1 July 2019 saw the introduction of a new and improved Code of Banking Practice by the Australian Banking Association (ABA).
The Code outlines the standards for the banking industry in administering products and dealing with consumers and small business customers, including guarantors.
Some of the standards provided by the new Code include:

Greater emphasis on customer information and notification, including notices of changes to contract terms, and a notice of transaction fees before a transaction is finalised;
Simplicity in customer loan contracts, making them easier to understand, including the provision of a statement as to key terms, prohibition on general adverse change clauses, and limiting of the use of non-financial breach clauses to circumstances where the non-financial breach is material and coupled with insolvency or certain other contributing factors;
Safeguards for guarantors including a three-day cooling off period, the notification of changes to the borrower’s circumstances, and an obligation to make recourse to the borrower’s assets first; and
Greater social responsibility, including a statement of guiding principles, a commitment to consider the needs of customers including indigenous, elderly, disabled and vulnerable customers, and an intention to be proactive in identifying customers in financial risk and working with those customers.

The new Code was heavily negotiated and ultimately endorsed by Australian Securities and Investments Commission (ASIC) (an industry first).  An independent Banking Code Compliance Committee (BCCC) has been created to investigate alleged breaches of the Code, give directions to banks, and report serious or systemic violations to ASIC.
All have welcomed the Code as a good step towards rebuilding customer confidence in the banking industry after the recent Banking Royal Commission.  There may be some criticism of individual sections of the Code.
The Code only prescribes that banks ‘may’ speak to customers whom they identify with being in financial distress and will ‘try’ to help.  Additionally, there is only an obligation to comply with ‘reasonable requests’ by the BCCC, which may give rise to objections.
Having said this, the BCCC is given the power to impose sanctions and therefore, may have an ultimate say.
The adoption of the Code will be mandatory for all Australian retail banks as a condition of their ABA membership. What does this mean? The Code will now be a term of their contracts, making its provisions enforceable under contract law.
The Australian Financial Complaints Authority (AFCA) will be expected to use the Code as a benchmark standard for determining complaints made to it regarding banking practice.
Ultimately, we hope that ASIC’s unprecedented move in negotiating and endorsing this Code indicates a desire by the corporate watchdog to act when needed, such that the combination of legal contractual obligations, AFCA determination and ASIC regulation will force our banks to rise to the standard expected by their Australian customers.
Watch this space! 
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post The New Code of Banking Practice – Restoring Trust or Toothless Tiger? appeared first on Bennett and Philp Lawyers.

Introduction to Australia
Australia (officially the Commonwealth of Australia) is a federation comprised of six states, two mainland territories and seven external territories. The federal government is based in the capital city of Canberra (within the Australian Capital Territory). Australia has a population of approximately 25 million people coming from a diverse range of ethnic backgrounds. Over 70% of Australians live in the major cities located on its coastline.

Top 10 Questions

What role does the government play in approving and regulating foreign direct investment?

The government regulates foreign investment through the Foreign Investment Review Board (FIRB), which is a non- statutory advisory body. Its major role is to examine proposals by foreign interests to undertake direct investment in Australia and to make recommendations to the government whether the proposals are suitable for approval under the Australian government’s policy. The ultimate decision whether a proposal is approved lies with the Treasurer.
FIRB functions are advisory but include monitoring and ensuring compliance with foreign investment policy.
Different rules apply depending on the type of the proposed foreign investment. An investment in land (residential, commercial or agricultural) has different applicable rules to an investment in an Australian business. Whether FIRB approval is required for a proposed foreign investment may also depend on whether it exceeds certain set monetary thresholds.
The application process for obtaining FIRB approval is rigorous but is generally determined within 30 days of lodgement of the application, although this period may be extended.

Can foreign investors conduct business without a local partner? If so, what corporate structure is most commonly used?

Yes, there is no general legal requirement for a foreign investor to conduct a business with a local partner.
The most common structure used in conducting business in Australia is a company, although other structures, such as joint ventures, partnerships and trusts, may also be used.
Even with a local partner, FIRB approval may be required.

How does the government regulate commercial joint ventures between foreign investors and local firms?

Generally, the government does not regulate commercial joint ventures between foreign investors and local firms; however, the government does regulate the foreign investor through FIRB and other laws including the Corporations Act (which regulates companies generally) and taxation laws.

What laws influence the relationship between local agents or distributors and foreign companies?

Generally, the relationship between an Australian agent or distributor and an overseas supplier is contractual and governed by the same principles of contract law as the UK and other English-speaking jurisdictions.
Under Australian tax law, the pricing of goods and services supplied under contract between an Australian agent or distributor and an overseas supplier is expected to be set on an “arms-length” basis. Comprehensive and complex tax laws apply to the transfer pricing of goods and services imported to or exported from Australia for the purposes of protecting revenue.
Where the Commissioner of Taxation forms the opinion that cross-border transactions have not been priced on an arms-length basis, the Commissioner has power to make compensating price adjustments and impose penalties.

What steps does the government take to control mergers and acquisitions with foreign investors of its national companies or over its natural resources and key sectors (e.g. energy and telecommunications)?

FIRB controls whether a foreign investor may invest in certain sectors. There are sensitive sectors where foreign investment will be prohibited or restricted as being against Australia’s national interest or security. These include land (agricultural, residential, commercial and mining), media, telecommunications, transport and military (albeit FIRB approval may be granted in these sectors in certain circumstances).
Even if a proposed foreign investment is not within a sensitive sector, FIRB has an overriding policy to decline approval where the proposed investment is against the national interest or is against Australia’s national security.

How do labour statutes regulate the treatment of local employees and expatriate workers?

For Local Employees
Australia’s industrial relations system is strongly regulated by state and federal legislation. Companies that are trading corporations need to comply with the Fair Work Act 2009.
Most blue-collar and clerical workers have their employment terms and conditions set by the National Employment Standards (NES) and various awards and approved collective agreements. The NES sets 10 minimum standards for all employees.
Senior executives and management typically have their terms and conditions of employment set by contractual agreements negotiated directly between the employer and the employee. These contracts must still exceed the NES.
Workplace health and safety, discrimination, and workers’ compensation for workplace injury are regulated by state or territory and federal legislation.
Expatriate Workers
Expatriate workers’ terms and conditions depend on the type of visa arrangements approved by the Australian immigration authorities. Business people visiting from overseas can continue to enjoy the benefits of their home-based employment arrangements while undertaking short-term business activities in Australia. However, specific visas are usually required for non-Australian residents who seek employment or are employed in Australia. Any non-Australian residents employed are covered by the Australian industrial relations system including workplace health and safety and workers’ compensation referred to above.

How do local banks and government regulators deal with the treatment and conversion of local currency, repatriation of funds overseas, letters of credit and other basic financial transactions?

Generally, Australia does not have any exchange controls. The Australian dollar ($) is a floating currency widely and transparently traded, although the Reserve Bank may, from time to time, buy or sell $ to smooth out unusual market events.
There are no restrictions on repatriation of profits back to overseas parents by way of dividends or loan repayments other than:

The usual requirement that the Australian entity meet the solvency test of being able to meet its debts as and when they fall due, or
In some cases, making sure the company does not fail the thin capitalisation test to ensure that its interest expense is fully deductible for tax purposes.

Local banks are generally well-capitalised and sophisticated financial institutions. Our banks are accustomed to trading in foreign exchange and dealing with letters of credit and other trade-based securities.
Reporting requirements apply about the movement of large sums of money and there may also be financial sanctions imposed for transactions involving certain countries, entities or individuals.

What types of taxes, duties and levies should a foreign investor expect to encounter?

For most operating companies, the following taxes would be encountered by an Australian operation:

Company tax at 27.5% to 30% on taxable income
Withholding tax on any dividends to the extent that these are unfranked (i.e., franked dividends to overseas shareholders are free of withholding tax)
Withholding tax at 10% on interest payable to an overseas party
Withholding tax on royalties payable to an overseas party
State duties on the acquisition of land, businesses and other assets including shares in a land rich company
Payroll tax on wages and salaries (a state-based impost subject to monetary exemptions)
Resource Rent Tax (oil and gas only)
Pay-as-you-Go withholding tax (on the salaries and wages of employees which is remitted directly to the Commissioner of Taxation by the employer and a credit allowed to respective employees on filing their income tax return)
Fringe Benefits Tax on non-cash compensation paid to employees’ subject to monetary limits
Goods and Services Tax (GST) at 10% to supply of goods and services, and real property

How comprehensive are the intellectual property laws? Do local courts and tribunals enforce them objectively, regardless of the nationality of the parties?

Australia is a member of World Trade Organization and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), as well as the Berne, Paris and Rome Conventions; the Patent Cooperation Treaty; the Madrid Protocol (for trade marks); and a member of other international IP treaties administered by the World Intellectual Property
Organisation. As a result, Australia has a comprehensive intellectual property regime. It includes legislative (e.g. Copyright Act, Trade Marks Act, Patents Act, Designs Act, Plant Breeders Rights Act and Circuit Layouts Act) and common law (e.g. the protection of confidential information and common law trade marks). Australia’s intellectual property statutes create both civil and criminal liability for infringements, but criminal prosecutions are rare. Where applicable, Australian intellectual property laws are enforced objectively (principally in the federal jurisdiction) regardless of the nationality of the parties.

If a commercial dispute arises, will local courts or arbitration offer a more beneficial forum for dispute resolution to foreign investors?

All Australian courts – including federal, state and territory courts – offer well-regulated dispute resolution processes. The Civil Dispute Resolution Act 2011 requires parties to litigation to certify that they have taken genuine steps to resolve a dispute prior to commencing action in the Federal Court. Increasingly, courts, generally with the support of litigants and their lawyers, are requiring that pro-active case management, mediation and other alternate dispute resolution (ADR) processes be implemented as early as possible to resolve disputes without the costs and delays involved in trials.
ADR processes (which include mediation) are cross-jurisdictional and therefore increasingly attractive for the resolution of international disputes.
Australia has comprehensive accreditation and regulation standards for mediators and arbitrators.
Arbitration is also an option in Australia although generally it is now the same cost as a court trial. The popularity of ADR processes has generally reduced court trials and arbitrations.
 
Download the complete Meritas Legal Guide for Business Investment and Expansion in Australia 2019 via the link below.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Doing Business In Australia: Top 10 Questions appeared first on Bennett and Philp Lawyers.

In the recent decision of the New South Wales Supreme Court in the matter of Voller -v- The Nationwide News and Others, some potentially serious ramifications have come to light for media companies and others who operate public Facebook pages.
Each of the media companies involved namely, The Australian, The Sydney Morning Herald, Sky News Australia, The Centralian Advocate and The Bolt Report published articles pertaining to Dylan Voller who came to public attention as a consequence of an ABC Four Corners program broadcast in July 2016. The said programme raised some significant issues in respect of Voller’s alleged mistreatment whilst in a Northern Territory youth detention facility.
Voller has instituted defamation proceedings against each of the above media organisations who published articles pertaining to him on their Facebook pages and invited public comment. It is understood that Voller has not instituted proceedings against any of the individuals responsible for the allegedly defamatory posts, just the media organisations that operated the relevant sites.
The Defendants have each sought to defend the claims on the basis of the defence of innocent dissemination under section 32 of the Defamation Act. As a preliminary matter, the court was asked to determine the separate question as to whether the Plaintiff had established one of the three vital elements of a defamation claim namely publication.
In his decision, Judge Rothman came to the view that the more fundamental issue for the court to consider was whether each of the Defendant media companies could be held liable for the defamatory comments posted on the relevant Facebook pages by third parties. In considering the matter his Honour found that best practice dictated that comments published on an open public Facebook page could be blocked or remain hidden until monitored and approved by the relevant Facebook administrator.
Further, he found that public Facebook pages administered by the Defendants were designed for the purposes of exciting comment and interest by members of the public and thereby optimising the number of persons who might subscribe to their media services and/or optimise advertising revenue.
Ultimately Judge Rothman came to the view that each of the media companies had made the decision to operate their public Facebook pages for their own “commercial ends”. In the judgement, the Judge observed that each of the Defendants had assumed the risks that comments posted on their respective webpages rendered them potentially liable to damages claims. In handing down his reasons for judgement he made the following observation namely:
“That risk may be ameliorated by the suggestion, given during the course of submissions and evidence, that all comments be hidden, in the manner described in these reasons for judgement” and “unhidden” after it has been monitored.
It seems inevitable that the Defendants will ultimately seek to appeal the court’s decision however when it is all boiled down the decision does seem to be consistent with long-established legal principles.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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Greedy interstate law firms exploiting Queensland legal rules are finally being shut out after the Queensland Government moved to ban the practice of claims farming.
Prominent Brisbane injury compensation law specialist Mark O’Connor has welcomed the move, saying as far back as 2017 the insurance industry was demanding changes to Queensland’s Compulsory Third Party (CTP) insurance scheme because of a spike in Queensland CTP insurance claims.
Injured motorists faced reduced benefits if the changes went ahead, and Queensland lawyers at the time laid the blame for the claims spike squarely at the door of Interstate law firms convincing motorists involved in minor bingles to chase payouts through the courts.
Mark O’Connor, an Accredited Specialist in personal injury law and a Director with Bennett & Philp Lawyers, says NSW law firms, in particular, were profiting as they are not bound by caps on the sums Queensland lawyers can charge for fees to pursue smaller claims.
The Queensland Government has now tabled legislation to ban claims farming in the state and level the playing field with fee caps for interstate lawyers too.
Queensland firms cannot by law charge more than 50 per cent of a nett settlement for their total fees which makes it uneconomic to pursue many small claims through the courts, but Mark says interstate law firms were not subject to Queensland’s fees cap and exploited the advantage.
It is understood ‘claims farmers’ – people with suspected access to insurance industry data- in turn, have been selling information about small claims to interstate law firms which then encourage people involved in accidents to bring CTP damages claims blowing out claim numbers.
“Queensland lawyers have been unfairly copping the flak over this,” Mark says.
He says insurers swayed the Queensland government in the early 2000s to change compensation laws and there was regular pressure from them to water down the state’s Compulsory Third Party provisions.
“A spike in claims around the 2017 period was solely driven by law firms outside Queensland working with claims farmers selling them files that would not be viable to pursue for local firms, but interstate firms can charge what they like, even if the claimant ends up with peanuts,” he says.
“Queensland lawyers are sick of interstate lawyers with claim farmers’ relationships pirating on our system, especially as Queensland lawyers are blamed for the problems,” he says.
Mark says injury payouts in Queensland are conservative and he rejects any suggestion the current system is generous.
“It’s actually quite the opposite. People get significantly less now than they did 20 years ago,” he says.
A ban on claims farming would reduce pressure on the state’s CTP system Mark says and should be welcomed.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Personal Injury Claims Farmers Shut out with Proposed New Queensland Legislation appeared first on Bennett and Philp Lawyers.

There are two main types of contracts a business might enter into with a receiver or liquidator (insolvency practitioner).
The first is a contract to purchase either a business or property from the administrator or liquidator. The other is a contract to supply goods or services to an administrator or liquidator who is continuing to run the business of the company in financial distress.

Sale contract buyer beware
Contracts to purchase businesses or assets from insolvency practitioners will always contain numerous exclusion clauses. The general effect of these clauses is to make it clear that the insolvency practitioner takes no responsibility if there is anything wrong with the assets or the business being sold, including the possibility that the company selling the assets, in fact, does not own them. Essentially almost any and every risk associated with the assets is the responsibility of you as the purchaser.
This is effectively summed up in the old phrase “buyer beware”. You may only have a limited period of time to carry out due diligence on the company and potential issues with the business or assets may not arise for a considerable period of time. The contract will always be drafted to ensure that you have no right to claim any compensation from the insolvency practitioner or to terminate the sale contract.
Trying to negotiate on these terms is often very difficult as insolvency practitioners are most unwilling to take on any personal responsibility in this sale process as they simply do not know what issues can have arisen before their appointment.
 
Supply contract, insolvency practitioners personally liable
Often an insolvency practitioner will wish to continue running the business for a period of time to improve the prospects of selling the business or its assets.
To do this they will try to engage essential suppliers and contractors of the company to continue to carry out work or provide supplies.
Often of course the suppliers or contractors will be owed significant debts by the company and will not be interested in increasing their exposure to this company. While this is a legitimate point of view it can be short-sighted.
The reason for this is that the insolvency practitioner themselves is personally liable for the costs of any contracts they enter on behalf of the company. This applies even if they do not recover the money back from the company they are appointed over.
This can be especially useful for the business supplier or contractor who may still have a product that can only be used for that particular business or is unable to sell that product to any other party in any reasonable period of time.
 
Reviewing these contracts
There can be benefits in entering into these contracts with insolvency practitioners, however, insolvency law is complicated and these contracts can be time-consuming to review and prepare with settlement usually required in a very short period of time.
Our firm has negotiated numerous sale and supply contracts involving insolvency practitioners over the years including large building contracts for apartment blocks, a sale of a publishing business, business sales, asset sales, supply agreements and numerous others.
If you are looking into purchasing any assets or entering into any contract with an insolvency practitioner please contact us.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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Undertaking the task of challenging a Will can be both emotionally- and financially-draining especially for family members still grieving from the loss of a loved one. Estate litigation can be a long and arduous process, and this is on top of the complex emotions that may arise due to a family member being left out of, or, not adequately provided for in a Will.
Even after you have commenced the estate litigation proceedings, it is not guaranteed that you will be successful in your attempts to adequately address the distribution of the estate. There is always the chance proceedings will not work in your favour and you may be left with nothing but significant legal expenses.
Our Estate Litigation team sees many people through the offices of Bennett & Philp who are struggling to decide whether they should pursue a Will challenge or not. They help their clients weigh up their position, along with other external factors, to determine the likelihood of a successful outcome. While the team represents many clients in Court proceedings, a significant portion of their work is done earlier in the legal process where they evaluate whether proceeding to Court is a viable pursuit for the client.
As this is a substantial share of their work, the team looks at multiple factors in their decision-making process. They ask questions about both the client and their personal situation as well as the deceased and the details of their Will (if there is one). The health, family situation, financial position and relationship to the deceased can all play a factor in the likelihood of successful litigation. On top of this, the existence, contents and validity of the deceased’s Will also play a part in the evaluation process.
To make this process easier for you, the Estate Litigation team has put together the Challenging a Will checklist, a list of the most important questions asked during the first consultation client has with the team when seeking advice. With the answers to these questions, the team can make an educated judgment on the outcome and likelihood of success if the client were to pursue to matter further. This determination can save potentially save you thousands of dollars as well as many hours of time and effort that may go to waste.
Even if, discouragingly, the team advises that the pursuit is not viable, this can be enough to quell the frustrations of a client and leave them content knowing that they have a professional opinion saying any further pursuit would be fruitless.
So, if a family member has been left out of a Will, inadequately provided for, or you’re unsure about the integrity of the Will, download our checklist, answer the questions and return it to Bennett & Philp for our team’s free opinion on your likelihood of success. Don’t wait to meet us to start the process; save yourself time by preparing your answers at home and arrive at your first consultation with all the information necessary for the team to make a judgment.
You can download your own copy of the Challenging a Will checklist via the button below.
 
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post How Do We Determine the Likelihood of Success When Challenging a Will? appeared first on Bennett and Philp Lawyers.

In what may possibly be an Australian legal first, testamentary wishes written on post-it notes have been endorsed by the Queensland Supreme Court as a valid Will.
Barbara Houlihan, Special Counsel with Bennett & Philp Lawyers, successfully obtained orders confirming the validity of an informal Will written on the much loved, must-have piece of office stationery.
In December 2013, the late Ms L had written her wishes on three post-it notes and placed the sticky labels on the front page of her formal 2009 Will. The post-it notes were signed by Ms L but not witnessed.
On Ms L’s passing, the post-it notes caused conflict amongst her family members. One family member questioned the validity of them. A formal requirement of a valid Will (among other things) is for it to be signed by the Will maker and witnessed by two people.
Clearly, the post-it notes did not satisfy this requirement and an application to the Court had to be made on the basis that the notes constituted a valid Will despite not being witnessed correctly.
Ms L’s sister had to prove to the Court that the late Ms L intended for the post-it notes to operate as her Will and that they expressed Ms L’s testamentary intentions.
In February 2019, the Queensland Supreme Court declared that the post-it notes were a valid Will and capable of being admitted to probate.
While this matter ended with a good result for Ms L’s sister, at what cost to Ms L’s estate and remaining family members?
Ms L’s estate carried the burden of significant time delays and the legal costs of several parties involved in the dispute, including a court-approved independent administrator.
If a formal Will had been signed, the estate would have been distributed much sooner and would have avoided what were unnecessary (and not insubstantial) legal costs for various parties preparing for and attending Court.
Ms Houlihan further cautions that wishes written on post-in-notes, in iPhone notes, in computer software programs or on a piece of paper, does not in itself mean it will stand in a court of law.
“If Ms L had simply adhered to the formal requirements or sought legal assistance in the preparation of her Will, she would have spared her family much grief and expense” says Barbara Houlihan.
Matters of this character often result in a breakdown of family units and relationships between family members.
These types of do-it-yourself Wills require substantial evidence to be given to the Court resulting in a high volume of work being undertaken by lawyers and significant delay in the distribution of the estate. There were special factors in this case that led the Court to the decision that the post-it notes constituted a valid Will.
Save your loved ones the heartache and stress by ensuring your wishes meet the formal requirements of a valid will. We are able to assist you to ensure your Will does not lead to litigation for failing to be adequately prepared.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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In a decision from 2015 (Munro v Munro [2015] QSC 61), the Queensland Supreme Court held that a superannuation death benefit nomination that Mr Munro (the deceased) intended to be binding on the trustee of his self-managed superannuation fund to ensure that his superannuation death benefit was paid to his estate after his death, was not actually binding.
Mr Munro established a self managed superannuation fund with his second wife, Suzie, in 2009 and shortly after, prepared what he thought to be a binding death benefit nomination which nominated the “Trustee of Deceased Estate” to receive his benefit upon his death.
Mr Munro then prepared a Will, which directed $350,000 of the superannuation benefit that was to be paid to his Estate to Suzie, if she survived him, and the remainder to his two daughters from his first marriage equally. At the time of his death in 2011, Mr Munro had minimal other assets to form part of his Estate.
After Mr Munro’s death, his second wife (as trustee of the superannuation fund) asserted that the binding death benefit nomination was not actually binding on her because it did not comply with the specific terms and requirements of the governing superannuation fund trust deed and as a result, she was entitled to exercise her discretion as trustee to pay all of the benefit to herself, as the surviving spouse (which the governing trust deed allowed her to do, if there was no valid binding nomination in place).
Mr Munro’s daughters made an application to the Court seeking orders that the binding nomination was valid, but unfortunately, they were not successful.
This is because Mr Munro’s nomination form nominated “Trustee of Deceased Estate” to receive his benefit in circumstances where the relevant trust deed and the nomination form itself provided that if a member wanted to nominate their Estate to receive their death benefit when they died, they must specifically nominate their “Legal Personal Representative” on the form. Further, relevant superannuation legislation provides that only a person’s legal personal representative, spouse, a child or an interdependent are eligible to receive their superannuation and death benefit when they die. A trustee appointed under their Will (for example, a trustee of a testamentary trust) is not eligible.
Although the terms of ‘legal personal representative’ and ‘trustee’ are sometimes interchanged, they can represent and perform very different roles in a deceased Estate. Therefore, by nominating “Trustee of Deceased Estate” instead of “Legal Personal Representative” Mr Munro did not comply with the terms of the relevant trust deed or superannuation legislation.
The effect of this decision (if it is not successfully appealed by Mr Munro’s daughters) is that Mr Munro’s second wife is able to pay all of his superannuation death benefits to herself, instead of the benefits being shared between her and Mr Munro’s daughters, as he intended. As there are very minimal assets in Mr Munro’s Estate it seems that his daughters will inherit very little, if anything at all.
This case serves as an important reminder to seek appropriate legal advice in relation to not only your Will, but a comprehensive estate plan to appropriately deal with all of your assets when you die.
Contact us for advice in relation to your estate planning or estate disputes.
 
 

This article was posted by the Bennett & Philp marketing team on behalf of the Estate Litigation practice group. The article was authored by a former team member while they were under the employ of Bennett & Philp Lawyers. Final revisions were made by a Director in charge prior to publishing.
 
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Is Your Superannuation Binding Death Benefit Nomination Actually Binding? appeared first on Bennett and Philp Lawyers.

Leading Brisbane law firm Bennett & Philp has today announced the promotion of Lachlan Thorburn, a key member of the Disputes and Litigation team.
Lachlan, who also specialises in employment law, will commence his new role as Senior Associate at the Brisbane-based firm immediately.
“I have been working within the legal industry for almost 10 years now and over that time, I have endeavoured to achieve the best results for my clients in the areas of commercial litigation, dispute resolutions, debt recovery and employment law,” Mr Thorburn said.
“I feel honoured to be part of a well-known and respected law firm that is Bennett & Philp. I am also very grateful to my senior colleagues who have supported my development as a lawyer over the last five and a half years I have worked at the firm.
“Bennett & Philp has provided me with many opportunities to grow both personally and professionally, by enabling me to work on a diverse array of matters for a range of different clients.”
Managing Director Lance Pollard said Mr Thorburn was an esteemed colleague with a strong determination to achieve stellar results.
“Lachlan has extensive experience in not only commercial litigation matters but also in the drafting of employment contracts, advising on workforce restructures, undertaking workplace investigations and advising on employee terminations,” Mr Pollard said.
“Lachlan is a trusted advisor to his clients and his success at Bennett & Philp has been defined by his attitude and approach to practising the law.
Lachlan (left) with Managing Director, Lance Pollard (centre) and head of the Disputes and Litigation team, Andrew Lambros (right).
“Lachlan has played a key role in growing the dispute and litigation practice and we are thrilled to be promoting him from Associate to Senior Associate. We look forward to his ongoing success within the firm and him growing his career with us.”
Lachlan represents a range of clients including insurers, national building suppliers and small to large enterprises, as well as companies in the automotive and motorsport industries.
Lachlan was admitted as a Certified Practitioner of the Supreme Court of Queensland and the High Court of Australia in 2012.
He is also a proud University of Queensland alumni and member of the Queensland Law Society.
For more information, Bennett & Philp’s Lachlan Thorburn can be contacted on 07 3001 2957 or via email at [email protected]
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Bennett & Philp Litigator Rising Through the Ranks appeared first on Bennett and Philp Lawyers.

At Bennett & Philp, we feel a great sense of achievement when a client is satisfied with how our team has represented them and provides positive feedback about our work. Our number one goal is to ensure that the client walks away satisfied that we have put in every effort to secure the best outcome for them. Receiving feedback is important as it allows us to learn from our clients’ experiences; building on those experience to improve the services we offer in order to provide a better experience for our next client.
Recently, our Personal Injury and Compensation Law team received a lovely message from Mrs H, a client who, at the conclusion of her matter, expressed gratitude and appreciation for team members, Trent Johnson and Sarah van Kampen, and the work they undertook.
The firm is always grateful to receive comments like this as it reflects the hard work and time Trent, Sarah and the whole team have invested into the matter. All the labor and effort spent on this matter has been worth it as the client has walked away with a high level of satisfaction about our team’s work.
You can read Mrs H’s testimonial below.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Receiving Positive Feedback from Clients appeared first on Bennett and Philp Lawyers.

A Supreme Court decision handed down on 11 June 2019 in the case of Darren Cootes v Concrete Panels (Qld) Pty Ltd, SMJ Projects Pty Ltd and Capable Construction (Qld) Pty Ltd [2019] QSC 146 highlights the complexities which can arise when work injuries arise in the course of multi-party construction projects.
Mr Cootes was injured in the course of his employment with Concrete Panels on 26 August 2013. He was injured when an excavation collapsed upon him at the worksite. He suffered from lumbar fractures and post-traumatic stress disorder.
The building project involved the construction of a motor vehicle showroom at Brisbane Road, Booval.
SMJ was the Principal Contractor. They contracted with Capable Construction for site supervision. Concrete Panels was engaged “to supply and install all concrete and associated works forming part of the construction works”. Mr Cootes was the site foreman for Concrete Panels.
Mr Cootes was injured when he was in a 700mm deep trench which had been dug by an excavator to allow for the pouring of concrete footings. There was also a 2.6m high excavation face on one side of the trench.
On 23 August 2013, Mr Cootes complained to his employer and to both SMJ and Capable Construction that there was a risk of a “caving” causing injury to workers in the trench. He said he had observed aggregate falling into the trench.
Mr Cootes and his crew were directed by Capable Construction to stop work whilst steps were taken to shore up the excavation face. During that work, Mr Cootes was operating as a “spotter” and again expressed his concern about the possibility of a collapse. He asked the worker doing the shoring up work to get out of the trench. He did and he went to do another job on site.
There was some conjecture in the case as to how Mr Cootes ended up in the trench, particularly as he had directed another worker to get out because he thought it was unsafe. Mr Cootes’ evidence was that he was attempting to retrieve the drill left by the other worker. SMJ and Capable Construction maintained that Mr Cootes entered the trench to continue the shoring up work.
The trial judge accepted that Mr Cootes entered the trench in order to retrieve the drill. At that time the face collapsed.
The trial judge found that Mr Cootes was acting in the scope of his employment duty in acting as a spotter in respect of the shoring up work and that retrieval of the drill fell within his scope of duties as an employee of Concrete Panels. He went on to find that Mr Cootes’ employer had breached its duty to him in failing to provide a safe place of employment, in particular, by failing to ensure that appropriate measures were taken to ensure the safety of the excavation face (i.e. that it was benched or battered as provided for in the site safety plan) before workers entered the trench.
A separate question arose as to whether Mr Cootes was contributorily negligent for entering an area he knew to be unsafe. The trial judge held that Mr Cootes’ actions constituted a serious momentary misjudgement but they fell short of warranting a finding of contributory negligence.
It was also held that both SMJ and Capable Construction also owed Mr Cootes a duty of care “to use reasonable care to avoid the unnecessary risk of injury caused by a collapse of the excavation face”. Consistent with his findings against Mr Cootes’ employer the trial judge found that SMJ and Capable Construction had similarly breached their duty of care to Mr Cootes by failing to carry out the excavation works in accordance with the site safety plan.
Damages were separately assessed against Concrete Panels on one hand and SMJ and Capable Construction on the other.
The question of Mr Cootes’ costs was not dealt with in the initial judgement. It may well be the subject of separate submissions. The case is however likely to bring into play a couple of recent court decisions dealing with the appropriate order for costs in claims which include both an employer and other parties such as a Principal Contractor or other Contractors. Ordinarily, a successful plaintiff is not entitled to a costs order against his employer because of a specific exclusion under the Workers Compensation legislation but subject to achieving a damages threshold, a successful plaintiff is entitled to a costs order against the other (non-employer) parties. The cases of Paskins v Hail Creek Coal Pty Ltd (No 2) [2018] 2 Qd R 518 and Thomson v State of Queensland & Anor (No 2) [2019] QSC 115 extended the successful plaintiff’s cost recovery against the unsuccessful parties to include the (otherwise unrecoverable) costs they incurred in pursuing the employer. It will be interesting to see what costs order the trial judge makes.
You can read the full judgement here.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Where Does Responsibility Lie on a Building Site? appeared first on Bennett and Philp Lawyers.

Without a legal background understanding the intricacies of making a Will and administering an estate can be both daunting and challenging.
Wills can be incredibly complicated documents and ultimately expensive but in most cases having a Will prepared by a professional is usually cost-effective. Your Will plays a significant role upon your death and affects those family members left behind. Whilst no one likes to think about their own mortality it is important to remember those people and so ensuring you have a clear vision of how your Will should take shape is crucial.
Picture – ‘Understanding your Will properly and being clear on how you would like your instructions carried out will go a long way in minimising any legal disputes that may arise following your death’.
Navigating the Will creation and the estate planning process can be fraught with danger. Despite this, people still go down the more ‘cost effective’ path by not involving qualified legal professionals in the process.
We’ve prepared a useful eBook on why you should not look at preparing a DIY Will as well as some other key considerations on:

When you should review your Will
Samples of life changes that should prompt you to review your Will
Who will your executors be?
Have you appointed a Guardian for children under 18?
Do you have any funeral wishes?
Do you want to make any specific gifts?

To download the eBook, please click on the button below.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post The Rise of DIY Wills and Why You Shouldn’t Go There {Free eBook} appeared first on Bennett and Philp Lawyers.

Recently, the Bennett & Philp Lawyers Family Law team hosted our very first Family Law Seminar in Chinese. The event, How do I protect my assets before, during and after marriage?, was held in collaboration with HuiMing Lin from Australia Law Review.
The seminar was presented by Chai Hoe from Bennett & Philp Lawyers & HuiMing Lin from Australia Law Review.
Chai, a member of our Disputes and Litigation and works closely with Director, Charlie Young and Special Counsel, Barbara Houlihan to advise clients on a range of matters including estate litigation, family law, domestic violence, elder abuse, disputes and litigation, debt recovery and insolvency as well as property, lease and contract disputes. Chai has diverse experience across multiple jurisdictions including Victoria, Singapore and Malaysia. Chai reads, writes and communicates proficiently in English, Mandarin, Malay and various dialects including Cantonese and Hokkien.
The event was a huge success with all attendees taking away practical information on how they can begin protecting their assets, now and into the future.
The seminar was a great success with more than 30 attendees actively participating in the session. Highlights of the night included:

The difference between joint tenancy and tenancy in common: If you want to learn more about the process to change the manner of holding from joint tenancy to tenancy in common and vice versa, please contact our real estate team.
How does a court decide how to divide assets and debts: When a court is asked to determine how to divide matrimonial property following a divorce or separation, the court will need to consider a range of factors including what’s in the parties’ asset pool, the direct financial contributions by each party, the indirect financial contributions by each party (such as gifts and inheritances from families), the non-financial contributions such as caring for children and homemaking and other relevant considerations such as age, health, financial resources, care of children and earning capacity.
Marriage vs de facto relationship in Australia: In Australia, de facto partners are just like married couples, both are equally protected under the family law. The speakers discussed under what circumstances a de facto partner can bring a claim in the court to divide parties’ assets.
Why is asset protection important? Asset protection and estate planning are crucial to prevent any disputes arising from a divorce/separation, estate disputes and joint debts disputes (especially when a spouse becomes bankrupt).
How to protect your assets: This can be achieved through, for example, financial agreements, loan agreements, wills and estate planning and family trusts.

We’d like to express our gratitude to the tremendous help and support from everyone to make this event a great success.
If you’re interested in joining our upcoming seminars, please subscribe to our mailing list by sending an email to [email protected].
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post How do I protect my assets before, during and after marriage? appeared first on Bennett and Philp Lawyers.

Defects are not uncommon when it comes to residential apartment buildings. However, identifying those defects and taking action at an early stage is critical, as Tony Mylne explains.
In the wake of Sydney’s recent residential tower evacuations, building experts have warned that many other high-rise buildings may also be at risk.  Brisbane has recently seen unprecedented growth in the construction of multi-storey apartment buildings, but are owners getting what they bargained for?
As the law currently stands, apartment owners will generally find themselves without a claim in negligence against the builder of the development.  This is due to the High Court’s decision in Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 [2014] HCA 36, where it was found that the builder did not owe a duty of care to the owners corporation in relation to latent defects.  Furthermore, the Queensland Home Warranty Insurance Scheme does not apply to multiple unit dwellings over three storeys.
Because of this, apartment owners are often left trying to use Queensland’s body corporate legislation to pursue a subrogated claim in contract against the builder, or requesting the QBCC to issue the builder with a direction to rectify.  Strict time limits apply in both circumstances.  For example, the QBCC requires any complaint about defective work to be made as soon as possible and no later than 12 months after the owner notices the defects.  The Commission only has the power to issue a direction to rectify within 6 years and 6 months of the relevant building work being completed.  The limitation period for any contractual claim would expire even sooner after the completion of works.
Often defects in building work will not become apparent until many years after the project has been completed. This makes it essential for body corporates and owners to properly understand the time limitation periods that apply to their situation and take steps to protect their position.  Engaging a building expert to prepare a report on any possible defects well ­­prior to the expiration of the relevant time limitation periods would be a sensible strategy. In the event of defects, owners should ensure that they obtain legal advice on whether a claim may lie against parties other than the builder – such as the engineer and certifier engaged on the project.
Tony Mylne is a director in our Disputes and Litigation Team. He has over 20 years’ experience in construction and engineering disputes and has acted for body corporates in a number of latent defect disputes.
For more information about navigating building disputes contact us today.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Sydney’s Opal and Mascot Towers: cause for concern in Queensland? appeared first on Bennett and Philp Lawyers.

At Bennett & Philp, we love supporting organisations that make a difference in the lives of those in need. That’s why we support Multicap Limited, a not-for-profit organisation that provides individual, respite and family support to individuals of all ages living with a disability in Queensland.
Recently, we organised for twelve Multicap clients to attend the Brisbane Broncos game versus the Gold Coast Titans at Suncorp Stadium. Through the generosity of the Brisbane Broncos, we were able to acquire some bonus tickets allowing us to invite more guests from Multicap than we originally anticipated.
After being treated to lunch at The Paddo Tavern, our guests headed down to Lang Park to experience the thrill of live National Rugby League.
Lunch at The Paddo with the Bennett & Philp and Multicap teams!
Held on a sunny, winter afternoon, the conditions were almost perfect for both the crowd and the players.
Unfortunately for the avid supporters, the Broncos couldn’t pull through with the win, but the game offered everyone an exciting afternoon nonetheless.
Our guests enjoying the afternoon game
The Multicap team loved watching the Broncos at Suncorp Stadium. We would like to thank the Brisbane Broncos team for kindly donating four extra tickets. Their generosity allowed us to provide more Multicap guests with an entertaining afternoon.
We’re looking forward to working closely with Multicap and supporting them as much as we can in the future.
To learn more about Multicap, we encourage you to visit their website here.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post An Afternoon of Rugby League with Multicap appeared first on Bennett and Philp Lawyers.

Imagine making a substantial insurance claim, only for the insurer to cite your own Facebook posts to deny the payout?
That’s the scenario playing out in NSW where a police officer who was medically discharged from the police service was bringing an application for disability benefits.
But her claim to how socially inhibited she was because of her injuries set the insurer on her trail and made some enquiries which suggest entries in her Facebook were inconsistent with her claim.
Brisbane compensation law specialist Mark O’Connor says increasingly, social media posts are being used as evidence in compensation and employment law matters because courts can and do order people to disclose the contents of their social media accounts.
This is happening in NSW where a court has upheld a legal Notice to Produce specific Facebook records of the claimant.
Mark O’Connor, a Director with Bennett & Philp Lawyers, says people need to realise that so-called ‘security settings’ on social media posts can mean nothing if lawsuits result.
People make posts on social media often not thinking beyond the moment and never realising it could one day be used in evidence in court against you, or even cost you your job,” he says.
In the NSW case, a police officer who was medically discharged from the police service was bringing an application for total and permanent disability insurance (TPD) benefits. She made reference in her claim to how socially inhibited she was because of her injuries.
“However the insurer made some enquiries which suggest entries in her Facebook were inconsistent with this claim. The insurance company delivered to the lawyers for the police officer a Notice to Produce requiring the production of significant information from her Facebook page.
“People often have TPD insurance attached to their superannuation policies. The claimant needs to show that they can’t return to the type of work for which they have skills, experience and education.
“The court found that the insurer had established a legitimate forensic purpose all in regard to the information/documents being sought under the Notice to Produce which would thus lead to the information having to be provided,” he says.
Mark says the brutal lesson from this is that people need to appreciate the dangers of posting information on Facebook.
Fellow Bennett & Philp compensation law specialist and Director Trent Johnson and employment law expert Michael Coates have previously also warned of the dangers of Facebook posts coming back to haunt people later.
A 2017 Brisbane District Court matter involved a woman claiming against her former employer. Both the plaintiff and defendant’s solicitors tendered evidence of Facebook posts made by a manager and the employee respectively.
Trent says this, and now the NSW matter, confirms the view that anything people post on social media posts could come back to haunt them at a later time.
Michael Coates, an employment law expert and a Director at Bennett & Philp, has said social media can play a role in employment law disputes too, especially if employees posted confidential workplace information on a social media forum or badmouthed fellow workers or the boss.
Trent says someone uploading critical remarks about others on social media could also risk facing a defamation action.
A post on Facebook is deemed to be effectively publishing the remarks, whether the post is publicly visible or confined to a closed group. Whatever is posted is vulnerable to being re-posted and shared by others,” he says.
Mark says it is common now for police and lawyers to check a person’s social media pages if they are facing charges and Michael says employers often do it too during the hiring process.
“Privacy settings are not a wall. Even if your privacy settings are configured to just family and friends, the court has the power to demand a party be provided with access to your social media accounts if it is believed those accounts could hold evidence relevant to a claim,” Mark says.
Court-ordered access is becoming a regular thing and security settings really mean nothing.
“In effect, the court can require you to disclose or provide access to or accept a friend request from a party wishing to sight your social media posts. This applies across the spectrum to all social media accounts,” Trent says.
The blunt reality is a social media post could be the evidence needed to win or lose a case.
“Sometimes the best strategy for social media is not to use it,” Mark says.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Beware Your Own Social Media Posts appeared first on Bennett and Philp Lawyers.

Drafting a will is not a priority for many of us until later in life. As a result, lawyers often find themselves coming across unique and non-traditional versions of wills that are deemed illegitimate by law.
Estate litigation lawyer, Charlie Young, said that while non-professionally drafted wills can be interesting, they aren’t cheap to probate in court.
“A will drafted with professional assistance should avoid any potential interpretation problems and result in a valid, legal document,” Mr Young said.
“We often see instances where people have tried to do it themselves to save a few dollars or leave it to the last minute, only to result in huge arguments between those left behind as to what the deceased meant in the will or whether the will should be valid at all.”
Mr Young believes anyone over the age of 18 should have a will.
It can be a daunting idea but having a properly prepared will makes things so much easier for the people left behind.”
Here he shares some of the stranger “wills” Bennett & Philp has come across.
The Chicken Scratch Will
One case Mr Young dealt with involved a person suffering from a terminal illness who visited his local lawyer to prepare his will.
“At the appointment, the lawyer took what could best be described as barely legible scrawl on a notepad but no will was completed at the time,” he said.
“Unfortunately, the gentleman passed away the next morning and we had to perform a substantial amount of work for the executor in asking the court to approve the lawyer’s notations as his last will, which it did.”
The Post-It Note Will
A middle-aged woman left small Post-It Notes on her will. The Post-It Notes set out what appeared to be the woman’s updated wishes as to what was to happen with her estate.
“When this came across my colleague’s desk, she knew it wasn’t going to be an easy case. After almost a year of litigation, the court ordered that the Post-It Notes were to be operative as the deceased’s last will.”
The Witnessed-But-Not-Witnessed Will
A will must not only be signed by the will-maker, but also by two persons who witnessed the will-maker’s signature. Any missing parts result in the legal requirements not being met. So, when Mr Young received a will containing signatures for the witnesses but not for the will-maker herself, he knew it was one he needed to take to court.
“Unfortunately, one aspect missing from a legal document can make all the difference and be a very costly exercise. The law sets out very strict requirements as to how a will must be executed,” Mr Young said.
“In this case, we had to track down the witnesses and explain in great detail for the court how they came to sign the document as witnesses when they didn’t actually witness anything. The document was ultimately approved by the court as being the deceased’s last will.”
The iPhone Will
Given almost everyone is now using Smartphones, it is not surprising to know that people have tried to make wills on mobile devices.
“The circumstances of the first smartphone will were very sad. A young man faced an intense personal crisis and carefully typed out his wishes on the Notes application in his phone shortly before ending his life,” Mr Young said.
“The executor, who was the man’s brother, could not implement the will’s instructions because it did not comply with legal requirements, though the Judge declared it valid and the probate was granted.
“At the time, I thought the court’s declaration that a will typed and saved on a mobile phone constituted a valid will was a first in Queensland, if not Australia.”
 
Deciding what to put in your will and where to start can be daunting, though knowing your assets and beneficiaries are cared for could help put your mind at ease.
If you are dealing with a Will which you believe has problems and require assistance, you can get in touch with Charlie and the rest of our team via our Contact Us page.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post The 4 Strangest Wills We’ve Encountered appeared first on Bennett and Philp Lawyers.

It is a fact of life that business relationships like any other relationship can break down. As well as the financial cost these disputes can often be very emotionally draining and stressful.
Often these occur due to communication breakdowns between the partners or shareholders as to what the expectations of each party are. Other times there is a fundamental disagreement on strategy and how to move the business forward. Sometimes it’s simply a result of personality issues arising over a number of years of working together.
These sorts of disputes can never be avoided completely. However the prospects of them occurring and the risk that a disagreement becomes a major partnership dispute can be greatly reduced.
One of the simplest ways to avoid a number of disputes occurring is to ensure you have a proper partnership or shareholders agreement. Properly drafted (and periodically reviewed) such an agreement can ensure that there is less confusion over the roles each party is expected to play.
Keeping proper records of meetings of directors and partners can also ensure that there is less confusion over what has been agreed to previously.
If nothing else a partnership or shareholder agreement can clearly establish dispute resolution procedures and how to dissolve the partnership or sell the business if the dispute cannot be resolved.
Of course this still requires a legal process to be followed but a properly drafted process under a partnership or shareholders agreement is far less costly than the usual court related methods of appointing receivers or provisional liquidators.
If you would like to discuss any potential concerns you have please contact us.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post How to Avoid a Partnership or Shareholder Dispute appeared first on Bennett and Philp Lawyers.

Queensland’s tough compensation laws effectively discriminate against elderly abuse victims, making it virtually impossible for them to pursue claims for injuries arising out of assaults or poor care and neglect in nursing homes.
That’s the view of prominent Brisbane injury compensation law specialist Mark O’Connor who says current Queensland laws need an urgent overhaul to give the elderly redress for a growing crime wave against them.
Recent media reports state some elderly Queenslanders are so traumatised by attacks and burglaries they are resorting to desperate measures — with one victim couple- tied up and robbed in their own home- claiming they now sleep next to a loaded shotgun.
Mark O’Connor, a Director with Bennett & Philp Lawyers, says legislative changes to the compensation system introduced by the Queensland government in 2002/2003 significantly reduced compensation awards for personal injury and impairment for most injured persons including the elderly.
They introduced thresholds which effectively have to be exceeded to make an injured person’s claim against their attacker financially viable.
“An elderly person attacked and injured can bring a civil claim against their attacker but the legislation effectively discriminates against the victim. The payouts are small unless you are terribly injured because the law was changed to favour insurers. If you suffer broken bones you’d be lucky to get more than $20,000 in judgment against your attacker.
It’s worse for elderly victims because there’s no loss of earnings to recover so to reach the thresholds and recover legal costs they’d need to recover over $75,000 and in most cases that’s just not likely so the victims get nothing,” he says.
Mark says the legislation is weighted- unfairly- against a victim who does not suffer an income loss due to an assault injury.
As well as a civil claim, a victim could seek victim of crime compensation damages from the state government but again the payouts are meagre.
The law not only favours offenders who attack the elderly, it also benefits nursing homes where patients suffer poor care or negligence.
“The legal restrictions mean victims would likely recover little of their legal costs from the responsible nursing home. Their legal costs would have to be paid from their damages. Sadly it is often not cost-effective for them to pursue a claim no matter how appalling the neglect or abuse which has caused an injury,” he said.
“It is virtually impossible for old people to pursue a claim which is financially viable because they most often do not have potential damages awards which will reach the legal costs threshold. Often there needs to be a claim for loss of earnings for an injured person to exceed the cost threshold and for obvious reasons this will not apply to old people. It would be very rare to get a claim over the $75,000 threshold.”
The issue of elder abuse, especially of elderly in nursing homes, has drawn ongoing media attention.
Mark says one of the beneficial effects of the common law system is that it acts as a disincentive to bad behaviour – if someone is sued enough they will stop engaging in the behaviour which is leading to the lawsuits.
But in Queensland the proprietors of nursing homes know it is unlikely they are going to get sued.”
“The combination of the inability to recover costs means that many old people are cut out of the system and effectively can’t claim compensation for physical injuries received in nursing homes or elsewhere,” he says.
Mark wants a reform to allow old people who are subjected to horrendous abuse in nursing homes and who bring a civil claim to be exempt from the costs restrictions.
He says any focus on elder abuse is welcomed but we now need changes to Queensland’s laws to protect our vulnerable elderly.
“There’s no financial pressure on our common law system to do right by the elderly because their cases can’t get up because it’s not financially viable to pursue them.
“We need a system where our aged are properly recompensed for their mistreatment, not just shunted aside to keep the insurance industry happy,” he says.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post QLD Compo Law Discriminates Against Aged appeared first on Bennett and Philp Lawyers.

In the decision of Re Veca [2015] VSC 74, the Supreme Court of Victoria refused to allow any amount of an unsuccessful applicant’s costs of challenging a Will to be paid by the estate, despite the executors of the estate agreeing to pay part of them.
In Re Veca, the deceased’s daughter lodged a probate caveat to prevent the executors nominated in her mother’s Will from obtaining a grant of probate from the Court on three grounds:

her mother lacked the requisite capacity to make the Will;
her mother did not know and approve the contents of the Will; and
her mother was unduly influenced by her son (the applicant’s brother) to make the Will.

At the time of lodging her objections, the daughter had received and reviewed an affidavit of the solicitor who took instructions from her mother to prepare the Will. That affidavit clearly set out the instructions that the solicitor received and his opinion that the deceased was able to understand the advice given to her and provide appropriate instructions.
Subsequently, the executors also filed an affidavit of a doctor who had met with the deceased at or about the time she prepared her Will. That affidavit stated that in the doctor’s opinion and based on his assessment, the deceased did have the requisite capacity to make her Will at that time.
Following receipt of this information and after she and the estate had already incurred considerable costs, the daughter withdrew her caveat.
The daughter then requested that the executors pay her legal costs in the amount of $14,700 from the estate. The executors agreed that some of her costs should be paid by the Estate, but did not agree to the amount that she was seeking. So the daughter made an application to the Court for orders that the executors pay her costs.
Ultimately, the Court denied the daughter’s request for any of her costs to be paid on the following grounds:

at the time the daughter filed her objections, there was sufficient evidence (in the solicitor’s affidavit) to show that she had poor prospects of succeeding;
the allegations made by the daughter were very serious and should not be entered into lightly and without property basis; and therefore,
there was no reason why costs should not follow the event.

The Court also ordered the daughter to pay the estate’s costs of the present application regarding costs.
The executors did not make any request for the daughter to pay the estate’s costs of the entire dispute. However, the Court noted that if the executor’s had made that application, the request would have been considered “favourably”.
This decision demonstrates the importance for all applicants to carefully consider their prospects before commencing any challenge to probate or a Will and to never assume that their costs will be paid by the estate, regardless of the outcome.
For more information or advice in relation to estate disputes, please contact us today.
 
 

This article was posted by the Bennett & Philp marketing team on behalf of the Estate Litigation practice group. The article was authored by a former team member while they were under the employ of Bennett & Philp Lawyers. Final revisions were made by a Director in charge prior to publishing.
 
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Can You Afford to Pay Your Own Costs in an Estate Dispute? appeared first on Bennett and Philp Lawyers.