Australia’s longest-serving prime minister passed away on May 16 at the age of 89. Now, a few months after the former PM’s death, his family is entering into a legal dispute over his will, The New Daily has reported.
According to reports, Bob Hawke’s daughter Rosslyn Dillon plans to contest the will of the late PM which reportedly gifts the vast majority of his estate to his biographer and second wife, Blanche d’Alpuget. Mr Hawke reportedly left $750,000 to each of his three children, including Ms Dillon, leaving the more sizeable residue to Ms d’Alpuget.
Ms Dillon will be contesting the division of the multimillion-dollar estate on the grounds that it fails to adequately provide for her proper maintenance, education or advancement in life, pursuant to Chapter 3 of the Succession Act 2006 (NSW) (Act). Section 60 (2) of the Act sets out 16 matters which may be considered by the Court in making a decision, including the nature and extent of the deceased person’s estate and any other matter the Court considers relevant. The Act looks at the “needs” of the plaintiff at the time of the hearing, leaving such considerations as the testator’s wishes separate. If the dispute cannot be resolved amicably between Ms Dillon and Ms d’Alpuget, the matter could head to the Supreme Court of New South Wales.
One family provision case involving a large estate was Blore v Lang [1960] HCA 73. In that case a daughter who was excluded from benefitting under her late father’s will, was awarded an amount equal to that of her surviving siblings despite being in a comfortable financial situation. In such cases, the Court tends to consider the moral duty/obligation that the deceased owed to the plaintiff, despite the perceived financial security of the individual. One needs to consider what ought to be provided to a beneficiary to ensure that the beneficiary can continue living the life they are accustomed to. The provision must be adequate for the “proper” maintenance of the individual.
An application under the Act must be made within 12 months of the date of death and plaintiffs are strongly advised to seek independent legal advice as these proceedings can be legally complex and difficult to navigate. Whether you are the executor of an estate defending a claim or where you have been excluded as a beneficiary and want to contest a will, legal expertise can make all the difference in obtaining a successful resolution.
At Chamberlains, our Wills and Estate planning team will provide you with comprehensive advice on estate planning, will disputes and estate administration. As experts on will drafting and structuring, we are uniquely placed to provide the strategic advice you need.
Earlier this year in March, the Australian Parliamentary Joint Committee on Corporations and Financial Services handed down its 369-page report called ‘Fairness in Franchising’ (Report). The Committee’s inquiry has generated some controversy throughout the process, including among the Franchise Council of Australia and several large individual franchisors.
The Report sought to address several issues within the large franchising industry in Australia, which make up approximately 9% of Australian GDP each year. These issues often stem from a substantial power imbalance between a large corporate franchisor and a small franchisee, and the Report identifies the reality that these issues are systemic within the franchising industry and not isolated.
The Report also acknowledged that improving awareness of prospective franchisees and improving the accuracy of information given to those franchisees is only part of an effective solution.
With this in mind, among the Report’s 71 recommendations was the establishment of a taskforce to oversee the implementation of the recommendations of the Report (Taskforce). The Taskforce will be made up of the following federal departments:
(a) the Department of the Treasury;
(b) the Department of Employment, Skills, Small and Family Business; and
(c) the Department of the Prime Minister and Cabinet.
The ACCC will also be involved, providing valuable consulting to the Taskforce and potentially acting as its enforcement arm.
Among other things, the Taskforce will be charged with:
(a) Taking an active approach to prevent unfair contracting, including considering making amendments to the Competition and Consumer Act 2010 (Cth) (Act);
(b) Reviewing the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Cth), made under the Act) for pressure points to redress the issues of asymmetrical information and power;
(c) Examining methods of reducing wage theft, which is promoted by the franchising model since it is one of the only costs that a franchisee can control unilaterally;
(d) Examining where anti-competition provisions of the Act may be breached as a result of franchisors specifying particular suppliers in franchising agreements, including conflict of interests that arise as a result;
(e) Investigating whether a franchise register that centralises updated disclosure documentation may be viable; and
(f) Considering what amendments to the Act may be made that implement a more comprehensive and effective penalty regime.
The Report emphasises that disclosure protections, while once adequate for franchisees, are now insufficient to surmount the challenges associated with the power imbalance inherent in most franchising arrangements. It will be interesting to see how the franchising industry adapts within this context, and whether a new and improved framework will strike an appropriate balance between the interests of both franchisors and franchisees.
If you have any legal questions related to commercial and corporate law, contact our team of lawyers at Chamberlains Law Firm!
A recent decision by the Fair Work Commission (FWC) has outlined the evidentiary burden to be met by employers when dismissing employees for misconduct. The FWC upheld the dismissal of two employees involved in the theft of cigarettes from a Virgin Australia flight’s freight load.
An internal investigation was conducted by Virgin after it was suspected that one of their employees, a non-smoker, had stolen two packets of cigarettes and given them to a colleague. The investigation discovered the colleague had offered the cigarettes to two other employees during a break, revealing to them that the other employee had taken them from the freight load. The two other employees declined the offer, and one later reported the exchange to the duty manager.
Virgin followed up on the packages which were to be sent from Sydney to Cairns and found two packs of cigarettes to be missing. The manager on site indicated Virgin’s process meant it was likely the cigarettes were stolen from the freight hold of the aircraft when it was being loaded at Sydney Airport.
The employees were suspended on full pay by Virgin to allow for an investigation. Despite a lack of CCTV footage, Virgin came to the conclusion two employees had stolen and received the cigarettes. They were both summarily dismissed for serious misconduct.
On the day of dismissal, the smoker made a post on social media which claimed that “[Virgin] HAVE FIRED ME TODAY AND HAVE NOT PROVIDED ME WITH ANY EVIDENCE.”
Contrary to this view, FWC Deputy President Peter Sams found that Virgin Australia had “an overwhelming evidentiary foundation to conclude, on the balance of probabilities” that the two employees were responsible for the theft of the cigarettes.
Deputy President Sams stated went on to state that “Virgin’s evidentiary case provided a sound, logical and rational foundation for the Commission, to be satisfied the denials of involvement in the theft, cannot be accepted.”
A key factor considered by the FWC was the dishonesty of the employees attempting to cover up the theft. The FWC outlined that the value of the items stolen were irrelevant when placed against the deceit of denying their conduct. This resulted in the employment relationship breaking down beyond repair. This breakdown underpinned the decision from the FWC to uphold the dismissal.
This matter highlights the importance of thorough processes when terminating employees contracts. If looking to dismiss an employee for misconduct, it is critical the employer has an evidentiary basis to lean upon. Accordingly, investigations and proper legal advice is integral.
The Treasury has recently implemented amendments to the Corporations Regulations 2001 (Cth) (under the Corporations Act 2001) regarding the reporting burdens on small to medium sized companies, increasing the thresholds for the first time since 2007. The reporting requirements include:
(a) lodging:
(i) annual directors’ reports;
(ii) financial reports;
(iii) auditors’ reports; and
(b) establishing a whistleblower policy.
Before the reforms, a company would be considered ‘large’ for ASIC reporting purposes if it meets at least two of three threshold tests within a single financial year. These are:
(a) earning $25 million or more in consolidated revenue;
(b) holding $12.5 million or more in consolidated gross assets; and/or
(c) having 50 or more employees.
All three of these thresholds are now ‘doubled’ to $50 million, $25 million and 100 employees respectively.
This is a significant increase. Under the new reforms, approximately 1/3 of companies that lodged audited financial reports with ASIC in the 2017/2018 would not be required to do so under the new thresholds.
Directors of medium size companies that straddle the line between medium and large will particularly be appreciative of the change. It will also be welcomed by medium to large sized businesses that now will no longer need to comply with tight regulations and will enjoy a reduction in the red tape and administrative burdens surrounding the running of a company.
The rule in Saunders v Vautier (1841) 41 ER 482 provides a mechanism by which beneficiaries can terminate an unwanted trust by giving a suitable notice to their trustee. That case laid down the rule of equity which provides that, if all of the beneficiaries in the trust are of adult age (sui juris) and are under no disability, the beneficiaries may require the trustee to transfer the legal estate to them and terminate the trust. The rule has been affirmed repeatedly in common law jurisdictions. The trust is thereby terminated, notwithstanding any directions to the contrary, in the trust instrument.
Probably the most common instance of a restriction imposed on a vested interest is a direction to accumulate the income until the beneficiary attains an age greater than twenty-one years. It is not uncommon for testamentary trusts to provide that beneficiaries named in a Will are not to take their testamentary legacy until attaining the age of twenty-five years.
The rule in Saunders v Vautier allows such beneficiaries to require the testamentary trustee to pay the capital sum, together with any undistributed income, when the beneficiary turns eighteen years of age.
As a consequence of the requirement that the beneficiaries must be adults of full capacity, a right of termination of the trust cannot be exercised, under the general law, if any beneficiary lacks legal capacity.
Many jurisdictions have introduced general statutory reforms to deal with problems of incapacity. Individuals, while they still have full capacity, are now able to execute Enduring Powers of Attorney which authorise an agent to act upon their behalf, regardless of any later loss of capacity. Courts or Tribunals may also appoint a guardian or administrator to act on behalf of the person suffering from the capacity.
The question arises, however, whether either of these two categories of authorised person can validly terminate a trust, on behalf of an incapacitated beneficiary, under the rule in Saunders v Vautier.
In the recent Queensland decision of Re Tracey [2016] QCA 194, a divided Court of Appeal provided a framework within which questions of this kind may be resolved. Those proceedings were instituted by the Public Trustee of Queensland, to seek judicial guidance about the extent of its statutory power to act on behalf of various incapacitated adults. The extent of the statutory power vested in the Public Trustee was to do anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power was exercised.
By a majority, the Court of Appeal held that this statutory power was sufficient to authorise the Public Trustee to exercise, in the place of an incapacitated adult, the power to terminate a trust established under the general law or under various statutes. However, the Public Trustee was found to have no power to terminate trusts established by Court order, because the rule in Saunders v Vautier simply did not apply to trusts of that kind. While there was some discussion in the judgments of the analogous position of an agent acting under an Enduring Power of Attorney, the majority did not seek to resolve that question.
The decision in Re Tracey has been followed in subsequent Supreme Court of Queensland cases: Nicotra v State of Queensland [2017] QSC 303, and Re Narumon Pty Ltd [2018] QSC 185. There have been no similar decisions in New South Wales, nor the Australian Capital Territory.
A recent NSW Court of Appeal decision – Beck v Henley [2014] NSWCA 201 – provides an interesting discussion and application of the rule in Saunders v Vautier. If the conditions for the application of the rule apply, the beneficiaries of a trust are, collectively, able to terminate the trust, irrespective of the terms of the trust, and the purposes of the trust. This is a right vested in the beneficiaries and the trustee is under a duty to wind up the trust.
The main precondition for the rule to apply is that the beneficiaries have an absolute and indefeasible interest in the trust property. This case demonstrates that the rule in Saunders v Vautier will still apply where not all beneficiaries wish to terminate the trust, so long as the trust property is divisible, and the allocation of the trust property will not prejudice those beneficiaries. This is because the trust’s operating expenses will be spread over fewer assets and it will not constitute prejudice sufficient to preclude a partial winding-up.
The rule in Saunders v Vautier applies to fixed trusts. For example, in a limited recourse borrowing arrangement, where the acquired asset is held by a custodian, on holding trust for the trustee of the superannuation fund, the trustee, as the only beneficiary and the trustee of the superannuation fund, has an absolute and indefeasible interest in the acquired asset. Consequently, the trustee of the superannuation fund can terminate the holding trust (irrespective of the terms of the holding trust’s deed) at any time.
Similarly, the rule in Saunders v Vautier can apply to discretionary trusts, if all the potential beneficiaries are adults, they all agree, and they are collectively entitled to absolute and indefeasible interests in the trust property.
What is a trade mark and how are they signified? You have probably seen superscript symbols above famous logos and may think they are interchangeable. However, as with many things in the law, it is not so simple, and using one incorrectly could see you face serious adverse consequences.
The two symbols are used as follows:
(a) TM symbol – used to indicate that the owner claims intellectual property rights over the designated mark, but that it isn’t formally registered under the Trade Marks Act 1995 (Cth) (Act).
(b) The ‘®’ symbol – used to indicate that the mark to which it pertains is registered under the Act, and that the mark and its owner have special statutory protections which they can rely on in the event of infringement.
There is no statutory protection afforded to marks signified by ‘TM’. Protections and rights afforded to a trade mark owner under the Act include:
(a) the exclusive right to use the trade mark;
(b) the exclusive right to allow others to use the trade mark; and
(c) the exclusive right to take legal action for infringement.
This does not mean that there is no utility to using ‘TM’. Intellectual property over trade marks are still protected at common law and under the Australian Consumer Law through the tort of passing off and the offence of misleading and deceptive conduct, respectively. However, they carry higher thresholds and burdens of proof to be made out, and therefore cost more to enforce.
Using ‘®’ when a trade mark is not officially registered under the Act carries a fine of 60 penalty units, which is currently $12,600 – so be sure not to do this without being prepared to be hit with a fine, or worse.
You should be particularly careful when using either of these symbols and make sure that it complies with the usage requirements under Australian trade mark law. The most effective way to protect your trade mark is to have it registered under the Act.
Seung Huyn Lee -v- Leisa Strelnicks [2019] NSWSC 526
After at least a decade of constant litigation in the Local Court of New South Wales, insurers and hire car companies have finally been given the benefit of a decision in relation to loss of use/hire car cases from the Supreme Court of New South Wales. In the last decade, the Local Court of New South Wales has been inundated with cases run by credit hire companies against insurers. In these cases, credit hire companies seek to recover from insurers (or indeed those motor vehicle users without insurance) the cost of hiring a replacement vehicle to a “not at fault party” in a collision. Many issues have arisen as a result of the swarm of litigation in this area. The key areas of contention between credit hire companies and insurers have been the issues of need, rate and duration. Until now, these issues have been determined in the Local Court of New South Wales with no real guidance from a higher court of law in New South Wales. At best, the Local Court was working with decisions of District Courts in other states, or otherwise from decisions from the United Kingdom. These decision have often been contradictory and have offered little assistance to either insurers or credit hire companies in resolving the issues in dispute.
Here to hopefully offer some guidance to lower courts on, at least the issue of need, is the decision of her Honour Wilson of the Supreme Court of New South Wales in the case of Seung Huyn Lee -v- Leisa Strelnicks (“Lee”). In the Lee case, her Honour was asked to consider a decision from Assessor Olischlager (as he then was) sitting in the small claims division of the Local Court. The case, at first instance, was run as a dispute on both quantum and liability. In regards to liability, the defendant was found to be 80% liable for the collision and there was a finding of 20% contributory negligence on the part of the plaintiff. This aspect of the decision was not raised on appeal. After making a finding as to liability, the Assessor was then asked to consider the question of the need of the plaintiff in relation to a vehicle hired by her from a credit hire company called I’m In The Right. In the Defence filed on behalf of the defendant, the issue of need was specifically denied, and it was specifically alleged that the plaintiff had failed to provide any evidence of any need of the plaintiff for a replacement vehicle.
In support of her need for a replacement vehicle, the plaintiff put on a statement which evidenced, inter alia, that she needed the replacement vehicle “to travel to and from work, to take her kids from place to place and for domestic and social purposes, such as visiting friends and family.” This need was specifically challenged by the defendant. The defendant asserted that the statement of the plaintiff as to need lacked any supportive evidence and was a bare assertion at best, from which the Court could not be satisfied that the plaintiff actually had a real need for a replacement vehicle. Ultimately, Assessor Olischlager agreed with the submissions of the defendant and was not satisfied, on the evidence provided by the plaintiff, that there was a real and actual need for the replacement vehicle. In his decision, Assessor Olischlager remarked that on the evidence available to the Court and the defendant, the defendant:
“does not know the basis upon which a plaintiff hires a vehicle. It is necessary for the plaintiff to give some evidence – it is not a high bar to jump over – but some evidence as to the particular needs that she required the replacement vehicle for…here there is really no clear understanding about really why a need for a replacement is, other than her fair assertion.”
On appeal to the Supreme Court, the plaintiff challenged the findings of Assessor Olischlager. The plaintiff asserted that the Assessor had erred in the correct test to be applied when considering the issue of need. The plaintiff contended that the reasonableness or otherwise of the decision to hire a replacement vehicle is to be assessed by reference to the facts and circumstances existing at the time the vehicle was hired, and that the Assessor erred in requiring the plaintiff to establish a sufficient need and requiring her to tender evidence as to degree of use of the replacement vehicle. The plaintiff also submitted that the principles of restitutio in integurm should apply. That is, that the plaintiff had use of a motor vehicle prior to the collision and, inferentially, had a car because she needed to and the same need continued to exist following the collision.
In coming to its decision in the matter, the Court considered a large amount of authority which came from the United Kingdom. In particular, the plaintiff relied heavily on the principle of restitutio in integurm, meaning restoration to the original position. In the reasons for her decision, her Honour commented that the issue of need was clearly an issue on the pleadings, and one to which the plaintiff had been put to strict proof. The Court commented that liability for a collision and the quantum of damages arising from any such collision were distinctly separate issues and one does not automatically follow the other. Her Honour states that the plaintiff’s “need for a replacement car remained relevant to the assessment of quantum and had to be proved.”
Her Honour was satisfied that, in considering the issue of need and its application to the assessment of quantum of damages, Assessor Olischlager did not err. Her Honour commented that whilst Assessor Olischlager found the defendant was liable for the loss of use suffered by the plaintiff, it did not follow that the defendant was liable to pay the sum claimed for the loss of use. Her Honour was of the view that it remained for the plaintiff to prove her need for such a car, and if such need was established then quantum fell to be assessed by reference to the market rate for a leased vehicle and not by reference to the amount actually paid to I’m In The Right. Helpfully, her Honour was of the view that a decision in one’s favour in relation to liability “should not be viewed as an invitation to gratuitous expenditure, knowing it will be borne by someone else. There remains an obligation on a successful litigant to act reasonably in mitigating loss.” Her Honour went on to find that whilst there was no question that loss of use of property was a compensable loss, the monetary value of that loss was able to be questioned and defended and, if put to proof on this point, a plaintiff is obligated to provide evidence to support the loss claimed.
Ultimately, the decision in Lee is a favourable one to insurers in particular, however, should be reviewed and given serious consideration by all plaintiffs who seek to make a claim for loss of use. Plaintiffs seeking this head of damage need to ensure that they can indeed prove a need for the hire of a replacement vehicle, and should be mindful that need will require proof through supporting evidence and not merely by bare assertion by a plaintiff.
What is a reference date?
Section 8(2) of the Building and Construction Industry (Security of Payment) Act 1999 (NSW) (Act) defines a reference date as follows:
What is the significance of a reference date?
The recent decision in Impero Pacific Group Pty Ltd v Bonheur Holdings Pty Ltd
The Court held that:
On 10 April 2019 his Honour Dicker handed down a decision as to the question of costs in the matter of Zhang -v- Harmstorf. The substantive matter was in relation to a breach of contract between the parties. The contract was that, upon payment from the Plaintiff to the Defendant of 1,000,000.00 RMB (approximately $197,000.00 AUD), the Defendant would set up a business and offices in Mainland China. In breach of the contract, it was found that the Defendant had failed to fulfil his obligations under the contract and had not properly set up any offices of the business in mainland China. Accordingly, the Plaintiff was wholly successful in the matter and judgment was entered in favour of the Plaintiff. The matter then came before his Honour again in relation to an argument for indemnity costs.
The Plaintiff made a Calderbank offer to the Defendant on 7 February 2019. In this offer, the Plaintiff was prepared to accept the sum of $125,000.00 in full and final settlement of the matter. There was no response to the offer and the matter proceeded to hearing on 13 February 2019. The Plaintiff made an application for indemnity costs from 8 February 2019 onwards as they had clearly obtained a judgment which was more favourable to them than the offer.
The Defendant made a number of arguments in opposition to the order for indemnity costs which can be briefly stated as follows:
Ultimately, his Honour was satisfied that he should make an indemnity costs order. His Honour considered the applicable case law in the matter, and in particular the case of Miwa Pty Ltd -v- Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 and considered the relevant factors set out in that case by his Honour Basten JA. His Honour Basten JA formed the view that when making a determination as to a Calderbank offer and the merits of an order for indemnity costs, the Court should consider the following factors:
1. Was the offer a genuine offer of compromise? That is, did the offer involve a “real and genuine element of compromise”
2. Was the refusal of the offer unreasonable? In considering this question, the Court should consider the timing of the offer and other relevant factors such as the stage of the proceedings at the time of the offer, the extent of the compromise, the time allowed for consideration of the offer, the clarity of the offer and whether the offer foreshadowed an application for indemnity costs.
His Honour Dicker considered the factors set out above and ultimately formed the view that, in this matter, there was a very real and genuine element of compromise in the Plaintiff’s offer. His Honour rejected the Defendant’s submission that the offer was simply a “knee jerk reaction” to the Defendant’s offer as the offer made by the Plaintiff’s was considerably more than the offer made by the Defendant. Further, his Honour did not consider the Plaintiff’s offer to be vague and considered it to be a very real compromise on the Plaintiff’s position, noting they were ultimately awarded a judgment in excess of $195,000.00. Further, his Honour considered it important that the offer was made less than a week prior to the hearing and at a time when the Defendant would have had all the relevant material before him in order to properly consider his prospects of success. The Defendant was also aware that he had failed to comply with a Notice to Produce issued to him by the Plaintiff, and that failure to comply might have an adverse effect on the outcome of the hearing.
His Honour also considered it relevant that the Defendant had competent counsel at all times leading up to and during the hearing, and was in fact a solicitor himself and was therefore a sophisticated party who was able to properly assess the prospects of his case. His Honour further found that the offer was open for a reasonable period of time, given that the offer was made less than a week before the commencement of the hearing and noting that, if the matter did not resolve, the parties would need time to prepare their case prior to the hearing. Having considered the matter and offer as well as the relevant precedents, his Honour was satisfied that the making of an indemnity costs order was appropriate in this instance.
A review of this case highlights the difficulties faced by parties seeking costs orders which are outside of the ordinary orders made by the Court. It also reiterates the importance of ensuring that offers are made reasonably and throughout a matter and that clients must carefully consider both the merits of an offer and the possible risks of rejection.
Clive Palmer’s United Australia Party is the latest political party to be the subject of a copyright claim for use of music in an advertising campaign (after Eminem successfully sued the New Zealand National Party for breach of the copyright of Lose Yourself).
Universal Music Group, the owners for the rights to Twisted Sister’s We’re Not Gonna Take It, have filed a claim against Mr Palmer personally for a television advertisement used by the United Australia Party. The ad features a song that repeats the refrain “Australia’s not gonna cop it anymore” in a similar rhythm to the Twisted Sister hit.
UMG claim that the Twisted Sister song is copied in substantial part, thereby infringing on their copyright pursuant to section 36 of the Copyright Act 1968 (Cth) (Act).
The last high-profile case in Australia on this issue was the highly publicised suit against the band Men at Work. They were alleged to have copied a melody from the folk song Kookaburra Sits in the Old Gum Tree for their hit song Down Under. Larrikin, the rights holder, successfully recovered damages and future royalties from the Men at Work song (see EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited 276 ALR 35).
When considering either how or whether a song has infringed on an existing musical work, the Court will need to consider:
In the Kookaburra case mentioned above, the reproduction of only two bars of one melody reproduced in another song was substantial enough to satisfy the requirements of the Act for copyright infringement since it was a distinctive element of the song (in that case, a flute riff).
With regard to the reasoning in Kookaburra, Mr Palmer may have some difficulty defending his advertisement against Twisted Sister’s claim. It will be interesting to see how this case develops.