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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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Do You Need More Than A Will? – Other Things To Consider

Posted by on Jun 1, 2017 in Articles, Conveyancing Articles, Wills & Deceased Estates Articles |

Most people understand the importance of a Will i.e. it is a document by which a person disposes of their assets after their death. But the crucial thing to remember is that a Will only operates from the date of one’s death. What will happen to your assets in a situation where you are still alive but due to an accident or some other reason you are not of sufficient mental capacity to manage your own affairs? And in such a case who will make necessary decisions about your medical treatment or where you are to live? That is why it is well worth considering two other valuable documents that more and more people these days are entering into at the same time as their Will being an Enduring Power of Attorney and an Appointment of Enduring Guardian. Put simply, the presence of all three documents means that all your affairs will be taken care of both before and after your death. Let us take a closer look at the other two documents: Enduring Power of Attorney Some of the features of this document are: (a) It appoints someone (an attorney) to have authority to make decisions about your property and financial affairs; (b) It does not authorise anyone to make decisions concerning your lifestyle, health or personal affairs; (c) It will still be valid even if you lose mental capacity provided a prescribed person, such as a lawyer, explains the document to you and signs a certificate to that effect; (d) It will operate until you cancel it, the attorney no longer wishes to act or you die; (e) Before an attorney can use the document he or she has to accept it meaning they must sign it; and (f) In order to allow the attorney to deal with land owned by you the Enduring Power of Attorney has to be registered at Land & Property Information which involves a registration fee. Appointment of Enduring Guardian Some of the features of this document are: (a) It appoints someone (an enduring guardian) to make personal, lifestyle or health decisions on your behalf when you are not capable of doing so yourself; (b) The enduring guardian can make decisions such as where you live, what services are provided to you and what medical treatment you receive; (c) It only comes into effect when you lose mental capacity and is effective only during the period of such incapacity. Therefore, although it may never become operational it makes sense to plan for unforeseen events; (d) It must be witnessed by a prescribed person such as a lawyer who must explain the document to you and sign a certificate to that effect; (e)...

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Surrender of Retail and Commercial Leases

Posted by on May 31, 2017 in Articles, Business Sale & Purchase Articles, Commercial Agreement & Dispute Articles, Conveyancing Articles, Lease Articles |

When a landlord and a tenant both agree to terminate a lease before its expiry date this is called a surrender of Lease. A lease creates an interest in land in favour of the tenant and constitutes a contract between the landlord and the tenant. A surrender terminates both the tenant’s interest in the land and the contract. The process of the surrender should be regulated by a Deed of Surrender so that the rights and obligations of both the landlord and the tenant are clearly set out to ensure no disputes can arise at a later time. Also, if the Lease is registered, section 54 of the Real Property Act requires a Surrender of Lease form to be executed by the parties and upon registration the land will revest in the landlord. As a preliminary point, the parties should determine who will meet the legal costs relating to and arising out the surrender of the lease. The process for a typical surrender of lease will be as follows: 1. A Deed of Surrender of Lease has to be prepared covering numerous issues including: (a) The date of surrender i.e. the date the tenant will vacate the premises; (b) Payment of rent and outgoings up to the date of surrender; (c) Making good the premises by the surrender date .i.e. the tenant having to return the premises to the same condition they were in at the start of the lease; (d) Release of the landlord, tenant and any guarantors from liability from the date of surrender; (e) The return of any bank guarantee or security deposit to the tenant; (f) The liability of either the landlord or tenant or both for the legal costs and stamp duty relating to or arising out of the surrender of lease; (g) The preparation of the Surrender of Lease form to be registered at Land & Property Information (“LPI”); and (h) Any payment by one party to the other in return for the surrender. 2. The solicitor for the tenant will have to review the Deed and may wish to make amendments to which will have to be negotiated; 3. Once the Deed is finalised, the parties will have to sign it and exchange it so it can come into effect; 4. The tenant will have to make good the premises before the surrender date to the satisfaction of the landlord; 5. The parties will have to execute the Surrender of Lease form; 6. A letter will need to be sent to any mortgagee requesting it to produce the Certificate of Title at the LPI; 7. Once the Certificate of Title has been produced at the LPI, the Surrender form can be lodged...

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Bank Guarantees for Retail and Commercial Leases

Posted by on May 16, 2017 in Articles, Commercial Agreement & Dispute Articles, Lease Articles, Litigation Articles |

A landlord of a retail or commercial property often requires a tenant to provide a bank guarantee as security in case the tenant defaults under the Lease. Many bank guarantees that are offered to landlords are inadequately prepared by the bank and do not offer effective protection. To avoid a bank guarantee being rejected by a landlord or to ensure that it is one capable of being called on by a landlord the following should be considered: 1. Australian Bank The bank guarantee should be issued by an Australian bank with an Australian trading licence. This aids in the landlord’s ability to quickly and efficiently make a claim and to receive funds. 2. Unconditional It should provide and unconditional undertaking by the bank to pay a certain amount if a demand is made by the landlord. 3. Favouree It should correctly describe the landlord as “the favouree” i.e. the one to receive the benefit of the bank’s undertaking. 4. Customer It should state precisely the party for whom it is being issued (“the customer”) as the tenant. If the bank guarantee is sought by a third party connected to the tenant then it should mention the customer’s name followed by “at the request of [name of the tenant]”. 5. Description of Leased Premises The leased premises should be correctly described in full. 6. Purpose It must set out that the purpose of the bank guarantee is to secure the tenant’s obligations under the Lease with descriptions of the address of the leased premises and the parties including their names. 7. Amount It should correctly state the amount of the bank guarantee as required by the Lease which would normally comprise a certain number of months’ rent and proportionate share of any outgoings plus GST. 8. Expiry Date The expiry date of the bank guarantee should be at least 3 months after the expiry date of the Lease to give the landlord enough time to determine, upon the tenant vacating the premises, whether there have been any breaches of the Lease such as failure to make good the premises, to obtain any quotes for repairs, for the work to be carried out, for final invoices to be received and for a written claim to be made on the bank. May...

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