Legal Articles

CONSTRUCTION    DE FACTOS    DECEASED ESTATES    DEBT    DRIVER'S LICENCE    ON THE ROAD    MOTOR ACCIDENT    DUMMY BIDDING   

RURAL    PROPERTY RIGHTS    CONTRACTS    IMPOSTER VENDORS    WORKPLACE SAFETY    BUILDING CERTIFICATES   

PUBLIC LIABILITY    LANDOWNER'S RIGHTS    WHO'S THE BOSS    GIVING A REFERENCE 

CONSTRUCTION
Owner- Builders Given Greater Scope. New home building regulations have introduced important changes for those undertaking residential building work.
The old regulations severely limited home owners in the building work they could legally undertake without being licensed. Work such as building a deck, repairing or replacing windows, or even significant painting work was often in breach of the regulations, if the value of the labour exceeded $200.00.
The new regulations increase the threshold from $200.00 to $1,000.00 for labour and materials and create various exemptions from licensing, including the dismantling and moving of dwellings in most circumstances. They also exempt work where the person doing the work is the owner and the job does not involve specialist work, such as plumbing or gasfitting, or need a development consent from the local council.
The scope of residential building work exempted from compulsory home warranty insurance has also been expanded. However, with sales “off the plan”, developers still need to provide home warranty insurance certificates within 14 days of the insurance contract being made. Since insurers often fail to provide the certificates in time, this still means a buyer might rescind their sale contract at any time before completion.

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DE FACTOS
Am I entitled to a Property Settlement?
New South Wales laws give important rights to de facto partners and people in close personal relationships.
The law gives such partners rights which are in some limited ways similar to those of a married partner claiming a property settlement, regardless of whose name the property is in. However, you usually need to show that you have lived together for at least 2 years.
If your relationship has lasted less than 2 years, you may claim if:-
  there is a child of the relationship; or
  you are caring for a child of the other party and the failure to make an order would result in serious injustice to you; or
you made substantial contributions (financial or personal) for which you will not receive adequate compensation if the court does not make a property order, and the failure to make an order would result in serious injustice to you.
In deciding on the division of property, the court will take into account the financial and non-financial contributions of each partner - for example, the labour involved in renovating property or answering the phones for a business - and the contributions of each partner as a homemaker and parent.
The property on which you can claim may include real estate and personal property such as funds held in a company or damages payable to your partner as a result of court proceedings, but generally not superannuation owned by the other party. Superannuation and property owned by a discretionary trust may be included as a financial resource.
Applications for property division must be made to the Supreme Court, District Court or the Local Court within 2 years of the end of a relationship. The maximum you can claim in the Local Court is $60,000.00, unless the parties agree to the Local Court hearing a claim for a higher amount. The maximum you can claim in the District Court is $250,000.00. In some circumstances, you may be able to apply outside the 2 year period.
Will the law recognise my relationship?
The law will recognise your relationship if you and your partner:-
live together in a de facto relationship (either opposite sex or same-sex relationship) as partners on a domestic basis for a qualifying period; or
have a close personal relationship which is between 2 adult persons, whether or not related by family, where one or other provides domestic support and personal care, which must not be for fee or reward.

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DECEASED ESTATES
What are an Executor’s responsibilities?
In general terms, an Executor’s duty is to take charge of the deceased’s assets and property, see that the funeral and administration expenses as well as debts and taxes are paid and finally to distribute the assets to the beneficiaries in accordance with the Will.
You will have to begin by finding out and making a list of everything the deceased owned or was entitled to. The list could include a home, car, money, a bank or building society account/s, furniture, household appliances, jewellery, shares and other investments, insurance policies, superannuation and holiday pay from work.
In addition, if the estate is to be divided among several beneficiaries, the assets may have to be valued.
Next you will have to apply to the Probate Registry of the Supreme Court for a Grant of Probate. Probate is an order of the court saying that the Will is valid and that the Executor has the right to administer the estate.
When applying for Probate, you will need to complete a number of forms which are prepared by your Solicitor or are available in blank form from a law stationer. You will also need documentary evidence of death, proof of proper signing and attestation of the Will and details of assets and liabilities, among other things.
Your Solicitor can inform you in detail about the rights and responsibilities of an Executor and prepare and help you to complete the forms needed to apply for Probate

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DEBT
A Solicitor has sent me a letter of demand. What should I do?
The Solicitor has written the letter on behalf of someone (the creditor) who claims that you owe him or her money. The letter will usually state that unless you pay the amount claimed within a specified time (often 14 days) the Solicitor has been instructed to begin legal proceedings against you.
If you do owe the money you should pay the debt as soon as possible to avoid having to pay extras such as court costs and interest on the money.
If you can’t pay the whole amount at once, you can offer to pay by instalments. Try to reach agreement with the person to whom you owe the money - your creditor. He or she is mainly interested in getting the money back and will usually only take legal proceedings if there is no other way of achieving this.
If you do not owe the money you can refuse to pay. If there is a clear reason why you do not owe the money (for example, if the money is for goods or services that you never received), you can tell your Solicitor about this. This may prevent the court proceedings from being started. However, if you are not sure that you owe the money, you should get legal advice. Remember legal advice can always help. Even if you owe the money, a Solicitor may be able to make better arrangements for you to repay it.

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DRIVER'S LICENCE
Right of appeal against suspension
The outcome of a recent case shows that a magistrate can allow an appeal when a licence has been suspended, or vary the date the suspension starts, but cannot reduce the period of the suspension.
In the case in question, Mr W accrued 13 demerit points in a 3 year period and was notified by the RTA that his licence would be suspended for 3 months.
Mr W took advantage of a “good behaviour” option by which a driver can elect to be of good behaviour for 12 months as an alternative to suspension, but will lose his licence for twice the original period if further demerit points are incurred.
Mr W committed further driving offences before the end of the 12 month period and accrued an additional 4 demerit points. He was subsequently notified that his licence would be suspended for 6 months.
Mr W appealed to the Local Court against the suspension, putting forward a number of subjective factors in support of his case.
In recent years many Magistrates have taken a narrow and restrictive approach to the power the court has in relation to an appeal against the suspension of a driver’s licence and in Mr W’s case, the Magistrate dismissed the appeal without reference to the subjective factors.
Mr W then appealed to the Supreme Court which found that it was in fact open to the Magistrate to disallow the RTA’s decision to suspend the Plaintiff’s licence, or to make any other order which seemed just in the circumstances (apart from variation) on the basis of the material presented.
The Magistrate had erred in not dealing with the subjective reasons put by Mr W, and the Supreme Court temporarily cancelled the suspension and ordered that the appeal against it be re-heard. With the introduction of double demerit points, many more drivers face the prospect of having their licence suspended. This new decision from the Supreme Court indicates that the grounds for appeal are more extensive than may have been thought.

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ON THE ROAD
Driver’s right to drive “normally”
One Saturday morning, just a week before Christmas, a 3 year old darted onto a road near the Chatswood shopping district in Sydney and was run down by a motorist. The High Court held that the injuries sustained were not caused by any negligence on the part of the driver.

The court held that the driver is entitled to drive ‘normally’. That is, even where a driver may reasonably foresee that a risk may occur, such as a pedestrian running into the path of the vehicle, no breach of duty of care is committed by the driver where he or she simply drives with the flow of traffic, within the speed limit and with eyes on the road.
In another case, a cyclist was killed when his cycle skidded on the white road markings and into the path of the Defendant’s vehicle. The Judge said that “a driver would be totally immobilised if he were in constant fear that the worst was about to happen to the vehicle in front of him.” The court of appeal agreed that there was no breach of duty of care.

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MOTOR ACCIDENTS
Delays in making claims
There are several circumstances where it is necessary to provide a ‘full and satisfactory’ explanation for any delays in procedures, if a motor accident compensation claim is to be allowed to proceed.
When an accident has not been reported to the Police within 28 days, the claim form has not been served on the insurer within 6 months of the accident, or when court proceedings have not begun within the 3 year limitation period, a satisfactory explanation must be made before a delayed matter will be allowed to proceed.
From previous cases, it seems that the issue is not so much whether the person has given a satisfactory explanation for the delay, but whether they possess once.
Explanations should be prepared carefully so that all the acts and omissions which have contributed to the delay are detailed and all periods of delay should be explained so that there are no gaps in the explanation.
Where a claimant is disabled, the conduct of the guardian is relevant.

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DUMMY BIDDING
New Act to control rural land and property auctions
New controls came into effect on 1 August 2003 to combat “tricks and practices” in auctions that consumers fear may artificially inflate prices.
A major concern of consumers is dummy bidding, when a non-genuine bidder planted at an auction by Agents or owners creates the impression that there is more interest in a property than really exists.
In one case, a 12th, final (and genuine) bid at auction was preceded by 11 dummy bids. The Auctioneer invented 5 bids, a person engaged by the Vendor’s Real Estate Agent made 4 bids and the Auctioneer’s Agent made 2 bids. In this case the Defendant, arguing that he was not bound by the Contract for Sale, tried to establish (unsuccessfully) that he had also made a false bid.
As the Minister responsible recently described the situation, currently the auctioneer can generate fictitious bids “from trees, and passing cats, dogs and birds or other imaginary bidders.”
Under the new Act the number of Vendor bids at an auction of residential property or rural land will be limited to one, which must be notified in the conditions of sale. The Act makes a distinction between rural land and other land auctions, which are not covered by it - rural land is defined as land used for grazing livestock, dairying, orcharding or any other purpose declared by the regulations to be a rural purpose.
The Auctioneer is required to state clearly that the bid is by the Vendor or someone on behalf of the Vendor or Auctioneer, as soon as it is taken. Essentially while one dummy bid may still be taken, it is intended that it be exposed.
Licensed Agents will record bidders’ names and addresses after getting proof of identity in a bidder’s record which is to be given to the Auctioneer before the bids are taken. The bidder is then identified at the auction by something such as an allocated identifying number which is also recorded. A bidder whose name is not listed because of a failure on the Agent’s part will still be able to make a binding bid, but an Auctioneer may attract a fine of $11,000.00 for taking one.
There are other significantly increased penalties, for instance, failure by Vendors, their Agents or Auctioneers to follow the new rules on dummy bidding may result in fines of up to $22,000.00. An Agent who fails to properly maintain a bidder’s record may be fined up to $11,000.00.
There are still some unclear areas, such as what happens if someone you know well bids at an auction of your property; or what if a trustee family member puts a family property to auction after Probate is granted and wants to buy it on their own behalf.

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RURAL
Checking out land sales
Buyers of rural properties should do all their documentation searches before they sign a Contract, as unsatisfactory findings which erode the value of a property may not necessarily be grounds for terminating the sale.
Purchasing a parcel of farmland involves far more complicated conveyancing than the average suburban lot. Pre-contract enquiries should include finding out if there are any quarantine notices on the property or a neighbouring property for diseases such as Bovine Johne’s Disease. Also, searches for contamination, native vegetation protection, easements, native land rights, land use restrictions and zoning for building should be carried out.
Water rights should also be ascertained, as just because a water course runs through a property doesn’t mean the owner has the right to pump from it. And check that dam licenses exist and that capacity allowances have not been breached.
Mining, share farming arrangements and leaseholds are among other issues which can arise in rural land sales.

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PROPERTY RIGHTS
Neighbours must support each other
Landowners’ responsibilities to provide physical support to adjoining properties have been cemented in a new Act.
The reforms aim to increase protection for owners of properties which rely on a neighbouring structure for support, such as retaining walls on sloping land, common walls and semi-detached housing. Previously, landowners could develop their property in a way which reduced support to a neighbouring property, even causing damage, without liability unless an easement for support existed.
A duty of care to not do anything to remove or reduce support provided to a neighbour’s property now exists. This duty is based in the common law principle of negligence, giving aggrieved parties the right to sue.
Landowners also have the right to claim damages against tenants, licensees, visitors, builders, sub-contractors and anyone else who alters supporting land. This includes water beneath the soil and reclaimed land.
But the law does not extend to support provided by a building or structure on the supporting land, unless that building or structure replaced the support which the land had previously provided. However, if a support is not covered by the legislation, it may still be addressed through existing common law procedures.
The law is designed to recognise a property owner’s right to continued enjoyment of their property and seeks to increase the level of responsibility of neighbours in today’s increasingly confined living conditions.
Doing anything that damages a supported property, makes it unsafe or unable to safely support any new buildings is illegal. However, the law does not include a duty of care to not omit to do anything, such as maintaining a supporting structure.

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CONTRACTS
Courts can change unfair deals
Contracts which are unjust may not be worth the paper they are written on.
People who feel a Contract they have signed is not fair can challenge its validity in court. A Judge can remove unfair terms or declare an entire Contract void.
The law is most often used by people fighting financial institutions where they believe the terms of a Contract or its consequences or effect are unjust. In land sales it has been used by Vendors and Purchasers and divorced spouses have also argued over the fairness of Contracts relating to property interests.
The courts are seeking to redress unfair deals caused by an inequality in bargaining power. Physical or mental incapacity (including post-traumatic stress, morning sickness or manic depression), age, economic circumstances, literacy and educational background may be considered by a Judge.
Contracts which are not in plain English, are in small type or difficult to read or understand in any way, are also open to challenge.
A Contract may also be unjust because of the method used to make it, including undue influence, unfair tactics or pressure such as cajoling or bullying.
The law does not cover Contracts entered into in the course of trade, business or profession. However, farmers are eligible to challenge Contracts.
What happens when the terms are broken?
Once you make a Contract you will be committing a breach if you do not comply with its terms, or if you change your mind and decide not to go ahead with the Contract.
If a party breaches a Contract, there are a number of remedies available, including:-
Damages (a sum of money) to compensate the ‘innocent’ party for any loss suffered;
An order from the court requiring the party who has breached the Contract to carry out his or her obligations;
An order from the court forbidding the party from breaching the Contract; and
An order from the court declaring that the Contract is at an end and requiring the party who has breached the Contract to put the ‘innocent’ party in the position he or she was in before the Contract was entered into.

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IMPOSTER VENDORS
Hold onto your deposits
A recent allegedly fraudulent attempt to sell a property has highlighted the need for vigilance by Purchasers when buying a property, especially over the release of the deposit to the Vendor.
A Sydney Solicitor was contacted from Brisbane with instructions to act in the sale of a Sydney property. Twenty-four hours before settlement was due, the registered proprietor of the property to be sold contacted the Solicitor to tell him she knew nothing about it. The owner had been alerted to the pending sale by a letter from the mortgagee, that the impostor had not managed to divert, regarding the discharge of the mortgage. Thankfully, no deposit money had been released and the sale was stopped. Criminal charges have been laid.
Make sure your Solicitor knows the details of any deals with Vendors and has the opportunity to verify the status for you.

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WORKPLACE SAFETY
All businesses need to understand, and act on, their new obligations under occupational health and safety (OHS) laws. Criminal liabilities and heavy fines may now be imposed on businesses who have failed to ensure the safety of workers.
Also, OHS inspectors have the power to issue stop-work notices while an investigation of a possible offence takes place.
The major reforms make risk management practices and consultation with workers on OHS issues mandatory. Workers must also be given all relevant information.
It is a criminal offence not to consult with employees and not enable them to contribute to decisions affecting their health, safety and welfare at work.
What amounts to appropriate consultation is spelt out and must be adhered to.
The maximum penalties for breaches of this law are $27,500.00 for an individual employer and $550,000.00 for a company.
To implement their statutory duty of care, employers will need to undertake ongoing assessment of possible hazards, risks posed by potential hazards and procedures for the elimination or control of those risks.
Failure to identify a potential hazard or to assess its risk is punishable by a fine of up to $27,500.00.
While the provisions will affect every workplace differently, all business owners, even those engaging independent contractors rather than employing staff, are legally responsible for OHS. The new Act and Regulations replace all previous OHS rules in the State.
Some of the obligations have been deferred for 1 or 2 years to allow businesses to implement the required procedures.
While it is not mandatory to do so, it may be wise for employers to properly document their risk-management practices so that they can prove compliance if a legal issue arises.

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BUILDING CERTIFICATES
Beating the demolition order
An order to demolish an illegally erected building need not be the end of the matter.
At is discretion, a council can issue a Building Certificate even where the court has declared that a building is unlawful and has ordered its demolition. And where it refuses, its decision can be appealed.
The best course of action where the building in question is worth saving, may be to apply to the council for Development Consent for the use of the building as well as a Building Certificate and appeal the demolition order.
In one recent case, the Judge suspended the injunction requiring the demolition of an unlawfully erected building to allow an attempt to regularise its position under planning law.
Subsequently, an application for a Building Certificate and a Development Application in respect of the use of the building were lodged with the council.
Ultimately, on appeal, the council issued a Building Certificate and granted Development Consent to the building’s proposed use.

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PUBLIC LIABILITY
Balancing risks and discrimination
Public liability is one of today’s hottest legal topics with widespread apprehension among businesses and organisations about their responsibilities and exposure. A recent case which raised the issue of whether sports administrators can exclude pregnant women from a sport for fear of liability to an injured foetus may have implications for other organisations keen to avoid liability risks, with actions having the potential to breach discrimination laws.
It is clearly established law that a foetus injured in the womb and subsequently born alive with abnormalities as a result of those injuries has legal rights against the person who injured it if the circumstances of the injuries infliction are wrongful.
After an unsuccessful attempt to secure public liability insurance to protect itself from liability against injury to the foetus of any pregnant women participants, the National Netball Association imposed an interim ban to prevent pregnant women from playing in their national league. A player who was pregnant lodged a complaint with the Human Rights and Equal Opportunity Commission alleging a breach of the Sex Discrimination Act.
In an interim measure the court, having heard the evidence of the player’s medical practitioner, decided that she should be allowed to continue playing to the end of the season. The case highlights the need for organisers to be aware that when changing rules or arrangements to reduce their liability or claims against them, they can face the possibility that such changes can be held to be discriminatory.
In March 2002, Netball Australia lifted its interim ban on pregnant women in the sport and at the same time recommended women stay on the sideline. A subsequent court case found there was discrimination by the association against the pregnant player and other pregnant netballers.
What the case did not establish is whether or not a duty of care is owed by a pregnant athlete to her unborn child under the relevant laws.

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LANDOWNER'S RIGHTS
Non-access to public road merits compensation
In a recent case, the right of an adjoining landowner to access a public road has been viewed as an “interest” in land. When the public road was compulsorily acquired the landowner’s right to access the road disappeared and the landowner was entitled to compensation.
The owner of a terrace house positioned on the corner of 2 streets lost his access to its formal entrance way when one of the streets was closed off. The Minister for Education compulsorily acquired the street which was subsequently closed to all vehicular traffic and pedestrian access.
The right of a landowner to access an adjoining public road or highway is an enforceable common law and statutory right. The right to access a public road from an adjoining property has long been recognised. It has been called a “private right of property” and “a common law right”, one “to be distinguished from the public rights which every member of the public enjoys to pass, subject to any special statutory provisions, along the highway.”
The owner won a case for compensation on appeal, arguing that his common law and statutory right to access the public road as an “interest” in land that he should be compensated for its loss.
Trees ( Disputes between Neighbours) Act 2006
The new Trees Legislation is now in operation. The Land and Environment Court is empowered to make orders to remedy, restrain or prevent damage to property, or to prevent injury to any person when a tree that is situated on adjoining land might cause that damage or injury.

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WHO'S THE BOSS
Consent needed to transfer employees
A recent case reaffirms that a person has the right to choose their employer and an employee’s services cannot be transferred from one employer to another without their consent.
The case confirmed that it is for the employee to decide to whom they give their services and found that it would be wrong to assume employees do not attach importance to their employer’s identity. To effect a change of employer, the old contract of employment must be terminated by notice or mutual consent, and a new one established between the new employer and the employee. This procedure must take place even if the new employer comes from within a group of companies which is re-structuring.
In the recent case, lack of knowledge or consent meant that employment with the pre-re-structure companies did not cease and that with the post-re-structure employers never commenced.
The affected employees were mostly women from non-English speaking backgrounds performing largely unskilled work. None were consulted about the ‘transfer’ and the only visible evidence of the change was that the post-re-structure companies’ names appeared on the employees’ pay slips and group certificates.
When an administrator was called in a couple of years later, it became apparent that the post-re-structure employers had no significant assets and would be unable to pay the affected employees their entitlements which totalled $2,500,000.00.
The court found that failure to obtain the employees’ consent to the change meant the post-re-structure companies had been paying the salaries, taxes and other entitlements of people who were legally in the employment of the other company. And the pre-re-structure employers were under the obligation to pay the employees’ accrued employment entitlements.

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GIVING A REFERENCE
While references are recognised as part of the currency of the modern workplace, there is no legal obligation on employers to automatically give one to a former employee. If they do, they should take care to ensure the overall accuracy of what they say.
References should be sufficiently robust to express frank and honest views, but an employer must take reasonable care over both the facts and opinions expressed.
An employee adversely affected by a reference can claim damages for conduct that prejudicially affects the employee’s future employment prospects and causes continually financial loss of a nature that was reasonably foreseeable.
The courts have found that a reference must be fair as well as accurate and that if an employer focuses on an employee’s flaws to the exclusion of his or her skills the employer is likely to have breached their duty of care.
In a recent case that came before the courts an employer referred to someone as being a man “of little or no integrity” but failed to mention that he had been a top revenue earning salesman.
In another case, the court held that a reference that implied that a former employee had entered into a negotiated exit settlement to pre-empt serious disciplinary procedures was “wholly unfair”.
Many references are given or supplemented by telephone conversations and some work environments rely heavily on ‘a quiet word’ or off the record comments. In these cases it can be difficult to provide evidence that the employer has damaged an employee’s career prospects after job offers are mysteriously withdrawn, postponed or altered.
There are however new privacy laws which could make it easier for an employee to investigate why a promising job offer has not come to fruition. The employment records of a current or former employer are excluded from the operations of the Act but not those of prospective employees or independent contractors

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