A family provision claim refers to the contesting of the Will of a deceased person, on the grounds that they failed to make proper and adequate provision for someone whom they had a moral obligation to provide for. This means that you may be able to challenge a Will if you have been left out, or received a smaller provision than you thought you ought to receive. There are limitations on these claims, including who is eligible to apply and the time limit which someone has to make a claim.
Am I eligible?
The eligibility for making a claim depends on the law of the State or Territory where the claim is being made. This is usually in the State or Territory where the deceased lived. Each jurisdiction has its own definition of an ‘eligible person’. In New South Wales, this is found in sections 57 of the Succession Act 2006 (NSW) and in the Australian Capital Territory it can be found in sections 7 of the Family Provision Act 19969 (ACT). Generally, partners and children of the deceased are considered to be eligible to make a claim. The definition of an eligible person sometimes also includes ex-partners, grandchildren, or stepchildren of the deceased.
When can you apply?
Like many other legal claims, there are time limitations on making a family provision claim. The exact timeframe is determined by law of the relevant State or Territory. In New South Wales, a family provision claim must be filed within 12 months from the death of the deceased. Whereas in Queensland, an application must be made within nine months from the death of the deceased. In the Australian Capital Territory, Victoria, South Australia, and Western Australia a family provision claim must be filed within 6 months from Probate or Letters of Administration being granted.
There are some circumstances where a person may be able to make an application after the time limit has been reached. The court has the power to grant an extension of time where they find there is a reason to do so. In making this decision the court may consider a variety of factors, including:
If you believe that you have a claim on an estate but are concerned about the amount of time that has passed, you should seek competent legal advice about the prospects of a claim out of time.
Case Study: Morgan V Black [2023] NSWSC 1073
In the recent case of Morgan v Black [2023] NSWSC 1073, the NSW Supreme Court considered the applicant’s claim for a family provision order outside the 12 months prescribed time limit. The claim was made by the adult daughter over her father’s estate. At the time of the application, it was more than 3 years and 7 months after the death of the deceased. The daughter sought to make an application for provision as the gift to her in his Will, purporting to give her a share of a property, was not valid. The property was held by the deceased and his de-facto partner as joint tenants, and therefore passed to the partner on survivorship.
The court dismissed the application for a family provision order outside of the time limit, considering that there was not sufficient cause or explanation for the delay in applying and that ultimately there were no real estate assets out of which an order could be made.
What this means for you
If you think you might be eligible to make a family provision claim, you should seek professional legal advice as soon as possible. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.
*This article was prepared with the assistance of Monica Hoswell.
In a case that unfolded on May 1, 2018, the Supreme Court of New South Wales ordered the winding up of Day & Night Online Transport Pty Ltd. This was ordered because of the company’s failure to comply with a statutory demand from a creditor, as outlined in section 459C(2)(a) of the Corporations Act 2001 (Cth). However, what followed was a legal journey that ultimately resulted in the rescission of the winding-up order, shedding light on critical aspects of corporate insolvency and the legal processes involved.
Soon after the winding-up order, the company’s director took action. On May 4, 2018, an interlocutory application was filed with the following orders:
The director argued that the failure to comply with the statutory demand resulting from the failure to update the company’s registered office with the Australian Securities and Investments Commission. Consequently, the director claimed they had not received notice of the winding-up application or the creditor’s statutory demand.
Further the company’s accountant gave evidence that the company remained solvent. This was based on the company’s financial position over the last two years.
On May 28, 2018, the Court issued a landmark decision, setting aside the winding-up order. The reasons for this decision include:
The issue of winding up orders can be very complicated. At Chamberlains Law Firm we can help you to further understand this issue and how to overcome any complications.
If you have any questions in relation to winding-up orders, get in contact with our team by phoning us 02 6188 3600.
This article was prepared with the assistance of Annabel Randall
Over the last few years, wage theft has continued to step in and out of the spotlight as the issue gains increasingly prevalent within Australia. What’s all the fuss about you ask? Let’s take a look at some statistics to put things in perspective:
Curious as to who some of these large-scale corporations are? Let’s take an inventory on just a handful of the numerous Australian businesses who were caught red-handed underpaying their employees:
Melbourne University
Melbourne University was ordered to backpay 15,000 current and former employees a total of $22 million. In 2022, it was revealed that the University of Melbourne was not fulfilling employees’ full entitlements as outlined in their Enterprise Agreement. This involved the review of over 3.2 million payslips relating to casual employees, over a period of eight years.
Super Retail Group
Super Retail Group, owner of many well-known retail stores including; SuperCheap Auto, Rebel Sport and BCF, was found to have underpaid their employees a total of a whopping $43 million.
Woolworths
‘Breach on a massive scale’: Woolworths has admitted (30 October 2019) that they’ve underpaid thousands of staff by as much as $300 million.
Endota Spa underpaid employees on 457 working visas
The day spa franchise, Endota, was found to be underpaying 13 of its staff by up to $80,000 over a period of 4 years. Each fortnight, employees working at Endota on 457 working visas had $250 of their pay deducted.
Lush Australia owed as much as $2 million
Lush Australia admitted to underpaying around 5,000 employees as much as $2 million dollars. Director of Lush Australia, Peta Granger, said in an interview on Hack, a podcast hosted by Triple J, “our payroll system did not automatically interpret the modern award…We’re human and we’re capable of making mistakes”.
Australian Unity
Unity was ordered to pay a $250,000 ‘contribution payment’ for underpaying their staff over $7.3 million. Australian Unity has been ordered to pay a contribution payment as a result of underpaying over 8,900 employees between 2014 and 2021. Noted as payroll errors, the underpayment occurred in their assisted living business which covers aged care and disability services.
Michael Hill
Michael Hill International has been reported to spend approximately $25 million to compensate employees who were underpaid over a six-year period.
Qantas
Qantas has been in hot water for engaging in wage theft on many occasions over the last few years. Most notably in 2020, the FWO reported that as per a court-enforceable undertaking, Qantas is required to back pay their employees a total of $7.1 million.
Regardless of the industry, underpayment is rife across Australia. This was the driving force for the Albenese Government’s scheme to knuckle down on employers manipulating legislative loopholes and engaging in intentional wage theft of their employees. The Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 (Cth) proposes reforms of record-breaking significance. With the threat of jail-time imposed, employers who don’t get with the program, might find themselves receiving some shiny new metal bracelets.
Below we explore some key reforms which should be noted.
Criminalising Wage Theft
The proposed amendments would introduce a new federal criminal offence of ‘wage theft’, with significant maximum penalties of up to 10 years in prison and fines of up to $8 million. This would apply to amounts owing under the Fair Work Act and Industrial Instruments i.e Modern Awards and Enterprise Agreements. Amounts owing under employment contracts are excluded. Workplace Relations Minister Tony Burke spoke on the proposed amendments stating that threat of prison “will sharpen the minds of the very few people who’ve engaged in this intentionally”.
Intentional Underpayments
Conduct considered guilty under the new offence would need to be engaged in an intentional manner.
Self-Disclosure Protection
The bill also includes a proposed protection which may offer employers a get out of jail card by entering into ‘cooperation agreements’ with the FWO, however this will be at the discretion of the FWO. This would entail the consideration of the extent to which the employer has made a ‘voluntary, frank and complete’ disclosure of the conduct, the employer’s cooperation and the severity of the offence.
Increased Civil Penalties
The proposed amendments would also increase the maximum standard civil penalties by a staggering 5x increase for several contraventions of the Fair Work Act. These maximum penalties would increase to:
per contravention.
In addition, where the contravention involves an underpayment, the maximum applicable civil penalty would be the greater of five times the otherwise applicable maximum civil penalty or three times the underpayment amount. As such, breaches of enterprise agreements or modern awards that result in underpayments would, potentially, leave an employer liable to pay civil penalties of a sum in the millions.
Expanded Criteria for Serious Contraventions
The proposed laws also amend the existing criteria for determining whether a serious contravention has occurred, which triggers higher maximum penalties (up to $4.695 million for a corporation). Under the proposed new laws, a person will be regarded as having engaged in a serious contravention if they knowingly underpay employees or are reckless as to whether a contravention could occur.
Key Take Aways
Employers should note that while the new offence is set to commence on 1 January 2025, it is possible that the consideration of the employer’s “intention” regarding the unlawful conduct, may be established before they commence and therefore trigger liability for any underpayments that occur prior to this date.
Therefore, employers are advised to exercise extensive due diligence and as a matter of priority, take all possible steps to ensure their payroll operations are compliant.
At Chamberlains Law Firm we can help you to further understand this type of issue and how to solve any complications.
*This article was prepared with the assistance of Isabella Turner*
In Walsh v Yang [2023] NSWDC 307, the District Court of New South Wales held that an insurer was unable to rely on an exclusion clause to deny a claim because it did not “clearly inform” the insured about the exclusion pursuant to section 35 of the Insurance Contracts Act 1984 (Cth) (‘ICA’).
Background
On 24 March 2019, Mr Walsh, the plaintiff, slipped on wet tiled stairs in a granny flat at a property in Baulkham Hills. The plaintiff leased the granny flat from the defendants, Ms Yang and Mr Xu.
The plaintiff commenced proceedings against the defendants for negligently failing to make the tiles slip resistant when they knew, or should have known, that the tiles were slippery when wet.
The defendants had a home and contents insurance policy (‘Policy’) with Insurance Australia Limited (‘Insurer’). The defendants claimed under the Policy for indemnity in respect of the plaintiff’s proceedings against them.
The Insurer rejected the claim and relied on Policy exclusions relating to unlawful activities, building regulations and local authority regulations to deny indemnity to the defendants.
The defendants filed a cross-claim against the Insurer.
Section 35 of ICA
Pursuant to section 35(2) of the ICA, to rely on an exclusion clause in a policy an insurer must show that it has clearly informed an insured that they would not be covered for an excluded event.
In this case, consideration was given to the meaning of “clearly informed” within section 35 of the ICA.
The Court did not give exhaustive guidance on how the “clearly informed” threshold could be satisfied. The Court acknowledged comments previously made the Supreme Court of NSW that:
“in each case the content of the document and all of the circumstances of its provision would need to be considered in order to determine if the insurer had effectively informed the insured of the limitation”
Determination
The Court found that the Insurer could not rely on the exclusion clause(s) because the step taken to inform the defendants of the exclusions, which involved providing a copy of the Policy to the defendants when purchased it online, was insufficient to ensure that the defendants were “clearly informed” of the exclusions.
Judgment was awarded for the plaintiff against the defendants. The defendants were successful in their cross-claim against the Insurer.
The Insurer was ordered to pay the defendants’ costs of defending the proceedings and of the cross claim on an ordinary basis.
Implications
The fact that your insurer has provided you with a copy of their policy may not necessarily entitle them to deny your insurance claim based on an exclusion clause.
If your claim has been denied based on an exclusion clause, and you don’t consider you were clearly informed about the clause, contact the Insurance and Dispute Resolution team at Chamberlains Law Firm for a discussion.
Overview
In Withnell v Tran [2023] WADC 100, Alex John Withnell (plaintiff) sued Quang Hoan Tran (defendant) for damages arising from personal injuries that the plaintiff said were caused by the defendant’s negligent driving.
The defendant denied that he was negligent and said that he had acted response to a perceived threat from the plaintiff.
In dismissing the plaintiff’s claim, Justice Lonsdale of the District Court of Western Australia found that the defendant was not negligent and that his actions were reasonable in the ‘agony of the moment’.
The decision serves as a reminder that liability for negligence is assessed through a lens of reasonableness. Whether conduct was reasonable will be influenced by the surrounding circumstances.
Facts
The parties agreed that at about 6:30am on 25 June 2017, the plaintiff approached the defendant’s delivery truck as it was driving in a car park near the Flying Scotsman Hotel in Mt Lawley, WA.
The plaintiff and the defendant had different explanations as to what happened before the plaintiff was subsequently run over by the defendant’s vehicle.
The plaintiff had been drinking heavily and had smoke methylamphetamine at a friend’s house the day before the incident. In the early hours of 25 June 2017, the plaintiff and some friends went to Mt Lawley.
The plaintiff said that he became separated from one of his friends and attempted to flag down the defendant’s delivery truck so that he could ask the defendant if he’d seen the plaintiff’s friend.
The plaintiff said that:
“when I got close to him [the defendant], I did raise my hands, signalling him down and I assumed he was going to stop. But like – like an idiot I grabbed his mirror with the wrong intent – with the- I’m not – with the wrong idea about the truck driver. I thought he was going to stop. I didn’t realise he was going to keep driving”
After grabbing onto the mirror of the defendant’s truck, the plaintiff was dragged along before being run over.
The defendant gave evidence that he saw the plaintiff walking towards his vehicle. He swerved to avoid the plaintiff and then heard a loud bang. The defendant saw what he thought was the plaintiff trying to get into the cab of his truck. The defendant’s evidence was that he was frightened by the plaintiff’s actions and he was driving to try and get away from the plaintiff, who had grabbed onto the truck’s mirror.
Findings
Justice Londsdale found that:
“in the moment, the defendant believed that the plaintiff was intending to rob him. I consider that the defendant had a credible reason to fear that he was about to be set upon…attacked and assaulted by a stranger. That is because (as the CCTV footage shows) the plaintiff made a deliberate move towards the side of the defendant’s vehicle, in circumstances where the street was deserted and in complete darkness…I find that the defendant, having heard the bang took fright and acted instinctively”
Legal principles
When driving, a person must exercise a reasonable standard of care to avoid the risk of injury to others.
To determine what is reasonable, in any given scenario, there must be an assessment of:
In this case, the risk the defendant was responding to enlivened the ‘agony of the moment’ principle. That is, when looking at whether the defendant acted reasonably, consideration was given to the fact that the defendant was responding to an emergency situation (perceived robbery) that he was not responsible for creating.
Decision
Justice Lonsdale dismissed the plaintiff’s negligence claim against the defendant.
Even though the plaintiff was injured by the plaintiff’s driving, the defendant’s conduct was not negligent. The defendant’s conduct was found to be reasonable in the ‘agony of the moment’ because:
“the streets were in darkness and deserted. The plaintiff was moving purposefully towards the vehicle for reasons that could not have been apparent to the defendant. The plaintiff caused a loud bang which frightened the defendant and caused him to fear that the plaintiff was going to enter his vehicle and rob him. The defendant’s action was entirely understandable and reasonable…the defendant’s actions were a prudent response to a situation entirely of the plaintiff’s own making”
Takeaways
This case serves as a reminder that legal liability for potentially negligent conduct requires a careful consideration of the surrounding circumstances and how the circumstances were created.
If you require advice in relation to negligence proceedings, please contact Stirling Owen of Chamberlains Law Firm (stirling.owen@chamberlains.com.au)
What is a Letter of Demand?
A letter of demand (LOD) is typically used to notify a party:
What are the benefits of sending a Letter of Demand?
There are several potential benefits to issuing a LOD before commencing legal proceedings.
For example:
What should you do if you receive a Letter of Demand?
If you receive a LOD, it is generally best not to ignore it. Doing so may result in legal proceedings being commenced against you.
While you may respond to the LOD yourself, there is a risk that you may inadvertently say or do something that may compromise your position if legal proceedings are commenced.
We recommend engaging legal advice early so that you can obtain professional feedback on the merits of the LOD and the most appropriate options for dealing with it.
If you have received a LOD, or consider that you need to send one, feel free to contact the Insurance and Dispute Resolution team at Chamberlains Law Firm.
This article was prepared with the assistance of Hazel Erkekaslan.
What is the Doctrine of Exoneration?
The doctrine of exoneration concerns the issue of a loan against a jointly-held property. It will apply when the borrowed funds secured against the property are only for the benefit of one party. Thus, this doctrine is able to change the respective interests in property ownership when an interest in the asset is created by one party.
Fact Scenario Example
For example, two parties jointly own a home that is subject to a mortgage. While the mortgage is for the benefit of both parties, one party takes out an additional loan for their own benefit and secures it against this jointly-held home. In this instance, the party who took out the loan against the property is responsible for the loan and any repayments will be taken from their share of the property.
Doctrine of Exoneration and Bankruptcy?
During bankruptcy, the party who has gone bankrupt is appointed a Bankruptcy Trustee. The Trustee’s role is to realise all assets including financial capital, property and anything else with a monetary value. The purpose of this is to begin repaying the bankrupt’s creditors and help the person to get out of debt. However, having a jointly shared asset with another party who is not considered bankrupt can be problematic. Hence, the purpose of this doctrine is to protect the other party’s assets from being realised in the circumstance of bankruptcy by the Bankruptcy Trustee.
Case Example: (Trustee in Bankruptcy of Onyearu) v Onyearu and Anor (2017)
A recent case in the United Kingdom discussed the applicability of this doctrine. The facts and rulings of this case are listed below.
Facts
Held
The Bankruptcy Trustee’s argued that the wife had an indirect benefit from the loan and the doctrine of exoneration should not apply. However, the court ruled in favour of the couple stating that the indirect benefit to the wife, through the husband’s loan, did not hinder the application of the doctrine.
Conclusion
This ruling in Trustee in Bankruptcy of Onyearu) v Onyearu and Anor (2017) upholds the importance of this doctrine in the court of law. It is a powerful doctrine that helps in protecting people who are not directly involved in bankruptcy.
How can we help?
The doctrine of exoneration is very complicated and may apply to you depending on your circumstances. At Chamberlains Law Firm we can help you to further understand the doctrine and see whether it applies to you.
If you have any questions in relation to bankruptcy or the doctrine of exoneration, get in contact with our team by phoning us 02 6188 3600.
This article was prepared with the assistance of Annabel Randall.
The NSW Supreme Court has refused a permanent stay application in the recent matter of MTH v State of New South Wales (2023) NSWSC 1124.
In this case the plaintiff commenced proceedings against the State of New South Wales, Mr Geoffrey Croft and Mrs Sandra Croft, in relation to personal injuries arising from sexual abuse.
The plaintiff became a ward of the State in 1967 and was discharged in 1980 upon reaching the age of 18 years. When she was approximately 16 years old the plaintiff was fostered to Mr and Mrs Croft. The plaintiff alleged she was sexually assaulted at least ten times during her stay with the Crofts.
The plaintiff reported the assaults to the police twice.
The allegations were investigated by the police. Mr Croft was later charged and prosecuted. He was found guilty of two counts of rape and three counts of assault and committing an act of indecency in respect of the plaintiff. Mr Croft was also found guilty of indecently assaulting another victim. Mr Croft was sentenced to 22 years imprisonment and died of metastatic melanoma while in custody awaiting the outcome of his application for special leave to appeal to the High Court of Australia in relation to the criminal proceedings.
The case against Mrs Croft was that she, as the plaintiff’s carer, owed the plaintiff a duty of care. On 15 June 2023 Mrs Croft filed a notice of motion seeking a permanent stay of the proceedings against her.
On 4 September 2023 the notice of motion was heard before Garling J of the Supreme Court of New South Wales. His Honour found that:
Consequently, His Honour was not persuaded that Mrs Croft’s arguments constituted an exceptional case, which is necessary to justify an order being made for a permanent stay. Mrs Croft’s notice of motion was dismissed and she was ordered to pay the plaintiffs costs in respect of the notice of motion.
Benjamin Franklin is quoted as having written that “nothing is certain, except death and taxes“. Closely following death and taxes is insurance. Whether for business or personal reasons, it is likely that you will have to deal with insurance and insurance policies at some stage.
Unfortunately, despite the prevalence of insurance policies and products, there is little guidance or education on insurance and how it operates. This article explains some of the basics.
What is Insurance?
The first thing to remember is that an insurance policy covers an uncertain risk. In exchange for your money (premiums), an insurance company agrees to pay a sum of money, or to do something (e.g. conduct repairs), if the risk occurs.
If the risk occurs, you lodge a claim to let the insurance company know that you think it has an obligation to pay money, or do something else, under the insurance policy.
When you lodge a claim, the insurance policy dictates what, if anything, the insurer has to do in response to the risk having happened.
How does an insurance policy work?
Broadly speaking, a policy of insurance and the obligations under the policy can be split into two distinct parts:
It is important to understand that not all exclusions fall under the “exclusion clauses” section of an insurance policy. Other clauses in a policy of insurance may limit the circumstances in which the policy responds (or does not respond) to a risk occurring. This is why it is important to carefully review the entirety of an insurance policy. Exclusions clauses may be worded such that there are exceptions to when an exclusion applies. That is, there may be circumstances when an exclusion clause does not apply.
When an insurance claim is made, there are distinct roles and obligations that need to be discharged by the insured and the insurer:
Although the obligations on the insurer and insured can be readily distinguished, in practice, the interpretation of the insurance clauses and how they operate causes numerous disputes between insureds and insurers. If an insured event has occurred, or whether an exclusion applies may require evidence of the matters surrounding the claim.
This illustrates the vitality of being familiar with the complete terms of your insurance policy. In an era where information dumps have normalised agreement without understanding, it may save you significant funds and headaches to take the extra few moments and fully evaluate the terms and exclusions of the policy.
The Competition and Consumer Act 2010 (Cth) (“the CCA”) voids the operation of contractual terms that are deemed to be unfair by reference to standards set out in sections 24 – 25 of Schedule 2 of the CCA (with Schedule 2 of the CCA being referred to as the Australian Consumer Law).
From 10 November 2023, changes to the unfair contract terms regime (“the Regime”) under the CCA will come into effect. The changes mean that the Regime will apply to more businesses. Additionally, increased penalties will apply for breaches of the Regime.
This article focuses on the changes to the CCA that will broaden the application of the Regime. First, let’s look at some key concepts.
Unfair terms
If a contract is caught by the Regime, and it contains an unfair term, the unfair term will be void and have no effect.
A term will be unfair it:
In determining whether a term is unfair, the Court may consider any factors it considers relevant but must consider:
A term will be considered transparent if it is:
The CCA sets out non-exhaustive examples of what kind of terms may be considered unfair. In practice, some of the most common terms that fall foul of the Regime are those that:
The meaning “unfair” remains unchanged under amendments to the CCA.
However, there are changes that mean the Regime will now apply to a broader range of contracts and businesses.
After 10 November 2023
The Regime applies to “consumer contracts” and “small business contracts” that are also considered “standard form contracts” under the CCA.
Small business contracts
Before 10 November 2023, a contract is a small business contract if (among other things) it was entered into a time when at least one party to the contract is a business employing fewer than 20 people.
From 10 November 2023, a contract is a small business contract if (among other things) it:
The effect of the above change is that more small businesses will be covered by the protections (and penalties) imposed by the Regime.
Standard form contract
A standard form contract is one that is prepared on a ‘take it or leave it’ basis. That is, a contract that is pre-prepared and not shaped pursuant to negotiations between the parties. Examples of standard form contracts may include contracts for telecommunications services, gym memberships, insurances or subscription based services.
Currently, the CCA provides that the Court must consider the following matters in deciding whether a contract is a standard form contract:
From 10 November 2023, the CCA will provide certain matters that the Court must not consider in deciding whether a contract is a standard form contract. Courts will not be able to consider:
The above limitations mean that a broader range of contracts may be considered “standard form contracts” from 10 November 2023.
Takeaways
From 10 November 2023, the Regime is being amended such that far more contracts and businesses will be subject to the protections and penalties of the Regime.
Unfair contractual terms may result in contracts not operating as intended, and penalties being imposed.