Hillary Morris – CBD Law

What do I need to disclose when I sell my property?

Hillary Morris — Mon, 09 Jul 2018 05:39:47 +0000

In a recent Supreme Court Decision of Huang v Ceylan [2018] NSWSC 306, the Court considered the Vendor’s obligation under Section 52A(2) of the Conveyancing Act and the Statutory Warranties that require disclosure of various relevant “matters”.

In that case the Court considered the warranties set out in Schedule 3 Part 1 of the Conveyancing (Sale of Land) Regulation requiring the Vendor to warrant that “there is no matter in relation to any building or structure on the land that would justify the making of an upgrading or demolition order”.

In that case the Vendor advertised for sale a three bedroom “unit”. In fact the development approval provided for the apartment to contain two bedrooms. Following that approval, a wall had been constructed along what was previously an open “media room” thereby enclosing it to create a third bedroom.

Following exchange, the Purchaser discovered the approved development plan had originally provided for two bedrooms only.

After contacting the local Council, the Council issued a notice advising that it intended to serve an order, to in effect require the Vendor to comply with the Development Consent.

The Purchaser then sought to rescind the Contract. The Vendor disputed the Purchaser’s entitlement to do so.

The Court determined that the alteration of the media room was a non compliant development entitling Council to make an order requiring removal of the wall and reinstatement of the apartment. It therefore concluded there was a breach of the Statutory Warranty and ordered the return of the Purchaser’s deposit.

The case demonstrates the need to be sure to disclose “relevant matters” when selling property.

Giles Finney has been helping people buy and sell properties on the Central Coast for over 30 years. If you need help buying or selling, please call 02 4322 6666 and ask for Giles or Deb.

What is Defamatory?

Hillary Morris — Thu, 05 Oct 2017 03:33:32 +0000

Defamation claims have recently dominated the headlines in Australia with actress and comedian Rebel Wilson being awarded more than $4.5 million dollars in damages following the publication of defamatory magazine articles.

Although defamation claims are readily associated with actions against the media by the rich and famous in reality most defamation claims are commenced in response to publications with a more limited audience. For example, the two mothers at a top Sydney school suing each other for defamation after each posted comments about the other on an instant messaging app.

But what constitutes defamation? And how do you sue someone for making untrue comments about you which negatively affects your reputation?

Defamation occurs when a person intentionally states or spreads information about another person that damages their reputation or can make others think less of them. The information must have been published (including being written or spoken) to at least one other person. While defamation cases involving the internet and social media are relatively new, the same principles apply.

There are a number of defences to a defamation claim, including that the statement was true, or that it was an expression of an honest opinion.

If you want to make a claim for defamation you will need to act quickly as proceedings must be commenced within 12 months of the date of publication of the defamatory material. If you have been defamed you should seek legal advice without delay.

Non Binding Financial Agreements – Leave granted to appeal to High Court

Hillary Morris — Mon, 05 Jun 2017 04:12:44 +0000

In March 2015 the Federal Circuit Court set aside two Agreements that had been entered into by Ms Thorne and Mr Kennedy both before and after their marriage.

Mr Kennedy was a 67 year old Property Developer with assets of somewhere between $18 to $24 million dollars. He met Ms Thorne on an internet website. At that time, mid-2006 Ms Thorne was a 36 year old living overseas with minimal assets. She relocated to Australia. The parties got on and decided to marry. Ms Thorne wanted to have children.

Before the wedding Mr Kennedy instructed his Solicitors to prepare a Financial Agreement (Pre-nuptial Agreement). The proposal was that the Pre-Nuptial would be signed and then that Agreement required a further Agreement would need to be signed after the wedding.

Shortly before the wedding Ms Thorne received the Agreement which disclosed the extent of Mr Kennedy’s assets. She saw a Solicitor in relation to the Agreement, and, according to Ms Thorne the Solicitor told her it was “the worst contract I have ever seen. Don’t sign.” The Solicitor gave a lengthy written advice in relation to the Agreement in which the Solicitor noted “I hold significant concerns that you are only signing this Agreement so that your wedding will not be called off.”

Contrary to that advice, Ms Thorne signed the first Agreement and the wedding went ahead.

The second Agreement was then prepared and around a month or so after the wedding Ms Thorne again discussed it with her Solicitor. The Solicitor gave the same overall advice that the Agreement was terrible and she should not sign it. Ms Thorne signed. The parties remained married for just short of 4 years. They cohabited all up for about 4 ½ years.

On separation the wife challenged the Agreements under the Family Law Act – Section 90K. In setting aside the Agreements the Court noted that:-

If the relationship ended, the wife would have nothing. No job, no visa, no home, no place, no community.

Every bargaining chip and every power was in Mr Kennedy’s hands. Either the document as it was, was signed or the relationship was at an end. The husband made that clear.

Mr Kennedy knew that Ms Thorne wanted to marry him. For her to do that, she needed to sign the document. He knew that she would do that. He didn’t need to consider offering something different or more favourable to Ms Thorne. If she wanted to marry him, which he knew her to want, she must sign.

The Court then found that in the circumstances, the wife signed the first Agreement under duress and that it was a duress borne of inequality of bargaining power where there was no outcome available to the wife that was fair or reasonable and that the wife had no bargaining, nothing to persuade a different outcome, no capacity to effect any change.

The Court found that like the first Agreement, the second Agreement was also inoperative as signed under duress.

The Court ordered the husband to pay the wife’s costs.

UPDATE:

In November 2015, an appeal was heard in the Full Court of the Family Court in Brisbane and in December 2016, the appeal was upheld on the ground that the wrong legal test had been used to establish duress. The Full Court said that the correct test for duress is whether there has been threatened or actual unlawful conduct. There needed to be a finding that the pressure was ‘illegitimate’ or ‘unlawful’. Compulsion, absence of choice or inequality of bargaining power was found not to be enough to prove duress.

On 10 March 2017, special leave to appeal to the Full Court of the High Court was granted to Mrs Thorne (Appellant Wife). The Respondents are now the adult children of the husband, Mr Kennedy, who has since deceased. The grounds of appeal include whether the Full Court of the Family Court erred in their approach to undue influence, unconscionable conduct and inadequate reasons of the Trial Judge.

Family Law – What is full and frank disclosure in Property Matters?

Hillary Morris — Sun, 02 Apr 2017 23:34:33 +0000

What is full and frank disclosure in Property Matters?

Full and frank disclosure by both parties to a family law dispute is a legal requirement governed by Reg 13.04 of the Family Law Rules 2004 and Reg 24.03 of the Federal Circuit Court Rules 2001. These rules ensure that both parties are fully aware of the assets and finances that are available for distribution. The Regulations list the disclosures that must be made, but can include all sources of income, any interests in property and any gift or disposition of property made by either party since the separation. The resolution of property disputes is most effective when both parties adhere to these rules at an early stage in the proceedings. The need for either party to make independent enquiries can be costly and cause long delays. In some circumstances lack of disclosure can cause a matter to proceed to court which might have otherwise resolved through negotiations.

What can happen if you do not provide full and frank disclosure?

If you fail to disclose all of the necessary information or sign a document which is false or misleading, the court can impose penalties which can include:

a) Ordering you to pay the legal costs of the other party;

b) Not allowing certain information to be used by you as evidence in your case; or

c) If you are found to be in contempt of court, fines or imprisonment can be imposed.

Most certainly, non-disclosure will result in a loss of credibility for the non-disclosing party. This was made most evident by the comment of Wall LJ:

“It is at this point that the husband’s litigation conduct returns to haunt him. Had he behaved properly during the proceedings, had he given full, frank and clear disclosure, had he not breached his undertakings and dissipated funds, I do not think we would be where we are or that we would be having the current argument”

– M v M [2006] EWCA Civ 1852

For more information on what you are required to disclose during Family Law proceedings, contact one of our experienced Family Law solicitors at CBD Law today.

Contractor or Employee?

Hillary Morris — Sat, 01 Apr 2017 00:36:43 +0000

Outsourcing is a major feature of today’s labour market and many companies and businesses hire independent contractors with the intention of avoiding a whole raft of employment obligations including annual leave, long service leave, sick leave and statutory payments such as workers compensation, superannuation and payroll tax.

But just because an employer has outsourced its services and personnel by engaging a contractor, does not mean they have outsourced all their responsibilities.

Genuine independent contractors run their own businesses and control how and when they work and for whom. In contrast employees are usually subject to control by their employer as to how, when and where their work is performed. Their rate and method of pay is controlled by their employer and cannot pay someone else to perform their work.

However, even though a worker may be labelled a ‘contractor’ as opposed to an ‘employee’, depending on their individual circumstances a contractor may be treated as an employee for the purposes of workers compensation and other workplace entitlements.

The criteria for assessing whether a contractor could be deemed an employee includes but is not limited to the following:

1. The contractor does not have employees or subcontract out the work.

2. There is an ongoing exclusive nature to the agreement between the contractor and the business or company

3. Hours of work are determined by the business or company and not the contractor

4. The rate and method of payment are set by the business or company and not the contractor

5. The contractor wears a uniform supplied by the business or company

6. The contractor uses tools and equipment provided by the business or company

No one factor is determinative and the totality of the working relationship is taken into consideration.

In a well known High Court case, a bicycle courier who rode his own bicycle and was paid according to the number of successful deliveries he made but who had to wear the company uniform and was told when to work and how much to charge was deemed to be an employee despite being a contractor by title.

Care should be taken to properly describe the true nature of an employment arrangement in an employment contract as opposed to merely relying on a title given to the worker. Contact CBD Law to discuss your employment arrangements.

Consumer Protection from Unfair Contracts

Hillary Morris — Sat, 01 Apr 2017 00:28:41 +0000

On 12 November 2016, the existing unfair contract term protections for consumers have been extended to cover standard form contracts for small businesses. A summary can be found on the ACCC website on by clicking this link.

Whether a term is fair or not is considered in context of the contract as a whole. It could be for example the “automatic rollover” clauses that have become more common in supply contracts. Those clauses were a “catch” because you could automatically be locked in for another 12 month term of a contract if you did not give at least 6 months’ notice that you did not want to renew.

Changes to Statutory Warranties Home Building Act

Hillary Morris — Fri, 31 Mar 2017 05:18:15 +0000

The Home Building Act includes a requirement that a Builder comply with Statutory Warranties. The Statutory Warranty Scheme has been changed to now introduce the concept of “a Major defect” to replace the previous definition of “Structural defect”. Major defects are covered by the six year Statutory Warranty with all other defects covered by a two year Statutory Warranty. This means that if the faulty defective unworkmanlike work is not a major defect you will need to take action against the Builder without delay. If rectification work is required, new laws covering home building suggest that the most sufficient way to resolve a dispute is for the original builder to fix the work. That means NCAT (NSW Consumer Administrative Tribunal) will prefer to order rectification rather than monetary compensation. This means a Fair Trading inspector/or Tribunal can issue “Rectification Orders” with stages and dates for completion of the different works. They can include Orders requiring owners to pay money due under the Contract. The new laws commence on the 15 January 2015. For more information on changes, please refer to:

http://www.fairtrading.nsw.gov.au/sites/ftw/About_us/Legislation/Changes_to_legislation/Major_changes_to_home_building_laws

Thousands of Workers Lose Benefits

Hillary Morris — Fri, 31 Mar 2017 05:13:57 +0000

Very interesting statistics from the Sydney Morning Herald today – article below. This change was introduced by the current NSW Liberal Government and has had severe implications for injured workers.

http://www.smh.com.au/nsw/thousands-lose-workers-compensation-benefits-with-new-scheme-report-20150305-13vmho.html

Long Service Leave Entitlements

Hillary Morris — Fri, 31 Mar 2017 05:11:55 +0000

Have you recently been dismissed from your employment after providing 5 years or more of service? Have you been with your current employer for more than 5 years?

You may have certain entitlements to long service leave payments.

There is a common misconception that Long Service Leave entitlements only become payable if you have been with one employer for 10 years or more. This is not the case. There are certain scenarios which give rise to Long Service Leave entitlements being payable if you have been with an employer for 5 years or more.

Long Service Leave entitlements can also arise if you’ve been with more than 1 employer. For example, if your employer was to sell their business to a different company and you continued in your position for the subsequent owner without a break in your employment, usually any time worked with your previous employer would be count for the purpose of your Long Service Leave entitlements with the subsequent employer.

If you wish to enquire as to any potential rights to Long Service Leave you may have please call us on (02)4322 6666 and Marcus Frangos will be able to assist you.

Family Provisions Claims

Hillary Morris — Fri, 31 Mar 2017 05:10:36 +0000

The link below is to an interesting article on a Family Provision Claim in Perth recently:

http://www.perthnow.com.au/news/opinion/tom-percy-courts-decision-to-award-25-million-payout-to-olivia-mead-is-unsurprising-given-colossal-1bn-estate/story-fnhocuug-1227242851770