Facts
On 1 November 2021, Richard Crookes Construction Pty Ltd (Richard Crookes) engaged Kennedy Civil Contracting Pty Ltd (KCC) to carry out civil, stormwater and associated construction works under two separate subcontracts. During the performance of the works KCC served several payment claims under Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act). Richard Crookes responded to some of the payment claims with payment schedules and failed to respond to others.
On 1 August 2022, Jirsch was appointed as joint and several voluntary administrator to KCC pursuant to Section 436A of the Corporations Act 2001 (Cth) (Corporations Act). During the administration, the administrators formed the view that KCC was insolvent.
On 29 September 2022, KCC filed a Notice of Motion seeking Summary Judgment pursuant to sections 15 and 16 of the SOP Act due to RCC failing to make payment in accordance with previously issued payment schedules or failing to issue payment schedules at all.
On 9 November 2022, Richard Crooks filed a Notice of Motion, seeking that the proceedings commenced by KCC be dismissed as an abuse of process. Separately, Richard Crookes filed proceedings in the Federal Court seeking the DOCA be terminated pursuant to section 445D of the Corporations Act.
On 10 November 2022, at a meeting of KCC’s creditors, the creditors voted in favour of entering into a “holding DOCA” for the dominant purpose of pursuing RCC (among other debtors) under the SOP Act. The meeting minutes reflected that in the administrators view KCC was “hopelessly insolvent” and that it would inevitably need to be placed into liquidation, however a “Holding DOCA” was proposed to allow proceedings under the SOP Act to continue (as section 32B of the SOP Act provides that an entity in liquidation cannot make use of the SOP Act) while acknowledging KCC would be placed into liquidation at a later date.
The parties respective Motions and Richard Crookes Federal Court proceedings were then heard together by Ball J in the Supreme Court of NSW on 2 February 2023.
Issues for determination by the Court
By the time the matter was heard, Richard Crookes had conceded that if they were unsuccessful on their case, KCC would be entitled to judgment in the sum of $683,928.49 plus interest. Richard Crookes also abandoned a motion seeking security for their costs.
Accordingly, there were two issues left for determination by the Court, namely:
The parties arguments – Question 1
KCC argued that, when considering whether a DOCA had been entered into for an “improper” purpose, the Court should only look to the Corporations Act. KCC referred to section 435A of the Corporation Act which provides the purpose of administration is to maximise a return to creditors and submitted that the “Holding DOCA” achieved that purpose (by allowing proceedings under the SOP Act to remain on foot).
Richard Crookes submitted that the public policy or purpose behind section 32B of the SOP Act was to ensure the SOP regime was only made available to entities which were solvent and required cashflow and that permitting KCC to avoid liquidation “temporarily” by executing the DOCA would be contrary to that public policy. Richard Crookes, in reliance on several authorities dealing with section 445D of the Corporations Act, argued the DOCA should be terminated having been entered into for an improper purpose.
The Court’s findings – Question 1
The Court rejected as being “too broad” KCC’s argument that, when considering whether a DOCA was entered into for an improper purpose, the Court should only have regard to the Corporations Act.
The Court then proceeded to find that Richard Crookes reliance upon the authorities it cited was misplaced, finding those authorities dealt with DOCA’s seeking to circumvent the Corporations Act not the SOP Act.
Ultimately the Court held, in finding for KCC, that the Holding DOCA preserved the “pay now argue later” spirit of the SOP Act and that deliberately utilising the provisions of the Corporations Act to avoid triggering section 32B of the SOP Act did not amount to an improper purpose.
Accordingly, the Court refused to terminate the DOCA pursuant to section 445(D)(1) of the Corporations Act.
The parties arguments – Question 2
KCC submitted that the fact they had thoughtfully structured their affairs by utilising the Corporations Act to avoid section 32B of the SOP Act should not be construed as being an abuse of process.
Richard Crookes submitted that as KCC was hopeless insolvent and were only in a position to take advantage of the SOP Act because they entered into a DOCA expressly to avoid the operation of section 32B of the SOP Act, their pursuit of claims under the SOP Act were an abuse of process.
The Court’s findings – Question 2
The Court held, in finding no Abuse of Process had occurred, that KCC had not engaged in an abuse of process simply because it had organised its affairs so that it fell outside the scope of section 32B of the SOP Act and in addition that the terms of the DOCA were such that they preserved Richard Crookes’ rights to final relief in much the same way as section 34 of the SOP Act.
At Chamberlains, our expert Building & Construction Team can guide you through your matter.
Kennedy Civil Contracting Pty Ltd (Administrators Appointed) v Richard Crookes Construction Pty Ltd; in the matter of Kennedy Civil Contracting Pty Ltd [2023] NSWSC 99
Chamberlains Law Firm represented Kennedy Civil Contracting Pty Ltd (Administrators Appointed) (Kennedy Civil Contracting) in Supreme Court proceedings seeking to clarify the scope and ambit of section 32B of the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act).
On 17 February 2023, the Supreme Court of New South Wales handed down its decision and was not only a big win for Kennedy Civil Contracting but also a win for the construction industry as a whole. A summary of the case can be found here.
What was the issue?
There had been some contention under the Security of Payment Regime as to whether it should apply to construction companies that were insolvent or in liquidation. In 2016 the Victorian Supreme Court of Appeal said it would not,[1] but in 2019 the New South Wales Supreme Court of Appeal said it would.[2]
After industry consultation and various reviews at both a Federal and State level into the SOP Regime, New South Wales enacted an amendment to the SOP Act by inserting a new section 32B which expressly provided that the SOP Act would not apply to a construction company in liquidation.
The decision in the Kennedy Civil Contracting Case is the first reported decision testing the ambit and scope of section 32B.
What were the facts?
On 1 November 2021, Richard Crookes Construction Pty Ltd (Richard Crookes) engaged Kennedy Civil Contracting to carry out civil, stormwater and associated construction works under two separate subcontracts. During the performance of the works KCC served several payment claims under Building and Construction Industry Security of Payment Act 1999 (NSW) (SOP Act). Richard Crookes responded to some of the payment claims with payment schedules and failed to respond to others.
On 1 August 2022, joint and several voluntary administrators were appointed to Kennedy Civil Contracting. During the administration, the administrators formed the view that KCC was “hopelessly insolvent”.
Kennedy Civil Contracting commenced proceedings seeking to recover monies owed by Richard Crookes under the SOP Act. Particularly, at a meeting of its creditors, a vote was carried to, rather than enter into liquidation immediately, execute a “Holding Deed of Company Arrangement” (Holding DOCA) for the dominant purpose of pursuing Richard Crookes under the SOP Act. It was acknowledged by Kennedy Civil Contracting’s creditors that the company would inevitably be placed into liquidation in the future, and this was being done simply to “get around” section 32B of the SOP Act.
What did the Court say?
Richard Crookes argued that the Holding DOCA was entered into for an “improper purpose” and thus the Court should override Kennedy Civil Contracting’s creditors and terminate the DOCA, placing Kennedy Civil Contracting into liquidation. They also argued that entering into the Holding DOCA for the sole purpose of avoiding section 32B of the SOP Act was an abuse of process.
The Court did not agree. The Court held that the Holding DOCA was entered into to maximise returns to creditors and as such was entered into for a proper purpose and the Kennedy Civil Contracting organising its affairs carefully to avoid the operation of section 32B of the SOP Act was not an abuse of process.
What does this mean?
Construction companies facing cashflow difficulties which enter into administration now have a far greater chance of pursuing and being paid by their debtors. Recoveries can both assist a construction company that enters into administration to fund a DOCA and be able to continue to trade or return a far better result for creditors.
At Chamberlains, our expert Building & Construction Team can assist you with your matter and understanding how the SOP Act impacts you.
Contact us today and book an appointment with our experienced team.
We’re with you.
[1] Façade Treatment Engineering Pty Ltd (in liq) v Brookfield Multiplex Constructions Ltd [2016] VSCA 247
[2] Seymour Whyte Constructions v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11
A recent decision handed down in the ACT Supreme Court addresses a contested legal issue in civil negligence matters. Glover v Fuller poses the question of whether a plaintiff’s pre-existing injury, disease, or genetic condition should discount-or potentially extinguish- a defendant’s liability. It is important to note that this article encompasses only a sliver of what is an extensive debate. As expressed by McWilliam AsJ at [3], “…without wishing to appear flippant by adapting a line from Shrek, the animated ogre in the film of the same name: this case is like an onion; it has many layers.”
Glover v Fuller involved a 12-year-old boy who sustained injuries in a water-skiing accident. Jack Glover (the plaintiff) was being towed behind a motorboat in a tube, which was driven by his aunt’s partner (the defendant). The motorboat was travelling at considerable speed when it was forced to come to a sudden stop. This caused the tube to flip, resulting in the plaintiff being wrenched backwards and dragged under the water. The plaintiff suffered a back injury and has been experiencing ongoing back pain since the accident.
Upon initial investigation of the pain, it was revealed that the plaintiff was suffering from a preexisting spinal condition: bilateral spondylosis. Discovery of the plaintiff’s condition raised the issue of whether the pain was partially attributable to the pre-existing condition, rather than the accident exclusively.
To begin, factual causation must be established by using the ‘but for’ rule. As outlined in Adeels Palace Pty Ltd v Moubarak, the following question is asked: ‘but for the negligent act or omission, would the harm have occurred?’
McWilliam AsJ suggested that the defendant was operating the motorboat in a manner that could be considered dangerous, especially given the age and experience of the tuber. The defendant failed to inform the plaintiff of the necessary safety signals, nor was the spotter properly briefed. The plaintiff was therefore unable to communicate with the defendant while being towed. That, coupled with the speed of the boat, were instrumental factors to the accident.
The defendant’s actions, as outlined above, display a lack of safety precautions taken. The defendant owed the plaintiff a duty of care but failed to uphold it. Had more extensive safety precautions been in place, it is likely that the plaintiff would not have suffered harm to the same degree. The ‘but for’ test has therefore been satisfied and factual causation established.
McWilliam AsJ then reviewed the evidence to ascertain the longevity and severity of the injury. Early medical scans indicated that the pain and damage was caused by the water-skiing accident. However subsequent scans indicated that the injuries from the accident had plateaued in the years following. McWilliam AsJ drew the conclusion that the more recent pain is likely to be a result of the ongoing spinal condition, rather than lingering effects of the accident.
In awarding damages, McWilliam AsJ stated that the existence of the bilateral spondylosis and subsequent injuries sustained by the plaintiff were enough to reduce the scope of the damages, but not discharge them completely and awarded the plaintiff damages in the amount of $92,585.00. The case highlights the importance of properly considering any pre-existing conditions when assessing a claim.
If you have suffered an injury and need advice on making a claim our expert team in NSW and ACT are happy to provide an initial no-obligation appointment for free. If we think your claim has merit, we can act for you on a No Win, No Fee basis.
In the recent decision of Zphere Pty Ltd v Pakis the Supreme Court of Victoria considered a scenario where a partnership dispute in respect of an accounting firm was litigated in large part and had reached a settlement. Then, a partner who had not been involved in the litigation, commenced their own set of proceedings. The partner alleged that the relevant breach was with respect to one partner causing the partnership benefits to be directed to an entity of theirs rather than become a benefit of partnership.
Before final orders were made, deeds were signed that saw the defendant pay a sum, surrender their partnership assets, and the proceedings dismissed.
The plaintiff, a former partner of the partnership then sued the defendant for the same breach.
The defendant said that the plaintiff was bound by the deeds; estopped due to res judicata; and was bringing a claim which was an abuse of process.
The earlier litigation related to the defendant taking an improper benefit in breach of partnership obligations. The plaintiff was never joined to them or made aware of them.
At the core of each of issues is the similarity of the old litigation, and the new.
The doctrine of res judicata requires, in essence, two issues, to be dealt with.
Was the first litigation a final decision? Yes, the dismissal orders were final.
The next issue for the Court to decide was whether the plaintiff was “privy” of the parties to it?
The plaintiff highlighted their absence from the earlier litigation, powerlessness to intervene, and lack of knowledge of it.
The plaintiff’s claim was for 9.8% of the value of the breach based on the plaintiff’s partnership share. In fact, the 9.8% was not a share as tenancy in common, but an entitlement on dissolution not divisible into proportions as against the defendant.
The Court found a partnership interest is analogous to a trust. Like a trust, legal interests are subject to the equities of others. As trustees are privies then, following this analogy, so are partners.
As such, the plaintiff was estopped from pursuing this element of the claim by the doctrine of res judicata.
The plaintiff joined the partnership pursuant to a 2006 deed which was in force at the time of the breach.
The earlier proceedings were commenced by the partnership governed by a 2017 deed (which the plaintiff did not sign, having previously left the partnership).
The breach was suffered by the partnership at the time of the breach (i.e. pursuant to the 2006 deed) and to be distributed pursuant to that partnership’s constitution.
The 2017 deed appointed a representative of the (new) partnership. That representative and the (new) partners ran and settled the earlier litigation.
As such, the deed did not release the defendants from the plaintiff’s claim.
The defendant said the plaintiff’s claim was an abuse of process due to the prospect of inconsistent findings, and the defendant’s prejudice suffered if forced to relitigate a claim the defendant considered concluded.
The defendant failed to have the proceedings dismissed as an abuse of process. The defendant could have joined the plaintiff to the earlier proceedings and didn’t. The defendant could have sought to have the plaintiff sign up to the settlement deed, and didn’t.
The plaintiff was prevented from bringing their claim.
This case illustrated the importance of res judicia and where it might ultimately prevent you from bringing it into Court. If you would like advice in relation to a partnership dispute please do not hesitate to reach out to our Corporate Disputes team.
As a general overview, a company director oversees the affairs of a company and plays an integral role in the management and supervision of the company’s business activities.
Sometimes a person is not officially recognised as a director of the company but has the potential to control company decisions. As a result of this control, de facto directors, or shadow directors under the Corporations Act 2001, owe the same duties to the company and face the same consequence for breaching those duties as a formally appointed director. This is true regardless of whether you are a sole of a small start-up or are on the board of an ASX listed company.
What are shadow and de facto directors?
De facto director
A de facto director is a person who acts in the position of a director of a company but has not been officially appointed. This term can also refer to a person who has previously been a director, but in practice uses a different job title or description. A person or people who play an advisory role of a company may fall into the definition of a de facto director, however this is dependent on the types of duties they perform in the context of the company.
Shadow director
A shadow director is a person not validly appointed as a director, but who the other directors are accustomed to following. To establish if a person is a shadow director: on a regular basis and over a period time, the majority of the directors of the company must perform positive acts in accordance with the alleged shadow director’s instructions. If that test is met, the person is likely to be found to be a shadow director. A causal connection must also exist between the instructions given by the shadow director and the actions taken by the other directors.
In simple terms, a de facto director acts as if they are a director of a company. A shadow director makes decisions and commands the appointed directors.
What duties does a shadow director and de facto directors have?
De facto directors and shadow directors are subject to the same duties as a validly appointed director.
Some of the most significant director duties are contained in Chapter 2D of the Corporations Act 2001, including exercising the degree of care and diligence that a reasonable person would exercise in the role (s180), acting in good faith in the best interests of the company and for a proper purpose (s181), not improperly using their position to gain an advantage for themselves or someone else, or to the detriment to the company (s182), not improperly using the information they gain in the course of their director duties to gain an advantage for themselves or someone else, or to the detriment to the company (s183) and lodging information with the ASIC (s188).
Breach of duties
If a shadow director or a de facto director breaches their duties, the penalties are the same as those of an ordinary director if they are found to be in breach of their directors’ duties, including pecuniary and criminal penalties.
Civil Penalties, Criminal Penalties and Compensation
If a Court is satisfied a shadow director or de facto director has breached their duties, the Court can make a declaration pursuant to Section 1317E of the Corporations Act 2001. The result includes the Court imposing a fine of up to $200,000.00 for contravention of a civil penalty and disqualifying the person from being a director or managing companies.
The Australian Securities and Investment Commission (ASIC) can also pursue shadow directors and de facto directors in their personal capacity if the company has committed any serious breach under the Corporations Act 2001 or other relevant legislation.
Further, under s1317H of the Corporations Act 2001, the Court is granted powers to make compensation orders against directors who have breached their duties. This means that a breach of directors’ duties could also result in the person being held personally liable to pay any compensation and damages to not only the company, but also to any person who may have suffered a loss as a consequence of the breach.
Depending on the seriousness of the breach. criminal penalties may also apply under s184 of the Corporations Act 2001, if a shadow director or de facto director is reckless or dishonest and has breached their duty to act in good faith in the best interest of the corporation or for a proper purpose.
So, back to the beginning…
De facto directors and shadow directors can play a significant role in a company’s affairs and are held to a high standard.
If you haven’t taken a formal appointment as a company director but have taken on a role assisting or guiding the company, you should consider whether there is a risk that you could be pursued for breaching your directors’ duties.
At first, it might seem like a great idea to represent yourself in court. How hard could it be? Nobody knows your case better than you; the intricate details are your firsthand knowledge. And maybe you’ve even been told that you are quite convincing at making arguments!
There are lots of examples of people without legal training doing a reasonable job in front of a magistrate or a judge. However, there are a number of reasons why you might consider hiring a lawyer, and ideally a good one, before tackling the challenge of representing yourself.
Emotional investment
Legal matters are themselves emotional life events. If you’ve been through a business breakdown, a divorce, or in a car accident, you know how overwhelming these events can be. It is difficult to detach and realistically approach your situation from a clear perspective. A good lawyer will tell you what you need to hear, which is unfortunately not always the same thing as what you what you want to hear.
When representing oneself in court, it is easy to become emotionally involved in your case, which could cloud judgment and make it difficult to present a strong argument. Emotions are not evidence; and they can often work against you, it is important to remember that.
Adverse bias
In the words of the Honourable Justice Faulks “Most judges tend to couple the word self-represented litigant with an expletive. It is customary to regard them as difficult, time-consuming, unreasonable, and ignorant of processes of the law.”
In Kenny v Ritter, and in a great number of other matters, the Court recognises a need to provide a self-represented litigant with some assistance. However, this is taxing on a judge’s energy levels, and patience. Underlying this is also a conflict between the principle of fairness; the judge’s desire to help the solo litigant while maintaining the principle of impartiality. It is a difficult balance that by representing yourself, you are asking the court to undertake.
Lack of legal expertise
Lawyering requires a thorough understanding of substantive laws, procedures, and rules of evidence. Without legal training, it is difficult to know what evidence to present, what arguments to make, and how to make them successfully. The legal system is intricate and complex, even for those of us equipped with a law degree! Within one matter there could be multiple different approaches that a lawyer might choose to pursue, and each could lead to very different outcomes. Things can turn quickly in a court room, and you want a sharp, experienced perspective on your side.
Time and money
Preparing for litigation demands time and effort. Representing oneself requires extensive research, document preparation, and witness preparation, all of which can be time-consuming and overwhelming. If you already have a fulltime job and/or a family, the work required to prepare your case could quickly reach a tipping point where you might simply run out of time.
Often a person will represent themselves due to how much money a lawyer will cost. This concern is very valid. Legal costs can, sometimes, be disproportionate to the nature of the proceedings before the Court.
Most law firms, including Chamberlains, have payment options that can help ease the financial burden of litigation. And if you go to court on your own, and you lose, you might also face a costs order being made against where no only will you could also have to pay the other side’s legal costs (or some of them) even if you did not incur any yourself.
Can you go to court on your own behalf and represent yourself? Absolutely.
Should you think twice before you do so? Absolutely.
At Chamberlains, our expert disputes team can assist you with all stages of litigation.
Contact our Corporate & Commercial and Litigation & Dispute Resolution Teams today to schedule a chat with our experienced legal practioners.
We’re with you.
Nobody expects to have an injury and we certainly don’t plan for an injury which may turn your life upside down in an instant. Unfortunately, that’s the reality for a number of people when injuries have a devastating effect on their lives, and that of their families. In addition to the physical pain and emotional trauma, personal injuries can also result in significant financial losses and you can find yourself in a debilitating situation.
Personal injuries can take many forms, from broken bones and cuts to more serious injuries, such as spinal cord injuries and traumatic brain injuries. The medical treatment and recovery process for these injuries can be extensive and costly.
Injuries can also have a significant emotional impact on individuals and their families. The emotional trauma that can result from personal injuries, such as depression, anxiety and PTSD can be just as devastating as the physical effects, and in some cases worse.
Personal injuries can also result in significant financial losses as medical expenses, lost wages and the cost of care can add up very quickly.
When the injury is someone else’s fault
When the injury has come about because of the negligence of someone else, such as a workplace injury, motor vehicle accident, medical negligence, or an accident in a public place, it is important to seek the help of a personal injury lawyer to advise you on your entitlements. Claimants can be entitled to compensation for the pain and suffering caused by the injury, as well as recovering your financial expenses. However the legal system and dealing with insurance companies can be a daunting task, especially when you are already struggling with the injury itself.
Why see a Personal Injury Lawyer?
Personal injury lawyers are experts in the field of personal injury law and can help claimants navigate the legal system and maximise your compensation. A personal injury lawyer will be able to advise you on your entitlements, conduct investigations, gather evidence, negotiate with insurers and represent you in Court if necessary.
Many personal injury lawyers, including Chamberlains Law Firm, offer a No-Win, No-fee structure, which means that the lawyers only get paid if your claim is successful, so you don’t have to worry about upfront costs.
It is important to act quickly after you have suffered an injury to preserve your rights and to ensure you receive the compensation you deserve. You may have never thought you would have to consult a personal injury lawyer, but if you’ve been injured because of the negligence of others, it is a must.
At Chamberlains our expert team can assist you with making personal injury claims and will fight for the compensation you deserve. Contact us today for an obligation free appointment with our experienced team.
What is Cryptocurrency?
Cryptocurrency (Crypto) is a virtual currency or a “digital asset” that was originally designed to work as a medium of exchange, much like the Australian dollar.
Do I need to declare Crypto to my Bankruptcy Trustee?
Yes. Like any other asset, a Bankrupt must disclose ownership or interest in Crypto to the Trustee of their Bankruptcy. Failure to disclose may constitute an offence under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).
How does a Bankruptcy Trustee identify Crypto assets?
Ownership or interests in Crypto is more difficult to identify than traditional cash assets, however there are companies that specialise in tracing Crypto assets. Because crypto is recorded on a publicly available blockchain, it can be traced to a user’s digital or hard wallet address.
In cases where a Bankrupt is not forthcoming with this information, Trustees typically find evidence of Crypto purchases in bank statements, emails, apps or browser history.
Crypto in Corporate Insolvency
Through the initial thorough investigation of a company and its affairs, the administrators will identify and secure any assets. As above, it is expected that the company would disclose any interest or ownership of Crypto from the outset, however, if the administrators suspect the company is not forthcoming with the information, engagement with a broader group of stakeholders may be required.
Insolvency practitioners are able to use their powers under the Corporations Act 2001 (Cth) (Corporations Act) to acquire access to Crypto held by the company and secure it in a wallet controlled by the practitioner.
In cases of personal and/or corporate insolvency, the Crypto will be realised for the benefits of the creditors.
Chamberlains Insolvency Team
Our insolvency team is able to assist both Bankrupts and Trustees, by providing advice and assistance in dealing with Crypto as it evolves throughout Bankruptcy and Corporate Insolvency matters.
Recent Crypto News
FTX Trading Ltd (FTX), once the third-largest Crypto exchange company, has filed for Bankruptcy with an alleged $8-10 billion USD worth of assets owed to creditors.
The former CEO and Founder of FTX, Sam Bankman-Fried (SBF), has been arrested and faces 12 charges from multiple United States agencies including security fraud, wire fraud, defrauding customers and lenders, and violating United States campaign finance laws. These charges were laid by the Security and Exchange Commission (SEC), the Commodity Futures Trading Commission, and the United States Justice Department.
SBF was allegedly diverting customers’ funds to sister company Alameda Research, a Crypto hedge fund and market maker, of which SBF was the founder, major shareholder and former CEO. It is alleged that funds were also being used as a ‘personal piggy-bank’ by SBF and his inner circle, to purchase luxury accommodation, support political campaigns, and make private investments.
Chamberlains Crypto Team
At Chamberlains, we have a dedicated Crypto team who specialise in providing advice and assisting clients with use, exchange and tax related issues stemming from the ownership of Crypto.
Contact our team on the number below to discuss.
A family provision claim occurs where an eligible person is contesting a Will on the basis that they consider what has been provided for them in the deceased’s Will is not adequate and proper in the circumstances. The case of Kemperman v Antonenas [2021] NSWSCC 1555 is an example of a family provision claim in the context of an estranged parent-child relationship.
So, what is an eligible person? In general terms, the classes of persons eligible to make a claim against the estate of a deceased person can be summarised as follows –
The applicable categories of person vary across the States and Territories for these Will disputes, so we recommend that in determining whether you qualify to contest an estate or Will, you should contact our specialist estate dispute lawyers to confirm if you meet the eligibility requirements.
After eligibility is established, is the issue of whether or not adequate provision for proper maintenance, education, or advancement in life was made in the Will of the deceased for the applicant (the person making the claim) needs to be considered.
When deciding whether to make an order for provision, the Court will take into account several factors including the following:
Estrangement (having no relationship with a person for a period of time, e.g. reduced or no contact for many years) is a common issue in Will dispute matters. The Court in Kemperman v Antonenas described estrangement as a condition created by the conduct of both parties and is relevant to the Court’s consideration in making an order for provision. Estrangement does not require the Court to assign ‘blame’, but the circumstances must be examined. This is most common in parent-child relationships where a break down occurred potentially many years ago and the parent has made little or no provision for the child in their Will. We have acted on both sides of these Will contest claims and so appreciate the various issues that need to be considered for you.
Case Example – Kemperman v Antonenas
In the NSW Supreme Court decision of Kemperman v Antonenas, the applicant (the estranged daughter of the deceased mother) was successful in obtaining a lump sum payment from the estate.
The applicant was one of three adult daughters of the deceased. The applicant and the deceased had an estranged relationship with limited contact for the last 50 years of the deceased’s life. The deceased had only provided a small amount for the applicant in her Will, leaving the residue of her estate to be shared between the other siblings. The deceased had provided reasons in her Will, describing the applicant as the “greatest disappointment” to the family and for that reason she did “not deserve…a handout from our heritage” (see Kemperman v Antonenas [2021] NSWSCC 1555 [27]).
However, the applicant was significantly worse off than her sisters. She lived on a disability pension in public housing and had little future earning capacity. She made a family provision claim to be able to purchase permanent housing and assist with future medical procedures.
The judge was satisfied that adequate provision in this Will dispute claim had not been made for the applicant because:
What This Means for You
You might be eligible to make a family provision claim to challenge a Will if you have not been adequately provided for in a loved one’s estate. Our estate dispute specialists in the Private Wealth Law team at Chamberlains can assist you.
On 6 December 2022, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Act) was implemented into Australian law. The changes introduced by the Act are substantial and are considered to be the most significant reforms to employment law in Australia since the Fair Work Act 2009 (Cth) (FW Act) was introduced over a decade ago.
The Act sees the introduction of several changes to the employment law landscape with amendments to the law targeted at promoting job security, flexibility, and equality for individual employees. One key area of amendment is with regards to “pay secrecy” clauses.
What is a Pay Secrecy Clause?
A pay secrecy clause is a common inclusion in most employment contracts. The clause will generally provide that an employee’s remuneration is confidential and prohibits employees from disclosing, discussing and/or comparing salaries with one another. Breaches of those clauses have previously seen employers have a valid and lawful reason to institute disciplinary action against an employee (depending on the circumstances of each specific case).
Secret no more…
However, the Act now makes it a workplace right for employees to disclose (or not disclose) information regarding their renumeration and terms and conditions of employment required to calculate their renumeration i.e., hours worked, on-call/shift-work requirements, sales numbers.
By making this a workplace right, it means that employees are protected from having adverse action taken against them for making such disclosures. Further, employees are now entitled to make general protections claim if their employer takes adverse action against them for having exercised this workplace right.
Dates to be aware of
These amendments apply to employment contracts that have been entered into on or after 7 December 2022 i.e., all contracts entered into on or after 7 December 2022 must not contain pay secrecy clauses and if they do, they cannot be enforced.
With respect to employment contracts entered into before 7 December 2022, the Act and its amendments to the Fair Work Act have no immediate effect i.e., the employees are still required to comply with any pay secrecy clauses in their contracts. However, once the contract is varied, it cannot include a pay secrecy clause i.e., once the employee receives a pay increase, promotion or other change in their role, the pay secrecy clause will not apply from the time of that variation.
The Act allows employers a grace period of six-months to update employment contracts. As of 7 June 2023, employers who enter into contracts/agreements that include pay secrecy provisions can be held liable for penalties of up to $66,600 per contravention.
Be proactive!
Employers are highly advised to seek guidance from our Workplace team, to ensure they are meeting their obligations, complying with the new legislative amendments, and protected from potential liability. Employers are strongly encouraged to use these amendments as a catalyst to:
*This article was prepared with the assistance of Isabella Turner*