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What is NCAT?

Posted by on Feb 8, 2018 in Articles, Building Dispute Articles, Lease Articles, Litigation Articles, Strata Matters & Dispute Articles |

The NSW Civil and Administrative Tribunal commenced operation on 1 February 2014 as a “super tribunal” bringing together the work of 22 former tribunals into one. It deals with a wide range of matters including: *     reviewing administrative decisions of NSW government agencies; *     consumer complaints about the supply of goods and services including the purchase of and repair of cars and residential building work; *     retail lease disputes between a landlord and tenant; *     dividing fence disputes between neigbours; *     appointing a guardian or financial manger for a person with a decision-making disability; *     strata disputes; *     residential tenancy disputes between a landlord and tenant; and *     retirement village disputes between a resident and an operator....

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Strata Disputes

Posted by on Feb 8, 2018 in Articles, Conveyancing Articles, Lease Articles, Litigation Articles, Strata Matters & Dispute Articles |

For those of you who live in a strata unit (and it appears that more and more of us will be in the future if the NSW Government has its way) one of the most common issues that arises is excessive noise made by neighbours. So, what do you do if you’ve spoken to the offending neighbour and you just can’t resolve the matter? The first thing to note is that section 153(1) of the Strata Schemes Management Act 2015 prohibits the owner, tenant or occupier of a lot from using or permitting the lot to be used in a manner that causes a nuisance. This provides a legal basis for the noise complaint. The steps to be taken (and this applies to most strata disputes) are as follows: (a)     Send a letter of demand to the neighbour precisely setting out the terms of the noise complaint and what the neighbour should do to alleviate the problem, such as placing carpet on floorboards,within a certain time frame e.g. 14 days; (b)    If the letter of demand is not complied with then an application for mediation should be lodged with NSW Fair Trading. The mediation will take place within a few weeks and it involves a structured negotiation process with an independent mediator who assists the parties to achieve a resolution of the problem. From experience, this has about an 80% success rate; and (c)   If the mediation fails or the other party refuses to take part then an application to the NSW Civil and Administrative Tribunal can be made seeking appropriate orders against the other party. The Tribunal is intended  to be a low cost and efficient forum for dealing with disputes. The hearing will take place within a few months of the application....

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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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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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Resolving Home Building Disputes

Posted by on Feb 2, 2016 in Articles, Building Dispute Articles, Conveyancing Articles, Litigation Articles |

When you are building or renovating your home and a dispute arises between you and your builder then you should take the following steps: 1. Speak to the builder and try to come to a resolution through open and positive communication; 2. If that fails then check your building contract to see if there is a dispute resolution clause that requires certain procedures to be followed. For example, clause 27 of the NSW Fair Trading Home Building Contract for work over $20,000.00 requires one party to give the other prompt written notice of the dispute. However, it then provides that, if the dispute is not resolved informally, the parties “may” confer with a mediator or expert to assist; 3. If the dispute remains unresolved then, provided there are no other mandatory procedures to be followed under the building contract, you can contact NSW Fair Trading to assist with regard to major defects within the 6 year statutory warranty period and minor defects within the 2 year statutory warranty period; 4. NSW Fair Trading will attempt to negotiate a satisfactory outcome between the builder and yourself. If that fails then a Fair Trading Building Inspector will be sent on-site to inspect the work in dispute. If appropriate, he will issue a Rectification Order which will set a date by which work is to be rectified or completed; and 5. If you are not satisfied with the Rectification Order or if it is not complied with then you may lodge a claim with the NSW Civil and Administrative Tribunal (“NCAT”) which can hear matters up to the value of $500,000.00. For matters over this figure you would have to make a claim with a Court. February...

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