legal compliance. While the process can be detailed and competitive, with the right approach, it’s achievable.

If you're considering a visa switch, consult with a migration lawyer to ensure you meet all requirements and choose the best visa pathway for your situation.

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Common reasons to contest a Will in New South Wales

Mon, 26 May 2025 00:07:15 GMT

In New South Wales, a Will can be contested for two main reasons:

1. The Will is not valid

For a testator (the person making the Will) to have a valid Will they must have the capacity, knowledge and intention to provide instructions on how their assets are to be disposed of upon their death.

The following are common reasons a Will may be found to be invalid:

Lack of mental capacity: the testator did not understand the nature of what they were doing and the impact on their assets (most commonly due to ailing cognitive health such as dementia and Alzheimer’s disease).

Undue influence: someone with a close personal relationship to the testator pressured (coerced) or manipulated them into changing their Will.

Fraud or forgery: either through deceit or misrepresentation a person was tricked into signing a Will or the Will was forged.

Not signed properly: the Will was not signed by the testator or the Will was not witnessed correctly (not signed in the presence of two (2) or more witnesses).

2. You Have Not Been Adequately provided for or You Were Left Out of The Will

You could be entitled to make a ‘ Family Provision Claim ’ if the Will did not make an adequate provision for you.

To be considered an eligible person, you must fall into one of the following categories to apply for family provision:

A spouse of the deceased
A de facto partner
A child (including adult or legally adopted children)
A former spouse
A person who was at any time wholly or partly dependent on the deceased, and
A person with whom the deceased was living in a “close personal relationship”.

You must show the Will did not adequately provide for your proper maintenance, education or advancement in life.

Time Limit

While you have 12 months to file a claim, it's best to notify the Executor or Administrator of the Estate within 6 months of the date of death. If you don't, they may distribute the estate after 6 months, which could harm your claim. By giving notice, the Executor or Administrator becomes personally responsible for any losses incurred after distribution to the beneficiaries.

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Big change to family law puts a price on violence: what you need to know!

Mon, 26 May 2025 00:04:17 GMT

From 10 June 2025, significant changes to property settlements under the Family Law Act 1975 (Cth) will come into effect. These reforms aim to create a fairer, more transparent, and contemporary approach to dividing property and finances after separation.

The key changes are effective from 10 June 2025, meaning they will only apply to cases which are filed at any time after 10 July 2025.

1. Family violence as a consideration in property settlements

The Family Law Act will now formalise that the Court must consider the economic impact of family violence when determining property and financial settlements. This includes recognising forms of economic or financial abuse, such as controlling access to money or coercive demands as part of family violence. The courts will assess how such abuse may have affected a party’s ability to contribute financially or non-financially during the relationship.

2. Clearer framework for property division

The legislation outlines a structured process for property settlements, applicable both in court and during out-of-court negotiations. This process involves:

Identifying all assets and liabilities of both parties
Assessing each party’s financial and non-financial contributions
Considering each party’s current and future needs, including age, health, and childcare responsibilities
Ensuring that any orders made are just and equitable in all circumstances.

3. Pet ownership in property settlements

The courts now have explicit authority to make orders regarding the ownership of family pets after separation. This change acknowledges the emotional significance of pets and aims to prevent their use as tools of coercion in abusive relationships.

4. Elevated financial disclosure requirements

The duty of financial disclosure has been elevated from the Family Law Rules into the Family Law Act itself. This change emphasises the importance of transparency and aims to improve compliance, ensuring that both parties have a clear understanding of their financial obligations during property settlements.

5. Less adversarial court processes

Courts are now empowered to adopt less adversarial approaches in property and financial matters. This includes greater discretion to manage proceedings and evidence, particularly in cases involving family violence, to enhance the safety and efficiency of the legal process

6. Consideration of children’s needs

When determining property settlements, courts must now consider the care and housing needs of any children involved. This ensures that the welfare of children remains a central concern in the division of property and financial resources .

Applicability of the changes

These reforms apply to all separating couples (whether married or in de facto relationships) who are negotiating property settlements. The reforms will apply regardless of whether the matter is resolved through court proceedings or out-of-court agreements (such as Mediation).

For more detailed information, you can refer to the official fact sheet provided by the Federal Circuit and Family Court of Australia .

Are you experiencing issues with your property settlement or need family law advice? At Kells we have a team of successful property settlement lawyers who all have extensive experience in the division of property and assets post-separation/divorce.

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Kells recognised in the Best Lawyers in Australia 2026

Fri, 02 May 2025 00:21:02 GMT

30 April 2025

Kells Lawyers is proud to announce that Partner, Peter Chodat and Consultant, David Potts , have been recognised in the 18th Edition of The Best Lawyers in Australia, published on 18 April in The Australian .

This prestigious accolade highlights Peter and David’s consistent excellence and professionalism in their respective fields. For the seventh consecutive year, Peter Chodat has been acknowledged for his work in Family Law, while David Potts has been recognised for the fourth year in a row for his expertise in Personal Injury Litigation.

We are delighted to see Peter and David honoured once again in this peer-reviewed listing, which is widely regarded as one of the most credible measures of legal excellence in Australia.

Best Lawyers is a global, peer-based guide to the legal profession. Recognition is based entirely on the feedback and evaluation of leading lawyers, and it is designed to reflect the consensus opinion of top legal professionals regarding the abilities and integrity of their colleagues. Importantly, lawyers are neither required nor allowed to pay a fee to be listed, underscoring the integrity and prestige of the award.

Kells’ Managing Partner, Paul Magagnino, expressed his pride in the achievement:

“We are thrilled for Peter and David being recognised by their peers as leaders in their field of expertise. David and Peter are both outstanding lawyers, and this recognition reflects their dedication to delivering exceptional legal services and the respect they have from their fellow peers,” said Mr Magagnino.

This recognition reinforces Kells Lawyers’ commitment to legal excellence and its reputation as a trusted firm delivering exceptional results for all our clients.

Kells has grown to become a leading full-service law firm in Sydney and the Illawarra region, working alongside our clients and evolving our services to meet our clients’ changing needs. We have a team of passionate, energetic and client focused legal professionals with over 65 staff based across 6 offices in Sydney and throughout the Illawarra.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Why You Should Have a Lawyer or Licensed Conveyancer Review Your Property Contract

Fri, 02 May 2025 00:16:45 GMT

Buying or selling a property is an exciting milestone — but it’s also a legally binding transaction that comes with significant risks if not handled properly. One of the most important steps you can take is to have your property contract reviewed by a qualified lawyer or licensed conveyancer before you sign.

Here’s why:

1. Avoid Costly Mistakes

Property contracts are full of legal terms, fine print, and critical dates. Even a seemingly minor oversight — like missing a deadline or misunderstanding a clause — can result in financial loss, delays, or even the collapse of the deal. Professional legal review helps prevent these costly errors.

2. Uncover Hidden Pitfalls

Some contracts include clauses that may not be in your best interest. Whether it’s unexpected penalties, unfavourable settlement terms, or zoning restrictions, a lawyer or licensed conveyancer knows what to look for and can negotiate changes to protect your position.

3. Ensure Legal Compliance

Property laws can vary across states and change over time. A legal professional ensures your contract complies with all current regulations and that all required disclosures and conditions are met.

4. Peace of Mind

When a qualified expert reviews your contract, you can proceed with confidence, knowing you’re making informed decisions and not walking into a legal or financial trap.

Don’t Risk Your Property Deal. Get It Reviewed.

Contact the number one conveyancing team in the Illawarra today. We’re experienced, approachable, and here to ensure your transaction is smooth and stress-free.

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Winter is coming: Timely reminder of the importance of having accurate and current company records

Fri, 02 May 2025 00:13:54 GMT

Read this article as your reminder to ensure that your company is maintaining accurate and complete financial records.

Whilst this responsibility is often overlooked, the Corporations Act 2001 (Cth) obliges all companies to maintain written financial records that truthfully record its dealings, financial position and performance. This permits and ensures transparency and accountability.

While ensuring their accuracy can be challenging and time consuming, the benefits are significant. Accurate records help you understand and monitor your company’s financial health, allowing you to make informed decisions regarding its direction.

They also facilitate tracking key information, such as customer orders and employee performance. Moreover, having reliable records is essential for legal protection. They provide necessary documentation if you need to take legal action or defend against claims. Accurate records are also vital for tax purposes, as they can protect you from fines during an audit and will streamline tax filing.

Neglecting to maintain the statutory registers and records mandated may lead to financial and legal consequences, including penalties for the company or its directors.

If you are seeking investment for your company or preparing it for sale, having well-organised statutory company books is crucial. Potential investors or buyers will want assurance that the registers accurately represent the company's status at that time, and you may need to provide a warranty confirming that the statutory records are current and properly maintained. Therefore, it is advisable to ensure that your statutory company books are well-organised from the outset. Even if your company has been established for several years, it is never too late to adopt good practices and keeping your company’s records accurate and current is vital for success. It enables better decision-making, legal protection, and proper documentation of financial transactions, all of which can lead to long-term benefits.

ID 153315033 © Larichev89 | Dreamstime.com

Estate planning mistake: show me the money

Thu, 01 May 2025 08:35:50 GMT

Family disputes over a loved one’s estate are more common and more painful than most people realise. For blended families in particular, the emotional complexity and legal ambiguity around inheritance can fuel deep, lasting divisions. But there is a solution: a clear, legally sound estate plan, anchored by an up-to-date Will.

With blended families being the new normal, there will be increasingly large amounts of money and greater value assets at stake as a record $3.5 trillion dollar intergenerational wealth transfer is expected over the coming decade.

Why estate disputes happen

Even in close-knit families, grief can quickly turn into conflict when there’s uncertainty about what someone "would have wanted." Common triggers for disputes include:

Ambiguous or outdated Wills.
Assumptions of entitlement (especially among adult children).
Complex family structures with stepchildren or multiple relationships.
Poor communication or a lack of transparency about the estate plan.

In blended families, these issues can be magnified. Without proper legal structure, one side of the family may feel sidelined, or unintentionally excluded altogether.

The Role of a Legally Clear Estate Plan

An estate plan isn’t just about “who gets what,” it is a legal framework that ensures your wishes are honoured and helps your family navigate an emotionally charged time with clarity and confidence. Key benefits include:

1. Preventing Misunderstandings

A clearly drafted Will removes guesswork. It outlines exactly how your assets should be distributed and can include provisions for family members from different relationships.

2. Protecting the Interests of All Loved Ones

Especially in blended families, you may want to support both your current partner and children from previous relationships. A well-structured estate plan can balance these interests fairly—something a standard Will kit rarely achieves.

3. Reducing the Risk of Legal Challenges

When a Will is vague or doesn’t comply with legal requirements, it opens the door to litigation. A properly prepared estate plan reduces the risk of costly, bitter court battles that can drain the estate and damage relationships irreparably.

4. Appointing Trusted Decision-Makers

Your plan can also nominate guardians for minor children within the Will and separate documents appointing Powers of Attorneys and Enduring Guardians—key decisions that are especially important in blended family settings.

Why Regular Updates Matter

Life changes, and so should your estate plan. If you've remarried, divorced, had children, bought property, or even lost contact with a beneficiary, it's time to review your Will. Ideally, revisit your estate plan every 3 years or after any major life event.

Special Considerations for Blended Families

If you're part of a blended family, these additional steps are critical:

Communicate your intentions : Talk openly with your family to reduce the chance of future resentment.
Consider testamentary trusts : These can provide long-term flexibility and protection for your assets, especially when minors or vulnerable beneficiaries are involved.
Consider mutual wills and contracts: These can provide peace of mind to your biological children in the event you pass away before your spouse who is not the parent of your children.
Get expert advice : Be sure to see an experienced estate planning lawyer who can help you structure your plan to avoid unintended consequences.

Final Thoughts

No one wants to imagine their family fighting after they're gone. But the reality is, without a clear estate plan, even loving families can fall apart. By taking steps now, especially in blended family situations, you can protect the people you care about and leave behind not just a legacy, but ease that they aren’t being left out.

ID 79258762 © Adrian825 | Dreamstime.com

Toxic workplace: what do I do?

Fri, 11 Apr 2025 00:50:39 GMT

If you’re in a toxic workplace, it’s important to take steps to protect yourself and decide whether to stay, escalate the issue, or leave.

Below is a structured approach you could take.

Identify the toxic behaviours

A workplace is toxic if it involves:

�� Bullying & Harassment – Verbal abuse, exclusion, threats.

�� Micromanagement & Excessive Control – Lack of trust in employees.

�� Discrimination – Unfair treatment based on race, gender, disability, etc.

�� Unrealistic Workloads – Constant overwork without support.

�� Fear & Retaliation – Speaking up leads to punishment.

Document everything

�� Keep records of incidents (dates, times, locations, people involved).

Try to address it internally

�� Talk to HR or a manager (if safe to do so).

�� Request mediation or a workplace review.

�� Follow company policies on workplace complaints.

�� If HR is part of the problem, or you fear retaliation, consider external options.

Report to external authorities

If internal reporting fails, you may be eligible to take formal action, such as the following options:

�� Fair Work Commission (FWC)

For workplace bullying → Apply for a Stop Bullying Order.
For unfair treatment → Consider a General Protections claim.

�� Apply online: www.fwc.gov.au

�� SafeWork NSW

If the toxic workplace is affecting your health or safety, you could report it to SafeWork NSW.

�� Call 13 10 50

�� Lodge a complaint online: www.safework.nsw.gov.au

�� Australian Human Rights Commission (AHRC)

If the toxicity includes discrimination (race, gender, disability, sexual harassment, etc.), you may be able to file a complaint with the AHRC.

�� Lodge a complaint: www.humanrights.gov.au

Seek Legal Advice

Consult an employment lawyer on your options.

If you need advice, reach out to highly experienced employment lawyers today.

ID 341271908 | Toxic Workplace © Andrei Dodonov | Dreamstime.com

Can police in New South Wales stop and search you?

Tue, 08 Apr 2025 00:37:05 GMT

The simple answer is yes. Police in New South Wales (NSW) have the power to stop and search you in certain circumstances.

Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA), police can stop and search you without a warrant if they have a reasonable suspicion that you:

Are carrying stolen goods or something unlawfully obtained (s. 21 LEPRA).
Have a prohibited drug in your possession (s. 21 LEPRA).
Have a dangerous weapon (s. 21 LEPRA).
Have something that could be used to commit a crime (s. 21 LEPRA).
Are in an area where a "search powers authorisation" is in place (such as during a public event or protest, s. 87 LEPRA ).

Do I have to consent to being searched?

No, you do not have to consent, but refusing a search when police have reasonable suspicion may lead to arrest. However, if police do not have a lawful reason to search you, you can legally refuse.

Can Police search you without suspicion?

Yes, in some situations:

If you are entering or inside a place licensed to sell alcohol (s. 206 Liquor Act 2007).
If you are subject to a court-imposed condition requiring searches.
If you are at a public event, protest, or airport security zone where additional search powers apply.

Can Police use force?

Yes, if you resist or refuse to comply, police can use reasonable force to conduct the search (s. 230-231 LEPRA).

Do Police have to tell you why they are searching you?

Yes, police must inform you:

Why they are searching you.
Their name, rank, and station (s. 202 LEPRA).

What should you do if searched?

Stay calm and polite.
Ask police for their reason.
Record details of the search.
Seek legal advice if you believe your rights were violated.

At Kells, our criminal defence lawyers in Wollongong and Sydney are dedicated to protecting and enforcing our clients’ rights. Our team is guided by a former police officer and senior police prosecutor who has an unrivalled knowledge of court procedures having conducted countless hearings and bail applications bringing a level of insight that can only be obtained from years in a courtroom.

ID 18407165 | Australian Police Stop © Martin Graf | Dreamstime.com

Exposed to a dust disease - what to do now?

Thu, 03 Apr 2025 00:31:05 GMT

In breaking news 13 workers who performed tunnelling work on projects around Sydney have been diagnosed with a dust disease – silicosis. One of the workers is only 32 years of age.

Documents obtaining by Transport for NSW allegedly revealed that 1 in 3 of the air quality tests during these constructions exceeded the Workplace Exposure Standard (WES) - some by 208 times.

The Australian Workers Union (AWU) has been instrumental in assisting workers in uncovering the extent of the exposure by obtaining documents under the Freedom of Information Act .

The link between silica, coal and other types of dust exposure and lung disease has been known for centuries.

Dust diseases are progressive diseases that can be fatal. These workers will now face serious health implications that will impact their quality of life.

A recent case of a former coal miner who contracted a dust disease was awarded $3.2 million in compensation by the Dust Disease Tribunal of NSW.

If you have a history of exposure or current exposure to dust you can take the following action:

If the exposure is in the workplace – notify your employer so they can take immediate action to remove the ongoing risk. If the risk is outside of the workplace you should contact your local council;
Register the exposure on the National Asbestos Exposure Register (this information is privately stored for individuals to access in the future should they choose;
Attend your GP and talk to them about the associated risk s and request advice regarding any investigations they may consider appropriate.
Contact Kells Lawyers for a free case assessment.

There are many industries in which dust exposure may be experienced by workers, some examples of activities are:

Construction.
Excavation.
Tunnelling, quarrying and mining.
Use of inorganic pesticides and herbicides (landscaping etc).
Fabricating, processing, installing, maintaining or removing engineered stone products – including new stone products.
Working with domesticated and wild animals.

Some hazards that can cause occupational lung diseases are:

Airborne inorganic lead.
Aluminium.
Asbestos.
Coal dust.
Cotton dust.
Pollen.
Talc dust.
Wood dust.
Dust of hard metals such as tungsten, tungsten carbide and cobalt.
Gases or fumes.

An extensive list of hazards and more information can be found on the Safework Australia website .

If you have been diagnosed with a dust disease that has occurred as a result of exposure in the workplace please contact our office to speak with one of our experienced personal injury lawyers about compensation.

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Is super paid while on workers compensation?

Thu, 03 Apr 2025 00:28:43 GMT

If you have been injured at work it is important to talk to a lawyer about your superannuation entitlements.

A common question that arises during workers compensation claims are if superannuation payments are still required to be made by their employer.

In general, Superannuation is not payable on workers compensation because workers compensation is designed to replace lost wages and cover treatment expenses. Superannuation is not intended to cover these costs.However, there are exceptions to this rule. Superannuation may be payable if the employee is covered by a modern award or enterprise agreement that specifies that Superannuation is still to be paid while on workers compensation – but only if you are still employed and have not been terminated on medical grounds. Most Awards provide that superannuation must be paid when you are off work on a work-related illness. You can find out if your award pays superannuation while on workers compensation on the Fair work website.

Some modern awards and enterprise agreements specify that superannuation is still to be paid while on workers compensation. You must look at the modern award that applies to you and see if superannuation is payable. For example, the Building and Construction Industry Award 2020, Cleaning Industry Award, Hospital and Manufacturing require employers to pay Superannuation to employees receiving workers compensation payments.

Here are the steps on how to find out if you are entitled to receive superannuation whilst on workers compensation:

Check your award agreement: The first step is to check your modern award or enterprise agreement to see if it specifies that superannuation is still to be paid while on workers compensation. You can find your award or agreement on the Fair Work Commission website.
Contact your employer: If you are unsure whether your award or agreement requires super to be paid while on workers compensation, you should contact your employer. Your employer can provide you with a copy of your award or agreement or tell you whether superannuation is payable in your circumstances.
Contact the workers compensation insurer: If you are still unsure whether you are entitled to superannuation payments while on workers compensation, you should contact the insurer.
Speak to a lawyer to see if they can assist you.

Other superannuation related insurances that may assist you are the Total and Permanent Disablement TPD insurance and/or income protection. TPD insurance pays a lump sum if you become totally and permanently disabled because of illness or injury.

Each insurer has a different definition of what it means to be totally and permanently disabled. It can cover you for either:

your own occupation — you're unable to work again in the job you were working in before your disability.
any occupation — you're unable to ever work again in any job suited to your education, training or experience.

Speak to a lawyer about whether you hold insurances for total and permanent disablement insurance (lump sum) and/or income protection payments. If you have income protection an amount may be payable on top of your weekly wage loss payments for workers compensation.

Have you got an injury or illness that occurred at work or was significantly contributed to, or aggravated by, your work? If you have the slightest concern, Kells provides a free case assessment of your possible compensation claim with no obligation to proceed. Our specialised and caring personal injury lawyers can meet you at home, at one of our six offices or even in hospital.

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What questions are asked in a police interview?

Thu, 14 Nov 2024 00:13:28 GMT

In New South Wales, police interviews (or interrogations) are conducted to gather information related to a crime or incident. The types of questions asked can vary based on the nature of the investigation and the role of the person being interviewed (e.g., suspect, witness, or victim).

Below are common types of questions and themes typically encountered in police interviews:

General Information

Can you confirm your full name, address, and date of birth?
Do you understand that this interview is being recorded?

Rights and Legal Matters

Are you aware that you have the right to remain silent?
Do you understand that anything you say can be used as evidence?
Would you like to have a legal representative present during this interview?

Background and Context

Where were you on [specific date and time]?
Can you describe your activities on the day of the incident?
Who were you with at that time?

Incident-Specific Questions

What do you know about the incident that occurred on [date/location]?
Did you see or hear anything unusual around the time of the incident?
Do you have any involvement or connection to the individuals involved?
Can you walk me through what you were doing when the incident happened?

Clarifying Details

Why were you in the area at that time?
Do you know any of the people involved in this matter? If so, what is your relationship with them?
Can you provide an explanation for [evidence or observations made by police]?

Follow-up and Contradictions

Earlier, you mentioned [statement]—can you elaborate on that?
How do you explain the discrepancy between your account and [another witness statement or evidence]?

Closing Questions

Is there anything else you would like to add or clarify before we conclude this interview?
Do you have any questions for us about the interview or your rights?

Important Notes:

Legal Representation : It is crucial to know that, as an interviewee in NSW, you have the right to seek legal advice before and during an interview. An experienced criminal lawyer should be present to provide guidance and protect your rights.
Voluntary Participation : You are generally not required to answer questions except for providing your name and address in certain situations (e.g., being the owner of a vehicle involved in an alleged offence).
Recorded Interviews : Police interviews are typically recorded for transparency and evidence purposes.

Understanding the types of questions asked and your legal rights can help ensure that you are prepared for a police interview. At Kells, our criminal defence lawyers in Wollongong and Sydney are dedicated to protecting and enforcing our clients’ rights. Our team is guided by a former police officer and senior police prosecutor who has an unrivalled knowledge of court procedures having conducted countless hearings and bail applications bringing a level of insight that can only be obtained from years in a courtroom.

What is a parenting plan?

Thu, 14 Nov 2024 00:11:11 GMT

A parenting plan in New South Wales is a written agreement between parents that outlines the care, responsibilities, and arrangements for their children after separation or divorce. It is designed to provide clarity and structure around how parents will share their parenting duties and ensure the well-being of their children.

Key Features of a Parenting Plan:

Voluntary Agreement : A parenting plan is not legally enforceable like a court order. It is a mutual agreement made voluntarily by both parents, which means it relies on their willingness to comply and is evidence of each party’s intention.
Written and Signed : The plan must be in writing and signed by both parents. This ensures that it is clear and serves as a reference point for both parties.
Flexible and Tailored : Parents can create a plan that is specific to their situation and the unique needs of their children. The plan can cover various aspects, such as living arrangements, visitation schedules, and communication methods. Given the flexibility, parties can enter into an interim parenting plan (which can then include clauses around when the plan is reviewed), or a final parenting plan (which is designed to remain in place until a child is 18 years of age, unless parties agree to make changes in the future).

Typical Provisions in a Parenting Plan can include the following:

Living Arrangements : Specifies where the child will live and the time they will spend with each parent.
Visitation Schedules : Details on when and how the child will visit or stay with the non-custodial parent.
Education and Schooling : Agreed-upon schools, homework responsibilities, and educational support.
Health and Medical Care : Decisions related to the child’s healthcare needs, medical appointments, and insurance.
Holidays and Special Occasions : Arrangements for how birthdays, holidays, and special occasions are spent.
Communication : Methods and frequency of communication between the child and the non-custodial parent (e.g., phone calls, video chats).
Decision-Making : How major decisions regarding the child’s upbringing, such as education, religion, and health, will be made.

Benefits of a Parenting Plan:

Reduces Conflict : By clearly outlining responsibilities and expectations, parenting plans can help minimise disputes between parents.
Promotes Stability for Children : It provides children with a clear understanding of where they will be and when, which fosters a sense of security and stability.
Encourages Cooperation : Since the plan is created collaboratively, it can promote better communication and cooperation between parents.

Legal Considerations:

Not Enforceable by Law : While a parenting plan is an important document, it is not enforceable by the Federal Circuit and Family Court. If parents want the plan to have legal force, they will need to apply for a consent order, which formalises the terms and makes them legally binding.
Modification : A parenting plan can be changed at any time if both parents agree. This flexibility allows the arrangement to adapt as the child grows or circumstances change.

Support and Resources:

Parents can seek the assistance of mediators or legal professionals to help draft a parenting plan that is fair and comprehensive. Our experienced family lawyers in Sydney and the Illawarra support people who are going through a challenging time in their lives as a result of separation and can provide you with a clear parenting order for your child(ren).

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Visa applications: Are you travelling to Australia for the Christmas / summer holiday period?

Thu, 14 Nov 2024 00:09:33 GMT

If you’re planning to travel to Australia for the Christmas or summer holiday period, it's essential to ensure that your visa application is properly prepared and submitted in time. Here are some key points to consider:

Types of Visas for Holiday Travel:

Visitor Visa (subclass 600) : This visa is suitable for tourists visiting Australia for short stays, typically up to 3, 6, or 12 months. It allows you to visit family, go on vacation, or engage in recreational activities.
eVisitor Visa (subclass 651) : Available to passport holders of certain countries. This visa allows you to visit Australia for up to 3 months within a 12-month period.
Electronic Travel Authority (ETA) (subclass 601) : Available to citizens of certain countries, such as the United States, Canada, and some Asian nations. The ETA allows visits for tourism or business purposes for up to 3 months at a time.

Key Considerations for Holiday Travel:

High Demand Period : The Christmas and Summer holiday period is one of the busiest times for travel to Australia, so visa processing times may be longer. It’s advisable to apply well in advance.
Application Timeline : For most visas, it's recommended to apply at least 4–6 weeks before your planned travel dates to account for any processing delays.
Eligibility and Requirements : Ensure you meet the eligibility criteria for the type of visa you are applying for, including financial capacity, ties to your home country, and the intended duration of your stay.
Health and Character Requirements : Depending on the visa type, you may need to undergo health checks or provide police clearance certificates.

Application Process:

1. Online Application : Most visitor visas can be applied for online through the Australian Department of Home Affairs’ Immiaccount website.

2. Indicative List of Documents Needed :

Valid passport
Proof of funds (bank statements or financial documents)
Travel itinerary (flights and accommodation)
Invitation letter (if staying with family or friends)
Any additional documents required for specific visa types

3. Visa Fees : Check the current application fee for your chosen visa subclass, as this varies based on the type of visa.

Tips for a Smooth Visa Process:

Complete Your Application Accurately : Ensure all information provided is accurate and matches your travel documents.
Monitor Processing Times : Check the current visa processing times on the Department of Home Affairs website and track your application status.
Stay Updated : Keep an eye on any changes in travel restrictions or entry requirements that may affect your plans.

Planning and applying early can help ensure that your trip to Australia for the Christmas or summer holiday period goes smoothly. Do you need immigration advice? Our migration/immigration law team at Kells specialises in supporting individuals and employers with migration matters. We recognise the obstacles and stress involved in visa and citizenship processes, both for individuals hoping to make Australia their home and for businesses aiming to bolster their workforce with overseas talent. We are here to ease these challenges.

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What we can learn from Tina Turner

Fri, 08 Nov 2024 00:08:22 GMT

When legendary “ Queen of Rock ”, Tina Turner sadly passed away on 24 May this year, she left behind an estimated $250 million fortune .

Tina Turner left behind no blood descendants as both her sons died before her. She was survived by her second husband Erwin Bach and two step-sons (first husband Ike Turner’s sons from a previous relationship who Turner legally adopted during their marriage). Despite this, the media reports that it is unlikely that the family will be involved in any legal battles. Tina Turner allegedly settled all her estate matters back in 2021 to forestall her family fighting over her fortune.

Few of us will have accrued as large a fortune as Tina Turner during our lifetimes, but like Tina Turner, most of us still need to put in place a comprehensive estate plan to avoid a range of issues that may arise and cause wastage to our estates after our deaths, some of them resulting in legal proceedings.

In NSW alone, the average cost to contest a Will is approximately $10,000 if the matter stays out of Court. Once Court proceedings are issued, an estate that has to defend against a single-family provision claim can easily lose $100,000.00 in legal fees and charges. This may not be a considerable loss if the fortune in dispute consists of $250 million, but for most estates in Australia legal costs are a serious concern and

this is especially true where the existence of a large estate attracts the interest of multiple claimants.

In all states and territories in Australia there are legislation in force that permits eligible persons who claim they have received no provision or not enough provision to make an application to Court for further provision out of a deceased’s person’s estate (these applications are commonly known in NSW as family provision claims).

In NSW the Judge hearing the dispute has discretion to determine who pays the legal costs for a claim. However, most disputes are settled before the conclusion of a defended hearing and this means that the issue of costs is negotiated between the parties with the result that the executor who is defending the terms of the Will, often agrees to settlement terms that provide that the legal fees incurred by the executor to defend the claim will be paid out of estate funds. Depending on the strength of the claim, the executor may also agree that the estate pays the legal fees incurred by the claimant.

Family provision claims (one of the most common claims) are not just financially harmful, the legacy of anger and suspicion that accompanies them can have a lasting disruptive effect on the families involved.

As there is no single set way in which to prevent a family provision claim from being made against an estate, careful estate planning is essential to pre-empt wasteful and distressing legal battles.

A common misconception is that by making some provision for a family member as opposed to no provision, a testator (the person making the Will) can prevent the family member from making a claim against their estate after their death.

The truth is that family provision legislation in Australia asks the Court to exercise a discretionary judgment as to how much provision is adequate for the person making the claim. In considering an application the Court must consider a range of factual matters.

Calloway JA in Gray v Harrison [1997] 2 VR 359 at 366 stated “There is no single provision of which it may be said that a wise and just testator would have made. There is instead a range of appropriate provisions …minds may legitimately differ as to the provision that should be made” .

What is required as Calloway JA explained in Grey v Harrison at 367, is “an instinctive synthesis that takes into account all of the relevant factors and gives them due weight.”

In NSW Section 60 of the Succession Act 2006 (NSW) sets out the matters to be regarded by the Court when considering an application for family provision orders. The facts known to the Court during each application will be different, which means that the decision of the Court will vary from case to case.

This means that if a particular testator left her child the amount of $30,000 in her Will, the bequest itself will not stop the same child from making a claim to the Court for greater provision out of the testator’s estate. It will still be open to the Court to decide that in all the relevant circumstances of the matter, greater provision should be made.

Gleeson CJ said in Vigolo v Boston (2005) 221 CLR 191; [2005] HCA 11 at [5] to [6] that the legislation required the Court to make assessment of what is ‘adequate’ and ‘proper’ provision.

For this reason, accurate estate planning involves much more than just the simple implementation of a standard set of avoidance tactics. The individual nature of families and their wealth, including the diversification of assets, the growth of wealth in superannuation, the frequency of marriage breakdowns and re-partnering all contribute to increasing complexity in succession planning.

With a range of documents and directions potentially applying upon death, legal practitioners in the area of wills and estates are expected to take a holistic approach by looking at all the circumstances of the clients. Estate planning involves more than a cleverly drafted Will, it can extend to the preparation of various documents, consultation with a range of professionals and the restructuring of assets to suit each client’s needs.

In conclusion, as Tina Turner realised, if you have resources that you want to preserve for loved ones, it is wise to have your estate planning settled well in advance of any health crisis or unexpected accident that may rob you of the time and ability to do so in the carefully considered manner required to properly protect those you love.

Selling a business, what are 5 things to consider?

Mon, 14 Oct 2024 04:26:18 GMT

If you are thinking of selling your business in New South Wales, here are five things you should consider at the start of the process:

1. Valuation

Get a professional valuation to understand the fair market value of your business. This will help you set a realistic asking price and negotiate effectively.

2. Financial Records

Ensure your financial records are accurate and up-to-date. Potential buyers will generally want to see profit and loss statements, balance sheets, and tax returns for at least the last few years.

3. Legal Compliance

Review all legal and regulatory obligations to ensure everything is in order, including licenses and contracts. Ensure everything is in order to avoid complications during the sale. A business lawyer can assist with this.

4. Transition Plan

Consider how you will transition the business to the new owner. This may involve training, introducing them to key clients or suppliers, and ensuring a smooth handover to maintain business continuity.

5. Prepare a heads of agreement/term sheet

While not essential, we recommend preparing a heads of agreement/term sheet setting out the key terms of the transaction. This helps with the negotiations with potential buyers, and makes it easier when it comes to preparing the contract. A business lawyer can assist with this and help safeguard your interests.

Taking these steps can help facilitate a smoother sale process and maximise the value of your business.

Once you have taken these steps, or once you are ready to prepare the heads of agreement/term sheet, you should contact a business lawyer who can prepare the documents on your behalf, negotiate amendments to the contract with the buyer and proceed to exchange contracts and settlement of the sale of business.

At Kells, our business lawyers will provide tailored guidance to your specific needs of the business you are selling.

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Do I need a lawyer for a lease agreement?

Mon, 14 Oct 2024 04:22:04 GMT

The terms, scope and complexity of a lease can vary depending on how the lease has been drafted. Having a lawyer review a lease for you and recommend changes on your behalf, is critical to ensure the rights and responsibilities of a landlord and tenant are reasonable.

A lease is a legal document that regulates the relationship between a landlord and a tenant concerning a property or retail premises.

A lawyer will review and may negotiate with the other party some of the common clauses as follows:

Rent

To ensure that the proposed rental amount is in accordance with similar properties in the area and does not exceed a reasonable amount in respect of the condition and facilities contained in the premises.

Outgoings

To determine whether you will be liable for outgoings under the lease and if so, what type of outgoings and the relevant percentage amount. Generally, if the tenant is not required to pay any outgoings the rent will be greater than expected.

Rent review

To identify what method of rent review is reasonable and, in your favour, taking into account your circumstances. There are three methods of rent review, a market review, a fixed percentage annual increase and an increase in accordance with the consumer price index (‘CPI’).

Security deposit/bank guarantee

To review, remove or decrease the relevant security deposit or bank guarantee amount a landlord may require under the lease as security.

Guarantee

To confirm if the landlord requires a personal guarantee by the director(s), where the tenant is a company. A guarantee provides extra protection for the landlord, as the directors will guarantee the obligations of the tenant company under the lease.

Make good/reinstatement

To review the terms and scope of the make good clause at the conclusion or earlier termination of the lease. These clauses can often involve significant costs to the tenant such as removal of a fit out, where you are required to restore the premises to the condition as at the commencement of the lease.

Consulting with an experienced commercial lease lawyer can help you avoid potential pitfalls that are often disguised in leases and help guide you through the lease negotiation process and ensure that your lease is in your best interest.

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My ex is delaying the property settlement, what can I do?

Mon, 14 Oct 2024 04:19:13 GMT

If your ex is delaying the property settlement in Australia, there are several steps you can take:

1. Communicate

Try to have a direct conversation to understand their reasons for the delay and encourage them to engage in the settlement process.

2. Mediation

Consider mediation as a way to resolve disputes amicably. A mediator can help facilitate discussions and negotiations.

3. Seek Legal Advice

Consult a family lawyer to understand your rights and options. They can provide guidance on how to proceed based on your specific situation.

4. Court Application

If informal attempts fail, you may need to apply to the Family Court for a property settlement. This can compel your ex to engage in the process.

5. Urgent Applications

If you have concerns about your financial position or if significant assets are at risk, your lawyer may advise making an urgent application to the court.

It’s important to document all communications and attempts to resolve the matter, as this can support your case if it goes to court.

ID 316412203 | Property Settlement © Designer491 | Dreamstime.com

What is the process of an unfair dismissal claim?

Mon, 14 Oct 2024 04:16:08 GMT

The process for making an unfair dismissal claim with the Fair Work Commission (FWC) typically involves the following steps:

1. Eligibility Check

Ensure you are eligible to make a claim. Generally, you must have been employed for at least six months (or 12 months for larger employers) and have been dismissed from your job.

2. Lodge a Claim

You must submit your claim to the FWC within 21 days of your dismissal taking effect. This can be done online or via a written application. Include all relevant details, such as your employment history and the reasons provided for your dismissal.

3. Notification to Employer

After you lodge your application, the FWC will notify your employer of the claim. Your employer will have the opportunity to respond.

4. Conciliation Conference

The FWC usually arranges a conciliation conference, where both parties can discuss the matter with a conciliator. This is an attempt to reach a resolution without going to a hearing.

5. Hearing

If conciliation is unsuccessful, the case may proceed to a hearing. Both parties will present their evidence and arguments before a FWC member.

6. Decision

The FWC will make a decision based on the evidence presented. If they find in your favour, they may order reinstatement or compensation.

7. Further Action

If you disagree with the decision, you may have limited rights to appeal, depending on the circumstances.

If you have been unfairly dismissed and need advice, reach out to our highly experienced employment lawyers to ensure your rights are protected.

ID 161861292 | Dismissal Claim © motortion | Dreamstime.com

Can a parent disinherit a child in Australia?

Mon, 14 Oct 2024 04:11:45 GMT

It has become a trend for parents to leave their children out of their Wills or only leave them a nominal amount in hopes of disinheriting them. When a parent does this, they commonly believe this will stop their child from being able to make a claim against their estate. However, is important to note that under the Succession Act of New South Wales, a child has an automatic right to contest a Will.

If a child feels they have not been adequately provided for, they can make a claim for a larger share of the estate, especially if they are a person in financial need. This is often called a "family provision claim."

As a Testator (Will maker) it is advisable you protect your estate against family provision claims by ensuring you:

1. Clearly State Your Intentions

Document your reasons for disinheriting a child, if appropriate, either in your Will or a separate letter.

2. Seek Legal Advice

Consult with a lawyer who specialises in estate planning to ensure your Will is legally sound and to understand the implications of your decisions.

3. Consider Alternatives

If you are concerned about potential claims, discuss options such as setting up trusts or other arrangements that might provide for your wishes.

In virtue of the above, each case is unique, so professional legal advice will help you navigate this sensitive area.

At Kells, our experienced and caring estate planning lawyers can provide personalised advice based on your specific circumstances and help navigate any complexities related to estate planning including the preparation of a Will, and challenging or defending an estate.

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Four days of double demerits – October 2024 long weekend

Fri, 04 Oct 2024 01:54:46 GMT

Motorists be aware, double demerit points will be in place over the upcoming October long weekend commencing on Friday 4 October 2024 and ending on Monday 7 October 2024 at midnight.

Double demerit points apply for the whole 4-day period with police targeting speeding, not wearing seatbelts, illegal mobile phone use and motorcyclists not wearing helmets.

The upcoming October long weekend also coincides with the New South Wales School holiday period and Police are appealing to road users to stay safe on the road during the school holidays, with the aim of keeping the road toll at zero during this holiday period.

NSW Police will be out in force to ensure that everyone arrives at their destination safely and have advised that motorists should anticipate heavier traffic on our roads during the school holiday period.

Have you been charged with a traffic offence and concerned about its potential impact on your driving record? Or simply do you wish to have an offence reviewed or dispute the fine? At Kells, our traffic offence lawyers will help you figure out what your best next steps are. We operate 24/7 and our first consultation is free.

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Compensation win for club waitress

Wed, 25 Sep 2024 00:09:50 GMT

Kells has secured a fantastic victory in Court for one our deserving clients, being awarded almost $1.47M for her loss of earnings following a workplace injury.

The case involved our client, a young waitress working at a local leagues club whilst studying full-time. Unbeknownst to our client, non-slip mats had been removed from the kitchen, exposing water and oil on tile flooring. When carrying plates into the club’s kitchen, she slipped and fell upon the water and oil. She suffered serious lower back injuries requiring surgery.

Court action was commenced upon behalf of our client, and we successfully argued that the employer was negligent in failing to provide a safe system of work through the removal of non-slip mats. The Court accepted those arguments.

The insurer raised numerous arguments as to credibility of witness evidence, which the Court rejected. The Court also rejected any notion that our client had caused or contributed to her own injury and His Honour opposed the suggestion that she had not taken steps to mitigate her own losses.

In fact, it was established in Court that our client was an honest, hard-working young lady who deserved to be compensated for the loss of income associated with her injuries. The loss of income was assessed in accordance with her post-qualification earning potential, not her pre-injury wage.

The Court assessed lost income at the higher end of available calculations and awarded $1M for future losses, $140,000 for future lost superannuation, and the remaining $330,000 awarded in relation to past losses.*

Kells was pleased to achieve such an excellent result.

With very few of these cases being heard in Court each year, this particular Court decision is a win for workers, a warning for insurer’s who under-assess the value of a claim, and a demonstration that excellent legal representation can make a real difference for injured workers.

* The nature of this claim (a Work Injury Damages claim) meant that only losses in respect of earnings could be recovered, with the law and legislation restricting the types of compensation claimable. Other claims may not be so restricted.

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What happens when you buy a house with tenants?

Thu, 19 Sep 2024 08:15:59 GMT

When you buy a residential property subject to an existing tenancy, there are a number of considerations:

1. Term of Existing Lease Agreement

Fixed-term Lease: Is where the agreement is for a period of time and has a specific end date (e.g for 6 or 12 months). Unless otherwise permitted by the Residential Tenancies Act 2010 (such as for breach of the agreement and/or failure to pay) you cannot require tenants to vacate before the end of the fixed term.
Periodic Lease: Is where a fixed-term has not been specified in an agreement or where the fixed-term of an agreement has expired. A periodic lease may be brought to an end without grounds, subject to providing notice as required by Residential Tenancies Act 2010 (typically a 90-day notice period).

2. Transfer of Bond

The tenant's bond is held by the NSW Rental Bond Board. Upon your purchase, you'll need to complete a "Change of Managing Agent/Owner" form to transfer the bond records to your name.

3. Inspection and Condition

Before purchasing, you should inspect the property and review the tenant’s ingoing condition report to ensure there are no surprises. You might also want to review the tenant's payment history and enquire as to any existing breaches of the rental agreement.

4. Rental Income

As the new owner, you will receive the rental income from the property. Ensure that arrangements for rent payments are updated with the tenants and/or managing agent and that the rent is correctly adjusted in accordance with the contract.

5. Property Management

If the property was managed by a real estate agent, you might consider continuing with the same agent or switching to a new one. If you choose to self-manage, you’ll need to familiarise yourself with NSW tenancy laws.

6. Insurance

It’s strongly recommended that you have landlord insurance that covers tenant-related risks such as malicious damage to the property and/or loss of rental income.

It's advisable to seek legal advice and/or consult with a real estate professional to ensure you understand your obligations and rights when buying a property with tenants in NSW. Do you need property advice? Reach out to our experienced and friendly property lawyers .

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4 reasons why your compensation claim is taking so long

Thu, 12 Sep 2024 02:19:04 GMT

1. It takes time to develop the case

Obtaining medical and expert evidence to build the case takes time. Whilst a lawyer can act quickly in booking in assessments and sending out letters commissioning a report at the earliest opportunity, an expert may take several months to produce a report. The more sizeable and/or complex the claim (such as those involving significant traumatic injuries, multiple parties or disputed liability and causation allegations) generally the more involved they are, requiring action such as briefing a barrister, conducting discovery, issuing subpoenas, gathering witness evidence and medical evidence from multiple specialists etc. And for every piece of evidence served, the other side is entitled to obtain evidence in reply, to which the plaintiff should then counteract with supplementary evidence. It’s the nature of our adversarial system.

2. Your injuries haven’t stabilised

Some evidence (obtained via medical assessment) cannot be gathered until you have reached maximum medical improvement (i.e. your condition is stable). This is usually 12 months after an accident, or 12 months after surgery or non-conservative treatment. This can’t be helped, other than by you ensuring you are exhausting all treatment options at the earliest opportunities and keeping your lawyers up to date along the way.

Any resolution/ settlement (and obviously judgements by a Court) are full and final. Therefore its crucial to obtain all appropriate evidence to put your best case forward and ensure you obtain the maximum compensation available.

3. Is your lawyer thinking strategically & exhausting alternative dispute resolution processes?

The time a case takes to resolve can also be largely influenced by the approach taken by the representing parties. Lawyers acting on behalf of the Plaintiff should be strategic in their approach, balancing costs/benefit and always moving the matter along with diligence and speed, to get to the settlement process as quickly as possible. Wherever possible, informal settlement processes should be explored prior to commencing formal court proceedings.

Whether early settlement negotiations are successful, often depends on a number of factors such as: the expectation of the injured plaintiff; how well prepared the case is; the view taken by the other side as to the value of the case (based on evidence served and how the case is presented at the time) and whether the parties are reasonable, willing to compromise and of a commercial mindset (because all that can be obtained is financial compensation).

4. The matter is required to be filed in Court

If the parties are unable to resolve the matter, because the other side wholly denies liability and is unwilling to negotiate or where there isn’t a meeting of the minds as to the value of the case (and therefore settlement negotiations are ultimately futile), the only means of redress may be through the Court system.

The Court process can tac on an additional 12 to 18 months, from the time a matter is filed in Court to an actual Hearing. In the meantime, a timetable is set by the court. There are rules in place for solicitors, the purpose of which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings . There are also practice notes for solicitors to comply with. But notwithstanding, there can be delays – as mentioned in the above paragraphs. It can also take months to receive a judgement, where it is reserved.

I hope these insights into why your compensation claim might be taking longer than you expected brings about a level of understanding and, perhaps, reassurance. Don’t hesitate asking your solicitor what the hold-up may be. Having an experienced and savvy compensation lawyer can potentially expedite the process. Need advice? Reach out to our caring and experienced compensation lawyers .

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Why is making a binding death benefit nomination important?

Thu, 12 Sep 2024 02:19:01 GMT

In short, it is possible to lose control over who benefits from your superannuation after your death if you do not have a binding death benefit nomination in place at the time of your death.

Here’s why:

Trustee Discretion: Without a binding death benefit nomination, the trustee of the superannuation fund is not required to observe the deceased’s wishes about who receives the death benefit payable as a consequence of their death. This means there is the potential for the Trustee’s discretion to come into play when deciding who to pay death benefits to and the outcome may not align with the deceased’s wishes.
Legal Challenges: The absence of a binding death benefit nomination can lead to disputes among potential beneficiaries, which can result in legal challenges and delay the distribution of death benefits.
Intestate Succession: If the deceased did not have a will or a binding death benefit nomination, the distribution of assets will follow the laws surrounding intestacy. These laws dictate which relatives are entitled to claim a deceased’s assets and is not a reflection of the deceased’s wishes surrounding his intended beneficiaries.
Tax Implications: The distribution of death benefits to different individuals can have different tax consequences. How much of the death benefits payable are taxed can sometimes be controlled by who is nominated. Without a nomination, there is no control over the potential for beneficiaries to be taxed and an unnecessary reduction in the overall benefit to beneficiaries could be the result.
Administrative Delays: The process the Superannuation Fund follows to determine who is the rightful beneficiaries can take substantially longer without a binding death benefit nomination, causing delays in the distribution of death benefits to beneficiaries and increasing the likelihood of conflict where there are competing claims.

To avoid these issues, it’s advisable to regularly update and maintain a binding death benefit nomination with your superannuation fund and ensure your will is up to date. Wills and death benefit nominations should work together to achieve the overall desired outcome. Consulting with an experienced estate planning lawyer can provide further guidance tailored to your specific situation. Need advice? Reach out to our caring and experienced estate planning lawyers today.

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The new Workplace Justice Visa that protects overseas workers

Thu, 12 Sep 2024 02:08:39 GMT

Recently a new visa has been introduced and provides hope to migrant workers who are battling for justice against exploitation.

The Workplace Justice Visa is a new initiative in Australia designed to protect migrant workers from being unfairly treated while also keeping their immigration status safe and sound.

Here we explain this new visa.

Purpose: It allows migrant workers who have faced unfair treatment, such as underpayment or unsafe working conditions, to stay in Australia temporarily to address these issues without fear of losing their visa status.

Duration: The visa is short-term, typically allowing workers to remain in Australia for up to six months while they pursue their labour claims.

Protections: It includes protections against visa cancellation, ensuring that workers can come forward to report exploitation without the risk of being deported.

Impact: This visa aims to break the cycle of exploitation by enabling workers to hold employers accountable for labour violations and modern slavery .

This initiative is part of broader reforms to improve workplace justice outcomes and ensure fair treatment for all workers in Australia .

If you require assistance with the visa or require immigration advice, please feel free to contact our experienced immigration lawyers .

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Does infidelity affect divorce settlement in Australia?

Thu, 12 Sep 2024 02:05:27 GMT

In Australia, infidelity does not have a direct impact on the financial settlement of a divorce.

The Family Law Act 1975 establishes a "no-fault" divorce system, meaning the court does not consider the reasons for the breakdown of the marriage or defacto relationship when determining an application in relation to financial matters, including issues of property division or spousal maintenance.

Instead, the court focuses on a just and equitable division of assets based on factors such as:

The financial contributions of each party.
The non-financial contributions – such as manual labour to improve or renovate a property of the marriage.
The contributions to the welfare of the family - such as homemaking or caring for children.
The future needs of each party, including their earning capacity, age, health, and care of children.

However, if the infidelity has involved a significant financial waste or misuse of marital assets, this may be considered in the settlement process. For example, if a spouse has recklessly spent a significant amount of money whilst having an affair with the intention of reducing the size of the asset pool, the expenditure of funds could potentially be factored in as "wastage" of matrimonial assets, affecting the property division.

Whilst the infidelity in itself is not a relevant factor to be considered, the Family Law Act sets out a framework to ensure the court has regard to the complete financial circumstances of the parties, prior to determining any outcome.

Whether you’ve recently found out that your spouse has had an affair and you’re considering a separation, or you are the partner who cheated on their spouse, you can discuss your situation and obtain legal advice from our experienced divorce lawyers. Our team is highly experienced in all aspects of divorce and separation . We can answer questions relating to your unique specific circumstances and ensure you understand your options and obligations.

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Pre-settlements inspections: what are my rights?

Thu, 12 Sep 2024 02:02:55 GMT

A pre-settlement inspection, also known as a final inspection, is a crucial step in the process of purchasing a property in Australia. It allows the buyer to inspect the property to ensure it is in the same condition as when the contract was signed and that any agreed-upon repairs or inclusions are present.

Right to Inspect the Property: As a buyer, you have the right to conduct a pre-settlement inspection to confirm that the property is in the same condition as when you agreed to purchase it. This inspection is usually carried out a few days before the settlement date.
Inspect for Agreed Repairs and Inclusions: You have the right to ensure that any repairs agreed upon in the contract have been completed satisfactorily. Additionally, you should check that all fixtures, fittings, and inclusions listed in the contract are still in place and in good working order.
Check for Damage or Changes: During the inspection, you can check for any new damage or changes to the property that may have occurred since the exchange of contracts. This includes checking for any structural damage, leaks, or missing items.
Request Repairs or Compensation: If you find that the property is not in the agreed condition, or if there are missing inclusions or fixtures, you may have the right to request that the seller rectify the issues before settlement. Alternatively, you may negotiate a reduction in the purchase price or seek compensation (if this Contract permits this option).
Professional Assistance: You may wish to bring a professional, such as a building inspector or a real estate agent, to assist you during the inspection. This can help ensure that any issues are properly identified and documented.
Multiple Inspections: If needed, you may have the right to conduct a subsequent inspections, particularly if there were issues that needed to be addressed after the initial inspection.

Tips for a Successful Pre-Settlement Inspection

Schedule the Inspection Early: Arrange the inspection well in advance to give yourself time to address any issues that may arise.
Use a Checklist: Create a checklist of things to inspect, including all agreed-upon repairs, fixtures, and fittings.
Document Findings: Take photos and notes of any issues you find during the inspection for evidence if disputes arise.
Communicate with Your Conveyancer or Solicitor: Keep your conveyancer or solicitor informed of any issues so they can negotiate with the seller’s legal team on your behalf.

By understanding your rights and responsibilities during a pre-settlement inspection in NSW, you can help ensure a smooth and satisfactory property purchase process.

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What steps should employers take to comply with the new the Right to Disconnect Law in Australia

Thu, 12 Sep 2024 01:59:29 GMT

Want the legal right to ignore your boss outside working hours? Well now you can. Millions of Australians will now be able to clock off from their work shifts without having to be available after hours.

The new Right to Disconnect Law recently came into effect and this means that employees will now have the right to ignore all work communications out of working hours, unless doing so is unreasonable.

This new law applies to all Australian businesses with over 15 employees.

Employers should take steps now to prepare for this new disconnection law and as an employer, you need to ensure that your managers and team understand the new laws.

Do you need assistance with creating a policy to deal with the above? Contact our experienced employment lawyers to discuss this further and to understand how best to prepare your business.

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How do you remove an easement from your property in NSW?

Wed, 14 Aug 2024 00:29:24 GMT

Removing an easement from your property in New South Wales (NSW) can be a complex process, as easements are legally binding rights that allow another party to use a portion of your land for a specific purpose (e.g., access, utilities). Here’s a general overview of the steps you might take to remove an easement:

1. Understand the Easement

Review the Title: Check your property's certificate of title to understand the details of the easement, including who benefits from it and its purpose.
Legal Nature: Determine whether the easement is registered (on the title) or unregistered, and whether it’s positive (allowing someone else to use part of your land) or negative (restricting certain activities on your land).

2. Consult with Stakeholders

Beneficiary of the Easement: Contact the person or entity that benefits from the easement. In many cases, you’ll need their consent to remove the easement.
Legal Advice: It’s advisable to consult a property lawyer who can provide guidance based on your specific situation and help you navigate the process.

3. Negotiation

Agreement: If the beneficiary agrees to the removal, you can negotiate terms, possibly offering compensation or an alternative solution.
Modification: If complete removal isn't feasible, consider negotiating a modification of the easement to better suit your needs.

4. Apply to the Supreme Court (if necessary)

If the beneficiary does not consent to the removal of the easement, you may need to apply to the Supreme Court of NSW for an order to remove or vary the easement under Section 89 of the Conveyancing Act 1919.
The court may grant the application if it finds that the easement is obsolete, that it impedes the reasonable use of the land, or that it no longer serves its intended purpose. The court will consider the rights of all parties, including whether compensation should be paid.

5. Register the Change

Lodgement with NSW Land Registry Services: If the easement is removed or modified, you must lodge the necessary documents with NSW Land Registry Services to update the title. This usually involves submitting the court order (if applicable) or documents signed by all stakeholders.

6. Final Steps

Update Records: Once the easement is removed from the title, your property’s certificate of title will be updated to reflect the change.
Inform Interested Parties: Notify any interested parties, such as your mortgage lender, of the change to the property’s title.

Important Considerations

Complexity: The process can be legally and procedurally complex, particularly if the removal is contested, so having professional legal support is crucial.
Time and Cost: Be prepared for the process to take time and potentially involve significant costs, especially if court proceedings are required.

Given the potential legal complexities, working closely with an experienced lawyer is highly recommended. For further information on removing easements, contact our property lawyers today .

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How to start your own charity?

Wed, 14 Aug 2024 00:27:15 GMT

Starting your own charity in New South Wales, involves several steps to ensure compliance with legal requirements and to establish a foundation and purpose for your charitable activities. A general outline of the process involved is provided below:

1. Define Your Mission and Objectives

Mission Statement: Clearly define the purpose and goals of your charity. What issues or causes will your charity address?

Charitable Purpose: Ensure your objectives fall within the legal definition of a charitable purpose, which typically includes relief of poverty, advancement of education, advancement of religion, or other purposes beneficial to the community.

2. Choose a Structure

There are 2 main structures that are utilised for registered charities, being:

An incorporated association: An entity that is established under the provisions of the Associations Incorporation Act (NSW) 2009, with specific requirements surrounding the number of members required and the establishment of a management committee. The benefit of this structure is that it creates a separate legal entity.
A company limited by guarantee: Alternatively, you may consider incorporating your charity as a not-for-profit company limited by guarantee. This structure provides limited liability for members.

3. Develop Governing Documents

Constitution: Both incorporated associations and companies are required to have a Constitution, that outlines the charity's objectives, governance structure, membership rules, and operational procedures.

Compliance: Ensure your governing documents comply with relevant laws and regulations, including state and federal charity laws.

4. Register Your Charity

Australian Charities and Not-for-profits Commission ('ACNC'): Register your charity with the ACNC, the national regulator of charities in Australia. This registration is required for tax concessions and public trust.

Australian Business Number ('ABN'): Obtain an ABN for your charity to facilitate dealings with the government and tax office.

5. Tax and Deductible Gift Recipient ('DGR') Status

DGR Status: Apply for DGR status with the ATO if your charity intends to offer tax-deductible receipts for donations. This status requires meeting specific criteria and eligibility is based on an organisation's purpose.

6. Operational Considerations

Policies and Procedures: Develop policies for financial management, governance, fundraising, and compliance with legal obligations.

Insurance: Consider appropriate insurance coverage for your charity, including public liability insurance and directors' and officers' liability insurance.

7. Fundraising and Public Disclosure

Charitable Fundraising License: Obtain a fundraising license from the NSW Department of Fair Trading in order to have authority to appeal to the public for funds.

Annual Reporting: Comply with ACNC requirements for annual reporting, including financial statements and activities.

8. Seek Professional Advice

Legal and Accounting Advice: We highly recommend consulting with professionals specialising in charity law and relevant financial advisers and accountants to ensure compliance and effective governance for your organisation.

9. Launch and Promote Your Charity

Promotion: Once established, promote your charity's activities in the community to attract supporters, volunteers, and to help achieve your charity's purpose.

Whilst it can be incredibly rewarding, starting a charity involves careful planning, compliance with legal requirements, and dedication to fulfilling your charitable objectives. Seeking professional legal advice and guidance throughout the process can help ensure a smooth establishment and operation of your charity in NSW.

At Kells, we have assisted many charities , and we take the time to understand your charitable needs and deliver solutions and outcomes that will enhance and grow your charity.

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How much compensation do you get for a fall in a supermarket?

Wed, 14 Aug 2024 00:21:50 GMT

The amount of compensation you might receive for a fall in a supermarket can vary widely depending on several factors:

Extent of Injury: Compensation often takes into account the severity and long-term impact of your injuries. More serious injuries that require extensive medical treatment, rehabilitation, or result in permanent disability may lead to higher compensation.
Negligence: Whether the supermarket was negligent in maintaining safe premises is a crucial factor. If it can be proven that the fall occurred due to the supermarket's failure to address hazards or maintain safety standards, this could affect the compensation amount.
Economic Losses: Compensation may include reimbursement for medical expenses, loss of income due to inability to work, and any other financial losses directly related to the injury.
Non-Economic Losses: This includes compensation for pain and suffering, loss of enjoyment of life, and emotional distress resulting from the injury.
Legal Factors: The jurisdiction (in this case, NSW) and legal precedents also influence compensation amounts.

Another head of damages/area of compensation that someone may be entitled to is commercial care/domestic assistance, this includes compensation for the cost of cleaning and household equipment you may require into the future to assist you with your injury around the home

To determine a specific amount, it's crucial to consult with an experienced personal injury lawyer who can assess your case based on the above factors and provide guidance on potential compensation ranges. They can also help navigate the legal process and negotiate with insurance companies or pursue legal action if necessary. Each case is unique, so speaking with a legal professional is the best way to understand what compensation you might be entitled to after a fall in a supermarket in NSW.

At Kells, we have a team of highly experienced compensation lawyers who have assisted people who have fallen over in a supermarket. If you are unsure if you have a claim or not, contact us for a free assessment and if we proceed to make a claim, all our legal services are provided on a no win, no fee basis. Reach out to our caring and experienced team today.

There are strict time limitations, so don't delay in contacting one of our experienced lawyers today .

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How long after separation can I claim property?

Wed, 14 Aug 2024 00:17:44 GMT

Both married and de facto couples have a right to make a claim on a property after separation in Australia. For married couples, you have a time limit of 12 months from the date an Application for Divorce is granted to file an application for property settlement in the Federal Circuit and Family Court of Australia. The same time limit does not apply if you seek to finalise your property settlement prior to making an application for divorce.

For de facto relationships, the time limit is 2 years from the date of separation.

If you miss these deadlines, you can still apply. However, you'll need the court's permission to make an application for property settlement. There is no guarantee that the application to proceed out of time will be granted. However, you may have grounds if there are significant reasons (like you and your ex-partner still owing property in joint names) or special circumstances. It's advisable to seek family legal advice to understand your rights and ensure that you take timely action.

It's not a matter of fault or blame; the law aims to distribute assets fairly, regardless of the reasons behind the relationship breakdown. There is no mathematical formula; what is considered fair is dependent on each case and its circumstances.

Professional legal guidance ensures you understand your rights and obligations, helping secure an equitable property division. With expert advice, you can confidently make informed decisions, ensuring the settlement is fair and facilitating a positive step towards future stability for all involved. The family lawyers at Kells can provide you with that advice. Reach out and contact us today.

Wanting a fair property settlement following a divorce or de facto relationship breakdown? The property settlement lawyers at Kells have extensive experience in the division of property and assets post-separation and divorce.

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Is Probate and Letters of Administration the same thing?

Wed, 14 Aug 2024 00:13:48 GMT

Did you know that in New South Wales (NSW), Probate and Letters of Administration are not the same thing, although they are related legal concepts.

Probate: Probate is the legal process where a deceased person's Will is proved valid by the Supreme Court of NSW. It confirms the appointment of the executor(s) named in the will and gives them authority to administer the deceased person's estate according to the terms of the Will.
Letters of Administration: Letters of Administration are granted by the Supreme Court of NSW when a person dies without a valid Will (intestate) or when the named executor(s) in the Will are unable or unwilling to act. The court appoints an administrator to manage the estate according to the rules of intestacy or as otherwise determined by the court.

Key differences:

Will Requirement: Probate requires a valid Will, while Letters of Administration are necessary when there is no valid Will or when the executor cannot act.
Executor/Administrator: Probate appoints an executor named in the Will; Letters of Administration appoint an administrator designated by the court.
Process: While both involve court proceedings, the specific procedures and requirements differ depending on whether there is a Will or not.

Probate and Letters of Administration serve similar purposes in administering a deceased person's estate but are distinct legal processes used in different circumstances (with a Will or without a Will).

Do note, it is always simpler to administer an estate when a Will has been prepared by the deceased person as their wishes are set out in that document. Administering an estate without a Will increases the work an administrator has to undertake and makes it a more complex and therefore expensive process.

Do you need advice? At Kells, we have a team of caring and experienced Probate lawyers who are able to assist you during this difficult time and help manage the process for you.

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Can your employer monitor you whilst working from home?

Wed, 14 Aug 2024 00:09:56 GMT

If you work from home, your employer can monitor your work. In New South Wales, the Workplace Surveillance Act 2005 outlines the regulations for the operation and usage of surveillance equipment and recordings by businesses.

Employers in New South Wales (NSW) can generally have the right to monitor employees while they are working from home, but there are important considerations and limitations to be aware of:

Consent and Notice: Employers should generally inform employees if monitoring will occur and obtain their consent where required by law or employment contracts.
Reasonable Expectation of Privacy: Employees may still have a reasonable expectation of privacy, especially in their own homes. Monitoring should be proportionate to the legitimate business interests of the employer and should not unnecessarily intrude on an employee's privacy.
Types of Monitoring: Monitoring can take various forms, such as tracking internet usage, reviewing work-related communications (emails, messages), or using software to monitor productivity or activity levels. The specific methods and extent of monitoring should be reasonable and justified by legitimate business reasons.
Employment Contracts and Policies: Employment contracts or workplace policies may outline the circumstances under which monitoring may occur and the expectations around privacy and confidentiality. It's important for both employers and employees to understand and adhere to these provisions.
Impact on Trust and Morale: Excessive or intrusive monitoring can potentially impact trust and morale among employees. Employers should strike a balance between monitoring for legitimate business purposes and respecting employees' privacy rights and expectations.

In summary, while employers in NSW can monitor employees working from home under certain conditions, they must do so in a manner that is reasonable, proportionate, and compliant with privacy laws and employment agreements. It's advisable for employers to have clear policies and communicate transparently with employees regarding monitoring practices to ensure mutual understanding and compliance.

If you are experiencing privacy related issues in the workplace or require an employment contract to be reviewed, we recommend speaking with one of our experienced employment lawyers .

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New industrial manslaughter laws now in effect

Wed, 17 Jul 2024 00:59:20 GMT

All workers should have the right to return home from work safely however since 2019, more than 300 workers have been killed in New South Wales .

Tough new industrial manslaughter laws have come into effect and employers can now face up to 20 years in prison or be fined by up to $18 million if they are found to have caused the death of a worker through a reckless or grossly negligent breach of health and safety.

The introduction of this new law will hold employers accountable for acts of gross neglect and recklessness with the aim of deterring employers who may disregard their work health and safety obligations in New South Wales.

For more information on this recent change in law, reach out to speak with one of our experienced criminal lawyers . Our crime team operates 24/7, 365 days a year and your first consultation is free.

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New law: Seatbelt detection cameras are now live

Mon, 15 Jul 2024 00:19:32 GMT

From 1 July 2024, mobile phone detection cameras in New South Wales (NSW) will be able to detect drivers and passengers who are not wearing a seatbelt or wearing their seatbelt incorrectly, including with the belt under the arm.

The NSW Government announced the change on 5 May 2024 during the National Road Safety Week citing the reduction of road trauma and fatalities as the catalyst for the change.

In NSW, the penalties include a fine of $410 for a single person and 3 demerit points which are allocated to the driver. If there are 4 or more unrestrained people in the car, a fine of $1,728 and 6 demerit points can be imposed.

Unlike the introduction of previous enforcement technologies, NSW Parliament have decided that the change will come into immediate effect with no grace period or warning letters to be sent if you are caught out by the cameras.

Do you need traffic law advice ? Our traffic lawyers are available 24/7 and our first consultation is free.

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Greater flexibility and support provided for temporary migrants – changes to visa conditions 8107, 8607 and 8608

Mon, 15 Jul 2024 00:16:44 GMT

In accordance with the Migration Strategy , the Australian Government has made changes to visa conditions 8107, 8607, and 8608, effective from 1 July 2024. These changes will help combat worker exploitation and boost productivity.

Those who hold a subclass 457, 482 and 494 visa will have more time to find a new sponsor, apply for a different visa, or arrange to leave Australia.

The holders of these visas will have:

180 days all at once, or
a limit of 365 days altogether across the whole visa award period.

During this time, visa holders can work for different employers. This includes working in occupations different to the occupation of their most recent sponsorship nomination approval. This will guarantee that visa holders can uphold themselves while they search for another support.

A visa holder cannot work for another employer unless they have stopped working for their sponsoring employer, unless they are exempt. While working for their current sponsor, visa holders must continue in their designated occupation.

Sponsors are still required to notify the department within 28 days of any change in circumstances.

These amendments apply to existing visa holders, as well as those granted a visa after 1 July 2024.

Do you need advice on how these changes will impact your situation? Reach out to our experienced migration team today and learn more in how we can assist you.

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Coercive control laws now in effect

Mon, 15 Jul 2024 00:15:32 GMT

From 1 July 2024, coercive control in current and former intimate partner relationships will become a criminal offence in New South Wales.

The Crimes Legislation Amendment (Coercive Control) Act 2022 which was passed in November 2022, defines domestic abuse as a pattern of repeated behaviours of physical or non-physical abuse that hurt, scare, intimidate, threaten or isolate another person with the intent to coerce or control them. This can be any combination of behaviours if when viewed in its totality, is abusive.

The legislation provides a non-exhaustive list of behaviours that may constitute abusive behaviour being:

Behaviour that causes harm to a child, another adult or the person against who the behaviour is directed;
Behaviour that is economically or financially abusive;
Behaviour that shames, degrades or humiliates;
Behaviour – whether physical or using technology - that harasses, monitors or tracks a person;
Behaviour that causes damage or destruction of property;
Behaviour that prevents or isolates a person from keeping connections with family, friends or engaging in cultural practice;
Behaviour that threatens or causes injury or death to an animal to threaten the person; and
Behaviour that deprives or restricts a person’s liberty or unreasonably controls a person’s day-to-day activities.

To be found guilty of domestic abuse, the Prosecution must establish a repeated or continuous pattern of abusive behaviour even if each incident relied on wouldn’t be its own separate offence.

Upon a finding of guilt, the offence carries a maximum term of imprisonment of 7 years.

However there is a defence available in the legislation that if evidence suggests the pattern of behaviour that is alleged to be abusive is reasonable in all the circumstances and the Prosecution cannot prove otherwise, there must be a not-guilty verdict.

Do you need criminal law advice ? At Kells, our criminal lawyers provide their first consultation free of charge. Reach out to our experienced and understanding criminal lawyers for advice.

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Can I claim for a mental health injury?

Wed, 03 Jul 2024 07:34:11 GMT

In New South Wales (NSW), you may be able to claim compensation for a mental health injury under certain circumstances, particularly if the injury was caused by the negligence or wrongdoing of another party. Here are some key points to consider:

Workers Compensation: If you developed a mental health condition as a result of your work or workplace conditions, you may be eligible to claim under the workers compensation scheme in NSW. This could include conditions like anxiety, depression, or post-traumatic stress disorder (PTSD) arising from work-related stress, bullying, or traumatic incidents at work.

Motor Vehicle Accidents: If you were involved in a motor vehicle accident and developed a mental health injury as a result (such as PTSD or anxiety), you may be entitled to claim compensation for both physical and psychological injuries.

Public Liability: If you suffered a mental health injury due to negligence on the part of a public entity or private business (e.g., due to inadequate safety measures or premises conditions), you may have grounds to claim compensation under public liability law.

Negligence Claims: In general, if you can demonstrate that your mental health injury resulted from the negligence or wrongful actions of another party (including medical malpractice, assault, or accidents caused by negligence), you may be able to pursue a compensation claim.

Superannuation Claims: If you have total and permanent disability insurance attached to your superannuation fund, have not worked for at least 6 months and have ceased employment due to injury/illness you may be entitled to a lump sum.

Time Limits: It's important to be aware of time limits for making compensation claims in NSW. Generally, you need to lodge your claim within a certain timeframe from the date of the incident or when you became aware of your injury. Seeking legal advice promptly can help ensure you understand these deadlines and your legal rights.

Evidence and Documentation: To support your claim, you may need medical evidence documenting your mental health injury and its cause. This could include reports from treating doctors, psychologists, or psychiatrists detailing your condition and its impact on your life.

To navigate the process of claiming compensation for a mental health injury in NSW, it's highly recommended to consult with an experienced personal injury lawyer . Need advice? At Kells, our compensation team will provide a tailored advice based on the specifics of your situation and help you understand your options for pursuing compensation. Our first consultation is free and if you proceed in making a claim, our compensation legal services are provided on a no win, no fee basis.

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Kells promotes next generation of legal leaders

Fri, 28 Jun 2024 10:00:21 GMT

Kells Lawyers are proud to announce the promotions of two lawyers as partners and one lawyer to special counsel, effective 1 July 2024.

Leading criminal lawyer, Patrick Schmidt and talented family lawyer, Ashleigh Barry are both promoted to the Kells’ partnership, along with highly skilled and experienced personal injury lawyer, Melissa Pacheco Zizic to special counsel. Patrick, Ashleigh and Melissa are constantly recognised by our clients and colleagues as committed and highly valued members of Kells.

Their promotions not only reflect their professional expertise and quality of service, but also highlights our unwavering commitment to supporting our lawyers as they develop and progress their careers at Kells.

Kells' Managing Partner Paul Magagnino said these promotions support our firm’s strategic goals – which are to grow our firm's legal expertise, and to support our internal talent pipeline through career development and advancement. We are fortunate to have such talented people at our firm.

"As a firm, we are committed to nurturing internal talent and providing our people with opportunities to grow within their roles and as future leaders of the firm,” said Mr Magagnino. “Patrick, Ashleigh and Melissa have continued to uphold Kells’ core values, display a high level of skill and talent in their areas of expertise, and deliver exceptional service, both to their clients and the firm.”

Kells has grown to become a leading full-service law firm in Sydney and the Illawarra region, working alongside our clients and evolving our services to meet our clients’ changing needs. We have a team of passionate, energetic and client focused legal professionals with over 65 staff based across 6 offices in Sydney and throughout the Illawarra.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

You’ve got mail! What to do if the ATO audits you

Mon, 17 Jun 2024 09:46:40 GMT

Australia’s self-assessment tax system

The income tax system in Australia is based on self-assessment. This means information you provide to the Australia Taxation Office (ATO) is initially accepted as being true and correct when you lodge your tax return and other forms which disclose a tax liability.

The ATO uses cross-checking technology to assess tax returns which may raise a red flag to the ATO. Taxpayer reviews and audits are the ATO’s way of confirming the information is accurate and complies with taxation laws and that the taxpayer has met their obligations.

What to do if your tax affairs are subject to an ATO audit?

Scrutiny by the ATO of your tax affairs is an unwelcome and daunting process. If handled incorrectly, it can lead to additional expense and stress.

1\. Stay calm. The letter is likely seeking documentation to support the claims in your return. It does not necessarily mean there is anything improper.

2\. Review your position. You need to review your tax position to ensure everything is in order and you agree the disclosures made to the ATO are correct. You may need to seek advice or input from your accountant (your accountant may liaise with the ATO on your behalf). The ATO may want to see your source documents to verify the accuracy of your claims, so have your supporting documentation such as receipts and invoices in order. Some common tax return mistakes include:

Failing to declare or miscalculating income
Claiming deductions you are not entitled to

3\. Provide factual responses to the ATO. Your answers should be honest and limited to the ATO specific questions. Do not provide more information than asked. If you notice an error or mistake you may need to correct it by lodging an amendment – the ATO looks favorably on self-disclosure.

4\. If you do not agree with the ATO audit decision and wish to assess your review options, seek legal advice if representation is required.

Time limit for ATO audit

For most taxpayers with simple affairs (e.g. individuals and smaller businesses), the period of review is generally two years.

For individuals or businesses with more complex affairs, the period of review is generally four years.

The time limit starts on the date the notice of assessment is issued by the ATO.

There is no review time limit if the ATO considers the taxpayer’s actions are tax fraud or tax evasion.

<**>**What documentation should I keep on file?

The best outcome of an ATO audit is being able to show to the ATO that your tax affairs are in order, and you have complied with your tax law obligations. To do so, good record keeping and being able to provide supporting documentation such as financial statements, schedules, contracts, tax reconciliations is important.

Most documentation and records should be kept for a minimum of 5 years, with information relating to CGT assets to be kept for the time the CGT asset is held plus 5 years.

It can be best practice to keep documentation indefinitely, as the ATO review period is open if it is considered there is tax fraud or evasion.

If you receive notice of an ATO tax audit and need legal advice, please contact us for further advice.

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Kells named in the debut edition of Best Law Firms in Australia

Fri, 14 Jun 2024 00:06:53 GMT

We are thrilled to announce Kells Lawyers has been included in the inaugural Best Law Firms in Australia 2025 Edition for Family Law and Personal Injury.

The first Best Law Firms Australia edition celebrates the superior quality and professionalism of the Australian legal community. With only the top 2% of firms being recognised, a ranking in the Best Law Firms in Australia signifies both a high-quality practice and extensive legal expertise. These rankings are determined through a rigorous evaluation process that includes the collection of client and professional reference evaluations, peer review from leading lawyers, as well as industry leader interviews.

This recognition highlights our firm’s excellence with a National Tier 1 ranking in Family Law and Tier 3 for Personal Injury Law with the Best Law Firms Australia edition debuted online and in print with The Australian newspaper.

Kells' Managing Partner Paul Magagnino said we are honoured to be recognised in the top 2% of law firms in Australia for our Family Law and Personal Injury practice groups.

"These recognitions highlight the dedication of our lawyers in delivering value and quality legal services to our clients. A big congratulations to our fantastic team of lawyers in personal injury and family law for their hard work and commitment in delivering excellence in the legal profession.”

Kells has grown to become a leading full-serviced law firm in Sydney and the Illawarra region, working alongside our clients and evolving our services to meet our clients’ changing needs. We have a team of passionate, energetic and client focused legal professionals with over 65 staff based across 6 offices in Sydney and throughout the Illawarra.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Top 5 things to be careful of when selling a property

Thu, 13 Jun 2024 07:34:17 GMT

When selling a property, it's essential to proceed with caution to ensure a smooth and successful transaction. Here are the top five things to be careful of when selling a property:

Pricing Strategy: Setting the right price for your property is crucial. Overpricing can deter potential buyers and prolong the time your property stays on the market, while underpricing may result in financial loss. Research comparable properties in your area, consider market trends, and seek advice from real estate professionals to determine a competitive and realistic asking price.

Property Presentation: First impressions matter when selling a property. Ensure your property is well-presented and in good condition to attract buyers. This includes decluttering, cleaning, making necessary repairs, and enhancing curb appeal. Professional staging and photography can also help showcase your property's best features and attract more buyers.

Legal Obligations: Selling a property involves various legal obligations and requirements that must be met. Ensure you comply with all relevant laws and regulations, including obtaining necessary permits and certificates, and adhering to contract terms. Always seek advice from a licensed conveyancer or conveyancing lawyer to guide you through the legal aspects of the sale.

Timing of Sale: Timing can significantly impact the success of your property sale. Consider market conditions, seasonality, and local factors when determining the best time to sell. While there's no perfect time to sell, timing your sale strategically can help maximize your property's exposure and attract more potential buyers.

Choosing the Right Agent: Selecting the right real estate agent to represent you is critical. Look for an agent with local market expertise, a proven track record of successful sales, and excellent communication skills. Ensure you understand the agent's fees and commission structure before signing any agreements, and don't hesitate to interview multiple agents to find the best fit for your needs.

By being mindful of these key considerations and seeking professional advice when needed, you can navigate the selling process with confidence and achieve a successful outcome for your property sale.

If you are planning on selling your property and want to ensure a smooth transaction from start to finish, you’ve come to the right place. At Kells, we take the hassle out of selling your property by providing high-quality conveyancing services to get your sale done right and fast.

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Are all written agreements legally binding?

Wed, 12 Jun 2024 08:27:03 GMT

It is important to know what a contract is at law. In New South Wales, as in most jurisdictions, not all written agreements are automatically legally binding.

Whether a written agreement is legally binding depends on several factors, including:

Offer and Acceptance: There must be a clear offer by one party and an unconditional acceptance of that offer by the other party. Both parties must agree to the terms of the contract voluntarily, without any undue influence or coercion.

Intention to Create Legal Relations: The parties must intend for the agreement to create legally enforceable obligations. For example, agreements between family members or friends for casual arrangements may not be intended to create legal relations and may not be enforceable.

Consideration: There must be consideration exchanged between the parties, meaning each party must give something of value in exchange for something else of value. This could be money, goods, services, or a promise to do, or not to do, something.

Capacity: Both parties must have the legal capacity to enter into a contract. This means they must be of sound mind, over the age of 18, and not under duress or undue influence.

Certainty: The terms of the agreement must be sufficiently clear and definite for a court to enforce them. Vague or ambiguous terms may render the agreement unenforceable.

Certain types of contracts must also comply with specific legal requirements to be enforceable.

If these elements are present, then the written agreement is likely to be legally binding. However, it is essential to note that the enforceability of contracts can vary depending on the specific circumstances of each case and applicable laws.

It is always a good idea to seek legal advice from an experienced contract lawyer to ensure that your agreements are legally binding and enforceable.

In addition, in case the agreement is legally binding and enforceable, it is important to obtain advice from a lawyer before you sign an agreement. It can be costly and difficult to try and vary or terminate an agreement after it has been signed.

If you need assistance with writing, or reviewing, a contract, please reach out to our highly experienced team of contract lawyers .

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What are the risks of representing yourself in a criminal court matter?

Wed, 12 Jun 2024 08:24:20 GMT

Representing yourself in a criminal court matter, also known as self-representation or appearing "pro se," can carry significant risks due to the complexity and seriousness of criminal law proceedings. Here are some of the key risks involved:

Lack of Legal Knowledge and Procedure: Criminal law is complex and intricate, involving statutes, case law, and procedural rules that may be difficult for a layperson to understand fully. Without a legal background, you may struggle to navigate the legal system effectively, leading to errors in procedure, misinterpretation of the law, or risk failing to adhere to Courtroom rules and decorum. This could result in objections from the prosecution, adverse rulings from the Judge or confusion among jurors.

Inadequate Preparation: Effective legal representation requires thorough preparation, including gathering evidence, researching case law, and developing legal arguments. Without legal training and experience, you may not know how to properly prepare your case, potentially leading to weak arguments or an incomplete defence strategy.

Emotional Involvement: Criminal cases can be emotionally charged, particularly if you are the accused. Emotions such as fear, anxiety, or anger may cloud your judgment and impair your ability to make rational decisions or communicate effectively in court.

Limited Resources and Support: Self-represented individuals may lack access to the resources and support available to those represented by legal counsel. This includes assistance with legal research, access to expert witnesses, and guidance on navigating the criminal justice system.

Risk of Waiving Rights: Without legal guidance, you may inadvertently waive important legal rights or defences that could have a significant impact on the outcome of your case. This could include waiving your right to silence or the right to challenge evidence presented by the prosecution.

Potential for Harsher Penalties: Inadequate representation or ineffective advocacy in court can result in adverse outcomes, including higher penalties, longer sentences, or even wrongful conviction. Once a judgment is made, it can be difficult to reverse, especially if errors occurred due to self-representation.

Knowing the players and the environment: Prosecutors are professionals and deal with criminal law on a daily basis, you need to match that knowledge to get the best possible outcome. Morse so in the Local Court, Magistrates exercise a degree of discretion when interpreting the law especially when dealing with a busy list. If you know tier general stance, you can aim submission to answer questions before they are asked.

Given these risks, it's generally advisable to seek legal representation if you are facing criminal charges. A qualified criminal defence lawyer can provide expert guidance, protect your rights, and advocate on your behalf to achieve the best possible outcome in your case.

If you need advice, contact our experienced criminal law team . We operate 24/7 and provide your first consultation FREE. Call us today 0452 502 041 or 0452 502 041 .

Photo 41736919 | Australian Court Law © Sarah Jane Duran | Dreamstime.com

What happens to your debts when you die?

Wed, 12 Jun 2024 08:22:37 GMT

When a person dies in New South Wales, their debts do not automatically disappear. Instead, the process of settling debts becomes part of the administration of the deceased person's estate. Here's what typically happens to debts when someone passes away.

Estate Administration: The Executor named in the deceased person's last Will, or an Administrator appointed by the Court after an application for Letters of Administration is responsible for administering the estate. Part of this process involves identifying and settling the deceased person's debts out of the assets of the estate.

Probate or Letters of Administration: Before the Executor or Administrator can begin to settle the deceased person's debts, they must usually apply for a Grant of Probate (if there is a Will) or Letters of Administration (if there is no Will). These legal documents provide the authority required authority for the Executor or Administrator to obtain the release of the assets of the Estate, pay the debts of the Estate and manage the deceased person's estate until all assets can be transferred to those with an entitlement in the Estate.

Debts Notification: The Executor or Administrator should notify creditors of the deceased person's death. Creditors may include mortgage lenders, credit card companies, utility providers, and any other entities to which the deceased owed money.

Debt Settlement: The Executor or Administrator is responsible for settling the deceased person's debts using the assets of the estate. This may involve selling assets, using funds from bank accounts, or liquidating investments to pay off creditors.

Order of Payment: In NSW, certain debts take priority over others. For example, funeral expenses, estate administration expenses, and taxes are typically paid first. Secured debts, such as mortgages or car loans, may have priority over unsecured debts like credit card debt or personal loans.

Insolvent Estates: If the deceased person's estate is insolvent, meaning that the debts exceed the value of the assets, the estate may be declared bankrupt. In such cases, the assets are distributed among creditors according to a specific order of priority set out in Bankruptcy law.

Distribution to Beneficiaries: Once all debts and expenses have been settled, the remaining assets of the estate can be distributed to the adult beneficiaries named in the Will or, if there is no Will, according to the rules of intestacy. The exception is where there are minor beneficiaries, in which case assets will be held in trust until the minor beneficiaries attain the age upon which they are entitled to their inheritance.

It's important to note that family members are generally not personally liable for the deceased person's debts unless they have provided a personal guarantee or co-signed a loan. However, assets owned jointly with the deceased may be used to settle debts. Creditors have a right to make a claim against all the deceased person's estate.

If you have been appointed as an Executor of a Will, or believe you may be entitled to a benefit in an estate with debts where there is no Will, and want to know more about how to deal with paying a deceased’s debts, reach out today to speak with one of our specialised Wills & Estates lawyers .

Photo 89860982 | Australian Cash © Amarosy | Dreamstime.com

What are the circumstances for insolvency?

Wed, 12 Jun 2024 08:19:21 GMT

Insolvency occurs when an individual or entity is unable to pay their debts as they fall due. Insolvency can lead to various legal consequences, including bankruptcy for individuals and liquidation or administration for companies. The grounds for insolvency are generally determined by assessing whether a person or entity meets certain criteria indicating financial distress. Here are the key indicators for insolvency:

I nability to Pay Debts: The primary indicator for insolvency is the inability to pay debts as they become due. This means that a person or entity is unable to meet their financial obligations as they fall due, indicating a lack of liquidity or solvency.

Cash Flow Test: One common test for insolvency is the cash flow test, which assesses whether a person or entity is experiencing ongoing financial difficulties and is unable to meet their financial obligations as they arise. This test looks at the ability to pay debts as they fall due based on cash flow projections.

Balance Sheet Test: Another test for insolvency is the balance sheet test, which assesses whether a person or entity's liabilities exceed their assets, indicating a lack of solvency. If the value of assets is insufficient to cover liabilities, it may be a sign of insolvency.

Failure to Pay Demands: If a person or entity fails to meet demands for payment from creditors, such as receiving a statutory demand for payment of debt and failing to comply within the specified timeframe, it may be considered evidence of insolvency.

Legal Proceedings: Legal actions taken by creditors to recover debts, such as court judgments or winding-up petitions against companies, can indicate financial distress and potential insolvency.

Inability to Raise Finance: If a person or entity is unable to secure financing or credit to meet their financial obligations, it may indicate underlying financial difficulties and potential insolvency.

Admission of Insolvency: A voluntary admission of insolvency by a person or entity, such as filing for bankruptcy or appointing an administrator for a company, can also be considered evidence of insolvency.

Insolvency matters are rarely straightforward and rely heavily on the technical and practical knowledge of legal experts to successfully navigate. If you believe you or your business may be insolvent, it's advisable to seek professional advice from an insolvency lawyer who can provide guidance on your options and obligations.

Here at Kells, our insolvency lawyers have a wide breadth of experience working with lending institutions, business stakeholders, directors, as well as leading insolvency practitioners.

Photo 198912196 © Zerbor | Dreamstime .com

Can I take annual leave while on workers compensation in NSW?

Mon, 27 May 2024 00:28:21 GMT

In New South Wales (NSW), Australia, you can take annual leave while on workers' compensation, but there are specific considerations and implications to be aware of.

Employer Approval: You must get approval from your employer to take annual leave. Even if you are on workers' compensation, the standard procedure for requesting and approving annual leave applies.
Impact on Workers' Compensation Payments:
Concurrent Payments: While on annual leave, your workers' compensation payments may be affected. In most cases, if you take paid annual leave, your workers' compensation benefits might be suspended for the duration of the leave. This is because you are receiving your normal wages during the leave period, and workers' compensation is designed to replace lost income.
Notification: It is important to notify your workers' compensation insurer about your leave plans. They need to be informed to adjust your benefits accordingly.
Medical Clearance: Depending on your injury and the nature of your leave, you might need medical clearance to ensure that taking leave will not negatively impact your recovery process. This is especially pertinent if you plan to travel or engage in activities that might affect your health condition.

Leave Accrual: You continue to accrue annual leave entitlements while on workers' compensation, as long as you remain employed by the same employer.

Here are some practical steps to take.

Check Your Award or Enterprise Agreement: Specific conditions around taking annual leave while on workers' compensation might be detailed in your employment award or enterprise agreement.

Communicate with Your Employer and Insurer: Maintain open communication with your employer and your workers' compensation insurer to ensure all parties are aware of your plans and any potential implications for your compensation benefits.

Document Everything: Keep a record of your leave request, employer’s approval, and any correspondence with the workers' compensation insurer.

While you can take annual leave while on workers' compensation in NSW, careful consideration and proper procedures must be followed to ensure compliance with regulations and to avoid any negative impact on your workers' compensation benefits. Always consult with your employer and the workers' compensation insurer before making any final decisions.

Lastly, you should also inform your compensation lawyer about any plans to holiday as your ability to travel and participate in recreational activities may be raised and considered when assessing the effects/impact of your injury relevant to your workers compensation claim.

Photo 31209314 | Leg Plaster Beach © Racorn | Dreamstime.com

Love abroad, what happens when you fall in love overseas whilst on a holiday?

Mon, 27 May 2024 00:24:56 GMT

Many people have had a Holiday romance whilst they have been on Holidays. Holidays seem to make people more relaxed and open to new experiences. However, what happens when this holiday romance turns to love?

Falling in love overseas and wanting to apply for an Australian visa can be an exciting but also complex process. If you're in a genuine and committed relationship with an Australian citizen or permanent resident, you may be eligible to apply for a partner visa.

Here are the general steps you might follow:

Assess Your Eligibility: Make sure you meet the eligibility criteria for the partner visa. This usually involves being in a genuine and ongoing relationship with an Australian citizen, permanent resident, or eligible New Zealand citizen.

Gather Documentation: You'll need to provide evidence of your relationship, such as joint financial commitments, social ties, and proof that you have been living together.

Apply for the Visa: This involves completing the relevant forms and providing all required documentation with the application process can be done online.

Wait for Processing: Partner visa processing times can vary, but it typically takes several months to 3 years for a decision to be made. During this time, you may be asked to provide additional information.

Receive the Visa: If your application is successful, you'll be granted a visa to enter or stay in Australia.

It's essential to carefully follow the instructions provided by the Australian Department of Home Affairs and seek advice from a migration lawyer to help you with the process.

Additionally, keep in mind that immigration laws and procedures can change, so it's a good idea to instruct an experienced migration lawyer who will be updated on any developments that might affect your application.

Need advice? Reach out today to speak with our experienced immigration team.

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I just got married, do I need an Enduring Power of Attorney?

Fri, 03 May 2024 01:15:05 GMT

In New South Wales, getting married does not automatically necessitate the creation of an Enduring Power of Attorney (EPOA). An Enduring Power of Attorney is a legal document that allows you to appoint someone else (i.e. your attorney) to make decisions on your behalf regarding your financial and legal affairs.

At the time of creating the document you have the power to elect at which point in time the attorney can act on your behalf. This can be:

immediately once the attorney accepts their appointment; or
when the attorney considers you require assistance managing your affairs; or
when you are medically assessed that you require assistance; or
for a specified period of time.

However, while marriage itself doesn't require a EPOA, it is a good time to consider having a EPOA put in place. Your spouse will not have an automatic right to transact on your legal and financial matters if you are unable to do so. This may become more important for couples where assets are owned in individual names rather than jointly. Having a EPOA in place can provide peace of mind and ensure that your spouse (if you choose) can manage your affairs if you're incapacitated.

Here are a few reasons why you might want to consider creating a EPOA.

Travel or Absence: If you and your spouse frequently travel or anticipate being absent for extended periods, having a EPOA in place can allow your spouse to manage your financial affairs in your absence. This is particularly important if you are in the process of purchasing or selling property in NSW.

Financial Management: An EPOA can enable your spouse to handle financial matters on your behalf, such as paying bills, accessing bank accounts, and managing investments, if you're unable to do so. You can also limit their power to specific assets.

Estate Planning: By appointing your spouse as your attorney, you ensure that they can act on your behalf if necessary, simplifying the administration of your estate in the event of your incapacity. An EPOA also allows you to appoint someone other than (or together with) your spouse. You do not automatically have to appoint your spouse which might be more of a concern with blended families.

Substitute Attorney: AN EPOA also allows you to appoint substitute attorneys in the event of your spouse passing away, vacating office or losing capacity. This may be particularly important if you have minor children.

While creating an Enduring Power of Attorney is optional, it's a proactive step that can provide important protections and benefits for you and your spouse. It's advisable to consult with a legal professional experienced in estate planning to discuss your specific circumstances and determine the most appropriate course of action. At Kells, we offer expert guidance and support in establishing an Enduring Power of Attorney to ensure your future and your wishes are protected.

Photo 209302396 © Rattana Rueangha | Dreamstime.com

Can I sell my small business without a lawyer in New South Wales?

Sat, 27 Apr 2024 00:23:00 GMT

While it's not compulsory to engage a lawyer to sell a small business in New South Wales, it's sensible to seek legal assistance to ensure the transaction is conducted correctly and to protect your interests. Selling a business involves various legal considerations, including preparing or reviewing contracts, considering taxation requirements and ensuring regulatory compliance. Some reasons why involving a business lawyer can be beneficial include:

Legal Expertise: We can provide valuable guidance on the legal aspects of selling your business, including drafting or reviewing contracts, negotiating terms, and ensuring compliance with relevant laws and regulations.

Risk Management: Selling a business involves certain risks, such as potential liabilities, contractual disputes or issues with transferring or negotiating new terms of a lease for the business premises. We can help identify and mitigate these risks, protecting you from future and ongoing legal issues.

Documentation and Contracts: Selling a business typically requires the preparation and execution of various legal documents, such as sale agreements, transfer documents, and warranties. We can draft or review these documents to ensure they accurately reflect the terms of the sale you agree to and safeguard your interests.

Due Diligence: Conducting thorough due diligence is essential to assess the value and viability of the business being sold. We can assist with the due diligence process, including reviewing financial records, contracts, leases, and other relevant documents to identify any potential issues or liabilities.

Tax Implications: Selling a business can have significant tax implications, including capital gains tax, goods and services tax (‘GST’), and stamp duty. We can provide guidance on the tax implications of the sale and help structure the transaction in a beneficial manner.

Selling a small business without a business lawyer increases the risk of overlooking important legal considerations and potential pitfalls. Investing in legal advice upfront can help ensure a smooth transaction, ultimately saving you time, money and stress now and in the future.

If you are thinking about selling your business, calling our team in the early stages for a no-obligation confidential discussion could help you to get the best possible outcome. At Kells we have a team of specialised business lawyers who would be happy to assist you.

Photo 188845589 | Sale Business © Coatchristophe | Dreamstime.com

Groundbreaking decision on recent motor vehicle accident case

Tue, 23 Apr 2024 00:51:57 GMT

Firstly, if you have sustained injuries in a motor vehicle accident you should promptly seek legal advice from an experienced compensation lawyer .

A recent motor vehicle accident case found that a 3cm superficial laceration to an injured claimants’ wrist was a ‘non-threshold’ (viz non-minor). If you have been injured in a car accident and it is determined that you are suffering from a ‘non-threshold’ injury you may be entitled to lump sum compensation for wage loss and in some cases pain and suffering.

Crucial evidence in the case was the ambulance report noting the lacerations, photographs of the injury and a doctor’s report (see link below).

It is important to ensure that all injuries including lacerations are included in the Application for Personal Injury Benefits form and Certificate of Capacity/Fitness.

Reach out today to speak with one of our caring and experienced personal injury lawyers . At Kells we provide a free case assessment and if you proceed to make a claim, we provide our compensation legal services on a no win, no fee basis. Contact us today to learn more in how we can help you.

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Two Kells' Partners recognised in The Best Lawyers Australia List 2025

Fri, 19 Apr 2024 06:41:09 GMT

Two Kells Partners recognised in The Best Lawyers Australia List 2025

Kells Lawyers is delighted to have two Kells' Partners recognised in the latest edition of the peer-reviewed Best Lawyers awards.

Peter Chodat and David Potts have been named among Australia's finest lawyers in the 17 ^th Edition of The Best Lawyers in Australia , announced on 19 April in the Australian .

For the sixth consecutive year Peter has been named in the annual Best Lawyers List for the area of family law and David for the third year being named as a Best Lawyer in personal injury litigation.

Best Lawyers is a peer-based listing designed to capture the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honour and signals legal expertise, ethics, and professionalism of the highest calibre. Lawyers are not required or allowed to pay a fee to be listed, therefore recognition by Best Lawyers is considered a singular honour.

Kells' Managing Partner Paul Magagnino said we are thrilled for Peter and David being recognised by their peers as leaders in their field of expertise.

"David and Peter are both outstanding lawyers and this recognition reflects their dedication to delivering exceptional legal services and the respect they have from their fellow peers," said Mr Magagnino.

David is the head of our compensation and employment teams and is an Accredited Specialist in Personal Injury, Employment Law. and Industrial Relations.

Peter leads our family law practice and is an Accredited Specialist in Family Law.

Kells is a team of passionate, energetic and client focused legal professionals with over 65 staff based across 6 offices in Sydney and the Illawarra region. Kells has 7 partners who each lead a practice group in their core area of law ensuring we can deliver the level of expertise and service to all our clients wherever they are located.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

What is my partner entitled to if we split?

Thu, 18 Apr 2024 05:36:40 GMT

In Australia, the division of assets and financial support after a relationship breakdown (whether marriage or de facto) is governed by the Family Law Act 1975 (Cth) for most of the country, except for Western Australia, which has its own Family Court system but largely follows similar principles.

When a couple splits, the following are typically considered:

Division of Property and Assets: This includes the division of all assets owned by both partners, either jointly or individually. Assets include real estate, investments, superannuation, and personal property. Debts are also considered. The division is based on a range of factors, including but not limited to:

The financial contributions made by each party (income, property brought into the relationship, etc.).
Non-financial contributions (such as physical labour towards the improvement of matrimonial property)
Contributions to the welfare of the family (such as homemaking and parenting).
The future needs of each party (age, health, financial resources, care of children).

Spousal Maintenance: One partner may be required to provide financial support to the other after separation, especially if there's a significant discrepancy in earning capacities, and one partner cannot meet their own reasonable expenses. This is assessed based on the needs of the applicant and the other party's capacity to pay.

Child Support: If there are children involved, both parents have a duty to support their children financially. The amount of child support is determined by a formula that considers the parents' incomes, the number of children, and the time children spend with each parent. Services Australia (Child Support) manages this process.

The process can be resolved in several ways:

Mutual Agreement: Couples can agree on the division of assets without going to court. This agreement can then be formalised by the court through consent orders, or they can enter into a binding financial agreement following specific legal guidelines.

Mediation or Family Dispute Resolution: This is a required step before court proceedings, where a neutral third party helps facilitate an agreement. In some cases, parties are not required to attend dispute resolution, for example if there are significant issues of family violence, or if one party would be disadvantaged by the need to attend mediation.

Court Proceedings: If an agreement can't be reached, the matter can be taken to court, where a judge will decide based on the principles outlined above.

It's essential to seek legal advice specific to your situation, as the outcome can vary greatly depending on individual circumstances. Family law can be complex, and each case is unique.

Do you need family law advice? Kells has a specialised team of experienced dedicated family lawyers conveniently located throughout Sydney and the Illawarra.

Photo 151860441 | Divorce © Andrii Yalanskyi | Dreamstime.com

Can a “coffin confessor” stop a funeral?

Thu, 18 Apr 2024 05:33:42 GMT

The concept of a "coffin confessor" is relatively novel and pertains to someone who, upon being entrusted with secrets by a person before their death, reveals these secrets at the person's funeral or executes certain tasks according to the deceased's wishes that family members or friends might not be aware of or agree with. This role is not officially recognised in legal terms, and its execution largely depends on the agreements made between the deceased (before their passing) and the coffin confessor, as well as the willingness of those in charge of the funeral arrangements, to allow the confessor to participate.

In Australia, the legality of stopping a funeral or the capacity of a coffin confessor to intervene in funeral arrangements depends on several factors:

Legal Authority and Wishes of the Deceased: If the deceased left a Will or any legally binding document that specifies particular wishes regarding their funeral or the disclosure of certain information posthumously, these wishes carry significant weight. However, the executor of the Will or the legal next of kin usually has the authority to make decisions about the funeral arrangements. A coffin confessor's interventions would need to align with these legal frameworks and the wishes explicitly expressed by the deceased.

Venue Policies and Public Order: Funeral homes, churches, or other venues where a funeral service might be held have policies in place regarding conduct during services. Additionally, actions that significantly disrupt public order or peace could have legal ramifications. If a coffin confessor's actions were to violate these policies or laws, they could be asked to leave or potentially face legal consequences.

Consent from the Family or Executor: If the family or the executor of the estate (who may or may not be a family member) has given explicit permission for the coffin confessor to participate in the funeral, their presence and actions would likely be deemed acceptable. However, this does not necessarily mean they could legally "stop" a funeral against the wishes of the family or executor without facing potential legal challenges.

In essence, while a coffin confessor might play a role in fulfilling the deceased's last wishes, their ability to stop or significantly alter a funeral service in NSW would heavily depend on the legal framework surrounding the deceased's estate, the permissions granted by the family or executor, and adherence to local laws and venue policies. Engaging in such actions without clear legal backing or consent could lead to disputes or legal action.

For someone in this situation, it would be prudent to seek legal advice to understand the implications and legal standings of such actions in the context of NSW law and the specific circumstances of the funeral arrangements. If you need advice, reach out to our experienced and caring estate dispute lawyers .

Photo 78845696 | Death © Wisconsinart | Dreamstime.com

Can I make a compensation claim if I use to work with dust such as asbestos or silica?

Thu, 18 Apr 2024 05:30:07 GMT

Yes, if you have been exposed to hazardous dust (or similar substances) like asbestos or silica in the workplace and have suffered injury or illness as a result, you may be eligible to make a compensation claim in New South Wales (NSW). Here's some information regarding compensation claims for workplace-related injuries or illnesses caused by exposure to hazardous substances:

Workers Compensation: In NSW, workers who suffer work-related injuries or illnesses, including those caused by exposure to hazardous dust (or similar substances) like asbestos or silica, are generally covered by the state's workers compensation scheme. Workers compensation benefits can include wage replacement, medical expenses, rehabilitation, and lump sum compensation for permanent impairment, although some differences arise when dealing with dust-related injuries or illnesses.

Asbestos-Related Diseases: Exposure to asbestos fibres can lead to serious health conditions such as mesothelioma, lung cancer, and asbestosis. Individuals diagnosed with asbestos-related diseases may be eligible to make a compensation claim through the Dust Diseases Authority (DDA) in NSW. The DDA provides compensation and support to people suffering from dust-related diseases due to workplace exposure.

Silica-Related Diseases: Exposure to silica dust, commonly found in industries such as mining, construction, and manufacturing, can cause respiratory conditions such as silicosis. Workers who develop silicosis or other silica-related diseases due to workplace exposure may be eligible for compensation through the workers compensation scheme or other avenues, in a similar manner to asbestos-related illness.

Legal Assistance: If you believe you have a valid compensation claim for a workplace-related injury or illness caused by exposure to hazardous substances, it's advisable to seek legal advice from one of our specialist workers compensation lawyers. We can assess your case, explain your rights and options, and guide you through the claims process.

Time Limits: It's important to be aware that there are strict time limits for making compensation claims in NSW. Dust diseases are considered latent injuries (arise after a delay). Therefore, where a claim concerns a dust disease, you must file the claim before the time of your death. Given that dust diseases can advance quickly, it is essential to act promptly to ensure that you (or your family) don't miss out on your entitlements.

If you have been exposed to hazardous substances in the workplace and have suffered injury or illness as a result, it's essential to seek medical attention and legal advice as soon as possible to protect your health and rights.

Foto 23794211 © Chrisp543 | Dreamstime.com

Can I use my self-managed superannuation funds to buy a property in New South Wales?

Thu, 18 Apr 2024 05:24:32 GMT

Yes, you can use your self-managed superannuation fund (SMSF) to buy a property in New South Wales (NSW), Australia. However, there are specific rules and regulations governing the use of SMSF funds for property investment:

Sole Purpose Test: The investment must meet the sole purpose test, which means the primary purpose of the investment must be to provide retirement benefits for the members of the SMSF.

Restrictions on Residential Property: While it's possible to purchase residential property with SMSF funds, there are restrictions. The property must meet certain criteria, such as not being acquired from a related party of the SMSF and not being lived in by a fund member or any related parties. Additionally, there are restrictions on improving or renovating residential property owned by an SMSF.

Commercial Property Investment: SMSFs can also invest in commercial properties, such as office buildings, warehouses, and retail premises. There are fewer restrictions on commercial property investments compared to residential property.

Borrowing to Invest (Limited Recourse Borrowing Arrangement): If your SMSF doesn't have sufficient funds to purchase the property outright, it can borrow money to invest in property through a Limited Recourse Borrowing Arrangement (LRBA). However, strict rules apply to LRBA, including the requirement that the property purchased must be held in trust until the loan is repaid.

Compliance with Superannuation Laws: All investments made by an SMSF, including property investments, must comply with superannuation laws and regulations set out by the Australian Taxation Office (ATO).

Seek Professional Advice: Given the complexity of SMSF regulations and property investment, it's essential to seek professional advice from a qualified financial advisor or SMSF specialist before proceeding with any property investment through your SMSF. They can provide guidance tailored to your specific circumstances and ensure compliance with legal requirements.

Before making any decisions regarding property investment through your SMSF, it's crucial to thoroughly understand the rules and regulations governing SMSFs and seek legal advice. Here at Kells we have a team of property lawyers who can advise you on your own personal circumstances and guide you on the steps you need to take.

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Want to study in Australia? New student visa explained.

Thu, 18 Apr 2024 05:20:06 GMT

Starting from 23 March 2024, international students will be required to undergo questioning regarding their choice of course and reasons for choosing Australia as their study destination.

This new visa requirement aims to ensure that applicants are genuine students and not individuals who primarily intend to work instead of studying. In addition to explaining their motives for seeking a student visa, new applicants will also need to provide details about their study history.

These modifications to the student visa process and assessment criteria were announced by the federal government last year through the Migration Strategy . One significant change is the replacement of the Genuine Temporary Entrant (GTE) requirement with the Genuine Student (GS) requirement. The GS will incentivise applications from genuine students and discourage non-genuine students from accessing Australia's international education system.

The GS requirement acknowledges the availability of post-study temporary migration pathways for eligible students. The implementation of the new GS will subject international students seeking another student visa to further scrutiny. The GS requirement will apply to Student visa applications lodged on or after 23 March 2024.

The previous GTE requirement, which aimed to verify applicants' genuine intention to stay in the country temporarily for educational purposes, will now be replaced by the new GS application. This requirement will include targeted inquiries about the choice of course, reasons for selecting Australia as a study destination, and the benefits the course offers to the applicant. It will also address applicants who have previously studied in Australia and explore the motivations of those who currently hold a visa other than a Student visa.

If you are thinking or currently studying in Australia, we can assist you once you have finished your studies to obtain a Temporary Graduate Visa . We have a team of expert Australian immigration lawyers and have helped students from across the world to obtain Temporary Graduate Visas in Australia.

Photo 209956626 © Akeksandr Berdyugin | Dreamstime.com

Injured on an e-bike or e-scooter — can I claim compensation?

Fri, 12 Apr 2024 03:58:05 GMT

E-bikes and e-scooters are becoming a major mode of travel, and with that a major cause of injury. In the last two years, there were more than 500 e-bike riders admitted to NSW EDs. Thankfully, compensation could be available for those injured in accidents involving e-bikes. It will depend on the individual circumstances and cause of the accident.

Generally, if the e-bike accident involves a collision with another motor vehicle, those involved (whether or not at fault) would likely be eligible for statutory compensation, including weekly income benefits and medical expenses (at a minimum). But accidents don’t always involve other vehicles, and so quite often eligibility under the motor accidents scheme is not clear cut. In a recent case which involved an e-bike rider being deliberately pushed by an unidentified male, causing her to collide with a streetlight.

The main question became whether the motor was attached to the e-bike at the time it was built, and more over what the intended operation of the vehicle was at conception. The evidence could not establish same, and so the Personal Injury Commission held the e-bike in this instance was not a motor vehicle for the purposes of the Motor Accidents Injuries Act (NSW), and found in favour of the insurer. The commission elaborated further, that even if it were established that the bike was a motor vehicle, it was not persuaded that the riding/operation of the bike by the claimant was the cause of her accident and injuries. The dominant cause was the push.

The takeaway points from this case include that in CTP matters involving e-bikes it is crucial to establish the make and model of the bike and prove it was manufactured to be propelled by a motor. And further, that the riding of the bike was a proximate or direct cause of the injuries.

Depending on the scenario, there may be alternate compensation pathways available for e-bike accidents, like:

Public liability claims

Where the e-bike accident is caused on a public property, an injured person could be entitled to bring a claim and recover compensation. There must be a breach of duty of care, i.e negligence on the part of the owner/occupier, which is causally related to the mechanism of the accident and injuries sustained.

Nervous Shock Claims

If you’re a close family member of a person who has been injured or killed in an e-bike accident, and you have suffered mental harm as a result, you could be entitled to compensation. Again, it will depend on the circumstances of the case, and whether fault and negligence on the part of another can be established.

Workers Compensation Claim

If the injury occurred during the course of employment or as a result of employment, then the worker would be entitled to workers compensation benefits (as any other worker), including weekly compensation, medical expenses and lump sum compensation for permanent impairment. The Independent Review Office provides funding for legal fees in these matters, so it’s a no-brainer to obtain legal advice as soon as possible.

Manufacturer’s Liability

If the e-bike involved was faulty/ defective in some way, ultimately causing injury or damage, then those at a loss may have a right to pursue the manufacturer (or supplier). In fact, e-bikes using lithium-ion batteries have a known propensity to catch alight or explode. In 2023, there were 66 reported fires caused by faulty e-bike chargers. So, although fun, convenient, and eco-friendly, e-bikes are not without serious risk.

Unfortunately, e-bike regulations have not been able to keep up with their popularity. What’s frightening is that we’re seeing children on the road because riders are NOT required to hold a licence. Whilst ride share e-bikes have a minimum age requirement of 14 years (with permission from their guardians), what’s more frightening is that there are currently no age restrictions for personal e-bikes.

Here are some tips for those involved in an e-bike incident:

Check yourself and others involved for injuries & call 000 if medical assistance is needed.
Record the following details:
Details of other parties involved, if any (take a photo of their licence & number plate)
Location, date & time
Events leading to accident (how did it happen?)
Injuries sustained & damage to property (take photos if possible)
Witness details – name and contact number
Report the injury to police, your employer (if applicable) and consult your GP
Start a conversation with one of our experienced lawyers to find out if you could be entitled to compensation/insurance. Kells Compensation Lawyers can help you understand and navigate the complex scheme and ensure you’re receiving the full extent of your entitlements. Time limits apply, so it’s best to get the advice early and protect your rights. First consultation is free and there’s no obligation to pursue a claim.

Have you been injured on an e-bike and would like to know if you are eligible to make a claim? Reach out today to speak with one of our caring and experienced personal injury lawyers . At Kells we provide a free case assessment and if you proceed to make a claim, we provide our compensation legal services on a no win, no fee basis. Contact us today to learn more in how we can help you.

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How much notice do I need to give my boss?

Fri, 12 Apr 2024 03:55:03 GMT

Awards, enterprise agreements and employment contracts set out requirements for notice that must be given to terminate an employment contract for permanent employees. If you cannot find a clause in one of these agreements, notice will be implied into every single employment contract. This includes notice both under statute and at common law.

The law subscribes that the mandatory minimum period of notice (or payment in lieu) that an employer must give an employee. According to this section, for example, if an employee has worked for the employer for longer than 5 years, the employee must be given 4 weeks’ notice. The law further says that if the employee is over 45 years of age and has completed more than 2 years of continual service with the employer (not including casual employment), then that employee must be given an extra week’s notice on top of the required statutory notice.

Reasonable notice

There is a long common law history on what “reasonable notice” means. The courts will imply into any employment contract a period of “reasonable notice” according to the usual contract interpretation rules for implied terms. Notice at common law exists with the intention to assist an employee during their period of unemployment by offering them a wage in the form of damages while they find new employment. However, employees are still required to mitigate their losses by seeking alternate employment in the interim.

Interaction with statutory notice

Reasonable notice at common law is not displaced by the statutory notice requirements. Indeed, reasonable notice at common law is often significantly greater than statutory notice. In the most exceptional of cases, reasonable notice has been decided to be up to 2 years’ notice. Because of this huge disparity, the interaction between notice under statute and at common law has been the subject of recent disagreement in a string of decisions of the federal courts.

In a recent case , it was clarified that even where statutory notice under section 117 of the FWA applies, reasonable notice at common law is not excluded (McAlister at [205]). This was a strong departure from the same court’s earlier decision that reasonable notice is excluded where section 117 applies, according to Justice Clayton in McGowan v Direct Mail and Marketing Pty Ltd [2016] FCCA 2227. As we can see, there is divided judicial opinion on the interaction between statutory and common law notice.

In Luc Daigle v SCT Operations Pty Limited [2021/00173343] His Honour Judge Montgomery followed McAlister and accepted Mr Daigle’s argument that Fair Work Act did not displace the common law concept of reasonable notice. This case was decided in August 2023 in the NSW District Court. Until the issue is determined by an appellate court there will be some considerable uncertainty about this issue.

In deciding the length of reasonable notice, the courts assess several factors, including:

The length of service.
The employee’s age.
The employment.
The availability of similar and accessible employment (including any formal qualifications the person may have).
Whether the employee was induced to take up the employment and leave secure employment.

Cases where the employee is in a highly specialised field where they are unlikely to be able to find new employment are where greater damages are likely to be awarded.

Future considerations

It is important now more than ever to ensure that employee contracts include a binding notice clause. Otherwise, employers risk the court granting significant damages sums. Provided a specified notice provision in a contract equals or exceeds the minimum entitlement under section 117 of the Fair Work Act that provision will remove any entitlement for a claim for reasonable notice.

If you need employment law advice, at Kells we have a team of highly experienced employment lawyers who can assist you.

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What age can a child decide not to see a parent in Australia?

Fri, 12 Apr 2024 03:49:00 GMT

In Australia, there is no specific age at which a child can legally decide not to see one of their parents following a divorce or separation.

There are a range of factors currently set out in the Family Law Act 1975 (Cth), which the court considers in determining what care arrangements would be in a child’s best interest. One such factor is any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

On 6 May 2024 the current law will change with provisions of the Family Law Amendment Act 2023, coming into effect. A significant amendment to the current law is the factors the court will consider when determining what is in a child’s best interests.

The Family Law Amendment Act 2023 will amend the current Act and the court will be required to consider the following factors when determining the parenting arrangements that are in the best interests of the child:

What arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child (whether or not a person has parental responsibility for the child).
Any views expressed by the child.
The developmental, psychological, emotional, and cultural needs of the child.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional, and cultural needs.
The benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so.
Anything else that is relevant to the particular circumstances of the child.

The Act does not specify an age when a child can make their own decisions about parenting arrangements. However, any views expressed by the child will be considered when determining what arrangements are in the best interests of the child. This is only one of the factors that is to be considered by the court and a child’s view is not determinative.

The court will also no longer be required to consider the benefit to the child of having a meaningful relationship with both of the child’s parents, rather the court will consider the benefit to the child of being able to have a relationship with the child’s parents and other people who are significant to the child, where it is safe to do so.

As children get older, they tend to be increasingly vocal as to whom they want to live with or spend time with, but this does not equate to an absolute right to decide the arrangements. Even in cases where a child expresses a strong preference not to see one parent, the court will still consider other factors in determining what arrangements are in the child’s best interests.

When parties cannot agree and court proceedings are commenced in the Federal Circuit and Family Court of Australia, an Independent Children’s Lawyer may be appointed for the child. The amendments to the Family Law Act, will require Independent Children Lawyers to meet the child and give the child an opportunity to express a view unless an exception applies.

In the course of court proceedings, the parties may also be ordered to obtain a Family Report. This is a report prepared by a family consultant (a psychologist or social worker who has specialist knowledge in child and family issues after separation and divorce). The family consultant will consider the children’s experiences and development as well as the particular family circumstances and other issues that may be relevant. The family consultant can conduct interviews with family members and the children. The family consultant will make recommendations for arrangements that they consider will be in the best interests of the child. These reports are not determinative, and the recommendations made in the report may be different to the orders the court ultimately makes for the child.

It is important for parents to seek legal advice if they are navigating complex issues related to parenting arrangements and the consideration of a child's views. Need help? Reach out to our experienced and caring family lawyers who can provide the direction you need for your circumstances.

Franchise Agreements: What Are My Rights As A Franchisee in New south Wales?

Wed, 27 Mar 2024 05:12:31 GMT

As a franchisee in New South Wales, you have certain rights and protections under both state and federal laws, as well as the terms outlined in your franchise agreement. Here are some key rights that franchisees typically have:

Disclosure: Franchisors are required by law to provide prospective franchisees with a disclosure document containing important information about the franchise system at least 14 days before entering into a franchise agreement. This document should include details about the franchisor's business, financial position, and other relevant information and will help the potential incoming franchisee make an informed decision before entering into a franchise agreement.

Cooling-off period: A franchisee can change their mind and end the franchise agreement during the cooling off period which is 14 days after entering into the franchise agreement, or within 14 days after receiving leasing information, if they are leasing or occupying premises from the franchisor.

Good faith: Both parties are required to act in good faith in their dealings with each other. This means that each party must act honestly and fairly towards the other party and must cooperate with due regard to the rights and interests of the other party.

Territorial rights: Your franchise agreement should specify the territory or area in which you have the right to operate your franchise. The franchisor will often grant a franchisee exclusivity within the relevant territory, meaning the franchisor cannot grant other franchises in your territory without your consent, unless specified otherwise in the agreement.

Training and support: The franchisor is usually responsible for providing initial training and ongoing support and resources to franchisees to help them operate their businesses successfully and in accordancw with the franchise system and standards.

Advertising and marketing: Franchise agreements often outline the franchisor's obligations regarding advertising and marketing support, in addition to any applicable fees charged by the franchisor. This may include training by the franchisor to ensure effective promotion of the franchisee business and also a requirement for the franchisee to contribute to a regional or national advertising fund.

Renewal and termination: A comprehensive franchise agreement typically include provisions for renewal and termination. Franchisees usually have the right to renew the agreement at the end of the initial term, provided they have complied with the terms of the agreement. However, the franchisor may also have the right to terminate the agreement under certain circumstances, such as non-payment of fees or breaches of the agreement.

It's essential to thoroughly review your franchise agreement and seek legal advice if you have any questions or concerns about your rights and obligations as a franchisee. Additionally, the Franchising Code of Conduct, administered by the Australian Competition and Consumer Commission (ACCC), provides further protections for franchisees and sets out minimum standards of conduct for franchisors and franchisees in their dealings with each other.

As an incoming franchisee, it is important to seek legal advice before you sign any franchise agreement or document. At Kells Lawyers we have a team of specialist lawyers who can provide you with legal advice and ongoing assistance in your business’ endeavours.

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What is a sunset clause in off-the-plan contracts?

Wed, 27 Mar 2024 05:07:59 GMT

A sunset clause sounds like a cocktail you would enjoy on a tropical holiday, but a sunset clause is an essential term of off-the-plan contracts that requires close scrutiny.

A sunset clause generally provides a specific timeframe within which a vendor must satisfy a range of preconditions before being able to require settlement of a contract. There is no legislatively prescribed sunset date for off-the-plan contracts that applies in New South Wales. Parties are required to rely on contractual sunset dates.

In off-the-plan purchases, the preconditions to settlement will generally be the provision of an occupation certificate and registration of the plan of subdivision. If the vendor fails to satisfy these preconditions, the sunset clause will generally provide buyers the right to rescind the contract and receive a refund of their deposit.

Not all sunset date clauses are the same. Contracts will often provide the vendor the right to extend the sunset date where there have been delays beyond the control of the vendor. Such clauses need to be carefully reviewed to ensure there are appropriate limits to the number and length of such extensions. Otherwise, the purchaser may find themselves bound to a contract for substantially longer than first anticipated.

If you are looking at entering a contract for an off-the-plan development or your development is being affected by a sunset clause, reach out to speak with a highly experienced and friendly conveyancing team . At Kells we take great pride and care in providing a premium service and quality advice for a fixed price.

Photo 17947791 | Sunset © Shestakov | Dreamstime.com

Compensation Claim: What to do if my child is injured at daycare?

Wed, 27 Mar 2024 05:06:18 GMT

If your child is injured at daycare in New South Wales, you may be entitled to make a compensation claim, depending on the circumstances of the injury. Here are the steps you should consider taking:

Seek Medical Attention: Your child's health and well-being should be your top priority. Make sure your child receives prompt medical attention for their injuries. Document any medical treatment received, including doctor's visits, hospital stays, medications prescribed, and any recommended follow-up care.

Report the Incident: Inform the daycare provider or supervisor immediately about the incident. Ask them to document the details of the injury in writing. Be sure to keep a copy of any incident reports or documentation provided by the daycare.

Gather Evidence: Collect any evidence related to the injury, such as photographs of the accident scene, your child's injuries, and any safety hazards present. If there were any witnesses to the incident, obtain their contact information.

Consult with a Personal Injury Lawyer: Consider consulting with a personal injury lawyer who specialises in childcare negligence or daycare injury claims. They can provide legal advice on your options and help you understand your rights under New South Wales law.

Keep Records: Keep detailed records of all expenses related to your child's injury, including medical bills, transportation costs, and any other out-of-pocket expenses incurred as a result of the incident.

Notify Authorities: Depending on the severity of the injury and the circumstances surrounding it, you may need to notify relevant authorities, such as the New South Wales Department of Education or the Office of the Children's Guardian.

If you believe that the daycare provider's negligence contributed to your child's injury, you may be eligible to make a compensation claim for damages such as medical expenses, pain and suffering, and loss of income (if applicable).

It's essential to act promptly and seek expert compensation legal advice to ensure that your rights and your child's best interests are protected. Keep in mind that there are time limits for making compensation claims, so it's important not to delay in seeking legal assistance.

Photo 196819875 | Child Care © Volodymyr Tverdokhlib | Dreamstime.com

How do I resolve disputes in construction?

Wed, 27 Mar 2024 04:54:22 GMT

Resolving disputes in construction in New South Wales typically involves several steps, and there are various mechanisms and avenues available to parties involved in construction disputes. Here are some common methods for resolving construction disputes:

Negotiation: Often, construction disputes can be resolved through informal negotiations between the parties involved. This may involve direct discussions between the parties, facilitated by legal representatives or mediators, to reach a mutually acceptable resolution.

Mediation: Mediation is a voluntary and confidential process where an independent mediator assists the parties in reaching a settlement. The mediator helps facilitate communication, identify issues, and explore potential solutions. Mediation can be a cost-effective and efficient way to resolve construction disputes without resorting to formal litigation.

Adjudication: Adjudication is a statutory process available under the Building and Construction Industry Security of Payment Act 1999 (NSW) for resolving payment disputes in construction contracts. Adjudication involves a neutral adjudicator making a binding determination on a payment dispute within a relatively short timeframe.

Arbitration: Arbitration is a formal dispute resolution process where parties submit their dispute to an independent arbitrator or panel of arbitrators. The arbitrator's decision, known as an award, is binding on the parties and enforceable in court. Arbitration proceedings are typically more formal and structured than mediation.

Litigation: If other dispute resolution methods are unsuccessful, parties may resort to litigation by initiating legal proceedings in court. Construction disputes may be heard in various courts in NSW, including the Local Court, District Court, or Supreme Court, depending on the nature and value of the dispute. Litigation can be a lengthy and costly process, but it may be necessary to resolve complex or contentious construction disputes.

Expert Determination: Expert determination involves appointing an independent expert to resolve a specific issue or technical dispute in a construction project. The expert's decision is typically binding on the parties, although the process may vary depending on the terms of the contract.

Alternative Dispute Resolution Clauses: Many construction contracts include clauses requiring parties to engage in alternative dispute resolution methods, such as mediation or arbitration, before pursuing litigation. These clauses can help streamline the dispute resolution process and avoid the costs and delays associated with court proceedings.

It's essential to carefully consider the most appropriate method for resolving a construction dispute based on factors such as the nature and complexity of the dispute, the relationship between the parties, and the desired outcome.

Remember it’s important to seek advice from an experienced construction and development lawyer who can help navigate the dispute resolution process effectively. At Kells we have a team of specialist construction and development lawyers who can help with your project, whether it’s a small development or a multi-million dollar development issue.

Photo 19506001 | Construction © Andreas Karelias | Dreamstime.com

What happens if I get caught driving with drugs in my system?

Wed, 27 Mar 2024 04:54:08 GMT

In New South Wales, there have been changes to the law regarding driving with an illicit substance present in a person’s oral fluid, blood or urine (Road Transport Act 2013 (NSW), section 111(1) .

On 19 February 2024, the New South Wales Criminal Court of Appeal ruled that the offence under section 111 is an offence of ‘absolute liability’ which means that intent does not need to be proven. (R v Narouz [2024] NSWCCA 14) . This means that the legal defence of ‘honest and reasonable mistake of fact’ is no longer available to individuals charged with the offence.

So what do the changes mean? If you inadvertently consume THC, methamphetamine, MDMA or cocaine and it is detected on a roadside drug test, you will be found guilty of the offence even if you honestly did not know you had taken the drug and been driving with it in your system. This can include inhaling ‘second-hand smoke’ or in the above case, taking a sip from a drink from a friend’s bottle and ingesting cocaine.

Ultimately, regardless of whether you had no awareness or intention to drive with drugs in your system, the mere presence of the drug in your system is enough for you to be found guilty of the offence.

There are a few different penalties that can be imposed for this offence.

First-time Offenders: If you are a first-time traffic offender, the Police can issue you with an on-the-spot disqualification and a fine. If the Police choose to send the matter to Court, you can be disqualified from driving for up to 6 months and fined up to $2,200.

Repeat Offenders: If you have more than one major traffic offence on your record that is less than 5 years old, the matter will be sent straight to Court. This can lead to a 12 month disqualification or $3,300 fine.

In some cases, the Court can choose to proceed without recording a conviction with or without conditions.

If you need advice, contact our experienced criminal law team . We operate 24/7 and provide a FREE initial consultation. Call us today 0452 502 041 .

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Do I need to trademark my logo in Australia?

Wed, 27 Mar 2024 04:54:05 GMT

While you are not required to trademark your logo in Australia, doing so can provide you with important legal protections and advantages.

Some reasons why you might want to consider trademarking your logo include:

Exclusive Rights: Trademark registration gives you the exclusive right to use your logo in connection with the class or classes of goods or services in which the trademark is registered. This can help protect your brand identity and prevent others from using a similar logo in a similar type of goods or service in a way that could confuse consumers.

Legal Protection: Trademark registration provides legal recourse against others who may try to use your logo without permission. If someone else uses your logo without authorisation, you can take legal action to enforce your rights and potentially seek damages.

Asset Value: A trademark can be a valuable asset for your business. It can increase the value of your brand and may be considered an intangible asset that can be bought, sold, or licensed.

It's important to note that trademark registration involves a formal application process and fees, with the process generally taking around seven months from start to end.

We recommend seeking guidance from a trademark lawyer to ensure your application meets the necessary requirements and increases your chances of success.

At Kells we have an experienced team of trademark lawyers who will provide you with tailored and personalised advice to meet your needs.

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What to do after my loved one passes away?

Wed, 27 Mar 2024 04:54:01 GMT

Losing a loved one is a difficult and emotional time, which can be made worse by the stress of having to deal with administrative issues that occur when a person passes. Here's a general guide to help you through:

Take Care of Yourself: Firstly, remember to take care of yourself and prioritise your physical and emotional well-being during this challenging time. Seek support from family, friends, or professional counsellors if needed, and give yourself time to grieve and process your loss.

Notify Family and Friends: Inform close family members, friends, employers, and any relevant organisations or institutions about the passing of your loved one. Consider reaching out for support from family and friends during this challenging time.

Arrange for Funeral and Burial or Cremation: Make arrangements for the funeral or memorial service, burial, or cremation in accordance with the deceased's wishes or any prearranged plans. You can engage a funeral director to assist with these arrangements.

Obtain a Death Certificate: Usually, the funeral director will apply on your behalf for the death certificate, using information you provide. The Registry of Births, Deaths, and Marriages in NSW will then issue you with the original certificate a few weeks after the funeral. You'll need the death certificate to notify relevant authorities and organisations and to settle the deceased's affairs.

Locate the Will: If the deceased had a will, locate the original document and notify the executor named in the will. The executor is responsible for managing the deceased's estate and carrying out their wishes as outlined in the will. If there is no will, the laws of intestacy in NSW will govern how the estate is distributed.

Notify Government Agencies and Service Providers: Contact relevant government agencies and service providers to inform them of the death and to manage any accounts, benefits, or entitlements. This may include the Department of Human Services (Centrelink), the Australian Taxation Office (ATO), banks and financial institutions, utility companies, and healthcare providers.

Cancel or Transfer Services: Cancel or transfer any services or subscriptions in the deceased's name, such as utilities, phone, internet, insurance policies, and memberships. You may need to provide a certified copy of the death certificate as proof.

Settle Financial Affairs: Gather and organise the deceased's financial documents, including bank accounts, investments, debts, and assets. Notify creditors and debtors of the death, and begin the process of settling outstanding debts and distributing assets in accordance with the will or intestacy laws. It may be necessary to apply to the Supreme Court for probate or letters of administration to administer the estate

Seek Legal Advice: Contact a law firm who specialises in estate administration and probate matters. They can provide guidance on legal and financial matters, including the probate process, estate taxes, and any disputes or challenges that may arise.

It's important to note that this is a general guide, and the specific steps may vary depending on the individual circumstances and the complexity of the deceased's estate.

Here at Kells Lawyers, we have a team of caring, patient and specialised estate administrations team who can guide you through the probate or letters of administration process. We take the time to understand your personal circumstances and do everything possible to make the legal aspect simple and stress free.

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Can I be dismissed from work while off sick?

Tue, 05 Mar 2024 00:32:28 GMT

Termination from employment while on leave for being sick is generally unlawful. However, we are aware that this is a common issue facing employees.

General Protections

Section 340 of the Fair Work Act protects various workplace rights, including discrimination based on sex, age, and race, access to leave entitlements and access to flexible working arrangements. Under this section, it is a civil offence if an employer prevents an employee from exercising a workplace right. A full list of civil penalties under the Fair Work Act can be found here .

Leave for illness

Under section 352 of the Act, employees are protected from termination due to a “temporary absence due to illness or injury”. The provision carries with it significant civil penalties which, in the most serious of matters, can exceed a $660,000.00 fine for a corporate employer.

Termination due to an illness or injury falls under the umbrella of general protections claims in the Act. General protections protect an employee from adverse action taken by an employer against an employee for exercising a workplace right .

Importantly to note, for a general protections claim, a person has wider access to damages, including damages for:

Loss of their work contract (depending on the circumstances);
General damages for “humiliation, hurt and suffering”; and
Future economic loss.

Damages for humiliation, hurt and suffering is not available for unfair dismissal applications and most other applications under the Act.

Length of leave

The Fair Work Regulations prescribe the kinds of injuries that are protected in section 352. In general, if a certificate from a medical practitioner is provided to the employer within 24 hours of the commencement of the absence (or whatever time is reasonable in the circumstances), it is the kind of illness protected under the Act.

The illness or injury is no longer prescribed if the employee’s absence exceeds three months, either consecutively, or, adds up to a three-month period over a period of 12 months.

Section 772 of the Fair Work Act defines unlawful termination from employment. Unlawful termination includes termination for temporary absences from Work .

Defending a general protections claim

Once a general protections claim is raised, section 361 of the Act reverses the onus onto the employer to prove that any action taken was not due to a proscribed reason.

Following this, it is a defence to a general protections claim if an employer can prove that they did not terminate an employee’s employment due to an unlawful reason.

Takeaways

General protections are a complex area of law and we recommend that you seek advice prior to lodging a claim. It is important that the case is pleaded correctly for the best possible outcome.

Unfair dismissal may be another option available to an employee terminated while absent due to illness, if they believe it was harsh, unjust or unreasonable for their employer to terminate their employment. Unfair dismissals are far simpler to plead, however, we recommend seeking clear employment advice. At Kells, we have a team of highly experienced employment lawyers who can assist.

Photo 18210953 | Dismissed Work © Daniel Schweinert | Dreamstime.com

Does drink driving go on your criminal record in Australia?

Tue, 05 Mar 2024 00:27:37 GMT

Yes, drink driving offenses typically result in a criminal record in Australia. Driving under the influence (DUI) or driving while intoxicated (DWI) are serious offenses in Australia, and being convicted of such an offense can lead to a criminal record.

Penalties for drink driving offenses can vary depending on factors such as the level of intoxication, previous offenses, and whether any accidents or injuries occurred as a result. These penalties may include fines, license suspension or cancellation, and in some cases, imprisonment.

Additionally, a criminal record for drink driving can have long-term consequences, such as affecting employment opportunities and travel visas. It's essential for individuals to understand the seriousness of drink driving offenses and to avoid driving while under the influence of alcohol or drugs.

If you need advice, contact our experienced criminal law team . We operate 24/7 and provide a FREE initial consultation. Call us today 0452 502 041 .

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How is it best to buy a second property and rent out the first?

Tue, 27 Feb 2024 01:03:12 GMT

Buying a second property and renting out the first one can be a strategic move for investment purposes. Here's a step-by-step guide on how to go about it:

Assess Your Financial Situation: Before diving into another property purchase, evaluate your financial health. Consider your income, savings, existing debts, and credit score. Ensure you have enough funds for a deposit, settlement costs, and ongoing expenses.

Research the Market: Conduct thorough research on the real estate market in New South Wales. Identify areas with high rental demand, potential for capital growth, and suitable properties within your budget. Consider factors like proximity to amenities, public transport, schools, and employment hubs.

Secure Financing: If you require a mortgage to purchase the second property, approach lenders to secure financing. Compare interest rates, loan terms, and eligibility criteria from various banks or financial institutions. Ensure you can comfortably afford the mortgage payments.

Calculate Affordability and Return on Investment: Determine if you can afford to carry two mortgages simultaneously. Calculate potential rental income from your current property and estimate expenses like mortgage payments, insurance, maintenance, and vacancies.

Consult with Professionals: Seek advice from real estate agents, property managers, financial advisors, and tax consultants. They can provide valuable insights into property selection, rental market trends, investment strategies, tax implications, and legal requirements.

Prepare Your Current Property for Rent: If your first property is not already rented out, prepare it for tenancy. Make necessary repairs, clean, and stage the property to attract potential tenants. Set a competitive rental price based on market rates.

Purchase the Second Property: Once you've identified a suitable property and secured financing, proceed with the purchase. Work with a conveyancer or solicitor to handle the legal aspects of the transaction, including contracts and property inspections.

Find Tenants for Your First Property: Advertise your rental property through various channels such as online listings, social media, local newspapers, and real estate agents. Screen potential tenants rigorously by conducting background checks, verifying employment, and checking references.

Manage Your Properties: Decide whether you'll manage the properties yourself or hire a professional property management company. Property managers can handle tasks like rent collection, maintenance, repairs, tenant communication, and legal compliance on your behalf.

Monitor and Adjust: Continuously monitor the performance of your investments. Keep track of rental income, expenses, vacancies, and market trends. Adjust your strategies accordingly to optimise returns and mitigate risks.

Remember to stay informed about relevant laws and regulations governing property ownership, tenancy, and taxation in New South Wales. Additionally, periodically reassess your investment portfolio and goals to ensure alignment with your financial objectives.

If you are looking to buy another property, you’re likely facing significant stress and anxiety, as property transactions are often complex and full of legal challenges. At Kells, we are here to help ease the burden of buying another property and ensure that all your legal rights and obligations are protected. Contact our friendly and experienced conveyancing team today to discuss how we can assist you.

Photo 234254364 | Buying Second Property © Ekahardiwito Subagio Purwito | Dreamstime.com

What happens to my inheritance when a parent remarries?

Tue, 27 Feb 2024 00:14:57 GMT

In Australia, the implications of a parent's remarriage on your inheritance can vary depending on several factors, including the existence of a valid Will, the terms of any prenuptial agreements, and the applicable laws of intestacy if there is no Will.

Here are some general considerations:

Existing Will: As a Will is automatically revoked when a person remarries, it is imperative your parent updates their existing Will after they remarry. If your parent has a valid Will in place at the time of their death, the terms of the Will dictate how their assets will be distributed upon their death. They may choose to leave assets to you, their new spouse, or other beneficiaries according to their wishes outlined in the Will.

Prenuptial Agreements: If your parent and their new spouse entered into a prenuptial agreement before getting married, the terms of the agreement may affect the distribution of assets upon death. Prenuptial agreements can outline how assets will be divided in the event of divorce or death, potentially safeguarding certain assets for specific beneficiaries, including children from previous relationships.

Intestacy: If your parent dies without a valid Will (intestate), the laws of intestacy in New South Wales will determine how their estate is distributed. In such cases, the spouse and children are typically entitled to a share of the estate according to a statutory formula. Remarriage can affect the distribution of assets under intestacy laws, potentially altering the entitlements of spouses and children.

If you believe you have not been adequately provided for in your parent's Will or the intestacy distribution, you may have the option to contest the estate through a family provision claim. This allows eligible persons, including children, spouses, and ex-spouses, to seek a greater share of the deceased's estate if they believe they have not been adequately provided for or if they have not been provided for at all.

It's essential to seek legal advice from a qualified Will Disputes Lawy er to understand how your parent's remarriage may impact your inheritance rights and to ensure your interests are protected. At Kells, our experienced and caring Will Dispute Lawyers will provide personalised advice based on your specific circumstances and help navigate any complexities related to estate planning, Wills, and making a Will, and challenging or defending an estate.

Photo 85233268 | Inheritance © Valiantsin Korznikau | Dreamstime.com

Can you force your neighbour to give you access to their property?

Tue, 27 Feb 2024 00:13:07 GMT

In New South Wales, property owners have certain rights and responsibilities regarding access to their land and neighbouring properties. However, forcing a neighbour to grant access to their property typically requires legal intervention and is subject to specific circumstances outlined under the law. Here are some scenarios where access to a neighbour's property might be required and the corresponding legal mechanisms:

Easements: An easement is a legal right to use another person's land for a specific purpose. Common types of easements include access easements for utilities, drainage, or rights-of-way. If there is an existing easement registered on the title of the neighbouring property that grants access, you may have a legal right to use it for the purpose outlined in the easement.

Negotiation: In many cases, it's possible to negotiate access with your neighbour amicably. This could involve reaching a mutual agreement or entering into a formal written agreement to register an easement, specifying the terms and conditions of access.

Prescriptive Easement: In some circumstances, continuous and uninterrupted use of a neighbour's property for a certain period (at least 20 years) can lead to the acquisition of an easement by prescription. This legal doctrine allows for the creation of an easement through long-term use without explicit permission. However, the other requirements for establishing a prescriptive easement can be complex and subject to legal interpretation.

Court Order: If negotiations fail and there is a legitimate need for access to the neighbour's property, you may seek a court order imposing an easement. This involves initiating proceedings and demonstrating to the court that an easement is necessary and reasonable under the circumstances. The court will consider factors such as the purpose of access, potential harm or inconvenience to the neighbour, any available alternatives and other issues.

A lawyer can provide guidance on your legal rights, obligations, and the appropriate course of action based on the specifics of your situation and applicable laws. Need advice? Reach out to our experienced team of lawyers today .

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What are the rules for signalling on New South Wales roads?

Tue, 27 Feb 2024 00:10:33 GMT

Are you unsure of the correct road rules in New South Wales for signalling? Below are key points regarding signalling on New South Wales roads:

Indicating Turns: When turning left or right at an intersection, drivers must signal for at least 5 seconds before making the turn. When changing lanes or merging, drivers must also signal for at least 5 seconds before changing direction.

Flashing Signals: Flashing of indicators should be consistent with the driver’s intentions. Drivers must not use their indicator to signal a change of direction if the vehicle is not moving or if it is not safe to do so.

Exiting a Roundabout: When exiting a roundabout, drivers must signal left before exiting, unless it is impracticable to do so.

Overtaking: When overtaking another vehicle, drivers must signal their intention to move out of line with other traffic before commencing the overtaking maneuver.

Stopping or Slowing Down: When slowing down or stopping, drivers must signal their intention by using their brake lights or indicating a change in direction, if appropriate.

Hazard Warning Lights: Hazard warning lights should be used to warn other road users of a vehicle's presence in hazardous situations, such as breakdowns, accidents, or when moving slowly due to road conditions.

Pedestrian Crossings: Drivers should indicate when stopping to give way to pedestrians at marked or unmarked pedestrian crossings.

Use of Signals at Night or in Poor Visibility: When driving at night or in poor visibility conditions, drivers must use their vehicle's headlights, taillights, and indicators to signal their intentions clearly to other road users.

These rules are designed to promote safe and efficient driving practices, reduce the risk of accidents, and ensure smooth traffic flow on roads. It's important for drivers to familiarise themselves with these rules and always adhere to them.

Have you been charged with a traffic offence and concerned about its potential impact on your driving record? Or simply do you wish to have an offence reviewed or dispute the fine? At Kells, our criminal lawyers will help you figure out what your best next steps are. We operate 24/7 and our first consultation is free.

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What is the difference between a debt collector and a lawyer?

Mon, 15 Jan 2024 01:23:49 GMT

In New South Wales, as in many jurisdictions, there are distinct differences between a debt collector and a lawyer, particularly in their roles and the services they provide.

Debt Collector:

Role: A debt collector is a professional or agency hired by a creditor to recover money owed by individuals or businesses.
Methods: Debt collectors use various methods to collect debts, including phone calls, letters, and negotiation. They may attempt to reach a repayment agreement with the debtor.
Legal Authority: Debt collectors do not have the same legal authority as lawyers. Their actions are typically limited to non-legal means of debt collection, and they cannot take legal action against debtors on behalf of the creditor.
Regulation: Debt collectors are subject to regulations, and there are laws governing their conduct. In Australia, this may include compliance with the Australian Consumer Law, which outlines acceptable practices for debt collection.

Lawyer:

Role: A lawyer is a legal professional who is trained and qualified to provide legal advice, represent clients in legal matters, and, if necessary, take legal action on their behalf.
Legal Authority: Lawyers have the legal authority to represent clients in legal proceedings, including debt recovery through the court system. They can take legal action, such as filing a lawsuit, on behalf of their clients.
Methods: Lawyers can use legal processes, such as issuing a statement of claim, obtaining judgments, and enforcing judgments through court orders.
Legal Knowledge: Lawyers have a deep understanding of the law, which allows them to provide legal advice tailored to their clients' specific situations. They can assess the legal merits of a case and provide guidance on the best course of action.

Further, if a debtor refuses to pay or disputes an amount paid, a debt collection agency may have limited options moving forward. A lawyer, should the matter need to progress to litigation can advise on the best options available moving forward.

In summary, while debt collectors focus on non-legal methods of debt recovery and negotiation, lawyers are qualified legal professionals who can provide legal advice, represent clients in legal proceedings, and take legal action to recover debts. If a debt collector is unable to secure payment through negotiation, a lawyer may be engaged to pursue legal avenues to recover the debt, including taking the matter to court.

When trying to recover outstanding debt, choosing the right debt recovery lawyer can mean the difference between a quick, smooth recovery and a long, drawn-out ordeal. Although both outcomes may result in a successful attempt at recovery, the latter is more expensive and therefore not ideal. The team at Kells has the experience and expertise needed to recover your debt in a cost-effective way.

Photo 46307195 | Business Man Thinking © Visivasnc | Dreamstime.com

Renting Vs Buying a House: Which is right for you?

Mon, 15 Jan 2024 01:23:44 GMT

Determining whether renting or buying a house is right for you in New South Wales, or anywhere else, involves considering various factors. Here are key aspects to help you make an informed decision:

Consider Renting if:

Flexibility is a Priority: If you value the flexibility to easily relocate for work or personal reasons, renting may be a better option.
Lower Upfront Costs: Renting typically requires less upfront financial commitment. If you're not ready for a significant down payment and additional homeownership costs, renting may be more suitable.
Maintenance Concerns: If you prefer not to be responsible for property maintenance and repairs, renting can offer peace of mind, as landlords or property managers usually handle these tasks.
Testing the Area: Renting allows you to test the waters in a specific neighbourhood or city before committing to a long-term investment.

Consider Buying if:

Long-Term Stability is a Priority: If you're looking for long-term stability and a sense of permanence, homeownership may be more suitable.
Equity Building: Buying a property allows you to build equity over time as you pay down your mortgage. This can serve as a form of savings and investment.
Personalization: If you want the freedom to personalise your living space without restrictions, owning a home provides more flexibility for modifications and improvements.
Market Conditions: In a real estate market where property values are expected to appreciate, buying a home could be a good investment. However, it's essential to consider current market conditions.
Financial Readiness: If you have the financial stability to afford a down payment, monthly mortgage payments, and additional homeownership costs, buying may be a viable option.

Ultimately, the decision between renting and buying depends on your individual circumstances, financial situation, and lifestyle preferences. It can be helpful to consult with a financial advisor or a real estate professional to assess your specific situation and make an informed decision. Additionally, consider your long-term goals and the overall cost of homeownership in the specific area you are considering.

If you are in the market for buying a property, you should consult with a licensed conveyancer or a conveyancing lawyer to ensure that the legal aspects of the property transaction are handled correctly. At Kells, we have a highly experienced residential legal team who can provide guidance on the conveyancing process. Contact our friendly and experienced conveyancing team today .

Photo 268546755 | Business © Frank Harms | Dreamstime.com

How long does Probate take in Australia?

Mon, 15 Jan 2024 01:23:36 GMT

The duration of probate in Australia can vary depending on factors such as the complexity of the estate, whether there are any disputes, and the efficiency of the legal process. Probate is generally not a swift process, and it can take several months to complete.

Here are the general steps involved in the probate process:

Application for Probate: The Executor of the Will or in the absence of a Will an eligible person in accordance with the relevant legislation, typically applies for Probate through the Supreme Court in the applicable state or territory.
Probate Registry Processing: The Court reviews the application, and if everything is in order, it issues a Grant of Probate (or Letters of Administration if the person passes away without a Will). This process can take several weeks to a few months, depending on the workload of the Probate registry.
Executor's Duties: After obtaining Probate, the Executor can begin administering the estate. This includes collecting the assets of the estate, paying any outstanding debts, and distributing the remaining assets to the beneficiaries.

The overall timeline can be affected by the above factors. Additionally, different states and territories may have slightly different Probate processes or prerequisites.

If you are dealing with a specific Probate matter, it is advisable to consult with an experienced Probate lawyer. At Kells, we have a team of caring and experienced Probate lawyers who are able to assist you during this difficult time and help manage the process for you.

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Congratulations to Senior Associate in Family Law, Ashleigh Barry

Wed, 10 Jan 2024 00:53:02 GMT

At Kells, we not only recognise the importance of our people in their professional accomplishments but also their personal achievements as well.

Congratulations to Senior Associate in Family Law, Ashleigh Barry in being awarded the Overall Grand Champion for 2023 at the annual BJP Physie Australian National Senior Finals competition, which was held at the Sydney Opera House on 27 November 2023.

Ashleigh was also awarded Overall Grand Champion in 2019 and 2022.

Bjelke-Petersen Physical Culture (also known as Physical Culture) was established in Australia 131 years ago and is a combination of movements designed to increase strength, fitness and flexibility. The benefits are increased co-ordination, brain development and confidence.

Physie is both an individual and team-based synchronised sport for all ages that’s social and fun and an excellent low impact dance and aerobic activity.

For more information click here BJP Physie .

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

How much compensation will I get if I am injured at work?

Wed, 10 Jan 2024 00:49:25 GMT

The amount of compensation you may receive if you are injured at work in New South Wales will depend on several factors, including the nature and extent of your injury, the circumstances of the accident, and the applicable workers' compensation laws. Workers' compensation in NSW is regulated by the State Insurance Regulatory Authority (SIRA).

In general, workers' compensation benefits may include:

Medical Expenses: Workers' compensation typically covers medical expenses related to your work-related injury, including doctor visits, hospital stays, medications, and rehabilitation costs. The period for which such expenses are paid will depend upon your level of injury-related impairment.
Income Replacement (Weekly Payments): If your injury results in time away from work, you may be eligible for income replacement benefits (also referred to as “weekly payments”). This may cover a percentage of your pre-injury earnings, and the period for which these benefits are payable will depend upon your injury-related impairment.
Rehabilitation Services: Workers' compensation may cover the cost of rehabilitation services, such as physical therapy or vocational training, to help you return to work.
Permanent Impairment: If your injury results in a permanent impairment, you may be entitled to compensation for that impairment.
Death Benefits: In the unfortunate event of a work-related death, dependents may be eligible for death benefits.

The specific amount of compensation will depend on factors such as the severity of the injury, the impact on your ability to work, and the statutory limits set by workers' compensation laws. It's important to report your injury to your employer as soon as possible and seek medical attention. Your employer should then report the incident to their workers' compensation insurer.

To get accurate information about the compensation you may be entitled to, you should consult with a workers' compensation lawyer or contact the relevant authorities in NSW, such as SIRA or the Independent Review Office (IRO). They can provide guidance on your specific situation and help you navigate the claims process.

It's also important to note that laws and regulations may have changed, and you should consult with a legal professional.

Here at Kells, we have a team of caring and highly experienced compensation lawyers who can assist you. We provide our first consultation / meeting with an experienced personal injury lawyer with no obligation to proceed. Your meeting is confidential. For all workers compensation matters, we will either access a grant of funding from the IRO (to cover your legal costs), or we will assist you on a “no win / no fee” basis.

Photo 150722832 / Compensation Money © Andrii Yalanskyi | Dreamstime.com

Can friends buy houses together in NSW?

Fri, 01 Dec 2023 07:37:59 GMT

Yes, friends can buy houses together in New South Wales. When individuals who are not married or in a de facto relationship decide to purchase a property together, they can do so as joint tenants or tenants in common. These are two common forms of property ownership that have different implications:

Joint Tenants: In this form of ownership, each person owns an undivided interest in the whole property. If one co-owner passes away, their share automatically passes to the surviving co-owner(s). This is known as the right of survivorship.
Tenants in Common: In this form of ownership, each person owns a specific share or percentage of the property. If one co-owner passes away, their share does not automatically pass to the surviving co-owner(s). Instead, it is passed on according to their will or, if there is no will, according to the rules of intestacy.

When purchasing property together, it's essential for friends to have a clear understanding of their respective rights and responsibilities. It's advisable for them to seek legal advice and consider drawing up a co-ownership agreement that outlines how the property will be managed, how expenses will be shared, and what happens in the event of a sale or one co-owner wanting to exit the arrangement.

Additionally, friends who plan to jointly purchase a property should consult with a licensed conveyancer or a conveyancing lawyer to ensure that the legal aspects of the property transaction are handled appropriately. They can provide guidance on the conveyancing process, including title transfers and any legal requirements in New South Wales.

Are you looking a buy a house with a friend and need advice? Contact our highly experienced conveyancing team today.

Photo 136302944 | Friends Buying House © Monkey Business Images | Dreamstime.com

Do people who contest or challenge Wills usually ‘win’?

Fri, 01 Dec 2023 07:35:58 GMT

In New South Wales, as in many jurisdictions, the process of contesting and challenging Wills is possible under certain circumstances. Common grounds for contesting or challenging a Will include:

Lack of Testamentary Capacity: If the Testator (the person making the Will) was not of sound mind or did not fully understand the consequences of their actions when making the Will.
Undue Influence: If someone exerted pressure or influence on the Testator to create a Will that does not accurately reflect their wishes.
Fraud or Forgery: If the Will is not genuine or if there is evidence of fraud in its creation.
Provision for Family: In some cases, family members or dependants may be able to contest a Will if they have been unfairly left out completely or believe the Will does not adequately provide for them.
Formal Validity: If the Will does not meet the formal requirements for validity, such as being properly witnessed.

Whether a person is likely to ‘win’ depends on the specific circumstances and the strength of their case. It is advisable for individuals considering the thought of contesting or challenging a Will to seek legal advice to understand their specific situation better.

Additionally, laws and regulations may change, so it is crucial to consult with a legal professional who is up to date with the current laws in New South Wales.

Research done by The University of Queensland in 2015 found that in 74% of cases challenged in court and 87% of cases that went before a mediator, a settlement was reached which resulted in the Wills being changed.

Do you need advice? At Kells we provide a free Will Dispute Assessment. Reach out today to speak with one of our experienced estate litigation lawyers .

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What are the new drug laws in New South Wales?

Wed, 15 Nov 2023 08:40:03 GMT

Set to commence in 2024, all NSW Police will be able to issue up to two on-the-spot fines to adults for personal drug use and small quantity drug possession offences.

The two on-the-spot Criminal Infringement Notices (CIN) are $400 fines, but these fines can be waived by completing a tailored drug and alcohol intervention program.

If the health intervention is not completed, the penalty will be enforced by Revenue NSW.

A similar program already exists for minor cannabis possession offences but will be expanded to include drugs such as cocaine, MDMA and ice.

These changes will not apply to the large-scale production and manufacturing of drugs, and it will not apply to convicted drug suppliers or traffickers, or people who have already incurred two CINs for drug possession.

Do you need advice? Our criminal lawyers operate 24 hours, 7 days a week and provide their first consultation free of charge.

Photo 186451309 | Australian Police © Adam Calaitzis | Dreamstime.com

What is a Purchase Order and how does it work?

Wed, 01 Nov 2023 00:24:13 GMT

A purchase order is a document issued by a buyer to a seller placing an order for goods and services. It serves as a legally binding contract which safeguards the interests of both buyers and sellers. Often commercial disputes will arise where contract terms are ambiguous such that one party alleges that what they have signed is not what was agreed between the parties. In the event of a dispute, a clear and comprehensive purchase order can serve as concrete evidence of the agreed-upon terms.

Key terms of a purchase order

Whilst your purchase order should reflect each business and your specific needs, some of the items we recommend including for your protection in a purchase order include:

Identifying information – This includes details of the parties to the transaction, addressees and contact information.
Description of the goods/services – This includes providing specific details such as product names, model numbers, quantities for products and the scope, the objectives and any milestones or key performance indicators to be achieved for services.
Pricing and payment terms – This includes specifying details such as due dates for payment, late payment penalties and any applicable taxes or fees.
Delivery schedule – This includes an agreed timeline that outlines when the goods/services are to be provided.
Warranties and guarantees – To the extent that is allowed by law, a purchase order should include details around the warranties or guarantees offered for the goods/services.

Legal protection and clarity

In a recent High Court case the terms of a contract are unclear, external evidence may be necessary to give clarity and effect to the terms of a contract. This essentially means that the court may look to external evidence in a dispute and interpret the contract in a way which does not conform with your idea and understanding of what was agreed between the parties.

Well-defined terms in a purchase order which contain sufficient detail help to prevent misunderstandings, disagreements and ultimately the expense of costly litigation should proceedings eventuate in relation to the contract.

For many businesses, success often hinges on attention to detail, and a well-drafted purchase order is a cornerstone of that success. At Kells we have a team of contract business lawyers who can assist with drafting your purchase order or reviewing and advising on your existing purchase order. We take the time to understand the services or products of your business, providing practical, up-to-date solutions that protect you and your business.

Photo 85090475 | Purchase Order © Rawpixelimages | Dreamstime.com

What happens if I have been left out of a Will?

Tue, 31 Oct 2023 05:07:47 GMT

If you have been left out of a Will in New South Wales, you have several legal options to consider, depending on your relationship to the deceased and the circumstances. Here are some possible courses of action:

Contesting the Will: If you are an eligible person under the Succession Act 2006 (NSW), you may be able to contest the Will. Eligible persons typically include spouses, de facto partners, children, and certain dependents. To contest a Will, you will need to demonstrate that you were inadequately provided for in the Will or unfairly left out completely. This is commonly done through a family provision claim.

Family Provision Claim: A family provision claim is a legal action you can take to seek a share of the deceased person's estate if you believe you have not been adequately provided for. The Court will consider various factors, including your financial needs and the deceased's moral obligation to provide for you. If your claim is successful, the court may make an order for further provision from the estate to you.

Challenging the Validity of the Will: You can also challenge a Will in New South Wales if you believe it is not valid due to reasons such as undue influence, lack of mental capacity, fraud, or improper execution. Challenging the validity of a Will is a separate legal process from a family provision claim.

Negotiation and Mediation: Before pursuing legal action, it may be recommended to explore alternative options including negotiation and mediation with the executors or beneficiaries of the Will. Resolving disputes through dispute resolution services can be less time-consuming and costly than going to Court.

Legal Advice: It is highly recommended to consult with a lawyer who specialises in estate claims. They can help you understand your rights and options, as well as guide you through the legal process.

Keep in mind that there are time constraints in making a claim against an estate. Seeking legal advice is crucial to understanding your rights and the best approach for your situation. At Kells, we have a team of lawyers who can assist you in making a claim . If you feel you have been unfairly left out of a Will, contact us today.

Photo 37975037 | Estate © Lane Erickson | Dreamstime.com

5 key points to consider before separating

Fri, 20 Oct 2023 07:43:16 GMT

Separating from a partner or spouse is a significant and often emotionally challenging decision. Before taking this step, it's crucial to carefully consider various factors to ensure you are making an informed decision that aligns with your best interests and the wellbeing of any children who may be impacted. Here are five things to consider before separating:

Emotional and Mental Readiness:

Assess your emotional and mental preparedness for separation. Are you emotionally ready to handle the challenges and changes that come with ending a relationship? Seek and maintain support from a therapist or counsellor if needed to help you navigate your feelings and decisions.

Legal Implications:

Take steps to understand the legal aspects of separation. This includes the division of property, spousal support (if applicable), children’s care arrangements and child support. Consulting with an experienced family lawyer can provide you with insight into the legal implications and your rights and responsibilities. You don’t need to have already separated from your partner to seek specialist family law advice.

Co-Parenting Plans:

If you have children together, carefully consider how you intend to co-parent after separation. Consideration should be given to developing a workable and child-focused parenting plan that addresses time and communication with each parent (if appropriate) and decision-making responsibilities. Consider undertaking a Parenting After Separation course to better understand what tools will be required to achieve a positive co-parenting relationship.

Financial Stability:

Assess your financial situation post-separation. Determine how you will meet your living expenses and support any dependents. Create a budget and consider whether you need to seek employment, adjust your lifestyle, or negotiate financial arrangements with your ex-partner. Seek financial advice from financial planner to make longer term plans based on your likely future financial circumstances.

Support System:

Lean on your support system including friends and family during this challenging time. Consider seeking the guidance of a therapist or support group to help you cope with the emotional aspects of separation. Emotional support can be invaluable during this transition.

Each person's situation is unique so it's important to consider any specific factors that apply to your circumstances. Don’t fall into the trap of accepting what others around you have said should be the outcome. Keep in mind that separation can have long-lasting effects on your life and the lives of those around you, so it's essential to approach it thoughtfully and with a clear understanding of the implications.

If you are considering separation, seeking professional advice from an experienced family lawyer can help you navigate the legal complexities. At Kells, we have a large team of both male and female experienced family lawyers ready to assist.

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How do you tell your kids mum and dad are separating?

Mon, 09 Oct 2023 07:41:07 GMT

Telling your children that you and your partner are separating is a difficult and sensitive conversation. It's crucial to approach this conversation with care, empathy, and a focus on their emotional well-being. Here are some steps to help you have this conversation:

Plan ahead:
Choose a time when you and your partner can be present for the conversation. Presenting a united front can provide reassurance to your children.
Find a quiet and comfortable place to talk where you won't be interrupted.
Be prepared for a range of emotions and reactions from your children.
Be honest and clear:
Use simple and age-appropriate language to explain the situation. Avoid using legal or technical terms that your children may not understand.
Explain that you and your partner have decided to live separately but reassure them that both of you still love them and will continue to be their parents.
Listen actively:
Encourage your children to express their feelings and ask questions. Let them know it's okay to be sad, angry, or confused.
Be patient and attentive as they react to the news. It's important to validate their emotions and provide emotional support.
Avoid blame:
Refrain from blaming each other for the separation in front of your children. Focus on the fact that this decision is about your relationship and not their fault.
Emphasise that the separation is an adult decision and does not change your roles as parents.
Reassure stability:
Let your children know that certain things will remain the same, such as their school, routines, and access to friends and family.
Assure them that they will still have access to both parents and that both of you will continue to be involved in their lives.
Coordinate a plan:
Discuss a co-parenting plan with your partner, outlining how you will share custody, parenting responsibilities, and visitation schedules. Having a plan in place can provide a sense of structure for your children.
Seek professional help:
Consider involving a family therapist or counsellor to help your children cope with the emotional impact of the separation. Professional guidance can be beneficial for both you and your children during this challenging time.
Offer ongoing support:
Keep the lines of communication open with your children. Encourage them to talk about their feelings and concerns as they arise.
Be patient and understanding as they adjust to the changes in their lives.

Remember that the way you handle the separation and ongoing co-parenting will have a significant impact on your children's emotional well-being. It's essential to prioritise their needs and provide a stable and loving environment during this transition.

Do you need family law advice? Kells specialises in all areas of family law and have a team of experienced dedicated family lawyers conveniently located throughout Sydney and the Illawarra.

Photo 198351846 © Lepasik | Dreamstime.com

What are terms and conditions for a NSW business?

Mon, 09 Oct 2023 07:33:22 GMT

Your terms and conditions should be comprehensive and cover important aspects of your business operations, including sales, services, returns, warranties and privacy.

While the document will be tailored to each business and your specific needs, some items we recommend including for your protection are:

Acceptance of Terms:
Your terms and conditions should be made readily accessible to your customers or clients, and should be accepted and signed by the customer/client prior to them making a purchase or engaging your services.
If it is not possible for the customer/client to sign the terms and conditions, there should be some other affirmative action by the customer/client which demonstrates their intention to be bound.
Orders and Payments:
This will provide customers/clients with details about how they can place orders or engage your services, and the terms of payment, including the due dates for payment and implications if they do not pay on time.
If applicable to your business, it should also set out delivery and shipping information, including who bears the risk at the different stages of delivery.
Warranties and Guarantees:
This will provide details around the warranties or guarantees offered for your products or services.
It should also set out the limitations or exclusions, including any warranties that you are expressly not providing in relation to your goods or services, to the extent that this is allowed by law.
Intellectual Property:
This can provide protections for your intellectual property, such as trademarks and copyrights.
It will also detail the use of both parties intellectual property, including your content or materials, and any restrictions on this use.
Liability and Dispute Resolution:
To the extent that it is allowed by law, you should disclaim liability for certain types of damages or losses.
A dispute resolution process should also be outlined so all parties are aware of the process to be followed, including alternative dispute processes such as mediation, which should be conducted before either party brings a dispute to court.
Termination:
The circumstances under which you can terminate the agreement with the customer/client, and the implications of doing so should be covered.
It should also set out obligations that continue after termination, including around privacy and confidential information.

In addition to the items stated in your terms and conditions, it is important to be aware of your rights and obligations under laws, particularly around the warranties and guarantees, and liabilities. These apply whether or not they are included in your terms and conditions, and in many instances, are not something that you can ‘contract out of’ by trying to include something different in your terms and conditions.

At Kells we have a team of contract business lawyers who can assist with drafting your terms and conditions, or reviewing and advising on your existing terms and conditions. We take the time to understand the services or products of your business, providing practical, up-to-date solutions that protect you and your business.

Photo 125737491 © Tero Vesalainen | Dreamstime.com

What guns can I own in New South Wales?

Mon, 09 Oct 2023 07:26:48 GMT

New South Wales and Australia as a whole has extremely strict firearm laws and regulations in place.

These laws are subject to change, so it's important to check with New South Wales Polic for the most up-to-date information. Generally, the types of firearms that individuals can own in New South Wales is heavily regulated, and ownership is typically limited to the following categories:

Category A Firearms: These are the least restricted and include:

Air rifles and air pistols
Rimfire rifles (excluding semi-automatics)
Shotguns (excluding pump-action and semi-automatics)

Category B Firearms: This category includes:

Centrefire rifles (excluding semi-automatics)
Muzzleloading firearms
Shotgun-rifle combinations

Category C Firearms: This category includes semi-automatic rimfire rifles with a magazine capacity of 10 rounds or less.

Category D Firearms: This category includes:

Semi-automatic or pump-action shotguns with a magazine capacity of 5 rounds or less
Semi-automatic rimfire rifles with a magazine capacity of more than 10 rounds
Paintball firearms

Category H Firearms: This category includes handguns and is typically the most restricted. Handgun ownership is subject to strict eligibility criteria, including a genuine reason for owning a handgun, such as sports shooting or professional security work.

In all cases, to own a firearm in New South Wales, you must meet certain eligibility criteria, undergo a background check, and complete safety training and testing. Firearms owners must also store their firearms securely and comply with other regulations, including regular license renewals.

Please note that these laws may have changed since my last update, and it is crucial to consult with New South Wales Police or other relevant authorities for the most current information regarding firearm ownership and regulations in the state. Additionally, firearm laws can vary based on individual circumstances, so it's important to seek legal advice if you have specific questions about firearm ownership in New South Wales.

Do you need advice or have been charged with a firearms offence? At Kells we have a team of experienced firearms lawyers and are the Illawarra’s most experienced and highly recommended criminal lawyers ready and able to help you.

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Compensation for dog bites and attacks

Fri, 06 Oct 2023 00:29:42 GMT

It’s a dog lovers' society. In NSW the dog population has outgrown the human population in Tasmania and the ACT combined. The rate of dog bites and attacks could, in comparison, be viewed as relatively low, but they can be extremely serious. The Sydney Children's Hospital recently revealed a stat that, on average, one child is being admitted to a NSW hospital every week following a dog attack. Thankfully, there is a way for victims to be compensated for their injuries and loss.

The compensation available is guided under the Civil Liability Act 2002 (NSW) and the possibilities include: pain and suffering, economic loss, medical and treatment expenses and compensation for care and domestic assistance. The amount of compensation will depend on the extent of your injuries and their effect on daily activities, medical expenses, loss of income, need for assistance with personal care & around the home (like cleaning) etc. Damages are claimed for both the past and likely future losses.

Dog owners need to be aware of their strict liability under the Companion Animals Act 1998 (NSW), which essentially deems them responsible even without negligence or fault on their part. This is the case whether or not the attack occurs on their property. Generally, claims are made through the dog owner's home insurance policy, under their cover for personal legal liabilities – extending to situations where the harm is caused in public areas like on footpaths, at the park or beach etc.

Certain limited defences are available, such as: contributory negligence; provocation; or if the person was unlawfully on the owner’s property at the time.

Dog bite and dog attack victims should consider taking the following steps:

Seek medical attention: Your first priority should be your health and wellbeing. Seek medical treatment immediately for your injuries and make sure the provider documents the cause.
Report the incident: Report the dog bite to your local council and/or the NSW Police if the situation warrants it. They may investigate the incident and gather information. This could prove useful for your case.
Gather evidence: Take photographs of your injuries; gather witnesses’ details and maintain a record of any correspondence with the dog owner.
Contact us: Our compensation team are experienced in these cases. They can assess your situation, advise you on the full extent of your rights, and help you navigate the legal process with ease. They will take the necessary steps to initiate a claim on your behalf and act strategically & with skill to try to facilitate an early settlement and maximise the compensation you receive in the hand.

If you, your child or a loved one have been injured in a dog attack, we encourage you to make contact with us asap as time limits apply. Our personal injury team act on a speculative - no win/no fee – basis and there’s no obligation attached to the first consultation. We’re here to help.

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Easement disputes

Fri, 06 Oct 2023 00:29:34 GMT

Easement disputes in New South Wales can arise when property owners disagree over the use, maintenance, or rights associated with an easement on one of the affected properties. Broadly, easements are land rights that permit one landowner to use another property for a specific reason, such as access, drainage, or running utilities. The use of the burdened land by the owner of the benefitted land can sometimes lead to disputes.

If you’re involved in an easement dispute in New South Wales, here are some steps you can take to address the issue:

1. Review the Easement Documents:

Start by examining the documents related to the easement. This includes the property title, plans, and registered dealings that relate to the easement. Understanding the terms and rights associated with the easement is important.

2. Communication:

Try to solve the dispute through communication with the other party. It’s helpful to express your concerns and seek a mutually agreeable solution. You may want to involve a mediator or legal professionals to facilitate the discussion and to make any changes to terms.

3. Seek Legal Advice:

If communication doesn't resolve the issue, it's advisable to consult with a solicitor or lawyer who specialises in property law in New South Wales. They can provide guidance on your rights and choices for resolving the dispute.

4. Mediation:

Mediation is a process where a neutral third party facilitates discussions between the parties involved in the dispute and can suggest potential outcomes that the parties can agree with. Mediation can be a cost-effective path to resolve easement disputes without going to court.

5. Commence proceedings:

If all else fails and an outcome cannot be reached through discussion or mediation, you may need to take legal action. This normally involves filing a claim in the NSW Supreme Court, providing evidence and seeking orders from the Court.

6. Obey court orders:

If the court makes orders relating to the easement dispute, the parties will be bound to comply with them. For this reason, reaching an agreement through discussion and/or mediation can be an attractive solution, which will usually come at a far lower cost than Court proceedings.

Our highly experienced property lawyers specialise in easement disputes and can advocate to ensure that your rights are protected and that you navigate the legal process correctly and in the most cost-efficient way possible.

Photo 261477049 | Easement Land © Aminkorea | Dreamstime.com

Can I take out an AVO against my neighbour?

Tue, 26 Sep 2023 23:56:33 GMT

In New South Wales you can apply for an Apprehended Violence Order (AVO) against your neighbour if you have reasonable grounds to believe that you need protection from violence, threats, harassment, or other forms of intimidating behaviour from your neighbour.

There are two main types of AVOs in New South Wales:

Apprehended Domestic Violence Order (ADVO): This type of order is specifically for situations involving domestic violence, which can include violence or threats within a domestic or family relationship. If you have a domestic relationship with your neighbour (e.g., family, intimate partner), you may be eligible for an ADVO.
Apprehended Personal Violence Order (APVO): This type of order is broader and can be applied for in situations where there is no domestic or family relationship between you and your neighbour but you still require protection from violence or harassment.

To apply for an AVO in New South Wales:

Contact your local police: If you believe you need protection, you can contact your local police station to report the situation. They can guide you through the process and may apply for an AVO on your behalf if they believe it's necessary.

Apply directly to the court: You can also apply for an AVO directly through the Local Court in New South Wales. You'll need to fill out the necessary application forms, and it's advisable to seek legal advice or assistance to ensure you complete the forms correctly and include all relevant information.

Attend a court hearing: After filing the application, you will need to attend a court hearing. At the hearing, you will present evidence and explain why you believe the AVO is necessary. The court will decide whether to grant the AVO based on the evidence presented.

Please note that the specifics of AVO laws and procedures may change over time, so it's essential to consult with a criminal lawyer for the most up-to-date and accurate information on how to apply for an AVO in New South Wales. Our criminal lawyers operate 24/7 and provide a free consultation. If you are experiencing any of the above with your neighbour or from any other person, please contact our office and speak to one of our highly experienced criminal lawyers .

Photo 134385158 | Neighbour © Koldunova Anna | Dreamstime.com

What is the best estate planning for a second marriage?

Tue, 26 Sep 2023 23:56:30 GMT

Estate planning for a second marriage can be complex, as it often involves considerations for children from prior marriages or relationships, as well as your current spouse. To ensure that your wishes are carried out and potential conflicts are minimised, consider the following key elements in your estate plan:

Open and Honest Communication: Start by having open and honest conversations with your current spouse and any adult children from your previous marriage. Discuss your intentions, expectations, and financial arrangements, so everyone is on the same page.
Update Your Will and Beneficiary Designations: Review and update your Will to reflect your current family situation. This includes naming your current spouse as a beneficiary and specifying how your assets should be distributed among your children and stepchildren. Also, review and update beneficiary designations on retirement accounts, life insurance policies, and other financial assets.
Consider Mutual Wills: Mutual Wills provide peace of mind for spouses and their respective children from former marriages by creating a legally binding Contract. You and your spouse agree to terms and cannot amend your Wills without the express agreement from your spouse. The Contract essentially enables the preservation of your testamentary intentions in the event one of you passes away and protects the rights of the deceased’s children as the surviving spouse cannot change their Will or dissipate the assets.
Consider a Prenuptial or Postnuptial Financial Agreement: Depending on your specific circumstances, a prenuptial or postnuptial agreement can help clarify financial arrangements, property rights, and inheritance rights for both spouses in the event of a failed relationship. If a second marriage or de facto relationship fails without an agreement in place, the Family Court may determine what happens to your assets and property. Accordingly, the value of your estate may be reduced. Consult with an experienced family lawyer to explore this option.
Create a Trust: Establishing a trust can be an effective way to protect your assets and ensure they are distributed according to your wishes. You can create a trust that provides for your current spouse while preserving assets for your children. Trusts can also help minimise estate taxes.
Choose the Right Executor and Trustee: Select someone you trust to act as the executor of your Will and the trustee of any Trusts you establish. This person should be responsible for carrying out your wishes, managing assets, and distributing inheritances.
Consider Life Insurance: Life insurance can provide financial support for your spouse and children in the event of your death. Ensure the policy is structured to meet your goals, such as providing for your spouse's income needs or covering estate tax liabilities.
Update Powers of Attorney and Enduring Guardianship Documents: Designate someone you trust to make financial and healthcare decisions on your behalf in case you become incapacitated. Make sure these documents reflect your current spouse's role and responsibilities.
Plan for Long-Term Care: If you or your spouse require long-term care in the future, plan for the associated costs and consider how these expenses may affect your estate plan.
Review and Update Regularly: Estate planning is not a one-time task. Life circumstances change, so it is essential to review and update your plan regularly, especially after significant life events like marriages, births, or deaths.
Seek Professional Guidance: There is no one-size-fits-all solution. Consult with an experienced estate planning lawyer who can help you create a customised plan that addresses your unique situation and complies with the laws in New South Wales..

Estate planning for a second marriage should prioritise fairness and transparency while ensuring the financial well-being of both spouses and the future security of your children. Customising your estate plan to fit your specific needs and goals is essential to achieving these objectives. Are you remarrying or currently in a second marriage and need to update your estate planning needs? Reach out to our highly experienced team of estate planning lawyers for us to assist you.

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Is it worth buying off the plan?

Tue, 26 Sep 2023 23:56:27 GMT

Buying a property off the plan in New South Wales, as in many other places, can have both advantages and disadvantages. Whether it's worth it depends on your individual circumstances, financial goals, and risk tolerance. Here are some factors to consider before making a decision:

Advantages of Buying Off the Plan:

Potential for Capital Appreciation: If property prices are expected to rise in the area where you're buying, you might benefit from capital appreciation by the time the property is completed.
New and Modern: Off-the-plan properties are usually brand new and come with modern features, fittings, and appliances, which may require less maintenance initially.
Stamp Duty Savings: In some cases, you may be eligible for stamp duty concessions or savings when buying off the plan, which can reduce your upfront costs.
Customisation: Depending on the stage of construction, you may have the opportunity to customise certain aspects of the property to suit your preferences.
Deposit Payment Over Time: Typically, you'll pay a deposit upfront and the rest of the purchase price upon completion. This can provide more time to save or secure financing.

Disadvantages and Risks of Buying Off the Plan:

Uncertainty: You're committing to a property that doesn't exist yet. You must rely on plans, drawings, and the developer's reputation, which can introduce some uncertainty.
Delays: Construction projects can face delays due to various factors, such as weather, regulatory approvals, or funding problems. Delays can disrupt your plans and potentially affect financing.
Changes in Market Conditions: Property market conditions can change between the time of purchase and completion, impacting the property's value and rental potential.
Lack of Control: You have limited control over the construction process and the final product, so it may not fully meet your expectations.
Financing Challenges: Some lenders may have stricter lending criteria for off-the-plan purchases, and the valuation may not align with your purchase price.
Hidden Costs: Be aware of additional costs, such as strata fees, levies, and property management fees, which may affect the property's overall affordability.

Tips for Buying Off the Plan:

Research the Developer: Investigate the developer's track record and reputation for delivering projects on time and to a high standard.
Legal Advice: Consult with a solicitor or conveyancer experienced in off-the-plan purchases to review contracts and explain your rights and obligations.
Financial Preparation: Ensure you have a solid financial plan in place to manage any potential delays or changes in market conditions.
Due Diligence: Visit the site, review the plans thoroughly, and consider seeking the advice of a building inspector or architect.
Exit Strategy: Have a plan in case your circumstances change before the property is completed. This could include knowing how to sell or rent the property if necessary.

Ultimately, the decision to buy off the plan in New South Wales should align with your long-term financial goals, risk tolerance, and confidence in the specific property and developer. It's advisable to consult with a real estate, a financial advisor, and an experienced property legal expert to make an informed decision. At Kells we have a team of highly experienced property lawyers and licensed conveyancers who can assist you in buying a property off a plan .

Photo 8876944 © Cammeraydave | Dreamstime.com

Experienced compensation lawyer Melissa Pacheco Zizic rejoins Kells Lawyers

Tue, 26 Sep 2023 23:56:22 GMT

Leading Illawarra law firm Kells is pleased to announce that Melissa Pacheco Zizic , a highly skilled and experienced personal injury lawyer, has rejoined the firm as a lawyer.

Melissa helps clients whether they have been wronged or are injured. She has served the local Illawarra community for the past 13 years as a personal injury lawyer, in cases ranging from product and public liability, motor vehicle accidents, medical negligence, nervous shock, workers compensation, work injury damages, bullying & harassment and assault claims, to total permanent disability (TPD), income protection and life insurance claims and more.

“We are seeing a dynamic increase in activity in our compensation practice,” said David Potts , Partner and Head of the Kells’ Personal Injury Practice. "Melissa’s deep understanding of compensation law and her wealth of experience will be a great value to our clients. I look forward to working with her once again.”

Paul Magagnino , the firm’s Managing Partner, added: “Starting her legal career at Kells Lawyers, Melissa is deeply familiar with the firm’s collaborative culture and client service focus. Melissa is an accomplished expert lawyer and with her arrival, we continue to strengthen our capabilities to serve clients across Sydney, the Illawarra and Macarthur regions, Southern Highlands, and the Shoalhaven.”

“We continue to focus on the growth and development of key practice areas in Sydney and the South Coast, including the Compensation Practice. We are excited and honoured to have Melissa rejoin the team and share her knowledge not only with clients but with the next generation of Kells lawyers."

Melissa joins highly respected Law Society Accredited Specialist in Personal Injury Law David Potts , expert

Senior Associate James Watt , along with ambitious and capable Compensation Associate Colleen Issa.

“I am excited to once again be part of the Kells team and collaborate with talented, highly-regarded colleagues across the firm. You are who you surround yourself with and this is the key reason why I’ve retuned to Kells. It’s a business with the highest standards and right kind of people. I have always respected and admired Kells for their commitment to their clients and teamwork." said Melissa.

Kells is a team of passionate, energetic and client focused legal professionals with over 65 staff based across 6 offices in Sydney and the Illawarra region. Kells has 7 partners who each lead a practice group in their core area of law ensuring that we deliver the level of legal expertise and service that our clients deserve.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Kells’ Lawyers Donates to Port Kembla Meals on Wheels

Thu, 21 Sep 2023 06:58:01 GMT

Managing Partner, Paul Magagnino is proud to have donated vital funds to the NSW Meals on Wheels - Port Kembla branch.

Port Kembla Meals on Wheels provides our community with affordable, comprehensive and a flexible service, delivering nutritionally balanced meals, wellness checks and a friendly smile. Their goal is to promote general health, wellbeing and to assist people to remain living independently within the community.

All monies donated to the organisation have gone directly into the purchase of a new commercial freezer. This significant increase in their freezer capacity will enable the service to support more elderly members of our Illawarra community.

At Kells , we have always understood that our business is part of the community in which we operate and are conscious of giving back to our community. Our core values define who we are and how we do business, we recognise that it is important to nourish and support our community which we owe our prosperity.

People: We treat people with respect. This includes our people, our clients, and our wider professional circle.

Innovation: We seek innovative solutions in all that we do. More than just technology, this includes internal business processes, client work and technical production.

Ethics: We will be ethical in all that we do. For clients, for each other, the community and business practices. We have a commitment to the profession of law, not just to the business.

Results: We will deliver results. For clients, the firm and our people, giving them job satisfaction and career advancement. Our financial results will deliver a sustainable future.

Shayne Lopeman

Marketing Manager

Why every Company needs a Corporate Power of Attorney

Wed, 09 Aug 2023 04:13:22 GMT

If you are a director of a company, you would be aware that signing documents on behalf of the company is generally the sole responsibility of company directors. But what if for example a sole director of a company becomes unwell or dies?

There is an essential document that can assist directors in these circumstances and often goes overlooked – the Corporate Power of Attorney.

What is a Corporate Power of Attorney?

A Corporate Power of Attorney is a legally binding document that grants a designated individual (known as the ‘attorney’), the authority to act on behalf of the Company. For example, the attorney appointed may be granted the power to sign legal documents and contracts.

Company directors face many unforeseen circumstances including accidents, illness and death. By designating a trusted attorney to act, directors can safeguard the interests of the Company in critical circumstances by ensuring that the operations of a business can still continue.

What happens if a Sole Directors dies without a Corporate Power of Attorney?

If a sole director of a company dies without a Corporate Power of Attorney, a ‘legal personal representative’ may apply to the court to appoint either themselves or another nominated individual to be the director of the company.

However, to do so, the legal personal representative must first apply for what is known as a grant of Probate or Letters of Administration of the deceased’s estate which can take between 3-6 months depending on the complexity of the estate.

A Corporate Power of Attorney is therefore a critical legal document which every company director should consider making to ensure ongoing decision-making powers are in effect. At Kells, our experienced commercial lawyers can work with you to develop a corporate power of attorney that reflects your specific business needs and interests.

Photo 118478242 | Power Attorney © Katie Nesling | Dreamstime.com

Can you put an offer in before an auction?

Wed, 19 Jul 2023 04:29:24 GMT

When buying real estate, yes, it is possible to make an offer on a property before an auction takes place.

Here are some key points to keep in mind regarding making an offer prior to an auction:

Timing: A vendor may be prepared to cancel the auction if they receive an offer they are satisfied with. It's important to submit your offer before the auction date and within a timeframe specified by the vendor or their real estate agent.
Negotiation: The vendor may accept your offer outright, reject it, or initiate negotiations to reach an agreement. They may also choose to continue with the auction process and not consider any pre-auction offers. The negotiation process can involve counteroffers and back-and-forth discussions to reach mutually agreeable terms.
Legal advice: If your offer is accepted prior to the auction, there are some important steps to follow: ensure you receive legal advice regarding the contract and have the relevant terms and conditions of the contract explained to you; arrange any pre purchase inspection reports of the property and ensure those results are satisfactory to you, such as a pest and building report or a strata inspection report, and, if you require a loan from a financial institution, ensure the loan is formally and unconditionally approved.

It's important to note that the process of making an offer prior to an auction can vary depending on the real estate agents practices and the specific circumstances of the property. It's recommended to seek advice from a qualified conveyancer or property lawyer who can guide you through the process and help ensure that your offer is presented appropriately.

Found your dream home and it’s being sold at auction? At Kells, our highly experienced conveyancing lawyers can provide invaluable advice and assist you through the steps involved in buying your property.

Photo 13948661 © Cafebeanz Company | Dreamstime.com

How long can a commercial lease be for in New South Wales?

Wed, 19 Jul 2023 04:27:07 GMT

In New South Wales, there is no specific statutory limit on the duration of a commercial lease. The length of a commercial lease is generally determined through negotiation between the landlord and the tenant, taking into consideration their respective needs and interests. Commercial leases can vary in duration depending on the agreement reached between the parties.

Typically, commercial leases can range from short-term leases, such as a few months or a year, to long-term leases that extend for several years or even decades. The specific terms and conditions of the lease, including the lease duration, will be outlined in the lease agreement.

It's important for both landlords and tenants to carefully review and negotiate the terms of the lease, including the duration, rent, maintenance responsibilities, renewal options, and any other pertinent clauses. Seeking legal advice is essential in helping to ensure that the lease agreement accurately reflects the intentions and protects the rights and interests of both parties.

At Kells, our commercial leasing lawyers can help provide tailored guidance to ensure you have a smooth and legally sound commercial lease. We are dedicated to saving our clients time, money with the right advice at the right time.

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Kells’ Lawyers Donates Their Time to the Salvation Army Illawarra & South Coast

slopeman@kells.com.au (Kells Lawyers) — Wed, 12 Jul 2023 01:51:09 GMT

Estate planning lawyers Cornelia Joyce and Peter Martin are proud to have donated their time to The Salvation Army Illawarra & South Coast at their recent Public Relations Community Wills Day in Wollongong.

The Salvation Army Wills Day provides a community service to the public in which lawyers give their time in preparing simple Wills for no charge, in return for the attendee making a donation to the Salvation Army.

All monies donated help the Salvation Army in continuing their programs and community support in the Illawarra.

These events are a great way to ensure you have a Will that reflect your wishes, whilst also supporting Australians in need.

Shayne Lopeman

Marketing Manager

Do You Need a Lawyer When Buying a Business?

Mon, 10 Jul 2023 00:30:12 GMT

When buying a business, it is recommended that you seek the assistance of a lawyer experienced in business transactions to help you navigate the legal aspects of the purchase.

Lawyers can assist you through all stages of the process, including:

1. Due Diligence

In conjunction with your accountant or financial advisor, a business lawyer can assist with conducting thorough due diligence to ensure that you are fully aware of the business's financial status, legal obligations, contracts, intellectual property, and any other pertinent information. They can help identify any potential red flags or hidden issues and provide legal advice on any potential risks or liabilities associated with the business.

2. Negotiations and Contracts

Your business lawyer can review and provide advice on the Contract for Sale of Business and negotiate amendments with the seller’s lawyers, in order to ensure that the terms and conditions of the contract are reasonable and protect your interest. They can also assist with drafting and advising on other legal documents which may be involved in the transaction, including leases, loan documents, franchise agreements, employment contracts and contracts with third parties.

3. Regulatory Compliance

Different industries have specific regulations and licensing requirements. A business lawyer can guide you through the regulatory landscape, to ensure you are complying with all laws, licenses, permits, and other legal obligations.

4. Dispute Resolution

If any disputes or disagreements arise during the buying process or after the acquisition, a business lawyer can represent your interests, negotiate settlements, or guide you through alternative dispute resolution methods.

It's important to consult with a qualified business lawyer to obtain advice based on your specific circumstances.

At Kells, our business lawyers provide tailored guidance to ensure a smooth and legally sound transaction.

Photo 211053912 | Business © Yurii Kibalnik | Dreamstime.com

Do Sniffer Dogs at Festivals Work?

Thu, 06 Jul 2023 08:23:11 GMT

Sniffer dogs, also known as drug detection dogs, are commonly used at festivals and events to detect illegal substances such as drugs. The effectiveness of sniffer dogs can vary depending on a range of factors, and there are differing opinions regarding their efficacy and reliability.

Here are some key points to consider:

1. Sensitivity to Scents

Dogs have an exceptional sense of smell. This makes them capable of detecting certain odours, including drugs, at extremely low concentrations that humans may not perceive. Their olfactory abilities make them useful in identifying the presence of drugs.

2. False Positives and False Negatives

Sniffer dogs can produce both false positive and false negative results. A false positive occurs when a dog indicates the presence of drugs where there are none, potentially leading to unwarranted searches or accusations. False negatives occur when drugs are present, but the dog fails to detect them. Various factors, such as training, handler influence, environmental conditions, and distractions, can impact the accuracy of the dog's responses.

3. Handler Influence

The behaviour and cues provided by the dog's handler can influence the dog's reactions and indications. Dogs can pick up on subtle signals from their handlers, which can unintentionally influence their responses. It's important for handlers to be well-trained and aware of their impact on the dog's performance.

4. Human Error

The success of drug detection dogs can also depend on the competence and experience of the handlers. Errors in handling, interpreting the dog's behaviour, or conducting searches can have an impact on the reliability of the results.

5. Deterrence Effect

Even if sniffer dogs do not detect drugs accurately in every instance, their presence at festivals can act as a deterrent and discourage individuals from bringing illegal substances. This deterrent effect aims to reduce drug use and promote safer environments.

6. Ethical and Legal Considerations

The use of sniffer dogs at festivals raises ethical and legal questions, as it may infringe upon personal privacy and civil liberties. Critics argue that their presence can create an intimidating atmosphere and lead to unjust searches or profiling.

It's worth noting that different states across Australia and festival organisers may have their own policies and guidelines regarding the use of sniffer dogs. The effectiveness and controversies surrounding sniffer dogs continue to be debated, and opinions on their utility may vary among experts and the public.

Here is an article on helpful tips when dealing with police sniffer dogs.

Do you need advice? At Kells, our criminal lawyers are available 24/7 and our first consultation is free. Call us on 0452 502 041.

Photo 79079225 © Phper | Dreamstime.com

Kells Lawyers Elevates Four

Sat, 01 Jul 2023 23:00:00 GMT

Sydney and Illawarra region law firm Kells has boosted four of the firm's teams with the promotions of four lawyers, one to Partner to its ranks and three to the position of Associate. The following lawyers have been promoted due to their significant commitment and contribution to the firm:

Commenting on these promotions, Paul Magagnino, Managing Partner of Kells said:

These four promotions reflect not only the legal expertise of these lawyers, but more importantly a recognition and upholding of the firm’s core values of ethics, innovation, people and results.

“These individuals have shown an exceptional work ethic, technical ability, and teamwork. They should be recognised for their outstanding commitment to Kells,” he said.

“Congratulations to each of our promoted lawyers. I wish them well in their new roles and look forward to the enthusiasm and talent they bring as Kells’ next generation of leaders.”

Kells is a team of passionate, energetic and client focused legal professionals with over 70 staff based across 6 offices in Sydney and the Illawarra region. Kells has 6 equity partners who each lead a practice group in their core area of law ensuring that we deliver the level of legal expertise and service that our clients deserve.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Photo 104377004 | Congratulations © jwpnw | Dreamstime .com

Wollongong's Project Bucephalus Named Finalist in the FRC World Championships

Mon, 29 May 2023 00:31:27 GMT

Congratulations to Wollongong’s Project Bucephalus who have just returned from the USA to attend the First World Championships. The team of inspiring high school students from the Illawarra competed against nearly 700 international robotics teams and were named finalists for the Impact Award. Well done!

This recognition demonstrates the dedication and talent of the team’s commitment for science, engineering, and technology.

Sponsoring the robotics team is important to our firm as the foundation of Project Bucephalus is aligned with one of our firm’s core values: Innovation. We were honoured to sponsor the team’s entrance fee to enter the world championship competition in the United States of America.

For more information on Project Bucephalus .

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

What is consequential injuries and can I make a claim?

Sat, 27 May 2023 07:29:03 GMT

What is consequential injuries and can I make a claim?

As the name suggests, consequential injuries arise as a result of (or consequential to) an earlier primary injury. The signs and symptoms of these injuries are often delayed and may only become apparent several months after the initial injury.

A typical example of a consequential injury includes a right shoulder injury after suffering a fall at work. The injured person will begin adjusting to their daily activities by placing greater reliance and strain upon their left (uninjured) arm. As a result of that overreliance, the left shoulder become strained resulting in pain and restriction.

In some cases, the consequential condition has the potential to be more severe than the initial injury, particularly if left untreated.

The same principles apply regardless of whether the case is a court claim for a slip / fall, medical negligence, workers compensation, or motor accident claim.

From a legal perspective, the most important consideration is whether the link between the initial injury and consequential injury can be established.

Secondly: How do I claim a Consequential Injury?

It can be difficult to identify when a consequential injury starts to arise. Often, the original injury has been the primary focus of treatment and all attention by doctors (and patients) is on the recovery of that injury.

Therefore, only after symptoms of consequential injuries become serious do people make complaints of those issues to their doctors or physiotherapists.

It is important to be aware that these consequential issues can arise, and to immediately report concerns to the doctor(s) or physiotherapist(s) involved in your care. These professionals will make records which will become contemporaneous proof that a consequential injury has arisen.

It is then important to have the condition brought to the attention of the insurer (for example, in a Workers Compensation or Motor Vehicle Accident claim). The best method of doing so is to have all consequential conditions listed on a Certificate of Capacity or Certificate of Fitness and to specifically refer to those consequential conditions in referrals for further treatment. This will allow the insurer to be placed on notice of complaints and will help to facilitate further treatment.

Thirdly: What if the Insurer denies my Consequential Injury?

If the insurer in a Workers Compensation or Motor Vehicle Accident claim deny liability for a Consequential Injury, it may be necessary to dispute those issues in the Personal Injury Commission.

Recently, Kells represented an injured worker in the Personal Injury Commission. The worker had suffered a severe fracture in his right ankle and required prolonged use of crutches. He developed right shoulder pain due to the use of those crutches. Due to his altered way of walking, he developed right knee pain. His overreliance on the left leg resulted in left knee pain. The insurer denied all consequential injuries.

Kells qualified a number of legal experts to prove that the consequential injuries were related to the initial right ankle injury. In particular, steps were taken to obtain a report from a physiotherapist to comment on specific biomechanical changes caused by the right ankle injury.

Ultimately, the Personal Injury Commission accepted the arguments that the right ankle had resulted in biomechanical changes, and that initial injury was responsible for causing subsequent injuries to the right knee and left leg. The shoulder injury relating to the use of crutches was also accepted.

These cases can be difficult. At Kells we have the necessary skill, experience and expertise to help you succeed. Please contact us today to book in your free consultation with one of our experienced personal injury lawyers .

Photo 194144218 / Another Injury © Thanee Hengpattanapong | Dreamstime.com

Licensed Conveyancer or Conveyancing Lawyer: What is the Difference?

Thu, 18 May 2023 01:54:33 GMT

A licensed conveyancer and a conveyancing lawyer perform similar tasks related to buying and selling property, but there are some differences between the two roles.

A licensed conveyancer is a professional who specialises in property law and is licensed to handle the legal aspects of property transactions. They typically focus solely on conveyancing work and undergo specialised training and education to gain the necessary knowledge and skills to handle property transfers, prepare legal documents, conduct property searches, liaise with relevant parties, and oversee the settlement process.

They can provide advice and guidance to clients but may not have the same broad legal expertise as a conveyancing lawyer.

On the other hand, a conveyancing lawyer is a qualified solicitor who specialises in property law. In addition to handling conveyancing matters, a conveyancing lawyer can offer a wider range of legal services and advice beyond property transactions. They have a comprehensive understanding of property law, contract law, and other relevant legal areas. Conveyancing lawyers are qualified to provide legal advice, draft, and review legal documents, represent clients in negotiations or disputes, and handle any legal issues that may arise during the conveyancing process.

The choice between a licensed conveyancer and a conveyancing lawyer may depend on the complexity of the transaction, personal preferences, and the legal requirements of the jurisdiction where the property is located.

Here at Kells, we have a team of highly experienced licensed conveyancers and property lawyers to assist you with your next property transaction. Reach out today to contact our conveyancing team .

Are you protecting your customers’ personal information: new privacy laws for small businesses

Tue, 14 Mar 2023 09:59:41 GMT

While small businesses with an annual turnover of $3 million or less make up more than 95% of Australian businesses, except for in very limited cases, they are exempt from the Privacy Act. However, as Australians now live most of their lives online, it has been called into question whether the small businesses exemption is appropriate and whether it accurately reflects the community’s expectations of businesses who hold and store their personal and sensitive information.

On 16 February 2023, the Attorney-General’s Department ( ADG ) released the Privacy Act Review Report, recommending that the exemption for small businesses under the Privacy Act be scrapped.

The review commenced in 2021 and, more recently, incorporated a response to the Optus and Medibank data breaches, noting that there is a heightened risk that small businesses will fall victim to a cyber-attack. The ADG considers that the exemption poses a grave risk to consumers who deal with small businesses.

The small business exemption came into effect some two decades ago, when it was considered that small businesses posed little risk to privacy of individuals.

Current framework

Under section 6D the Privacy Act (the Act), small businesses and not-for-profit organisations who fit in to the following categories are exempt from the Act:

1. If they have an annual turnover of $3 million or less;

2. If they do not provide health services; and

3. If they do not disclose personal information for benefit, service or advantage.

More recently, small businesses have the option to ‘opt-in’ to the Act and the Australian Privacy Principles by submitting an opt-in application form to the Office of the Australian Information Commissioner (OAIC). By opting-in, small businesses will be treated as an organisation for the purposes of the Act, and may be sanctioned for breaches.

While it is not a legal requirement for small businesses to operate according to the Act, opting into the Act shows a public commitment to good privacy practice which is attractive to many small businesses who enjoy the benefits of increased consumer confidence and trust.

Whether small businesses should be exempt

In light of recent high-profile data breaches of Optus and Medibank, the operation of the small business exemption has been called into question. By not falling under the Act, Australians have little recourse if their privacy is breached by a small business.

In 2020, findings of the OAIC’s Australian Community Attitudes to Privacy Survey ( ACAPS ) showed that 85% of respondents believed that small businesses were covered by the Act or were unsure whether they were covered. 71% of respondents believed that small businesses should be covered. Notably, this survey was conducted years before the high-profile data breaches that have occurred in the past few months. It is now likely that the exemption is completely contrary to community expectations about privacy.

The Attorney-General’s Report is open for public comment until 31 March 2023, at which time it will be considered by the legislature and may become law. We will continue to track the progress of the review and report on any legislative amendments to follow.

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Delays in finishing your build? A guide for homeowners

Tue, 28 Feb 2023 08:22:59 GMT

If you’re building a new home, it is frustrating when work is supposed to be completed by a certain date but there are delays by the builder.

What do you do if a builder fails to show up to the site, progress the work, won’t take any of your calls or respond to your emails? The answer is in your building contract.

Firstly, you will need to decide whether you want to terminate the contract or compel the builder to perform the contract (complete the build).

1. Terminate the contract

If you want to terminate the contract, you must ensure that the building contract is properly terminated prior to excluding the builder from the site or engaging another builder.

By excluding the builder or engaging another builder without terminating the contract properly, you run the risk of breaching the contract. This kind of breach is known as repudiation and could mean that you could be made to pay the builder the balance of the contract price.

The process for terminating the contract will be found within the contract’s terms.

Under standard contracts, you may be required to serve the builder with a notice stating:

(a) the default (for example, time); and

(b) requiring the builder to remedy the default within a certain period; and

Notice should be given to the builder according to the terms of the building contract. If notice is not given according to the terms, you may be found to have repudiated the contract.

Usually, once the notice period expires, you can terminate the contract with no further notice to the builder. However, you will still be liable to pay the builder for any work reasonably performed under the contract because of the principle known as quantum meruit.

2. Compel performance

You may instead want to compel the builder to perform the contract. If you do, you must ensure you comply with any conditions of the contract known as ‘conditions precedent’. On standard contracts, conditions precedent may include:

(a) providing evidence of title to the land

(b) providing evidence of your financial ability to pay the contract price

Once you have ensured you have complied with the conditions precedent, if the builder fails to progress the work, and depending on the terms, you may be able to serve a notice to terminate the contract.

If you would like advice regarding your building contract, please contact us.

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What is Silica and Silicosis and how to make a claim for compensation

Tue, 28 Feb 2023 08:22:18 GMT

Silica is a crystalline which is naturally found in stone, rock, sand and clay. Whilst silica is a naturally occurring substance, in recent decades the building industry has turned to engineered stone for applications such as kitchen benchtops. The problem with engineered stone is that the crystalline silica content in engineered stone can contain greater than 90 percent crystalline silica, which is significantly higher concentration than its naturally occurring levels.

Breathing in silica dust, such as when cutting stone benchtops, places tradespeople and workers at significant risk of a lung disease called silicosis.

Silicosis has a latent onset and the symptoms associated with such illness can remain dormant or unrealised for some 10 to 30 years. Symptoms can occur sooner where workers are exposed to greater quantities of silica dust.

As time progresses, however, Silicosis is likely to become increasingly debilitating and is ultimately lethal.

What Compensation is Available?

Generally speaking, there are two (2) types of compensation available in NSW for those who have contracted a “dust disease” such as Silicosis. Those entitlements are:

Statutory benefits : The NSW Nominal Insurer for workers compensation, iCare, now administer the benefits available under the Workers’ Compensation (Dust Diseases) Act 1926. Those benefits can include a pension-style payment together with payments for medical expenses incurred during the course of treating the illness.

In order to claim these benefits, iCare will need to be notified of the injury (and your diagnosis), and they will investigate the matter in a prompt fashion. This will involve having an investigator appointed to your case in order to determine your specific exposure to silica, when and where it occurred.

Spouses and dependants may also be entitled to payments for statutory benefits under the scheme.

Common Law Claim : Over and above those statutory benefits listed above, there exists a common law right to “sue” for damages. This claim is based in negligence. Obtaining compensation involves proving that a responsible party (such as an employer, or perhaps a manufacturer of the product) caused negligent exposure to dust from a product such as engineered stone. In order for this case to succeed, there must be evidence to link the dust disease to the exposure which occurred. The Dust Disease Tribunal has exclusive jurisdiction to hear claims for dust disease, meaning that is the forum in which these claims must be heard. In order to protect the benefits available under this type of claim, the case must be commenced before the victim dies. The compensation for this claim is often significant.

Dust Disease Claims, including for Silicosis, can be complex. It is important to obtain timely legal advice from expert compensation lawyers. At Kells, we can help – no win, no fee. Contact us today.

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Prosecutions by the Health Care Complaint Commission

Tue, 28 Feb 2023 08:21:11 GMT

The unfortunate reality is that doctors, registered health practitioners, and non-registered health practitioners (such as counsellors, speech therapist, massage therapist, and alternate health care providers) will find themselves as defendants in civil litigation for misconduct.

Most are aware of the ‘usual’ proceedings where a complainant (patient) commences proceedings for monetary compensation for alleged misconduct through compensation lawyers. However, what most don’t realise that in addition to any civil compensation claim, the Health Care Complaint Commission (“The Commission” (HCC)) can investigate and prosecute alleged misconduct.

The Commission is an independent body set up under the Health Care Complaints Act 1993 and deals predominantly with the quality and care of treatment provided to a patient and the professional conduct of a health practitioner. Generally, other complaints such as fees, access to medical records, and/or abuse and neglect of people with disabilities are generally dealt with in other forums.

Possible complaint outcomes

The Commission make some initial assessment of all written complaints and when necessary gathers the relevant information to determine what action or outcome is appropriate.

The Commission can either resolve the complaint by acting as a mediator between the parties and discuss the concerns - which is generally done through the Commission’s ‘resolution service’. This service enables lay people access to experienced professionals, as often the issues are complex and understanding through the help of an independent facilitation process, can lead to a resolution.

With the more serious complaints regarding registered health practitioners such as doctors, nurses, and dentists, the Commission generally consults the relevant ‘professional counsel’ to determine an appropriate outcome. Generally, the professional counsel will provide advice whether to investigate the complaint or discontinue.

When the Commission makes the determination to investigate a complaint, which is normally in relation to serious issues of public health and safety, the Commission obtains evidence from complainants, witnesses, also refers to associated medical records. Quite often, the Commission will engage an expert to give an advice on the quality of clinical care or conduct.

Before deciding upon the outcome of an investigation, the Commission will seek submissions from the affected provider. It is at this stage that a considered and careful response needs to be drafted based on the evidence as presented by the Commission. This proceeding is quasi-criminal as many of the principles overlap.

In providing the response, the affected provider needs to balance the weight of the reply exculpatory evidence against their inherent right to silence.

If the Commission is not satisfied with the response, the matter can be referred to ‘the director of proceedings’ who determine whether or not to prosecute the practitioner for unsatisfactory professional conduct.

Alternatively, the practitioner could be referred to the ‘health professional council’ for their actions who determine what intervention of a non-disciplinary nature needs to be implicated.

Similarly, if the practitioner’s submissions are exculpatory, the Commission can decide to take no further action.

Where there is evidence of a possible criminal conduct (such as sexual touching) the complaint can be referred to the Director of Public Prosecutions for possible criminal charges. It is at this stage that the previous submissions to the Health Care Complaint Commission need to be evaluated, as in a criminal matter there is an implied right of silence which has obviously been waived in the above process. If criminal charges are commenced and successful, you are liable to the same criminal charges as if brought by the police including gaol.

In general terms, the sanctions by the Commission include but are not limited to:

1) Issuing or publishing a prohibition order or public warning where findings show the practitioner has breached the code of conduct and possess a risk to the health and safety of members of the public;

2) Making comments to the practitioner to improve practise or treatment;

3) Issuing sanctions or periods of suspension; or

4) Taking no further action.

Due to the potential serious natures of any complaints against a medical practitioner, they must be taken seriously and dealt with cautiously given any potential implications.

If you are contacted by the Health Care Complaint Commission, noting that compliant can be referred to the DPP, legal advice should be obtained immediately.

Patrick Schmidt has a keen interest in the area, being surrounded by Medico’s including numerous discussions with his father Dr John Schmidt. Dr Schmidt is considered an imminent authority being a consultant for the Personal Injury Commission, preparing medico-legal reports for the Coroner, Lawyers and the Director of Public Prosecutions. As such, Patrick has a strong knowledge of the “Cochrane Model (Library)” and internal policies and procedures.

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Can I Change My Child’s Surname After Separation?

Tue, 28 Feb 2023 08:20:06 GMT

Under the Family Law Act 1975 (Cth), in the absence of court Orders made to the contrary, each parent has equal shared parental responsibility for a child.

If both parents agree for a child’s surname to be changed, both parents are required to complete an application with Births, Deaths, and Marriages or equivalent organisation, in the respective state the child was born in, registering the change to the child’s name.

One parent can complete the application alone if they are the only parent named on the child’s birth certificate, if the other parent is deceased, or if a court has specifically approved the new name for the child.

In New South Wales, a child’s name can only be changed once in a 12-month period, and 3 times during their life.

If the parents cannot agree whether the child’s name should be changed, and the parents have equal shared parental responsibility for the children, the parents will be required to attend mediation as part of the genuine steps to resolve the dispute before proceedings can be commenced in court seeking that the child’s name be changed.

If an agreement cannot be reached between the parties either through correspondence or at mediation in relation to the change of name, commencing court proceedings may be a necessary step to resolve the matter.

The court will also consider applications in relation to a change of the child’s name from individuals who have assumed parental responsibility of the child. This may include aunts, uncles, grandparents etc.

If proceedings are commenced, the court will consider a variety of factors in determining whether the child’s name should be changed.

In the matter of Chapman v Palmer [1978] FamCA 86, the court found that the following factors should be considered when determining whether there should be any change to the surname of a child:

The welfare of the child is the paramount consideration.

The short and long-term effects of any change to the child's surname.

Any embarrassment likely to be experienced by the child if their name is different from that of the parent they live with.

Any confusion of identity which may arise for the child if their name is changed or is not changed.

The effect that any change in surname may have on the relationship between the child and the parent whose name the child previously bore.

The effect of frequent or random changes of name.

The court will determine the matter in accordance with the best interests of the child. The court may ultimately decide that the child’s name should not be changed depending on the circumstances.

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Defective Goods

Tue, 28 Feb 2023 08:19:15 GMT

Do you recall the 2015’s hottest Christmas present for children? The hoverboard. That product was responsible for at least 6 house fires during the weeks which followed Christmas, causing the Australian Competition and Consumer Commission to issue urgent recall notices.

There is a long list of faulty and defective gadgets which have caused injuries in recent years; from mobile phones with explosive batteries, to electronic devices causing electrocution, or even faulty fire pits and barbeques; the list is endless.

So, what are your rights if a defective product causes you injury?

The Australian Consumer Law (“ACL”) contains many protections for consumers, and enables a person injured by goods with safety defects to claim compensation.

By way of background, the ACL was implemented (and effective as of 1 January 2011) as a nationwide uniform law to protect consumers. Whilst other similar protections may have existed before at a state level, the ACL ushered in a new age of placing the consumers’ rights and protections first.

Not only does the ACL look to protect consumers in relation to warranties and guarantees, but it made a strong point of protecting consumers from defective products which cause injury.

More specifically, if a product is sold or supplied in Australia (regardless of where it was manufactured) and the buyer (or end consumer) is injured from a “safety defect”, then there are rights to compensation. Whilst there are some limits to the law, it is generally very broad and will cover many scenarios.

In order to bring a claim for injury caused by a product with a safety defect, it must be proved that:

1\. the manufacturer supplies the goods in trade or commerce; and

2\. the goods have a safety defect; and

3\. the individual suffers injuries because of the safety defect.

A safety defect might arise as a result of a failing or faulty part or component in a product (thing about a fault bolt or screw), or perhaps due to an inappropriate design (such as a battery getting too hot), or even by failing to provide proper instructions to allow a product to be used safely.

The key factor to remember is that the Australian Consumer Law generally aims to protect consumers, and therefore if you have been injured by a dangerous or faulty product, then you might be entitled to compensation.

At Kells, we have compensation lawyers who are experienced in product liability and defective goods claims. Furthermore, we can help No Win, No Fee. Time limits may apply, so seek advice without delay.

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Important Changes to Home Building Laws

Fri, 13 Jan 2023 08:24:05 GMT

In August this year, the NSW government proposed significant changes to the home building legislative framework. The focus of the reforms is to consolidate regulation with the purpose of restoring consumer confidence in the building and construction industry.

The proposed changes seek to create clear lines of accountability and propose more significant consequences for builders and other professionals, such as architects and engineers, who deliver substandard work.

The proposed amendments apply to a number of Acts, including, amongst others, the Home Building Act 1989 (NSW), the Design and Building Practitioners Act 2020 (NSW) and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW).

The bills were open for public submissions until the end of last month and are will now be considered by both houses of parliament. If passed, the changes are expected to commence in early 2023.

What changes are proposed?

The new framework will impact all construction industry participants.

Key changes include:

Expansion of the statutory duty of care under the recent Design and Building Practitioners Act 2020 (NSW), which will include certification and inspection of building work
Mandating documentation for variations and maximum progress payments for stages for home building works
Expansion of the term ‘developer’, which will now include more parties to be potentially held liable for defective works and more defences for builders in home building claims
Extending consumer protections to manufacturers of construction materials off-site and prefabricated buildings
Consolidation of various works certificates currently required for building works into one system
Expansion of licensing requirements in commercial building works, meaning that builders, designers, engineers, and inspectors will require a license moving forward
Amendment of the definition of a ‘major defect’ for the purpose of enforcing the statutory warranties for home building work under the Home Building Act 1989 (NSW)
Extension of the limitation period for which proceedings may be brought for a ‘major defect’, from 6 years to 10 years, and from 2 years to 3 years for ‘any other defect’, under the Home Building Act 1989 (NSW)
Greater supervision of non-license holders in respect of owner-builder work

What does this mean for you?

Building laws are tightening up across the state and significant penalties are being proposed to professionals found to have done defective work.

Extension of the warranty period for major and minor defects under the proposed Bills means that property owners will have extra time to bring an action against professionals for defective work.

This means that is important now more than ever for construction industry professionals to understand their responsibilities and ensure that they are compliant with the new framework.

We will monitor the progress of the Bills closely and will provide further updates as they progress through parliament before commencing as law in 2023.

Privacy Policy - don’t get caught out like Medibank and Optus

Tue, 03 Jan 2023 08:25:16 GMT

New legislation provides even more reasons to review your privacy policy. At Kells, our commercial team are able to assist with reviewing or updating an organisations’ privacy policy or provide feedback on compliance with the Privacy Act.

High profile data breaches with Medibank and Optus have recently brought privacy to the forefront of many individuals’ and businesses’ minds.

However, an arguably even more important reason that organisations should be considering and reviewing their privacy policies and processes is the passing of the Privacy Legislation Amendment (Enforcement and Other Measures) Bill 2022 (‘Bill’) .

The Bill, which has been implemented to, ‘promote the right to privacy by strengthening the protection of the law against unlawful interferences with privacy’ [1] , has been passed by parliament, and will come into effect once it receives royal assent.

Increased penalties

Under the Bill, the maximum penalty for serious or repeated privacy breaches by a company regulated by the Privacy Act 1988 (Cth) (‘Privacy Act’) increases from the current penalty of $2.22 million, to the greater of:

$50 million;
three times the value of any benefit obtained through the misuse of information; or
30% of the company's adjusted turnover in the relevant period.

In addition, the penalty for serious or repeated breaches by other entities regulated by the Privacy Act will increase from $444,000 to $2.5 million.

Enhanced enforcement powers

The Bill also amends the enforcement powers of the Australian Office of the Information Commissioner (‘Commissioner’), to provide the Commissioner with new or expanded powers.

This includes increasing the application of the Privacy Act to ensure that foreign organisations that carry on business in Australia are required to meet the obligations under the Act even if those organisations do not collect or hold Australians’ information directly from a source in Australia.

The Bill also expands the Commissioner’s information sharing powers, particularly with the Australian Communications and Media Authority.

What should organisations do?

If they have done not done so recently, organisations should take the time to review their privacy policies and the way they handle information.

As Kells have previously discussed , if an organisation is classified as a ‘Small Business’ under the Privacy Act [2] , they are exempt from complying with a number of obligations under the Privacy Act. However, regardless of this, it is still best practice and beneficial to organisations to seek to comply with all the terms of the Privacy Act to try and reduce the risk of a date breach occurring.

Get in touch with our experienced commercial team on advice on your privacy policy.

[1] Privacy Legislation Amendment (Enforcement and other measures) Bill 2022 Explanatory Memorandum

[2] Privacy Act s 6D

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Gangland Wars and Taskforce Erebus

Wed, 07 Dec 2022 08:26:01 GMT

Over the recent months, Sydney’s streets have been exposed to a range of gangland activities with underworld affiliates igniting fatal shootings in the streets of Sydney’s inner west. These violent outbreaks are described to be a ‘course of rampant serious and violent criminality' [1] that are exposing our streets to a gangland war.

As a response to the ongoing fatalities, the NSW Police Force announced a new taskforce labelled ‘Taskforce Erebus’ which was established to target associates involved in the brutal shootings and the ongoing organised criminal gang activity that is constantly occurring on Sydney’s streets.

Taskforce Erebus is supported by the State Crime Command under the National Organised Crime Response Plan. The taskforce aims to utilise current operational police departments such as Raptor and further draw upon the Police Intelligence Unit, to examine the recent shootings, importation of illicit substances and illegal firearms ‘to protect innocent people’ [2] who are unavoidably becoming involved.

Since its introduction in October 2021, NSW Police are consecutively monitoring criminal gang associates, with over 230 people being arrested and an additional 840 individuals being charged with offences relating to their involvement [3] . In addition, the taskforce has also uncovered ‘almost 70 firearms, 3000 rounds of ammunition, $2.5 million cash drugs worth more than $4m’ [4] .

However, there has been circulating criticism of the Erebus taskforce, with many debating that this isn’t the first time the Government have formulated a taskforce to make arrests. It has been argued that the formulation of such a taskforce will grant police powers that ability to arrest, stop, search, and enter premises that extends outside their discretionary powers. The community’s response is one nothing short of affirmative when it comes to such powers being discussed as concerns arise over the connection between the gangland feuds becoming more brutal and violent.

[1] Nino Bucci, ‘ More shootings on Sydney’s streets and yet more police powers – but to what end ’, (The Guardian, 23 May 2022)

[2] Carla Hildebrant, ‘ NSW Police announces Taskforce Erebus to combat Western Sydney gang violence’, (ABC News, 16 May 2022)

[3] Australian Associated Press, ‘ Special police taskforce established to tackle escalating gang violence in NSW’, (The Guardian, May 16 2022)

[4] Mark Morri, ‘ Police force ‘super ‘task force’ Erebus in wake of Ahmad, Zahed gangland executions’ (Daily Telegraph, May 16 2022)

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Relocation and parenting cases

Wed, 23 Nov 2022 08:26:32 GMT

Are you separated, have children and wanting to relocate?

If so, you need to obtain advice from an experienced family lawyer as, failing to obtain a parent’s consent or legal advice regarding a proposed relocation, could mean the difference between the court allowing the relocation or not.

If you do not obtain the other parent’s consent, it’s not uncommon for a court to order for you to return the child(ren).

Factors the court will consider:

1. whether child(ren) ought to spend significant and substantial time with each parent.

2. what is the best interest of the child(ren) and whether such time with the other parent is reasonable and practicable (this is particularly so in disputed parenting cases particularly when a parent is seeking to relocate to another area).

3. geographical distance between each parent, the schools where the child(ren) attend and significant relationships with extended family and their social circle.

4. any wishes the child(ren) expresses and whether those wishes may have been influenced by either parent.

5. the role each parent is to take in the child(ren)’s lives in the future

6. whether the parents will continue to share joint parental responsibility for long term decision making

7. the relationship and conflict between the parents, and their ability to communicate with each other

8. the distance that the child(ren) will be required to travel in maintaining a connection with each parent

9. whether each parent considers some travel distance is acceptable or not.

Interestingly, in a recent family law case , the court ordered that the mother could only relocate to a distance that was within 20 kilometres of the children’s school.

If you are looking at relocating, book in for a consultation with one of our highly experienced and caring family lawyers .

Do I need mortgagee consent to register my lease?

Tue, 25 Oct 2022 08:27:55 GMT

Whether you need a simple retail lease, complex agreements for large commercial premises or high-volume leasing work for a shopping centre, the leasing lawyers at Kells have the experience to assist you.

It is recommended that all leases with a term, including option terms, of more than 3 years are registered with NSW Land Registry Services (‘ NSWLRS ’).

NSWLRS has strict requirements which must be met in order for leases to be registered.

This includes requirements in relation to the form of the lease itself. For example, which pages the lessor (‘ landlord ’) and lessee (‘ tenant ’) need to have signed.

In addition, for a lease to be lodged for registration with NSWLRS, written consent from any mortgagee recorded on the title of the property is required.

How do I get the mortgagee’s consent?

When acting for landlords in relation to a lease, as part of the process of registering the lease, Kells will request consent from the mortgagee, which is generally a bank.

Each bank differs in their requirements for providing the consent.

Generally, a bank will only require a copy of the fully executed lease, being the lease signed by both the landlord and tenant. Some banks may require an additional form to be signed by the landlord and tenants.

The bank will usually charge an administration fee for providing the consent, which is generally taken directly from a bank account nominated by the landlord. The standard position under both commercial and retail leases is that while the tenant is responsible for the NSWLRS lease registration fees, the landlord will pay their own fees for obtaining their mortgagee’s consent.

While the form differs slightly between them, each bank will have a standard form consent that they will provide.

Once received, a copy of the consent from the mortgagee is then uploaded by the landlord’s lawyer alongside a copy of the signed lease to the online property platform PEXA. It is then lodged for registration with NSWLRS.

Do I still need the mortgagee’s consent if I have paid off my mortgage?

If a landlord has repaid their mortgage in full and the mortgage has not formally been discharged, the mortgage will remain registered on the title.

If the mortgage is still registered on the title of the property, the mortgagee’s consent will therefore be required in order to register the lease.

Each bank has their own discharge form to be completed to remove the mortgage from title. As with providing their mortgagee consent, banks will generally charge administration fees in doing so.

Photo 143570181 / Consent © Sergeyacros | Dreamstime.com

Re-Introduction of Camera Signage on NSW Roads

Fri, 21 Oct 2022 08:28:28 GMT

In 2010, the NSW Government introduced vehicle detection speed cameras which aimed to ensure road safety by targeting speed related offences where on-duty officers were not present.

This technological advancement allowed for high-definition cameras to be attached to unmarked vehicles on NSW roads in both residential and commercial approved areas to detect speeding. At the time of implementation, rules governing warning signs were considered as paramount in the execution of the detection cameras.

As of 19 November 2020, the NSW Government proposed that Revenue NSW do not have to place warning signs at the front of the vehicle to make oncoming vehicle owners aware of the detection cameras. It was backed by reasoning of prevention of excessive speeding and to ensure that drivers were penalties for speeding without pre-warning.

NSW road users have expressed their dissatisfaction and frustration with Revenue NSW due to the sharp increase of penalties endured as a result of the decision to remove the detection warning signs. Recent figures reveal that over 38,743 drivers [1] had been issued with penalty notices and over $40 million [2] worth of fines have been issued because of the removal.

As a response to this dissatisfaction, the NSW Government have reversed their decision of the removal of the vehicle detection warning signs. As of 1 January 2023, warning signs will be re-implemented and must be placed visibly for oncoming drivers to be made aware of the monitoring detection vehicle.

A range of signs may become visible again, for example:

1. Mobile Spead Camera Ahead; and

2. (Speed) km/h; and

3. Your Speed Has Been Checked.

Recent discussion has circulated regarding the effectiveness of the warning signs being re-implemented onto NSW Roads. The figures reveal that the exposure of the warning signs play a critical role in making road users aware of their speed by subliminally reminding them to reduce their speed before they are penalised.

Regardless of the circumstances, if you receive a penalty notice for a vehicle detected offence, the matter can be determined by the courts with the possibility of no fine and no demerit points being enforced.

We encourage you to contact our office to discuss this matter with our highly experienced traffic and criminal law team .

[1] Madeleine Achenza and Hamish Spence, ‘ Speed camera warning signs returning to NSW in 2023’, October 11 2022, NCA NewsWire .

[2] Paige Cockburn, ‘All mobile speed camera warnings back in New South Wales from January 1 after public outrage’, October 10 2022, ABC News.

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No Body, No Parole

Tue, 18 Oct 2022 08:28:49 GMT

Are you looking for criminal defence lawyers who are ready to tirelessly fight for your rights? Look no further than Kells . Our first consultation is free!

The recent highly publicised Supreme Court murder trial of Chris Dawson relating to the disappearance of Lynette Dawson in 1982 has brought New South Wales parole laws into the spotlight.

In September 2022, the New South Wales government announced they will introduce new “no body, no parole” legislation into parliament proposing that offenders must cooperate with investigators and disclose the location of victims' remains to have any chance of being released on parole.

This will align with the current legislation in Queensland, Western Australia, South Australia, Victoria, and Northern Territory which all state that offenders can be refused parole if they do not reveal the location of a victim’s remains. The proposed reforms will apply to all current and future inmates in New South Wales which will capture previously convicted offenders who have not yet been considered for parole.

The current legislation section 135(3)(e) of Crimes (Administration of Sentences) Act 1999 https://legislation.nsw.gov.au/view/html/inforce/current/act-1999-093#sec.135 currently list a failure to disclose the location of the remains of a victim as a factor to be taken into account when an individual is being considered for parole. NSW Premier Dominic Perrottet has clarified that the proposed position will have a far stricter imposition “ We will make it impossible for offenders who wilfully and deliberately refuse to disclose information about their victim’s remains, to be granted parole ”.

The new proposed reforms are certainly well intended and will hopefully reduce the pain and suffering to families of victims however, they also have the possibility of creating an inexcusable consequence for anyone who finds themselves wrongly convicted within our judicial system.

New changes to Stamp Duty in NSW could get you into your first home faster!

Mon, 17 Oct 2022 08:40:03 GMT

Among the many costs associated with the purchase of property, is the cost of stamp duty.

Stamp duty is a tax imposed by the state government on the purchase of land (as well as other assets). It is calculated based on the market value of the property. So, the more expensive the property, the higher the stamp duty.

There are currently exemptions and concessions from stamp duty for eligible first home buyers purchasing property valued up to $800k. However, for those in need of a larger family home, or those in metropolitan areas, $800k doesn’t always cut it.

With this in mind, the NSW government has announced a new scheme for eligible first home buyers to choose between a) paying stamp duty up front (the usual method); or (b) paying an annual property tax based solely on the land value.

Who can apply?

The new scheme will only be available to eligible first home buyers purchasing property with a market value of $1.5mil. or less.
Eligible first home buyers that sign a contract on or after 16 January 2023 will be able to opt in the property tax as opposed to paying stamp duty up front.
Eligible first home buyers that sign a contract between the passage of the legislation and 16 January 2023 will be required to pay stamp duty upfront, however, may be entitled to apply for a refund of that duty.

How much is the property tax?

The property tax will be calculated on the land value solely and issued for the financial year.

The property tax rates for 2022-2023 are as follows:

Owner/occupiers: $400.00 plus 0.3% of the land value
Investors: $1,500.00 plus 1.1% of the land.

For example. stamp duty on a property valued at $1.2mil would attract stamp duty of $50,875 payable up front. Under the new scheme, the annual property tax for 2022-2023 would be $2,560.

If you are looking to purchase your first home we recommend getting in touch with one of our experienced property lawyers or conveyancers .

Can Injured Cyclists Claim Compensation?

Tue, 11 Oct 2022 08:40:40 GMT

Are you looking for compensation lawyers in NSW? Look no further than Kells. Your first consultation is free and we offer our legal services on a no win, no fee basis.

The streets of the Illawarra have recently been buzzing with excitement as the UCI Road World Championships headed to Wollongong. Whilst these elite athletes had the benefit of riding on closed roadways, many not-s o-experienced cyclists are also hitting the road to experience some excitement of their own.

However, when things go wrong, are cyclists covered for compensation under the CTP Scheme? The simple answer is yes.

Generally, any person who is injured on a NSW roadway (or road-related area) as a result of the use or operation of a motor vehicle is entitled to claim compensation. This includes cyclists or pedestrians.

Therefore, if you consider a situation where a cyclist is riding along a high-speed country road and a vehicle ‘clips’ a cyclist in the process of overtaking, then this is a situation covered by the relevant CTP laws.

In such circumstances, a compensation claim is lodged against the CTP insurer of the at-fault vehicle. The claim will be assessed, and compensation benefits should be paid to the injured person. Whilst benefits can include periodic payments for lost wages, medical expenses, and potentially “pain and suffering”, each case needs to be assessed on its merits in determining the ultimate compensation which will be paid.

But what happens when a cyclist is injured by a vehicle that leaves the scene before registration and driver details can be exchanged?

In NSW, if an at-fault vehicle or driver cannot be identified following “due search and inquiry”, then the scheme will allocate at random a CTP insurer to handle your claim. In this situation the insurer is referred to as the “nominal defendant” and compensation can be sought from that insurer.

If you are a cyclist injured in an accident with a motor vehicle, then you could be entitled to compensation. Strict time limits apply, and you should seek advice immediately.

The Statutory Duty of Care under the Design and Building Practitioners Act

Tue, 11 Oct 2022 08:39:36 GMT

Do you need a skilled litigation lawyer who can guide you through a complex litigation process? Our experienced team has the expertise to address all your disputes.

In 2020, the NSW Government introduced the Design and Building Practitioners Act 2020 (NSW) ( DBP Act ) in response to growing consumer concerns about the accountability of professionals involved in building and construction work.

A key reform introduced by the DBP Act is an extension of the duty of care in tort. Section 37 of the DBP Act provides that a “person who carries out construction work has a duty of care to avoid economic loss caused by defects”. [1]

The duty is owed to both owners and subsequent owners and is owed regardless of whether the construction work was carried out under a contract. This means that owners and subsequent owners may have a claim against any person with “substantial control over the carrying out of” the work regardless of whether there is a specific contractual arrangement between the owner and the guilty party. This significantly widens the scope of claims that may be brought against anyone involved in construction works including architects, builders, project managers, engineers, contractors and subcontractors, and developers.

However, since the introduction of the DBP Act, there has been some confusion as to the application of the duty of care and who may be liable for construction work that is carried out.

Definition of “Building Work”

While the wording of the DBP Act makes it clear that the statutory duty of care applies to residential building work, it was uncertain how far this duty would extend to construction work on other buildings. This ambiguity is caused by the two different definitions of “building work” in the DBP Act.

The recent decision of Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd (in Liq) [2] has provided guidance on this issue. In this case, the Supreme Court of NSW confirmed that the duty of care is not limited to class 2 buildings (residential apartments) but extends to additional classes of buildings.

In reaching its conclusion, the Supreme Court found that the statutory duty applies to both “residential building work” as defined in the Home Building Act 1989 (NSW) and building work relating to a “building” as defined in the Environmental Planning and Assessment Act 1979 (NSW). On this basis, it is arguable that the duty of care extends to “building work” on almost all types of buildings.

What Amounts to “Substantial Control”?

Shortly after the Goodwin decision, the NSW Supreme Court delivered its judgment in the case of The Owners – Strata Plan 84674 v Pafburn Pty Ltd . [3]

In the proceedings, the Owners Corporation sued both the builder and developer for breaches of the statutory duty of care. In respect of the developer, the Owners Corporation alleged that it had engaged in “construction work” as it had supervised, coordinated, project managed or otherwise substantively controlled the building work carried out by the builder.

The Court stated that a person has supervised, coordinated or project-managed the relevant construction work only if it can be demonstrated that the person actually performed those functions.

However, when considering whether the developer had “substantive control' of the relevant construction work, the Court found that it must only be established that the person was in a position where it was able to control how the work was carried out (even if it did not exercise that control).

Conclusion

This interpretation of the duty of care as established by the DBP Act is a particularly important thing for developers and owner-builders to be aware of, as they may now be held liable for any defective work that is completed by sub-contractors under their substantive control.

[1] DBP Act, section 37.

[2] [2022] NSWSC 624.

[3] [2022] NSWSC 624.

Do surrogates receive any lump sum payments from the intended parent/s?

Tue, 11 Oct 2022 08:39:13 GMT

Are you going through a complex family law matter? Look no further and contact the family lawyers at Kells. We are experts in dealing with a wide range of matters from adoption to separation cases.

Starting a family may be more difficult for some than others. Individuals may need to consider entering into a surrogacy arrangement due to fertility issues or other medical concerns.

Choosing to be a surrogate can be an extremely rewarding experience. However, there can be numerous emotional and financial costs of surrogacy. Naturally, the intended parent/s may feel the need to reimburse the surrogate for carrying and giving birth to their child.

However, it is a criminal offence to pay someone in exchange for them carrying and giving birth to a child. This is what is known as a commercial surrogacy arrangement and these types of arrangements are illegal in NSW. Parties must ensure they have entered into an altruistic surrogacy arrangement.

It is important to note that whilst a surrogacy arrangement is not enforceable, the obligations under the surrogacy arrangement to pay or reimburse the surrogate’s costs are enforceable.

Under NSW legislation, parties to a surrogacy arrangement can reimburse a surrogate for reasonable costs such as:

Medical costs associated with the pregnancy or birth.
Travel or accommodation costs associated with the pregnancy or birth.
Any premium paid for health, disability or life insurance that would not have been obtained by the surrogate, had the surrogacy arrangement not been entered into.
Medical costs associated with the child of the surrogacy arrangement.
Cost of reimbursing the surrogate for a loss of earnings as a result of unpaid leave taken by them, for a period of up to 2 months during which the birth happened or was expected to happen, or any other period the surrogate was unable to work on medical grounds related to pregnancy or birth.
Medical, travel or accommodation costs associated with becoming or trying to become pregnant.
Costs for the surrogate and the surrogate’s partner (if any) for receiving counselling in relation to the surrogacy arrangement.
Costs for the surrogate and the surrogate’s partner (if any) for receiving legal advice in relation to the surrogacy arrangement or a parentage order.
Costs for the surrogate and the surrogate’s partner (if any) for being a party to proceedings in relation to a parentage order, including reasonable travel and accommodation costs.

The surrogate’s costs will only be found to be reasonable if the cost is actually incurred and the amount can be verified by receipts or other documents. It is important to note that medical costs do not include any costs that are recoverable under Medicare or any health insurance or other scheme.

Notably, the intended parent/s cannot make any lump sum payments to surrogates for consideration for entering into the surrogacy arrangement.

If the intended parent/s do make a lump sum payment to a surrogate for carrying and birthing their child which is not a reasonable cost listed above, the intended parent/s may be committing a criminal offence.

Gender and the Law: A Recent Case Where the Court Intervened

Tue, 11 Oct 2022 08:38:24 GMT

Facing a complex family law matter? Our experienced family lawyers can guide you through the legal process without confusion and uncertainty. With us on your side, you can rest easy knowing your family will be looked after.

In the recent case of Re:Kelly [2022] FedCFamC1F 380, the court determined amongst other issues, whether a child should undergo Stage 1 hormone treatment in circumstances where the child was under the age of 18, where the mother consented to the treatment, and where the father did not provide his consent.

In this case, the mother commenced urgent parenting proceedings in respect of her two (2) children.

One of the children, Kelly, was assigned male at birth and sought to undergo Stage 1 hormone treatment to suppress the effects of puberty. The Stage 1 treatment is reversible. The child’s medical practitioners and mother supported Kelly in undergoing the treatment; however, the father did not provide his consent for Kelly to undergo the treatment.

In the absence of Orders, where a parent does not agree to this sort of medical treatment, the court must first determine whether the child has sufficient understanding and intelligence to understand what is proposed (known as “Gillick competence”).

The mother also sought to vary the child’s birth certificate so that the child be formally known and recorded as ‘Kelly’. The child’s name on her birth certificate was ‘Charlie’.

The mother also sought sole parental responsibility for her children, and/or in the alternative that the court authorise the proposed medical treatment of Kelly. The mother also sought leave to provide a copy of the Orders to support the registration of the change of the child’s name. The mother further sought that the children live with her and spend time with the father as agreed, subject to the children’s wishes.

The mother asserted that the father did not accept Kelly’s gender identity and continued to refer to her as ‘Charlie’.

Kelly underwent the required screening process for transgender children and was formally diagnosed as having gender dysphoria. The treating Medical Service confirmed that Kelly had the ability to consent to the first stage of treatment.

Kelly’s treating doctor advised that Kelly should commence hormone-blocking treatment immediately to prevent entry into male puberty and noted that Kelly expressed significant distress at the idea of entering male puberty.

Kelly contacted her father to obtain his consent for the treatment but did not receive a response.

The mother deposed that Kelly had identified as a female from a very young age and has been treated as a female at her school and socially.

The mother deposed that Kelly initiated the discussions in respect of her transition and the mother took care not to prompt Kelly in any way in respect of her gender identity.

Notably, Kelly had spent no direct time with her father since October 2020. Kelly’s doctor reported that Kelly’s father was not supportive of her, and that Kelly had suffered transphobic bullying. Kelly’s medical assessment found that she never felt satisfied with her assigned gender and also had never felt uncertain about her identity as a girl.

The court considered the best interests of Kelly when making their decision and noted that Kelly wished to commence Stage 1 hormone treatment. The court found that Kelly was informed and mature in expressing a rational view as to her gender dysphoria and the appropriate treatment. The court found that Kelly’s best interests were achieved by her entering into Stage 1 treatment in respect of her gender dysphoria and that the mother has sole parental responsibility accordingly. The court authorised a variation of Kelly’s birth certificate so that the child be formally known as ‘Kelly’.

The court relisted the matter for mention in respect of Kelly undergoing Stage 2 gender dysphoria treatment in the absence of the consent of the father. Stage 2 treatment involves gender-affirming hormone treatment with some effects being irreversible.

If this article has caused you distress in any way, please reach out to the following services for support:-

QLife: 1800 184 527

Twenty10: 1800 65 2010

The Gender Centre Inc: (02) 9519 7599

It’s the final countdown!

Tue, 11 Oct 2022 08:37:21 GMT

If you need expert legal help with your divorce, contact the experienced divorce lawyers at Kells.

A weekly question asked by clients, family and friends, is “When does the divorce clock start ticking?” This can often be ‘blurred lines’ when dealing with separation under one roof.

The Court, in determining if the parties have been separated for a period of 12 months, looks at the individual circumstances of the separation.

To prove you have been separated under one roof would usually require the circumstances of your separation to be set out in an affidavit and (often) supported by an affidavit from an independent witness, such as a friend or a family member. The test is whether the consortium vitae (a fancy Latin way of describing the life or essence of the married relationship) ended and when.

Parties may continue providing domestic assistance to each other, such as cooking meals or doing washing, and there are even some cases where parties have been found to have separated even though they maintained a sexual relationship!

As a general rule, if you have separated your banking, moved into separate rooms and told people that your relationship is over, you are getting to the position you need to be in to convince a Court that you have been separated whilst living under one roof.

A guide to buying and moving into a new built apartment

Tue, 16 Aug 2022 08:42:33 GMT

With the property market continuing to grow, it is no surprise that more and more Australians are looking to purchase strata apartments as an affordable alternative to purchasing land, particularly for those looking to buy in close proximity to their city centre.

Soon to be built (known as off-the-plan) and newly constructed apartments comprise an overwhelming majority of listings for sale. And for some, the lure of a new build with its shiny new appliances, modern interiors and fresh paint is far too enticing to pass up.

So, what should you know about buying an off-the-plan and before moving into a newly built apartment?

1. Expect delays. Issues can arise during the construction period, which may prevent the developer from completing the build on time. Whilst most Contracts will contain a date in which construction must be completed by, there are often provisions which allow this date to be extended in circumstances outside of the developers control. A good example of this is the recent floods in NSW.

2. CGI photos and marketing material may lead to disappointment. Usually, the contract will allow a developer to use their discretion when it comes to finishes and fixtures, layout and landscaping. This means that these items may change between the time you sign the contract and the time you get the keys. If, for example, you have your heart set on that Miele cook top and oven, be sure to make this clear to your solicitor/conveyancer so they can try to negotiate this in the contract.

3. Brace yourself for defects. Defects are a normal occurrence with most new builds, but you should be prepared. Contracts usually allow the developer to call for settlement, even though your apartment does not yet look like the show room. In these circumstances, you are usually allowed to raise defects within a specified period after settlement.

As a secondary measure, for those buildings 4 storeys or higher, developers are required to lodge and pay a building bond with NSW Fair Trading, equal to 2% of the building contract. The building bond is held for up to 2 years as security, pending compliance by the developer of defect inspections and rectification works.

If you are looking to buy an off-the-plan or new build please get in touch with one of our property lawyers or conveyancers who would be happy to discuss any questions you might have about the process.

Photo 211050456 / Guide Buying Home © Teacherphoto Photo | Dreamstime.com

Can I claim compensation if I have been in a vehicle accident?

Tue, 09 Aug 2022 08:44:23 GMT

Being involved in a motor vehicle accident can result in both physical and psychological injuries. These events are often traumatic and frightening for not only those involved, but also their family and friends.

Oftentimes, people are unaware of what exactly they may be entitled to claim as compensation if they are involved in a motor vehicle accident.

At Kells, we have a team of highly experienced personal injury solicitors who can provide you with legal advice on a “No Win, No Fee” basis. In our consultation, we can advise you of what exactly you may be entitled to claim.

Those who are entitled to compensation as a result of injuries sustained from a motor vehicle accident include not only a driver, but also a passenger, cyclist or pedestrian. Further, family members who have lost a loved one in a fatal motor vehicle accident may be entitled to claim compensation.

What compensation am I entitled to?

Anyone who sustains an injury (psychological or physical) in a motor vehicle accident is entitled to payment of weekly income and medical, care and rehabilitation expenses for up to 26 weeks (and potentially longer) from the date of the accident. These are referred to as your statutory benefits. Payment of these benefits does not depend on who is at fault.

To make a claim for statutory benefits, you must give notice of the claim to the relevant insurer within the following timeframes:

1. Three months after the date of the motor accident, or

2. To be entitled to receive weekly payments of statutory benefits from the day after the motor accident, within 28 days after the date of the accident.

Some people who are seriously injured in a motor vehicle accident may also be entitled to a claim for damages.

The following are what you may be entitled to in a claim for common law damages if the motor accident occurred after 1 December 2017:

1. Non-Economic Loss: This includes a claim for pain and suffering and reduced quality of life. This claim is subject to limitations.

2. Economic Loss: This includes a claim for past and future loss of income if your injuries from the accident prevent you from earning as much income as you did prior to the accident. This also includes loss of superannuation.

In order to lodge a claim for common law damages, you must complete the relevant forms and submit them to the CTP insurer. This is a tricky task, and a lawyer will be able to help you.

Most importantly, a claim for common law damages has strict time limits and other requirements. The claim must be lodged within three years of the date of the accident.

If you or anyone you know has been involved in a motor vehicle accident, you should contact the team at Kells as soon as possible to receive accurate and comprehensive legal advice.

Photo 5948574 © Monkey Business Images | Dreamstime.com

Do I need to do probate when my loved one dies?

Tue, 09 Aug 2022 08:41:52 GMT

When a person passes away, knowing what to do can be very overwhelming.

An application for Probate is usually required to administer a person’s estate if their estate is large or if real estate is involved. However, some estates can be extremely large but because of how they are ‘held’ may not require Probate for release.

Property

Probate is always required to transfer real estate to an executor or directly to a beneficiary if that real estate is held solely in the deceased’s name.

Banks and financial institutions

Banks or financial institutions will usually only release funds in a deceased’s persons accounts if those funds are over a certain amount, usually $50,000.00, however it is a good idea to check with that institution as some banks will require probate for accounts over $15,000.00.

Share registries will also require probate to sell or transfer a deceased’s person shares if the total value of the estate shares are over $50,000.00.

Superannuation and life insurance

Some large estates however contain assets which include superannuation and life insurance. The administration of these assets will depend on such things as whether or not the beneficiaries are dependent on the deceased and whether the deceased made a binding nomination.

Ultimately, the trustees of the superannuation fund will make that decision and, in some cases, even though large sums of money are involved, it will not be necessary to apply for probate to have the superannuation death benefit paid out. Similarly, for life insurance, if the trustees are satisfied that the life insured is deceased and the nominated beneficiary identified then they will release the insured amount to that beneficiary without probate.

When administering a person’s estate it is important to check carefully what assets are held, how they are held and each asset-holder’s requirements for release to the beneficiaries.

Have you recently lost a loved one and need direction on what to do? Reach out and contact our caring and experienced probate team.

Photo 78845696 / Death © Wisconsinart | Dreamstime.com

Can I do my own divorce?

Thu, 28 Jul 2022 08:46:10 GMT

I was recently asked by a client whether they should prepare their own Divorce Application or whether they should pay for legal representation. I was asked, “Divorce is simple – right?”

Whilst a person can act on their own behalf without legal representation in family law matters, care needs to be taken. And whilst an Application for Divorce is a standalone application and is not linked to property settlement or parenting proceedings, an Application for Divorce is not without its own complexities.

Acting for yourself requires a certain level of understanding of the law and the Court’s practices and procedures.

An application that is not properly drafted or does not address all the aspects required under the law, is likely to meet resistance when the matter is heard in Court.

Furthermore, periods of reconciliation after an initial separation need to be dealt with properly. Periods of living under the one roof although on a separate and apart basis need to be addressed, as may witness statements be required. There are also issues in effecting proper service of the application on your spouse. Failing to comply with the rules for personal service can see the application being rejected.

As lawyers appear in court on a regular basis, they know what the court expects, and also are aware of the requirements set by the Family Law Act and Rules and are best placed to draft an application to ensure that the divorce is granted at the first hearing.

Often parties representing themselves can run into any number of difficulties in meeting the requirements and expectations that a court has for an Application for Divorce and can result in the Divorce Order not being made. Failing to comply with the necessary requirements can lead to the Application for Divorce being dismissed, or multiple adjournments and repeated court appearances to rectify mistakes.

If you are thinking of filing an Application for Divorce speak to a lawyer and obtain advice before proceeding. Obtaining legal advice and representation can make the difference between the Application for Divorce being granted or rejected by the court.

Do you need divorce advice? Reach out to our expert family lawyers today.

Photo 160656873 © Aleksandramoslavac | Dreamstime.com

Can I revoke a power of attorney?

Thu, 28 Jul 2022 08:45:05 GMT

A power of attorney is a document that appoints one or more individuals to have the authority to manage your assets and make legal and financial decisions on your behalf.

An enduring power of attorney continues to have effect if you were to lose your mental capacity.

Your attorney must act in your best interests.

However, as time goes on, your circumstances may change or your relationships with your attorneys may break down and you may wish to change who you have appointed.

In order to revoke an enduring power of attorney, you need to serve notice of the revocation on the attorneys appointed. The revocation needs to be in writing, signed by you and witnessed.

Section 47 of the Powers of Attorney Act (NSW) 2003 provides that an attorney is entitled to rely on a power of attorney if they are unaware of the termination or suspension of the document. Therefore, you must serve written notice on the attorney and have them acknowledge receipt of the revocation.

If the Power of Attorney is registered with NSW Land Registry Services, you should also register the revocation with this agency.

You may need to consider updating your documents in the following scenarios:

If you have separated or divorced from a partner who has been appointed as your attorney.
If you have had a breakdown of relationship with an attorney.
If you are concerned that an attorney is misusing funds.
If you are concerned that an attorney may not act in your best interests.
It is important to review your documents as soon as your circumstances change. If you lose your mental capacity, then you lose the ability to change your documents.

Do you need to revoke a power of attorney? Reach out to our experienced estate planning team to make an appointment.

Photo 15414990 © Joseph Hamilton | Dreamstime.co

COVID-19 vaccine: have you been unfairly dismissed?

Thu, 28 Jul 2022 08:43:19 GMT

A recent case of Dean v Regional Express Holdings Limited (Rex) highlights that a one size does not fit all.

Mr Dean succeeded in his claim for unfair dismissal and was reinstated to his position as a pilot at Rex.

There have been literally hundreds of cases filed by people who have been dismissed by an employer following a company’s vaccination policy. Many of these claims have been either unsuccessful or discontinued.

Most lawyers will tell clients that each case needs to be looked at on its own facts and Mr Dean’s case is a clear illustration of that.

There were several unusual subjective factors which helped Mr Dean in his application. The first was that Mr Dean had continuous service for approximately 27 years with Rex airlines.

The second was that he held employment as a captain with Rex and his employment was regarded as unimpeached. He received an outstanding achievement award, and his service was described by his employer as dedicated service.

Perhaps the most distinguishing factor is that Mr Dean had ultimately (although not within the time suggested in Rex’s policy) became fully vaccinated.

The facts

Mr Dean was employed as a captain by Rex. He had a long period of services indicated above. Rex introduced a policy requiring staff members to be fully vaccinated by 1 November 2021. The policy provided that it was a reasonable and lawful direction and that if not followed disciplinary action up including termination may result.

Mr Dean had reservations concerning the then available COVID-19 vaccinations and indicated that he was concerned about possible side effects as one of his friends had died after receiving a COVID-19 vaccination.

Mr Dean expressed the hope that he could be given other duties (amongst other things working on a flight simulator). He asked that the time for him to be vaccinated be extended and the evidence disclosed that Rex apparently considered this request but ultimately dismissed him.

It was concluded that Rex’s policy was a reasonable and lawful direction and that Rex had a valid reason for termination of Mr Dean’s employment.

She further held that Rex had not complied entirely with procedural fairness considerations and that ultimately the dismissal was unfair.

The Commissioner reinstated Mr Dean to his employment and further ordered that Mr Dean have continuity of service but did not order that Mr Dean recover lost pay during the period from termination until his reinstatement.

Lessons from the case

One of the principal lessons from the case is that each decision to terminate an employee needs to be looked at individually. Rex apparently dismissed several other employees. It appears that 17 other claims for unfair dismissal were lodged but ultimately discontinued. Mr Dean’s case is an exceptional case and the some of the important factors include his lengthy period of service and the fact that he subsequently has become vaccinated. It is not a case of universal application. It also remains to be seen if the employer will appeal from the decision.

The message for employers is to look at each case individually. A hard and fast rule can be the subject of criticism. Some leeway, particularly for long-term employees, is appropriate.

Here is a link to the case [2022] FWC 1448

Photo 1173186 / Pilot © Pdiaz | Dreamstime.com

In a separation: who gets the dog?

Fri, 15 Jul 2022 08:46:50 GMT

Pets are a person’s best friend, but what happens to your pet when you separate from your former partner or spouse?

This issue was considered in the case of Downey & Beale [2017] FCCA 316.

In this case, the court had to determine which party owned a dog to decide whose care the pet should be in.

The husband purchased the dog for $300.00. However, the court found that payment of a fee, does not itself, determine ownership or determine the Order the court might make.

The wife asserted the dog was purchased after the parties had commenced dating, the dog lived with her and her parents, and was in her possession.

The wife contended she desired to adopt a puppy and when the parties went to look at the dog, the husband offered to pay for the dog in order to gift it as an early birthday present to the wife.

The wife claimed that she paid for all vaccinations, operations, food, and accessories for the dog as it had been living with her parents and her continuously since adoption.

The wife relied on documents relating to the dog’s attendance upon vets that showed that she was listed as the owner of the dog.

There are obligations upon the owners of pets to register the ownership within six months of receiving any pet. In this case, the parties did not register the ownership of the dog within six months.

Registration of a pet may be considered by the court as a factor to determine ownership of a pet but may not always be conclusive.

Here, the parties had already been separated for nearly eight months before the dog was registered.

An owner of a pet is defined under NSW legislation as being the person who ordinarily keeps the animal, or the registered owner. On 4 November 2016, the registered owner was the husband. Prior to 4 November 2016, the wife ordinarily kept the dog.

The court ultimately found that the wife was the owner of the dog even though the husband purchased the dog and was listed as the registered owner from 4 November 2016.

It was found that the wife contributed to the dog’s care directly and non-directly, financially, and non-financially. The wife was found to be responsible for the maintenance and upkeep of the dog including attending to vet appointments.

The court may consider a variety of factors when determining ownership of a pet including who purchased the pet, who cared for the pet, who paid for the ongoing maintenance of the pet, and who the registered owner of the pet is.

Photo 50611393 / Divorce Dog © Lensonfocus | Dreamstime.com

Harsh new bail laws

Thu, 14 Jul 2022 08:47:20 GMT

On 27 June 2022, the NSW Parliament assented (passed 23 June 2022, Act 27/2022) to the Bail Amendment Bill 2022 which introduced a new incentive said to “strengthen” the Bail Act 2013.

This new Section, 22B, provides that:-

A court is not to grant bail or dispense with bail, including in the course of considering a detention application, during the period following conviction and before sentencing for an offence for which an offender will be sentenced to a full-time detention, unless it is established that special or exceptional circumstances exist that justify that bail decision.

For the purposes of the provision ‘conviction’ is to be defined in Subsection (5) to include a plea of guilty.

It was stated in the second reading speech by The Honourable Melinda Pavey MP, that “bail exists to keep victims and our communities safe before and during a trial and to protect every person’s right to the presumption of innocence and the general right to be at liberty until they can have their day in court and their matter determined…. the presumption of innocence does not apply after a conviction or guilty plea”.

Currently, when an accused person has plead guilty after the EAGP process, their bail is usually continued until sentencing in the District Court. Given the backlog of COVID and access to reports, this process can take anywhere between 1 to 4 months. Under this new provision, a person who pleads guilty in the local court will then be exposed to a detention application by the Director of Public Prosecutions and provided they will be sentenced to fulltime detention, will need to be establish special or exceptional circumstances that justify their release until sentence.

Provided the offender will (first leg) be sentenced to full time imprisonment, this amendment appears to follow a similar process to “show cause” considerations.

The provision does acknowledge that special or exceptional circumstances may arise from time to time and while the courts have declined to set an exhaustive list of factors that may constitute ‘special or exceptional’ the first reading speech makes reference to El‑Hilli and Melville v R [2015] NSWCCA 146 at [29] where Justice Hamill said, their Honours Simpson and Davies agreeing:

‘Special or exceptional circumstances’ may exist in the combination of factors or in ‘the coincidence of a number of features … It is not possible to determine or predict in advance what those features may be’

What is clear however, is that Parliament has intended that special or exceptional circumstances be a high bar to be met which would be determined on an individual case by case basis.

While the purpose of these new amendments is to keep communities safe, the question must be asked … what will it do to the EAGP process? (the process followed for more serious “strictly indictable” matters which are normally heard in the District Court as opposed to the summary jurisdiction “local court”)

While it is accepted that offenders would have a reasonable expectation of fulltime detention on a plea of guilty given the nature of their offences/criminal history, it is yet to be seen if offenders would be willing to forgo the full 25% discount in order to maintain their liberty for an extended period.

It is also yet to be seen whether this new bill will effect the sentencing procedure, as court would making a determination prior to submissions from the defence or prosecution. This raises issues in relation to matters which have a real possibility of an Intensive Corrections Order (ICO) which require a close examination of subjective and mitigating factors.

Finally, concerns are also raised in relation to the additional workload on the Local Court which would turn a majority of relatively short committals for sentence into lengthy bail applications.

Cases (at the time of writing this article)

1) R v LM [2022]_ NSWSC_ His Honour Justice Dhanji SC endorsed the principle of Section 22B does not apply unless the court is satisfied that the accused will be sentenced to a term of fulltime imprisonment.

If the court is not satisfied of this “first leg” to the requisite standard, then the court is to embark on the usual bail considerations as to unacceptable risk and the matters of Section 18 of the Bail Act.

2) R v ET [2022] NSWSC 905, where bail was sought after conviction but before sentence.

In this case, His Honour Davies was satisfied the conviction for the offence (affray) meant that the applicants would be sentenced to imprisonment to be served by way of fulltime detention (first leg).

Therefore, the primary question being whether or not special or exceptional circumstances are established.

In order to overcome this hurdle, it was put forward principally for the applicant that the time served to the present would be a period that was equal to or exceed any period of time he would be ordered to serve the offence sentence.

His Honour applied the principle concerning bail after a conviction and pending an appeal to the Court of Criminal Appeal which under Section 22 held that a matter which can constitute special or exceptional circumstances is the possibility that the applicant will have served their sentence or non-parole period before the appeal is dismissed.

Therefore, applying those principles to Section 22B the applicant would show special or exceptional circumstances if the time he has presently served will or might not be less than the sentence that might be imposed upon him when he comes to be sentenced.

His Honour found that special or exceptional circumstances would be made out and therefore it was then necessary to consider the bail concerns and the matters in Section 18 of the Bail Act 2003.

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A house is not a home: when is the stamp duty residence requirement met?

Thu, 07 Jul 2022 08:49:19 GMT

Transfer duty (or “stamp duty”) can be a significant additional cost when purchasing a property. As such, it is important to be aware of when that duty is payable.

Generally, a purchaser must pay duty within 3 months of contracts being exchanged. However, a purchaser of “off the plan” property may be able to delay making payment of duty by up to 12 months from exchange of contracts. [1]

To do so, the following conditions must be met:

1. the purchaser must use and occupy the residence as a “principal place of residence”

2. for a continuous period of at least 6 months

3. with occupation commencing no later than 12 months after completion of the agreement for the sale or transfer. [2]

The _Duties Act_ refers to the above as “the residence requirement”.

**What is a principal place of residence?**

Recently, the NSW Civil and Administrative Tribunal considered what using or occupying a place as a “principal place of residence” means. [3]

In that case, the applicant (Mr Peng) claimed he resided at a Hornsby property for 6 months (and, as such, satisfied the residence requirement). Revenue NSW argued he was actually residing at a Burwood property during the relevant time.

The Tribunal confirmed the following principles are applied, when considering the question of whether someone occupied a property as a “principal place of residence”:

1. The question is considered objectively, with the Tribunal examining the evidence available to them, of those circumstances relating to the actual use and occupation of the property. [4]

For example, relevant evidence might possibly include: evidence of where someone eats or sleeps, of electricity or other utilities being used, or of personal mail or a drivers licence referring to that address.

2. While subjective intention is relevant, the purchaser’s intention alone does not determine the question. [5]

For example, a purchaser simply stating they considered a property their principal place of residence might not be sufficient (especially where other evidence suggests otherwise).

3. Occupation by a purchaser must have a degree of permanence to it (in comparison to occupation that is “transient” or “temporary”). [6]

For example, merely sleeping at a certain residence on occasion, or only residing there briefly, would tend against a Tribunal concluding the property was a principal place of residence.

For Mr Peng, evidence of “rent” from the Hornsby property, as well as regular payments by him in the Burwood area, suggested the Hornsby property was not his principal place of residence. The Tribunal also took into account a Border Force passenger declaration by Mr Peng, which listed the Burwood property as his address.

From this case, the takeaway for an off the plan purchaser is to be aware of what evidence will be relevant, in the event they are ever required to establish that the residence requirement does, in fact, apply to their purchase.

[1] _Duties Act 1997_ (NSW) s 49A.

[2] _Duties Act 1997_ (NSW) ss 49A(1A) and s 49A(1B).

[3] _Peng v Chief Commissioner of State Revenue_ [2022] NSWCATAD 212 (‘Peng’).

[4] _Peng_, at [38].

[5] _Peng_, at [44].

[6] _Peng_, at [46].

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Do our kids get to have a say if I’m separating?

Mon, 04 Jul 2022 08:49:56 GMT

If you are going through court proceedings for the care arrangements for your children, the Court can in certain circumstances appoint a separate lawyer to represent your children’s interests. These lawyers are known as Independent Children’s Lawyers (or “ICL”) and are typically appointed in matters where some of the following factors exist:

1. There is a high level of conflict between the parties

2. There are allegations made by the parties about the views of the children

3. There are allegations of family violence

4. Serious mental health issues exist in relation to one or both of the parents or any of the children

5. There are other difficult and complex issues involved in the matter.

So what does an ICL actually do?

The main roles of the ICL include:

Ensuring the necessary evidence, including expert evidence, is obtained and provided to the court
Where the children are of an appropriate age to be interviewed, the ICL will involve the children in private interviews to assist in obtaining their relevant views and wishes, and can also assist in communicating decisions made by the court or the parents to the children so that they know what care arrangements have been made for them moving forward; and
Acting as an honest broker between the child and the parties with the intention to mitigate risk and facilitate settlement to occur.

The ICL can request family reports, question witnesses, examine medical documents, speak with the children’s counsellors and school teachers, and request urinalysis and hair follicle testing be undertaken by the parties upon random request.

When there is an ICL appointed in a matter they become an equal party, that is, there are then generally three parties that are involved in the proceedings, both parents (or other interested parties) and the ICL. The ICL can present their own independent application to the court with respect to what they believe are the most appropriate orders to seek for the children and reflect their best interests.

If you have a family law enquiry that you wish to speak about, call one of our experienced and caring lawyers today to make an appointment.

Photo 154088848 / Kids Divorce © Frank Harms | Dreamstime.com

Overcoming statutory limitation of damages: Is federal jurisdiction the answer?

Mon, 04 Jul 2022 08:48:56 GMT

The recent Federal Court decision in Leggett v Hawkesbury Race Club Limited (No 4) [2022] FCA 622 was handed down on 30 May 2022, specifically examining the interrelationship between State statutory limitations on damages and the overriding judicial power of the Commonwealth.

In that case of Leggett, the worker (Ms Leggett) was employed at a racing and held responsibility for managing the club’s sponsorships, among other things. It was alleged that she was bullied and harassed by an overbearing manager. She claimed that her exposure to that environment caused psychiatric injury. Consequently, a claim for workers compensation was made under the relevant NSW legislation and was assessed at a level of impairment entitling her to lump sum benefits. She also became entitled to pursue a claim for Work Injury Damages as to her economic loss.

Subsequent to the claim under the Workers Compensation Act, the worker brought a further claim against her employer on the basis that they had breached the Fair Work Act which, of course, is subject to federal jurisdiction. It was alleged that the bullying by her employer constituted “adverse action” within the meaning of the Act, and that such conduct was the cause of the termination of her employment. She sought further compensation on that basis.

The worker relied upon ss340 and 545 of the Fair Work Act in bringing that further claim.

The crucial questions for the Federal Court to determine was whether the past findings of an Arbitrator in NSW created any estoppel issues and also the extent to which the previous workers compensation benefits affected the claim under the Fair Work Act. Furthermore, and most importantly, the Court was required to consider whether the restrictions applicable to claims under the NSW legislation (modified damages) also applied to relief (or compensation) sought under a Commonwealth regime.

In short, the Court found that the limitations upon damages imposed by NSW legislation would not act to restrict the damages available under the Commonwealth legislation (such as the Fair Work Act). This meant that not only could the worker claim damages for economic loss, but also an amount for non-economic loss.

The Court then considered the issue of whether the previous benefits received by the worker needed to be considered in awarding further compensation. Ultimately, the Court upheld the principle against “double-dipping” meaning that the worker could not receive the same type or amounts of compensation twice. Given there were additional entitlements available under the Fair Work Act, those additional amounts could be paid and awarded to the worker.

Whether that decision is to be appealed is yet to be seen. It is possible that an appeal will follow and, if so, this could change the approach taken in relation to these claims. It is therefore important to keep a close eye on this particular landscape in the near future.

All lawyers practicing in personal injury should consider the availability of relief under the Fair Work Act as an alternative to the Workers Compensation Act, where relevant breaches under the Fair Work Act can be established.

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Sydney and Illawarra region law firm promotes 6

Fri, 01 Jul 2022 08:52:28 GMT

Kells has today named one senior associate to its ranks and five more to the position of associate.

Effective from 1 July, the following lawyers have been promoted in recognition of their valuable contributions to the firm.

Senior Associate: James Watt

Associate: Kyle Bridge , Harry Lollback , Cohben McMahon , Olivia Southall and Kareena Spiteri .

Commenting on these promotions, Kells’ Managing Partner, Paul Magagnino said embracing talent within our firm and enhancing opportunities for growth within our roles and among our future leaders is an integral part of our firm’s culture. Our promotees have demonstrated exceptional work ethic, technical ability, and teamwork. Their promotions reflect their legal expertise, their strong results all whilst upholding the firm’s core values of ethics, innovation, people and results.

Throughout our firm, we have excellent talent at every level. We value their contributions to our success, and we are proud to recognise their efforts and accomplishments with this latest round of promotions.

“Congratulations to each of our promoted lawyers. I wish them well in their new roles and look forward to the enthusiasm and talent they bring as the Kells’ next generation of leaders.”

Kells is a team of passionate, energetic and client focused legal professionals with over 65 staff based across 6 offices in Sydney and the Illawarra region. Kells has 6 partners who each lead a practice group in their core area of law ensuring that we deliver the level of legal expertise and service that our clients deserve.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Driving in NSW with Medicinal Cannabis

Tue, 21 Jun 2022 08:53:37 GMT

Tens of thousands of Australians now have access to legal medicinal cannabis. Data from the Therapeutic Goods Administration shows the number of medicinal cannabis prescriptions doubled from 2020 to 2021 with more than 122,000 scripts written in 2021 alone.

In New South Wales our controversial driving laws are yet to catch up to the increasing trend of legal cannabis. Our current drug driving legislation creates an offence for any driver to be found to have a mere presence of a prescribed drug such as cannabis in their oral fluid, blood, or urine.

The penalty available for a first offence is:

$572 infringement; and
Three-month licence suspension.

A recent New South Wales parliamentary enquiry in Sydney relating to medicinal cannabis driving has brought into question whether there should be law reform aimed at measuring impairment as opposed to the presence of cannabis in those who are driving with medicinal cannabis in their system.

It is argued that those who have been prescribed medicinal cannabis are being discriminated against as they face criminal penalties whereas other road users prescribed drugs such as opioids, Benzodiazepines and sedating antidepressants can drive without facing any penalty.

New South Wales parliament is set to review the current laws and will be provide a report in early August however whilst the laws remain the same we encourage you to contact our experienced criminal and traffic lawyers if you any questions or concerns regarding driving with cannabis in your system.

Photo 150486612 / Medicinal Cannabis © Kumruen Jittima | Dreamstime.com

Surrogacy: things to consider

Tue, 07 Jun 2022 08:54:52 GMT

Starting a family is an exciting and nerve-wracking time for any new parent. However, individuals seeking to enter into a surrogacy agreement for the conception and birth of their child can face additional hurdles.

There can be issues that arise as to who is the legal parent of a child born as the result of a surrogacy arrangement. In some circumstances, the birth parent, and their spouse (if any) are presumed to be the legal parents of the child, despite the intended parent(s) clear intention to be the child’s parent(s). Issues can also arise relating to enforceability of the agreement and the overall cost of the process.

In order to become the legal parents of a child born as a result of a surrogacy arrangement, the intended parent(s) must seek a transfer of parentage so that the birth parent(s) do not remain the child’s legal parent(s).

To seek a transfer of parentage, the intended parent(s) must comply with various requirements under state law, some of which are set out below:

The parties must undergo counselling with a qualified counsellor.
There must be independent legal advice given to each party prior to entering the agreement.
The surrogacy arrangement must be registered.
A surrogacy agreement must be entered into prior to conception of the child.
There must be a medical or social need for the surrogacy agreement. This may include a single intended parent who cannot conceive or give birth to a child, a same-sex couple, or a couple who cannot conceive or give birth to a child for medical reasons.
The child’s birth must be registered.
An application for a parentage order must be made no less than 30 days and no more than 6 months after the child’s birth.

An Example of How Issues Can Arise

The issues that can arise when entering into surrogacy agreements were highlighted in the recent case of Tickner & Rodda [2021] FedcFamC1F 279. In this case, the applicants, namely Mr Tickner and Mr B Tickner entered into a surrogacy arrangement with the respondent. The applicants and respondent met online, but were otherwise strangers. The surrogacy arrangement provided that the respondent would carry the child, Mr Tickner would provide the sperm, and an acquaintance of the applicants would donate their egg. The respondent had no genetic relation to the child.

The respondent told the counsellor that she had terminated the pregnancy and surrogacy agreement. However, the respondent did not terminate the pregnancy and the child was born. In this case, the unenforceable nature of and difficulties with surrogacy arrangements were noted, especially where the parties are strangers.

Here, the best interests of the child were considered by the court. It was found that as Mr Tickner provided his sperm for the conception on the basis he would be the child’s parent, he was one of the child’s legal parents and that Mr B Tickner was a person interested in the welfare of the child. The court noted that as the child grows older, he would likely want to know more about the person who gave birth to him.

Therefore, the applicants were granted equal shared parental responsibility for the child with the child to spend time with the respondent as agreed between the parties.

The application for a parentage order was adjourned for further consideration.

It is important that when entering into a surrogacy agreement, all of the parties receive legal advice in relation to the effects of the agreement, especially the intended parents, so that they can be in the best position to grow their family with minimal hurdles.

If you are considering entering into a surrogacy agreement or need any advice in relation to surrogacy matters, please contact our office to arrange an appointment with one of our experienced family lawyers.

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Can I build my dream bathroom? Renovation and repairs in Strata Schemes

Tue, 07 Jun 2022 08:53:04 GMT

In a strata scheme (such as an apartment building), it can often be unclear who is supposed to be responsible for what parts of the building.

The number of judicial decisions published, dealing with disputes about renovations or who was supposed to repair something, suggest this issue comes up with regularity.

Below, we’ve provided a basic summary of who is responsible for certain works in strata schemes. To begin with though, it is important to understand where someone’s own lot ends and where the common property begins.

In a strata scheme (such as an apartment building), it can often be unclear who is supposed to be responsible for what parts of the building.

The number of judicial decisions published, dealing with disputes about renovations or who was supposed to repair something, suggest this issue comes up with regularity.

Somewhat less-than-helpfully, common property is “any part of a parcel (e.g. an apartment building) that is not comprised in a lot (e.g. a single apartment)”. [1] The legislation gives some further explanation though: boundaries of a lot are defined as the inner surfaces of walls, upper surfaces of floors, and lower surfaces of ceilings. [2]

With that definition in mind, it becomes apparent why disputes frequently arise. For instance, if a boundary of an apartment is the inner surface of a wall, any work involving going into or through the wall is technically affecting common property. [3] Similarly, work on the floors (such as replacing tiles and waterproofing in an apartment bathroom), would be considered altering common property. [4]

Given this, the basic framework in NSW can be summarised as:

The owners corporation is responsible for the maintaining the common property, and keeping it in a state of good and serviceable repair. [5]

A lot owner is (generally) not permitted to carry out work to, or alterations of, common property, unless authorised by a “special resolution”. [6]

A lot owner may carry out work if:

it is “cosmetic work” (e.g. installing hooks, laying carpet). This work does not require approval;

it is a “minor renovation” (e.g. renovating a kitchen, replacing wood floors). This work requires approval by a “general resolution”;

in the case of other work (more substantial work, like structural changes or major renovations, or waterproofing of bathrooms), approval is given by “special resolution”. [7]

While this is a general overview, if you’re considering carrying out repairs or renovations of your own lot, a special by-law (clearly describing the work, and who is responsible for maintaining and repairing it) is usually preferable. Making those matters clear, assists in avoiding disputes down the track.

[1] Strata Schemes Development Act 2015 (NSW) s 4.

[2] Strata Schemes Development Act 2015 (NSW) s 6

[3] Stocker v The Owners – Strata Plan No. 6622 [2022] NSWCATCD 31.

[4] Huang v The Owners – Strata Plan No. 7632 [2022] NSWSC 194.

[5] Strata Schemes Management Act 2015 (NSW) s 106(1).

[6] Strata Schemes Management Act 2015 (NSW) ss 108(1), 111.

[7] Strata Schemes Management Act 2015 ss 109, 110 and 111.

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What is a weapons prohibition order?

Thu, 02 Jun 2022 08:55:58 GMT

A Weapons Prohibition Order (WPO) is an order made by the Commission of Police pursuant to Section 33 of the Weapons Prohibition Act 1998 ("The Act”).

When an order is served it means that the person who is subject to the order will be prohibited from being able to have possession of, or from using any prohibited weapon.

A person who is subject to an order must not possess or use a prohibited weapon with a maximum penalty of 10 years imprisonment. In addition, the person must not sell or give possession of a prohibited weapon to another person knowing that the other person is prohibited from possessing prohibited weapons under a WPO.

The Commissioner may delegate to a relevant person any of the Commissioner’s functions under this Act. A relevant person being a police officer or any other member of the New South Wales Police Force, a public servant, or any other person prescribed by the regulations.

There appears to be no requirements as to what can substantiate a police officer giving an order nor any requirement of a connected offence. In essence, it appears any level police officer can issue a Weapons Prohibition Order for no reason at all.

A prohibited weapon is defined as any weapon under Schedule 1 of the Act and includes, but is not limited to, items such as:

flick knife
ballistic knife
sheath knife
trench knife
bombs, grenades, rockets
missiles or mines or similar device (including tear-gas canisters), any device intended for military or defence force use that is designed to propel a weapon, a flame thrower
spear guns of less than 45 centimetres
crossbow
slingshots
hunting slings
blow-guns and blow-pipes
whips with metal lashes
tasers
knuckle-dusters
imitation weapons (excluding those produced as children’s toys) and handcuffs

However, of concern, unlike Firearms Prohibition Orders, which can be reviewed on a merits basis by NCAT, the Tribunal’s jurisdiction under the Weapons Prohibition Act 1998 is set out in Section 35 which provides:

35 Administrative review by Civil and Administrative Tribunal of certain decisions

A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions –
a refusal or failure by the Commissioner to issue a permit to the person;
a condition imposed by the Commissioner on a permit issued to a person; or
the revocation or suspension of a permit issued to a person.

Therefore, a Weapons Prohibition Order under Section 35 of the Act is not included in the list of decisions able to be reviewed.

This position is further clarified in the Tribunal’s jurisdictional decision in relation to an application for the making of a WPO in the matter of Tukel v Commissioner of Police NSPF [2021] NSWCATAD 63.

In summary, as the Tribunal does not have any jurisdiction to deal with applications involving the revocation of a WPO, or any respected stay applications **and** there is no grounds to appeal a WPO despite it lacking all and any merit.

The making of a WPO is an administrative decision, and given that any challenge is a review of an administrative power, for which NCAT has jurisdiction, there is ultimately no forum on which to appeal any decision issuing a WPO.

It is our opinion that this position is extremely draconian, and despite the apparent need for such orders, the lack of any right to review is of significant concern.

Generally, WPOs are issued alongside FPOs, and the Firearm Prohibition Order can be appealed on merits basis.

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5 key times when you should update your Will

Thu, 02 Jun 2022 08:55:15 GMT

The estate planning process is a task that takes careful thought and review to put important documents in place that reflect a person’s wishes and circumstances at the time of making the documents.

Of course, circumstances change, and whilst it may not be practicable to review your Will every three or five years, significant life events should be seen as an opportune time to update your Will as the events may affect your wishes or impact on how your Will operates.

This article outlines 5 key events that should trigger you to review and update your Will.

(1) Marriage

If you marry after your Will was made, the Will becomes invalid. This means that if you get married and fail to update your Will, you will die intestate and your estate will, instead, be distributed in accordance with the rules of intestacy which is a predetermined formula that sets out who your beneficiaries are.

It is possible to include an express clause in your Will that states the Will is made in contemplation of marriage to your spouse and this will avoid any possible revocation of the Will.

(2) Divorce and separation

The impact a divorce has on your Will is that any gift/inheritance to the former spouse and/or appointment of the former spouse as an executor is revoked unless there is a contrary intention expressly included in the Will.

Unlike divorce, separation from your spouse or partner does not have the same effect and your Will would remain the same. If you fail to update your Will upon separation from your spouse or partner and you die, then they may still benefit from your estate or be entitled to act as your executor, regardless of whether you wanted this to occur.

(3) Death

It is important to review and update your Will after the death of any family member or person who may be included in your Will. For example, your executor may have died before you so you should ensure there remains a valid executor for your Will to avoid any issues that may arise with your estate administration.

Similarly, a beneficiary may have died, and your Will may include a specific gift to that person which would now fail. The Will may also provide for the deceased beneficiary’s share to pass to their children or another family member, which may not be as intended so it is important to ensure that your beneficiaries remain the people chosen by you.

(4) Children

A birth of a child is an exciting and no doubt busy time in a person’s life, but it is also an appropriate time to review your Will or at the very least make one for the first time as there are implications for your Will when a child is born.

There are legal measures you can put in place that appoints someone to be the legal guardian of your child if you die and you can include provisions that allows your child to receive their inheritance at a certain age.

(5) Change in the value and nature assets

A change can occur to the nature and value of your assets which necessitates a review of your Will. The value of assets fluctuates over time and you should review your Will when your personal assets may no longer meet the intentions in your Will. There may be specific assets gifted to someone under your Will and if those assets do not exist at the time of your death, then the beneficiary may end up with nothing.

How you own assets is also important. There are rules that prevent you from gifting assets that are held jointly with another person. The rule of survivorship provides that any joint assets pass to the surviving joint owner on death.

The way forward?

An outdated Will is not a good Will and making a new Will does not need to be a difficult or onerous task. Our experienced estate planning lawyers can assist you with this process to ensure your affairs are in order. Contact our office today to speak to our estate planning team on (02) 4221 9311.

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I’m not happy with my lawyer: can I change?

Thu, 02 Jun 2022 08:54:06 GMT

Nothing is more important than having a lawyer you can trust. A lawyer you can rely upon to look out for you and your interests. Someone who will listen and be open and honest with you.

Unfortunately, this is not always the case. Often it will be entirely unintentional, and lawyers can sometimes become too busy for their own good. However, that is not an excuse, and you are not stuck.

If you are in this situation, you should first contact your lawyer and attempt to resolve any misunderstandings. Perhaps there is a reason for delays in your case, and maybe your lawyer is genuinely working hard to overcome those delays. Possibly there has been confusion as to the agreed plan to advance your case. Regardless of the situation, a simple telephone discussion may resolve those issues.

If the issues cannot be resolved, then you have the right to change your lawyer (or law firm) if you desire.

Let’s assume you have taken those steps and you have decided to move to another firm. The process for transferring your file will be:

1. Do some research and decide which firm or lawyer you want to use. Clearly the first firm or lawyer was not a “good fit”, and it is important that your new lawyer will better serve your needs.

2. Your new lawyer will ask that you sign an authority enabling them to transfer your file.

3. That signed authority will be sent to the old lawyer. At this stage, the old lawyer will NOT be allowed to contact you (this is a breach of the law). All dealings will be between the old and new lawyers.

4. The old lawyer may ask that their costs or disbursements be paid before the file is sent to your new lawyer. This is called a “lien” and the old solicitor may have rights to keep your file until those conditions are met. However, the file cannot be unreasonably withheld.

5. Once those issues are overcome (which can usually occur quickly), the file will be sent to your new lawyer.

6. Your case is now ready to continue. You have hit a few bumps along the way, but hopefully you are now heading in the right direction under the guidance of your new lawyer.

That process will generally apply to most claims. There are a few exceptions.

For example, in workers compensation claims the lawyer’s costs and disbursements are likely to be subject to an ILARS grant of funding from the Independent Review Office. In this instance, the issue of a solicitor exercising a “lien” is less relevant because the new lawyer will not be responsible for paying the costs. Instead, an agreement will be reached as to how the ILARS grant of funding will be divided between the old and new lawyers, and the transfer is likely to occur relatively quickly.

In most other compensation cases, lawyers who have agreed to act on a “no win, no fee” basis will only have the right to repayment of their fees if the case eventually succeeds. Due to that “no win, no fee” agreement, usually a contract (called a deed) will be signed to confirm that if your case succeeds, then your old lawyer will be paid for the work that they have done to date. This will all depend upon the Service Agreement (also called a Cost Agreement or Disclosure) which you signed when your case started.

If you have any questions about this process, Kells can help. We pride ourselves on our commitment to our clients and we can provide you with the guidance you need.

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Dementia and breakdown of a de facto relationship

Tue, 31 May 2022 08:56:30 GMT

A recent High Court decision decided on 11 May 2022 required the High Court of Australia to consider when a de facto relationship had broken down in circumstances where one of the parties had been diagnosed with dementia and was required to be placed into an aged care facility.

It was clear the parties had commenced living together in a de facto relationship sometime in 2005/2006. They had agreed to keep their assets separate and in 2010, they had entered into a Domestic Relationship Agreement (Cohabitation Agreement) which recorded their agreement to keep their respective assets separate and quarantine them from any future claims should their relationship breakdown.

The parties lived in a home owned by the female partner who in 2015 started to suffer cognitive decline and her mental state deteriorated rapidly throughout 2016. By 2017 the parties occupied separate bedrooms.

Whilst the male partner was holidaying overseas on his own in 2017, the female partner executed a Power of Attorney in favour of her adult children. The adult children subsequently acting on that Power of Attorney had stopped her access to bank accounts.

The New South Wales Trustee and Guardian was appointed as a financial manager for the female partner in January 2018. The Trustee was of the view that the home that was owned by the female partner, and in which the male partner was still living, ought to be sold in order to fund the accommodation costs of the aged care facility for the female partner.

The male partner wanted to continue to live in the home and suggested that the accommodation costs for the female partner be funded out of her own superannuation. It was clear that the male partner was no longer abiding by the agreement that the parties would keep their assets strictly separate.

It was the male partner’s position that the relationship had not in fact broken down and that the female partner would have wanted him to continue living in her home. It was clear that the female partner’s dementia meant that her wishes and views about whether the de facto relationship was ongoing or had broken down could not be ascertained.

It was argued on behalf of the female partner that given the parties were living in separate residences that their relationship had in fact broken down as they were no longer physically living together. The High Court did not accept that argument. And found that there could be many reasons why people live in separate houses, the issue was whether they still continued to share a joint household and had a mutual commitment to a shared life together. Separation by reasons of illness did not satisfy the High Court as evidence of the relationship having broken down. Furthermore, occupying separate bedrooms was not of itself an indication that the parties were separated, and the relationship had broken down.

The High Court found that in all the circumstances of the changes in their lives, that the male partner had not made the necessary desirable adjustments to the financial arrangements in order to care for the female partner. The High Court found that ‘living together’ consistent with previous cases should be construed as meaning a shared life together as a couple. The High Court found that it was not the female partner’s moving to a permanent aged care facility nor her decline in her mental capacity that resulted in the relationship breaking down.

The evidence of the breakdown of the relationship was the circumstances which showed a persistent refusal on the part of the male partner to provide for her necessary and desirable adjustments in the changes in circumstances. When the male partner began to act in a way that was contrary to keeping the assets separate and preferring financial arrangements that suited his own interests, that was the point when the High Court found the relationship had broken down.

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What is a death certificate and why do I need one?

Thu, 26 May 2022 08:56:55 GMT

After a person passes away, the executor or a family member will be asked to provide details for that person which together with the medical cause of death certificate from the medical practitioner who pronounced the death will become the Death Certificate.

The details on the Death Certificate include marital status, occupation, family details, burial or cremation details and the cause of death.

Usually, the funeral director will complete the form from the details provided to them and arrange for the registration of the death. The Death Certificate will then be forwarded to you in 2 to 3 weeks after the funeral.

The Death Certificate can be used to administer a person’s estate, initially to notify government agencies, banks, superannuation accounts, share registries and any other associations that need to be dealt with when a person dies. These entities may require further documents such as a grant of Probate to finalise administration of an estate but they do take note of the details on the Death Certificate.

If a person dies intestate, without a Will, then the details on the Death Certificate set out who is entitled to be the administrator of that person’s estate and to whom the estate will pass.

Death Certificates are also important for historical reasons as this document will be held on record by the office of Births Deaths and Marriages. Particularly these days as many people are interested in researching their family ancestry. If the Death Certificate is incomplete or incorrect it may prevent a future historian from discovering you are related to the Queen.

Should you be the person to whom it falls to provide the details for the Death Certificate, it is important that you complete the details with as much detail as possible. This document the last record for the deceased and as they unfortunately cannot provide the details themselves, look at it as a privilege to do it for them.

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Important commercial lease clause: option terms

Thu, 19 May 2022 08:57:51 GMT

An option to renew, also known as an ‘option’, is a clause within a commercial lease which allows the tenant a further fixed term or terms after the expiry of the existing lease.

The major benefit of including one, or multiple, option terms in a commercial lease, for both landlords and tenants, is the certainty and security that it provides.

This is because so long as the option is validly exercised in accordance with the terms of the lease, a further lease will be granted for the time period stated in the lease.

The option lease will be on the same terms as the existing lease, except for the following which will be amended in accordance with the clauses of the existing lease:

amount of rent payable – this will be determined in accordance with the conditions set out in the existing lease, often calculated by reference to market rent;
commencing and terminating dates – the new option lease will commence one day after the existing lease; and
removal of any clause which the existing lease provides is for the first term only – the most common example of this is a rent-free period, which generally applies to the start of the existing lease only.

Therefore, an option lease is not an opportunity for either party to renegotiate and amend the terms of the lease. This could be considered either a positive or negative for the parties, depending on the individual circumstances.

Exercising the option

Each lease will have specified requirements for how the option must be exercised.

The tenant will be required to serve notice on the landlord advising that they will be exercising their option to renew within a specified time period, generally between 3 and 6 months before the end of the existing lease. There is a further requirement that when the tenant exercises the option, there must be no outstanding rent or outgoings that are overdue for payment.

Tenants should ensure that they review the option clauses in their lease at the commencement of the lease, and diarise the dates, to ensure that they don’t miss out on receiving the benefit of the option term.

Across all of our offices throughout the Illawarra, Kells are experienced in acting for both landlords and tenants on leases. If you have any questions or would like discuss the option terms, or anything else in relation to leases, please do not hesitate to contact one of our offices.

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Probate v Letters of Administration

Thu, 19 May 2022 08:57:23 GMT

The passing of a loved one is a very emotional time. However, the complexity and time involved in dealing with their estate can depend largely on whether there is a Will in place.

In the state of New South Wales, if someone dies with a Will, the executor or executors of the estate will be required to bring an application for a grant of probate of the Will with the Supreme Court of NSW.

A grant of probate is a document that is proof that a Will is legally valid and that the executor appointed under the Will has the legal right to administer the estate.

However, if there is no Will in place, then the estate will be distributed to beneficiaries according to a predetermined formula under the rules of intestacy set out in the Succession Act (NSW) 2006. It is these beneficiaries that would then have the right to bring an application for letters of administration with the Supreme Court of NSW.

This is a much more complex and costly process then applying for a grant of probate and can cause additional stress and delay for those left behind.

Some of the additional steps required in applying for letters of administration are as follows:

Thorough searches for a Will need to be made. This can include searches with solicitors, NSW Trustee and Guardian, financial institutions and through the personal belongings. This evidence will need to be provided to the Court.
You need to prove who is entitled to the estate an therefore entitled to apply for administration. This may involve applying for the following certificates:
Marriage certificates for all marriages (if the deceased was married or married and divorced).
Copies of the decree absolute (if the deceased was divorced).
Birth certificate and death certificate for the deceased.
Death certificates for the parents of the deceased (if the deceased did not have children or a spouse).
Birth certificates for the children of the deceased.
You may also need to provide the following additional forms:
Consents signed by any beneficiaries who are entitled but not applying.
Consents signed by the guardians of any minor beneficiaries who are entitled.
The administrator may also need to provide an administration bond to the Court depending on the circumstances of the case.
Affidavits in relation to the existence of any de facto relationship (or if the deceased was not in a de fact relationship, evidence to show this).

The above searches and enquiries can become quite difficult if the deceased lived across different states during their lifetime as you will need to deal with different jurisdictions. It can also become difficult if the deceased had limited contact with their family.

The complexity of the application for letters of administration can vary from person to person and the estate may not necessarily pass to those you would have liked the estate to pass to.

To avoid unnecessary costs, stress and delay for your loved ones, it is important to have a Will in place that clearly appoints your executors and beneficiaries.

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Kells grows its family law practice with the appointment of a new lawyer

Fri, 06 May 2022 08:58:46 GMT

Sydney and Illawarra region law firm Kells has boosted its family practice with the appointment of lawyer Sam Beasley.

Sam’s appointment will build on the firm’s strong Illawarra and Sydney family and children law capabilities and provide further opportunities to assist clients across the Shoalhaven and the Southern Highlands.

Prior to joining the firm, Sam was based at a Sydney CBD law firm where he specialised exclusively in family law providing representation and advice to people and families in conflict following the breakdown of relationships.

Commenting on Sam’s appointment, Peter Chodat, Partner and lead of the Kells Sydney and Illawarra family law practice, said:

I am pleased to welcome Sam to our family law team. Sam’s mix of expertise across a whole range of family law issues bolsters our service offering to clients and will complement our existing family team perfectly.

“As a firm we invest in our people and our focus has always been on finding the right people who share our values and who demonstrate excellence in client service, personal skills, teamwork and initiative. Sam reflects all these qualities.”

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Two Kells Partners recognised in The Best Lawyers Australia List 2023

Fri, 06 May 2022 08:58:17 GMT

It’s with great honour we announce Kells’ Partners Peter Chodat and David Potts have been named among Australia’s finest lawyers in the 15th Edition of The Best Lawyers in Australia , announced on 21 April in the Australian Financial Review.

For the fourth consecutive year Peter has been named in the annual Best Lawyers List for the area of family law and David was named as a Best Lawyer in personal injury litigation.

Best Lawyers is the oldest and most respected peer-review publication in the legal profession. A listing in Best Lawyers is widely regarded by both clients and legal professionals as a significant honour and signals legal expertise, ethics and professionalism of the highest calibre.

Kells’ Managing Partner Paul Magagnino said it is wonderful to see Peter and David being recognised by their peers as a leader in their field of expertise.

“We are extremely proud of Peter and David’s achievements. Their recognition demonstrates the dedication and talent of their application and commitment to not only their clients but their fellow peers as well,” said Mr Magagnino.

David is the head of our compensation and employment teams and is an Accredited Specialist in Personal Injury, Employment Law and Industrial Relations.

Peter leads our family law practice from our Wollongong office and also an Accredited Specialist in Family Law.

Kells is a team of passionate, energetic and client focused legal professionals with over 65 staff based across 6 offices in Sydney and the Illawarra Region. Kells has 6 partners who each lead a practice group in their core area of law ensuring that we deliver the level of legal expertise and service that our clients deserve.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Kells recovers $1.75 million for a client exposed to asbestos

Thu, 28 Apr 2022 08:59:34 GMT

One of the saddest aspects of contemporary life is that some people who have been exposed to asbestos develop substantial adverse health consequences.

The most severe consequence is mesothelioma . Mesothelioma can only be caused by exposure to asbestos and is generally fatal.

Kells has acted for several people who have been exposed to asbestos. There are normally difficulties with an asbestos case. Some of the challenges are establishing when exposure occurred and who is responsible for that. Another concern is the appropriate damages that people can recover.

Exposure

Proving exposure can be difficult. Often someone was exposed to asbestos in the course of their employment or doing renovations. Taking a detailed and comprehensive history is crucial. The period that people were exposed to asbestos can be very important. For instance, there were several manufacturers of asbestos products in Australia. During some periods there has been only one manufacturer of asbestos. When dealing with new products establishing the precise period of exposure can be vital.

Kells recently acted in a case where we could establish exposure with precision. During this period, the only manufacturer of asbestos was James Hardie. We could prove that new asbestos products were used and in those circumstances, liability could be established.

Damages

In some cases, damages are relatively straightforward. In a more recent case, we acted for a gentleman who was aged in his mid-70’s but was still very active in work and had several young children. His business affairs were complicated. We used a forensic accountant to establish his loss with precision.

The result

Ultimately, the matter was settled at mediation for a total payment of $1,750,000.

If you need assistance in any dust diseases case, please reach out and contact our highly experienced and caring compensation lawyers.

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April Fools isn’t a joke!

Thu, 21 Apr 2022 09:00:19 GMT

From 1 April 2022, new legislation provides for the visibility of superannuation between parties subject to property settlement proceedings in the Federal Circuit and Family Court of Australia.

Quite often superannuation may represent a large proportion of the asset pool between two parties in dispute. In circumstances where one party may fail to comply with their obligations as to full and frank disclosure of their superannuation assets, new legislation now allows for the imminent unveiling of such information.

The well-known ‘Invisibility Cloak’ worn by Harry Potter, and often relied upon by one party, can now be quite literally pulled out from underneath the rug.

Of course, there are existing processes in place for parties to gain access to one another’s superannuation assets, however this new and evolved method will aid visibility where a party is not willingly disclosing their superannuation interests.

How might this affect you?

The new visibility laws not only allow for the full disclosure of parties’ assets, but further provide access to such information in a more timely and cost effect manner. It is now proposed by the Federal Circuit and Family Court of Australia that once a request has been lodged, a response should be available within seven days!

Additionally, the administrative process of acquiring such information (performed on the courts online portal system) also provides judicial officers with access to the information, resulting in more just and equitable outcomes.

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5 tips to help first home buyers enter the property market

Tue, 19 Apr 2022 09:00:48 GMT

The process of buying your first home can be overwhelming. With that in mind, we have prepared 5 helpful tips to help you navigate the process.

1. Are you eligible to receive any financial assistance?

It is worth investigating whether you are eligible for Government grants or stamp exemptions/concessions that are available for first home buyers.

As a first home buyer, you may be eligible for a concession or exemption from stamp duty, depending on the property value which can provide great savings to the amount needing to be contributed by you.

In New South Wales depending on your circumstances and eligibility, the First Home Owners Grant could give you up to $10,000.00 as a one-off payment towards your first home provided that your home is brand new and under $600,000.

2. Start saving a deposit

The bigger your deposit is to purchase property, the better your chances are of securing a home loan and the less interest you will have to pay.

There are also extra costs associated with buying a property, that can increase the size of the deposit you will need, for instance conveyancing fees, bank fees and mortgage insurance.

3. Arrange pre-approval on your loan

Pre-approval is an indication from a bank of how much they would be willing to lend you, so that you can purchase a property within your means. Part of the process of arranging your pre-approval involves submitting details of your financial position so that the bank determines how much you are eligible to borrow.

Pre-approval is not however a guarantee of formal approval but it does simplify the process once you find a property to purchase.

4. Understand the ongoing costs

There are several ongoing costs when you purchase a property, including the following:-

Loan repayments – These generally occur monthly or fortnightly over a projected loan term.
Interest charges – You have to pay interest on top of the principal loan borrowed, either at a fixed or variable rate.
Other ongoing expenses – Such as council rates, utility costs, building and contents insurance, strata fees and home improvements.

5. Get Advice

The homebuying process is complex. There are professionals who can help you with every step of the home buying process, such as real estate agents, mortgage brokers and solicitors. By seeking advice from professionals you can rest assured that your buying process will go ahead smoothly and lead to a positive result.

At Kells our friendly and experienced conveyancing team are here to help you purchase your first property, so reach out and get in touch today.

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How is my child support calculated?

Tue, 12 Apr 2022 09:01:20 GMT

The payment of child support is an issue faced by many parents after they have separated. How much child support you may have to pay to the other parent is dependent on a range of different factors, and for this reason it is different for every family.

The factors that are considered in the calculation of the payment include:

1. assessment of each parent’s income

2. assessment of each parent’s expenses

3. assessment of the level of care each parent provides for each child of the relationship

4. whether either parent has other dependents (that do not form part of the assessment).

The level of care each parent has is calculated as a “care percentage” and based on the number of nights a child spends with each parent. This is then used to calculate how much such care costs in dollar terms.

The Department of Human Services Child Support website provides an online calculator to assist you in determining an estimate of the child support you may be liable to pay to another parent.

Some parents are able to come to an agreement in relation to the child support they will pay to, or receive from the other parent. This is known as a private agreement.

Some parents also choose to have a solicitor prepare a Binding Child Support Agreement (BCSA). BCSA’s can be prepared to either set an ongoing periodic payment (that doesn’t fluctuate with varied income or level of care), or that provides for a periodic payment in line with a Child Support Assessment but with an additional agreement that details how the parents will share in other expenses such as medical expenses or education expenses including for example, private tuition fees.

If you need help with understanding child support, or wish to speak to an expert about a Binding Child Support Agreement that suits your needs, please get in touch with one of our experienced family lawyers.

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COVID-19 commercial leasing laws relaxed

Thu, 31 Mar 2022 09:01:48 GMT

Following amendments to the laws for commercial leasing and in particular Schedule 5 of this law, landlords of commercial premises in New South Wales will, from 14 March 2022, no longer have to renegotiate the rent payable under a lease by a tenant who fits the definition of an “impacted lessee”.

Additionally, rent increases will no longer be forbidden, subject to their legality pursuant to the lease terms.

As reported in earlier articles an ‘impacted lessee’ is a lessee that:

1) qualifies for 1 or more of the following, or would qualify but for a COVID-19 Disaster Payment made to the lessee by the Commonwealth:

if the lessee is a franchisee – the turnover of the business conducted at the land or the premises;
if the lessee is a corporation that is a member of a group – the turnover of the group;
in any other case, the turnover of the business conducted by the lessee.

2) whose turnover in the 2020-21 financial year was less than $5 million in the following circumstances–

the 2021 COVID-19 Micro-business Grant;
the 2021 COVID-19 Business Grant,
the 2021 JobSaver Payment,
the 2022 Small Business Support Program, and

From 14 March 2022 compulsory mediation is the sole requirement for commercial landlords to follow under legislation enacted as a result of the COVID-19 pandemic. The requirement to renegotiate rent, as well as other requirements incumbent on commercial landlords, no longer apply.

Another notable change is that, from 14 March 2022, the legislation only covers tenants with a turnover of less than $5 million. Prior to 14 March 2022, the legislation covered any tenant with a turnover of less than $50 million during the 2020–21 financial year.

Do you need advice on your commercial lease? Reach out and get in touch with our experienced and friendly commercial leasing lawyers .

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I have been injured in a motor vehicle accident: what do I need to do?

Wed, 30 Mar 2022 09:02:12 GMT

People involved in motor vehicle accidents can suffer from both physical or psychological injuries, and often a combination of both. These injuries impact not only the person involved in the accident, but also their family and friends. Sadly, the number of car accidents on our roads continues to grow each year.

If you or anyone you know has been injured in a motor vehicle accident, you should contact a lawyer immediately for advice. This is because there are very strict timeframes in a motor vehicle accident claim.

Who is eligible to lodge a claim for compensation?

Under the current compensation scheme for car accidents, a person can claim benefits regardless of whether they were responsible for causing the accident. Those who are “at fault” have less benefits available to them, when compared to those who were not at fault.

Those who are entitled to compensation as a result of injuries sustained from a motor vehicle accident include not only a driver, but also a passenger, rider or pedestrian.

Further, family members who have lost a loved one in a fatal motor vehicle accident may be entitled to claim compensation.

The first step is to contact lawyers. At Kells, we have a team of very experienced personal injury solicitors who can readily assist on a ‘No Win, No Fee’ basis.

The following steps are a brief outline of the process involved in lodging your motor vehicle accident claim:

(1) Report to Police

You must report the accident to the Police within 28 days of the date of the accident. You will then be given an event number which will enable us to request a Police report relating to the accident.

(2) Relevant Forms

An Accident Notification Form may be lodged with the compulsory third party (CTP) within 28 days of the date of an accident. You may be entitled to up to $5,000 in expenses.

An Application for Personal Injury Benefits form (also called a “claim form”) should be lodged within 28 days from the date of an accident, as this will enable “back pay” for lost wages caused by the accident. If you do not meet that 28-day time limit, then you may still lodge the claim within 3 months of the date of the injury; however, there will be no back payments for loss of earnings. All claims must be lodged within the initial 3 months.

The team at Kells can assist you with completing and lodging these documents.

(3) Certificate of Fitness

You will also need to visit your treating medical practitioner and request that they complete a NSW Certificate of Fitness. This document will be sent to the CTP insurer with the claim form.

(4) Other strict time limits

Court proceedings must be commenced within 3 years from the date of an accident. This timeframe can be extended in certain circumstances, but it is difficult to do so.

If you or anyone you know has been involved in a motor vehicle accident, you should contact the team at Kells as soon as possible for comprehensive and accurate legal advice.

Photo 5948928 / Car Accident Injured © Monkey Business Images | Dreamstime.com

Custom designed homes: a few things to consider

Tue, 15 Mar 2022 09:02:53 GMT

With multiple land developments offered around the Illawarra there are many clients taking the leap and buying land to build their dream home.

There are numerous builders offering a selection of custom design homes. Clients will often select a custom design home and the builder will offer flexibility within the design to enable you to ‘tweak’ the home to your liking. This option sounds great, but you need to be mindful that changes to the internal layout or adding on additional space requires variation to the standard form plans.

If Council approval to the ‘stock standard’ home has already been obtained, changes to these plans (including council fees) will be an additional cost to you. Delays with commencement of your build due to these variations will also come at a cost to you.

As exciting as it is to design your own home, the downside is the delay with construction commencement whilst waiting for the amended design plans. We have unfortunately seen a number of clients over the years receive variation invoices from their builder, charging more for products due to a price increase because of the delayed order, and for time due to such delays.

You need to keep in mind that a builder will quote to construct your home for an agreed cost provided the build is carried out within the agreed time frame. Seeking changes, upgrading say, bathroom cabinetry to non-standard fixtures that are on back order for months, will delay the builder’s contract period and, in turn cost you more money.

When building your dream home, you should be mind of the timing provisions of your building contract and be realistic with variations as it may impact your hip pocket.

Photo 200354752 / Custom Designed Home © Mark Hryciw | Dreamstime.com

What to do when a person dies

Thu, 10 Mar 2022 09:05:20 GMT

Losing a family member or friend is a very difficult time and having the added responsibility of managing what needs to be done at this time in relation to their affairs can be stressful.

The first thing to arrange will usually be the funeral service. You will be aware of that person’s wishes in relation to their burial or cremation and can attend to those with the assistance of a funeral director. The funeral director will also arrange for the registration of the death and for the Death Certificate to be forwarded to you, usually in 2 to 3 weeks after the funeral.

Please rest assured that whilst there are things to be done and organisations to be notified, it is important to take the time to grieve.

Some of the things you may need to attend to include:

advising Centrelink and Medicare or any other entity paying a pension to the deceased such as the Department of Veteran’s Affairs or overseas pension authority
cancelling any private health insurance
cancelling any memberships including club memberships and subscriptions
redirection of mail
notify the Australian Taxation Office
notify the Australian Electoral Commission
maintaining insurances on real property and motor vehicles
utilities such as electricity, gas and telephone providers can be notified but in most instances ownership cannot be transferred until the estate administration occurs.
An application for Probate may be required if that person had a Will and held assets including bank accounts, shareholdings, accommodation bonds, superannuation accounts and life insurance over a certain value or any real estate.

The grant of probate or letters of administration is the formal process through which the NSW Supreme Court confirms your appointment as executor or legal personal representative of the estate.

If you need advice and are unsure what to do, please reach out and speak to our caring and experienced probate team.

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Commercial lease security deposits – bank guarantees v cash

Thu, 10 Mar 2022 09:04:00 GMT

It is a standard requirement that if you enter into a commercial lease, you are obliged to provide to the landlord a security deposit.

The landlord may require the security deposit in the form of a bank guarantee or cash.

A bank guarantee is a guarantee issued by your financial institution to your landlord guaranteeing the landlord that the bank will pay the cash to the landlord in the event that the landlord makes a valid claim against the guarantee. The bank will hold your cash in a secured account until the earlier of:

the date that the bank guarantee expires (if the bank guarantee has an expiry date)
the date that the bank guarantee is returned to the bank (after the landlord has returned it to you following termination of your lease)
the date that the landlord makes a claim against the bank guarantee. In this instance, the cash will be paid to the landlord.

Your bank will charge a fee for issuing the bank guarantee. It will also take some time for the bank to prepare the bank guarantee which can delay lease commencement.

If you pay a cash security deposit, unless you are entering into a retail lease, the cash will be held either by the landlord or the landlord’s managing agent until the lease is terminated or the landlord needs to call upon the cash to fulfil an obligation that you have failed to fulfill under the contract.

Providing a cash security deposit avoids the hassles of paying the fee to the bank and waiting for the bank to set up and issue the bank guarantee. However, you are putting your cash in the hands of the landlord or the landlord’s managing agent who will manage your money. In the event that the landlord is holding the cash and misuses the cash, you may have to commence proceedings against the landlord to recover your money. You may not be successful in doing so if the landlord doesn’t have sufficient funds to refund your cash.

Whilst a bank guarantee may be more of a hassle, it offers security in that your money will be held by the bank until the landlord makes a claim. If the landlord makes a claim, you will likely be notified by your bank and if you feel that the claim is not valid, you could contact your legal representative to try to put a stop to the claim before the claim is processed by your bank.

Should you have any questions about bank guarantees or cash security deposits, please contact Kells.

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What evidence is considered to determine whether a de facto relationship exists?

Thu, 03 Mar 2022 09:06:03 GMT

It is often said that ‘perception is reality’ that also can apply to how two (2) people view their relationship as being a casual relationship, such as boyfriend/girlfriend, or a more committed relationship such as a de facto relationship.

Whether a relationship is characterised as a de facto relationship can lead to a person having entitlements to bring a claim against another party’s property, or income for spousal maintenance purposes.

People can have very different views not only about whether they are in a de facto relationship but the length of the relationship, as well.

In a recent case, the Family Court had to determine whether the parties had been living together in a de facto relationship for a period of seven (7) years as claimed by one party or if it was only for three (3) months, as claimed by the other party.

The Court had to consider not only the views each party held about the nature of their relationship but also consider the evidence given by various witnesses that had been called about the public aspect and reputation of their relationship.

In this particular case, one of the parties worked as a fly in fly out (FIFO) worker and was away for periods of 28 days at a time, working interstate, and only back in the home for seven (7) days living in the property with the other party.

However, the Court looked to the evidence of how the parties conducted their relationship while they lived in separate geographical locations. The evidence involved numerous messages that had been exchanged between the parties which were related to normal issues arising from the day-to-day life and sharing of joint domestic duties as a couple. The messages also held expressions of love. Both parties admitted to having a sexual relationship.

The Court also referred to documents that had been completed by the parties and declarations that had been set out in documents that had been provided to public authorities such as Centrelink, the Australian Taxation Office and even messages that had been posted to Facebook.

The Court also had to consider the use of the word ‘partner’ as opposed to the use of the words ‘ boyfriend/girlfriend’.

In regards to looking at the issue as to whether the parties had a degree of financial interdependence on each other, the Court looked at not only the sharing of household expenses but the provision and use of credit cards and providing money to assist each other in payment of expenses associated with their life together.

The parties lived on a rural property and cared for farm animals, particularly by one party when at times the other party was working away, was also considered.

Even though in this case both parties admitted to engaging in infidelity, ultimately, the Judge found that they had persevered in their relationship, which demonstrated a mutual commitment to a shared life.

After looking at all of the evidence, the Court found the parties did in fact live together in a de facto relationship for a period of four (4) years and six (6) months.

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Do you need probate to transfer a property when the owner passes away?

Thu, 03 Mar 2022 09:05:41 GMT

If someone passes away and owns a property in NSW, the executor or administrator or surviving owner will need to determine the owners of the property and ownership structure in order determine the process that needs to take place to transfer the property.

Sole registered owner

If the deceased owns the property in their sole name, then a grant of probate (if there is a Will in place) or a grant of letters of administration (where there is no valid Will) will need to be obtained from the Supreme Court of NSW in order to transfer (or sell) the property.

If the property is sold prior to the grant being issued by the Supreme Court of NSW, it is important that the contract for sale includes a special condition that makes the sale subject to the grant being obtained.

Property owned as tenants in common

If the deceased owns a share in the property as tenants in common with one or more persons, then a grant of probate (if there is a Will in place) or a grant of letters of administration (where there is no valid Will) will also need to be obtained in order to transfer (or sell) the deceased’s share of the property.

The beneficiaries of the estate will then become co-owners of the property (unless all owners can agree to either sell the entire property or purchase the deceased’s share).

Joint tenants

If the deceased owns a share of the property as joint tenants with one or more persons, then no grant of probate or grant of letters of administration is required.

According to the doctrine of survivorship, the surviving joint tenants become the owners of the property. However, in order to complete this process, you are required to lodge a notice of death with NSW Land and Registry Services.

This process only requires the death certificate of the deceased. No Will is required, as property owned as joint tenants is a non-Will asset.

This is the most common ownership structure for married and de facto couples.

How can you check the ownership structure?

A title search of the property owned by the deceased will show details of all owners and the ownership structure (i.e. whether owned as joint tenants or tenants in common).

This will then confirm which process will need to take place in order to either sell or transfer the property.

Lesson to be learned

It is important to have a Will in place as it will clearly set out who is appointed as executor and who is entitled to the estate. This will make the process of administering the estate a much smoother and shorter process.

However, it is also important to check how you own real property in order to ensure your property will pass to your intended beneficiaries.

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The new execution regime for companies and directors

Tue, 01 Mar 2022 09:06:36 GMT

In welcome news for companies and directors, new legislation will come into effect from 1 April 2022 to permanently implement, and extend upon, the temporary relief provided as part of the COVID-19 measures.

As we have previously reported current measures which will expire at the end of March 2022, temporarily provide greater flexibility to companies and registered schemes, including the ability for directors to execute documents electronically.

The Corporations Amendment (Meetings and Documents) Bill 2021, which received assent on 10 February, will come into effect on the expiry of the current measures. This builds on the existing temporary relief by providing permanent measures which allows companies, registered schemes and directors to utilise technology and operate with greater ease.

The amendments to the Corporations Act under this legislation will, among other measures, allow companies, registered schemes and directors:

to execute documents, including deeds, electronically, with directors able to execute separate counterparts
to appoint an individual to act as an agent with the company’s express or implied authority on behalf of the company to sign documents including deeds, without needing the appointment to be by deed
the ability for members to elect to obtain documents relating to meetings, including notices of meetings, electronically
to hold director or member meetings virtually, such as through zoom or Microsoft teams, or as a hybrid meeting, regardless of the requirements under their constitution.

As businesses continue to learn to operate in our changing landscape as a result of the COVID-19 pandemic, the ability to permanently utilise the current measures, which facilitate flexibility and allow them to operate with greater ease, is a positive step forward.

Photo 109179483 © Pop Nukoonrat | Dreamstime.com

High court decision – clarity for employee v contractor determination

Fri, 11 Feb 2022 09:07:02 GMT

In a much-awaited judgment handed down on Wednesday, the High Court of Australia has allowed an appeal and overturned a decision from the Full Federal Court of Australia, ruling in favour of employers in determining that two truck drivers were independent contractors, as opposed to employees.

The High Court has upheld the primacy of, and illustrated a shift towards an emphasis on, a written agreement to establish the legal character of the work relationship. This has highlighted a shift away from the well-established multi-factorial test.

This decision could not have come at a more crucial and controversial time, where the gig economy is in crucial need for new regulation. This ruling will undoubtedly have profound impacts on a magnitude of companies today, such as Uber and Deliveroo, who have grappled with the employee v independent contractor title to date.

The issue of whether a worker is an employee or independent contractor has presented as a complex determination. Previously, the courts have placed emphasis on looking to the ‘totality’ of the relationship to determine the employment relationship, rather than to the written terms of the agreement itself. Mischaracterising an employee as an independent contractor can have numerous consequences that impact the worker’s entitlements and rights.

In this week’s decision, emphasis has been placed on the terms of a written agreement. Mr Jamsek and Mr Whitby worked as truck drivers for ZG Operations for around 40 years. From 1977 to 1985, the truck drivers worked as employees for the company. In 1986, they entered into independent contractor agreements. Under this agreement, the men would purchase their own trucks and invoice the company for their delivery services provided.

In 2017, the agreement between the men and the Company was terminated. Thereafter, the Respondents initiated proceedings in the Federal Court seeking their statutory entitlements owed to them as employees of the company under the Fair Work Act 2009 (Cth).

Mr Jamsek and Mr Whitby were required to be available to ZG Operations for work five days per week, nine hours per day. The men drove trucks with the company logo, and also wore branded clothing. The Full Federal Court found that the two truck drivers were employees.

Despite these circumstances, Chief Justice Kiefel, Justice Keane and Justice Edelman jointly found that, “ The respondents were not employed by the company. They were members of partnerships which carried on the business of providing delivery services to the company. ”

The decision strengthens the ability for employers to defend written agreements to determine an employment relationship. It can be inferred that the courts will adopt the orthodox approach to contract interpretation. The ramifications of this decision on the gig economy will undoubtedly ensue.

Photo 53855803 © Suse Schulz | Dreamstime.com

COVID vaccination injury? You may be eligible for compensation

Tue, 08 Feb 2022 09:07:50 GMT

The Australian Government have now established a scheme designed to compensate people who suffer specific injuries or medical conditions as a direct result of receiving the COVID vaccine.

Who is eligible?

In order to receive any compensation from the scheme, a person must prove:

1. They received a COVID vaccination as approved by the Therapeutic Goods Administration (TGA).

2. They meet the definition of “harm” as set out by the policy (as detailed further below).

3. They were admitted to hospital (exemptions from this category can apply).

4. They have suffered losses of at least $1,000 due to the injury or condition.

What “harm” is required?

If you had the AstraZeneca vaccine, the following clinical conditions are accepted under the scheme:

Anaphylactic reaction
Thrombosis with Thrombocytopenia Syndrome
Capillary leak syndrome
Demyelinating disorders including Guillain Barre Syndrome (GBS)
Thrombocytopenia, including immune Thrombocytopenia.

If you’ve had Pfizer (Biontech Comirnaty) or Moderna vaccines, the following clinical conditions are accepted under the scheme:

Anaphylactic reaction
Myocarditis
Pericarditis.

Furthermore, if you suffered a shoulder injury due to the administration of the vaccine, or any other injury directly related to the vaccine being administered (i.e. injected), then you may meet the relevant criteria.

You cannot claim compensation under this scheme for any other conditions arising from the vaccination, such as headaches, fatigue, nausea, fever, psychological injuries or the like. A full list of those conditions or symptoms not compensable under the scheme is available on the Services Australia website.

What compensation can be claimed?

There are a number of categories of compensation available under the scheme, including:

1. Lost earnings, due to time taken away from work due to those above-listed prescribed illnesses.

2. Out-of-pocket expenses in relation to any treatment required as a result of suffering the relevant illness or condition.

3. Any costs in relation to “carer support” for the assistance needed during the time of injury or illness (“attendant care services”). This can be claimed in relation to services you have paid for (i.e. paid assistance) and also gratuitous assistance rendered by family and friends (i.e. unpaid assistance).

4. Any costs for future needs in performing domestic tasks.

5. Pain and suffering.

Further benefits are available to the family or relevant legal personal representative of a person who dies as a result of the vaccine-related illness or condition.

How to claim

Under the scheme, there are different processes for making claims based upon the amounts being claimed. The claims are essentially placed into two (2) categories:

1. For claims under $20,000 evidence is required from your treating doctor as to your diagnosis and the claim being lodged.

2. For claims exceeding $20,000, a more stringent process exists and “legal experts” working for Services Australia will investigate claims before making a decision as to whether a claim should be accepted and, if so, the level of compensation which should be paid.

If you have suffered an injury due to receiving a COVID vaccination, you should seek legal advice. At Kells, we provide our services on a no win, no fee basis and your first consultation is free.

This article contains information which is designed to be informational only and does not constitute legal advice. Every case is different and in order to identify whether you are eligible to make a claim you should seek tailored advice.

Photo 234884748 / Vaccination Injury © Beritk | Dreamstime.com

This case should be a reminder for all employers that a blanket rule imposed without any discussion may not be lawful

Tue, 07 Dec 2021 09:08:42 GMT

On Friday, 3 December 2021 an extended full bench of the Fair Work Commission handed down a decision in a dispute involving the CFMMEU and Mt Arthur Coal Pty Ltd. The full bench consisted of five members and included President Iain Ross.

It was asked to arbitrate a dispute between the Union and Mt Arthur Coal concerning a requirement that workers who attended the Mt Arthur site had at least a single dose of an approved COVID-19 vaccine by 10 November 2021 and would be fully vaccinated by 31 January 2022.

The decision focused on whether Mt Arthur Coal had complied with its obligations under the Enterprise Agreement to consult with its workers. The full bench concluded that Mt Arthur failed to meaningfully consult with the employees and that this denied the employees the opportunity to influence the policy. The full bench was not convinced that the policy introduced was a reasonable direction.

The decision goes on to summarise some general propositions at paragraph 257 – 264. It acknowledges that it is a difficult task faced by the employer and that absent of a public health order or express term in the contract of employment or Industrial Agreement, a requirement to be vaccinated must be based on a lawful and reasonable direction.

The Commission summarises that the reasonableness of a direction is a question of fact having regard to all the circumstances which includes consultation obligations, the nature of the employment, the established usage affecting the employment, common practices, and the general provisions of any instrument governing their relationship. Importantly the Commissions says:

If the object and purpose of such a direction is to protect the health and safety at work of the employees and other persons frequenting the premises, then such a direction is likely to be lawful. This is so because it falls within the scope of the employment and there is nothing illegal or unlawful about becoming vaccinated, but such a direction must be reasonable.

Reasonableness can only be determined in context. It needs to be assessed on a case-by-case basis. Like all decisions, this decision turns on its particular facts. This decision related to consultation obligations under an Enterprise Agreement and the Work Health and Safety Act.

It is not authority for the proposition that vaccination mandates are not reasonable but rather it is authority for the proposition that employers need to make sure that consultation obligations are observed. Mt Arthur coal may be able to implement a vaccination policy if they engage in further consultation.

It should remind all employers that a blanket rule imposed without any discussion may not be lawful. A carefully considered and appropriately implemented agreement will be.

Here is the link to that decision [2021] FWCFB 6059

Photo 195899756 / Court Law © Zerbor | Dreamstime.com

DGRs required to be a registered charity

Tue, 07 Dec 2021 09:08:23 GMT

A deductible gift recipient ( DGR ) is an organisation with a tax status that allows donors to make tax deductible gifts of over $2 to the organisation. As a result of the introduction of the Treasury Laws Amendment (2021 Measures No. 2) Act 2021 (Cth), from 14 December 2021 all non-government organisations with DGR status are required to be registered as a charity with the Australian Charities and Not-for-profits Commission ( ACNC ).

Whilst the requirement for DGRs to be registered as a charity has existed for the majority of DGR categories, these recent changes now extend this requirement to the remaining general DGR categories (other than ancillary funds or DGRs which are specifically listed in tax law).

Organisations with DGR status that are already registered as a charity:

If your organisation with DGR status is already registered as a charity with the ACNC then no further action is required other than continuing to meet the obligations associated within maintaining charitable status and DGR endorsement.

Organisations with DGR status that are not registered as a charity:

If your organisation with DGR status is not registered as a charity, then to maintain DGR status you will need to apply to the ACNC for charitable status.

Transitional period

There are transitional arrangements which provide additional time to meet these new requirements. These are:

1. a 12-month transition period which allows organisations until 14 December 2022 to become a registered charity; and

2. an additional 3-year extension which can be granted by the ATO in certain circumstances.

All non-government DGRs will have until 14 December 2022 to become a registered charity provided your organisation applied for or was endorsed under one of the updated general DGR categories before 14 December 2021.

Any DGRs who do not receive charitable status by 14 December 2022, will lose their DGR status unless they have obtained the additional 3-year extension. The ATO will consider (amongst other factors) the following in determining whether a further 3-year extension will be granted:

Has the organisation applied to the ATO for a 3-year extension before 14 December 2022?
Has the organisation made material changes to its purpose or activities that affect ongoing entitlement to DGR endorsement?
Has the organisation previously had charity registration refused or involuntarily revoked by the ACNC?

To check your organisations eligibility for the transitional periods, please go to the following link .

Applications for DGR endorsement made after 14 December 2021:

Any non-government organisations who apply for DGR endorsement after 14 December 2021 must register as a charity before the ATO will consider DGR endorsement.

For further information on any of the above or for assistance with establishing a charitable entity please contact our office.

Photo 43148297 / Charity © Yuryz | Dreamstime.com

Asbestos exposure: can I make a compensation claim?

Wed, 24 Nov 2021 09:09:15 GMT

It is easy with the benefit of hindsight to see that asbestos exposure in millions of Australian workers would cause such significant harm and damage in the form of asbestosis and other asbestos-related diseases.

However, whilst concerns regarding asbestos-related illness started being raised as early as the 1890’s, the true extent of the danger was not realised until the mid-1900’s. Initially governmental bodies around the world tried to control those risks by introducing “dust limits”, but by the 1970’s it was apparent that asbestos was something which could not be managed and needed to be taken more seriously. A sharp decline in the use or “consumption” of asbestos occurred in and around 1980. The World Health Organisation has since declared that there is no safe level of exposure to asbestos.

So, what is the danger associated with asbestos?

Asbestos is a mineral which occurs naturally and is made up of microscopic fibres. When asbestos is disturbed, these fibres can become airborne and be easily inhaled. Once inhaled, asbestos fibres may become trapped in the lungs, potentially causing a number of life-threatening diseases including cancer.

Statistically, those at greater risk of developing such illnesses include trades people who, particularly during the mid-to-late 1990’s, were working with asbestos products and who are unlikely to have taken safety precautions such as failing to wear masks. In our experience, this includes plumbers who were working with various asbestos products, painters who were sanding asbestos in order to apply or re-apply paint, electricians who were required to drill or cut asbestos products, and carpenters or builders involved in construction. Of course, that list is not exhaustive, and many others will have been regularly exposed to asbestos during their daily work.

In fact, some claims have previously been made because the person was exposed to asbestos second-hand. For example, workers in or around construction sites may have been exposed to dust particles even if not working with asbestos themselves or loved ones may have been exposed due to dust particles on clothing brought home by that person directly handling the products.

Delayed Onset of Symptoms

Illness caused by asbestos has a latent onset and, according to NSW Health, the symptoms associated with asbestos-related illness or disease can remain dormant or unrealised for some 20 to 30 years.

Due to such delays in the manifestation in symptoms, people may think that they do not have asbestos-related illness and may therefore not seek medical treatment in a timely manner.

Sadly, there are a reported 4,000 deaths due to asbestos each year in Australia.

What Compensation is Available?

Generally speaking, there are two (2) types of compensation claims available for those who have contracted a “dust disease” as defined under the law. Those are:

1) Statutory benefits : The NSW Nominal Insurer for workers compensation, iCare, now administer the benefits available under the Workers’ Compensation (Dust Diseases) Act 1926. Those benefits can include a pension-style payment together with payments for medical expenses incurred during the course of treating the illness.

Spouses and dependants may also be entitled to payments for statutory benefits under the scheme.

2) Common Law Claim : Over and above those statutory benefits listed above, there exists a common law right to “sue”. This claim is based in negligence. Obtaining compensation involves proving that a responsible party (such as an employer, or perhaps a manufacturer of an asbestos product) caused negligent exposure to dust from a product such as asbestos. In order for this case to succeed, there must be evidence to link the dust disease to the exposure which occurred. The Dust Disease Tribunal has exclusive jurisdiction to hear claims for dust disease, meaning that is the forum in which these claims must be heard. In order to protect the benefits available under this type of claim, the case must be commenced before the victim dies.

Asbestos is now Banned, Isn’t the Risk Gone?

Whilst asbestos was banned in Australia in 2003, there remains many homes, business or other premises where asbestos has previously been installed. This places tradespeople and homeowners at risk of exposure.

This is particularly important given the prevalence of DIY home renovations. In fact, rather concerningly, the Asbestos Safety Eradication Agency reports that 28% of people who found asbestos during home renovations disposed of it illegally and without proper precautions.

With the ongoing presence of asbestos in the lives of many people, paired with a seemingly reckless disregard for the now known dangers associated with asbestos exposure, it is unlikely that we will see an end to asbestos-related illness or claims any time soon. Of course, this is compounded by the latent onset of symptoms, and we are therefore likely to continue seeing these cases emerge for many decades to come.

If you are unsure if you are suffering from an asbestos-related illness, or other dust disease, then you should contact your doctor and seek medical advice. If you have been diagnosed with a dust disease, then you should seek prompt legal advice.

Of course, this article has been drafted with a focus on asbestos, and numerous other products are linked to compensable dust diseases. Contact us today to find out more.

Photo 23794259 / Asbestos © Chrisp543 | Dreamstime.com

Suffering from stress, anxiety or another psychological injury from work? You could be eligible to lodge a workers compensation claim

Mon, 22 Nov 2021 09:12:12 GMT

Workplace stress can have many negative impacts on an employee and their mental health. If it is not managed appropriately, oftentimes, it is not just the worker who is impacted but also their family and friendships.

A psychological injury from work can have numerous causes. You might have been involved in a traumatic incident, or you might have been subjected to ongoing bullying, overwork, harassment or a toxic workplace culture.

If you are suffering from a psychological condition that was caused by work, then you may be entitled to compensation benefits. There is a specific process involved to lodge a workers compensation claim. At Kells, we are able to provide you with comprehensive, free advice no matter what stage of your workers compensation claim you might be at.

How to make a claim for a workplace psychological injury

Book a consultation with your doctor

The first step is to consult with your doctor. You should ensure you are open and honest with your doctor about how you are feeling, and why you are feeling this way.

Your doctor will then be in a position to provide you with advice about appropriate treatment and also determine whether you have capacity to work.

To be successful in a workplace psychiatric injury claim, your employment must be a ‘significant contributing factor’ to your condition. These claims can also include an aggravation of a pre-existing psychological condition.

Your doctor should then complete a ‘WorkCover Certificate of Capacity’. For psychological injuries, mere ‘stress’ is not acceptable under workers compensation legislation. Your doctor must provide a formal diagnosis.

Notifying your employer

You should notify your employer of your injury as soon as possible after the diagnosis.

To formally make a workers compensation claim in New South Wales, you must provide your employer or their workers compensation insurer with a copy of the Certificate of Capacity and a Worker’s Injury Claim Form.

The employer must report the work-related psychological injury to their workers compensation insurer within 48 hours of being notified.

Insurer to make liability decision

Once they have been notified of the psychological injury, the insurer must either start provisional payments, delay starting provisional weekly payments due to a reasonable excuse or determine liability. The insurer has 21 days to either accept or deny liability.

Timeframe for lodging a claim

Although there are some exceptions, generally, the timeframe for lodging a claim for workers compensation is within 6 months of the date of the workplace injury. For this reason, we encourage you to contact our office at your earliest convenience if this article might relate to you.

How Kells can help you

Making a workers compensation claim is not always simple.

If you are suffering from a psychological injury caused by work, then you should contact our office for legal advice. Our experienced personal injury team can take the added stress and pressure of lodging/handling the claim off you by providing you with comprehensive and free advice about the workers compensation claim and your entitlements.

At Kells, we are able to apply for funding from the Independent Review Office on your behalf. This means that you will not have to pay us any legal fees and can be assured that you are receiving high-quality legal advice to assist with your claim.

Photo 40537390 / Stress Work © Alphaspirit | Dreamstime.com

When you agree to buy a property that doesn’t exist: put and call option deeds (Part II)

Mon, 22 Nov 2021 09:11:45 GMT

In July this year, we published an article discussing the benefits and risks of using Put and Call Option Deeds (an agreement granting a right to buy from or sell to the other party, in the future). Put and Call Options are useful, as they provide some flexibility around the timing of when purchases of property occur. However, (as the case in our earlier article highlighted) care should be taken when relying on such agreements.

Recently, the Supreme Court of NSW has been asked to deal with another dispute about Put and Call Options agreements. [1] In this case, the parties entered into a Put and Call Option Deed (the Deed) for some land which, at the time of the Deed, was still part of a larger, unsubdivided, plot of land. The parties intended that the larger plot would be subdivided, which would allow for the sale and purchase of the smaller plot of land.

Before the Option was exercised, the Local Council issued a “Local Environmental Plan”. Essentially, the larger plot of land was rezoned, and this prohibited it from being subdivided. The problem for the parties was that, now, the land the vendor had agreed to sell to the purchaser could not be brought into existence.

The plaintiff (the Purchaser) sued the defendant (the Vendor) for the return of the Option Fee they had paid under the Deed. They argued the agreement had been “frustrated”, that the basis of what they had contracted for had been lost.

However, the Judge rejected that argument. His Honour found that other (additional) clauses in the Deed, clearly showed the parties had turned their minds to similar circumstances occurring, which might also have prevented the larger plot of land being subdivided.

This case reiterates the point made in our earlier article. Put and Call Options are not same as a Contract for Sale of Land. As such, treating them like one can lead to problems for either party in the future.

Here, the Purchaser was unsuccessful in arguing they had “lost” what they bargained for, as the Deed was not (strictly speaking) the same as an agreement to purchase the subdivided plot of land. They could not recover the Option Fee, as it was not a “deposit” as in a usual Contract for Sale of Land.

The case also serves as a useful reminder. Put and Call Option agreements deal with future transactions. As such, there is a degree of uncertainty as to what those future circumstances will be. Here, the Put and Call Option agreement was drafted in such a way that the Court found the Purchaser was the party that bore the risk the larger plot of land could not be subdivided, even though this was not explicitly stated in the agreement.

It is important to ensure a Put and Call Option agreement is drafted in such a way, that both parties understand who bears the risk of future circumstances not eventuating as expected.

This article was co-authored by Law Cadet Ben Goodhew.

[1]Opera Properties Pty Ltd v The Uniting Church in Australia Property Trust (NSW) [2021] NSWSC 1436.

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#FreeBritney: What happens if you lose capacity to look after your own affairs?

Mon, 22 Nov 2021 09:11:10 GMT

Britney Spears is finally free after a Los Angeles judge terminated the court-ordered conservatorship on Friday 12 November that controlled her life, career, and finances for almost 14 years .

The conservatorship was put in place following Britney’s public breakdown in 2008 and was spearheaded by her father Jamie Spears. What began as a temporary management of Britney’s affairs whilst she was battling mental health issues, turned into Britney handing control over her own life to her own father.

In the United States, a conservatorship is when a court appoints a guardian to manage an individuals’ financial affairs or even their daily life, due to either old age or physical/mental limitations. Back home in NSW, a similar power rests with the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) who can appoint guardians and financial managers in respect of an individual.

The #FreeBritney movement has caused people to turn their mind for the first time to what exactly a conservatorship is, but also what it means to lack the capacity to control your own affairs.

This begs the question; what happens if you lack the requisite mental capacity to look after your own legal or financial affairs or even your own health and wellbeing and how to avoid an independent body is called in to appoint someone to look after you.

The answer is simple. It is extremely important to ensure that you have appropriate estate planning documents in place that appoint another person or persons who you trust to assist and carry out these roles for you. These documents are commonly referred to as Powers of Attorney and Appointment of Enduring Guardian documents.

What is a Power of Attorney?

An Enduring Power of Attorney is a legal document that authorises your ‘attorney’ (this may be your spouse, trusted family member, friend, or professional adviser) to manage your financial affairs, in the event of an unforeseen accident or severe incapacity. It is an important part of your estate planning and helps ensure your financial future is looked after.

An attorney can usually access bank accounts to withdraw and deposit funds, pay bills from your account, deal with other assets such as shares, selling property and other investments. A key responsibility of your attorney is they act in your best interest.

A Power of Attorney is not to be mistaken for your Will, which only operates upon your death. An Enduring Power of Attorney ensures you have someone to assist in the management of your financial affairs during your lifetime if the need arises.

What is an Appointment of Enduring Guardian?

An Enduring Guardianship allows you to appoint a ‘guardian’ to make healthcare decisions, give consent for your medical treatment and make lifestyle decisions in the event you cannot legally make these decisions for yourself because you lack capacity.

Your guardian can authorise:

healthcare decisions
consent for medical and dental treatment, and
lifestyle decisions such as when you live and what personal services you receive (such as in-home nurse)

You may include directions to your guardian on your decisions in relation to ‘life support’ and ‘do not resuscitate’. Your guardian will confer with your medical team and make the best decision for you, as they believe your wish would be.

What happens if you don’t have these documents in place?

If you have lost capacity, and you do not have a valid Power of Attorney or Enduring Guardianship in place, then it is too late to prepare these documents. Someone in your family or someone close to you will need to apply to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to be granted power over your legal and financial affairs and health affairs.

NCAT has a process to determine the most appropriate person to manage your affairs, which can be an expensive and time-consuming process for your family. They may decide to appoint a natural person, such as a family member or they may appoint a government body such as the NSW Trustee & Guardian. It is important to note that the cost of government administration can be significant.

What now?

Loss of capacity can happen at any time and the unforeseen can happen. It is too late once you lose capacity so it is important that every adult should have an Enduring Power of Attorney and Appointment of Enduring Guardian in place to reduce the stress and complexities that may arise later for you and your loved ones.

Please contact our office to speak with our estate planning team for further advice.

Photo 110493054 / Britney Spears © Biansho | Dreamstime.com

What happens where two parents cannot agree on the vaccination status of their children?

Mon, 22 Nov 2021 09:10:16 GMT

Since the outbreak of COVID-19 there has been a significant increase in family law disputes between parents in relation to the vaccination status of children.

The recent case of Makinen & Taube [2021] FCCA 1878 dealt with a mother and father of two children aged 12 and 8 years old, who held opposing views in relation to the COVID-19 vaccine.

There is a presumption under the Family Law Act 1975 that both parents have ‘equal shared parental responsibility’ requiring parents to consult with each other and make a genuine effort to come to a joint decision about the major long-term decisions in respect of the care, welfare and development of the child/ren. Courts can order that one parent have ‘sole parental responsibility’ for all major long-term decisions or for particular issues. Parental responsibility includes making decisions in relation to vaccinations and immunisations for children.

In this case the parties had Orders that provided equal shared parental responsibility for the parents. The father however sought to have sole parental responsibility for decisions regarding immunisations and vaccinations for the two children, as he wanted the children to be vaccinated in accordance with the State and Federal Government health recommendations.

The mother was opposed to the children receiving any vaccination and sought an injunctive order that the father not vaccinate the children. The mother submitted that the children were at risk of adverse reactions. The mother’s submissions were based upon literature she had read in relation to harmful outcomes to children from receiving vaccinations.

An Independent Children’s Lawyer (ICL) was appointed by the Court to act for the two children. The ICL relied upon the recommendations of the Family Consultant who reiterated the Government health recommendations that “ non-vaccinated children (and adults) can be excluded from services and travel opportunities due to the risk they pose to other people ”.

The Court’s findings were that both the mother and father had the children’s best interests in mind, however that it was highly improbable that the parents could reach a joint decision about giving the children any particular vaccine at any particular time.

The court commented that “ qualified doctors owe professional duties of care that apply to giving vaccines as a form of treatment ” and further held that the “ the father …. is likely to be more compliant with recommendations by a doctor or medical professional. ”

The Court therefore determined that Orders be made for the father to have sole parental responsibility regarding the children’s vaccinations and immunisations. The Orders required the father’s decision-making in respect of vaccinations to be “ in accordance with the National Immunisation Program or as recommended by the children’s general practitioner .”

When making decisions in relation to children, this case highlights that the Court’s paramount consideration is the best interests of the child/ren.

This article was co-authored by Law Cadet Karsandra Mantis.

Photo 137372049 © Anton Petrychenko | Dreamstime.com

How much does a Macca’s franchise cost? Proposed franchise disclosure register

Mon, 22 Nov 2021 09:09:37 GMT

The Federal Govermment has announced draft amendments to the Competition and Consumer (Industry Codes—Franchising) Regulation 2014 , more commonly referred to as the Franchising Code of Conduct. The amendments will introduce a Franchise Disclosure Register which is designed to improve transparency and to assist potential franchisees in making informed choices prior to entering a franchise agreement. This will further support the franchisee during the due diligence period.

The proposed register will provide free and easy access to members of the public about vital information pertaining to the franchised business. Information that will be included in the register includes:

a current disclosure document;
simplified information that is already readily available; and
other information volunteered by franchisors, for example a brief description of the franchised business.

If the proposed reforms proceed, there will be a transitional period beginning in early 2022. Franchisors will then be given until 31 October 2022 to publish information on the register. There will be ongoing requirements for Franchisors to publish updated disclosure documentation within 4 months of the end of their financial years.

If you are looking at buying into a franchise or need advice on a franchise agreement, we encourage you to contact our experienced commercial law team.

Photo 21184250 / Mcdonalds © Tamara Bauer | Dreamstime.com

Government removing the COVID safety blanket from NSW workers

Tue, 16 Nov 2021 09:12:49 GMT

On Sunday, 14 November 2021 the NSW Government issued a very discreet media release wherein it stated that it intends to imminently repeal protections afforded to NSW workers in the wake of the COVID-19 pandemic.

In May 2020, when the effects of the COVID pandemic were becoming readily apparent, the Government introduced a special law (section 19B of the Workers Compensation Act). That law introduced a presumption that if a prescribed worker contracts COVID-19 whilst engaged in various forms of employment, then the disease will be presumed to have been contracted during the course of that work.

For the purpose of that law, a prescribed worker includes someone working in retail, education, healthcare, disability or aged care, and emergency services (just to name a few). In order words, those workers who are most at risk and vulnerable to the COVID virus.

Essentially, if such a worker contracted COVID-19, then it was automatically presumed that their employment had been the cause of their contracting the virus.

Why is this important?

The law typically requires a worker to prove their case and, in the context of workers compensation, to prove that their employment was a substantial contributing factor to their ultimate injury.

In the case of a spinal injury resulting in the midst of performing heavy lifting at work, these matters are much clearer cut.

However, when asking a worker to prove that they contracted COVID-19 in the workplace, how is that achieved?

In reality, the worker will be relying upon:

1. NSW contact tracers to appropriately identify the source of infection; or

2. Employers to be transparent and openly provide evidence as to whether other employees are vaccinated, had symptoms, have been required to self-isolate, or have tested positive.

Of course, the worker will be facing an uphill battle in those circumstances. They will be relying upon a system of contact tracing which has previously been overwhelmed and unable to cope with the number of cases circulating the State. Furthermore, employers have been known to construct a proverbial wall to block-out employees and the flow of information relating to case-sensitive information.

The worker is, therefore, left alone and unable to effectively prove their case.

The presumption in favour of COVID being caused by employment reverses those issues. It relies on the party with access to the most information and power (the employer) to provide the information to disprove, on the balance of probability (likelihood) that the virus was not contracted at work. How can they do that? Of course, employers have access (or can request) information from employees during periods of absence or illness and are therefore in a better position to be aware of whether other employees (who could spread the virus) are sick from COVID. They are also more likely to be contacted by the relevant NSW government contact tracers, to inform them about any COVID risks or exposures.

It therefore makes sense to have such a presumption.

However, the NSW Government has clearly prioritised the economic reopening of NSW ahead of the wellbeing of workers. Indeed, in their press release they have said “ Now that the economy is steadily reopening, we want businesses investing in new staff and higher wages, not inflated insurance bills… Small businesses have been hit hard enough by COVID-19 restrictions over the past two years, so now would be the wrong time for them to be slugged with a massive, unexpected insurance premium increase ”.

Instead, the worker will be required to prove their case against what is set to be insurmountable odds. Furthermore, the worker will be relying upon their lawyers to invest significant time effort and expertise into the case.

What is forgotten is that those lawyers will often be paid heavily restricted fees as low as $1,800 under an ILARS grant to perform work often exceeding $20,000, and in more complex cases often exceeding $30,000.

What will this mean? Some lawyers will simply turn workers away, restricting their ability to access justice.

The introduction of the presumption relating to COVID-19 in the workplace was a step in the right direction to balancing the scales between employer and worker. Those scales are now being tipped back in favour of employers and, whilst that may help small business short term, it is likely to significantly impact the workforce whom they employ.

At Kells we are experts in workers compensation claims. We have considerable experience in workplace accident claims, and we can help you. If you have suffered COVID-related injury in the workplace, contact our office today.

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Interlock Device Avoidance: Is It Even Possible?

Fri, 05 Nov 2021 09:18:40 GMT

If you have been charged with an alcohol related driving offence there is a high chance you will be entered into the mandatory interlock program. The interlock program requires those who have been convicted of drink driving to obtain a conditional licence permitting them to drive a vehicle with an interlock device installed.

The introduction of mandatory interlock programs is a positive for some drivers as the disqualification period available to the court is shorter. However, the interlock program can cause a significant difficulty for people who drive company cars or are required to drive multiple vehicles due to their employment.

Interlock Exemption Orders

Individuals can apply for an exemption to the interlock program which will allow them to serve a disqualification period and not have an interlock device fitted to their car. The legal test the court must consider when considering whether to grant an interlock exemption changes depending on whether the individual has been charged with mid-range drink driving or high range drink driving.

If you have been charged with mid-range drink driving and it is your first offence, the test for applying for an exemption is less onerous. An individual must prove that:

1. the interlock program will cause severe hardship; and

2. an exemption to the interlock program is more appropriate in all the circumstances.

If you have been charged with any other alcohol related offence, the test is more difficult. An individual must prove that:

1. they don’t have access to a car; or

2. they have a medical condition preventing them from entering the program.

We have successfully argued for truck drivers and tradesman to be exempt from interlock orders due to the restrictions on their employment.

If you drive multiple vehicles or operate a company car we recommend getting in contact with our experienced traffic lawyer, Harry Lollback on 0452 502 041.

Our criminal lawyers operate 24/7 days a week and your first consultation is FREE!

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Employers trying to escape psychological injury and stress claims

Fri, 29 Oct 2021 09:20:05 GMT

Psychological injuries can be just as debilitating as physical injuries, and yet there remains a stigma about seeking help and claiming compensation that you rightfully deserve.

At Kells, we have a long and strong history of helping workers who have sustained psychological injuries in the workplace to seek and secure compensation. However, it can be a long road, and it is important to have experts in your corner to fight for you.

In this article, we will outline some of the common problems encountered in dealing with psychological injury claims, and how we have successfully overcome them in the past.

**The “Reasonable Discipline” Argument**

Under the workers compensation laws, an employer is not liable to pay compensation if the injury was “wholly or predominantly” caused as a result of action taken by the employer in relation to discipline, promotion, demotion, or performance appraisal (among other things).

Employers and their insurance companies may seek to deny a claim because they have taken steps to manage the conduct or behaviour of employees in the workplace. For example, they may issue a performance appraisal which provides poor feedback of the worker’s performance. They may then say that a worker’s psychological injuries have arisen because of the unfavourable performance appraisal.

However, that “tunnel vision” exercised by employers and their insurer fails to consider the context in which an injury arises. Perhaps the performance of the worker has decreased due to bullying and harassment occurring in the workplace.

The key to winning these arguments is to prove the facts. It is important to have sufficient evidence to show that the injury has arisen before any such disciplinary action or appraisal was undertaken by the employer. It is often helpful to use the records of treating doctors to show history of complaints which pre-date those issues raised by the employer.

It is also important to remember that if the employer is to succeed in this argument, they bear the onus of proving that the injury was “wholly or predominantly” caused by that action taken by them. This can be a difficult task, particularly when a worker has strong enough evidence to show that the injury arose independently from those events.

If the discipline or appraisal has contributed to the overall injury, all hope is not lost. Remember, for it to wholly or predominantly be the cause of the injury is a very high bar to reach.

Our lawyers have had considerable experience in disputing claims of this kind, and we have a strong track record of winning.

**Underlying or Constitutional Condition**

Another common issue which arises in workers compensation claims for psychological injury relates to the employer (or insurer) arguing that the worker already suffered from the injury prior to the workplace event or injury taking place.

This is often employed as part of a “scatter gun” approach, with the employer or insurer trying to downplay their own involvement in causing an injury.

For example, in a recent case we had an injured worker suffering major depression and anxiety as a result of bullying and harassment occurring in the workplace. The insurer sent our client to an “independent medical examination” (with a doctor who they pay) and that doctor wrote a report saying that the worker suffered from a bipolar disorder which was unrelated to the workplace.

These sorts of issues are often easier to overcome than problems associated with discipline or performance appraisals (as outlined above).

Often, the best approach is to obtain a sensible opinion from our own doctor to comment on those issues raised by the employer or insurer. Once this sensible opinion is coupled with a detailed statement and comprehensive medical notes (from your past showing no prior psychological complaints) then the Personal Injury Commission (similar to a court or tribunal) will make a decision on the case.

It is obvious in most cases that the Personal Injury Commission will prefer our evidence from a sensible doctor together with the statement and medical history, as opposed to the random and unsubstantiated opinion from the insurer’s doctor.

**The Injury has Resolved**

An employer or insurer may decide that denying that your injury occurred is impossible. However, in a last-ditch attempt to desperately avoid any liability, they may try to say that the injury caused in the workplace has now completely resolved. If you have ongoing symptoms, they will try to blame other factors.

In order to overcome this argument, we often obtain our own independent medical evidence and progress the case to the Personal Injury Commission. Once again, this enables us to present sensible evidence and make logical arguments in order to persuade the Commission to find in favour of the worker.

The workers compensation process is not fair to workers. It allows an insurer to (often) arbitrarily make a decision to dispute a claim, and the onus is then upon the injured worker to dispute that claim. This becomes even more unfair when insurers favour evidence which is clearly inaccurate in order to deny a claim.

The good news is that approved lawyers can help you to fight those decisions. Funding is often available from the Independent Review Office and will allow an approved lawyer (such as those at Kells) to gain access to grants to pay for your legal fees and expenses.

If you have suffered a psychological injury at work and the insurer has denied your claim, you should contact our office today for no cost, obligation-free discussion.

_This information is designed to provide general information to common problems which occur in claims. Every case is different, and you should seek legal advice specific to your individual circumstances. _

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What is needed in estate planning for directors of a private company?

Fri, 29 Oct 2021 09:18:10 GMT

If you are a director in a private company, having a well thought out estate plan is crucial.

Being a director

Private companies are commonly used to:

manage a business
invest in assets
trustee of a family or unit trust

The company may have a sole director, or in typical mum / dad arrangements may include both as directors.

Directors are generally responsible for management of the company and may exercise all its powers. Without a director, a company is in breach of the Corporations Act 2001 (Cth) and it may cause significant determinant to the value of assets if unable to function properly.

Can I pass on the director role?

Under most constitutions, the director role is usually automatically vacated on incapacity, bankruptcy or death. Inevitably, this will mean there will be some situations where a company has no director – so planning is key.

The director role is a personal responsibility – not a propriety right. The role cannot be passed or handed down to someone else, which is a common misconception. Rather, it is an office to which a person is appointed, so a director must be appointed in accordance with the company’s constitution.

To appoint a new director, most standard constitutions require:

1. The directors to appoint a new director; or

2. An ordinary resolution, being a vote of more than 50% of shareholders

Death of sole director / shareholder

For a sole director / shareholder company the process is more straightforward, however careful planning is still required.

In this scenario, the Will can be used to gift shares to the person who is to control the company. The new shareholder then votes on the shares to appoint themselves as director.

This is similar where there is a loss of capacity of a sole director / shareholder. The Power of Attorney of a shareholder can vote on the shares to appoint a new director.

Section 201F of the Corporations Act 2001 (Cth) permits the personal representative of a director (being the executor if the director has died, or Power of Attorney if loss of capacity) to appoint a director (this power can be used in the event the shares have not been gifted or the executor holds the shares to ensure that a company does not end up in a position where there is no director).

Having a Will is crucial as it clearly confirms the personal representative of an estate (and avoids the time delay that can arise when seeking a grant of letters of administration to confirm the personal representative). Careful consideration is required as to who receives the shares under a Will, who is the executor and who is the Power of attorney for a shareholder.

Death in company where more than one director / shareholder

The process may get a little more complicated in a company where there is more than one director / shareholder.

In typical mum / dad arrangements, each will leave their shares to the other and they ultimately control the company so there is usually no issue. However, in other scenarios, it will largely depend on whether there is a majority shareholder and the dynamic between the parties.

For example, on death or incapacity of a shareholder (holding 50% or less of the shares), the shareholder or executor or Power of Attorney will not have sufficient voting power to appoint a director. As above, most common constitutions require a director (i.e. existing director) or an ordinary resolution (being more than 50% of the vote) to appoint a new director. In this scenario, unless the other director or shareholder agrees to the appointment, representation at the director level may be lost.

There are other factors which may also impact such as a shareholder agreement between the parties or changes made to the constitution.

As this is a complex area, we strongly recommend seeking advice from an experienced lawyer to talk through options for planning for loss of capacity or death of a director as it can change dramatically depending on the circumstances.

Corporate Power of Attorney

A Corporate Power of Attorney can be used to ensure that a company continues to operate smoothly in the absence of a director. It appoints someone you trust to act in the best interest of company and its shareholders with appropriate financial knowledge and skill, and we recommend this is given careful consideration in any estate plan.

As an alternative, appointing an alternate director means that if a director is unavailable or incapacitated there is someone legally authorised to act for the company as director.

For further information on estate planning, please contact Kells to discuss with one of our experienced lawyers.

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What happens when the executor of the Will has predeceased the testator?

Fri, 15 Oct 2021 09:20:38 GMT

A Will is a document that sets out your wishes as to how you would like your estate to be distributed on your death. When having a Will prepared, you will need to choose one or more people to appoint as your executor. When you pass away, it is the executor or executors of the Will who will have the role of carrying out your wishes and administering your estate.

Often people will make a Will during their lifetime at key moments. For example, on the purchase of their first property, on the birth of their first child or when they have entered into a de facto relationship or marriage. However, many will then forget to review and update their Will through their lifetime.

Sometimes, an individual will forget to review their Will and when they pass away, the executor has already predeceased them. This is a common scenario where individuals appoint an executor of their Will when they have minor children and then forget to review the Will as their children become adults.

So what happens in the scenario when an executor has predeceased and there is no back up executor appointed in the Will?

The beneficiaries of the Will can make an application for a grant of letters of administration with the Will annexed with the Supreme Court of NSW. This is different to a grant of letters of administration when there is an intestacy. The application is usually made by the major beneficiary of the Will. If there are multiple beneficiaries than either all of the beneficiaries can apply jointly or one can apply with the consent of the others.

The applicant or applicants will then be appointed as the administrators of the estate. Once they are appointed, they will then have the right to administer the estate.

This process is not as straight forward as an application for a grant of probate. There can also be delays where the beneficiaries do no get along and a decision cannot be made as to who should make the application.

Hypothetical

Jenny Smith has two children, Julie and Tim who are twins and only 10 years old. Jenny wants to protect her children so she makes a Will appointing her brother Reece to be the executor. Reece passes away suddenly, and Jenny forgets to change her Will.

At the time of making her Will, Jenny did not appoint an alternate executor.

Jenny passes away and her children are now 20 years of age. Jenny’s Will is still valid, however, there is no executor appointed. Julie and Tim will need to come to an agreement as to whether they will both apply to be administrators or only one of them.

Lesson to be learned

It is important to have a Will in place setting out who is appointed as executor and who is entitled to the estate. However, it is also important to review your Will from time to time to ensure the executors you have appointed are still alive, willing and able to carry out this role.

You may also wish to appoint alternate executors at the time of drafting your Will to provide for in the event of the initial executor predeceasing, renouncing or losing capacity. If you have an alternate executor and the initial executor had predeceased, then an application for probate can still be made with evidence that the initial executor has predeceased.

As life changes, it is important to ensure your Will also needs to change.

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After 106 days of lockdown, 3 tips to help you with the new normal

Fri, 15 Oct 2021 09:19:33 GMT

The New South Wales government is leading the charge on returning to the ‘new normal’ without COVID-19 restrictions. Since 11 October 2021, individuals who have received a double vaccination have enjoyed an easing of restrictions that allowed increased socialising with the re-opening of hospitality venues and allowing larger private gatherings at people’s homes.

Proof of Vaccination

Individuals will be required to show evidence of their vaccination status before entering hospitality venues. Hospitality venues are required to check all customers vaccination status before allowing them entry. A certificate showing your vaccination status can be downloaded from the Australian Government Services Australia using your Medicare account – click here to learn how to download this certificate .

Tips when interacting with NSW Police

With more people ‘out and about’ there will no doubt be an increase in the presence of NSW Police ensuring the community is safe whilst enjoying some well-earned freedom. Individuals should be reminded of their rights when interacting with NSW Police, and in particular, the NSW Police sniffer dog program .

Random Breath Tests

We will likely see an increase in roadside random breath tests where recent changes mean drivers may face increased penalties if they are detected with both alcohol and drugs in their system . NSW Police also have more options when dealing with first time low range drink drivers and first time drivers detected with any illicit drugs in their system. NSW Police have the following options:

1. Issue a $561 fine only;

2. Issue a future Court Attendance Notice;

3. Issue an immediate on-the-spot three-month licence suspension and $561 fine.

If you are charged with any offence we always recommend discussing your options with an experience criminal defence lawyer. Our criminal lawyers provide an initial free consultation to ensure you been treated fairly and we operate 24/7 days a week, 365 days a year. If you need advice or need to discuss your options, call our expert criminal lawyer, 0452 502 041.

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Injured at work with no insurance policy? There is still hope!

Tue, 12 Oct 2021 09:21:30 GMT

It is mandatory for employers to have a workers compensation policy to cover their workers in the event of injury.

That said, whilst it is not a common occurrence, sometimes a worker is injured at work only to find out that their employer has failed to obtain or maintain an insurance policy for workers compensation.

Under the workers compensation laws, if an employer is uninsured, it is possible to make a claim for compensation against the “nominal insurer”.

In these cases, a worker will need to complete a Workers Injury Claim Form (available on the SIRA website: https://www.sira.nsw.gov.au/ ). The injured worker will also need to see their General Practitioner to obtain a Certificate of Capacity, which is also available on the SIRA website.

Once those documents are obtained and completed, they can be lodged upon the NSW Nominal Insurer, iCare.

The insurer will then conduct enquiries concerning (1) the facts, circumstances and nature of your injury, and (2) the status of the employer’s insurance policy.

Following those investigations, a decision will be made to either accept or deny the claim.

If accepted, then the following benefits will be available:

1. Weekly payments for loss of wages.

2. Medical treatment and reimbursement of out-of-pocket expenses.

3. Lump sum benefits for permanent impairment.

This process involving uninsured employers can be complex. It is recommended that you seek advice from expert lawyers who can help you.

At Kells we have Approved Legal Service Providers who are registered with the Independent Review Office. We can access funding to help lawyers investigate their claims. This funding means that, in most cases, you will not be out of pocket for your legal fees or disbursements.

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Working with children check

Fri, 08 Oct 2021 09:23:49 GMT

Most workplaces now require a valid and current police check as well as a Working With Children Check (WWCC). These checks are not only requested by potential employers, but are also required for subcontractors, especially when working within government infrastructure (including buildings) or any activities that involve contact with children.

While police conviction checks are normally “spent” after 10 years and generally do not show any non-convictions once a bond is over (with some exceptions, such as with the Department of Education or Department of Defence), WWCCs are much more thorough and do not have similar timelines or boundaries.

For a WWCC, incidents from any time on your criminal record may be examined. Further, the check will include any uncharged acts, police events, and otherwise-confidential police intelligence reports.

The Office of the Children’s Guardian (OCG) is responsible for overseeing WWCCs. A WWCC follows a five-step process:

1. An application is made;

2. Records are checked;

3. Assessment of application and information is made;

4. The applicant may respond to any request for further information; and

5. A final decision is made.

Most applicants encounter problems at Step 3, being the “assessment” phase, as they have a police or workplace record relevant to the safety of children. Where these records exist, the OCG needs to conduct an assessment before determining the outcome of an application.

The basis for this assessment arises from Schedule 1 and Section 15 of the Child Protection (Working with Children) Act 2012 (“the Act”). To summarise, if someone has a relevant police or workplace record, the OCG must conduct a risk assessment to determine if an applicant poses a risk to the safety of children.

The assessment includes examining all available records that “flag” a concern. The OCG may seek information from government and non-government agencies, and will also seek submissions from the applicant in question.

When making the assessment, the OCG considers factors such as:

1. The seriousness of the offence;

2. The time since the offence occurred;

3. The impact of the offending on children; and

4. Your current life and living situation

The list of relevant considerations can be found in Section 15(4) of the Act.

Any assessment may have only one of two outcomes: either a clearance is issued, or the applicant is barred from working with children for a period of five years.

It is important your present your best possible case to the OCG at an assessment stage as, even after a “barred” period of five years, there is no guarantee any following application will be successful.

If a WWCC clearance is not granted after an assessment, there is a right to appeal to the NSW Civil and Administrative Tribunal (NCAT). An appeal to NCAT generally involves both the OCG and applicant filing evidence, which is then presented at a hearing before a tribunal member. While this may be somewhat costly process, it is seen as a necessity in today’s society, with the WWCC playing such an important role in employment and the interactions that person may have.

If you receive a refusal to grant a WWCC, there are strict timelines if considering an appeal. Importantly, if the matter can be dealt with successfully at the assessment stage, the benefits are significant.

Photo 79948358 / Kids Hands © Joerg Stoeber | Dreamstime.com

Commercial landlord hardship fund

Fri, 08 Oct 2021 09:22:36 GMT

Small commercial and retail landlords may be eligible for relief under the new Commercial Landlord Hardship Fund (‘Fund’). The NSW Government has set up the fund to support landlords who are experiencing hardship as a result of reducing rent for their tenants pursuant to the Retail and Other Commercial Leases (COVID-19) Regulation 2021 (Regulation).

The Fund will grant up to $3,000 a month per tenancy to the eligible landowners who:

will suffer hardship as a result of waiving some or all of the rent for a tenant financially impacted by COVID-19; and

have not claimed any land tax relief for rent reductions provided between 1 July 2021 and 31 December 2021.

Prior to applying for relief from the Fund, Landlords must:

1) reach an agreement through either mediation or private negotiation with impacted tenants that complies with the Regulations;

2) obtain tenant approval to disclose terms of the agreement for the purpose of applying for the relief from the Fund; and

3)show evidence that the agreed amount has been applied to the month for which the grant is being claimed.

One the above steps have been taken, Landlords must ensure that they meet the following eligibility criteria to apply:

be a landowner or trustee with total taxable land holdings of less than $5 million;
have not claimed land tax relief for rent reductions between 1 July – 31 December 2021;
have gross rental income as their primary source of income;
be a landowner of the property for which the application is made;
be a landowner of NSW property subject to the Regulations;
be a landlord providing rent reductions to a tenant pursuant to the Regulations; and
attest that providing rent relief to the tenant may cause financial hardship.

In the case of multiple landowners, grants will be allocated according to ownership share in the property.

From October 2021, eligible landowners can apply through the Service NSW website to receive relief under the Fund. The amount granted each month will depend on the amount of the rent waiver provided to the tenant each month from August 2021.

This article was co-authored by Law Cadet Nikala Speed.

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My partner and I are separating… what happens with our child?

Fri, 08 Oct 2021 09:22:04 GMT

When you and your partner separate, reaching an agreement as to parenting arrangements can be very difficult, to say the least. Care arrangements for your child should follow the considerations that a court would have when determining a disputed parenting matter.

When a court is asked to determine a parenting application, it will take into account the best interests of the child as the paramount consideration.

But how does the court determine what is in the best interest of my child?

The best interests of a child is determined by the court focusing on two primary considerations, together with a number of other additional considerations. The primary considerations are:

1. The benefit to the child of having a meaningful relationship with both of their parents; and

2. The need to protect the child from physical or psychological harm. This includes where a child may be subjected to or exposed to, abuse, neglect, or family violence.

Some of the additional considerations a court will look at include the wishes of the child (subject to and weighed against their age and maturity) as well as the nature of the relationship of the child with each of their parents, grandparents, and other important relatives. The court will also consider the ability of each parent to provide for the needs of the child and to promote and encourage the child’s relationship with the other parent.

There is no ‘one size fits all’ to a parenting dispute, and each family and child will have their own unique circumstances. It is for this reason that it is important that you seek legal advice to assist you in navigating the complexities of your own situation.

The process will generally start with Mediation, and only if your matter is not capable of resolution through Mediation, would you then consider applying to the court for parenting orders.

Our family lawyers can provide you with expert legal advice to best assist you moving forward. Our caring lawyers deliver trusted, honest advice that will place you in a position where you can feel confident making informed decisions about your family. Give us a call today to discuss your parenting matter.

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Defusing the ticking time bomb: Takata airbag recalls

Fri, 08 Oct 2021 09:21:05 GMT

The Competition and Consumer Act (“CCA”) deals with the way product recalls are handled in Australia. Most suppliers often initiate the recall of dangerous products themselves, getting ahead of that potentially dangerous curve and poor publicity. However, in some cases, recall notices are not issued by the suppliers, and instead the Australian Competition and Consumer Commission (“ACCC”) can recommend to the Minister that a compulsory recall be initiated.

On 13 July 2017 a man in NSW was tragically killed as a result of his faulty airbag . This sparked urgent investigations by the ACCC which found that the affected Takata airbags were degrading over time, misdeploying and firing metal shards (similar to shrapnel) towards the occupants of the vehicles.

Following the findings of the ACCC investigations, on 27 February 2018 a compulsory recall was initiated for all vehicles with defective Takata airbags.

The compulsory recall required suppliers to account for all affected vehicles (100%) by 31 December 2020 (unless the ACCC had otherwise agreed to an extension).

With an estimated 100 million vehicles affected worldwide, the recall on Takata airbags was one of the largest recalls of its sort in the world, and the most significant compulsory recall in Australia’s history; with some 4 million affected vehicles in Australia alone. This was not an issue confined to a handful of car manufacturers; instead, nearly all manufacturers were affected.

Since the recall was initiated, more than 3.7 million vehicles have been repaired in order to replace the defective airbags. During that time, and despite the recalls being made injuries have occurred.

Globally, these Takata airbags have been associated with over 350 serious injuries and 33 deaths. This includes one death in Sydney in July 2017 (mentioned above) and one serious injury in Darwin in April 2017. Two injuries were also reported following an accident in Sydney in August 2020.

With most vehicles now repaired (except 0.002% as reported by the ACCC), it is unlikely that many further injuries will be seen in Australia resulting from these faults in airbags. Motorists can check whether or not their airbags are affected by visiting ismyairbagsafe.com.au .

However, any injuries which have occurred either before or during the recall period, may be compensable. This means that anyone injured as a result of the faulty airbags may be entitled to compensation. Strict time limits may apply, and you should seek legal advice as soon as possible.

At Kells we have expertise in claims involving product liability claim and injuries caused by faulty products. We can also help you by providing advice “no win, no fee”. If you have been injured due to a defective product, contact our office today.

Photo 147257138 / Airbags © Vlad Varshavskiy | Dreamstime.com

Competition for residential clients

Tue, 05 Oct 2021 09:24:24 GMT

At Kells we have implemented a new competition to residential clients only.

What’s involved and how do I enter?

Any client who is buying or selling property are eligible to go into a draw to win a $500 Bunnings gift card. To enter, you must submit a photograph of yourself or with your family members with the “for sale, “auction” or “sold” sign outside the property you bought or sold.

To be eligible to enter the competition please email your photograph toslopeman@kells.com.au along with your:

Full name of the client;

Contact phone number and address of the property being bought or sold; and

Provide written consent in your email for our firm to publish your photograph on the firm’s Instagram and Facebook accounts.

This competition commenced on 3 September and is only offered to residential clients of our firm and one lucky winner will be drawn randomly on 30 November and notified by telephone.

To view our terms and conditions https://www.kells.com.au/about/competition-terms-conditions/

Good luck and thank you for choosing Kells as your legal service provider.

Can an employer force an employee to have a COVID-19 vaccination?

Tue, 28 Sep 2021 09:24:52 GMT

Yesterday the Fair Work Commission handed down a decision that will provide guidance on this interesting question. It dealt with influenza injections but will have application to COVID-19 vaccinations.

The decision was an appeal from a decision of Commissioner McKenna in an unfair dismissal application by Ms Jennifer Kimber. Ms Kimber worked in an aged care facility. Her employer required her to have an influenza injection which was consistent with the Federal Governments policy.

Ms Kimber had previously had an adverse reaction to an influenza injection in 2016. Ms Kimber declined to have the injection and was stood down from her employment. Ultimately after a period of leave, Ms Kimber was dismissed from her employment.

Vice President Hatcher and Commissioner Riordan dismissed the appeal and said:

we consider that the public interest weighs entirely against the grant of permission to appeal. We do not intend, in the circumstances of the current pandemic, to give any encouragement to a spurious objection to a lawful workplace vaccination requirement.

Deputy President Dean disagreed. In a strongly worded dissenting judgment she indicated that particular care should be taken to examine the legislation and public health orders in force. Her conclusion was that mandatory directions to employees in many workplaces will not be valid directions. She comments:

All Australians should vigorously oppose the introduction of a system of medical apartheid and segregation in Australia. It is an abhorrent concept and is morally and ethically wrong, and the anthesis of our democratic way of life and everything we value.

The majority and hence the decision is broadly consistent with the opinion of many legal commentators. My view is that where it is required by a public health order it will be lawful for an employer to require unvaccinated employees to be stood down. Whether dismissal will then be justified will depend on a variety of factors and many cases will turn on their own facts.

Here is a link to the decision [2021] FWCFB 6015

Photo 188947284 / Covid Vaccine © Geargodz | Dreamstime.com

6 tips to prepare for an auction

Fri, 24 Sep 2021 09:25:52 GMT

Below are 6 tips to help you navigate your way through buying real estate at an auction.

1. Research

Prior to attending an auction, you should familiarise yourself with the local property market in which you are bidding as it is helpful to have an idea on what similar properties have sold for in that area. You may also wish to attend other auctions (even if you have no intention of bidding) to familiarise yourself with the process and what happens on the day.

2. Understand the process

It is very important to note that should you be successful at an auction, that the contracts will be unconditional. There is no cooling off period and you are not able to choose to not continue with the purchase should you change your mind. You should therefore undertake all of your due diligence and checks on the property including pest and building reports, strata reports, council searches and contract reviews prior to the auction date.

3. Check the contract

Once you have decided to pursue a particular property at auction, you should request that the contract for sale be provided to you by the real estate agent. Once this is obtained, it is our strong advice that you obtain professional advice on the contract from your solicitor or conveyancer prior to the auction. If there are changes required to the auction, your solicitor or conveyancer needs to organise this prior to you attending to ensure the contract that is exchanged incorporates the terms that you require.

4. Organise the deposit

If you are successful at the auction, you will be required to pay the deposit on the day. The deposit is usually 10% of the purchase price however 5% deposits and deposit bonds can be requested if required. If you will be paying the deposit by electronic transfer, check with your bank as to daily transfer limits to ensure that there are no unexpected issues on the auction date.

5. Review your finances

You should consider the maximum price you are prepared to pay for the property prior to attending the auction. This should also be discussed with your broker/bank to ensure that if you are obtaining finance that you would be eligible to borrow the required amount. Not obtaining finance is not a reason to pull out of the contract, so we recommend that you should have pre-approval in place prior to bidding. Pre-approval is still subject to the bank completing a valuation and their final review but it is the most assurance you can have prior to an auction.

6. Prepare for the day

You will need to register for the auction. You can do this by contacting the agent prior to auction or you may register as you arrive. If you cannot attend the auction yourself, you can authorise someone else to bid at the auction and sign on your behalf which needs to be organised prior. You should also ensure that you take your identification documents such as a driver licence or passport on the day.

Our conveyancing team provide a FREE contract review if a property you are purchasing is going up for auction. Reach out and get in touch with our property team today.

Photo 72398437 / Auction © Oleg Dudko | Dreamstime.com

Click-wrap agreements: will I be bound if I didn’t read it?

Thu, 23 Sep 2021 09:26:18 GMT

Introduction

In the ever-expansive world of e-commerce, clicking that small box with the words ‘I agree’ has become second nature to many consumers. Every day, consumers who purchase goods and services online are asked whether they agree to a variety of legal instruments, including terms and conditions of sale, terms of use and privacy policies. However, how many actually read the terms of these legal documents that they are agreeing to?

A recent experimental survey conducted in the United States assessed the extent to which individuals ignored a privacy policy and terms of service (also known as a terms of use) when joining a fictitious social networking service, named ‘NameDrop’. The results found that 77% skipped the privacy policy by selecting the ‘quick join’ open. Those who took the time to read the privacy policy and terms of service, spent on average 73 seconds reading it respectively. It would then come as no surprise, that 97% agreed to the privacy policy and 93% agreed to the terms of service. Strikingly, 98% missed clause 2.3.1 of the terms of use, whereby they had agreed to give away their future first born child .

The traditional approach in Australia

In Australia, the law provides no comfort to a party who fails or neglects to read the legal instrument in which they sign. This is because of the significance that the law attaches to a signature, which ordinarily conveys a representation that the person who signs has either read and approved the contents of the document or is willing to take the chance of being bound by those contents – whatever they might be. [1] In this regard, legal instruments often gain their efficacy by signature, which signifies a commitment to certain terms and thereby enables third parties to assume the legal efficacy of the document. [2]

Although there are instances where a party may not be bound in the presence of misrepresentation, duress, mistake – the general rule is that in absence of any such vitiating element, equitable or statutory relief, a person who signs a contract is bound by those terms and it is immaterial where they have been read or not. [3]

But what about online contracts, where selecting the words ‘I agree’ are used in place of a traditional signature? These agreements are referred to as ‘click-wrap’ agreements, which are in essence online contracts where the terms and conditions are located on the same page (generally directly above) with an option to ‘click’ the words ‘I agree’.

Click-wrap agreements and enforceability

In Smyth v Thomas , [4] the defendant was a registered eBay user and the owner of a Wirraway Australian Warbird aircraft, which he had listed on listed on eBay with a notation of a “minimum bid” of $150,000 for 10 days in August 2006. The plaintiff was also a registered eBay user, who made a bid for $150,000 (the minimum bid) and later received a notification from eBay to the effect that he had “won” the online auction. The defendant was unsatisfied with the price, so he refused to sell the aircraft. The plaintiff then sued for breach of contract.

The Court found in favour of the plaintiff and ordered that the contract be specifically enforced. In coming to its decision, the Court specifically affirmed that eBay’s terms and conditions, which both parties had accepted online as a click-wrap agreement, created a framework for the auction which the parties were required to follow. Those terms and conditions were then binding on both parties and meant that the defendant was obliged to complete the transaction.

Although Smyth v Thomas establishes that click-wrap agreements are enforceable, it should be noted that neither party claimed they were not bound for failing to read or being unaware of the contents of eBay’s standard online terms and conditions.

Outlook

So, while we know the click-wrap agreements are enforceable, it still remains unclear whether this position will remain the same, in circumstances where a person fails to read or is otherwise unaware of the contents of the agreement that they click ‘I agree’. This is question that Australian Courts are yet to decide.

Until this question has been answered, it is strongly recommended that consumers take the time to carefully read and understand the effect of every legal instrument they encounter online – because if you’re not careful, you might unknowingly give up your first-born child!

[1] Wilton v Farnworth (1948) 76 CLR 646 at 649; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Others (2004) 211 ALR 342 at 354.

[2] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Others (2004) 211 ALR 342 at 354.

[3] L’Estrange v F Graucob Ltd [1934] 2 KB 394 at 403 ; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd and Others (2004) 211 ALR 342 at 356.

[4] [2007] NSWSC 844

Photo 173271340 © Alexskopje | Dreamstime.com

My doctor did not warn me of any risks, what can I do?

Thu, 23 Sep 2021 09:25:15 GMT

Personal injury is heavily focused on both “risk” and “foreseeability”. That is, what is the risk, is it foreseeable and what could or should have been done to avoid those risks. Those issues have been extensively developed over the past century, or thereabouts, following the decision in Donoghue v Stevenson in 1932 .

The issues relevant to risk and negligence have become somewhat more complex as time has passed. We are now faced with cases where not only do we need to consider if somebody acted negligently in performing a certain action, but also the context in which that action arises.

There is no better example of this than the need of doctors to provide adequate warning of risks to patients. In providing those warnings, doctors are able to obtain “informed consent” from their patients, to confirm that they know the risks and they are willing to nonetheless undergo the treatment; whether it is to take certain medications, or to undergo surgical procedures.

Unfortunately, as personal injury lawyers we commonly encounter people who have experienced significant problems after surgery. When asked about the advice given by their doctors, they respond to the effect “I was told that this was a simple and straight forward procedure”. At no stage were they told that their hip replacement could cause ongoing dislocations, of may be mis rotated. They were not told that simple surgery for bladder incontinence could actually make the issue worse; or that eye surgery could send them blind.

These outcomes can occur even if the doctor has done everything correct in performing the procedures. The outcomes, in those circumstances, are considered merely a materialisation of an inherent risk.

This is little consolation to the injured person.

However, a person having a poor surgical outcome may have rights to compensation if they were not adequately warned of the risks . The following generally needs to be proved in order for the case to succeed:

that the patient was not adequately warned of a material risk
that the material risk for which they were not warned eventuated
if they had been sufficiently warned of the risk which arose, they would not have pursued that particular course of treatment.

Further, not only are inherent risks of a procedure relevant, but so too is a surgeon’s lack of experience in performing a procedure. The court has previously found that a surgeon who lacks experience with a procedure must disclose this to the patient (see Jambrovic v Day [2017] NSWSC 1468 ). As noted above, this is particularly relevant where the inexperience causes or contributes to the poor outcome.

If you have suffered a poor outcome post-surgery, and you were not warned of a risk which has now eventuated, then you could be entitled to compensation.

At Kells, our experienced compensation lawyers can help you to navigate this complex area of law and we provide our legal services on a no win, no fee basis.

Photo 160852796 / Doctor © motortion | Dreamstime.com

No more paper certificates of title in New South Wales

Tue, 21 Sep 2021 09:27:37 GMT

On 24 May 2021, the Real Property Amendment (Certificates of Title) Act 2021 (Act) came into force. This legislation enables the NSW Government to continue progress toward its clearly stated goal, being the adoption of wholly electronic processes for conveyancing. This progress will be facilitated by the Act which abolishes the legal effect of Certificates of Title (CT’s). These changes will come into effect from 11 October 2021.

Traditionally paper CT’s have been an integral document when dealing with land as it serves to verify ownership of land and as a record of dealings registered on title. The transition away from the use of paper CT’s has been justified by the government on the basis that CT’s have ‘little utility’ in the context of digital conveyancing. The shift towards digital conveyancing was a commitment initiated by the government in 2017 which is now almost complete. A wholly electronic conveyancing process is generally seen as a preferred system, with many jurisdictions embarking on a similar transition.

The government has enacted this new legislation by justifying the changes with reference to the following benefits of digital conveyancing:

fewer errors
protection against fraud
increased efficiency
greater reliability
faster processing times.

The Torrens land register will continue to be the “single source of truth” when it comes to verifying and recording interests in land. Despite this, the need for a paper copy of this information (or CT) will no longer be required to facilitate transactions involving land.

Although cumbersome to conveyancing processes, the CT does provide a useful summary for landowners or prospective landowners to quickly understand what interests effect property. The government has indicated that this information should continue to be available in absence of paper CT’s. To address this issue after the abolishment of CT’s, information regarding registered interests of land will be contained in a document issued by the Registrar General called an ‘information notice to customers’.

Photo 208546664 / Certificate Title © Lane Erickson | Dreamstime.com

Choosing a real estate agent

Tue, 21 Sep 2021 09:27:19 GMT

No sooner after you lay the chip bark in the garden bed, the agents will be knocking. It may just be spring gardening, however a savvy real estate agent will see it as a potential sale. If you are looking to sell, you will surely be dazzled with comparable sales figures, marketing features ranging from photos to drones and an entourage of sales staff with bright smiles. Once you have an opportunity to digest all their information, how do you choose an agent?

We often get asked for agent recommendations however its more the case of different strokes for different folks. Selling a property is a milestone event and you may prefer for the person selling your house to be like minded to yourself. Some vendors prefer their agent to be charismatic with all the bells and whistles who dictates the terms and the vendor’s expectations leaving a potential purchaser railroaded. Others prefer their agent to be more of a quiet achiever, one who has the ability to negotiate with a buyer in order to push them ever so gently to their upmost limit whilst keeping all parties happy with the result.

One way of approaching the decision, is to turn the tables around, what sort of agent would you like to deal with when buying a house? It really is a personal choice and you should feel comfortable with the decision and not obligated by any means to select a particular agent. We would not recommend for you to appoint the agent who has been managing your property and tenant for years and years as they may not be the best person for the job. Shop around, get a few appraisals from various agents and compare their fees and expenses.

At the end of the day it is a business decision and you want to employ the best person for you and your expectations to ensure a smooth real estate transaction.

Photo 33890612 © Photographerlondon | Dreamstime.com

COVID-19 fines

Tue, 21 Sep 2021 09:26:48 GMT

In response to the increasing COVID-19 infections in New South Wales, the NSW Police initiative ‘Operation Stay at Home’ was announced in mid-August 2021. The operation came with increased police powers to issue on-the-spot fines ranging from $80 for failure to comply with a direction to wear a mask to $5,000 for failure to comply with self-isolation obligations.

Since this announcement, NSW Police issued more than 22,000 fines for breaching COVID-19 restrictions. Revenue NSW statistics show the total COVID-19 fines amount to over $28 million.

What to do if you are fined

If you have been issued with a penalty notice you have the following options:

1. accept liability and pay the fine; or

2. elect for the matter to be determined by the Local Court, plead guilty with an explanation and seek leniency from the Magistrate determining the matter; or

3. elect for the matter to be determined by the Local Court, plead not guilty and the adjourn the matter to be determined by a defended hearing. At the hearing NSW Police will need to produce evidence to establish the offence against you.

There are strong pros and cons to the above options, and we highly recommend seeking advice from one of our experienced lawyers to discuss which option is best for you.

Photo 181571896 © Vlarvix | Dreamstime.com

I am claiming compensation, will I need to go to court?

Fri, 17 Sep 2021 09:27:58 GMT

A common question which is asked is whether someone will need to go to court, and stand in front of a judge, in order to claim compensation.

Surprisingly, the answer is usually “no”. Let’s see how this applies to different types of claims.

Motor Vehicle Accidents & Workers Compensation

Almost no motor accident or workers compensation cases go before the Court. This is because the system uses a type of tribunal called the “Personal Injury Commission” to determine all disputes. The Personal Injury Commission is less formal and more flexible than the typical Court process and prioritises efficient and cheap resolutions of claims.

In these cases, lawyers will work hard to prepare applications which puts forward your case. They will often prepare written arguments and provide the Personal Injury Commission with all available evidence in support of your case.

Once this occurs, the insurer will do the same, and they provide a different application called a “reply”. They will also provide any written arguments and evidence to dispute the case.

At this stage both you and the insurer will have all documents submitted.

The Personal Injury Commission will appoint a “member” (who is usually an experienced independent lawyer or barrister) to make a final and binding decision about the case.

In cases requiring a medical assessment, the Personal Injury Commission will appoint an independent doctor (also called a “member”) to produce a report with their findings.

The final decisions made by the members will usually bring the case to an end.

There are avenues for appeal, and in some very limited circumstances an appeal may go before a superior court. Otherwise, there will generally be no mention of court in these cases.

Dust Diseases

The process specifically applicable to dust diseases is unique. It is designed to put an insurer “on notice” of a claim, and to provide all documents within a relatively short timeframe.

Once preparations are complete, the case is filed in the Dust Disease Tribunal.

The Tribunal is then responsible for overseeing the case.

Generally, the parties will come together for a mediation, and if this fails, then a hearing will take place in the Tribunal.

Given the time sensitivity of these cases, a dust disease case can be expedited to hearing if the person claiming compensation has a very poor prognosis.

Other Claims (Medical Negligence, Slips and Falls, Product Liability and more)

In most other claims involving “suing” or “negligence”, the process is such that both the injured person will obtain their evidence. If there case has a reasonable chance of succeeding, then court documents can be lodged.

Once lodged, the insurer will begin to prepare to defend the case. This will involve the need for them to obtain evidence.

Once all evidence is obtained, then it will generally be time to try and hold settlement negotiations with an insurer (called a “defendant” by this stage).

If the case cannot resolve through settlement negotiations, then the case will generally be listed for a hearing. This is often referred to as a “trial”. It is at this hearing that a judge will listen to all evidence, and an injured person seeking compensation may need to provide verbal evidence in the witness box.

Once all of the evidence is heard, a judge will make a final decision and issue a “judgment”.

Subject to any avenue for appeal, that decision will be final.

Notwithstanding that hearing process, the vast majority of cases resolve before a hearing. If that occurs, then there will be no need for an injured person to ever set foot in a court room.

At Kells we can provide you with tailored expert advice as to compensation claims and processes. If you have suffered an injury and think you might be entitled to compensation, please contact us. We can provide our legal services on a “no win, no fee” arrangement.

Photo 43266716 © Tom Wang | Dreamstime.com

I want to contest an estate but there is no Will, can I still do it?

Tue, 14 Sep 2021 09:28:23 GMT

Contesting a deceased persons’ estate is generally associated with the deceased person leaving a Will that often excludes someone from being listed as a beneficiary and them receiving no entitlement from the estate. But what happens when a person dies without a valid Will and their estate passes to someone else and you are left feeling like you should have been included in the distribution of the estate? This scenario is more common than you think, given that almost 50% of Australians do not have Wills.

If you fail to take steps to have a Will prepared while you are alive, then on your death your estate will pass according to a predetermined formula called the law of intestacy. A person who dies without a valid will is said to have died intestate.

The persons entitled to inherit from an intestate estate depends on the relationship with the deceased person and who survives the deceased person. In summary, the order of beneficiaries entitled under intestacy is generally as follows:

1. Spouses

2. Children

3. Parents

4. Siblings

5. Grandparents

6. Aunts and uncles

7. First cousins.

8. If none of these beneficiaries apply, then the estate passes to the Government.

The difficulty with intestacy lies in the lack of control in where your estate goes. The result may be that your estate passes to beneficiaries who you may not have intended to inherit, or in the alternative, leave those who you wanted to inherit with nothing. Further, it does not include as stepchildren, nieces and nephews or even charities.

There are varying entitlements to an intestate estate depending on what family members survive the deceased. For example, if a person dies leaving a spouse and a child from that relationship, the spouse is entitled to receive the whole estate. However, if the deceased leaves a spouse and a child from a previous relationship, the spouse is entitled to receive the deceased’s personal effects, a statutory legacy of $350,000 plus half of the residue of the estate. The other half of the residue of the estate goes to the deceased’s children from that previous relationship. Depending on the size of the estate, those children may not actually receive anything if the estate is modest.

In the world of de facto relationships and blended families, this can create problems for family members and highlights the importance of avoiding the uncertainty of the law of intestacy where possible and ensuring that you have a Will in place.

It is possible to contest an intestate estate. The same process and requirements apply as if someone died with a Will. You must first be an eligible person as defined by the Succession Act NSW 2006, which includes a spouse or de facto partner, a child, and certain dependents.

Once you have satisfied the eligibility requirement, you will then need to satisfy to the Court that adequate provision has not been made for you from the deceased person’s estate and demonstrate a case that warrants further provision being made to you. In considering your case, the Court has regard to an exhaustive list of factors which include the relationship between you and the deceased and the nature of the estate as well as your current financial situation and future needs.

If you are successful in a family provision claim, an order made by the Court takes effect as if the provision was made in a codicil to the will of the deceased person, if the deceased person made a will, or in a will of the deceased person, if the deceased person died intestate.

If you are concerned about your position following the death of a loved one, contact us today to discuss your options.

Successful compensation claim paid due to a COVID-19 death found to be work-related

Thu, 09 Sep 2021 09:29:34 GMT

On 10 August 2021, the Personal Injury Commission handed down its decision to award $834,200, weekly compensation and potentially medical expenses in the vicinity of $11 million (USD) to the estate of a deceased employee who contracted COVID-19 during the course of his employment.

This case is the first known workers compensation dispute relating to COVID-19 to be determined by a tribunal in Australia. One of the main issues was establishing that COVID-19 was an injury which arose out of or during the course of employment.

Mr Georges Sara, a dental entrepreneur, died on 21 November 2020 due to respiratory distress because of complications from COVID-19. The deceased had set up companies including G & S Sara Pty Ltd, an Australian based company, and another company in the United States. The deceased travelled to New York in July 2020 for work.

The Commission reviewed medical evidence, including when the deceased’s symptoms first occurred, and that the deceased did not always wear a mask. Considering this evidence, the Commission determined that the deceased had contracted COVID-19 during the course of his employment – between when he boarded his flight in Sydney and arrived at his hotel in New York. Following this, it accepted that the contraction of COVID-19 and death was a “personal injury” within the meaning of Act .

This decision emphasises the significant risks and financial costs to employers of COVID-19 caught during the course of employment. In a world where employers are already struggling with the legalities of mandating the COVID-19 vaccines in the workforce, this decision might only make finding the right balance even more crucial.

Further developments on whether your employer can force you to have the COVID-19 vaccine

Tue, 07 Sep 2021 09:32:27 GMT

On 6 August 2021 I posted an article dealing with this topic . Events have moved quickly and, by the time you read this article it may no longer be current.

Part of the controversy about this issue relates to how people look at this issue.

One approach is to focus on industries where mandatory quarantine has been common. These include influenza in the aged care industry and Q fever in abattoirs. In those industries unless you have had the appropriate injection you cannot work in the industry.

Others look at question of individual rights and responsibilities. What business is it of an employer to interfere with individual health decisions. If the Federal Government will not mandate injections, why can an employer?

There were also concerns raised by some employers about their obligation under Work Health and Safety Legislation and does this extend or mandate them to require employees to have the vaccination.

The Fair Work Ombudsman has recently published some guidelines dealing with this issue. Here is a link for your information. The guidelines were revised on 12 August 2021 and the guidelines point out that employers can only require employees to be vaccinated:

where a specific law such as a public health order requires an employee to be vaccinated; or
there is a requirement under an Enterprise Agreement/modern award; or
it would be lawful and reasonable for an employer to give their employees a direction to be vaccinated.

The guidelines provide detailed commentary on when a lawful direction may be given.

This issue is not yet resolved and should be assessed on a case-by-case basis. Some requests may be reasonable others may not and some crucial factors will include:

the type of work done in that industry and risk factors
the requirements of any Public Health Order; or
any individual employee’s circumstances including religious and health concerns.

A direction which complies with the Public Health Order is much more likely to be regarded as reasonable and lawful.

The issue of whether an employer can force you to have a COVID-19 vaccine is likely to evolve substantially over the next few weeks. You should seek specific legal advice before acting and our employment team at Kells is more than happy to provide you with the correct and accurate advice.

Disputing your commercial lease

Tue, 07 Sep 2021 09:30:02 GMT

On 12 August 2021 the NSW Civil and Administrative Tribunal handed down its judgment in relation to a matter concerning a retail lease dispute in which Kells commercial lawyer Kyle Bridge acted for the lessor.

In 2015 the lessor and the lessee entered into a retail lease of a restaurant premises located within a strata-titled building. The two directors of the lessee provided personal guarantees for the lessee’s obligations under the lease, which was on bespoke terms specifically prepared by Kells commercial property lawyers.

In early 2019 the lessor terminated the lease and regained possession of the premises, alleging that the lessee had failed to comply with a number of essential terms of the lease, including (among other things) a failure to pay rent and outgoings and a failure to trade in accordance with the lease. A claim for damages was made against the lessee and both guarantors.

The lessee cross-claimed, seeking damages on a number of fronts; including an alleged failure by the lessor to mitigate its loss, a failure by the lessor to comply with alleged implied terms of the lease requiring the lesso

1) consent to the lessee’s application for a liquor licence;

2) allow the lessee to remove its goods from the premises following the termination of the lease, beyond the period provided for by the lease; and

3) allow the lessee’s financiers to remove goods that were the subject of hire-purchase and/or lease agreements following the termination of the lease, beyond the period provided for by the lease.

The lessee also claimed that false and misleading representations were made by the lessor’s agents prior to the execution of the lease, ultimately leading to losses and damages.

In preparation for the hearing of the matter appropriate expert witnesses were engaged to provide opinions as to the market rent for the premises, together with the value of the goods left on the premises by the lessee. A number of lay witnesses were also called to give evidence in relation to the other claims made by the lessee.

The final hearing of the matter took place over two days in March 2021 and judgment was subsequently delivered on 12 August 2021 following the filing by the parties of final written submissions.

The Tribunal found the lessor to have been “wholly successful” in its claim. Among other findings the Tribunal determined that:

1) following a number of fundamental breaches of essential lease terms, the lessor was entitled to terminate the lease, and did so validly;

2) consistently with the lessor’s submissions, there was no positive “duty” on the lessor to mitigate its losses, as had been argued by the lessee;

3) even if such a duty did exist, the lessor discharged that duty through the actions it took;

4) the expenses incurred by the lessor following the termination of the lease were damages attributable to, and payable by, the lessee;

5) based on the evidence prepared and heard at the hearing, no false representations of the kind alleged by the lessees had been made by any person on behalf of the lessor;

6) the lease prepared and registered by Kells left no room for implied terms to form any part of the agreement that had been entered into.

Ultimately, the Tribunal ordered the lessee and its guarantor-directors to pay the whole of the lessor’s damages claim, as well as all of the lessor’s costs of the proceedings.

Taking care to obtain all instructions and including all agreed terms at the beginning of a lease matter (or any other commercial matter) go a very long way to protecting your position should a dispute arise down the track. Kells commercial lawyers take great care to understand your needs and your business. We utilise our extensive experience and foresight to protect our clients’ interests in any possible circumstance.

De facto relationship: when does it cease to exist?

Tue, 07 Sep 2021 09:29:11 GMT

What happens when one party to a de facto relationship says a relationship is over and the other party says the relationship is not over and both parties continue to live together under one roof? Who is required to prove the existence of the relationship? Who proves the separation?

Pursuant to section 4AA(1) of the Family Law Act a person is in a de facto relationship with another person where they are not legally married to each other or related by family and where on all the circumstances of the relationship they are a couple living together on a genuine domestic basis.

Section 4AA(2) of the Family Law Act lists circumstances where people are considered to be in a de facto relationship, including whether a sexual relationship exists.

In a recent family law case , the de facto wife argued that separation occurred in 2011 to 2012, even though the parties lived under one roof until 2015. The de facto husband’s application sought a declaration that the de facto relationship began in 2010 and ended in 2015 and sought an order for an equal division of property. In this case the de facto husband was convicted of acts of violence and sexual assault against the de facto wife, and went to gaol for those crimes.

Mistakenly, the trial judge put the onus of proving on the de facto wife to prove that the relationship had ended. However, on appeal the court found that the onus was on the de facto husband to establish that he was still in a relationship with his de facto wife after 2012 until 2015, pursuant to the terms of s4AA of the Family Law Act . Essentially, the de facto husband had to prove that on the unique circumstances of his relationship that it could be concluded that he was still in a relationship on a ‘genuine domestic basis’ as both he and his de facto wife remained living together.

The comparison of circumstances prior to 2011 or 2012 with the subsequent circumstances of the de facto relationship, which involved the violence and sexual assault against the de facto wife by the de facto husband constituted a finding that the de facto relationship had ceased at that time.

If an intention to end a de facto relationship can be identified, this remains significant evidence to be taken into account under s4AA of the Family Law Act, pursuant to s4AA(4) of the Act .

In this case, it was held the de facto wife formed an intention to end the relationship and also acted on her intention and communicated her intention to separate to her de facto husband, due to the background of severe domestic violence and sexual assaults against the de facto wife by the de facto husband.

The appeal was allowed and the case will require another trial.

This article was co-authored by Law Cadet Karsandra Mantis.

Accident at work? Now my employer won’t pay for any treatment

Thu, 02 Sep 2021 09:33:24 GMT

Time and time again we receive contact from workers who have encountered issues with the employers after sustaining injuries. Most common of those complaints are: “I suffered an injury, and my boss was paying for physiotherapy from petty cash but has now stopped”.

Firstly, red flags are raised when an employer starts paying for treatment directly. This is because all treatment should be paid through a workers compensation insurer.

Sometimes, however, in order to keep their statistics in check an employer may think it a good idea not to report the injury to their insurer, and instead pay for small amounts of treatment from their own pocket.

This is illegal.

Under the law, an employer is required to notify their workers compensation insurer of a workplace injury within 48 hours of its occurrence.

Once the insurer is notified of the injury, a workers compensation claim will be opened. The insurer will decide whether it is liable to pay for weekly benefits (for loss of wages) and also for treatment expenses.

For the insurer to pay for the medical expenses, the treatment must be “reasonably necessary”. The State Insurance Regulatory Authority of NSW (called “SIRA”) published Guidelines to be used by insurers in making these decision as to whether treatment is “reasonably necessary”. Those Guidelines say that the following factors, among others, should be used in determining the necessity of treatment:

the appropriateness of the particular treatment
the availability of alternative treatment
the cost of the treatment
the actual or potential effectiveness of the treatment
the acceptance of the treatment by medical experts.

Whilst each request for treatment will be assessed on its individual merits, the threshold for meeting the test of reasonable necessity is not overly burdensome and, in most cases, you will have some form of treatment made available to you.

If the insurer decides to reject your request for treatment, you can seek legal advice.

Under the NSW scheme, workers are generally entitled to seek funding from the Independent Review Office which will cover their legal fees and disbursements. This means that by seeking legal advice for workers compensation claims, you should not be out-of-pocket for legal fees and charges. To be eligible for such funding, the lawyers must Approved Legal Service Providers.

At Kells we have multiple approved lawyers who can access such funding on your behalf.

Living in strata with an animal: a win for your furbaby!

Thu, 02 Sep 2021 09:33:06 GMT

For so many homeowners, buying a property also means finding a home for their pets. Our pets are part of our family and so the family home must suit them as well.

Until recently, if you purchased a property like a unit, apartment or townhouse, and if that property was part of a strata scheme, that didn’t automatically mean your pet could live there too.

Some owners’ corporations, that is, the term used to refer to the group of owners that collectively own the land on which their unit, apartment or townhouse is situated, could have a rule which didn’t allow pets on the premises. That has now all changed!

From Wednesday 25 August 2021, the NSW Government will enact new laws that will put an end to bans on animals in strata properties. The changes follow a detailed review of the Strata Schemes Management Act 2015 and extensive public consultation which focussed on keeping animals in strata schemes.

The new laws will also however have specific grounds where an owners’ corporation can refuse an owner from keeping an animal in a strata scheme or take steps to remove an existing animal from the scheme.

The circumstances can include:

If the animal repeatedly damages common property; or
The animal shows menacing behaviour; or
There is persistent noise and odour from the animal.

Members of owners’ corporations will also be able to set their own reasonable conditions through by-laws on how pets are kept within their strata scheme.

These new laws reflect a broader community sentiment and demonstrate a balanced approach for both residents and owners’ corporations in keeping pets in a strata scheme.

Research has found that Australia has one of the highest rates of pet ownership in the world, with 61% of households having a pet in their family, and 91% of households owning a pet at some point in their lives.

For more information about the new laws, you can visit the NSW Fair Trading website .

Can you recover money owed to you by a company in liquidation

Thu, 02 Sep 2021 09:31:33 GMT

It can be worrying for you when a company that owes you money goes into liquidation. Despite this, there are options available to recover some, if not all the debt.

Am I a creditor?

If money is owed to you by a company, you are considered a ‘creditor.’ There are two types of creditors:

1. Secured creditors – these creditors have a ‘charge’ over the company’s asset. For example, a bank may have a charge over a property which is subject to a mortgage.

2. Unsecured creditors – do not have a charge and therefore do not possess any collateral to fall back on if the loan is defaulted.

The category in which you fall into determines which order you will get paid.

How do I recover the debt?

The first step in recovering a debt is to contact the Liquidator. A Liquidator is appointed to gather all assets of the company and settle all claims before dissolving the company. To show that you are in fact owed the money, you must complete a Proof of Debt form. This includes attaching evidence to support your claim (e.g. court documents for pending proceedings, invoices etc.). Once received, a liquidator has 28 days to approve or reject the claim.

If your debt is approved, you are given certain rights as a creditor. This includes the right to vote at any creditor’s meeting to determine the amount the company may pay them. Generally, liquidation results in you getting paid cents on the dollar – for example if you are owed $100,000 and the liquidation yields a payout of 11c/$, you will receive $11,000.

Will I receive any money?

If the sale of the company’s assets are sufficient to pay all debts, you may recover some of your debt. However, this is often not the case. There is a specific order that must be followed in respect to a liquidation. Once it is time to distribute the funds, the Liquidators costs are paid first. From there, secured creditors, including employees outstanding wages and entitlements are paid. If there are any residual funds, the unsecured creditors receive a payment as a dividend.

If you have a debt owing by a company that is in liquidation, we encourage you to contact our experienced commercial law team.

What is a Statement of Wishes?

Thu, 02 Sep 2021 09:31:08 GMT

A Statement of Wishes, also known as a Letter or Memorandum of Wishes, can be a very valuable addition to estate planning and communicating with loved ones after death.

A Statement of Wishes is not legally binding, rather it is an informal and private document that accompanies your Will. The Statement of Wishes can be updated as you need, without having to change your Will.

A Statement of Wishes can help guide and assist your executors when the time comes to administer your estate and can be very beneficial. It may further explain issues that are not be addressed in your Will, including:

Guiding principles : communicating principles to assist the executor in their decision making
Reasons for decisions : why you have decided to leave your assets in your Will in a certain way (including why a beneficiary may be left out)
Minor children : how you would like your children’s inheritance is to be managed and applied during their childhood.
Care of young children : instructions to your guardians about caring for children while they are under the age of 18, such as education, religion, values.
Sentimental / personal items : instructions on the distribution of your jewellery, family heirlooms and other personal effects
Disposal of body : particular requests in relation to your funeral or burial arrangements

A Statement of Wishes can also be very beneficial to provide directions about assets that you control during your lifetime, but do not automatically form part of your estate ( non-estate assets ). These may include family trusts, private companies and self-managed superannuation. Control of assets may be entrusted to your executor to control after your death, and your wishes can be used to guide their decision making. For example:

your intentions for family trust distributions of income / capital (e.g. all children are to receive an equal distribution, or not), investment strategy and certain assets are to be dealt with in a specified way.
you can provide key contact information required for a trading company, which can be very useful to ensure smooth continuation of business operations key to your business retaining value.

The Statement of Wishes is not legally binding but can provide useful guidance to your executor or trustee in the exercise of power. It is provided on a confidential basis and does not need to be shared with beneficiaries unless you agree for it to be so.

The information that you include in your Statement of Wishes can be as limited or as broad as you wish. Having an experienced lawyer assist in preparing the Statement of Wishes is essential to ensure it is clear and concise, and to ensure it does not conflict with your Will.

Proposed new law offers additional protection to consumers and small businesses

Thu, 02 Sep 2021 09:30:47 GMT

On 23 August the Commonwealth government released a draft bill which offers additional protections to consumers and small businesses.

The draft bill , titled the “Treasury Laws Amendment (Measures For A Later Sitting) Bill 2021: Unfair Contract Terms Reforms” will amend the Australian Consumer Law and the Australian Securities and Investment Commission Act in relation to unfair contract terms.

While the legislation is still only in draft form, and will be undergoing public consultation until 20 September 2021, it is a timely reminder for businesses to consider the impact the existing regimes, and the proposed amendments, have on their business and contracts.

Existing protections

The unfair contract terms regime seeks to address the imbalance consumers and small business owners face in relation to ‘standard form contracts’, being those contracts where one party has prepared the contract and the other party has little or no ability to negotiate the terms.

The legislation currently applies to standard form contracts where:

1. One or more of the parties is a ‘small business’, defined as a business which employs less than 20 people, including casual employees and people employed on a regular and systematic basis; and

2. the upfront price payable under the contract does not exceed $300,000 for contracts lasting up to and including one year in duration, or does not exceed $1 million.

Kells have previously discussed this regime in greater detail, but in summary, if the above conditions are satisfied, remedies are available to a party where a contract term is held to be unfair. This can be as a result of a term causing significant imbalance in the parties’ rights and obligations or if it is not reasonably necessary to protect the interests of the party who it advantages, and it being detrimental to a party if it were to be applied or relied on.

Draft bill

Notably, the bill extends the regime by proposing a new definition of small business, so that the legislation applies to standard form contracts where one or more of the businesses involved:

is a business which employs less than 100 persons, which includes counting part-time employees as an appropriate fraction of a full-time equivalent, and only counting casual employees who work on a regular and systematic basis; and/or
has a turnover that is less than $10 million for its last income year that ended at or before the contract was made. This is determined by including the sum of the values of all supplies they made, except for those which are input taxed, not for consideration, not made in connection with an enterprise that the party carries on or not connected with the indirect tax zone.

The bill also intends to strengthen the remedies and enforcement of the unfair contract terms regime, including by:

streamlining and providing additional powers to courts to impose pecuniary penalties and to vary/not enforce a contract; and
creating a new rebuttable presumption that terms that have been found to be unfair that are subsequently included in relevant contracts in similar circumstances, are unfair.

So what does this mean?

While the legislation is still only in draft form and there will likely be some amendments after the public consultation, the bill proposes a range of benefits to small businesses.

This includes to those businesses who will receive increased protections, as well as the large number of businesses who will be afforded protections under the regime for the first time due to the expanded definition of small businesses.

This means that all businesses should watch this space. If there is anything our commercial team can assist your business with, please do not hesitate to contact us.

The insurer has made a Work Capacity Decision, what is it and can I do anything about it?

Thu, 02 Sep 2021 09:30:26 GMT

A “Work Capacity Decision” is a decision made by an insurer determining an injured person’s entitlement to weekly payments of compensation. A work capacity decision can be made by an insurer at any point throughout a claim.

A work capacity decision will determine:

1. The worker’s current work capacity.

2. What is suitable employment for the worker.

3. Pre-injury average weekly earnings or current weekly earnings.

4. Whether the worker can return to work without risk of further injury.

5. Whether the worker can earn some income from employment which will either end their weekly compensation or end payments altogether.

6. Any other decision that may impact entitlement to weekly compensation.

For example, the treating doctor might determine that the injured person can work for 3 hours per day for 4 days per week. Following this, the insurer might obtain a vocational assessment which determines whether the injured person can maintain other employment. The insurer will look at whether the worker is suited to ‘suitable employment’.

Suitable employment considers the worker’s incapacity, age, skills, education, or work experience. Importantly, it does not consider whether the employment is available in the employment market, the nature of the worker’s pre-injury employment or the worker’s place of residence.

If the vocational assessment determines that the worker can maintain other employment, then the worker’s weekly payments can reduce or cease.

If a worker refuses to attend an assessment, the insurer may suspend the worker’s right to weekly payments until the assessment has taken place.

There are avenues available to workers who have received a work capacity decision from an insurer. A worker may request an internal review of the decision. The insurer must respond to this request within 14 days. Importantly, however, whether a request for review will be successful will depend on what evidence the work capacity decision was based on.

Usually, to have grounds to dispute a work capacity decision, a worker would at least require supporting medical evidence that contests the insurer’s determination that the worker can work in suitable employment.

If you are not satisfied with the insurer’s decision after the review, an application can be lodged to have the dispute resolved by the Personal Injury Commission.

Should you be an injured worker who has received a Work Capacity Decision, we are able to review and provide legal advice free of charge. This is possible because our legal fees are covered by the Independent Review Office (IRO).

Do I need title insurance when buying a property?

Thu, 26 Aug 2021 09:33:42 GMT

Owning a home is usually the largest asset that anyone will own in their lifetime and protecting this asset is a must. We protect our homes against fire and damage etc by taking out building insurance and in fact it is a requirement of our housing loan that we keep the building insured.

Whilst the need for building insurance is obvious, there may be other risks that you were not aware of when you purchased your home and risks that could cause you loss. For example:

What if you discovered that the previous owner had enclosed a veranda or extended the house without approval and Council required you to demolish or upgrade the structure.
What if your neighbour discovered that the fence was on the wrong boundary and you had to relocate your driveway so the fence could be relocated.

All of these would all be expensive to rectify but you can insure your property against these types of risks too. This insurance is called “title insurance”.

Title insurance is usually taken out before settlement of your purchase and the premium payable is a one-off payment which provides you with protection for as long as you own the property.

Some other types of issues that title insurance protects you against are losses incurred due to:

planning and title defects, such as unregistered easements or zoning issues
unapproved or illegal structures and building works, for example an unapproved pergola or addition of a room.
unapproved building modifications, such as relocation of kitchen or bathroom.
boundary defects, such as a fence being on the incorrect boundary.
identity theft or fraud.

At Kells we discuss the above issues and title insurance with you at the time of purchasing your property.

Back to the future: electronic execution of company documents possible again

Tue, 24 Aug 2021 09:34:00 GMT

Introduction

On 10 August 2021, the Federal Government passed the Treasury Laws Amendment (2021 Measures No.1) Bill 2021 (the Bill), enabling the electronic execution and split execution of company documents under section 127 of the Corporations Act 2001 (Cth) (the Corporations Act). The Bill also permits the remote witnessing of the fixing of a company seal for the purposes of execution under section 127 of the Corporations Act.

The new rules came into effect on 13 August 2021 and will only apply temporarily, until they automatically expire on 1 April 2022.

The Amendments

The Bill makes several key amendments to Corporations Act.

Execution of company documents under section 127(1) of the Corporations Act may now be achieved electronically and will be taken to have been validly executed if:

li>a method is used to identify the person and indicate their intention to sign a copy of counterpart of the document;

the copy or counterpart of the document includes the entire contents of that document; and
the method used was either as reliable as appropriate for the purpose for which the document was generated or communicated or proven in fact to have indicated the person’s identity and intention to sign.

Execution of company documents under section 127(2) of the Corporations Act may now be achieved electronically, by:

using electronic means such as audio visual technology to observe the person fixing the seal to the document;
signing the document or a copy of the document (either physically or electronically); and
stating in the document that they have observed the fixing of the seal by using electronic means.

Split execution of company documents under section 127(1) is now also permitted with such documents taken to have been validly executed if the person signs a copy or counterpart of the document that is in a physical form and the copy or counterpart includes the entire contents of the document.

However, these amendments do not change the practical requirement for companies to retain a copy of executed documents (this is especially the case where split execution takes place, where a copy of each executed document should be retained).

Outlook

The new rules will undoubtedly be a welcomed development for businesses on national scale, but particularly for these operating in New South Wales, who are currently one week into a state-wide lockdown to slow to the spread of COVID-19.

If you have any questions or would like to discuss how the new rules for execution can be utilised by your business, contact our commercial law team who would be pleased to assist.

Workers compensation claim: your right to choose your doctor

Tue, 17 Aug 2021 10:52:40 GMT

Lodging a workers compensation claim can be a very complicated process for the ordinary person; endless paperwork and demands being made by the insurer, all whilst trying to seek treatment to improve your injury and manage your pain.

One issue that arises often is that insurers arrange for an injured worker to see a doctor for the purpose of issuing a Certificate of Capacity. This is despite the worker already having their own doctor who they trust and want to continue providing treatment.

So, can the insurer tell you which doctor to see for treatment?

The simple answer is ‘no’.

Under the law, the worker has a right to nominate a treating doctor (GP) for the purposes of managing their injury. This doctor is referred to as the “Nominated Treating Doctor”.

You also have the right to be referred to a treating specialist of your choosing, or as suggested by your Nominated Treating Doctor.

The insurer and/or your employer cannot , and should not, arrange for you to be seen by a doctor for the purpose of treatment. This includes for the purpose of arranging an Injury Manageme.nt Plan or to obtain a Certificate of Capacity.

However, the insurer can arrange for an Independent Medical Examination if they want to review the appropriateness of your treatment or work capacity. Failure to attend a legitimate or reasonably requested independent examination can result in the insurer ceasing your benefits.

If you are asked to see a doctor by the insurer or your employer, you should specifically ask for what purpose the assessment will be conducted. You should also ask that they confirm this in writing.

Approved Legal Service Providers in workers compensation cases, such as the lawyers at Kells, can provide you with advice free of charge. We can access funding from the Independent Review Office to ensure that your legal fees are covered, and you are not out-of-pocket for seeking help.

If you have concerns about requests being made by an insurer, we encourage you to contact us today. We provide a free consultation and our legal services are on given on a “no win, no fee” basis.

Return of commercial tenancy relief measures

Tue, 17 Aug 2021 09:34:27 GMT

The NSW Government will re-introduce the Mandatory Code of Conduct for Commercial Leasing to mandate rent relief for eligible tenants impacted by COVID-19

A Hardship Fund comprising $40million of grants will also be established to provide individual grants of up to $3,000 for certain commercial or retail landlords who provide rent waivers to their tenants of at least the value of the grant and any land tax relief that the landlord is eligible for under other measures.

The new enabling Regulation will remain in place until 13 January 2022 and landlords will be required to negotiate rent relief having regard to the Mandatory Code of Conduct. That Code requires landlords to provide rent relief in proportion to their tenant’s decline in turnover. At least 50% of the relief granted must be in the form of rental waivers, and the balance can be by way of a deferral of rent.

The Regulation applies to commercial and retail tenants with a turnover of up to $50 million who qualify for the NSW COVID-19 Microbusiness grant, the COVID-19 Business Grant or the JobSaver Payment. The previous iteration of the Regulation applied to commercial or retail tenants who were eligible for the now-closed JobKeeper grant.

Landlords affected will be prohibited from evicting or locking out a tenant for certain breaches of the lease unless they have first renegotiated rent and attempted mediation in accordance with the Coode of Conduct.

The office of the Small Business Commission has received additional funding to provide more staff to meet the demand for mediations and to assist retail and commercial tenants and landlords to negotiate new payment terms during the current outbreak of COVID-19.

Statutory minimum has permanently increased for statutory demands

Fri, 13 Aug 2021 09:35:30 GMT

As of 1 July 2021, the Federal Government announced the statutory minimum for statutory demands has doubled from $2,000 to $4,000.*

What is a statutory demand?

A statutory demand is a document served by a company under section 459E of the Corporations Act 2001 (Cth) where they demand payment of a debt or debts that are due and payable to it by a company debtor. There are certain legislative requirements which must be met to ensure a statutory demand is valid.

Why are these changes important?

Previously, a statutory demand could only be issued for $2,000 and the debtor company had 21 days to respond. In March 2020 there were temporary changes to the statutory minimum and statutory period (as a result of COVID-19) which have been discussed in our previous two articles .

However, from 1 July 2021 the amount of the debt, or if there is more than one debt, the total of the amounts of the debts, must exceed $4,000 but the minimum statutory period to respond to a statutory demand will remain at 21 days.

Whilst the statutory minimum has increased to $4,000 as of 1 July 2021, the temporary increase of $20,000 for the statutory minimum and 6 months for the statutory period for companies eligible for temporary restructuring relief will still apply up until 31 July 2021. This essentially means that for the period of 1 July 2021 to 31 July 2021 there will be two different statutory minimums and periods that could apply to statutory demands.

Have you been served with a statutory demand?

Failure to comply with a statutory demand, reach an agreement with the creditor about the debt or apply to have it set aside within the minimum statutory period can lead to the presumption that the company debtor is insolvent and allow the company who served the statutory demand to apply to wind up the company debtor. Given this minimum statutory period will likely be 21 days, if you have been served with a statutory demand then it is important to attend to this as soon as possible.

If you have received a statutory demand strict timeframes apply and you should seek advice immediately. Reach out and get in touch with one of our commercial lawyers who can talk you through the process and how we can assist you.

* This is a result of the Corporations Amendment (Statutory Minimum) Regulations 2021 (Cth).

Can your employer force you to have the COVID-19 vaccine?

Fri, 06 Aug 2021 09:36:05 GMT

As we are all being urged by The NSW Premier Gladys Berejiklian to have the COVID-19 injection, how far can an employer go in urging or requiring its staff members to be vaccinated?

SPC has recently announced that it will implement a mandatory requirement that its employees have the COVID-19 vaccine.

Can an employer lawfully require that all of their employees have the COVID-19 injection? The short answer is it depends.

An employer can require an employee to follow a lawful direction and there are limits as to what can legitimately represent a lawful direction. Clearly, an employer cannot normally direct employees to undergo medical treatment.

It would be unwise for any employer to provide health advice to their employees. A sensible policy would suggest employees should speak to their doctor about the risks and benefits of the COVID-19 vaccine (and which injection is recommended) and currently, many companies are encouraging employees to have the injection by providing additional leave.

A blanket policy requiring all employees to have a COVID-19 vaccine in some industries would be unlikely to be a lawful direction. In others it may be. One of the key factors is likely to be the type of work that you do and another factor will be public health requirements and directions.

The Federal Government has announced that COVID-19 vaccines will be mandatory for all residential aged care workers from 17 September 2021. For the aged care industry, a direction that staff members have a COVID-19 injection may be a lawful direction.

Particular care should be taken with any employees who have any prior health conditions which would prohibit or make the injection not recommended.

In other industries a policy requiring COVID-19 vaccination may not be lawful and this is likely to be the subject of consideration by the Fair Work Commission in the future.

The Commission has looked at mandatory vaccination policies in respect of influenza. Here is a link to a decision of Deputy President Lake handed down in April 2021. In that decision, the Deputy President found that if a worker has an influenza injection, this was a reasonable direction and that her dismissal for failing to do so was not unfair. Each case will be determined on its own facts, but this case does provides a guide to the attitude to be adopted by the Commission.

This is a rapidly evolving area of the law and specific advice should be sought. This short article is only of a general nature.

What is probate and why do you need it?

Tue, 03 Aug 2021 09:38:52 GMT

The passing of a loved one is a very emotional time. Often when someone passes away, their family are left behind with the stress and burden of trying to finalise their affairs. However, the complexity of the process involved to deal with one’s estate will a lot of the time largely depend on whether the individual had a Will or died intestate.

A grant of probate is a document that is proof that a Will is legally valid and that the executor appointed under the Will has the legal right to administer the estate.

Once a grant of probate is obtained, the executor then has the right to collect the assets of the estate (e.g. proceeds of bank accounts, proceeds of sale of shares, proceeds of investment accounts); arrange for the sale of real property held by the deceased; pay for any debts out of the assets of the estate and arrange for distribution of the assets of the estate in accordance with the terms of the Will.

Depending on the value of the assets and the type of asset involved, most banks, institutions, superannuation funds and life insurance companies will require a grant of probate. If there is real property, then the executor must have a grant of probate.

What is the process of applying for a grant of probate?

Prior to lodging an application for a grant of probate, the executor must publish a notice of intended application for probate on the Supreme Court of NSW online registry. The notice must be published at least 14 days before an application can be made.

The application to the Supreme Court of NSW consists of various documents in relation to the Will and the deceased. These documents also include a list of inventory of all of the assets of the deceased (i.e., you need to disclose all assets and the value of the assets of the deceased) and details of any liabilities of the deceased.

The executor is also required to lodge the original Will and a certified copy of the death certificate of the deceased and to provide details of all of the beneficiaries of the Will.

What happens if the deceased did not have a Will?

If the deceased did not have a Will, then they die intestate and an application for probate cannot be made.

Instead, the estate will be distributed to beneficiaries according to a predetermined formula under the rules of intestacy set out in the Succession Act (NSW) 2006. This may mean that your estate is left to individuals you did not intend to benefit. It will also mean, that in most cases, an application for a grant of letters of administration will need to be made with the Supreme Court of NSW to prove who is entitled to the estate.

This is a much more complex and costly process then applying for a grant of probate and can cause additional stress and delay for those left behind.

Lesson to be learned

What does “No Win, No Fee” mean?

Tue, 03 Aug 2021 09:36:31 GMT

There is often mass scepticism when people hear advertisements from lawyers saying they will work on your compensation case “No Win, No Fee”. Questions might arise such as “will they take my case if I may not win”, or “surely they will want some payment”.

If that is you, then all of your questions will be answered below.

Firstly, the point should be made that the “No Win, No Fee” arrangement is designed to benefit customers (or clients). Often there is an inability to access legal services due to high hourly rates and costs. With a “No Win, No Fee” agreement, that issue is removed; All people, regardless of their background or financial circumstances can seek legal advice.

That being the case, the question might be asked “will they look at my case if it is not clear cut or straight forward”. The answer will inevitably be yes. Whilst some cases may not have any prospects of succeeding (for example if someone causes their own injury), if there appears to be any possibility that a compensation claim is available, a lawyer will investigate.

In those cases, the lawyer will contact witnesses and try to gather documents relating to the cause of the injury. This can often be a long process, but it is a very important part of the claim. Once all information is gathered, generally the lawyer will be able to provide an opinion about whether the case should proceed (based on chances of success).

Ultimately, the choice of whether to proceed should be yours. Provided there are “reasonable prospects” the lawyer will agree to continue.

If your chances of succeeding are low, then the lawyer will likely advise you not proceed any further. This is not advice given for the lawyer’s benefit; rather it is advice given because if you lose your case then you could become responsible to pay the insurer’s legal costs. This is always a risk which the lawyer will consider, and they will provide the advice in your best interests.

If the case does not continue, then you will not be charged for the time, effort or expertise invested by the lawyer into your case. However, often the agreement will require you to pay for the disbursements or outlays (such as medical records or report). This is because the lawyer is out-of-pocket for those expenses, and whilst they will not charge you for their own time, it is unreasonable for them to be out of pocket.

If your case continues and you receive compensation, then the lawyer will receive payment for the time which they have invested into the case.

The full details of any “No Win, No Fee” agreement must be disclosed to you by law. The agreement will be clear and understandable to the average person. If you have any questions about the agreement, you can raise them with your lawyer before signing (or you can seek independent advice about it).

To summarise all of that information above, the “No Win, No Fee” agreement is not designed to trick you. The process will be transparent, and the lawyer will be open and honest with you about it.

If you are unsure about seeking advice, we are always willing to speak with you about the case and to give you an initial assessment as to whether investigations are worthwhile. That discussion will be free of cost and obligation.

Electronic strata meetings and voting permitted

Tue, 27 Jul 2021 10:52:33 GMT

In response to the current COVID-19 lockdown restrictions in NSW, temporary amendments have been made to the Strata Schemes Management Regulation 2016 (NSW). As of 21 July 2021, strata committees and owners corporations are permitted to meet and vote electronically (for example, email, teleconference or video conferences).

Previously, strata committees and owners corporations could only meet electronically if they had adopted a resolution to allow this. The amendments permit this to occur regardless.

These amendments will remain in place until 20 January 2022. However, the NSW government may elect to repeal these amendments before this date. Despite these new amendments, meetings may still be held in person provided that public health advice is followed.

If you have any questions about conducting strata meetings electronically, or require any advice reach out and get in touch on 135 355.

COVID-19 restrictions: Public Health Orders

Tue, 27 Jul 2021 09:36:46 GMT

Where a situation arises that is likely to be a risk to public health, the Health Minister is given substantial powers to deal with that risk.

This includes making public health orders, which may include directions the Health Minister considers necessary to address the risk, or its possible consequences.

Within the recent public health orders, the Minister provides “grounds for concluding that there is a risk to public health”. [1] Those are, “_COVID-19 is potentially fatal and highly contagious_ ” and there is an “ongoing _risk of continuing introduction or transmission of the virus_”.

As such, the Minister is allowed to make orders necessary to deal with the risk of COVID-19.

And, while those orders are not (strictly speaking) “laws”, it is an offence not to comply with requirements in a public health order. [2]

Enforcing a PHO

Police officers have been given a wide range of powers to enforce public health orders.

Under the public health order, a police officer can request that you provide evidence of your name and place of residence, to check whether you are complying. [3]

If an officer is satisfied you are breaching the public health order, they are able to issue you with a penalty infringement notice (and impose fine). [4]

While an arrest is generally an option of last resort, and we would hope an officer would exercise discretion here, a person _may_ be arrested for failing to comply with a COVID-19 related public health order. [5]

Your Rights

****

In most situations, you are not required to provide any further information to a police officer other than your name and evidence of your place of residence. As with any criminal matter, and despite what a police officer may suggest to you, you are not required to answer every question a police officer may put to you.

And, if an officer believes you have breached a public health order and issues an infringement notice, you retain the right to dispute that you actually committed an offence.

You may wish to exercise that right, and elect to have the matter dealt with before a court, in which case the police will need to establish that the infringement occurred. Alternatively, the circumstances of the scenario may entitle you to leniency and despite the breach being established the court may extend leniency and order no penalty applies.

Need advice or representation? Reach out and get in touch with our experienced criminal lawyers who operate 24/7 and provide a FREE first consultation.

[1] Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 cl 7.

[2] Public Health Act 2010 s 70.

[3] See, eg, Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Order 2021 cl 22AA.

[4] Public Health Act 2010 s 70.

[5] Public Health Act 2010 s 71A.

This article was co-authored by Law Cadet Ben Goodhew.

There’s an expiry date on my family loan

Fri, 23 Jul 2021 09:40:09 GMT

Loans between family members, particularly between parents and children, are no new concept. Depending on the circumstances these loans can be of substantial value, such as when assisting a child purchase their first home.

Unsurprisingly, these loans also tend to be minimally documented, lacking clear terms as to repayment and/or generally repayable ‘on demand’. Some creditors are comfortable with this, given the close relationship and trust between family members. Despite this, there is one critical that factor tends to be overlooked – time.

Limitations Act 1969 (NSW)

In New South Wales, the Limitations Act 1969 (NSW) (the Act ) prescribes a general limitation period of six years from the time that the cause of action accrues to recover a debt arising under a contract [1] and twelve years from the time that the cause of action accrues to recover a debt arising under a deed. [2] Put another way, depending on the level of documentation, a creditor has either six years or twelve from the time that the cause of action accrues to commence proceedings seeking recovery of the debt.

A key element to these limitation periods is the determination of when the cause of action ‘accrues’. In contract generally, the time that the cause of action accrues is when one party breaches the contract. For example, on a valid and enforceable loan contract with bank, this could be when a party defaults on the loan (i.e., fails to make a repayment). On demand loans are different, with the time that the cause of action accrues being the time that the funds are advanced.

This timeframe may seem irrelevant to creditors such as parents, who would never consider commencing proceedings to enforce a debt against their child, but instead would prefer to allow their child to repay the debt over a further extended period. However, the Act further provides that the right to recover a debt is ‘extinguished’ after the relevant action period. [3] In effect, this means that the debt is considered to longer exist, which can have a critical impact on the rights of both the creditor and the debtor.

Can you avoid these limitation periods?

Despite the strict timeframes prescribed by the Act, there are options available to safeguard your position.

A creditor who has already advanced funds may seek ‘confirmation’ of the debt, commonly either payment of principal, payment of interest or written acknowledgment of the debt. If the parties decide to confirm the debt in writing only, there are certain factors which must be met, such as the confirmation must be in writing, signed by the debtor, recognise the presence of the debt, and admit that the debt remains outstanding, all within the relevant limitation period. [4]

Importantly, if valid ‘confirmation’ has been provided, the relevant limitation period will start running again from the time of that confirmation.

Alternatively, a creditor who is yet to advance funds may consider consulting a solicitor to prepare a formal loan deed, which includes among other things, a provision for demand. The benefit being that the limitation period is extended to 12 years and the debt is repayable after a demand is made, ensuring no time is to run until a demand is made.

Conclusion

Before advancing funds, all creditors (particularly family members), should be aware of the applicable limitation periods for enforcing debts in New South Wales.

If you have a loan with a family member that you are unsure you can enforce or would like assistance in enforcing that debt, contact our commercial law team who can advise you of your options.

[1] Section 14 of the Limitations Act 1969 (NSW).

[2] Section 16 of the Limitations Act 1969 (NSW).

[3] Section 63 of the Limitations Act 1969 (NSW).

[4] Section 54 of the Limitations Act 1969 (NSW).

Kells welcomes new personal injury lawyer

Fri, 23 Jul 2021 09:39:23 GMT

Kells is pleased to announce the appointment of James Watt as an associate to the firm’s compensation practice.

James joins the firm’s Wollongong office and brings immeasurable experience in all areas of compensation and has appeared in District Court and Supreme Court matters, as well as cases before the Dust Diseases Tribunal and Personal Injury Commission.

Commenting on his new appointment, Mr Watt said “I am delighted to be joining Kells and excited to be part of the team going forward.”

“Having known the firm, I have always respected and admired Kells for their commitment to their clients and teamwork.”

Speaking of his commencement, Kells Managing Partner Paul Magagnino said James is an experienced and talented compensation lawyer who will be a real asset to the firm.

“We are very pleased with James’ commitment to care for clients who have been wrongfully or accidentally injured. Our clients will benefit from both James’ experience and a drive for results.” said Mr Magagnino.

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Charged with drink driving? Can your employer sack you?

Thu, 22 Jul 2021 10:52:24 GMT

The short answer is it depends. If you have are convicted of high range PCA,(or other criminal offences) sometimes an employer can lawfully terminate your employment. In others they can’t .

On 1 July 2021, a recent court case dealt with this issue. A long-term employee of Sydney Trains was charged with high range PCA. He was driving his vehicle whilst more than four times over the legal limit. Ultimately, the Fair Work Commission found that termination of his employment was not justified . He was reinstated into his position.

Some of the factors considered by the Commission were:

whether the offence was work related
whether any policies were breached
whether there is a direct role between his employment and the offence
whether the criminal conduct involves out of hours conduct
the nature of the applicant’s employment
whether any subsequent loss of license would mean that he could no longer perform the inherent requirements of the job (such as taxi driving)any potential reputational damage to the employer
His conduct in the investigation
His length of service and any previous discipline or other issues.

The above list is not exhaustive If you are charged with a high range drink driving offence (or other criminal offences), it is best to obtain legal advice quickly. At Kells, our employment lawyers are able to provide you with the correct advice and the best outcome if you find yourself in this situation.

Temporary COVID-19 relief packages for commercial and residential tenants

Tue, 20 Jul 2021 09:40:43 GMT

In light of the recent lockdown of Greater Sydney, the NSW and Commonwealth Government have announced temporary relief packages for retail, commercial and residential tenants.

Commercial tenants

The Retail and Other Commercial Leases (COVID-19) Regulation 2021 was introduced on 13 July 2021.

Between now and 20 August 2021, if an ‘impacted lessee’ (see below) breaches the lease by:

failing to pay rent or outgoings; or
failing to be open for the specified business hours;

then enforcement action may not be taken by the landlord without first referring the matter to mediation. If mediation fails to resolve the issue, the landlord may take action.

An ‘impacted lessee’ is defined as a tenant who:

Qualifies for any of the following grants:
Micro-business COVID-19 Support Grant;
COVID-19 NSW Business Grant; or
Job Saver Grant; and
had a turnover less than $50 million in the 2020–2021 financial year.

To prove that a tenant is an ‘impacted lessee’, the tenant must give a statement and provide evidence that this is the case.

Residential tenants

The Residential Tenancies (COVID-19 Pandemic Emergency Response) Amendment Regulation 2021 provides for substantial rent reductions and eviction protection for certain residential tenants.

From now until 11 September 2021, a residential tenant is entitled to a reduction of their rent if they are an ‘impacted tenant’. An ‘impacted tenant’ is a rent paying member of the household who:

lost employment or income as a result of the impact of the COVID-19 pandemic;
had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic; or
had to stop working, or materially reduce the member’s work hours, because of:

the member’s illness with COVID-19;
another member of the household’s illness with COVID-19; or
the member’s carer responsibilities for a family member ill with COVID-19; and

the weekly household income for the household has been reduced by at least 25% compared to the average of the weekly household income for the 4 weeks immediately preceding 26 June 2021.

A residential tenant must provide notice to the landlord that they are an impacted tenant.

Need assistance?

If you have a question about eligibility, have been evicted from your property or wish to negotiate a rental reduction with your landlord or agent, call us for advice or if you have any questions on 135 355.

Is stamp duty a thing of the past?

Fri, 16 Jul 2021 10:52:08 GMT

As part of the 2020-21 Budget, the NSW government has announced a proposal to amend the tax that applies to the purchase of properties.

The new regime, if introduced, would allow a property purchaser the ability to choose from the following two options:

Pay a one-off lump sum stamp duty amount (the current system)
Pay a smaller annual property tax.

This proposal has been introduced as a result of criticism in recent time of the current stamp duty system which can act as a barrier to home ownership given the considerably large upfront cost.

Example of the proposed system

A purchaser of a residential property for $800,00.00 would be able to elect from the following two options:

One-off stamp duty payment of $31,227.00 (together with any on-going land tax if applicable); or
Annual property tax: (a) If investor – $1,500 + 1.1 per cent of the unimproved land value ($380,000.00) = $5,680.00 per annum; or (b) If owner occupied – $400.00 + 0.3% of the unimproved land value ($380,000.00) = $1,540.00 per annum.

Deciding on an option

Determining which option is most suitable for the particular purchaser will involve careful consideration of the buyer’s circumstances with a particular focus on the future intention of the property including length of ownership.

It should also be noted that should a purchaser elect to pay the annual property tax for a property, each subsequent owner of the property in question will be required to continue to pay the property tax. Subsequent owners will not be able to elect to pay stamp duty.

Benefits

There will be a considerable benefit of the new system as it is likely to open up the market to buyers who can avoid a larger lump sum payment, which allows income to remain in households and generate economic growth. This will in turn improve the turnover of properties which will result in the creation of further jobs in the property industry.

The NSW government is currently consulting on the proposed reforms which is due to end on 30 July 2021.

Put & Call Option Deeds – Vendor’s Representatives Should Be Careful to Avoid This Mistake

Fri, 16 Jul 2021 09:41:32 GMT

Purchasers looking to develop residential property sites are increasingly entering into put and call option deeds in lieu of conventional sale contracts. Entering an option deed is becoming a more popular option for purchasers due to increased flexibility regarding the time at which land transfer duty (also known as ‘stamp duty’) becomes payable.

Put and call option deeds give rise to contractual rights and obligations between the parties who have entered the agreement. In such agreements, the call option confers a future right upon the buyer to oblige the vendor to sell the land whereas the put option confers a future right upon the vendor to oblige the purchaser to purchase the land.

In scenarios involving the sale of land, the agreement usually attaches the sale contract and results in the same outcome as if traditional sale of land contracts had been executed. Stamp duty, however, is not payable until the exchange of contracts. Therefore, entering the option agreement provides certainty that the property will be sold during a specified timeframe while allowing the transfer duty to be deferred until the option is exercised.

A recent Supreme Court decision (BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265) has provided a timely reminder for vendors that put and call option deeds are not the same as sale contracts and careful attention should be given to the terms of the deed with due consideration made with respect to the current legislative framework.

The case in question involved the sale of a number of properties where the purchasers failed to exercise their call options. In absence of the call options being exercised, the vendor exercised the put option to compel the purchasers to purchase the properties. By exercising the put option, the vendor sought to force the sale by binding the purchasers to the sale contracts that had been attached to the option deed.

The vendor was precluded from forcing the sale as the purchasers had provided notice of their intention to rescind the sale contracts by exercising their statutory cooling off rights. Not only were the purchasers seeking to rescind the contracts, but they also sought a refund of the call option fee which is the equivalent of the deposit under a usual sale of land contract. A dispute between the parties arose as the vendor challenged the purchasers’ rights to validly rescind the contracts.

The Court found in favour of the purchasers, providing that the purchasers were entitled to validly rescind the sale of land contracts and ordering the vendor to refund each purchasers’ call option fees (excluding 0.25% of the purchase price which was payable to the vendor).

It is currently standard practice for vendor’s representatives to supply purchasers with section 66ZF certificates to waive purchasers cooling off rights in the event that call options are exercised. Following this decision however, it may also be wise for solicitors acting for vendors to require purchasers to supply a section 66W certificate on or before the date the parties enter into the call option deed.

Requiring a section 66W certificate will ensure that purchasers are precluded from exercising their right to rescind under the statutory cooling off periods in the event that put options are exercised.

Who is a dependent for the purposes of your superannuation death benefit?

Thu, 01 Jul 2021 09:42:24 GMT

A previous article published ‘ What happens to your superannuation when you die ’ provided a general understanding of the distribution of your superannuation when you die. As a refresher, you have the ability to nominate a beneficiary on your superannuation policy, commonly called a ‘Death Benefit Nomination’, which ensures that your super death benefit will be paid out to your nominated beneficiary once you die.

If you fail to nominate a beneficiary, then the Trustee of your superfund will pay your death benefit to your estate or they may utilise their discretion to determine which eligible beneficiaries the money should be paid to.

It is important to note that the Trustee can override a Death Benefit Nomination if it does not comply with the Superannuation Industry (Supervision) Act . A recent case concerning Magistrate Rodney Higgins and his relationship with his court clerk Ashleigh Petrie who was 45 years his junior, demonstrated the ability to overturn a valid Binding Death Benefit Nomination when it does not comply with superannuation law .

Ms Petrie was hit by a car on Monday 28 October 2019, just weeks after the announcement of her relationship with Mr Higgins went public in the newspapers. It was during her seven-month relationship with the Magistrate that she completed a Death Benefit Nominated which nominated her mother as the beneficiary of her superannuation and life insurance held with her superfund, Rest Super.

Despite there being a valid Binding Death Benefit Nomination in place, Mr Higgins challenged the nomination on the basis that he was Ms Petrie’s de facto partner, which meant he would be a dependent and entitled to the death benefit for the purposes of superannuation law. Under the Act, the beneficiary you nominate must be a dependent, such as your spouse, child or children over the age of 18 years or an individual with an interdependency relationship on the deceased.

Mr Higgins and Ms Petrie had only been together for approximately seven months and lived together for four months prior to her death. They became engaged in September 2019. The Act does not explain what constitutes an interdependency relationship for the purposes of superannuation death benefits, however under Australian law, generally a couple is deemed to be in a de facto relationship when two people live together on a genuine domestic basis and for a period of approximately 2 years.

As a result of their brief engagement, Mr Higgins was awarded the $180,000 death benefit payout. Ms Petrie’s mother is appealing the decision.

This case demonstrates the importance of ensuring, firstly, that you have a death benefit nomination in place with your superfund, but also the importance of ensuring that the nomination you have made is valid and complies with the relevant legislation.

What is an independent children’s lawyer

Thu, 01 Jul 2021 09:41:09 GMT

You may have heard of the terminology “Independent Children’s Lawyer” (ICL) but what does it mean? What is the role of an ICL in a parenting case?

In family court proceedings about children, at any point in a parenting case any Judicial Officer can make an order appointing an Independent Children’s Lawyer under Section 68L of the Family Law Act. The appointment of such a lawyer is to represent a child’s interests in the case.

It is important to understand that it is the child’s “interests” that is the focus.

This means the ICL does more than act on the instructions of a child and ascertain the wishes of a child, although that is an important part of the role as well.

It is the ICL’s role to form an independent view, based upon the evidence that is available in the case, of what is in the best interests of the child. The ICL is not the child’s legal representative.

The ICL is required to act impartially and to ensure that any views that are expressed by a child are fully put before the court.

It is the role of the ICL to consider any reports or documents that may assist the court in determining what arrangements are in the child’s best interests.

It is also important to keep in mind that the ICL is aware of the impact that the court case may be having on a child and it is their role to attempt to minimise the trauma to the child that is associated with court proceedings.

The ICL is also required to facilitate agreed resolutions of issues that are in dispute between the parties in the parenting case provided those agreements are promoting the best interests of the child.

The Family Law Act also protects communications that may be made between the child and the ICL. The ICL is not required to disclose any information that the child communicates to the ICL but rather the ICL may disclose to the Court any information that has been communicated by the child that the ICL considers to be in the best interests of the child to disclose.

The role of the ICL is not easy. Any parenting dispute by its very nature involves the child’s parents being at loggerheads and sometimes other persons that are important in the child’s life such as grandparents or other extended family members who may become involved in the dispute. These are generally people in the child’s life that have a significant impact in their role and welfare.

The ICL may at times adopt positions that are contrary to what one or even both of the parties want to happen in the case.

Ultimately it is the role of the Independent Children’s Lawyer to represent what is in the best interests of the child and to assist the court in determining issues in an impartial way and assist the court in promoting and making orders that best promote the child’s best interests.

If you have any question about family law and/or parenting cases, please contact our nearest office.

How to buy your first property with confidence

Tue, 22 Jun 2021 09:45:34 GMT

Buying your first home can be a very emotional and confusing process. Your aim is to find your dream home at a price you can afford and it can be challenging to make decisions based on logic rather than emotion. Research is the key to finding the right home, the right loan and the right legal representative to guide you through the home buying process.

Home – What do we buy? Where do we buy? How much should we spend? Buying your home is likely to be the largest purchase you’ll ever make so it’s important to make the right decision. Ensure you are familiar with current market trends and make certain the quality of the property is worth the price you are prepared to pay. It’s “BUYER BEWARE” so consider the need for pre-purchase property inspections, such as building inspections, pest inspections or a strata title report.
Finance – Work out your budget and decide how much money you can afford to borrow. Talk to a mortgage broker or a lender to obtain pre-approval of your loan. Don’t forget to set a limit on how much you can afford to spend on your new home and stick to it.
Government financial benefits – Do your homework to see if you are entitled to apply for various financial benefits offered for first home buyers. You could be eligible to receive an exemption or concession of stamp duty or the first home owners grant for new homes or you may be eligible to apply for the First Home Loan Deposit Scheme.
Lawyer/Conveyancer – It’s important to seek legal advice on a contract for sale as the purchase of a property can be a rather complicated and overwhelming process. It’s vital to have professional and an experienced friendly conveyancer on your side.

At Kells, we provide a premium conveyancing service at a fixed price and are happy to answer any of your general or specific questions.

Sports stars and drug cheats – changes to World Anti-Doping Code for Substances of Abuse

Tue, 22 Jun 2021 09:41:52 GMT

Professional athletes who violate the World Anti-Doping Code (“ Code ” ) in relation to substances of abuse now face bans of as little as one month under new changes to the Code. From 1 January 2021, athletes who test positive to substances of abuse face a maximum of ban of three months. The sentence has previously attracted a minimum four-year ban.

Substances of Abuse are substances that are identified as such because they are frequently abused in society outside the context of sport. [1]

The following are designated substances of abuse:

cocaine
diamorphine (heroin)
methylenedioxymethamphetamine (MDMA/”ecstasy”)
tetrahydrocannabinol (THC).

An athlete must prove that the substance was taken out of competition and that its use was unrelated to enhancing sport performance. [2] Once successfully established, a ban of three months will be handed down. Further, athletes who undertake a rehabilitation programme are eligible for their suspension to be reduced from three months to one month. Recently Panthers star, Brent Naden was banned after testing positive to cocaine. Under the changes to the code, he received a one-month ban.

One important point to highlight at the outset is that the new regime applies retroactively. This means that athletes who are currently serving a suspension for a Substance of Abuse can seek to reduce its term, potentially allowing them to compete again from 1 January 2021 when the new code enters into force.

[1] World Anti-Doping Code 2021 Article 4.2.3

[2] World Anti-Doping Code 2021 Article 10.2.4.1

Buying a business? Here are 3 top tips if you are taking over existing premises

Thu, 17 Jun 2021 09:45:56 GMT

Buying a business is a major commitment, in terms of the cost, time and effort involved. The premises the business operates from is a crucial part of the business, so it is important to get this aspect of your purchase right.

Step 1 – Confirm there is an existing lease in place

Firstly, you should make sure that there is an existing lease in place. If the lease is being assigned on completion, this should be included as for a condition precedent to the sale of business. If the lease is being assigned on completion it should be included as an annexure to the contract so that you are able to review it prior to signing and exchanging the contract.

As well as confirming the lease is valid, you also want to confirm whether it is registered. In New South Wales, for leases over 3 years (including any option terms) the lease needs to be registered in order for you to have a legal estate in the property. Therefore, you will have more security if you are taking over a registered lease.

Step 2 – Review the terms of the lease

Once you have confirmed that there is a valid lease in place, the terms of the lease need to be reviewed and considered.

Some key terms to consider are:

Rent & Outgoings – it is important to know how much you are going to have to pay each month, so you can factor this in to considering whether the business purchase is a good investment
Term of the lease, including option terms & whether there is a demolition clause – you don’t want to put all the time and effort into purchasing the business only to find out you will be required to vacate the premises soon after taking over
Make good provisions – as you will likely be inheriting any improvements made by the existing tenant (seller of the business), you want to confirm your obligations at the end of the lease.

Step 3 – Ensure there is a valid assignment of the lease

Assigning a lease means you become the new tenant under the lease and are liable for the obligations under the lease. Unless a variation of the lease is agreed, your lease will be on the same terms as the existing tenant’s lease.

While each lease will set out different requirements and processes for the assignment of the lease, generally the landlord’s consent will be required. Before they consent, it is likely the landlord will request financial information from you, and evidence that you will continue the business in the same way. This is common as the landlord will try and receive some assurance that you are going to continue the business successfully and are not going to default under the lease. Once the landlord’s consent is obtained, the parties usually enter into a deed of assignment of lease governing the terms of the assignment. It is important to seek legal advice on the deed of assignment of lease before signing to ensure your interests are protected.

If you have any questions in relation to purchasing a business, or assigning a lease, please contact our office.

Considering a purchase or lease subject to a development consent? Some timely matters to consider.

Tue, 08 Jun 2021 09:47:20 GMT

In June 2020 the Federal Government announced a $110 billion 10 year infrastructure plan designed to build transport infrastructure to meet the needs of a growing population and to support the recovery of the economy and employment numbers in the fallout from the COVID-19 pandemic.

Targeted projects range from largescale Federal infrastructure down to local roads and community facilities operated by local councils.

Many of these projects will unlock development opportunities that become feasible with the construction of new or improved transport links nearby. In addition, such projects bring about land zooming amendments which open up the door to the commencement of new industries and businesses that could not previously be undertaken due to zoning constraints.

It is likely that landowners will take the opportunity to sell land which increases in value with any infrastructure or zoning changes nearby. Business owners looking to buy or lease such land will also come along in search of new opportunities to start or grow their businesses.

This will lead to an increasing number of purchases and leases which are conditional upon the purchaser or lessee obtaining development consent from the relevant consent authority to commence their businesses. Usually this is undertaken through a conditional contract to purchase or an agreement for lease.

When negotiating such contracts or leases where completion is subject to the granting of development consent to the purchaser or lessee on terms amenable to their businesses, a number of matters ought to be borne in mind at the negotiation phase.

Firstly, consideration must be given to the timeframe in which development consent is to be received, so that the parties are not bound to a contract or lease for such a long period that the business opportunity is lost, or where it becomes clear that consent will never be obtained, or at least issued on acceptable terms.

Secondly, the terms of the consent to be sought should be spelled out in the contract or agreement for lease, so that the vendor or landlord is aware of all of the purchaser/lessee’s needs. This will assist if consent is issued on unacceptable terms and the purchaser/lessee seeks to avoid any further obligations under the agreement.

Thirdly, provisions should be included in the contract or lease dealing with any potential appeal against the refusal of consent by the relevant consent authority to the NSW Land and Environment Court. Obviously, the need to invoke that process will impact on any timing provisions dealing with the issuing of consent.

With the large swathe of changes and in both the property and legal sectors in recent times, and given the considerable overlap between those two sectors, landowners and business operators ought to seek experienced legal advisors to avoid any exposure to pitfalls or missed opportunities which abound in today’s times.

Establishing a charity or not-for-profit organisation: what structure should you choose?

Tue, 08 Jun 2021 09:47:01 GMT

If you are looking to establish a charity or not-for-profit organisation you will need to obtain charitable status. To be eligible for charitable status your entity must (along with other requirements):

be not for profit (meaning members have no entitlement to any profits);
have a charitable purpose for the public benefit;
not be an individual, political party or a government entity; and
comply with the ACNC Governance and External Conduct Standards.

Before applying for charitable status, you will need to establish your entity. There are various structures you can use, including:

Unincorporated association
Incorporated association; or
Company limited by guarantee.

Unincorporated association

No registration is required for an unincorporated association. Generally, this is a group of people who agree to act together as an organisation and form an association.

An unincorporated association is not recognised as a separate legal entity to the members associated with it. This means that any contracts will be made with the members, and liability will be incurred by the members.

Incorporated association (as per NSW law)

An incorporated association is an entity that in NSW is established under the provisions of the Associations Incorporation Act 2009 (NSW) and must have at least 5 members.

The main benefit of establishing an incorporated association is that it creates a separate legal entity, meaning that it provides protection to its members in legal transactions. It is also able to enter into contracts in its own name, open bank accounts and sue or be sued. However, the restriction with this option is that your activities will need to be limited to the NSW as this is where the entity will be registered as an incorporated association.

Company limited by guarantee

A company limited by guarantee requires at least 3 directors (1 of whom must reside in Australia), 1 company secretary along with at least 1 member. Unlike a ‘Pty Ltd’ company, a company limited by guarantee does not have shareholders and the members cannot receive a benefit from the company (other than arms’ length service contracts).

Companies limited by guarantee are formed on the principle that the liability of members is limited to the amount they agree to contribute if the company is wound up. This amount is typically nominal and set out in the company’s constitution.

Please contact our office to discuss which structure is suitable to your circumstances, whether your proposed entity would be eligible for charitable status and the process for establishing your charity or not-for-profit organisation.

Do you really need a Will when you are young?

Thu, 27 May 2021 09:48:24 GMT

Most people may think that there is no need to have a Will prepared when you are young and that you only need to worry about a Will when you are older in age or have children or a spouse. This is not true.

Everyone over the age of 18 years should have a Will in place.

A Will sets out who you would like to leave your assets to in the event of your death.

If you fail to leave a Will, your estate will be distributed according to a predetermined formula under the rules of intestacy. This may mean that your estate is left to individuals you did not intend to benefit. This may also mean that the estate may pass to those individuals you would have included in your Will, however they will be left with the stress and delay of having to prove their entitlement to the Supreme Court of NSW.

If there is real property involved, the persons entitled will need to apply for a grant of letters of administration from the Supreme Court of NSW. This can be a very costly and stressful process for those involved and can take a lot longer to process than an application for a grant of probate (i.e. where there is a valid Will in place). To avoid unnecessary stress and delay for your loved ones during what is already a very emotional time, it is best to have a Will.

Hypothetical scenario

Bob Smith has no children. He was previously married to Jane Smith but they divorced two years ago. Bob has not had any other relationship since he divorced Jane. Bob owns a property and has $200,000 in his bank account. Bob’s father passed away three years ago and Bob’s mother is alive. Bob dies tragically. Bob does not have a Will. Under the rules of intestacy, the estate will pass to Bob’s parents. As his father has predeceased Bob, the whole estate will pass to his mother. Bob’s mother is elderly and in a nursing home. Bob’s mother will need to make an application for a grant of letters of administration to prove that she is entitled to the estate.

This application will involve Bob’s mother providing the following to the Court:

evidence of searches that have been made for a Will
evidence that Bob does not have any children
providing details of the marriage and divorce to Jane
providing a death certificate for Bob’s father
providing a birth certificate for Bob
providing evidence that Bob was not in a de facto relationship at the time of his passing (including accounting for a two year period prior to his death).

In contrast if Bob had a Will in place, the executor of the Will would not be required to provide the above evidence. The Will would clearly set out who was entitled.

Lesson to be learned

If you fail to have a current Will in place you risk the assets of your estate being distributed according to a predetermined formula under the Succession Act 2006 (NSW).

While the outcome may be the people you would have intended to benefit, the process and time it takes to deal with the estate can be much more complex, stressful and costly for those left behind to deal with your estate.

Rider wins landmark case against Deliveroo

Thu, 27 May 2021 09:48:05 GMT

On 18 May 2021, the Fair Work Commission (FWC) made a ground-breaking decision in the case of an independent contractor driver for Deliveroo. The FWC found the Deliveroo driver was an employee and therefore was entitled to protection from unfair dismissal and other employment entitlements.

Why is the determination of employee important?

The classification of whether a worker is an employee or independent contractor brings substantial consequences. These consequences bridge into employment law, tort law and taxation law. Employees enjoy more rights and entitlements. For instance, they are protected from unfair dismissal, whereas independent contractors are not.

The current test used to determine whether an employee/employer relationship exists is the multifactorial test. The test addresses the flexibility of modern working arrangements as it seeks to balance a range of indicia by taking a holistic approach to a work relationship. What is most important, however, is that the indicia can be moulded to individual facts. As you will read, the FWC reached its landmark decision by application of this test to modern work arrangements.

Employee or independent contractor?

Commissioner Cambridge applied the multifactorial test to come to the determination of an employment relationship. Of particular importance, he considered the following:

The level of control Deliveroo possessed strongly supported the existence of employment
Mr Franco was required to present as a Deliveroo employee by wearing their branded clothing and equipment displaying their logo
Mr Franco was not provided any leave entitlements
Mr Franco was paid an amount per delivery
The program directed Mr Franco to undertake work at particular times and regularly make himself available for work
Deliveroo expressly permitted Mr Franco to work for any of its competitors.

Consideration of these factors led Commissioner Cambridge to make the determination that Mr Franco was a Deliveroo employee.

As Mr Franco was characterised as an employee of Deliveroo, Commissioner Cambridge could then consider whether he was unfairly dismissed, that is, whether the dismissal was harsh, unjust or unreasonable. It was decided that there was no valid reason for the dismissal and that Deliveroo’s decision to inform Mr Franco that he was dismissed via email was a failure to afford any procedural fairness.

The remedy

Commissioner Cambridge ordered that My Franco be reinstated by Deliveroo, his lost earnings be paid and his continuity of service be recognised.

What does this mean, moving forward?

Deliveroo has made known their intention to appeal Commissioner Cambridge’s decision to the Full Bench of the FWC.

Should Deliveroo’s appeal be unsuccessful, this decision will have far-reaching impacts on the current gig economy for Australia.

The determination that Mr Franco is an employee of Deliveroo will open the floodgates for further employment claims. Workers for other companies akin to the Deliveroo model may be entitled to protection from unfair dismissal under the _Fair Work Act 2009_ (Cth), as well as entitle them to minimum wage and other entitlements that employees have available to them.

The power of dispute resolution clauses

Thu, 27 May 2021 09:47:43 GMT

In any contractual arrangement there is the possibility that one party will fail to perform an obligation causing a dispute between the parties to arise. It is common for contracts such as these to include a dispute resolution mechanism where, at the time of entering into the contract, the parties agree to follow a certain procedure when a dispute occurs. This may include the dispute being referred to mediation, arbitration or expert determination. Some dispute resolution mechanisms even go as far as prescribing several of these steps.

For example, building and construction contracts frequently contain a dispute resolution mechanism that will stipulate a procedure where parties refer the dispute to an expert for determination. The expert’s decision is generally binding, and the parties will have limited avenues to dispute the determination one it has been made by the expert.

Typically labelled as ‘dispute resolution’ or ‘expert determination’ clauses, these contractual provisions assist parties in avoiding the costs and disruption of litigation and provide them with a greater level of flexibility and control over the process. They are important clauses that have a plethora of individual and public policy benefits, however, when used incorrectly can be detrimental.

At the time of entering into the agreement, it is not unusual for parties to be more concerned with the commercial side of the agreement and the dispute resolution clauses can be overlooked, or not properly understood. In some circumstances, dispute resolution clauses may be unfavourable, or even detrimental, to one or more of the parties and that unfavourability is not identified until it is too late.

Importantly, courts regularly order the stay of proceedings in circumstances where they have been commenced before the parties have adhered to a valid dispute resolution mechanism. It is well established that “parties should be held to their bargain” in relation to any dispute resolution mechanism that they may have agreed to. [1] The Courts will take a liberal approach to interpreting such clauses, meaning that they are inclined to give effect to a well-drafted dispute mechanism and order that the parties are to satisfy the dispute procedure before allowing the usual course of litigation to unfold. [2]

Accordingly, it is important that when drafting contracts, parties are aware of the effect of the proposed dispute resolution clause and what it may realistically entail if a dispute were to arise. Some factors for parties to consider is what the nature of the contract is, the relative bargaining power of the parties, how widely the clause may be interpreted, who is in control of the information and whether a court may be better suited to determining particular matters that are likely to arise.

This article was co-authored by Law Cadet Nikala Speed.

[1] Zeke Services Pty Ltd v Traffic Technologies Ltd [2005] 2 Qd R 563 at [21]

[2] Lepcanfin Pty Ltd v Lepfin Pty Ltd [2020] NSWCA 155

Workers Compensation entitlements for death benefits: What about death by suicide?

Thu, 20 May 2021 09:48:42 GMT

The New South Wales Workers Compensation Act provides for payments in circumstances where a worker’s death arises from their employment.

The principal lump sum is an amount currently more than $834,000. In addition, the cost of funeral expenses can be recovered (subject to a cap) and some children are also entitled to receive weekly payments.

In most cases, a workplace death is easy to define whilst some cases are more complicated.

Many workers who have sustained physical or other injuries in the course of their employment develop depression or other psychiatric conditions. Sadly, in some circumstances, these conditions have caused or contributed to a worker dying by suicide and it raises the question… are the death benefits payable in those circumstances?

The courts have considered issues involving suicide over many years. Traditionally, courts approached matters on the basis that suicide may break the chain of causation. This has been qualified in some cases with Courts now focusing on whether the act of suicide could be regarded as an intentional act.

If it is an intentional act, then benefits under the Workers Compensation Act may not be payable. In several cases, a worker suffering from depression, alcohol abuse, and other factors have been held to be entitled to a death benefit on the basis that their suicide was not an intentional act.

Kells has recently acted for several families in these tragic circumstances and we have succeeded in convincing insurers that death benefits are payable. If this terrible set of events has happened to your family or loved ones, it is important to obtain accurate advice as soon as possible. Assembling medical and other evidence is crucial.

Has the Firearms Registry got too much power? Notice of Suspension

Tue, 18 May 2021 09:48:59 GMT

The underlying principles of the Firearms Act are made clear at the very start of the Act. Firstly, owning or using a firearm is a privilege, not a right, and is conditional on the overriding need to protect the public. Secondly, the Act seeks to improve public safety by imposing strict controls and promoting safe and responsible gun storage and use.

It almost goes without saying, these underlying principles are common-sense and appropriate.

The Act sets out strict requirements for obtaining a licence, for safe storage and use of firearms. It also imposes strict penalties for failure to comply with those requirements. Given the extreme importance of protecting the community, and the obvious dangers if requirements are not satisfied, each and every breach of the _Firearms Act_ is vigorously prosecuted by NSW Police. This strict approach to gun safety should be encouraged.

Given the numerous, often technical, requirements of the Firearms Act , many gun owners will find themselves breaching the legislation almost inadvertently. We have seen matters where clients have failed to renew their licence on time. Instead, having realised their error, they have applied for a renewal shortly after the old licence expired. We have seen breaches of safe storage requirements, such as failure to use the correct type of safe (secure but not for the correct category) or failure to properly secure a safe to the floor (bolted but not correctly fastened).

In accordance with the Act’s underlying principles, these matters are prosecuted by NSW Police, and rightly so. Public safety is of primary concern. There should be no tolerance for breaches.

Though we agree this strict policy (bringing prosecutions for any beach) is necessary for public safety, it is important that each matter is dealt with on its merits. This is the reason for an independent and impartial review system, the NSW judicial courts.

Our Magistrates are appointed because of their experience, knowledge of the law and ability to recognise the specific circumstances of an individual case.

In these matters, we see Magistrates weighing up the need to protect the public, against the strong mitigating circumstances in many of these minor, or “technical” breaches of the Act. While the offending gun owner needs to be punished, Magistrates acknowledge the harsh penalties that flow from a gun-related conviction, including mandatory suspension of a licence.

When dealing with these technical breaches, Magistrates will often decide to exercise discretion, making a Conditional Release Order (CRO) without recording a conviction. Under a CRO, the firearms owner enters into a bond for a specified period, during which they cannot possess a firearm.

Although resulting in a “non-conviction”, a bond still appropriately deals with the underlying principles of the Firearms Act. It satisfies the “purposes of sentencing” a Magistrate must consider, including protecting the community and ensuring public safety, because it enforces a period of time during which an offender cannot possess a firearm. Magistrates will often comment that the imposition of a bond is not trivial, it is a burden of significance for firearms owners. [1]

For these types of breaches, we suggest a CRO is a Magistrate’s acknowledgement that, despite needing to punish breaches of the Act’s safety requirements, the person before them is “fit and proper” to hold a licence once their bond period has been served. Importantly, by not recording a conviction (which would trigger a mandatory licence suspension), the Magistrate effectively allows a firearm owner to retain their licence after seeing out the bond.

A system where NSW Police bring charges against any breaches and Magistrates fairly and impartially determine an appropriate punishment is an appropriate method of dealing with Firearms Act offences. Importantly, ensuring the power to enforce and decide laws remains separate is a fundamental requirement in our legal system.

Despite having this system in place, the Firearms Registry (“ the Registry ”) frequently issue licence suspension notices in circumstances we would describe as concerning.

We have seen that, even when Magistrates make a CRO and do not record a conviction, the Registry often issues a Notice to Suspend regardless, under not “fit and proper” person grounds. Essentially, this overrides the Magistrate’s impartial consideration of the facts and ultimate decision; that the licence should not be suspended once the bond period is complete.

We also see cases of gun owners charged with criminal offences issued with a Notice to Suspend prior to a criminal hearing. The decision to suspend is made on the “balance of probabilities”, a less rigorous standard of proof than the criminal law standard, “beyond reasonable doubt”. While a licence holder could review this Notice, this would necessarily involve disclosing aspects of their criminal matter (which is yet to be determined).

Effectively, a gun owner must surrender their right to silence if they wish to dispute the Registry’s decision.

While the Firearms Act appropriately puts public safety at the centre, and NSW Police rightly bring breaches before courts with regularity, the Registry appears to suspend firearms licences despite judicial decisions made by Magistrates, or prior to fair criminal proceedings having finished. This raises the question, why have Magistrates decide charges at all, if the Registry apparently has ultimate decision making power about firearms licences? This is especially concerning where it appears judicial decisions are being disregarded.

This article was co-authored by Law Cadet Ben Goodhew.

[1] R v Mauger [2012] NSWCCA51, [37]

I want a divorce! ... But what does that actually mean?

Thu, 13 May 2021 09:49:18 GMT

It is a common misconception that a divorce is an all-encompassing process that involves both divorcing your spouse and also dividing your finances, however the law views a divorce and a property settlement as separate matters.

‘Divorce’ is the process of legally dissolving a marriage, which while it will enable a person to legally re-marry in the future, does not take care of the division of the parties’ asset pool automatically.

A divorce can be applied for after 12 months from the date of separation, and can be made by either party on their own, or both parties jointly.

A ‘property settlement’ is the process of the dividing the parties; assets, liabilities and superannuation and properly documenting the division either by way of a court order or a financial agreement.

The property settlement process involves 4 steps:

1. Assess the net asset pool, including superannuation at the time of the property settlement. The values of assets and liabilities are taken at the date a property settlement is affected, and not at the date the parties separated.

2. Assess the financial and non-financial contributions made throughout the relationship by both parties including income earned, lump sum financial contributions and contributions as homemaker and parent.

3. Assess whether there ought to be an adjustment (in percentage terms) to either party for future needs. This will arise where one party has an inferior earning capacity to that of the other now and in the future and/or has the ongoing care of a child of the relationship.

4. The last step is to look at the first 3 steps to ensure the result is ‘just and equitable’.

Ultimately, it is important to seek legal advice if you have separated from your partner to assist you in navigating your situation. We can provide you with expert legal advice and advise you whether it is a divorce, property settlement (or both!) that you require to be able to move on with your life.

Helpful tips when dealing with police sniffer dogs

Tue, 11 May 2021 09:49:46 GMT

With the easing of COVID-19 restrictions coinciding with the oncoming summer and music festival season, encounters between members of the public and NSW Police increase. One contentious interaction with the public and NSW Police will be a result of the drug dog detection or ‘sniffer dog’ program. Sniffer dogs are still widely used by NSW Police in licenced venues and festivals despite widespread calls for the program to be abolished.

Whilst in force it’s important to know what your rights and how to behave if a dog gives a ‘positive indication’ that you may be in possession of illegal drugs. Here are some helpful tips:

Be polite and respectful

This is not literally a legal requirement however adopting a polite and respectful manner towards police not only keeps things calm but could serve you in the following ways:

You won’t fail the police ‘attitude test’. Many drug offenses allow for wide powers of Police discretion such as issuing an infringement as opposed to a Court Attendance Notice. It is important to note you can remain polite and respectful without offering admissions or consent. See below.
You will also avoid the possibility of Police charging additional offenses such as offensive conduct or resisting arrest.

Peacefully refuse consent, while allowing it to occur

You or a legal representative on your behalf, may wish to challenge the legality of the search at a later date, and without your consent the police will need to prove that they had the necessary ‘reasonable suspicion’ before searching you. Ask if you are legally required to allow them to search you, and then ask that they note that you have not given your consent to do so.

The search will still go ahead, but the legality of any evidence found may later be challenged and deemed inadmissible if established police have inappropriately used the powers given to them in Law Enforcement (Powers and Responsibilities Act) 2002 .

Police do not have a general power to detain you if nothing is found

As a general rule, when in doubt you might ask ‘ am I being detained?’. If the answer is no, then you may go. If it is yes, then you may ask ‘on what grounds am I being detained?’, and the officer must establish some legal ground preventing you form leaving.

You don’t have to give your personal details if nothing is found

Unless the police have another legal reason compelling you to provide your personal details, there is nothing which requires you to give personal information to Police before or after a search if nothing is found on you. Giving your personal information to the Police at this time will create a permanent record on the COPS system and can be used to justify future searches.

If you have been stopped and searched by Police and would like to discuss the incident with a lawyer feel free to speak to one of our criminal lawyers during our free initial consultation. We operate 24/7 days a week and our team is led by a former police officer and police prosecutor.

When pre-approval for your finance isn’t as ready to go as you may think…..

Thu, 06 May 2021 09:50:02 GMT

With the property market as hot as ever and purchasers falling over themselves to inspect, offer and commit, it’s important to have pre-approval in place so you can keep up with the market pace and exchange contracts to secure the property as quickly as possible.

We often hear the words ‘I have pre-approval’ and this often follows with ‘my pre-approval is for a larger amount than the purchase price, so there should be no issue.’

In most cases the pre-approval stamp held has not gone through the normal stages of employment and income verification (tax returns or BAS statements), evidence of savings history and asset/liability verification. Pre-approval can often be your banker/broker taking a glance at your income and affordability and saying yes you can service a loan up to $900,000. Before entering into a contract to purchase a property you need to hold formal loan approval. Often a lender will not consider a loan application until a property has been found so a valuation report can be obtained. To be fully prepared, it is suggested that all employment information, evidence as to savings or gift (of the deposit), asset and liability financials be in order and provided to your broker/bank so that once a property has been found, the only condition of pre-approval is a satisfactory valuation.

If you want to compete in these market conditions you need to be organised and place yourself in a position ahead of the competition.

Make good provisions in commercial leases – a point of frequent contention…

Tue, 04 May 2021 09:50:21 GMT

A make good provision is a term that is included in most commercial leases. It is used to protect the lessor’s interests by imposing a positive obligation upon tenants to return the property to its pre-lease condition. Make good provisions are one of the most frequently disputed clauses when it is time for the lessee to vacate the premises at the conclusion of the lease term.

Why does this term give rise to disputes?

Enforcement of this term often creates disputes in circumstances where tenants are unwilling or unable to revert the property to its pre-lease state. Because of the lengthy timeframe that the lessee is granted a right of exclusive possession, the situation often arises where a tenant makes substantial alterations to the property. When it comes time to vacate, lessees are reluctant to incur additional cost to remove items or undertake rectification works. Lessor’s rights with respect to enforcing an obligation that the property be returned to its pre-lease condition will depend on the nature of the wording of the clause.

The wording of the clause and pre-condition reports

There are various types of make good provisions that may be suitable when preparing a lease. The least onerous of these is a term that requires the removal of the lessee’s detachable property only. This approach is not usually recommended as lessees will often undertake commercial fit out works involving the construction of fixtures such as flooring, lighting, or desks. These more permanent changes would not be captured by this type of clause, and the lessor may have no right to demand their removal from the premises.

A more comprehensive approach available to lessors is to arrange for a pre-condition report to be prepared and signed by the parties. Reliance on this report as a record of the pre-lease condition of the premises allows lessors to prepare make good provisions with a greater level of certainty that they will be enforced. The existence of an agreed upon pre-condition report will facilitate the imposition of more onerous make good provisions. For example, one approach would be to draft a clause where the wording requires that the lessee remove all property and return the property to the standard as evidenced by the condition report.

Assignment of lease

Another issue that lessors should be mindful of arises where a lessee assigns the lease to a third party. When a lease is assigned, the new tenant usually takes over the property in whatever condition it is provided to them by the original lessee. The incoming lessee also inherits the departing lessee’s obligations to make good the property, pursuant to the lease. To minimise the chance of a dispute occurring at the conclusion of the lease term, lessors are strongly advised that assignees should be clearly informed as to their obligations regarding the return of the property to its pre-lease condition.

Cash in lieu of make good

Due to the time, cost and frustration associated with enforcing make good obligations upon lessees, it is prudent to include a provision that allows lessors to demand a cash payment where lessees fail to fulfill their obligations to the requisite standard.

So, in summary…

Often due care is not taken when make good provisions are drafted. This is usually because at the time the lease is prepared, make good provisions do not occasion an immediate cost implication to the parties. At the conclusion of the lease however, significant costs may arise where the lessee fails to comply with lessor’s requests to revert the leased premises to their pre-lease conditions.

By taking the time to carefully draft their lease, lessors can ensure that the make good provision will be enforceable and their rights are protected. If you are a landlord looking to lease commercial property, don’t rush the drafting process. If you need any guidance, Kells’ experienced commercial property lawyers can advise on all matters relating to leasing to ensure your rights are protected.

Peter Martin retires from practice

Fri, 30 Apr 2021 09:50:40 GMT

After 40 years of serving the legal community, Peter Martin has announced that he will begin a well-deserved retirement beginning May 1, 2021.

Those of us who know Peter well are confident that he will not in fact retire, but rather shift his focus and many talents to pursue his passions.

The firm wishes Peter well in all his future endeavours and would like to congratulate him on a full and successful career.

About Kells

For more information contact

Shayne Lopeman

Marketing Manager

+61 2 4221 9362

slopeman@kells.com.au

Is my handwritten Will valid?

Thu, 29 Apr 2021 10:51:30 GMT

Most people understand that it is important to have a Will that sets out your testamentary wishes should you die. It is more important to ensure that the Will is valid and executed correctly to ensure that those testamentary wishes are carried out and provide peace of mind to your loved ones.

The Succession Act 2006 (NSW) (the Act) provides that a Will is not valid unless it is in writing and signed by the will maker and signed in the presence of two witnesses who are the over the age of 18 and are not listed in the will [1] .

Whilst it is important to ensure that a Will is validly executed, it is not always the case that people will seek legal advice from a solicitor as to the terms and execution of their Will. Some people will choose to use DIY Will kits from their local Post Office, or some people may even choose to type, or hand write their own Will. This begs the question whether these handwritten documents constitute a valid Will?

The Court has the discretionary power to dispense with the requirements for the valid execution of a Will, which is relevant where a will maker may choose the path of the ‘DIY Will Kit’. Under the Act, the Court can admit other types of documents if it is satisfied that the person intended the document to contain their testamentary wishes [2] .

A recent demonstration of the Courts discretionary power can be seen in the late US TV host and broadcaster Larry King’s estate [3] . Larry King left a handwritten Will that purportedly leaves his $2 million estate to his children. The 2019 documents states:

“This is my Last Will & Testament,” “It should replace all previous writings. In the event of my death, any day after the above date I want 100 percent [placed above illegible cross-out] of my funds to be divided equally among my children Andy, Chaia, Larry Jr., Chance & Cannon.”

Larry King’s estranged widow, Shawn Southwick King is seeking to contest his Will on the basis that he was of questionable mental capacity at the time the handwritten Will was made. Larry King was divorcing Mrs King at the time of his death, but the divorce was not finalised.

In addition, Mrs King has alleged that her stepson Larry King Jr, exerted undue influence over his father towards the end of his life and is seeking that the handwritten Will made by Mr King in 2019 conflicts with a Will executed by Larry King in 2015, whereby she was named the executor of his estate. The outcome of the matter is yet to be determined and has been scheduled for hearing in the Los Angeles County Probate Court in May 2021.

This matter serves as important reminder that having a validly executed Will is crucial to ensuring that your wishes are adequately documented and will be carried out. Our expert estate planning team can assist you with ensuring your wishes documented and executed properly. Please contact our office to speak to our Wills and Estates team for further information.

[1] S 6 Succession Act 2006 (NSW)

[2] S 8 Succession Act 2006 (NSW)

[3] https://www.bbc.com/news/entertainment-arts-56095825

Motor vehicle accident: insurer terminated my statutory benefits, what can I do?

Tue, 27 Apr 2021 09:51:32 GMT

If you have been in a motor vehicle accident after 1 December 2017 and sustain injuries that are deemed by the insurer as ‘minor’ injuries, then, unfortunately, what you can claim is very limited.

The insurer has three months to issue a liability decision determining whether they accept liability. This decision is important as it determines what an injured person can claim and whether their entitlements will cease.

A minor physical injury is an injury to the tissue that connects, supports, or surrounds other structures or organs of the body. A non-minor physical injury is an injury that does not meet this criteria.

A minor psychological injury is a psychiatric injury that is not a recognised psychiatric illness.

Importantly, if the insurer has determined physical or psychological injuries are minor injuries, there are avenues that can be taken to have this decision overturned.

An application for internal review can be drafted and submitted to the insurer. This application must be lodged with the insurer within 28 days of receiving the liability notice letter and is to be supported by medical evidence. The internal review will be conducted by a person who did not have a role in the original minor injury decision.

There is also the potential for the insurer to continue to pay treatment and care expenses for minor injuries after the 26-week post-accident period. However, eligibility for these benefits is limited and only available in certain circumstances. Some circumstances where the insurer may continue to pay for treatment and care expenses include where it can be determined that: the injuries are related to the subject accident, the treatment and care will improve recovery, if the insurer delayed approval for treatment and care expenses, or if the treatment and care will improve capacity to return to work.

It is very important that people injured in motor vehicle accidents ensure they receive the treatment recommended by their treating medical practitioners.

If you have received a minor injury notice from the insurer, you should seek legal advice to investigate whether this decision can be overturned.

7 important things to consider when negotiating your property settlement

Thu, 22 Apr 2021 09:52:33 GMT

ONE: Do you know what all of your assets and debts are? It is important that you are aware of all assets and liabilities, as well as your spouse’s assets and debts, including superannuation entitlements, to give you a clear picture of the net asset pool that needs to be divided.

TWO: If you don’t have all of that information can you obtain it by financial disclosure and when is it time to start court proceedings to issue subpoenas? While some couples are able to exchange full financial disclosure by sending letters between their respective lawyers, some parties are not cooperative with that process, or are not forthcoming with their disclosure.

You may wish to commence proceedings in court, as the court will then make orders for financial disclosure to be exchanged. If your former partner still does not comply with those orders, you might then consider issuing subpoenas to various organisations such as banks and financial institutions. As there are costs involved in the court process and issuing subpoenas, it is often quicker and cheaper to provide full and frank financial disclosure from the outset.

THREE: Do you want to keep the house – can you afford to keep it? If you wish to keep the house, you may wish to approach your bank to query your capacity to either take out a mortgage to pay out your spouse’s interest in the home, or your capacity to take over the current mortgage and extend it to make that payment. Any payment to your spouse will depend on the other assets that are to be divided and the percentage division of the asset pool.

FOUR: What percentage of the property pool are you entitled to? Your lawyer will assist you to consider the contributions of both you and your spouse throughout the marriage and your current circumstances. We can advise you as to the range of the percentage you may be entitled to receive from the asset pool.

FIVE: Will you get recognition for the inheritance you have received? This will depend on whether your inheritance was received during the marriage and utilised by both you and your spouse, or whether it was received after the separation. This is a particularly tricky area of family law and will depend highly on the circumstances of each case.

SIX: What about properties you owned prior to the commencement of the marriage? Any contributions at the commencement of the marriage are always considered, but they will be considered against other contributions during the marriage and the length of the marriage. In longer marriages, the importance of the initial contributions may have less impact on the final division of the asset pool.

SEVEN: If you have children, where will they be living after the separation and what are the arrangements? A factor that may influence the percentage division of the assets is which party has the primary care of the child. For example, in circumstances where one party has 70% care of the child, they may be entitled to receive a higher portion of the asset pool to account for the financial burden of parenting the children on a primary basis.

If you are in the process of negotiating a property settlement, we recommend you seek advice from an experienced family lawyer to ensure you are aware of your entitlements and to help your settlement move along quickly and smoothly. Contact our office to arrange a fixed fee consultation.

This article was co-authored by Law Cadet Taylah Jensen.

Privacy: how to have no regrets when selling or buying a business

Thu, 15 Apr 2021 09:52:59 GMT

Are you looking to buy or sell a small business? If you are, it is important to consider the often overlooked, but imperative, aspect of the protection of you or your businesses’ private and confidential information.

Small businesses are defined as those businesses with an annual turnover (being income from all sources, and not including assets held, capital gains or proceeds from capital sales) of $3 million or less. If your business falls within this definition, then generally you are not protected by the Privacy Act [1]. Therefore, it is important that checks and balances are put in place so that confidential information cannot be disclosed to others.

Confidential information passes between parties from the very start of the sale of business process, often before contracts are even prepared, let alone signed or the sale completed. In some cases, the prospective buyer may ultimately decide not to proceed with the sale.

As such, while the contract can include a confidentiality clause, to protect you during the due-diligence process, which can include passing on information about the businesses’ financial situation and key contracts, we would recommend you enter into a non-disclosure agreement.

This can be a relatively straightforward two or three page document, which covers key issues such as:

Who the information can be disclosed to
The purposes they can use the information for
How the information will be given
How and when the information will be returned.

This document can be tailored to protect you and your specific circumstances, whether you are the buyer or seller of the business. For example, if you are the buyer, as you will be the recipient of the information, we can provide that the confidentiality obligations are only for a certain period of time. On the other hand, as the seller you are sharing your own confidential information, and we generally would seek not to impose any time limit, so the obligation to keep the information confidential remains in place forever (or until it ceases to be confidential information).

If you have any questions about non-disclosure agreements, or any part of the process involved in the sale or purchase of a businesses, please contact our office for further information.

[1] https://www.legislation.gov.au/Details/C2021C00139

3 key takeaways from the bankruptcy law changes which could send you bankrupt

Wed, 14 Apr 2021 09:53:25 GMT

From 1 January 2021, bankruptcy law changes introduced at the beginning of the COVID-19 pandemic will cease. These measures were introduced to support businesses who would have otherwise become insolvent. Here are the three most important takeaways from these changes:

1. The minimum amount of debt that can trigger bankruptcy has been reduced

During the pandemic, the minimum amount of debt owed was increased to $20,000.00. The requisite amount owing which allows a creditor to apply for a bankruptcy notice has since been reduced to $10,000.00. It is important to note that this amount is double than the pre-pandemic limit of $5000.00.

2. The amount of time an individual has to respond to a bankruptcy notice is reduced

A bankruptcy notice is a formal demand from a creditor to pay them the money you owe. Between March and December 2020, the amount of time that an individual had to respond to a bankruptcy notice was six months. This has now been slashed to just 21 days.

3. The temporary debt protection period is reduced

Temporary debt protection prevents any unsecured creditor from taking enforcement action against you. Once a person applies and is approved for temporary debt protection, they are afforded 21 days of protection. This is reduced from the six months protection given during the height of the pandemic.

As these changes have only recently come into effect, it is important that you are aware of your obligations. Failure to take note may result in drastic consequences for you or your business.

Title Deeds – what are they?

Tue, 13 Apr 2021 09:53:57 GMT

All land ownership in New South Wales is administered by Land Registry Services NSW.

When you purchase a property, documents are prepared to transfer the property into your name and a Certificate of Title, or title deeds as it is more commonly known, is the legal document that is evidence that you own the property.

The name “title deeds” is a term that was used when land ownership in NSW was based on the British system known as “Old System” where a chain of title deeds had to be kept proving ownership of the land. Over the years this Old System has been converted to what we now know as “Torrens Title”. This is where a record of each purchase is recorded at Land Registry Services and a Certificate of Title issued in the new owner’s name.

With the introduction of electronic conveyancing in recent years this Certificate of Title can be either:

an Electronic Certificate of Title (eCT)
a paper Certificate of Title.

If you borrow money and have used the property as security for your loan then the title is an Electronic Certificate of Title. This is an electronic record of land ownership and means that your lender does not hold a paper Certificate of Title. Your lender has the right to deal with the land and has authority to consent to the registration of any subsequent interests in the land.

If you do not borrow money and you own the property outright then Land Registry Services NSW will issue you with a paper Certificate of Title. This document is extremely important and expensive to replace. You need this paper Certificate of Title to deal with the land, for example, it is needed if you sell or borrow money in the future.

Kells has facilities to keep this paper Certificate of Title in our deed room for safekeeping until required by you. This is a free service we are happy to provide for your convenience.

What is a cooling off period?

Mon, 05 Apr 2021 09:54:18 GMT

The term ‘Cooling Off Period’ is used in a number of areas in law. In this article, the term is dealt with as it applies to the sale and purchase of residential real estate in New South Wales.

This law has had the practical effect of countering gazumping.

When a purchaser enters into a contract for the purchase of residential real estate in New South Wales (exchange of contracts), by law a 5 business days Cooling Off Period applies (or a 10 business days period in case of an ‘off the plan purchase’: for example the purchase of a block of land in a subdivision to be registered at a later time).

This means the purchaser has 5 or 10 business days (as the case may be) to change their mind and withdraw from the contract. The Cooling Off Period can be used by the purchaser to finalise finance or attend to due diligence enquiries such as a pest or building report.

By mutual agreement between the vendor and the purchaser the Cooling Off Period may be extended. In practice, this sometimes happens for example when a purchaser’s loan is close to approval and the vendor may allow the extension of the Cooling Off Period for a couple of days for the loan to be finally approved.

The vendor is not permitted to sell the real estate to someone else during the Cooling Off Period. If the purchaser, within the Cooling Off Period decides to withdraw from the contract (for example if the loan application falls over or if the pest or building report is bad), then the purchaser may exit the contract but must pay the vendor a sum of money equivalent to 0.25% of the purchase price. This gives the vendor some compensation for his or her effort and also for taking the property off the market during the Cooling Off Period.

It is important to note that the Cooling Off Period will not apply in the following circumstances:

1. When the solicitor for the purchaser provides a Section 66W Certificate. This is often pressed for by the vendor’s solicitor but would not be agreed to by the purchaser unless the purchaser is ready to completely commit to the contract.

2. In the case of an auction or when a contract is made or entered into on the same day as an auction when the property has been passed in.

3. In cases where a contract is made in consequence of an exercise of an option to purchase the property (unless the option is void under a specified provision of the Conveyancing Act*).

The ‘Cooling Off Period” law can really assist a purchaser to secure a residential piece of real estate straight away and will be an early point of discussion for a purchaser with his or her solicitor or conveyancer.

*Section 66ZG Conveyancing Act 1919.

3 reasons to document your family loan

Wed, 31 Mar 2021 10:51:21 GMT

Some parents may provide money to their children to assist them to purchase their first car or even their first home. In some instances, this money is a gift whereas in others the parents expect to be repaid.

There is a presumption at law that any money advanced from a parent to their child is a gift and not a loan. This presumption can be set aside if it can be clearly shown (usually through a formal loan agreement) that there is an agreement in place between the parties confirming that the money is a loan and will need to be repaid.

If you are a parent and wish to provide money to your child however expect to be repaid, then it is a good idea to document this arrangement by entering into a loan agreement with your children. Three reasons why you should do this are as follows:

You can specify the terms of the agreement such as the amount of the loan, when the loan is to be repaid, if interest on the principal loan amount is payable, what the loan can be used for as well as any other terms that may be applicable.
You can document the type of security (if any) securing the loan. This means that if the borrower defaults, you have security which may be used to recover some if not all of the money you have lent. The type of security which will be applicable will depend on your specific circumstances however common forms of security are a registered mortgage over the borrower’s property or an unregistered mortgage along with a caveat registered on the borrower’s property.
Documenting the arrangement in a loan agreement is evidence that the money was provided as a loan and not by way of a gift (provided that the loan agreement has been drafted correctly). This may become important in the distribution of a lender’s estate to show that this money needs to be repaid to the estate.

Please contact our office to discuss whether a loan agreement is relevant to your circumstances.

The second generation: family trusts and estate planning

Wed, 31 Mar 2021 09:54:54 GMT

Family trusts can be a valuable tool to build and protect cross-generational wealth. They have key asset protection, income flexibility and taxation advantages, providing benefits to family groups for many years.

Trust assets require particular care as the trust does not cease on death of the controlling individual and the assets do not automatically form part of their estate. Rather, the assets continue to be held by the trust (in NSW for up to 80 years). Therefore, it is crucial to appropriately pass control of the trust (during your lifetime, or on your death).

Passing control of a family trust

Passing control of your family trust to the next generation can requires careful planning, to ensure equal representation and to avoid disputes and unethical outcomes.

The key positions of control in a trust that usually require consideration are:

trustee; and

appointor and / or guardian.

The starting point is always – review the trust deed!

Trustee

The trustee controls the day-to-day management and income/capital distributions and may be an individual/s or corporate trustee (shareholders / directors). .Trust assets are in the name of the trustee, and a corporate trustee is usually recommended for clear ownership and continuity purposes.

Passing control of the trustee role involves:

Corporate trustee: gifting a person/s to receive the shares in their Will, or transferring the shares during their lifetime. In turn, the new shareholder can nominate new directors. It is important to review the company constitution to consider any implications, and this may need to be revised to suit succession objectives.
Individual trustee: the terms of the trust deed will usually set out the mechanism for a successor trustee to be appointed.

Appointor / guardian

The appointor (sometimes called the principal) traditionally has the power to appoint and remove the trustee. In effect, the ultimate control of the trust is held by the appointor (not all trusts have an appointor / guardian).

The trust deed usually provides for the succession of the appointor role, and may provide ability for the current appointor to nominate a successor appointor during their lifetime by deed, or by Will. There may also be a default position in the absence of any nomination.

The guardian is a role is some trust deed which requires consent by the guardian before certain decisions are exercised (used less commonly). In modern trust deeds this role is usually amalgamated with the appointor role.

Trusts can be valuable in asset ownership, however they must be appropriately addressed in succession planning to ensure that control of the trust (and the benefit of trust assets) pass to those whom you wish to benefit.

For further information on estate planning for trusts, please contact Kells to discuss with one of our experienced estate planning lawyers.

Safe storage of a firearm

Wed, 31 Mar 2021 09:54:35 GMT

In New South Wales, the law treats all firearms offences extremely seriously. Even a minor infringement or “genuine oversight” can result in the loss of your licence and firearms. Most breaches result in the police issuing a Court Attendance Notice (CAN) requiring you to have to attend court.

When these matters proceed by way of CAN, they are difficult to defend due to the nature of the legislation and are rarely dealt with leniency by a Magistrate.

In relation to safe storage of a firearm, we have had a number of recent matters with successful results for the gun owners. However, such outcomes are rare, and the onus of proving mitigating circumstances, good character and why they should be permitted to hold a licence (fit and proper person) placed very heavy burden on the firearms owner.

It should be noted that, even after a successful court outcome, the police may apply to have a firearms licence suspended on character grounds. We do not agree with this practice, as it undermines the Court’s power and discretion, however, that is a discussion for another time.

In safe storage matters, we frequently see otherwise responsible firearms holders caught breaching the legislation due to complicity.

The reason these matters are taken so seriously by the police and courts is not necessarily because they consider the firearms holder to be of “bad character”, but that an unsecured firearm is an invitation for a thief or other nefarious character to obtain the firearm for criminal purposes. Even the smallest calibre firearm can wreak fear and havoc in the hands of somebody with bad intentions.

There is an additional issue of people with mental health issues and/or drug addictions obtaining firearms. The courts and the police, see such matters frequently and are often required to deal with the victims, including the firearms owners, who have had their weapons turned and used on them as a result of not being properly stored.

Awareness, prevention and deterrence is the ultimate aim of the legislation.

The Firearms Act 1996 sets out the responsibilities of an owner in relation to the requirements of safe storage. The different categories of licence require different levels of safe storage, which generally runs parallel to the type of firearm, use and calibre.

There is common ground amongst all licence types, being that any person who has in their possession a firearm must take “reasonable precautions” to ensure that the firearm:

is kept safe
is not lost or stolen
does not come into possession of a person who is not authorised to possess the firearm.

Given the variety of licence types and standards required for those licenses, we strongly advise all firearms owners to log on to the “Police Firearms Storage” web site and become familiar with what is required in order to comply with the law.

Common pitfalls that we have noticed is:

safes not being of the correct quality and size for the firearm, noting old file style lockers are not appropriate
the safe not being correctly bolted to the floor. The Police will generally rock the safe as one of their first tests on inspection
when responsible firearms owners are tired when they come back from a hunting or shooting trip and become complacent in relation to the storing of ammunition and the firearm, and/or the locks on the safe
allowing others access to your safe and/or storing on a friends property (the owner is liable if incorrectly stored).

Firearms owners must remain diligent at all time when it comes to the storage of their firearms. If unsure, contact the police and ask for a preliminary inspection prior to storing your firearms.

If you have found yourself in breach of this law, please get legal advice immediately in relation to how you can reduce liability and/or potentially save your firearms license. Our criminal lawyers operate 24/7, 365 days a year and we offer a free first consultation.

This article was co-authored by Law Cadet Ben Goodhew

Liquidated damages in residential building contracts

Thu, 25 Mar 2021 09:55:10 GMT

In New South Wales, most contracts for the construction and renovation of residential buildings are largely based off a standard form building contract, such as the HIA Residential Building Contract, that has been specifically drafted for use in relation to residential building work in NSW.

Most residential building contracts will include a clause providing for liquidated damages to become payable to an owner where a builder completes the work after the agreed completion date. The purpose of a liquidated damages clause is to specify a fixed amount of damages payable to the owner if the work is not completed within an agreed timeframe.

Commonly, the standard form building contracts will include a nominal amount for liquidated damages as the default position. However, the NSW Supreme Court has recently determined that such clauses in residential building contracts will not prevent the owners from making a claim for general damages; that is the actual damages suffered by the delay.

Cappello v Hammond & Simonds NSW Pty Ltd

In Cappello v Hammond & Simonds NSW Pty Ltd [1] , the parties had entered into a HIA building contract. The contract specified liquidated damages as $1 per day, being the contract’s default position. The works ended up being completed seven months late and the builder did not correctly apply for any extension of time.

One of the issues considered in this case was whether the liquidated damages provision conflicted with the operation of the Home Building Act 1989 ( Act ). In particular, section 18B(1)(d) of the Act implies a warranty into all residential building contracts that work will be completed by the time stipulated in the contract and section 18G renders void all contractual provisions that attempt to override any statutory warranty.

The Court ultimately found that the liquidated damages provision was not to be read as limiting the owner’s claim for damages to a nominal amount, as it would operate to restrict the rights of the owner under section 18B(1)(d) and, therefore, be rendered void by section 18G. Rather, the Court concluded that liquidated damages was not the only remedy for delay and that the owner was also entitled to a claim for general damages (although, in this particular case, the owner was unable to demonstrate any damage).

Importantly, the Supreme Court stated that the outcome may have been different if the liquidated damages clause provided for a substantial amount, rather than a nominal amount.

What this means

This decision affects both homeowners and builders.

A homeowner may now be entitled to claim for actual damages incurred as a result of a builder’s delay in excess of a nominal liquidated damages amount specified in the residential building contract.

If a builder wishes to limit its exposure to such damages, it is critical that they correctly claim extensions of time under the contract to validly extend the date for completion.

This article was co-authored by Law Cadet Nikala Speed.

[1] Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021

What rights does your former spouse have to your estate?

Thu, 18 Mar 2021 09:55:31 GMT

For most people, the end of a relationship is a very emotional and stressful time. Most people will seek family law advice to finalise the division of property and assets between them. However, many will fail to seek legal advice to update their estate planning documents.

Divorce

In the state of New South Wales, a Will is not revoked by divorce. However, under section 13 of the Succession Act (NSW) 2006 , the divorce of a testator revokes:

a beneficial disposition to the testator’s former spouse made by a will in existence at the time of the divorce or annulment, and
an appointment of the testator’s former spouse as an executor, trustee, advisory trustee or guardian made by the will, and
a grant made by the will of a power of appointment exercisable by, or in favour of, the testator’s former spouse.

However, the above will not apply if a contrary intention appears in the Will.

Separation

Separation between de facto partners does not revoke a Will. The Succession Act (NSW) 2006 does not set out any provisions that would revoke parts of a Will in relation to a former de facto spouse in the same way that it deals with divorce.

Therefore, if you have a Will that leaves the whole of your estate to your former de facto spouse and you fail to update your Will, the Will remains valid on your death.

Furthermore, if you separate from a former spouse but fail to formally end your marriage through divorce, any Will you made during your marriage will remain valid. Again, this could mean that if you die without changing your Will, your former spouse could end up with all or part of your estate. This will apply even if the division of assets has been finalised.

Hypothetical scenario

Jane Jones and Billy Bob were married 20 years ago. After their wedding, they decided to have Wills prepared that left everything to each other and appointed each other as executor.

Jane Jones and Billy Bob separated 10 years ago and finalised their property settlement and division of assets. Jane Jones and Billy Bob decided not to dissolve their marriage through divorce.

Billy Bob passed away. Billy Bob did not update his Will after he separated from Jane Jones.

As there was no divorce in place, Bill Bob’s Will remained valid and therefore, Jane was appointed executor of his estate and was the sole beneficiary of the whole of his estate.

This outcome is not what Billy Bob would have wanted to occur upon his passing.

Lesson to be learned

If you have a relationship breakdown, it is imperative to review and update your Will immediately. Failure to do so, may mean that your former spouse may end up receiving more than you wished for.

Can you be forced to sell a jointly owned property?

Tue, 16 Mar 2021 09:56:38 GMT

Co-ownership of real property occurs where two or more people are jointly registered proprietors of land, either as joint tenants or as tenants in common. While it may seem reasonable to assume that a co-owner is free to deal with their property as they choose, this is not always the case.

Relevant circumstances

If co-owners are unable to agree whether jointly owned property should be sold or transferred, the co-owner(s) wishing to sell the property may commence proceedings in the Supreme Court under section 66G of the Conveyancing Act 1919 (NSW). This section empowers the Supreme Court to (among other things) order the transfer or sale of a property.

When such orders are made the co-owners’ interests in the property are vested in trustees that are proposed by the parties and/or appointed by the Court. A number of factors are taken into account when the Court considers and appoints trustees, which will usually be addressed by the party seeking the appointment and sale. Once appointed, the trustees will then engage conveyancing lawyers and a real estate agent to sell the property as the co-owners would have done, had they been in agreement.

Discretion

While the Court can refuse to make orders under section 66G, it is an established principle that co-owners are entitled to an order almost as of right, particularly so if they hold a sizeable share in the property. Orders are usually always made unless there are circumstances which would make the appointment and sale unfair on the other parties. The onus of proving a relevant unfairness rests with the co-owner resisting the sale. There are only limited circumstances where the Court would refuse to order a sale.

Sale

Once the sale is concluded, with the trustees stepping into the owners’ shoes to market and sell the property, the proceeds (less sale expenses and any costs owing to the trustees) are paid to the parties as agreed or as ordered by the Court or, alternatively, into a trust account pending the resolution of any disagreement as to the parties’ entitlement to the sale proceeds.

If you find yourself in a situation where you are in a dispute regarding jointly owned property, our specialist property lawyers can help.

Pets Banned from living in Strata units - soon to be a thing of the past

Tue, 16 Mar 2021 09:56:01 GMT

All strata schemes are required to make an election in their by-laws regarding whether pets are allowed on the premises and the terms that will apply. The usual options that can be elected are:

1. Pets are permitted on the premises with no prior approval

2. Owners must apply to the Owners Corporation for prior approval to keep a pet on the premises, and the consent of the Owners Corporation cannot be unreasonably withheld, or

3. There can be a ‘blanket ban’ prohibiting any pets from living in the strata complex.

In the recent case of Cooper v The Owners- Strata Plan Strata Plan No 58068 the court decided that the by-law prohibiting the keeping of all animals in the Horizon Building in Darlinghurst was oppressive and contravened the strata legislation in force. The by-law in question restricted a resident Jo Cooper from having Angus, her 14 year old miniature schnauzer at the property.

The Court held that a by-law which restricts the lawful use of a lot on a basis which has no connection to the impact on other lot owners is oppressive. The prohibition of animals that would “create no hazard, nuisance or material annoyance to others” was therefore unjustified.

Following this case, there have been amendments to the legislation applying to strata schemes. The Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2021 was passed by parliament on 16 February 2021 and the main proposed changes to start later in 2021 will include:

A by-law that unreasonably disallows the keeping of animals, will no longer be enforceable or able to take effect.
Animals should be allowed to be kept on a lot unless it unreasonably interferes another resident’s use and enjoyment of their lot or common property.
A strata scheme can still prohibit the keeping of animals if there are reasonable circumstances

If you live in a strata scheme that has a blanket by-law that bans the keeping of pets, this can be raised with the owners corporation.

The first step for change is to request the reconsideration of the by-law at the next general meeting. Alternatively you could request that an extraordinary general meeting be called for consideration of the change. Once the new legislation is introduced, a by-law that unreasonably prohibits the keeping of animal will no longer be enforceable.

Harsher penalties for drink and drug driving

Thu, 04 Mar 2021 09:57:27 GMT

On Wednesday, 24 February 2021 Parliament passed a new piece of legislation that will result in harsher penalties for road users who are detected driving a motor vehicle with alcohol and illicit substances in their system.

The Road Transport Legislation Amendment (Drink and Drug Driving Offence) Bill 2021 is named the Four Angels Law following the tragic accident in 2020 which killed four siblings Anthony, Angelina, Sienna Abdallah and their cousin Veronique Sakr. The driver of the car was under the influence of alcohol and was tested positive to having illicit drugs in his system.

The new legislation prescribes the following offences:

Mid-range PCA and presence of illicit substance

$3,300 fine and/or 18 months in jail
License disqualification of 3 – 6 months followed by 12-months interlock program.

High range PCA and presence of illicit substance

$5,500 and/or 2 years imprisonment
License disqualification of 6 – 9 months disqualification followed by 24-month interlock program.

Mid-range PCA and presence of illicit substance – second offence

$6,600 and/or 2 years imprisonment
License disqualification of 6 – 9 months followed by 24-month interlock program.

High range PCA and presence of illicit substance – second offence

$11,000 fine and/or 2 years imprisonment
license disqualification of 9 – 12 months followed by 48-month interlock program.

The legislation is introduced with a new standard practice for roadside breath test whereby drivers who test positive for mid-range or high-range alcohol levels at the roadside will automatically be tested for drugs in their system.

Further, drivers who test positive for low levels of alcohol such as low, special, and novice range will also be tested for drug presence if they have a previous combined offence. This new approach is combined with a commitment by the New South Wales Liberal Party to continually increase random roadside drug test by 200,000 per year each year.

The recently announced changes will undoubtedly again bring the controversial presence of illicit drug laws under scrutiny.

If you or anyone you know have been charged with a drink or drug driving offence we encourage you to contact our specialist traffic law team to discuss your options. Our team of criminal lawyers operate 24/7, 365 days a year and our first consultation is FREE.

The new personal injury commission

Thu, 04 Mar 2021 09:56:22 GMT

On 1 March 2021 the Personal Injury Commission (PIC) commenced. The PIC was established by the Personal Injury Compensation Act 2020. It incorporates the Workers Compensation Commission and the Dispute Resolution Service. The dispute resolution service as was previously part of the Motor Accidents Authority.

The PIC is designed to assist injured people who have been involved in work accidents or motor vehicle accidents.

The president of the commission is His Honour Judge Gerard Phillips, and the deputy presidents are Mr Michael Smell and Ms Elizabeth Wood.

New rules and procedures have been developed for how the PIC will work. They incorporate many of the features of the previous Workers Compensation Commission and the Dispute Resolution Service, with all entitlements and benefits remaining the same for workers compensation claims and CTP claims.

During COVID-19 the Workers Compensation Commission generally dealt with matters by way of telephone or video link. The Personal Injury Commission is continuing this process.

The Workers Compensation Commission had a proud history of sitting in regional and rural areas throughout New South Wales. It will be interesting to see if the PIC does restore face to face hearings when the impacts of the COVID-19 pandemic has subsided. Restoring face to face hearings would be beneficial to many injured people particularly those in remote areas.

Here is a link to the Personal Injury Compensation Act .

The most important contract for joint purchasers may not be the one they sign to purchase the property…

Wed, 24 Feb 2021 09:57:49 GMT

Although buying property with someone else is exciting, it is also risky. Before you rush to sign the contract for purchase, it would be sensible to consider whether executing a co-ownership agreement is appropriate in your circumstances.

What is a co-ownership agreement?

A co-ownership agreement is a legally binding document entered into between 2 or more co-owners. This document will include terms to provide certainty as to how each co-owner will navigate the various issues associated with property ownership. The terms serve as a record of each co-owner’s intentions as to how issues are to be resolved and can avoid the need for costly legal proceedings, or worse a breakdown in the relationship between co-owners.

Forms of co-ownership

The nature of terms included in a co-ownership agreement will depend on the type of legal ownership created by the contract for purchase. Therefore, it is first necessary to understand the two main types of co-ownership available. In NSW, property may be held by 2 or more co-owners as ‘tenants in common’ or ‘joint tenants’.

Tenants in common

Tenants in common is where property ownership is divided between the owners in defined shares. While each owner is entitled to physical possession of the whole property, legal ownership is divided into shares. Each owner is free to sell or deal with their share as they wish (except if there is a co-ownership agreement in place). Unless specified otherwise in the contract for purchase of land, there is a presumption that land purchased jointly will be held as tenants in common.

Joint tenants

Joint tenancy means that the owners own the property together equally and jointly, as opposed to each owner having its own allocated share. No owner may sell or transfer their share in the property without the consent of the other joint owner(s). Where an owner passes away, the deceased owner’s share automatically vests in the surviving owner(s).

Risks associated with co-ownership of property

A failure to prepare and sign a co-ownership agreement may prove to be a costly mistake. If one owner wants to sell the property but the other owner(s) do not, disputes may arise, and the courts intervention could be necessary. There are also situations where you may find yourself legally liable for unforeseen costs.

For example, where co-owners have jointly signed a home loan contract, all owners are usually jointly and severally liable for the debt. This means that you are responsible for 100% of the repayments and the debt, where any other owner refuses to pay their share.

Another issue related to borrowing arises in circumstances where a co-owner seeks to obtain finance for the purchase of a second property. A bank will assess the total amount of the loan owing on the first property as a liability in the name of the owner seeking to purchase and this can negatively impact one’s ability to borrow.

Drafting your co-ownership agreement – things to consider

The terms included in the co-ownership agreement should be sufficiently broad to provide certainty regarding each owners’ rights and obligations in all possible circumstances. Depending on your situation, it may be wise to include terms addressing the following issues:

how liability is apportioned between co-owners for various outgoings such as maintenance costs, mortgage re-payments, rates and bills
whether and on what basis each owner is entitled to access the property
acceptable amounts to be received by each owner in circumstances where a property is rented, leased, or sold
how rental income or sale proceeds are to be distributed to co-owners
what limits are imposed upon co-owners regarding their ability to dispose of their share of the property
whether the remaining owner has a right to purchase a departing owner’s share of the property
how disagreements in relation to the property are to be resolved between co-owners

Having a co-ownership agreement in place will provide protection, peace of mind and reassurance for co-owners. It may also eliminate the need for costly legal proceedings in the case of dispute. If you are considering a joint purchase of property, we recommend that you seek legal advice regarding the preparation of a co-ownership agreement.

A quick guide to Probate Caveats – What you need to know

Fri, 19 Feb 2021 09:58:31 GMT

What are they and what can they be used for?

A Probate caveat is a type of document that is lodged with the Supreme Court that prevents a grant of Probate or Letters of Administration from being granted. A caveat cannot be lodged after a grant of Probate has been made and if it has, it will serve no purpose.

It can be used to challenge the validity of a Will in instances where there may be doubt about the execution of the Will. It can also be used whether there are concerns about an executor or administrator’s ability to carry out the wishes of the deceased person or concerns as to whether they are the most appropriate person to fulfil that role.

How long do they last and how are they removed?

The Caveat will remain in force for a period of 6 months from the date that it is filed and will lapse after that time unless it is sought to be extended. The Caveat can also be withdrawn prior to the date of lapsing.

Who can lodge a Probate Caveat?

In order to have standing to lodge a Probate Caveat, the person who is concerned about a pending or current application must have a legitimate interest in the estate that warrants the Caveat being lodged. People with an ‘interest’ will be anyone who would otherwise have some right affected by a grant of Probate, such as:

someone who is an executor or a beneficiary under a Will or earlier Will; and
someone who may be entitled to the estate pursuant to the rules of intestacy.

The types of people who may not be entitled to lodge a Probate Caveat include:

someone who may have a Family Provision claim against the estate;
someone who is a creditor;
someone with a Court Order relating to the deceased, i.e. a Family Court order.

Types of Caveats

General caveat against a grant

This type of caveat is the most appropriate in most cases and should be used where the caveat seeks to raise a ground of invalidity such as fraud, testamentary capacity or undue influence.

Caveat concerning informal testamentary instrument

When a person lodges this type of caveat, this grant is prevented from being made without the caveat being given an opportunity to take part in the proceedings which relate to the declaration. However, issues of testamentary capacity, fraud or undue influence cannot be raised by the caveator in this instance.

Caveat requiring proof in solemn form

By lodging this Caveat, the deceased’s will must be proved in solemn form and the person lodging the caveat is entitled to cross examine witnesses in relation to the proper execution of the will.

You should seek independent legal advice before lodging a Probate caveat as there are Supreme Court rules that must be followed and there may be cost implications made against you should you not have the proper basis for lodging the Caveat,

Please contact our office to speak to our Wills and estates team for further information.

Do I need a lawyer when separating from my partner? Here’s 5 reasons why you do!

Mon, 15 Feb 2021 09:59:57 GMT

Have you and your partner separated? Do I need legal advice? Here are 5 explanations why you need a lawyer when going through a separation.

Legal Entitlements – Lawyers are able to give you detailed advice about your legal entitlements. Whether it’s about the arrangements for the care of your child or your entitlement to a percentage of the marital asset pool, your lawyer is there to lay out your options and provide you with advice, to allow you to manage your expectations and be able to make the best possible decisions for your case.
The Do’s and Don’ts – Your lawyer will help to guide your decisions about what to do and what not to do, and the impact it will have on your case. When issues inevitably arise as your matter takes it’s course, you can be confident with each step that you are acting in your best legal interest.
Removing the emotion – In most cases, family law separations are quite emotionally charged. Lawyers are there to ground you and provide you with rational and sensible advice to ensure your case progresses in line with your end goal or expectations.
Dispelling the urban myths – We’ve all heard the old; “if they cheated, I should get more financially from the property settlement”, “the mother always gets full care of the child”, “if I brought 3 houses into the marriage, I should get to keep those three houses”. In most cases, what you hear on the street about family law is not the reality. The outcome in each case will be different depending on the circumstances and the history of the couple. Your lawyer is there to dispel those urban myths and consider your specific circumstances and give you tailored advice.
Confidant – Your lawyer is a trusted person that you can talk to about offers of settlement and the potential outcomes of your matter. The contents of family law proceedings are confidential and should not be disclosed to anyone that is not involved in your case. It is important to have a lawyer on your side to discuss your concerns and expectations with.

If you are going through a separation and are in need of family law advice, our experienced, friendly family lawyers are available to provide you with direction and specific advice that will help guide you through the process smoothly.

This article was co-authored by Law Cadet Taylah Jensen.

Questions rising on unethical insurer behaviour

Tue, 09 Feb 2021 10:00:22 GMT

The federal workers compensation system is rough for unrepresented claimants. For workers who have sustained psychological injury, the process can be particularly difficult and often re-traumatising.

Workers who have made a claim for compensation benefits inevitably need to attend assessments arranged by the insurer with doctors chosen by the insurer. These appointments are known as Independent Medical Examinations (IME’s). The doctor will provide a report which has significant impacts on a worker’s claim for compensation benefits.

A recent investigation by the ABC was conducted in relation to the behaviour of psychiatrist who were retained by the commonwealth insurers to assess workers who had alleges a psychological injury.

Importantly, it was reported some psychiatrists who have been appointed by the insurer in the Comcare Scheme have been the subject of longstanding complaints including allegedly bullying workers who have brought a claim, and that workers are in general being sent for an unreasonable number of IMEs.

This leaves already damaged workers in a particularly vulnerable position.

Under the Comcare scheme, a worker making a claim must attend these medical assessments when they are arranged by the insurer. Failure to attend an appointment without a reasonable excuse may result in the workers entitlements being suspended. Workers may also incur an adverse costs order against you as a result of non-attendance

In principle there is a very good reason why insurers should be able to send workers to an IME: they need information about the injury, its cause and associated disabilities, need for treatment, ability to re-train or return to work in order to properly manage the claim.

These doctors should be reliable, after all they have an obligation to be impartial. They should adhere to the Expert Witness Code of Conduct which imposes a duty to provide independent assistance and unbiased opinions, they cannot be an advocate for either party.

However, in practice, a worker who has suffered a psychological injury is particularly vulnerable to an aggravation in their condition. They need a level of support. IMEs are inherently invasive and require workers to go through the events which caused the condition and the extent of their disabilities. This can be traumatic at the best of times, especially for workers who are already distressed.

These are the workers who would most benefit from genuine support of an insurer to assist their rehabilitation, support their treatment needs, and, if possible, help them to return to some kind of employment. The increased scrutiny of psychological claims may in fact be impairing the ability of these workers to properly manage their injury.

Often, a quicker, easier, cheaper, and less invasive alternative is for the insurer to obtain evidence from the treating doctors (such as treating GP, psychologist and/or psychiatrist). This ought to be the first preference. However this can’t always be managed and there are circumstances where an IME is required, is entirely appropriate, and cannot be avoided.

If you have been referred for an Independent Medical Examination by an insurer and have concerns in relation to attending, we recommend that you speak with your lawyers.

If you or someone you know needs advice about the Comcare scheme it is important to talk to our personal injury team at Kells. We can help you know where you stand and navigate the system.

I am a grandparent – what are my rights?

Fri, 18 Dec 2020 10:00:54 GMT

What happens when there is a marriage breakdown and grandparents are prevented from seeing their grandchildren?

The Family Law Act recognises that children have a right to spend time with significant persons in their lives which include:

both of their parents, regardless of whether the parents are living together or not
step-parents
siblings
half-siblings
step-siblings
grandparents
aunts
uncles
nephews
nieces
any other person that may have had a significant involvement in the child’s life.

When grandparents are seeking to spend time with their grandchildren, the Court takes into account the best interests of a child. This is determined by assessing:

The benefit that the child would have in spending time with the grandparent and its impact on the relationship that the child would have with his or her own parents, siblings etc
The wishes of the child (taking into account their age, maturity and understanding of the situation)
Whether there is any risk or need to protect a child from physical or psychological harm and/or from being exposed to abuse, neglect or family violence
The relationship between the grandparent and their adult child and son/daughter in law (the grandchild’s other parent)
Whether the relationship between the grandparent and the parents of the child or other extended family members has become so irretrievably broken down that exposing the child to acrimony between adults would not be in the best interests of the child
If the relationship has broken down, what are the reasons for that breakdown and is there a need to protect the grandchild from any physical or psychological harm, abuse, neglect or family violence?

The Court may look at ways to mend the broken relationships by ordering therapeutic family counselling and obtaining evidence from experts that may be appointed to the case such as psychologists or psychiatrists.

This is a complex area of family law and we encourage any grandparent or other person seeking to spend time with a child that has become estranged from them, to seek legal advice.

This article was co-authored by Law Cadet Taylah Jensen.

Can my step kids challenge my Will?

Fri, 11 Dec 2020 10:51:07 GMT

The rise in divorce rates and blended families has resulted in changes in family dynamics and has added complexity to the way in which people view their estate planning needs. In some circumstances, it has generated expectations on step-parents to make provision for step-children in their Will and in other circumstances it has resulted in contested estate litigation where step-children may not have been considered in a deceased person’s Will.

In order to contest a person’s Will in New South Wales, the applicant needs to be within the class of “eligible persons” who have the legal right to bring a family provision claim against a deceased estate.

The class of eligible beneficiaries is set out in section 57 of the Succession Act 2006 and is summarised as follows:

the wife or husband of the deceased
a person who was living in a de-facto couple with the deceased
a child of the deceased, including an adopted child
a former wife or husband of the deceased
a person who was, at any particular time, wholly (entirely) or partly dependent on the deceased, and who is a grandchild of the deceased or was at that particular time a member of the same household as the deceased
a person with whom the deceased was living in a close personal relationship at the time of the deceased person’s death.

Being a step-child does not of itself make a person an eligible person to contest a deceased estate of a step-parent. However, step-children may be eligible to contest a deceased person’s Will if they were a member of the deceased person’s household and can establish that they were dependent on the deceased person at any point in time. They will also need to furnish sufficient evidence to support their position that they are an eligible person.

As is the case with any person contesting a Will, step-children will have 12 months from the date of death to commence their claim against the deceased person’s estate.

If you would like to know more about your rights as a step-child, please contact our office to speak with our estate litigation team for further advice.

Family law separation and the passing of a parent – what about the kids?

Thu, 03 Dec 2020 10:01:30 GMT

In many circumstances after parents separate, the child will live primarily with one parent and spend time with the other parent on an agreed or court ordered basis. In other cases, and mainly in the case of slightly older children, the child may spend equal time with both parents on a weekly or other basis.

These arrangements generally stay in place until the child is 18 years old, or earlier if the child so requests or the parents come to a new arrangement due to a change in their circumstances.

But when one parent suddenly passes away – what happens to those arrangements?

In a recent case in the Family Court of Australia, a stepfather as opposed to the child’s biological father was given the primary care of a child on an interim basis, after the child’s mother passed away. [1]

In the circumstances of that case, the child had been living with his mother and stepfather from the age of 1 to age 7, when the mother tragically died in a motor vehicle accident. The child was very close with his stepfather and had a strong relationship with him. The child also had a younger brother (to whom the stepfather was his biological father) that he was closely bonded to.

The child had been seeing his biological father on alternate weekends and for a portion of the school holidays. Unfortunately, after the passing of the child’s mother, the father declined to return the child to the stepfather, following one of those weekend visits.

When determining whether the child should remain with his biological father or be returned to the care of his stepfather, the court considered factors such as: –

The previous arrangements for the child, in that he had lived with the stepfather during each week for 6 out of the 7 years of his life;
The child’s relationship with his stepfather and younger brother;
The trauma that the child had already been through in losing one of his significant parents, and the need to avoid further trauma by removing him from his stepfather and brother;
That the child attended school in the same area as the stepfather did, at the same school as his brother and friends;
The stepfather’s attitude and willingness to ensure the child would still see and interact with his biological father, despite being in his primary care;
The meaningful relationship between the child and his father;
Ultimately, what was in the best interests of the child.

In that case, the court held that it was important for the child to remain living with his stepfather and brother, and to spend time with his father on alternate weekends. However, those orders were only made on an interim basis and may be subject to change at a final hearing.

When circumstances change and the arrangements made for your children need to be altered, our helpful family lawyers can provide you with expert guidance to help get you back on track with your family.

This article was co-authored by Law Cadet, Taylah Jensen.

[1] Cottey & Backe (No.2) [2020] FamCAFC 206

Thinking of buying or selling real estate during the Christmas period?

Fri, 27 Nov 2020 10:01:51 GMT

The summer months in New South Wales can be an exciting time to switch properties.

There are however some traps to watch out for and things to consider during the conventional Christmas holiday period.

Most lawyers and conveyancers take holidays during this period and additionally, there are a number of public holidays in the period.

If you enter into a contract to buy or sell a property prior to the Christmas holiday period you should check that your solicitor or conveyancer includes or negotiates a clause into the contract specifying that the settlement date falls outside the traditional Christmas closedown period (usually around 23 of December through to the end of the first week in January).

If you do not do this, the result may be anxiety or some financial loss to you. The clauses in a land sale contract create obligations on both the seller and the buyer to complete the conveyancing transaction on a specified date. If this cannot be achieved due to the fact that your conveyancing representative is not around to carry out the work, then if you are a vendor you might pay additional interest on your mortgage loan. If you are purchaser, you may suffer default interest owed for late payment or face even more serious consequences for the failure to settle on time.

Another matter to consider is that you might find a property to buy whilst you are on holidays or indeed as a vendor a buyer may come along during the holiday period. In such a case you may not be able to get advice from your solicitor or conveyancer straightaway. Although some solicitors or conveyancers may be available to assist you during the holiday period, many have taken their treasured annual holiday with their families at this time and are out of contact. Whilst a real estate agent may be available at the time who holds a marketing sales contract and is able to negotiate a price between the parties, both parties will be wishing to seek advice from their professional conveyancer prior to committing to the transaction.

The real estate agent may suggest that the parties enter into the contract subject to a cooling-off period. In the case of the vendor, there is still a need to seek advice on the contract which may need updating or otherwise finalising and bear in mind that the cooling-off period does not apply to a vendor. Under New South Wales law the vendor does not have the benefit of withdrawing from the contract during the cooling-off period.

The purchaser, however, does have the benefit of the cooling-off period and can enter into the contract subject to the statutory five business day cooling-off period. A forfeiture of 0.25% of the price applies if the purchaser withdraws from the contract during this period. The cooling-off period does not run during public holidays or on weekends and may be extended upon negotiation between the vendor and the purchaser. If a purchaser’s solicitor or conveyancer is not available when a sale has been negotiated, the cooling-off period, especially if extended, may give the purchaser sufficient time to seek professional advice prior to becoming completely committed to the transaction. So, this assists a purchaser, who must be cautioned however to ensure that his or her solicitor or conveyancer will have sufficient time to properly advise prior to the end of the cooling-off period.

In summary, it is most important to take on board, that if you are considering dealing in real estate during a Christmas holiday period, you should contact our experienced and friendly conveyancing team to discuss the above matters well prior to the commencement of the holiday period.

Please note our firm is closing from 5:15pm on 23 December 2020 and we will reopen at 8:45am on 11 January 2021.

The police powers to arrest in NSW

Mon, 23 Nov 2020 10:02:26 GMT

The right of an individual to be free from arbitrary arrest or detention is a fundamental human right and highly regarded in our legal system. It is for this reason that police can only arrest individuals in certain circumstances.

The power for New South Wales Police to arrest without a warrant is found in section 99(1) of the Law Enforcement (Powers and Responsibilities) Act 2002 which provides that a police officer may arrest without a warrant if:

the police officer suspects on reasonable grounds that the person is committing or has committed an offence; and
the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:

to stop the person committing or repeating the offence or committing another offence
to stop the person fleeing from a police officer or from the location of the offence
to enable inquiries to be made to establish the person’s identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false
to ensure that the person appears before a court in relation to the offence
to obtain property in the possession of the person that is connected with the offence
to preserve evidence of the offence or prevent the fabrication of evidence
to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence
to protect the safety or welfare of any person (including the person arrested)
because of the nature and seriousness of the offence.

What is considered a ‘reasonable suspicion’ will vary from situation to situation however the case of R v Rondo [2001] establishes that ‘a reasonable suspicion involves less than a reasonable belief but more than a possibility’.

What will amount to an arrest?

An arrest is the act of detaining a person or property by legal authority or warrant and has been made when a police officer or another individual makes it clear to the person that they are no longer a free person.

A person does not need to be physically touched to be placed under arrest as words alone are capable of bringing about an arrest if they establish that the person is no longer a free person.

The effect of an illegal arrest

If it is decided by the court that an arrest is not justified under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 the associated criminal offences the individual is facing may be withdrawn or dismissed.

Further, the police involved may also be exposed to civil proceedings seeking compensation.

If you require criminal legal advice or have any doubts as to whether a police search was legal or not, please contact our team of criminal lawyers. We are available 24 hours, 7 days a week and our first consultation is FREE.

New restrictions on the short-term letting industry

Mon, 23 Nov 2020 10:02:07 GMT

From 18 December 2020, a mandatory Code of Conduct (“Code”) will come into force to regulate the short-term letting industry. This Code will impose a minimum standard of good behaviour and other obligations on booking platforms, hosts, letting agents and guests. These include, but are not limited to, the following:

Guests:

must not make noise that unreasonably disrupts neighbours of the property;
must not cause damage to property, including any common property; and
are responsible for the actions of their visitors and must ensure they comply with the behaviour standards set out in the Code.

Hosts:

must hold insurance covering liability for third party injuries and death;
must enable their neighbours to contact them about concerns relating to the property and be available between 8am and 5pm each day to discuss these concerns; and
must ensure they do not rent the property out to a guest who is recorded on the exclusion register.

Booking platform and letting agents:

must tell hosts and guests who use their services about the Code; and
must not advertise or facilitate the offering of accommodation if the host or premises are recorded on the exclusion register.

The NSW Fair Trading Commissioner will be able to take disciplinary action through warnings, fines or recording a guest or host on a register to exclude them from the industry. There are also avenues for individuals to make a complaint to NSW Fair Trading if they believe the Code has been breached.

There are even further changes to the industry expected in mid-2021. This includes the establishment of a short-term rental accommodation premises register which all hosts will be required to register on.

For further information in relation to any of the above or for advice, please contact our office.

What exactly is Collaborative Family Law?

Thu, 12 Nov 2020 10:03:02 GMT

Everyone has heard war stories about someone else’s divorce or they have their own particular story about their separation. Often the story involves a bitter, drawn out court dispute that has left both parties emotionally stressed, financially impacted upon and left them wondering – could there have been a better way to resolve our problem?

Collaborative law practice is a way of helping separating couples resolve their family breakdown in a less stressful and cost effective way. The collaborative process involves a separated couple and their lawyers working together to create solutions to their family law problems without going to court or threatening court action. One of the most stressful factors in a family law dispute can be the court process.

The collaborative law practice process involves a separating couple instructing lawyers that have undertaken training in collaborative law practice. Not all lawyers have undertaken this training. The collaborative law model enables a separating couple to retain control of their decision making and the process involved. Their situation is not determined by a judge. The separating couple work on achieving their own outcomes. The negotiations concentrate on working towards a positive future and avoiding blame and revisiting a negative past.

The separating couple and their collaborative lawyers can choose to involve other professionals in helping achieve a solution to their situation including financial planners, accountants and valuers, child specialists and counsellors.

Collaborative law practice aims to reduce conflict between separating couples by negotiating an outcome in a dignified and respectful way which suits all involved.

The parties and their lawyers sign a Collaborative Law Participation Agreement which is a contract and legally binding. The contract sets out the rules of engagement for the lawyers and the parties involved. The process is confidential, private and works towards achieving a fair outcome for all concerned. Granted, this process is not for everyone, particularly if court proceedings have already been commenced.

If you’d like to know more about Collaborative Law, family lawyer Franca Parolin is a trained Family Collaborative lawyer and can provide you with advice and information about the process to help you work out if the Collaborative Law process is right for you and your former partner.

This article was co-authored by Law Cadet Taylah Jensen.

How does marriage affect your Will?

Tue, 10 Nov 2020 10:03:19 GMT

For most people their Wedding Day is one of the most memorable days of their life. A happy time full of hope and excitement for the future.

However, what many people are not aware of is that a Will is revoked by the marriage of the testator. [1] This means that if you get married and fail to update your Will, you will die intestate and your estate will be distributed according to a predetermined formula under the rules of intestacy.

Therefore, it is important to review your Will and update your Will after the marriage. You are also able to make a Will in contemplation of your marriage. This involves including an express clause in your Will that your Will is made in contemplation of your marriage to your spouse.

Hypothetical scenario

Jane Harris had two children, Billy and Bob from her first de facto relationship. Jane owned a property and had $100,000 in her bank account. Jane made a Will leaving the whole of her estate to her children Billy and Bob. Jane met Robert Smith and they decided to get married. Jane and Robert were married for two years when Jane passed away.

Jane and Robert had always discussed that Jane had a Will leaving everything to her children. Jane did not update her Will after they got married.

Jane passed away intestate as her marriage to Robert revoked her prior Will.

Under the rules of intestacy, Robert was entitled to Jane’s personal effects, and a statutory legacy (the sum of $350,000 adjusted by CPI) and one half of the remainder (if any) of the estate. Jane’s children would be entitled to the remaining part of the intestate estate.

The amount the children would receive (if anything) would depend on value of the estate. If the value of the estate was less than the statutory legacy then Robert would receive the whole of the estate and Jane’s children would be left with nothing.

This outcome is not what Jane have wanted to occur upon her passing.

Lesson to be learned

If you are planning on getting married and have a prior Will it is important you look at updating the Will prior to your marriage to include an express clause that your Will is made in contemplation of your marriage or as soon as possible after your marriage takes place.

If you are in a relationship with blended families, it is important that you update your Will to properly reflect your intentions as to how the estate is to be distributed. If you fail to have a current Will in place you risk the assets of your estate being distributed according to a predetermined formula under the Succession Act 2006 (NSW).

[1] Section 12 of the Succession Act 2006 (NSW).

Hurt on the way to or from work? What can you do?

Tue, 10 Nov 2020 10:02:47 GMT

The New South Wales Workers Compensation Act included coverage for workers injured on a journey to and from work. The coverage was substantially changed in 2012.

These amendments apply to injuries after the 19 June 2012. There now must be a ‘real and substantial connection’ between employment and the accident.

What does a real and substantial connection mean? Each case is different. The Workers Compensation Commission has considered this section in several recent cases.

In Knapp and Ballina Shire Council (1) an arbitrator of the Workers Compensation Commission found that there was a real and substantial connection between his employment and the accident when a worker was using his mobile phone to speak to his supervisor about work-related matters [1] . The Commission also found that the worker was entitled to compensation even though he was charged and convicted of culpable driving.

In other cases, the Commission has found that an employer is liable for injury sustained by a worker where, after a particularly hard day of work at a chicken farm, a worker fell asleep at the wheel of his motor vehicle [2] . Similarly, the Workers Compensation Commission found that a young worker who rose early each day and travelled for some hours was entitled to receive compensation [3] .

This provision does not relate to some workers. These include police officers, paramedics, and firefighters. Coal miners may also be exempt.

What to do?

If you have been injured travelling to and from work, you should obtain advice. At Kells, we are happy to see you on a no win no fee basis to discuss these matters.

Please note that if you have been injured caused by some else’s fault, you may have other rights to make further claims. Time limits apply and you should act quickly to obtain advice.

[1] Knapp v Ballina Shire Council [2018] NSWWCC 94

[2] Naivalu v Ready Workforce [2018] NSWWCC 28

[3] Eather v Skillset Limited [2020] NSWWCC 11

Legislative changes addressing build quality of residential apartments

Thu, 29 Oct 2020 10:50:33 GMT

Recent legislation has been enacted that provides for improvements to the quality of residential apartment constructions. The Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 ( Act ) and the Design and Building Practitioners Act 2020 commencing July 2021 have the effect that the Secretary of the Department of Customer Services ( Secretary ) will undertake a proactive investigation and rectification of serious defects in residential apartment buildings.

The Act introduces an obligation imposed on developers to provide the Secretary with an expected completion notice at least 6 months, but not more than 12 months prior to applying for an occupation certificate in relation to building works.

The Act empowers the Secretary to issue to developers:

1. A stop work order, requiring the developer to stop works being carried out. The Secretary may issue such an order if they are of the opinion that the building work is, or is likely to be carried out in a manner that could result in significant harm or loss to the public or current or future occupiers of the building or significant damage to property.

2. A building work rectification order, requiring the developer to carry out, or refrain from carrying out building work, in order to eliminate, minimise or remediate an actual or potential serious defect. The Secretary may issue such an order if they are of the belief that building work was, or is being carried out in a manner that could result in a serious defect.

3. An order prohibiting the issue of an occupational certificate, or the registration of a strata plan for a strata scheme where:

a. A developer failed to provide the required notice to the Secretary of when it expects to apply for an occupational certificate;

b. The Secretary is satisfied there is a serious defect in the building; or

c. A building bond for rectifying defective building work has not been given to the Secretary. This is required under s207 of the Strata Schemes Management Act 2015 (NSW).

In support of the Secretary’s role, the Act also establishes for authorised officers to have investigative and enforcement powers to ensure compliance with the requirements of the Act. This includes entering a strata scheme’s common property without permission or a search warrant. This power also provides an authorised officer to do anything that is necessary in their opinion, including ‘examine and inspect any thing’, ‘take and remove samples of a thing’ and ‘open up, cut open, or demolish building work’.

Established penalties for a breach or non-compliance with the requirements of the Act have been provided. Breach of a stop work order and non-compliance with a building work rectification results in penalties for corporations of up to $330,000 with an additional $33,000 for each day the offence continues. The maximum penalty for non-compliance with an expected completion notice, setting out the expected date of application for an occupation certificate is $110,000 for a body corporate or $22,000 in any other case.

The Act commenced on 1 September 2020, so accordingly developers and other industry participants need to be aware of and take the necessary action to be equipped for these new guidelines. It is not only current residential apartment buildings that are affected by this new regime, as these new regulations apply to currently incomplete developments and developments constructed within the previous 10 years.

This article was co-authored by Law Cadet Karsandra Mantis.

What you need to know to make a claim for stress at work

Tue, 27 Oct 2020 10:04:20 GMT

Life is full of stress, to varying degrees. There’s good stress, bad stress, high stress, and low stress. Although stress is not unusual at work, it can be very dangerous if it is not appropriately managed.

Workers who have experienced workplace stress which is persistent, or severe in its intensity and has caused a recognised psychological injury can bring a claim for workers compensation.

The claims process can be a little tricky. Nothing (including this article) beats personalised legal advice, based on your circumstances. At Kells that advice is free and we are here to assist you at any stage of the claim.

In order to help you understand the process, we have detailed four important steps below. We have also provided an updated article on this topic .

Step 1: See Your Doctor or Psychologist

A worker can make a claim for stress if it has caused a psychological injury, which carries a medical diagnosis. Seeking medical help is a good idea.

In order to work out whether or not you have sustained a psychological injury you will need to consult your doctor.

Your doctor or psychologist will provide a medical diagnosis and some advice about what treatment is appropriate. This is not just an important part for any claim, but it is also important for your wellbeing.

Your doctor should complete a ‘Certificate of Capacity’ or a Workers Compensation medical Certificate in order to determine whether you are fit for work.

As you are only entitled to compensation for a diagnosable psychological injury and not for mere emotional upset or distress, you should ensure your workers compensation certificate contains a proper diagnosis with medical terminology.

Step 2: Confirm What Caused the Psychological Condition

In order to make a claim a psychological injury must be either completely caused by work, or substantially contributed to by the conditions of your work. Sometimes lawyers refer to this as a ‘causal link’ between your injury and your employment.

A stress condition cannot be compensable if it is found to be caused by personal factors which are not work related, such as relationship, financial or health struggles.

Some common psychological hazards at work include: high job pressures, poor workplace relationships, low role clarity, poor organisational management around change or promotions, unreasonable or impossible deadlines, exposure to trauma or violence, bullying, sexual harassment, and bad working conditions with poor support.

Step 3: Notify your Employer

You must notify your employer that you have sustained a psychological injury. You can notify the employer verbally or in writing, but it is best to do this in writing so that you have a record. You should include your full name and contact details, details of your treating doctor, and a short description of your psychological injury and how it occurred.

If your workplace has a workplace register of injuries, such as a physical book or an electronic log, the entry into the register satisfies the requirement to give notice to your employer.

In order to officially make a claim for workers compensation benefits in NSW you will need to provide your employer a copy of the Workers Compensation Medical Certificate which has been completed by your doctor. This is important.

You should also complete a worker’s compensation claim form and submit the completed claim form to you employer or their workers compensation insurer. Sometimes, if the employer or the insurer has sufficient information, the need for a claim form can be waived. You usually have a time limit of six months from the date of the injury to bring a claim.

Step 4: Insurer to Accept or Deny the Claim

Once the employer becomes aware of the work-related psychological injury, they must ensure their workers compensation insurer is notified within 48 hours.

It is a good idea to ask your employer for the name of their insurer. The employer must provide this information to you.

Once a complete claim has been received, the insurer has 21 days to either accept or deny liability for the psychological injury and any loss sustained as a result.

Always: Seek Legal Advice

If you have sustained a psychological injury, we are here to help you.

Our lawyers are Approved Legal Service Providers with the Workers Compensation Independent Review Office (WIRO). This means you will not need to pay any legal fees in relation to a claim for workers compensation whatsoever.

Making a successful claim is not always easy.

In cases where the conduct that caused the stress is subtle, it can be difficult to establish a claim. You will not be entitled to compensation if your psychological injury was caused by your employer taking reasonable action, this includes things such as performance appraisal, dismissal, and disciplinary actions.

As you can see, each claim really depends on the facts. It is best to get personalised advice to avoid any further emotional distress.

At Kells we are passionate about supporting injured workers, please contact our compensation team so that we can assist you to understand your entitlements and the claims process.

Equal Shared Parental Responsibility vs. Equal Time: what’s the difference?

Tue, 27 Oct 2020 10:03:36 GMT

Following your separation from your child’s other parent; you will both retain parental responsibility for decisions relating to your child (provided they are under 18 years old).

These decisions may be related to your child’s health, education, religion etc on a long-term basis.

The _Family Law Act 1975_ (‘The Act’) provides that both parents will have equal shared parental responsibility, unless the court considers that it is in the best interests for the responsibility to be removed from one parent.

But, parental responsibility is not the same as spending equal time with the child.

The Act does not provide any presumption that the child must spend equal time with both parents. While it is deemed important for the child to have a meaningful relationship with both parents, the Act does not specify a presumption for equal time.

Often, parents will come to an arrangement about the time the child will spend with each parent.

However, this can be tricky where the parents struggle to communicate with each other or have different opinions has to how the child’s time shall be spent between each parent, or how the changeover between households is to occur.

When the lines get blurry and you are unable to come to an arrangement, or you believe your child would benefit from spending additional time with you, we recommend you seek legal advice.

Our lawyers are able to consider your circumstances and assist you to:

- Determine possible parenting arrangements and formulate a proposal for your child’s other parent;

- Communicate with your child’s other parent (or their lawyer) to attempt to reach an agreement on a new parenting arrangement;

- Arrange a Mediation for the dispute; or

- Prepare your matter to be heard by a Court for the arrangements that would be in the best interests of the child.

For more information on parenting arrangements, please do not hesitate to reach out to our family law team for further advice.

This article was co-authored by Law Cadet Taylah Jensen.

Security of Payment: how to claim

Thu, 22 Oct 2020 10:04:38 GMT

Due to the nature of the building industry, contractors are consistently faced with the risk of delayed or non-payment for work that has been completed. The Building and Construction Industry Security of Payment Act 1999 (NSW) ( SOP Act ) was introduced to alleviate this problem.

The SOP Act provides a regime where a person who has carried out construction work, or has supplied goods or services related to construction work, is entitled to issue progress payments and provides a quick and cost effective mechanism to resolve any disputes without having to go to Court.

When can a payment claim be served?

The construction contract generally identifies when a payment claim can be made. These timeframes must be strictly complied with or the payment claim may be deemed invalid.

If the contract is silent on when a payment claim can be made, or there is no contract, the SOP Act permits one payment claim to be made per calendar month.

What must a payment claim include?

The SOP Act provides certain requirements needed to make the payment claim valid. The payment claim must:
identify the person that is liable to make the payment (Respondent);
identify the construction work (or related goods and services) to which the progress payment relates;
indicate the amount that is claimed to be due;
state it is made under the SOP Act; and
if served by a head contractor. Include a ‘supporting statement’ in the form prescribed by the SOP Act.

What next?

The SOP Act requires the Respondent to serve a payment schedule to be served within 10 business days of receipt of the payment claim. The payment schedule should identify what is proposed to be paid and what amount (if any) is to be withheld, including the reasons for doing so.

The scheduled amount (or the full amount of the payment claim if no payment schedule has been served) must then be paid with 15 business days for a head contractor or 30 business days for subcontractors.

If the payment schedule is disputed, the matter can be referred to adjudication. Any adjudication application must be made within 10 business days of receiving the payment schedule.

Paternity: Am I actually the father?

Thu, 22 Oct 2020 10:03:58 GMT

The Family Law Act acknowledges the benefit of both parents being actively involved in a child’s life. For instance, when a court makes decisions about children, the importance of a child having an ongoing and meaningful relationship with both of their parents is one of the main considerations.

The legal framework also requires parents of children to assume certain responsibilities in relation to their children including to provide for them financially. For example, parents may be required to pay child support for their children if they are no longer living with the child’s other parent.

This means there is a lot at stake if there is doubt about who a child’s father is. For instance, a person may find themselves having to pay child support when they are unsure if they are in fact the father of that child.

If there is doubt about who a child’s father is, the court will generally be required to make a decision. The general approach a court takes is as follows:

Presumption of paternity

The Family Law Act identifies a number of situations where the court will simply presume the applicant is the father of the child.

Those circumstances can sometimes be quite obvious, such as where parties were married and a child was born during the marriage or where the ‘father’ has previously signed another legal document declaring he was the father of the child.

Rebutting the presumption

If a presumption of parentage applies, the ‘father’ will need establish that they are more than likely not the child’s father.

Most commonly, this evidence is provided by taking a paternity test. Either party to a family law dispute may request a paternity test be ordered and the Court is given the power to require parents (or the child) to submit to parentage testing where deemed necessary or appropriate.

Depending on the outcome of a paternity test, the court can then make a declaration as to the child’s parentage and this will act as conclusive evidence for other issues, such as child support assessments and the like.

This article was co-authored by Law Cadet Ben Goodhew.

Electronic witnessing extended in NSW

Wed, 21 Oct 2020 10:05:07 GMT

In response to the COVID-19 pandemic, in April 2020 regulations were introduced to enable certain documents to be witnessed by audio visual link (the initial 6 month period was due to end on 22 October 2020, however this was repealed on 28 September 2020).

The electronic witnessing and attestation provisions have now been incorporated into Part 2B of the Electronic Transactions Act 2000 (NSW) which is titled “Remote witnessing pilot scheme”, and their operation has been extended to 31 December 2021 .

The impact for the practice of property, wills and estates practitioners is it continues to provide an alternative mechanism to witness and attest to documents by audio visual link which would otherwise need to be witnessed in the physical presence of a signatory.

What is audio visual link?

Audio visual link or AVL is defined as “technology that enable continuous and contemporaneous audio and visual communication between persons at difference places, including video conferencing”.

This would include platforms such as Skype, Zoom, Microsoft Teams, Whatsapp and FaceTime.

Which documents can be witnessed remotely?

The types of documents that can be witnessed by AVL include:

1. A Will

2. A power of attorney or enduring power of attorney

3. A deed or agreement

4. An enduring guardianship appointment

5. An affidavit, including annexure or exhibit

6. A statutory declaration.

As with the regulations, the conditions to witness remotely include that the witness must:

Observe the signatory sign the document in real time
Confirm they witnessed the signature (by signing a counterpart or countersign the document)
Endorse the document with a statement specifying the method used to witness the execution of the document, similar to:
This document was signed in counterpart and witnessed over audio visual link in accordance with section 14G of the Electronic Transactions Act 2000
Be reasonably satisfied the document signed is the same (or a copy of) the document signed by the signatory (e.g. read aloud or page turn comparison).

Importantly, documents can still be witnessed in the traditional way in the presence of the signatory. The remote witnessing provisions offers an alternative option to witness documents via AVL where it is not possible to meet safely in person or it is more convenient to do so.

Regardless of the method used for witnessing a document, for the document to be legally valid still requires the signatory to possess mental (or testamentary) capacity and free will (i.e. be free from influence).

Does the signatory need to be in NSW?

The new provisions do not stipulate where the signatory or witness should be located (they are silent on this point). It follows the signatory is not required to be physically located in NSW when signing a document to be witnessed by AVL.

Will remote witnessing become permanent?

The new electronic witnessing provisions will expire at the end of 2021. The NSW Attorney General has indicated that this time will provide an opportunity to review and assess the merits of remote witnessing, with a view to determining whether they should be made permanent and extended beyond COVID-19.

For more information on what you can sign and have witnessed electronically, please do not hesitate to reach out to our estate planning team for further advice.

Time limits in contesting a Will

Thu, 15 Oct 2020 10:05:33 GMT

When you are considering contesting a Will, timing is important. You should be aware that in commencing proceedings in New South Wales to contest a Will, you have 12 months from the date of the deceased’s death to bring your claim .

The Court does have power to extend the time limitation under section 58(2) of the Succession Act 2006 (NSW), however the Court must be satisfied that the person bringing the claim can show sufficient cause, or that the parties consent to the application being made out of time.

In determining what constitutes sufficient cause, Justice Hodgson in the case of Lewis v Lewis stated that “sufficient cause must be taken to mean sufficient explanation or sufficient justification or excuse“. The Court in its consideration would look at factors such as:

1. The sufficiency of explanation of delay in making the claim.

2. Whether there would be any prejudice to beneficiaries if the period was to be extended.

3. Whether there had been any unconscionable conduct by the plaintiff; and

4. The strength of the plaintiff’s case.

Justice Hallen of the Supreme Court stated in the case of Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC748 that “ ultimately, justice is the paramount consideration in determining whether to extend time for making an application… ”.

An example of when a Court may allow an out of time application is where someone is genuinely unaware that a person has died. Alternatively, being unaware of the time limits to bring a claim may be a circumstance the Court considers.

In summary, when deciding whether or not to bring an out of time application, you need to be mindful that the Court has a wide discretion in determining whether or not to allow your out of time claim in and in doing so will look at all of the reasons as to why your claim is late.

Another important consideration is that this type of claim will not be determined until the matter reaches the stages of final hearing. Taking a matter to final hearing often takes approximately 12-18 months after the claim has been first filed, and an individual will incur significant legal costs in getting the claim to this stage. It is at this stage of final hearing where the Court will decide whether to allow your out of time claim. This means that you may reach this point, have incurred substantial costs and still not be awarded an extension of time to bring your late application.

If you have just discovered you have been left out of Will or your timeframe to bring a claim has lapsed, please contact our office urgently to speak with our team for further advice.

My child is being bullied at school – can I change their school if my ex-partner doesn’t agree?

Fri, 09 Oct 2020 10:05:53 GMT

When parties separate, often parents will either come to an agreement or enter into orders about the future care and education of their children. In some circumstances, this may mean that parents agree to have their child attend a specific school.

But what if your child is bullied at that school? What if your former partner opposes the child changing schools?

In any parenting dispute, the primary consideration is what is in the best interests of the child.

In previous cases where a child has been bullied, and the parents have been in dispute about whether the child ought to change schools, the court has considered the following when determining whether the bullying warranted the child changing schools:

Whether the child was a victim of bullying, and if so, the nature of that bullying;
Whether the bullying was impacting on the child’s physical or psychological welfare;
The academic performance of the child at the current school;
Whether the child had formed social relationships or had close friends at the current school, and the impact a change in schools would have on those relationships;
The child’s wishes to change schools;
The benefits of the proposed new school (e.g. better mechanisms for dealing with bullying);
The travel to the new school (weighed against the benefits to the child of the new school).

Primarily, the court will take action to protect the psychological and physical well-being of a child. If it is in the best interests of the child to change schools, but it will take the parents longer to drive the child to school, the court will place the needs of the child above any geographical inconvenience.

If you are experiencing issues with an agreement or order that is in place between you and your former partner, our experienced family law team can provide advice to assist you to resolve any issues you are experiencing.

This article was co-authored by Law Cadet Taylah Jensen.

Secondary injuries under the Workers Compensation Act

Thu, 08 Oct 2020 10:06:25 GMT

Unfortunately, for some workers, they not only suffer a single injury at work but will sometimes develop a further injury as a result of that injury. These latter injuries, also known as a ‘Secondary Injuries,’ while not always sustained at work, can still entitle workers to compensation entitlements.

For a worker to be entitled to compensation for a secondary condition, the worker must prove the initial injury materially contributed to the development of the secondary condition. The relationship needs to be established between the first and second injury rather than its relationship with the workplace (unlike the test for an initial work-related injury).

Under the _Workers Compensation Act_ (the Act), a worker who has developed a secondary condition is entitled to receive statutory benefits in the form of weekly compensation (wages) and medical treatment expenses. A worker should utilise the same claim number as the initial injury when making requests for statutory benefits for the secondary condition.

In respect to a claim for lump sum compensation for permanent impairment, if the secondary condition is psychological when the initial work-related injury was physical, the worker is not entitled to make a claim for lump sum compensation for permanent impairment ( section 65A of the Act ).

However, if the initial work-related injury was physical and the secondary also physical, the worker is entitled to combine the assessments of permanent impairment (using the Combined Values Tables) should there be a causal relationship between the two injuries and the employment.

If you have suffered a secondary injury and are having difficulties with your workers compensation insurer you should contact our experienced and friendly team of lawyers to learn how we can help you.

Law reform in relation to Child Sexual Abuse in Australia

Thu, 08 Oct 2020 10:06:09 GMT

During the late 1990s and the early 2000’s victims broke their silence and allegations of child sexual abuse in Australia were made, implicating a number of well known and trusted religious and non-religious institutions.

These allegations were notoriously difficult to prove and prosecute as the offenders were often moved from place to place whilst being protected by organisations instead of their abuse and the crime being reported.

Victims were understandably skeptical in coming forward, especially when facing the burden of re-living the assaults and the challenges associated with facing the hierarchy of these powerful institutions, with little more than a historical recollection.

On 12 November 2012 the then Prime Minister Julia Gillard, announced that she would recommend to the Governor General that a Royal Commission be appointed to enquire into institutional responses to child abuse.

This move was prompted by revelations of adults’ inability to stop further acts of child abuse and the obvious historical abuse of children in educational institutions by religious groups, sporting organisations, state institutions and youth organisations. The commission was also supported by similar organisations in the United States and several other European countries.

On 15 December 2017 the Royal Commission presented its final report to the Governor General detailing the accumulation of a five year enquiry into child sexual abuse.

The findings from this commission have lead to greater investigatory powers available to the police, and has resulted in a significant amount of successful prosecutions. Due to the new powers, more evidence has been available which has given the abuser little option but to admit their crimes and pleading guilty. This new approach does not only bring offenders to justice but also increases child protections and delivers better outcomes for survivors.

To supplement the new investigatory powers, reforms have come into place to make it easier to prosecute persistent child sexual abuse offenders with the existing offence of grooming children being broaden to cover situations where a victim is provided with money or material benefit. In addition to the widening of the legislative definitions, the maximum penalty for grooming offences has been increased from 25 years to life imprisonment.

Sexual abuse has ongoing and devastating effects on the victims who have to survive through significant abuse whilst at a very vulnerable stage. It also leads to survivors with trust issues particularly when the state institutions have let them down for not only their failure to protect them but also their ongoing protection of the abusers.

While no amount of compensation can right the wrongs caused to these people, the Government has now increased the amount that a victim can claim in addition to the New South Wales Government recognition payments.

Victim of such abuse, you can potentially also receive compensation for non-economic loss such as pain and suffering, past and future lost of income and past and future medical care costs.

Don’t forget to exercise your option to renew your commercial lease

Tue, 06 Oct 2020 10:09:18 GMT

Your commercial or business lease will ordinarily be for a fixed period expiring on a specified date.

Although there will usually be a provision in the lease allowing the tenancy to continue, for instance, on a month to month basis following the end of its fixed term, there is often a clause allowing the tenant a further fixed term or terms if the tenant should elect for this.

This provision is known as an option or options to renew. The lease will provide that if the tenant is up to date with rent payments and compliant with all the other terms of the lease then the tenant may take up the option to renew by providing a Notice of Exercise of Option to Renew to the landlord. This notice can be prepared by your lawyer and must state in written terms that the tenant elects to exercise the option to renew as provided for in the lease, call for a further lease of the option term and must be formally dispatched to the landlord.

Furthermore, the lease will provide that the notice be provided to the landlord within a certain time (for example – not more than six months but not less than three months prior to the end of the existing fixed term lease). It is most important that a tenant records these dates in advance to ensure that the Notice of Exercise of Option is provided to the landlord within the prescribed time period.

Unfortunately, many commercial tenants do not fully appreciate the above. Although some may understand that there is a right for the fixed term to be extended, many do not appreciate that the further option term must be the subject of a new lease document. The landlord accordingly prepares a brand new lease for the option term which must be signed by the landlord and the tenant and sometimes registered with the NSW State Government.

Failing to exercise an option to renew can be tragic for a tenant and its business leading to an eviction and loss of security of tenure for the business.

In the case of a retail shop lease subject to the Retail Leases legislation in NSW, there is a requirement for the landlord to send the tenant the following notice. Not less than six months and not more twelve months before the expiry of the lease the tenant must be notified that the landlord offers the tenant a renewal or extension of the lease on terms specified in the notification or be informed that the landlord does not propose to offer the tenant a renewal or extension of the lease.

The above provision does not apply to a lease which contains on option to renew. It places a responsibility on a landlord to notify the tenant in a retail shop business of its intentions when the fixed term of the lease is starting to approach its end.

Tenants need to be aware of the above provision, for if the landlord fails to provide the required notification, the term of the lease is extended until six months following the provision by the vendor of the notification. However this only applies if the tenant requests that extension in writing from the landlord prior to expiry of the lease.

As a commercial tenant you should be familiar with the lease terms covering the Option to Renew and if relevant act on them. Further as a retail shop tenant, you should be aware of the above law which affords you (the tenant) some protection from an otherwise unexpected early eviction.

Government assistance extended to commercial and retail tenants affected by COVID-19

Tue, 06 Oct 2020 10:06:41 GMT

The NSW Government has announced an extension of six months of the Regulations that were earlier introduced to assist tenants and landlords whose finances have been disadvantaged on account of the COVID-19 pandemic. The Retail and Other Commercial Leases (COVID-19) Regulation was due to expire on 25 October 2020 but will now remain in effect until 31 December 2020. Depending on how the next few months play out, there may or may not be further extensions.

The Regulations provide that landlords who lease premises to an “impacted lessee”, being those who:

1) Qualify for the Federal JobKeeper subsidy, meaning that they have experienced at least a 30% reduction in turnover from a relevant comparable period; and

2) Had a turnover of less than $50 million in the 2018-19 financial year.

In the event that a tenant fails to pay rent or open for trade in accordance with the lease:

1) Evict the tenant.

2) Re-enter the premises.

3) Recover funds held under a security bond.

4) Call on any guarantees given under the lease, or

5) Terminate the lease.

Further, except where a tenant’s rent payable is based on turnover, landlords cannot increase the rent payable by the tenant, even if a rent review date arrives. A landlord must also pass on any discounts afforded by authorities in respect of statutory charges which are payable in the form of outgoings.

Tenants must re-establish their eligibility for the extension period if they wish to request further rent relief. Landlords must respond to a tenant’s request for further relief within a reasonable period of time.

Landlords who grant rent relief in respect of properties for which they are liable for land tax between October and December 2020 can apply to Revenue NSW for a concession on land tax payable for the 2020 land tax year. This new concession is in addition to the concession already provided to landlords who granted rent relief between April and September 2020.

The concession will be applied against any unpaid 2020 land tax and refunds will be issued where the full yearly payment has already been made.

Stamp duty changes for first home buyers

Tue, 29 Sep 2020 10:09:54 GMT

In response to the COVID-19 pandemic the NSW Government has increased the stamp duty exemption and concession thresholds under the First Home Buyers Assistance Scheme.

These changes apply when buying a new home or vacant land and apply from 1 August 2020 until 31 July 2021.

New homes

No stamp duty is payable if the value of the new home is less than $800,000.

Concession of stamp duty if the value of the new home is between $800,000 and $1million

Vacant land

No stamp duty is payable if the value of the land is less than $400,000

Concession of stamp duty if the value of the land is between $400,000 and $500,000

No change in thresholds as they remain at:

No stamp duty is payable if the value of the existing home is less than $650,000.
Concession of stamp duty if the value of the existing home is between $650,000 and $800,000.

There have been no changes to the $10,000 First Home Owners Grant (New Homes) scheme as the purchase of a new home or building a new home (including land value) threshold is still capped at $750,000.

Do you need property law advice? Call us today to learn how we can assist you.

Navigating COVID-19 and your separation with particularly vulnerable children

Tue, 29 Sep 2020 10:09:36 GMT

Implementing cohesive parenting arrangements with your former partner can be difficult in any circumstances, but the looming threat of COVID-19 makes matters that bit harder.

It is commonly known that certain members of the community will be more vulnerable and susceptible to contracting the coronavirus.

Parents in this climate have had difficulties continuing their parenting arrangements and/or complying with parenting orders, particularly in circumstances where their child is particularly vulnerable to the virus.

In a recent case decided by Chief Judge Alstergren of the Federal Circuit Court, a mother withheld her child from seeing the Father for a period of almost 3 months from March 2020 to June 2020. [1] The mother claims do have done so on the basis that she and the child were self-isolating at home due to COVID-19, following the advice of their GP. The child in this case had a particular medical condition which his GP believed made him vulnerable to contracting a severe case of COVID-19, if he were exposed to the virus.

When parenting orders are contravened, the court must decide if the parent not complying with the orders had a ‘reasonable excuse’ to do so.

Chief Judge Alstergren held in that case that the medical advice initially received by the mother gave rise to a reasonable excuse to withhold the child. However, after an updated medical report was received that indicated the child was not at high risk during the pandemic, the mother had no reasonable excuse to contravene the orders in place after that time.

The court also ordered that the Father have some makeup time with the child as a result, which is common where a child has been withheld by one parent.

The court has developed a separate ‘COVID-19 List’ to deal with urgent matters as a result of COVID-19. The court has also urged parents to comply with any court orders in relation parenting arrangements wherever possible and to be reasonable.

If you have concerns in relation to your child’s health or safety due to COVID-19 and believe it will impact upon your parenting arrangements with your child’s other parent, we urge you to seek legal advice to ensure you are aware of your rights and the options available to you.

[1] Pandell & Walburg (No.2) [2020] FCCA 1853

This article was co-authored by Law Cadet Taylah Jensen.

Can you really leave your home under your Will?

Tue, 29 Sep 2020 10:08:51 GMT

The estate planning process is one that requires a careful review of your personal assets. If you fail to properly understand how you own your assets you may fail to adequately provide for those beneficiaries you intend to benefit.

The family home is usually one major asset an individual wishes to dispose of under his or her Will. However, if a property is owned as joint tenants with another property owner then the rules of survivorship will apply. According to the doctrine of survivorship, property owned as joint tenants passes to the surviving joint owners.

The decision as to whether you should own a property as joint tenants or tenants-in-common is an important one and will depend on your individual circumstances.

Hypothetical scenario

John and Helen own a property at 1 Blueberry Place, Ocean View as joint tenants. John has three children from a previous relationship. Helen has no children.

John makes a Will that leaves his interest in the property to his three children. John is of the view that he owns 50% of the property and that when he dies he would like to leave it to his children.

John dies and under the doctrine of survivorship Helen becomes the sole owner of the property.

It is important you carefully discuss and advise your lawyer of your assets. A title search of the property would have shown the property was owned as joint tenants rather than tenants-in-common. In this scenario, John may have considered severing the joint tenancy to tenants-in-common in equal shares so that he owned a distinct 50% share of the property. On his death, the terms of his Will would then leave his 50% share of the property to his three children.

Transfer of ownership on death

If you own a property as joint tenants, the surviving joint owner will be required to lodge a notice of death with NSW Land Registry Services to record a change in the ownership. You usually will only require the certificate of title for the property and the death certificate of the deceased property owner in order to complete this process.

However, if the property is owned as tenants-in-common, then the property will pass in accordance with the terms of the deceased’s Will. The executor will be required to lodge an application for a grant of probate of the Will of the deceased with the Supreme Court of NSW before they can arrange a transfer of the property. This will be required even if the property passes to a surviving spouse under the terms of the Will.

A Will is one of the most important documents you will sign in your life. It requires a proper review of your assets and discussions about your personal circumstances and what you hope to achieve on your death. There are a number of tools and searches we can use to properly advise and amend your structures if required) to ensure your wishes are fulfilled on your death.

Do I need a lawyer/conveyancer to buy a property?

Tue, 29 Sep 2020 10:07:27 GMT

For many people, buying a property is one of the biggest (and most expensive!) purchases of your life. Due to the stress and costs involved in securing your dream home, it is important that you get it right. Whilst you may be able to purchase a property without engaging a solicitor or a conveyancer, we recommend that you do so that they can assist you from the start to the finish and save you a lot of stress, time and money in the long-run.

But what do lawyers and conveyancers do?

One of the most important elements of our role is that we review your contract and advise you on the terms of the contract including any additional conditions, the documents contained within the contract, such as the plan or any restrictions or covenants noted on the plan, and any additional items you need to be aware of such as the zoning information for your property and the location and connections for your sewer.

We negotiate any changes to the contract of your behalf and work with the real estate agent and seller’s legal team to work towards exchange of contracts and locking in your purchase for you. We do this so that the contract is best suited to your needs and does not lock you into any hidden provisions that could cost you later down the track.

Once contracts have been exchanged and you are locked in to purchasing the property, we work with you every step of the way up until settlement. We liaise with your broker to ensure your loan is on track, we prepare settlement statements to notify you of the total funds required in order to complete your purchase, we lodge your stamp duty return on your behalf and advise you in relation to any stamp duty concessions that may be available to you and we attend settlement on your behalf, electronically via the PEXA platform.

Whilst the settlement date is generally a fixed date, sometimes contingencies do often arise and for some reason settlement may not occur on the agreed upon date. Having a lawyer or conveyancer involved who is aware of all the necessary requirements and strict time frames will help ensure that all the necessary arrangements are made prior to the settlement date, so that you can be moved into your new home as soon as possible.

Our primary role is to ensure that your property is transferred to you in the most efficient way and we take on the stress for you so that you can enjoy the process of purchasing your new home.

Warehouse and storage liens

Tue, 29 Sep 2020 10:07:03 GMT

Throughout Australia, legislation exists that enables a person to recover the cost of storage, claims for insurance, transportation, labour and other expenses in relation to goods in their possession where the person who deposits the goods fails to pay for the storage charges or cannot be located.

This power is provided by the establishment of a ‘statutory lien’ over the stored goods. Each State and Territory has enacted its own legislation establishing such liens, which includes the Storage Liens Act 1935 (NSW), Warehouseman’s Liens Act 1958 (Vic), Warehouse Liens and Storage Act 1990 (SA), Storage Liens Act 1973 (QLD), Warehousemen’s Liens Act 1969 (NT), Disposal of Uncollected Goods Act 1968 (TAS), Warehousemen’s Liens Act 1952 (WA) and Mercantile Law Act 1962 (ACT) ( Storage Liens Legislation ).

What is a Lien?

In essence, a lien is a legal right or interest in property that allows a person to maintain possession of property belonging to another person until a debt owed by that person has been satisfactorily discharged. Generally, the right to claim a lien over goods can be established by common law (general lien or particular lien), legislation or in some cases, by contract.

Who can claim a storage lien?

Under the Storage Liens Legislation, a person who stores ones goods is either referred to as a ‘Storer’ or ‘Warehouseman’, depending on the jurisdiction.

There is no express requirement that a ‘Storer’ or ‘Warehouseman’ be solely involved in business or storing goods and a ‘Storer’ or ‘Warehouseman’ can extend to a freight or transport company that holds or stores goods in the course of providing transportation and warehousing services.

Rights in respect of a storage lien

In situations where a storage lien may be in force and the owner of the stored goods fails to return to collect the goods or pay the storage fees (and other ancillary expenses), a ‘Storer’ or ‘Warehouseman’ in possession of the goods is entitled to:

retain the goods as security until the owner pays the relevant storage charges and other costs prescribed by the Storage Liens Legislation; or
after complying with the required notice and advertising provisions of the Storage Liens Legislation, sell the goods at public auction to satisfy those charges and other costs.
Importantly, any statutory lien established does not grant a general right or entitlement to hold goods as security for debts owed to a creditor by the debtor generally. The charges and costs claimed are limited to what is permitted under the relevant Storage Liens Legislation.

Other Considerations

The use of a storage lien can be a powerful tool, particularly in cases where other security interests under the Personal Property Securities Act 2009 (Cth) ( PPSA ) exist over the stored goods.

A storage lien claimed under the Storage Liens Legislation generally takes priority over security interests without any need for the Storer or Warehouseman to have registered their interest on the PPSR.

This can be very beneficial for a Storer or Warehouseman in circumstances where the owner of the stored goods is at risk of bankruptcy or insolvency and the stored goods are subject to one or more claims from other creditors, including those registered on the PPSR. It places the Storer or Warehousemen in a strong position to secure monies ahead of the other creditors.

We can assist

If you operate in the transport or warehousing industries and there are debts owed to you by your customers, please get in contact to discuss how we might be able to assist you.

Accessing a copy of a will and probate documents in NSW

Fri, 25 Sep 2020 10:10:20 GMT

It is often the case that beneficiaries and other interested persons wish to see the will of a deceased person after becoming aware of their death and prior to a grant of probate having been obtained.

A beneficiary named in a will does not automatically get a copy of the will of a deceased person and there is no obligation on the executor to hold a “reading of the will” following the death of the deceased person.

If for some reason however a beneficiary would like to see the will itself, he or she can apply to view the will or receive a copy.

Under Section 54 of the Succession Act (NSW) 2006 , a person who has possession or control of the will of a deceased person whose estate is to be administered in New South Wales must allow a person to inspect or have a copy of the will (at that persons expense) if they are:

1. Any person named in the will, whether as a beneficiary or not;

2. Any person named or referred to in an earlier will as a beneficiary of the deceased person;

3. The surviving spouse, de facto partner (whether of the same or opposite sex), or a child of the deceased person;

4. A parent or guardian of the deceased person;

5. Any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate;

6. Any parent or guardian of a minor referred to in a will or who would be entitled to a share of the estate of the testator if the testator had died intestate;

7. Any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person;

8. Any person committed with the management of the deceased persons estate under the NSW Trustee & Guardian Act 2009 immediately before the death of the deceased person;

9. Any attorney under an enduring power of attorney made by the deceased person; and

10. Any person belonging to a class of persons prescribed by the NSW Succession Regulations.

No person is entitled to see the will of a person who is still alive even if they are an eligible person to view or receive a copy of the will on the persons death, or they hold the Power of Attorney of the person concerned.

A person entitled to inspect or receive a copy of the will of the deceased person, and who wishes to see it before probate is obtained, should make initial contact with the executor or the solicitors acting for the executor and request a copy of the will.

In the rare case where the executor may be unknown to the interested person he or she can firstly check with the Supreme Court to see if there has been a notice published on line by an executor of an intention to apply for probate and otherwise by searching the local papers circulating in the area where the deceased resided for funeral or other notices.

In the event that the person responsible for the will and obliged to allow access or make a copy then refuses to do so, or there is a dispute over whether the person requesting access or a copy is entitled to such access, the remedy is to commence proceedings in the Supreme Court of NSW. The Court can be asked to make an order under s 54(3) of the Succession Act requiring that the person holding the will produce it in Court.

Accessing a will after probate has been granted does not carry the same degree of difficulty if there is an objection to a copy being made available before probate is obtained.

The Probate and Administration Act (NSW) 1898 provides that the will of a deceased person once admitted to probate is a public record document and that any person is entitled to apply for a copy of it from the Supreme Court of NSW provided that they have paid the relevant fee.

In many cases the Inventory of Property accompanying the Grant of Probate can be of singular interest to beneficiaries as it documents the assets comprising, and the estimated gross value of, the deceased estate subject to the will.

For records retained by the Supreme Court from 1977 to the present, the Inventory of Property (Inventory) is only available to executors, administrators, residuary beneficiaries and applicants who have commenced proceedings in contested family provision claims under the Succession Act (provision claim).

The Inventory is not available to other applicants, including creditors or potential claimants. A person or institution holding assets of the estate however is entitled to verify that the relevant asset was disclosed in the Inventory before allowing the transfer of that asset.

After a grant of probate has been made, all beneficiaries are entitled to an exemplification of the grant which includes the will. An exemplification is a sealed, Court authorised copy of the grant.

An exemplification of the Grant includes the will of the deceased person but will only include the Inventory if the applicant is a residuary beneficiary.

Application for an exemplification is made to the Supreme Court along with payment of the applicable fee. Generally, it takes the Court 14 days to process such a request.

A prospective claimant wishing to inspect the Inventory to ascertain the assets and estimated gross value of the deceased estate prior to launching a provision claim has no means of compelling the production of a copy of the grant of probate containing the Inventory from the executor and no way of accessing it through the Court unless a residuary beneficiary.

The only certain for any other class of beneficiary or other person to obtain a copy of the Inventory is to commence a provision claim. However, there are likely costs consequences if such proceedings are commenced and later discontinued once the Inventory has been released and assessed.

The affidavit of executor is not a public record document and access is not usually granted by the Court.

A beneficiary may however apply to the Court but would need to set out sound and compelling reasons why access should be granted.

Access to the affidavit of executor is allowed in accordance with the requirements outlined in Practice Note SC General 2 which applies as well to the probate files held by the Court.

Virtual e-signing and AGMs granted a second chance

Thu, 24 Sep 2020 10:10:39 GMT

In May this year, the Federal Government passed the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Cth) ( Determination No. 1 ). We recently reported on this Determination No. 1 and its effect. Please refer to our previous article .

The Determination No. 1 was to be in force for 6 months from 6 May 2020 (being 6 November 2020). However, given that social distancing measures and other COVID-19 restrictions are not guaranteed to ease anytime soon, the Federal Government has considered that the timeframe for the Determination No. 1 should be extended.

As a result, the Corporations (Coronavirus Economic Response) Determination (No 3) 2020 (Cth) ( Determination No. 2 ) commenced on 23 September 2020. This replaces the Determination No. 1 and will be in force for 6 months from 23 September 2020.

The Determination No. 2 extends the effect of Determination No. 1 (as outlined in our previous article) until 23 March 2021. In particular, this means that:

Companies will continue to be able to hold their Annual General Meetings (AGMs) and other meetings using one or more technologies, rather than having to undertake these meetings face-to face. This means that companies can now plan their AGMs and other meetings beyond November 2020 knowing that these will not be cancelled due to COVID-19 social distancing and border restrictions.
Officers of a company will continue to be able to execute a document (including a document in electronic form) without a common seal if they each sign a counterpart of the document that is in physical form or if they sign the document electronically. This continues to extend the manner of signing documents under section 127 of the Corporations Act and gives certainty that a document has been validly executed when company officers sign a document electronically.

Cancellation of Paper Certificates of Title

Wed, 16 Sep 2020 10:49:56 GMT

As of 1 July 2019, it became compulsory to complete the majority of conveyancing transactions electronically.

In preparation for the move to the new electronic conveyancing system, Land Registry Services converted all paper certificates of titles of which there was a mortgage recorded in favour of a financial institution, to an electronic form of title. All certificates of title for properties that were not encumbered by a mortgage remained in their paper form.

The NSW Government has now approved the cancellation of all paper certificates of title. It is anticipated that legislation to give effect to this approval will be passed around mid 2021.

Once all paper certificates of title have been converted to an electronic title, this will mean that:

any paper certificate of title held by you for your property will no longer be valid;
any paper certificate of title held by any creditor as security for a debt owed to them by you will no longer be valid; and
if you need to record any plan, dealing or instrument against your title, you will need to engage a solicitor or a conveyancer to assist.

When dealing with any electronic title, solicitors and conveyancers are obliged to verify the identity of the property owner.

Whilst your paper certificate of title will no longer be valid, any debt owed to a creditor may be secured by a registered mortgage or a caveat lodged against your title.

Despite the intended cancellation of all paper certificates of title, if you hold a paper certificate of title for your property, you should continue to retain it in a safe place unless you are advised to do otherwise, following the conversion to an electronic title.

Mediation: 5 key points you need to consider

Wed, 16 Sep 2020 10:11:15 GMT

1. What is Mediation and why do it?

Mediation is a voluntary dispute resolution option that focuses on problem solving. The parties work together to solve the issues that are preventing them from reaching an agreement, with the help and guidance of a neutral third party. The Mediator facilitates discussions and negotiations between the parties.

Early intervention and the use of the Mediation process can help parties reach an outcome that avoids the costs, time and stress of court proceedings.

2. What will happen at my Mediation?

At the Mediation the parties will first outline what they believe the issues are. The Mediator will then assist the parties to articulate their desires and reasoning to help the parties reach an amicable outcome. The Mediator will not make evaluations or choose sides; they are there to help both parties. The Mediation is completely confidential and things said at Mediation can not be raised later in court. This means the parties can speak freely and discuss all issues to explore options to resolve the problem.

3. Will I be forced agree with my former partner?

A key benefit of attending Mediation as opposed to a Judge deciding your fate, is that the parties arrive at the outcome. Neither party is bound to agree with their former partner, but can “agree to disagree” on certain issues.

4. Do my lawyers attend Mediation with me?

Mediation can take place with or without lawyers, and will depend on the circumstances of your case. In some circumstances where there is a large power imbalance between the parties, or a complete breakdown of communication, it can be beneficial for lawyers to attend to ensure fairness in the process.

5. What’s the next step after Mediation?

If the parties are unable to resolve their matter at Mediation, it may be necessary to commence court proceedings, or continue with those proceedings if they are already underway.

It is not unusual for parties to be referred by the court for a further Mediation, if circumstances have changed and the court is of the view that Mediation could then be successful.

This article was co-authored by Law Cadet, Taylah Jensen.

Fairness JobKeeper and Redundancy

Tue, 15 Sep 2020 10:11:45 GMT

The COVID-19 pandemic has changed the way that work is performed in most industries and workplaces.

Part of this change has involved some workers loosing their jobs. Early signs are that claims before the Fair Work Commission for unfair dismissal have surged. On 25 May 2020 the general manager of the Fair Work Commission, Ms Bernadette O’Neill said that unfair dismissals have spiked by 70%.

Employers who determine to make a position redundant needed to comply with some requirements. The very heart of the redundancy is a decision by an employer that it no longer wishes the position to be performed by anyone. It is not a redundancy to replace one employee with another.

If a modern award or an enterprise applies to a particular position, further requirements need to be complied with Central is consultation. Consultation should take place before any final decision to make a position redundant is made. Any input provided by an employee should be carefully considered.

An employer also should consider whether there are any reasonable opportunities for redeployment.

An interesting issue has emerged. The issue is that employers who are eligible for JobKeeper but have still proceeded to make a position redundant.

Some employees argued that this is unfair and argue, why should they be terminated when an employer is receiving a subsidy?

The Fair Work Commission considered this issue in Matthew Brown v My Shared Services Pty Ltd. Here is a link to the decision . In that decision, in part, The Commission determined that an employer who failed to consider JobKeeper had unfairly dismissed a worker.

Further cases will be considered by the Commission over the next few months.

The message for employers and employees is that an employer should actively engage with its workforce and consider the individual circumstances of each employee before any final decision is made.

Do you need employment law advice? Call our friendly and experienced employment law team today to learn more on your entitlements.

Extension of temporary relief for financially distressed businesses and individuals

Thu, 10 Sep 2020 10:12:05 GMT

On 7 September 2020, the Federal Government announced it will continue to provide relief for businesses and individuals that have been impacted by COVID-19 through the extension of temporary insolvency and bankruptcy protections until 31 December 2020 .

Current Protections Extended

Earlier this year we reported that the Federal Government announced the following relief for financially distressed companies, directors of companies and individuals:

Companies

The minimum threshold for creditors issuing a statutory demand on a company would increase from $2,000 to $20,000.
The statutory timeframe for a company to respond to a statutory demand would increase from 21 days to 6 months.
Directors of companies would be temporarily relieved of their duty to prevent insolvent trading for 6 months in respect of any debts incurred in the ordinary course of the company’s business.

Individuals

The minimum amount of debt required for creditor to initiate bankruptcy proceedings against a debtor would be increased from $5,000 to $20,000.
The timeframe the debtor has to respond to a bankruptcy notice would be extended from 21 days to 6 months.

The measures were proposed to last for a period of 6 months – ending on 25 September 2020. However, the Federal Government has announced it intends to continue the existing protections until 31 December 2020. In a joint media release by the Treasurer and Minister for Industrial Relations, it was noted that the purpose of the extension is to:

“[L]essen the threat of actions that could unnecessarily push businesses into insolvency and external administration at a time when they continue to be impacted by health restrictions.”

So what now?

As discussed in our previous article , there still remain alternative avenues of relief for creditors looking to enforce their debts during COVID-19.

Despite the temporary protections, creditors are still entitled to pursue and enforce debts through the Courts, with no general COVID-19 restrictions on commencing legal action. In the event proceedings are commenced and a judgement is subsequently entered against the debtor, enforcement action will then become available.

In NSW, a creditor may enforce a judgment by:

garnishee order – an order on the debtor’s bank or other party that would otherwise be making payment to the debtor to instead pay the money to the creditor in payment of the debt;
writ of execution – which involves the Sheriff repossessing property owned by the debtor and selling it to realise the debt; and/or
charging order – which allows the creditor to lodge a caveat over real estate owned by the debtor, preventing or delaying the debtor from selling that real estate.

Similarly, creditors in the construction industry (or who otherwise fall within the prescribed scope of the Building and Construction Industry Security of Payment Act 1999 (NSW) (“Act“)) may look too pursue and enforce debts within processes prescribed by the Act.

The strict timeframes for compliance (or dispute) once served with a payment claim or payment schedule provide the fast and cost efficient means to resolve contractor disputes and resume cash flow. On the same note, due to the various time-sensitive steps that are required under the Act, we recommend that legal advice is obtained prior to a contractor taking any such action.

Key Takeaways

The Federal Government has extended its temporary period of protection for financially distressed individuals and businesses until 31 December 2020.
While the period of protection has been extended, creditors are still able to pursue and enforce debts through alternative avenues of relief.
Creditors should be aware of these alternative avenues to ensure their businesses have the best chance at maintaining cash flow throughout the uncertain times that lie ahead.

Buying a property: do I really need a pest and building report?

Tue, 08 Sep 2020 10:12:48 GMT

Buying a property is often one of the biggest financial decisions a person may make in their lifetime. A pest and building report is therefore an extremely important part of the due diligence process so a buyer understands exactly what they are agreeing to purchase.

A pest and building report usually costs approximately $500.00 and involves a qualified inspector conducting a detailed review of the state and condition of the property. It can be arranged by a purchaser themselves or a solicitor or conveyancer can arrange on their behalf. A pest and building report provides a clear and detailed outline of any significant building defects, issues such as rising damp, movement in the walls, existence of termites, safety hazards and a range of other more minor issues.

We strongly recommend that a pest and building report be carried out prior to an unconditional exchange of contracts or if a contract is exchanged subject to a cooling off period then within that period where the contract can be rescinded with only a small holding deposit being forfeited. When you enter into a contract to purchase a property, the vendor usually makes no warranties as to the state and condition of the property, which places the responsibility on the purchaser to make their own enquiries and be satisfied themselves as to its condition. There are usually no rights for a purchaser to bring a contract to an end if a they unveil building or infestation issues following an unconditional exchange of contracts. Instead it would be the purchaser’s responsibility and at their own expense to rectify any such problems.

If a pest and building report uncovers significant issues that were not known at the time of placing an offer, it can be used to negotiate a lower price if the contract has not yet been entered into. Alternatively, a purchaser can request from the vendor that certain issues be rectified at the property at the vendor’s cost prior to settlement. Therefore whilst an additional outlay for such a report may seem expensive during a time where costs savings are important, these reports have the potential to result in larger possible savings down the track. If a report does not recover any major issues, at the least it will provide a purchaser with peace of mind that the property is of a sound quality.

Ultimately a pest and building inspection will allow a purchaser to understand the existing defects at a property, the potential risks and the likely costs of such problems which enables one to make an informed decision as to whether to proceed with the purchase.

If you are purchasing a property and require assistance in navigating the process or wish to discuss whether you require a pest and building report then please contact our friendly and experienced conveyancing team.

It is vital for all SMSF members to have an Enduring Power of Attorney

Tue, 08 Sep 2020 10:12:29 GMT

All Self Managed Super Fund ( SMSF** ** ) members should have a valid enduring power of attorney ( EPOA ). Should a member lose their mental capacity without an EPOA, the position of trustee in the SMSF may become vacant and the SMSF risks becoming a non-complying fund.

Ultimately, if a SMSF becomes a non-complying SMSF it may be taxed up to 45 per cent unless it rolls over the incapacitated members benefits to public offer fund (and liquidates assets) or becomes a small APRA fund (with professional trustee).

Planning for incapacity in a SMSF

Under the Superannuation (Industry Supervision) Act 1993 (Cth) ( SIS Act ), all members of the SMSF are required to be trustees or directors of the corporate trustee.

If a SMSF member loses mental capacity, they are no longer considered fit and capable of acting as an individual SMSF trustee or as a director of a corporate trustee and should be immediately removed from that position.

The removal of an incapacitated trustee should occur in accordance with the SMSF trust deed (for individual trustees) or company constitution (for corporate trustees), and may occur automatically on the member’s loss of mental capacity depending on the rules / constitution.

Replacing an incapacitated member

The SIS Act allows a legal personal representative ( LPR ) to take the place of the member as trustee or director of corporate trustee without causing the fund to cease to be a SMSF. A LPR includes an attorney under an EPOA.

Importantly, an LPR does not automatically become the new trustee / director on the members’ incapacity. The LPR must act to resign the member and appoint themselves to replace the incapacitated member as:

Individual trustee : in accordance with the SMSF trust deed; or
Director of the corporate trustee : in accordance with the company constitution.

There is a 6 month period of grace in which the replacement as trustee or director of the incapacitated member must occur (unless the member regains capacity within this period and resumes their SMSF duties).

This clearly creates a challenge for the SMSF should a member lose capacity without an EPOA, resulting in expense and complexity to resolve.

What should be done?

An EPOA must be put in place before the member loses capacity for it to be valid. An EPOA may be executed in favour of multiple attorneys, and one or more of those attorneys can be appointed in place of the member.

It is important that each SMSF trust deed is reviewed to ensure it provides members the ability to appoint an attorney (most modern SMSF deeds have the ability to do so). If the trust deed does not allow the appointment of an attorney as trustee, the trust deed may need to be varied, or Court direction applied for.

Note that once appointed, the LPR is a trustee or director in their own right with legal powers and responsibilities and may incur civil and or criminal consequences for breaches of the SIS Act. It is important that legal advice is obtained to ensure an appropriate person is appointed.

If a member loses capacity without an EPOA

Should a member lose capacity without an EPOA, an application to the Guardianship Division of NSW Civil & Administrative Tribunal is required by family members or concerned persons to be appointed to act for the member (this may take longer than the 6 month time period, and can be subject to more onerous review).

This is a time consuming, costly and burdensome process, which can be avoided if the SMSF member plans for incapacity by implementing a valid EPOA to ensure the continuation of their SMSF.

Replacing an incapacitated member

What Lionel Messi can teach us about contract terms

Thu, 03 Sep 2020 10:13:36 GMT

In any other year, Lionel Messi, one of the greatest ever footballers, leaving Barcelona, one of the biggest clubs in the world, would have been the biggest sports story of the year . Of course, in 2020, the sporting world has already seen the shocking and tragic passing of Kobe Bryant and his young daughter, massive social justice protest movements by athletes across all sports and unprecedented upheaval in the wake of the COVID-19 pandemic.

Messi’s departure is still monumental, coming off what appears to be significant unrest in the club after a humiliating exit from the UEFA Champions League, making 2019-2020 the first season without a title for Barcelona since 2007-2008, leading to a change of manager as well.

There were some rumours surrounding Messi’s future this year, with the superstar apparently holding a right to obtain a release from his deal with Barcelona to depart the club without a buyout fee, provided he gave notice to the club on or before 10 June 2020. Messi gave notice on around 25 August 2020.

What’s the big deal?

Messi’s contract with Barcelona reportedly contains a buyout clause allowing the club to demand a buyout of about AUD$1.2 billion should Messi seek to leave the club before the end of his contract, unless he gave notice of his intention to do so prior to the 10 June 2020 deadline above.

A buyout clause nominates a transfer fee that, if met, requires a club to release a player. For example, if Manchester City wishes to sign Messi, they could offer to pay Barcelona the AUD$1.2 billion, and Barcelona would be unable to refuse the transfer. There are, as always, more nuanced commercial considerations to be made which could lead to a club accepting a lower transfer fee, but the upshot is that any potential Messi suitor could hand Barcelona a world record transfer fee and start selling Messi jerseys as fast as their merchandise store can print them.

While Messi is obviously an attractive target, if his legal team can successfully argue that Messi has triggered his release option in accordance with the terms of the contract, there will obviously be an increased interest in the player if a side can avoid the transfer fee (which, surely, increases the amount left in the budget for Messi’s salary).

For Barcelona, obviously losing the best player in the world without any compensation would be more salt in the wound.

Knowing where you stand contractually

At the outset, it is important to note that Barcelona and Messi are operating under a system of law that is fundamentally different to Australia and other current and former members of the British Empire, and no one, beside the parties involved, knows the specific contract wording at the heart of this dispute, so there is little utility in trying to predict how this matter might be determined in Court. It is also far more likely that there will be some resolution where Barcelona accept a lower transfer fee and we see Messi in action in the Premier League, or the French Ligue 1 next season.

But there are some lessons to be learned in what each party is currently saying about the clause. On the face of it, Messi has missed the 10 June 2020 deadline by a long way, so why would his lawyers be arguing now that they have given effective notice?

The Spanish football season, like many others in the world, was extended as a result of Spain’s lockdowns during the early stages of the COVID-19 pandemic. Usually, the season would have finished on 24 May 2020. Messi’s lawyers will no doubt argue that the intention of the parties at the time Messi’s contract was signed was that Messi would have a few weeks after the end of the season to contemplate his future before entering the last season of his contract, and would be in a position by 10 June 2020 to decide whether he would stay or go. It follows that, given the season was extended, the deadline should also be extended.

Barcelona, for their part, say that 10 June 2020 was a firm deadline, and that it wasn’t intended to be extended for any reason.

What could the parties have done to avoid this fight?

Aside from the obvious (Messi playing his last year of his deal and walking away as a free agent), it seems that Messi has made the decision to leave since 10 June 2020, in response to what he sees as an unfair proportion of blame being levelled at players for their poor performances this season and a poor club culture.

The express terms of a contract trump all in cases such as these. If, at the time of signing his agreement in 2017, Messi intended to make a decision at the end of the Spanish football season, the contract should have reflected that position, rather than nominating a fixed date – ”End of the season” has a plainly different meaning than “10 June 2020”.

Another option available to Messi (though one not likely to have been agreed) would have been to seek a written variation to his contract based on the impacts of COVID-19, when the pandemic started. While Barcelona would have likely been alarmed and not executed any variation, Messi would have known their position early and might have been in a position to serve the notice by the deadline.

Finally, Messi could have simply served the notice. Media reports seem to suggest the effect of the clause was that the notice was one of intention to leave, and not an actual termination. Since the notice was issued, Barcelona have gone on the record to say they intend to keep Messi, so it seems likely that that position may not have changed had he issued the notice on time. In fact, Messi’s position may well have been strengthened had he done this, as it seems more certain that the player could have left with no fee had he served the notice on time.

Takeaway

The important takeaway from this developing story between Messi and Barcelona is that you can’t possibly know the future when signing a contract, but you should take care and consider the possible circumstances that would force you to reconsider your commitment to the contractual terms in the future. The formation of a contract usually happens in rosy times and by the time the relationship breaks down, it is too late to reconsider whether you still want to be legally bound to their terms. Always assume that a contract is legally binding completely according to exact terms as drafted, and be sure to clarify any possible ambiguity or confusion. Where possible, negotiate by disclosing your actual intended outcome so everyone is on the same page.

Once your ability or desire to perform your obligations under a contract evaporates, it is important to consider the costs or performing, or the possibility of varying the terms. It’s important you consider your position carefully and commercially, and seek advice on the possible worst alternative to a negotiated settlement.

While you may never find yourself in a $1 billion dispute like Barcelona and Lionel Messi, a few difficult conversations at the beginning of a contract could save you significant legal and emotional costs in the future.

COVID-19 – Homebuilder Grant

Thu, 03 Sep 2020 10:13:19 GMT

The Australian Government has introduced a $25,000 HomeBuilder grant to help the residential construction market get through the COVID-19 pandemic for the period between 4 June 2020 to 31 December 2020.

This $25,000 grant applies to:

Building contracts to build your new home with a combined house and land value of not exceeding $750,000.
Building contracts with a registered builder for renovations to your home of a value between $150,000 and $750,000, provided your home does value does not exceed $1.5m. This includes a “knock down / rebuild” of your existing home.
Contracts to purchase your new home off-the-plan where the value does not exceed $750,000 and construction did not start prior to 4 June 2020. Completion of your purchase of this off-the-plan home must be settled no later than 31 October 2022.

You must also:

Be an individual (not a company).
Over 18 years of age.
An Australian citizen.
Have an income of $125,000 per annum or less for an individual or $200,000 per annum for a couple.

If I leave my partner how is our property divided?

Tue, 25 Aug 2020 10:13:55 GMT

If you are considering leaving your partner, there is likely to be many concerns that can make you feel overwhelmed. One of those concerns may be the uncertainty about what will happen with any property you own.

Understanding how the court approaches the division of a property pool will always be based upon the individual circumstances of each family, however it will largely be based on consideration of the following four steps:

Identifying the net asset pool

The first thing a court does is identify what assets, liabilities and financial resources each party has. Assets may include real estate, bank accounts and items such as motor vehicles. Your superannuation is also included. If either of you have liabilities such as a mortgage, or credit card debts, these are taken into account as well.

Assessing the contributions of each party

Next, the court looks back at the relationship and forms an assessment of the financial and non-financial contributions made by each party to the relationship. Financial contributions will include your income over time, any property you owned at the commencement of the relationship and any lump sum funds received during the relationship. Non-financial contributions include homemaking duties and providing care to any child/ren of the relationship.

Adjustments for future needs

A court then looks at whether either of the parties should receive a percentage adjustment for future needs for things such as one party having a superior income or a greater ability to work and earn an income, the age and health of each party and whether either or both will continue to care for children of the relationship and on what basis.

Is the division just and equitable?

Finally, a court looks back at the first three steps and will decide whether the proposed division of the property pool is “just and equitable”. In simple terms, this means is it fair?

It is important to remember that no two relationships are exactly the same, and if you are experiencing a separation or contemplating separating from your partner, you should chat to an experienced family lawyer who can give you all of the information you need to move forward with confidence.

Challenging a Will – who pays the costs?

Mon, 24 Aug 2020 10:14:16 GMT

It is a well known fact that legal proceedings are costly, stressful and time consuming. Legal costs are an important consideration that needs to be taken into account by an individual when deciding whether or not to commence legal proceedings. This is of particular importance when commencing proceedings to challenge a Will, which is also known as a family provision claim. This is because the estate may be too small in size to warrant formal proceedings being commenced or the applicant may be in a financially comprised position, and they may not have the resources and funds available to commence formal proceedings.

Family provision claims are often sought by individuals who may have been left out of a Will or feel as if they have not been adequately provided for in a Will, which leaves them to believe they are entitled to a greater share of the deceased person’s estate. These types of claims are lodged with the Supreme Court and must be made within 12 months from the date of death of a deceased person.

In order to challenge a Will, an applicant needs to fit within the class of eligible persons to make a claim [1] , which includes a spouse, de facto partner, child, former spouse, a dependent or someone living in a close personal relationship with the deceased. Additionally, the eligible person needs to satisfy the Court that “ adequate provision for the proper maintenance, education or advancement in life ” of the applicant has not been made by the deceased person in their Will.

The Court has a broad discretion to make orders in respect of costs and parties need to be aware of who may be liable for payment of those costs when commencing proceedings. There is a common misconception that an applicant’s costs will be paid from the estate, regardless of whether they are successful or unsuccessful in their claim.

In the case of Singer v Berghouse (1993) [2] , Justice Gaudron summarized the position of costs in these type of cases as follows:

“family provision cases stand apart from cases in which costs follow the event… costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant’s financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate“.

Furthermore, these matters are guided by Supreme Court Practice Note No. SC EQ 7 [3] which sets out the practice and procedure of the Court as well as the documents required to be submitted in relation to a claim. The Practice Note contains an important direction on costs of proceedings whereby the Court has power to make an order capping the costs which may be recoverable if an estate has less than $500,000 available for distribution. This is because family provision claims are concerned with a fixed pool of assets and there can be significant effects on the funds available for distribution to the beneficiaries.

The Court can make a range of orders when it comes to costs, such as:

1. The defendant’s costs associated with defending a claim are to be paid from the estate;

2. That an unsuccessful plaintiff’s costs be borne by them;

3. That a successful plaintiff’s costs by paid from the estate;

4. That an unsuccessful plaintiff also pays the defendant’s costs; or

5. Any other order that the Court thinks fit.

In exercising their discretionary power when making these orders, the Court looks at a variety of factors, such as the size of the estate, the merits of the claim, genuine attempts to settle the matter, the role of the parties acting reasonably and in good faith, and not unnecessarily engaging in litigation.

When deciding whether or not to challenge a Will, individuals should be mindful that there is no guarantee that their legal costs will be met by the estate, even if their claim is successful. This is why it is important to attempt to settle matters quickly and efficiently in order to avoid legal costs escalating.

If you are considering challenging a Will, or you are an executor defending a claim against an estate, please do not hesitate to contact our office to speak with our estate litigation team for further advice.

[1] Succession Act 2006 (NSW) section 57

[2] Singer v Berghouse (1993) 114 ALR 521 at 552

[3] Practice Note No. SC EQ 7

The Court can make a range of orders when it comes to costs, such as:

Have you been hit by a mobility scooter in a shopping centre?

Tue, 18 Aug 2020 10:15:01 GMT

In a study published May 2019 , in the period 2011 to 2016 approximately 140 pedestrians were admitted to hospital for mobility scooter-related injuries. But if you sustained an injury as a result of a collision with a mobility scooter in a shopping centre, could you make a claim for compensation? The case of Whitton v Dexus Funds Management provides precedent and guidance.

Circumstances

Ms Whitton attended Deepwater Plaza Shopping Centre at Woy Woy on 17 July 2016. Whilst she was exiting an amenities corridor, Ms Whitton was struck in the back heavily by a mobility scooter driven by an elderly woman, causing her to fall to the ground. Ms Whitton sustained injuries to her back, leg and a psychological injury.

Ms Whitton brought a claim against the Centre owner in respect to the injuries sustained as a result of the collision. Ms Whitton made the following allegations in support of her claim for compensation:

1. Her view of the oncoming mobility scooter was obstructed by hoarding erected around fit out works on a shop front;

2. The Centre owner breached its duty of care in failing to erect warning signs, barriers and reasonable measures to prevent the accident; and

3. The Centre breached its duty of care in failing to monitor and control the use of mobility scooters at the Centre.

Decision

On all the evidence presented by the parties, his Honour Dicker J found that the Centre owner did not breach its duty of care owned to Ms Whitton. His Honour commented that even if the Centre implemented reasonable measures to prevent the accident, Ms Whitton would not have altered her course to avoid the collision.

His Honour determined that the cause of the collision was the careless control of the mobility scooter and not the Centre’s breach of duty of care. Further, his Honour found that the risk of being struck by a mobility scooter is an obvious risk that can be avoided by a reasonable person exercising proper care for their own safety.

Take Outs

The case highlights some important take outs that ought to be considered before commencing court proceedings for damages as a result of mobility scooter –v- pedestrian collisions in Shopping Centres:

1. Shopping Centres do not have a duty to warn patrons of obvious risks such as mobility scooters; and

2. Pedestrian and mobility scooter drivers should take reasonable care for their own and others’ safety.

Registering your security interest on the PPSR

Thu, 06 Aug 2020 10:17:49 GMT

The Personal Property Securities Register (PPSR) is an Australian electronic register which provides information on security interests held over personal property. In short, a security interest is an interest in personal property that secures payment of a debt or other obligation regardless of the transaction.

For example, company A lends money to company B and it is documented in a security agreement that company B grants to company A a right in all personal and after acquired property of company B. Company A should then attend to registering this interest in company B on the PPSR.

How can you use the PPSR for your business?

If your business has a security agreement in writing with another entity then you are in a position where you may be able to register this interest. Additionally, if your business regularly engages in leasing or bailing goods then it is important you consider registering your interests on the PPSR.

A benefit of registering your interest is if the entity granting you the interest goes into liquidation. Registering your interest may preserve your priority position against other lenders or suppliers who have not registered their interest on the PPSR against the liquidated company. On the other hand, failing to register your interest on the PPSR may mean that another party with a competing interest can take priority over you.

If your business does engage in leasing or bailing goods, The Personal Property Securities Act 2009 (Cth) (PPSA) means that you are unable to rely on legal ownership of these goods to claim they should be returned if the entity has gone into liquidation and failed to pay you for the goods. Registration on the PPSR is critical in these situations. For more information on situations like this please refer to our previous article .

What could happen if you purchase personal property with a security interest attached to it?

The PPSR can also provide information on personal property, such as cars or boats (but not real estate) to help a potential buyer assess whether any other party claims an interest over the property they are purchasing.

If you purchase personal property, for example a car, and it has a security interest attached to it then it is possible that the person or entity that holds the security interest over this property may be entitled to repossess it.

In order to prevent this occurring it is a good idea to perform a PPSR search on the property you are purchasing before you do so.

If you require further information on how the PPSA may affect your business please contact our office.

Do you own property internationally? Were you married internationally? How does that affect your property settlement?

Thu, 06 Aug 2020 10:15:22 GMT

Not all property settlement divisions are as cut and dry as a nuclear family with a single matrimonial home.

With the globe at our fingertips due to air travel, some families have homes in multiple countries and own property in different parts of the world.

A difficulty can arise for these families, where there are competing laws in different countries about divorce and the division of assets. When in doubt, seek legal advice to clarify which laws apply to you.

A recent matter before the High Court of Australia (Clayton v Bant [2020]) considered the competing laws in Dubai (United Arab Emirates) and Australia in relation to the division of property. [1]

In that matter, the Wife was from Australia and the Husband from Dubai. The couple owned properties in Dubai, Australia and other countries around the world. The Husband applied for a divorce in Dubai and the Wife applied in Australia.

While the parties were divorced formally in Dubai, that divorce did not separate the properties owned by the Husband and Wife in Australia.

As the Wife’s lives in Australia, her application to the court in Australia also sought to divide the properties that the parties owned in Australia.

Now, there’s this tricky rule which stops the court from hearing a matter which has already been decided by a court (unless there’s an appeal).

As the divorce had already been dealt with in another country, the court had to determine whether all matters had already been dealt with in Dubai, or whether the Australian courts could still decide on the division of the Australian properties.

The High Court has granted special leave to hear the matter on appeal and will decide whether the Wife can bring those proceedings in Australia.

Stay tuned for the outcome of the High Court judgement in the coming months.

[1] Clayton v Bant [2020] HCATrans 50 (17 April 2020)

This article was co-authored by Law Cadet, Taylah Jensen.