The obligations and requirements of an expert and their conduct affirmed by the court in Blackmores Ltd v Jestins Enterprises Pty Ltd [2020] NSWSC 1177.
Facts:
Judgment:
Key Points from this Case:
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.
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The loss of a family member is always a difficult time, but it can become more distressing to learn that you have not been included in the family member’s Will. It’s even more distressing if the matter turns into a full-blown dispute amongst family members.
What does the law say?
Generally, a person may leave their assets to whomever they wish. However, it doesn’t end there.
The law recognises that those who relied on the deceased for support can be unfairly left out of the deceased’s Will. The Family Provisions Act allows a claim to be made if the Will maker failed to provide for a family member where they had a moral obligation to do so.
Who can make a claim?
There are prescribed categories of those who can make a claim, including a child, the spouse or de facto partner of the deceased or a parent, just to name a few.
To show that you are entitled to receive some benefit from the estate you must show that the deceased had an obligation to provide for you and that you have been left without adequate provision for your proper maintenance, education or advancement in life.
Successful claim made by only child
Chamberlains recently acted for an only child who was left out of his mother’s Will. The son had a very close and dependent relationship with his mother, however the mother’s Will did not provide any provision for the son, instead leaving the estate to the mother’s siblings and her grandchildren. This claim displays one of the main reasons why the Family Provisions Act exists – to remedy the situation where provision should have been made by the Will maker.
Chamberlains were able to successfully resolve the claim without the need for a full hearing in Court and the son’s legal costs were paid by the estate.
Act now.
If you have been unfairly left out of a Will contact our dedicated Private Wealth Law and Estate Litigation specialists team today for a no-obligation appointment. It is important to note that Family Provisions claims are subject to strict time limits so be sure to contact us as soon as possible or you may be prevented from making a claim.
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Many parents regard it worthwhile lending or giving money to their children to help them buy a home. But, there’s a very big difference between giving and lending. When you don’t have proper documentation that establishes that the money handed over is a loan, it’s not a loan.
If you are lending or gifting money to your children, you need to consider:
1. What will happen if you need the money back in an emergency?
Where there is no loan agreement there is no obligation to repay the money. You may be left out of pocket.
2. What will happened if you or your spouse die?
Again, where there is no loan agreement there is no obligation to repay the money. If you have other children, they may be disgruntled that one of their siblings has received a greater benefit.
3. What will happen if your son or daughter dies leaving a spouse?
If your son or daughter does not have a loan agreement or a clause in their will stating the money needs to be repaid, then the money may be lost. Chamberlains encountered a situation where two parents loaned their son $200,000.00 to buy a home with his new wife. The son died just five weeks after getting married and did not have a will or a loan agreement. The money automatically passed on to his spouse, despite the fact the parents and son had intended it as a loan.
4. What will happen if your child and their spouse split up?
You may say to you son or daughter “give it back when you have it”. But if they separate the spouse may state that they thought the loan was in fact a “gift”. Without a repayment date, or a schedule to repay the loan, the Courts will treat the money as a gift.
If a parent is lending rather than giving money it’s vital to have that reflected in a formal legal document to prevent confusion and distress down the track. It is much cheaper and less traumatic to sort it out at the outset with a legal document, rather than waiting and ending up in court.
Chamberlains Property Law specialists team can assist in drafting up loan documentation to cater for your unique circumstances.
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Eating a meal out at your favourite restaurant should be delicious, enjoyable and most all safe. The possibility of ending up in hospital sick from the experience probably doesn’t even cross your mind, nor should it.
Unfortunately, food poisoning can and does happen all too often, causing symptoms such as vomiting, diarrhoea, abdominal pain, fever, headaches and in the worst cases miscarriage, septic shock, brain damage and paraplegia (to name just a few!).
The fact is, a restaurant owes a duty of care to its customers to ensure that its food is safe for consumption. This means having strict systems and quality control measures in place to ensure you do not suffer harm, whether that harm be directly caused by contaminated food, or as a result of poor handling or poor manufacturing processes.
We’ve seen the Court hand down decisions in these type in cases such as in Samaan bht Samaan v Kentucky Fried Chicken Pty Ltd [2012] NSWSC. In this case a seven year old girl suffered severe brain damage and spastic quadriplegia as a result of salmonella poisoning caused by eating a KFC Twister. The Court awarded $8m in damages plus costs after finding that the chicken was contaminated.
We know that the first phone call you will probably be making is to the doctor. But once you’re back on your feet, the next call on your agenda should be to a lawyer. Claims of this nature can be complex and it’s important you seek expert legal advice early.
If you need advice for a food poisoning claim contact Chamberlains injury compensation team for an obligation-free appointment. We act on a no-win no-fee basis, and we guarantee to actually care about your claim.
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Canberra is the cycling capital of Australia, with more cyclists per capita than any other city. We’re lucky enough to have great a network of bike paths to explore our beautiful city. Whether you cycle yourself, or know family, friends or colleagues who do, you can probably imagine how devastating a serious cycling accident can be.
Our client was an avid cyclist, regularly riding hundreds of kilometres each week, who almost lost his life when he was hit by a motor vehicle in a horrendous ‘hit and run’ accident. Our client suffered a serious brain injury, multiple fractures and required extensive rehabilitation. Had our client not been so fit and active, he probably wouldn’t have survived.
Chamberlains were involved in the claim right from the day of the accident, providing advice and support to our client and his family. We lodged a claim against the third-party insurer of the vehicle involved and we fought for our client to recover damages for pain and suffering, loss of income earning capacity, treatment and domestic care expenses, and the costs of funds management. Our client ultimately settled his claim without the need to commence proceedings in Court.
At Chamberlains we genuinely care about our clients and we fight hard to achieve great results. Our client had this to say about our personal injury partner Alison McNamara who looked after his claim:
“I feel like we won the ‘legal jackpot’ when we found you…You are very special, so glad we found you”
The truth is, the privilege was all ours. Our client was an absolute inspiration and we feel honoured to have been a part of his story.
If you’ve been involved in a motor vehicle accident, whether as a cyclist, passenger or another driver, contact Chamberlains injury compensation team for an obligation free appointment.
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When you purchase a property off the plan, you expect to receive it in immaculate condition. After all, it’s brand new!
Unfortunately, at Chamberlains, all too often we see developers cutting corners when it comes to property finishes and being a little on the lazy side when it comes to repairing property defects. This can leave the buyer frustrated and deflated at a time when they really should be celebrating a milestone in their life.
Recently Chamberlains had great success with an off the plan unit and a not-so-diligent developer. Not only was settlement delayed by over a year, forcing the buyer to live in a constant state of uncertainty (think travel plans, rent, temporary accommodation), but when settlement finally did occur, the buyer did not get exactly what they had paid for.
The developer had, quite literally, cut some corners. They had messed up the building plans and completely omitted to build a section of the apartment. The developer tried to cover up their mistake, denied any wrongdoing and refused to build the apartment in accordance with the plans in the contract. However with the help of Chamberlains, the builder finally took responsibility and re-built the apartment as per the plans (they re-painted it too, for good measure). They even put the buyer up in a nice hotel for the duration of the works.
At Chamberlains we think it is only fair that you should get what you paid for. With the influx of new developments popping up around Canberra, it is important that the buyers (and especially first home buyers) are aware of their rights. Off the plan contracts are thick, with extensive special conditions, (mostly in favour of the developer) so it’s important you get proper legal advice before you sign up.
Our team of building and construction law experts at Chamberlains take the time to explain the process of purchasing property off the plan, and will be there to guide you through the whole process, from putting in an offer, to settlement and beyond.
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What happens if you are left a specific gift in a Will which no longer exists?
Let’s just say you are left the proceeds of a bank account by a family member which had a million dollars in it at the time they wrote their Will.
At the time of death you discover that particular bank account no longer exists – it was closed and the money transferred into a new bank account. Can you still inherit your million dollars?
Probably not.
We recently acted for a client in this exact situation.
A deceased left two nominated bank accounts to his children but then closed those original bank accounts and opened two new accounts with the same funds. The residue of the estate was left to the deceased’s second wife.
The problem was that the deceased did not change his Will.
The law of ademption applied which meant that the gift failed because the deceased no longer owned the specific bank accounts at the date of death. Even though the funds could be traced to the new bank accounts and the deceased no doubt intended those funds to go to his children, the gifts failed because the Will was not changed to suit the new circumstances. The Court has found that exceptions would only apply in limited circumstances, such as if there was some undue influence placed on the will maker to sell or redeem a gift.
In this case the proceeds of the bank account fell into the residue of the estate and were ultimately received by the deceased’s second wife, not the children as originally intended.
Moral to the story? Make sure your Will is current.
If you have left a specific gift in your Will or if any of your circumstances have changed you should see one of our experienced team to review your Will.
Estates can get tricky, but luckily, so are our lawyers. We can help guide you through the Wills process and give you the peace of mind that your affairs are in order. Contact our Wills and Estates specialists team today.
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How much does a DIY Will really cost?
Doing a Will has been known to be in the ‘too-hard basket’. Sometimes the cost of writing a Will and obtaining estate planning advice puts people off. Other times people just can’t find the time to see a solicitor. A do-it-yourself (DIY) Will and Will kits on the internet are cheap. Sometimes even free! My estate is simple enough, right? And a Will is easy enough to write, isn’t it?
Stop right there. A Will is a legal document. You probably wouldn’t ask your personal trainer to do your tax return, your doctor to give you advice on investment strategies, or your accountant for rehabilitation exercises following your knee surgery. This is outside their professional expertise. And if you wanted to have a crack at doing your own tax return, determining your own investment strategies or conjuring up some of your own post knee surgery exercises, you could be in for some costly consequences, or missing out on some substantial benefits. A Will is no different.
HKH have administered many estates and acted for executors and beneficiaries alike which have involved a DIY Will and we have seen a range of problems. Some of the most common include:
If you have questions or you need help, contact our Wills and Estates specialists team today.
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Do I need a Will?
Everyone needs a Will. Nobody likes thinking about their own death, but having a Will puts you in control and can save money and avoid costly disputes. If you die without a Will your estate will be distributed according to a legislated formula which may not be in accordance with your wishes.
I have a Will, do I need to update it?
You should review your Will every 2 to 3 years or after every major life event such as:
We can help advise whether your Will is valid and whether it should be updated.
Why should I use a solicitor?
Drafting a Will is more than deciding who gets what. You need careful planning and consideration. We can provide tailored advice to suit your specific circumstances, especially if you have children, are in a second marriage, are a company director or if you have more complex estate planning needs, such as testamentary trusts
Our estate services include:
If you have questions or you need help, contact our Wills and Estates specialists team today.
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Directors and officers have historically been able to make use of directors & officers insurance and grants of indemnity to assist in the management of their exposure to penalties under the Work Health and Safety Act 2011 (NSW) (Act).
Recently, however, the Act has been amended to create an offence of entering into, providing or taking the benefit of any insurance or indemnity arrangements that seek to cover a person from a monetary penalty under the Act. The amendments also provide that an officer of the company is deemed to have committed an offence if they have directly or indirectly been involved in the creation, provision or taking a benefit of an insurance or indemnity arrangement to protect against a monetary penalty under the Act.
The amendments, however, are silent as to whether there is a prohibition on obtaining, providing or taking the benefit of an insurance or indemnity arrangement that seeks to cover a person for legal costs related to addressing any action or inquiry seeking to impose a penalty under the Act.
Maximum penalties for breaches of the amendments
Where a breach of the amendments is committed, a person or corporation may face the maximum penalties, as set out below.
| Section | Maximum penalty for an individual | Maximum penalty for a body corporate |
| Section 272A(a) | $25,000 | $125,000 |
| Section 272A(b) or (c) | $50,000 | $250,000 |
| Section 272B | $125,000 | N/A |
Strategies to manage the amendments:
If you’re a director or officer;
If you’re an insurer;
If you’re a broker;
**Assisted by; Alana Davison**
If you have any questions or concerns please contact Chamberlains and talk to one of our insurance law experts today.