Where companies and individuals wish to reduce access to sensitive information, a confidentiality agreement can be an effective way to protect against unwanted disclosure.
A confidentiality agreement, or non-disclosure agreement (NDA), acts to clarify the permissible uses of confidential information and protect the disclosing party in that its provisions are legally enforceable.
What is a confidentiality?
As the name suggests, a confidentiality agreement protects information considered ‘confidential’.
A non-disclosure agreement will define the relevant ‘confidential information’, with this definition needing to be sufficiently broad and non-exhaustive to cover all information that either has been, or may be, disclosed.
When are confidentiality agreements used?
Confidentiality agreements can be effective tools where parties wish to keep certain information confidential and prevent its disclosure to other persons, there being a broad range of situations where this may occur.
For example, in the context of a commercial arrangement – such as the supply of services – parties may need access to certain information and, accordingly, the disclosing party will want certain legal protections.
Confidentiality agreements play a further critical role where information related to an idea or invention is disclosed prior to filing a patent application. In absence of a confidentiality agreement, the idea or invention will be considered to be publicly disclosed, rendering any patent subsequently granted invalid and potentially subject to revocation.
What is included in a confidentiality agreement?
While the contents and purpose of a confidentiality agreement will vary greatly depending on the parties’ wishes, typically the agreement will include provisions relating to the following:
In addition to this, for a confidentiality agreement to be valid, it must meet the requirements of a legally binding contract. As such, there must be:
Without these features, an agreement would not be valid and therefore would not be legally enforceable.
How are confidentiality agreements structured?
The form of a confidentiality agreement will be dependent on the reason for the disclosure of the confidential information, and the nature of the relationship between the parties.
If both parties are sharing confidential information., a mutual confidentiality agreement may be sufficient. If only one party is providing confidential information, a unilateral arrangement – such as a deed – may be preferable given contractual enforcement issues may arise from a potential lack of consideration on behalf of the recipient.
Are there any exceptions to confidentiality agreements?
Some information will be excluded from the protection of a confidentiality agreement by default, including:
Parties to an agreement may also choose to exclude categories of possibly confidential information through either inserting exceptions to the definition of ‘confidential information’ into the agreement, or adjusting obligations which apply to confidential information.
When is a confidentiality agreement breached?
Whether a confidentiality agreement has been breached will depend on the content of the agreement signed. Generally, however, a recipient of confidential information will breach their obligations where they use confidential information in an unauthorised way to the detriment of the owner of that information.
What happens if a confidentiality agreement is breached?
The consequence of a breach of a confidentiality agreement will give rise to a right to common law damages or compensation and, if required, an injunction.
Injunctive relief is common as it prevents parties from beginning or continuing to act in a way which threatens or breaches the confidentiality agreement.
What if I don’t have a confidentiality agreement?
If you don’t have a confidentiality agreement, you may be able to rely on an equitable obligation of confidence. The obligation arises where you have shared confidential information in circumstances importing an obligation of confidence.
These circumstances include where the information is shared with the understanding that it should be treated by the confidant on a limited basis, or where the confidant should have realised that – considering all circumstances – the information should be kept confidential.
Breach of the equitable obligation of confidence will occur when there is an unauthorised use or disclosure of information. Unlike contractual obligations of confidence, where loss is the basis of a claim for damages, claiming a breach of equitable obligation does not require proof of damage or loss.
In short…
Confidentiality agreements in the form of a contract provide a means for parties to expressly spell out their rights and obligations, giving parties certainty and clarity as to their legitimate expectations.
What is the Peak Indebtedness Rule?
The purpose of the peak indebtedness rule is to increase the chance of substantiating an unfair preference claim. It allows liquidators who are experiencing a running account to decide on the best peak of the Company’s indebtedness to the creditor and use it as the beginning for each singular transaction. A running account can further be explained as a principle whereby the company that has entered into liquidation maintains a business relationship with the supplier.
The purpose of this is to ensure that all transactions between the two parties are considered a single transaction making it easier to establish when an unfair preference has occurred. The running account principle is outlined in section 588FA(3) of the Corporations Act 2001 (Cth) (Act) and the peak indebtedness rule is codified in the Bankruptcy Act 1924 (Cth). Last year, the High Court of Australia handed down a decision that will change the way in which the peak indebtedness rule will operate in Australia.
Case Study: Bryant v Badenoch Integrated Logging Pty Ltd [2023] HCA 2 (‘Badenoch Decision’)
Facts
The two companies entered into a commercial relationship in 2003 whereby Badenoch Integrated Loggin Pty Ltd (Badenoch) would supply timber harvesting and hauling services to Gunns Limited (in liquidation) (Gunns) in exchange for payment.
Despite knowing that Gunns was struggling financially, Badenoch continued to provide timber services to Gunns until August 2012 when the agreement was terminated. On 25 September 2012, Gunns appointed liquidators. When the agreement was terminated Badenoch, in an act of good faith, continued to provide services for a short period with the purpose of assisting a future timber supplier.
Afterwards, Gunns made a claim against Badenoch to ensure repayment for services and that the transactions were considered voidable.
Issues
Two key issues arose including the peak indebtedness rule and the continuing business relationship.
Federal Court Decisions
The initial decision was presided over by Justice Davies who held that there was an ongoing business relationship between Badenoch and Gunns and the peak indebtedness rule as outlined in section 588FA(3) of the Act applied. Accordingly, liquidators were granted the freedom of selecting a date for the first singular transaction.
High Court Decision
The decision was appealed to the High Court of Australia in which they examined the role of the peak indebtedness rule and the continuing business relationship between the two parties. The Court held that the rule is not valid under the unfair preference scheme and accordingly liquidators cannot rely on it to determine the first transaction of a commercial relationship. Additionally, the start of the continuing business relationship is the first transaction after the start of the prescribed period or when the company is considered insolvent. Accordingly, if a debt occurs during the continuing business relationship between the two parties it will be included in the first transaction.
Takeaway
In conclusion, the peak indebtedness has been abolished and liquidators are no longer able to rely on this rule to determine the first singular transaction. Accordingly, please do not hesitate to contact our office if you seek legal advice relating to the peak indebtedness rule or unfair preference claims.
*This article was prepared with the assistance of Annabel Randall.
If you are interested in becoming a licenced producer or seller of cannabis, here’s everything you need to know about the changes to Australia’s narcotic drug licencing.
Cannabidiol (CBD) similar to tetrahydrocannabinol (THC) is derived from a cannabis plant however unlike THC, CBD is not psychoactive and contains medicinal properties. From 2021 the Therapeutic Goods Administration (TGA) has permitted the sale of low-dose CBD (a maximum of 150mg per day) to be supplied over-the counter by a pharmacist without a prescription. However, there is a catch. No product containing CBD has been approved by the Australian Register of Therapeutic Goods (ARTG) for pharmacist sale. So, whilst CBD can be sold over the counter currently no drug has been approved for this kind of sale. This decision came to fruition following a safety review of CBD by the TGA where they assessed current clinical literature to investigate the effects of low doses of CBD and as a result down-scheduled the substance from Schedule 4 (Prescription medicine) to a Schedule 3 (pharmacist-only medicine).
The Narcotic Drugs Amendment (Medicinal Cannabis) Act 2021 (the Act) commenced on 24 December 2021, detailing the changes for licences for medical cannabis regulation. The primary change under the Act was for licences to adopt a single licence model, consolidated from the previous structure of three separate licences – cannabis research licence, medical cannabis licence and manufacturer licence, into one. This licence will be granted for an unlimited period however, can be subject to suspension or revocation in accordance with the Act.
A licence will contain the certification and registration requirements by the business whereby a medicinal cannabis licence can only be granted for medicinal or scientific purposes. A medicinal cannabis licence will authorise the licence holder to cultivate cannabis, remove flowers or fruiting tops from the plant or to transform cannabis into a drug or extract. An applicant can apply for a licence at any time, however once you receive a licence, you must apply for a permit. You are unable to commence business activities until you have secured both a licence and the relevant permits. In addition, there is a statutory obligation for all licence holders to pay an annual licence charge whereby non-payment can result in revocation of the licence. This annual charge is subject to indexation resulting in minor increase applied at the beginning of each financial year.
In order to ascertain a licence applicant must:
You can apply for a licence either as an individual or for a body corporate but please note that application assessment can take up to nine months to provide a decision on the outcome of your licence during which the application fee is non-refundable. The approval of your licence is granted by the Australian Government, Office of Drug Control in conjunction with the TGA.
If your licence is approved, you will then be required to obtain the relevant permit indicative if you wish to produce or manufacture cannabis.
The legal status of cannabis gummies differs across different Australian jurisdictions. For example, in most Australian states cannabis products for medical use are permitted if accompanied by a proper prescription issued by a Doctor or medical practitioner. However, in the Australian Capital Territory possession of small amounts of cannabis for personal use has been decriminalised unlike in other jurisdictions, however the sale and purchase of cannabis is illegal in all Australian states and territories.
Australia has seen an increase in consumption of cannabis gummies which are a chewable treat however, there are guidelines surrounding purchase and consumption of these cannabis infused products which are as follows:
CBD oil is a popular natural remedy for many ailments including relaxation and pain relief. The TGA places cannabis oil into two categories: hemp oil and hemp seed oil. CBD oil is classified as a hemp oil and is defined by the TGA as extracted from a cannabis plant and containing both CBD and THC. In contrast, hemp seed oil does not contain CBD or TCH.
Currently, CBD oil falls under the umbrella of medical cannabis and cannot be sold over the counter but instead requires a healthcare professional’s prescription. The Office of Drug Control regulates the importation of hemp products whereby in order to import CBD oils from overseas, you are permitted to have a licence and a permit prior to importing.
Ultimately as cannabis laws differ between jurisdictions, is important to be aware of the laws which impact you. If you need legal advice or guidance, please contact us here at Chamberlains to assist you in gaining a cannabis licence if you wish to become a producer or manufacturer.
This article was prepared with the assistance of Zara Smith
The laws surrounding cannabis use in the Australian Capital Territory (ACT) have changed and here’s what you need to know.
As of 31 January 2020, new legislation came into effect changing the rules about the possession and usage of cannabis for consumers over the age of 18 years. Whilst the possession and use of cannabis in the ACT remains illegal it has been decriminalised, but what does this mean? Decriminalisation of cannabis means that individuals, over the age of 18 years, who possess or consume small amounts of cannabis, will not incur penalties. In other words, no criminal charges will apply.
According to the new legislation, the following conditions apply to individuals over the age of 18 years.
Despite the implementation of the new legislation, it is important for users to ensure that they abide by the law and know the law when travelling interstate.
The cultivation of cannabis plants refers to the growing, nurturing or harvesting of cannabis plants. In the ACT an individual can cultivate their own cannabis plant, however it is prohibited to use ‘artificial’ means such as hydroponics or artificial sources of heat and light to grow cannabis.
An individual can grow their own cannabis plants, but these cannot be grown in public spaces such as parks or community gardens. Instead, cannabis plants must be cultivated on private property such as one’s backyard.
It is illegal to acquire seeds, and it is a criminal offence to sell or share cannabis seeds with another person despite there being no legal avenue to acquire cannabis seeds. Whilst it is legal to grow your own cannabis plants in the ACT with a maximum of two cannabis plants per person, or a maximum of four plants per household this cap must not be exceeded.
If you grow more than four plants at one household the penalty for this crime includes a fine of up to $8,000, imprisonment for two years or both.
In the ACT, an individual can possess no more than 50 grams of dried cannabis or no more than 150g of harvested (fresh) cannabis. If you are caught trafficking 300 grams or more of cannabis, you could be charged with either a maximum penalty of ten years imprisonment, $160,000 in fines or both.
If you are caught possessing larger quantities of cannabis, you will be charged with a trafficking offence which incurs heftier penalties.
It is illegal to sell cannabis in the ACT at any time or at any place, including your own home. It is an offence to sell or share cannabis with any other person, especially if the individual is below the age of 18 years.
The consumption of cannabis can come in many different forms including, but is not limited to smoking via a joint, pipe or bong, edibles, tinctures and topicals. However, vaping cannabis is illegal. Irrespective of how you choose to consume your cannabis, the only permissible place to use cannabis is in your personal home.
You are not able to smoke or consume cannabis in any public places in the ACT. It is illegal to smoke or consume cannabis within 20 metres of a person under the age of 18 years.
As the ACT is the only state which has decriminalised cannabis possession and consumption, it is considered illegal to possess or use cannabis in any other Australian state or territory. Even if you live in the ACT but work in NSW, it is illegal to possess cannabis across the border.
Despite the new legislation decriminalising cannabis use in the ACT, there is still legal ambiguity around being charged under Commonwealth cannabis laws. Please ensure when you consume cannabis you do so with caution.
It is illegal to drive with cannabis in your system. Do not risk driving if you have consumed cannabis, as this can put your safety and the safety of others at jeopardy. As cannabis can take a while to metabolise, even if you believe the drug has worn off it may still be detectable in your system. Detection times will vary between individuals and may be detectable for longer in some individuals, due to factors such as the the potency of the dose, how much you have consumed and if the cannabis was laced with another drug.
The Australian Alcohol and Drug Foundation recommend, as a guide, that for those who frequently use cannabis, it can be detected for around 30 hours after consumption by saliva roadside tests. For urine samples, cannabis can be detected for up to one month after the cannabis was consumed.
To summarise, it is considered a crime in the ACT if;
If you have any concerns with your use, or a family member or friends use of cannabis, please do not hesitate to seek help and support. Contact the National Alcohol and Other Drug Hotline on 1800 250 015. This hotline supplies confidential support for those struggling with addition.
This article was prepared with the assistance of Zara Smith
With the imminent enforcement of the Right to Disconnect laws coming into effect for non-small businesses on 26 August 2024, the Australian Public Service Commission (APSC) has published a new guidance paper on the Right to Disconnect for public sector employers, which seeks to provide “best practice advice and guiding principles” when weighing whether to contact employees out-of-hours.
Whilst the guidance paper is aimed at public sector employers, employers in the private sector can benefit from considering these guidelines in preparing for the new laws.
Key takeaways from the new guidance…
Identifying “risk profile”
The guidance lays out a seven-point checklist to assist employers in identifying the potential risks of the right to disconnect laws.
The checklist indicates the following effects for employers to consider:
It is noted that employers should also assess interactions between the new laws and any existing right to disconnect entitlement in enterprise agreements.
Exercising judgment
The guidance reiterates that it is imperative for managers to “exercise judgement and weigh up all the relevant factors before contacting an employee outside of their working hours if they are expecting or eliciting a response”.
Updating workplace documents
The new guidance encourages employers to undertake a review of relevant employee documents that set out employees’ roles and responsibilities, in order to ascertain that they “accurately reflect” the “reasonable expectations” of them relating to out-of work contact hours. Suggested documents to review include job descriptions, performance agreements and candidate information packs.
If availability for working outside normal hours is considered an inherent requirement of the job or the employee is paid extra to be contactable out-of-hours, accurate portrayal in this instance is particularly important.
The APSC guidance also advises that employers should develop policies and procedures to clarify how disputes or complaints about the right to disconnect will be handled.
Training
The guidance calls for federal agencies to train HR professionals and managers on the relationship between the right to disconnect and the Fair Work’s general protections regime.
The APSC asserts that “all managers should understand that an employee or group of employees should not be subject to adverse action for exercising, or proposing to exercise, their right to disconnect.”
Providing thorough training is an important step in ensuring employers are able to effectively implement and navigate these changes as well as mitigate any potential legal risks.
More to come?
Keep an eye out for forthcoming FWC guidelines, which will sit alongside the current ASPC guidelines. As stated by the FWC’s president in a recent statement, the FWC guidelines won’t be made before August 26 as this will enable them to “be in a better position to make guidelines once it has dealt with at least some disputes”.
If you are wanting to get ahead of these changes, contact our team for assistance with updates to your workplace documents and training.
* This article was prepared with the assistance of Zara Arnold
When an employee makes a complaint or raises an allegation in the workplace, a workplace investigation is commenced to determine whether the allegation is substantiated. This will generally involve the collation of evidence relevant to the complaint and at times the production of an investigation report.
It is accepted at law that employees have the right to be informed about the nature of the investigation and to be treated fairly and impartially. However, are obligated to provide investigation report to employees?
This question was the subject of much debate in the recent decision of Aurizon Operations Limited v Cameron Webb [2024] FWCFB 318.
Facts
On 8 January 2024, Aurizon Operations Limited (Aurizon) provided Mr Webb a “Letter of Allegations” regarding alleged misconduct and directed him to attend an “information gathering meeting” the next day. Subsequently, Mr Jason Hart, RTBU industrial officer, followed up with an email to Aurizon’s Regional Operations Manager regarding Aurizon’s failure to “fully provide” Mr Webb with the allegations made against him and to give him reasonable time to prepare a response, in alignment with the obligations set out in the Aurizon NSW Coal Operations Enterprise Agreement 2021 (the Agreement). Prior to the meeting, Mr Hart filed an application for the FWC to deal with a dispute under section 739 of the Fair Work Act 2009 (Cth).
Aurizon maintained its refusal of providing Mr Webb with a copy of the investigation report, claiming that it “was confidential”.
Findings
It was initially concluded that clause 12.1 of the Agreement required Aurizon to provide Mr Webb with a copy of the investigation report. However, following an appeal from Aurizon, it was determined that the Commissioner erred in this determination and the Full Bench of the FWC found that clause 12.4 of the Agreement did not require Aurizon to do so. Nevertheless, it was upheld that Aurizon did not act in alignment with principles of natural justice and due process towards Mr Webb during the investigation.
By reference to the case of Coutts v Close [2014] FCA 141, the Full Bench found that the requirements of natural justice extend to “informing the affected person of the nature and content of adverse material that is credible, relevant and significant obtained from sources other than the affected person“.
Thus, the Full Bench found that the principles of natural justice and due process undoubtedly require an investigator to put the substance of the adverse evidence to a respondent, including any “ancillary information” that was referred to in reaching a finding in respect of the allegations.
Key Takeaways
Workplace investigations can be complex and the balance between transparency and privacy can be tense.
The Aurizon decision serves as an important reminder for employers to ensure they have a robust Workplace Investigation Policy which deals with the steps of an investigation process to ensure adherence to the principles of natural justice and due process in carrying out workplace investigations.
* This article was prepared with the assistance of Zara Arnold
All awards/enterprise agreements contain provisions surrounding a consultation process which must occur with employees when there are major changes being made to the workplace. This provision extends to instances such as redundancy.
The requirements of consultation include:
As an employer, if the time comes for an employee’s role to be made redundant, the consultation process that occurs must not be reduced to ‘merely telling a worker’ that they have been made redundant.
Such was seen in the recent case of Du Preez v MSWA Limited [2024] FWC 1793, where it was alleged that the redundancy of Mr Du Preez’s position was not ‘genuine’ as per the definition in section 389 of the Fair Work Act 2009 (Cth) due to the failure of adequate consultation.
MSWA, after appointing a new Chief Information Officer, had decided to restructure the business and found that the current position of financial data analyst was too narrow. As a result, the role was being made redundant.
Consequently, MSWA met with Mr Du Preez in October 2023 and informed him of the restructure and redundancy stating that it was to take effect in the next month.
The FWC accepted that the role was being made redundant and that redeployment was not an option. However, the FWC drew attention to the fact that the decision to make plans to restructure the firm first arose as early as June 2023.
In this case, it was reaffirmed by the FWC that consultation does not only occur when a decision has been made to make a role redundant. But rather the consultation which is owed to employees occurs “where there has been a decision to take an action that is likely to have a significant effect on an employee or where there has been a decision to introduce major changes”. As such, the decision in June 2023 triggered the consultation obligations. The FWC made clear the consultation obligations “especially on matters such as redundancy, should never be taken for granted”.
The FWC found that “the failure to consult Mr Du Preez makes the decision to dismiss him unreasonable.” As a result, the FWC agreed that Mr Du Preez was unfairly dismissed. Mr Du Preez was awarded $7,452 in compensation.
This case serves as a reminder to both employers and employees of the importance enforcement of the consultation that must occur when the workplace is undergoing major changes.
If you or your business is going through a major change, reach out to the Workplace Team at Chamberlains for guidance and assistance in navigating your obligations and entitlements.
This article was prepared with the assistance of Challita Tahhan
The Fair Work Commission (FWC) have confirmed the need to keep employees informed during workplace investigations.
In the recent case of Zamfir v Thiess Pty Ltd [2024] FWC 1404 (25 June 2024), Mr Zamir launched a general protections claim against Thiess Pty Ltd (Thiess) on the grounds of constructive dismissal alleging that Thiess’ workplace investigation process forced him to resign.
The Facts
Mr Zamir was the subject of a workplace investigation by Thiess which alleged that there was a potential conflict of interest between Mr Zamir and his direct report. Thiess’ carried out an investigation into the allegation, however, Mr Zamir alleged that Thiess had failed to keep him duly informed throughout the workplace investigation process.
Mr Zamir claimed that he was left to connect the dots with respect to this investigation and further claimed that there was no opportunity offered to address the alleged relationship.
Interestingly, Thiess did not inform Mr Zamir that it had determined that the allegations were unsubstantiated. Rather, Thiess stated that Mr Zamir needed to “take steps to manage the perceptions by implementing distance between himself and [direct report] or make effort to involve others when socialising with [direct report].”
It was asserted by Mr Zamir that the investigation process was riddled with errors and that the response Thiess provided only further fuelled and propelled rumours in the workplace.
Findings
The FWC ultimately found that the workplace investigation process was “far too informal”.
The FWC noted that there were communication failures from Thiess and these failures “likely further tainted [Mr Zamir’s] experience overall at work”. These failures stemmed from the fact that Thiess did not take the time to properly inform Mr Zamir of the outcome of the investigation. Only when asked, did the employer “casually” inform him of the outcome of the investigation.
The FWC went further in highlighting that the employer did little to “quell coworkers’ concerns about the perceived the relationship by management.”
Whilst the FWC did not make a finding on constructive dismissal, the FWC did stress the importance keeping employees informed stating
“[e]mployees subject to allegations that, if substantiated, could result in a breach of policy and jeopardise their ongoing employment should be carefully and thoroughly informed of any investigation and findings. The employee subject to the allegations should not be left wondering about the status or findings of any investigation.”
This case serves as an important reminder for employees that all parties to a workplace investigation must be updated sufficiently as the investigation progresses and finalises. Failing to do so can leave your business exposed to an adverse action claim.
If you have been subject to a workplace investigation and have not been kept in the loop, reach out to the Workplace Team at Chamberlains for advice on your position.
* This article was prepared with the assistance of Challita Tahhan
In the evolving landscape of litigation funding, third-party funders have become increasingly prevalent, offering financial support to clients who might otherwise lack the resources to pursue or defend legal claims. This shift has significant implications, particularly regarding the potential for third-party costs orders. In New South Wales, the regulatory framework governing these orders is outlined in section 98(1) of the Civil Procedure Act 2005 (NSW) and provides that ‘subject to the rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or an indemnity basis.’
Accordingly, the Court possesses broad discretion on costs orders. This discretion has slowly been expanded following the repeal of Rule 42.3 of the Uniform Civil Procedure Rules 2005 (NSW). As a result of the repeal the courts have discretion to issue costs orders against non-parties, such as third-party funders.
Moreover, as litigation costs continue to increase, the involvement of professional funders and ad-hoc financial assistance has become commonplace, with high-profile cases like Ben Roberts-Smith’s defamation proceedings highlighting the potential for significant financial implications. This article explores the intersection of third-party funding and costs orders, offering insights into the legal principles and practical considerations for parties navigating this complex area of law.
Legal Principles arising from FPM Constructions v Council of the City of Blue Mountains [2005] NSWCA 340 (‘FPM Constructions’)
In the matter of FPM Constructions the New South Wales Court of Appeal (‘NSWCA’) established a list of five criteria that must be meet to qualify for third party costs orders. These include:
Accordingly, if a party can meet the above requirements, they may be able to apply for third-party costs orders. Please see the below case where we will examine how these legal principles have been implemented at common law.
Brand2Content t/as Franchise Works v Dalby [2019] NSWCA 16
Facts
In November 2016, Brand2Content sued three companies and their director, Mr Dalby, for breaches of contract and misleading conduct. After losing at trial, the companies, with Mr Dalby’s financial backing, appealed to the NSWCA. Despite the appeal Mr Dalby entered into financial difficulty with one of his companies entering into voluntary liquidation. As a result, Mr Dalby ceased his relationship with his lawyers and failed to attend the hearing, leading to the dismissal of his appeal. Brand2Content sought costs from Mr. Dalby, claiming that while he was a third-party, he was the funding source and had a substantial interest in the matter.
Held
Simpson AJA ruled that Mr Dalby should pay the appeal costs on an indemnity basis. She held that Mr Dalby meet the criteria established in FPM Constructions by personally funding the appeal and having a substantial interest in its outcome.
Takeaways
This case is an important lesson to third-party funders demonstrating that they can be held responsible for costs if they meet the criteria established in FPM Constructions.
How we can help?
At Chamberlains Law Firm we can help you to sufficiently understand the legal requirements of third-party funders and costs orders. If you have any questions regarding cost orders please contact Mr Stipe Vuleta of our office.
*This article was prepare with the assistance of Annabel Randall
In New South Wales (NSW), under the Succession Act certain family members or dependants can make a family provision claim. In these types of claims individuals challenge a deceased person’s will if they believe they have not been adequately provided for.
Who Can Make a Family Provision Claim?
Under the *Succession Act 2006*, the following are eligible to make a family provision claim:
1. Spouse This includes a person who was married to the deceased or, in the case of de facto relationships, someone who was in a genuine domestic relationship with the deceased.
2. Children: This category covers biological children, adopted children, and in some cases, stepchildren who were dependent on the deceased.
3. Former Spouse: An ex-spouse may be eligible, particularly if there are ongoing financial needs or obligations arising from the marriage.
4. Dependents: Individuals who were wholly or substantially dependent on the deceased, even if they were not related by blood or marriage, may also be eligible to claim.
Grounds for Making a Claim
A person making a claim must demonstrate that the deceased did not make adequate provision for their proper maintenance, education, or advancement in life. The court considers various factors, including:
1. The Applicant’s Needs: Financial needs and living standards of the applicant.
2. The Deceased’s Wishes: The intentions expressed in the will and any statements made by the deceased regarding distribution of their estate.
3. The Size and Nature of the Estate: The overall value and composition of the deceased’s estate.
4. The Applicant’s Relationship with the Deceased: The nature and length of the relationship between the applicant and the deceased.
5. The Claims of Other Beneficiaries: The entitlements and needs of other beneficiaries named in the will.
Time Limits for Making a Claim
Family provision claims must be lodged within a specific time frame.
In NSW, the claim must be filed within 12 months of the date of the deceased’s death.
While there may be exceptional circumstances allowing for an extension, it is crucial to adhere to this timeframe to avoid dismissal of the claim.
The Legal Process
1. Initial Application
2. Mediation
3. Court Hearing.
4. Decision and Orders.
If you believe you have a claim or are facing a claim against an estate, seeking legal advice from a specialist in Disputed Wills and Estate law can provide clarity and guide you through the process the Team at Chamberlains are here to help. Were With You.