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New Scheme for Removing Driver Disqualifications

Posted by on Nov 9, 2017 in Litigation News, News |

Under a new scheme in NSW introduced by the Road Transport Amendment (Driver Licence Disqualification) Act 2017, as from 28 October 2017, eligible drivers who have not committed any driving offence during a certain period of time (“offence free period’) may apply to the Local Court to remove an existing disqualification period imposed on them. Who Can Apply? All drivers are eligible to apply provided they have not been convicted of  a driving offence involving death or grievous bodily harm. Grounds to Apply Provided a driver has been free of driving offences for two years before the application to the Local Court and has served at least two years of his current disqualification period then the Court will consider lifting the disqualification. However, if the driver’s disqualification was as a result of a major offence including exceeding the speed limit by more than 30 km per hour or street racing then the offence free period required will be 4 years. What Will the Court Consider? * The safety of the public.   *The applicant’s overall driving record.  *The applicant’s need to travel and the availability of public transport.  *The applicant’s conduct since the disqualification commenced.  *The applicant’s health, finances and any other relevant circumstances. What if the Application is Successful? If the Local Court decided to lift the disqualification it will order on what date that comes into effect. The driver will need to reapply to Roads and Maritime Services for their licence and will need to successfully complete road safety and knowledge tests.    ...

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Contesting an Unfair Will Free Info Session

Posted by on Nov 3, 2017 in Contesting an Unfair Will News, News, Wills & Deceased Estates News |

Have you been left out of a will? Didn’t get your fair share of an estate? Are you an executor and someone is making a claim against the estate? Then attend a free 1 hour information session on Monday, 4 December 2017 and find out everything you need to know and what to do about it from Tony Laumberg, a solicitor with over 30 years’ litigation experience. Here are the details: Venue: Woollahra Golf Club, O’Sullivan Road, Rose Bay Time: 6.00 pm until 7.00 pm on Monday, 4 December 2017 Parking: Plenty in the car park at the end of the long driveway. Metres away from the entrance. During this information session you will find out who can claim, what they can claim and you will be given recent examples of Court cases and the results. You will receive a free guide on the Family Provision claims process and a free summary of every Family Provision case decided by the Supreme Court of NSW in 2017. Places are limited so please ensure your attendance by registering now with Tony Laumberg by calling 9371 7243 or e-mailing him at...

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Demerit Points Suspension of Your Driver Licence

Posted by on Oct 16, 2017 in Articles, Litigation Articles |

Under the demerits points system points are allocated for a range of driving offences and at the date of each offence points are placed on the record of the licence holder. Once the threshold number of demerit points is reached within a 3 year period, Roads and Maritime Services (“RMS”) will suspend the person’s driver licence. The threshold for each kind of licence is as follows: Learner Licence – Suspension will occur after reaching 4 or more demerit points in a 3 year period. Provisonal P1 Licence – Suspension will occur after reaching 4 or more demerit points in a 3 year period. Provisonal P2 Licence –  Suspension will occur after reaching 7 or more demerit points in a 3 year period. Unrestricted  Licence – Suspension will occur after reaching 13 or more demerit points (14 or more for a professional driver) in a 3 year period. Once the threshold number of demerit points is reached the RMS may issue of a notice of suspension to the licence holder. The period of suspension depends on the number of demerit points incurred during the 3 year period and will be a minimum of 3 months. What you can do once you receive the notice of suspension from the RMS then depends upon what kind of licence you hold: Learner Licence – You can lodge an appeal against the suspension decision with the Local Court within 28 days. Provisonal P1 Licence – You can lodge an appeal against the suspension decision with the Local Court within 28 days. Provisonal P2 Licence –  You can lodge an appeal against the suspension decision with the Local Court within 28 days. Unrestricted  Licence – You can elect to be of good behaviour for 12 months but if 2 or more demerit points are incurred then the original suspension will be doubled. For those licence holders who can appeal the suspension decision to the Local Court there will be a stay of the suspension upon filing of the application meaning that they can continue to drive until the matter is heard in Court which can either set aside the suspension, vary it or let it stand. The Court is not limited in the matters it can take into account and it will consider a person’s driving history, the person’s need for a licence, hardship that may be caused to others, a person’s good character and the availability of public transport. For unrestricted licence holders no appeal to the Local Court is allowed meaning that either the suspension must be served or the 12 month good behaviour option chosen. Conclusion Because learner and provisional licence holders have such few points to “play around with” and unrestricted...

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Summary of 2017 Family Provision Cases

Posted by on Oct 8, 2017 in Articles, Contesting an Unfair Will Articles, Litigation Articles, Wills & Deceased Estates Articles |

  Estate MPS, deceased 4/5/17 – Value of Estate/ Notional Estate – $2,000,000 Plaintiff claimed a close relationship with deceased providing support and personal care  for over 2 years. Deceased’s brother entitled to whole estate on intestacy. Plaintiff awarded $550,000 (27.5%) plus costs. Kohari v NSW Trustee & Guardian 18/8/17 – Value of Estate/ Notional Estate – $1,000,000 Plaintiff, the son of the deceased’s former marriage, made a claim where estate left to de facto wife of  26 years. Deceased had one other son and step-son. Plaintiff awarded $100,000 (10%) with costs to be decided. Mitar v Mitar 26/5/17 – Value of Estate/ Notional Estate – $3,191,250 Plaintiff, the son of the deceased made a claim where there were 3 other children. Plaintiff awarded $964,286 (30%) with costs to be decided. Charlwood v Charlwood 1/3/17 – Value of Estate/ Notional Estate – $816,274 Plaintiff, one of two sons, made a claim after half of the estate was left to him by the deceased. Other brother was in superior financial position and Plaintiff cared for deceased and had health issues. On 10/8/17 Plaintiff  allowed additional provision of loan from estate of up to $150,000and to purchase a property to live in plus costs. Meres v Meres 28/3/17 – Value of Estate/ Notional Estate – $1,201,917 Plaintiff, one of two sons, made a claim where, in effect, he was left half of the estate by the deceased, but had no earning capacity, a close relationship with the deceased and medical conditions. Plaintiff’s claim was dismissed with costs to be decided. Jodell v Woods 1/3/17 – Value of Estate/ Notional Estate – $1,800,000 Plaintiff, one of two daughters, made a claim after the deceased left the whole estate to the other sister. Plaintiff not close to the deceased and had no earning capacity. Plaintiff awarded $425,000 (23.6%) with costs to be decided. Spata v Tumino 24/2/17 – Value of Estate/ Notional Estate – $685,416 Plaintiff was the son of the deceased’s late husband’s former marriage but claimed as a dependent member of the deceased’s household. As the Plaintiff was unable to prove he was dependent on the deceased his claim was dismissed with costs to be decided. Barbanera v Barbanera & Ors 5/4/17 – Value of Estate/ Notional Estate – $2,750,000 Plaintiff, one of four children of the deceased, made a claim after the deceased left the whole estate to the other 3 children. Was claimed against him that he deliberately estranged himself from the deceased and had no need for provision due to his personal wealth. Plaintiff’s claim was dismissed due to his comfortable financial position with costs to be decided. Carusi-Lees v Carusi 18/5/17 – Value of Estate/ Notional Estate...

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Contesting an Unfair Will

Posted by on Oct 5, 2017 in Wills & Deceased Estates Articles |

1.Overview 2.Eligible Persons 3.Time Limit to make a Claim 4.Commencing Proceedings 5.Other Requirements when making a Claim 6.Considerations for Executors 7.When a Family Provision Order will be made 8.Procedures in Court 9.Mediation 10.Cautionary Note for Executors on Settlements at Mediation 11.The Hearing 12.Costs 13.Conclusion   1.Overview A person might want to challenge a Will they have been left out of or consider they were not left a fair share of the estate by the deceased maker of the Will or on intestacy if there was no Will. On the other hand, a person may have been appointed executor of a Will or administrator in the case of intestacy and wants to know what is involved in defending a claim for what is called a family provision order. Here are some basic facts for claims in New South Wales: *    An application for a family provision order must be filed with Supreme Court of NSW within 12 months of the deceased’s date of death. *    The applicant must prove they are an “eligible person” as defined by the Succession Act 2006 NSW. *    The Court must determine that adequate provision was not made for an eligible person’s maintenance, education or advancement in life before it can make an appropriate order. *    The Court will take into account the eligible person’s needs at the time of the hearing. *    Mediation is required to take place before any hearing once the parties have filed their evidence in Court. The vast majority of cases are settled at the mediation. *    Generally the costs of a successful application for a family provision order are paid out of the estate. 2. Eligible Persons Section 57(1) of the Succession Act limits applications for a family provision order to eligible persons comprising: (a) the spouse of the deceased person at the time of the deceased’s death; (b) a person who was in a de facto relationship with the deceased at the time of their death; (c) a child of the deceased person; (d) a former spouse of the deceased person; (e) a person: (i) who was at any time wholly or partly dependent on the deceased person, and (ii) who is a grandchild of the deceased or was, at any time, a member of the same household as the deceased; and (f) a person living in a close personal relationship with the deceased at the time of the deceased’s death. Although it should be straightforward to determine if a person is a spouse of former spouse of the deceased, much greater complexity can arise in order to establish whether a person was the de facto partner of the deceased at the time of their death. While it it not necessary for...

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