No Comments

A marriage lawyer explains time limitation for proceedings

Approaching any marriage lawyer when filing an application for a divorce order can be daunting and overshadowed by emotion. The breakdown of any relationship brings uncertainty and stress. It is important to consider any legal requirements that may apply when finalizing the arrangements for children and/or distributing assets. A marriage lawyer will consider the Family Law Act 1975 which provides time limitations for the bringing of property claims.

In the recent decision of Welland & Hawthorn [2021] FedFamC1A, the Full Court heard an appeal from the dismissal of an application for leave which sought to bring property settlement proceedings out of time. In determining the duration of the parties’ de facto relationship, the Court found that separation had occurred in February 2016. Since the de facto wife filed her application in November 2019, it was 20 months out of time. The de facto wife had two children who lived with her when the de facto husband was incarcerated. It was claimed that the de facto wife had relied on assurances from the de facto husband in 2017 and 2018 in the form of financial provisions. Although the applicant spouse engaged multiple marriage lawyers between 2017 and 2019 no proceedings were actually brought. [...]  READ MORE →

No Comments

How to Choose the Right Executor

One of the most significant aspects of effective estate planning is choosing the right Executor. Your Executor is the party responsible for managing the administration of your estate and the distribution of your assets to the beneficiaries in accordance with your Will. As the obligations of your Executor will vary depending on your Will, it is important to discuss with an estate planning lawyer the precise scope of what your Executor will be required to do.

A number of different factors will influence your decision when choosing an Executor and it is important that this decision should be regularly reviewed. Generally, this is something you should reconsider each time your Will is updated. [...]  READ MORE →

No Comments

Are you eligible to contest a Will

Are you eligible to challenge a will?

Contesting a will can be complex, confusing and is subject to strict time constraints. A will lawyer can assist you to understand the process and your eligibility to contest a will in a time of grieving.

A will can be contested before or after there has been authorisation for the executor to manage the estate, known as a grant of probate. It is simpler to contest the validity of the will before the executor starts to administer and distribute the estate, but is still possible after this has started. [...]  READ MORE →

No Comments

De Facto Partner Dies with No Will

What happens when a de facto partner dies with no will?

A person is in a de facto relationship with another person if they have a relationship as a couple living together, and  they are not married to one another or related by family. Our will lawyers can assist you to determine if you, or someone you know, are or were de facto partners. We can also assist you to create or update a will to express your wishes relating to the distribution of your assets.  If your de facto partner has died without a will, you should consult our estate planning lawyers to find out about your entitlements. [...]  READ MORE →

No Comments

How often should I update my Will

How often should I update my Will?

Effective estate planning offers certainty as to how your property and possessions will be distributed after your death. However, it is important to recognise that a Will is largely confined to expressing your wishes at a particular point in time. This means that to make sure your loved ones are effectively protected, your Will needs to be regularly updated. Before your Will is altered it is recommended that you consult an estate planning lawyer to make sure that your wishes are correctly implemented. [...]  READ MORE →

No Comments

How Effective is my Will?

I am hearing about all these claims against estates – how effective is my Will?

Although claims against Estates get coverage in the media, most Estates are in fact completed on the basis of the wishes of the deceased in accordance with their Will.

It should be remembered the starting point at law is that a person is entitled to leave his or her estate to whoever they choose. A person has freedom to choose their beneficiaries – whether they be family members, other persons or their favourite charity. [...]  READ MORE →

No Comments

Mirror Wills and Mutual Wills

Mirror Wills and Mutual Wills – Clearing up the confusion

Mirror Wills and Mutual Wills – they both start with “M” but what is the difference?

Mirror Wills (or reciprocal Wills) are very common between spouses or people in long term relationships.

Each party makes a Will “mirroring” the other’s Will. The Wills often leave everything to each other (other than any specific gifts such as  jewelry or other personal items) and then to their children if one has already died.

Mirror Wills reflect that the parties have common interests. Mirror Wills have the advantage of simplicity. Also, they do not unduly hamper the survivor who can change his of her Will to take account of changing circumstances. [...]  READ MORE →

No Comments

How effective is my Will?

I am hearing about all these claims against estates – how effective is my Will?

Although claims against Estates get coverage in the media, most Estates are in fact completed on the basis of the wishes of the deceased in accordance with their Will.

It should be remembered the starting point at law is that a person is entitled to leave his or her estate to whoever they choose. A person has freedom to choose their beneficiaries – whether they be family members, other persons or their favourite charity. [...]  READ MORE →

Law and Justice , Legality concept, Judge Gavel, Law book and Scales of Justice on a black wooden background, law library concept.
No Comments

The judge, jury and executioner: a Trustee’s capacity to adjudicate proofs of debt for legal fees

By Jodie Rodrigues, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group.

Pursuant to s 102 of the Bankruptcy Act 1966 (Cth), a trustee is required to “examine each proof of debt and the grounds of the debt sought to be proved”.

Legal costs can often be a problematic consideration, when questions of assessment, and the nature of the costs claim are taken into account. It is therefore important to have regard to the type of costs claims (for instance those of the bankrupt’s own solicitors, or adverse costs orders against the bankrupt). It is also relevant to consider at what stage in any costs assessment process the question of costs is being considered. [...]  READ MORE →

No Comments

Building defects in strata buildings and the legislative safeguards

Building Defects and Part 11 Protections for Strata Owners

We have previously written an article about the new duty of care protection in favour of property and strata owners, which is available under the new Design and Building Practitioners Act 2020 NSW (DBPA). Basically, it establishes a new duty of care against various building practitioners, retrospectively, covering losses arising from the last 10 years or so. However, that is not the only remedy available (of course). The issue of building defects have been around for a very long time and the legislation have been changing constantly, especially for strata buildings. [...]  READ MORE →

No Comments

Removal of Vehicles Illegally Parked on Strata Land

Removal of abandoned/uncollected goods and vehicles that are illegally parked on strata land

One of the problems with strata is that there is sometimes just “stuff” lying around in all the wrong places. For example, abandoned goods scattered across the scheme (especially when someone moved out) or even cars and trucks just parked everywhere out of convenience or they have been abandoned.

On and from 1 July 2020, abandoned and uncollected goods are no longer governed by strata legislation. The old section 125 of the Strata Management Scheme Act 2015 (NSW) and regulation 34 of the Strata Schemes Management Regulation 2016 (NSW) are now repealed with the issues now dealt with under the Uncollected Goods Act 1995 (NSW). NSW Fair Trading has some great information on this topic which can be accessed by clicking here. So, you would need to stop following the old processes about the sticking of disposal notices on items/cars and remove them when obstructing access (like driveways). And accordingly, most parking by-laws should be updated as they would be referring to the old car towing provisions, albeit the wheel clamping provisions under the Local Government Act 1993 (NSW) still remain. [...]  READ MORE →

No Comments

Common Problems with Common Property Rights By-Laws

Common problems with common property rights by-laws

Time and time again, we see some poorly drafted or “simple” by-laws. Sorry, we have to vent! Here is an example (below) – and no, it is not drafted by us:

  1. Special Privilege for Commercial Lot 1
  2. The owner of Commercial Lot 1 has the special privilege to carry out works on the lot without first obtaining the consent of the owners corporation to the alteration of the common property in connection with those works.
  3. The owner must give the corporation at least 7 days written notice of the intention to carry out works under this by law. The notice should give sufficient details of the works to be carried out to allow the owners to determine if the intended works are in compliance with this by law.
  4. Any works carried out under this by-law involving disruption to the access to the car space Lots to be carried out between 8:30 am-5:30 pm Monday-Friday only.
  5. Any works carried out under this by-law must not interfere with the structural integrity of the Building.
  6. The owner must repair any damage to the common property caused by the carrying out of the works under this by-law.
  7. The owner of Commercial Lot 1 is responsible for the maintenance and repair of any common property altered as a result of work carried out under this by-law.

We are all for quick/smart and short/sweet by-laws. But this by-law essentially became the central point of a recent NCAT dispute.

In short, the NCAT’s Appeal Panel held that the by-law was invalid back in September 2020, albeit it did comment that the matter was deceptively simple (which probably explains why it overruled the Tribunal’s original decision in holding that it was valid). The simplicity is alluring. However, a by-law needs to be sufficiently detailed or otherwise, it will be open to attack and/or fail to meet the prescriptive requirements of the Strata Management Scheme Act 2015 (NSW). In this case, it failed on both count. The outcome is that the commercial lot owner is required to remove its entire works so done pursuant to the by-law (which are quite substantial) and reinstate the common property to the state and condition prior to those works. The second and third respondent are also required to pay costs as agreed or assessed, even though the by-law was a developer by-law registered together with the strata plan back in year 2000. [...]  READ MORE →