There can be a statutory lien which gives a person the right to hold the goods until the seller’s monies are paid.

Under the common law there can be a general or particular lien.  A particular lien which is more common refers to a person holding goods for work done on those goods until accounts have been paid.  Examples of this are a mechanic holding a car until a bill is paid or a solicitor holding a file until their account is paid.

A general lien however allows the person to hold the goods until all sums payable are satisfied.  Again to use the prior analogy, mechanics holding a car for bills paid for that car as well as another car, or a solicitor holding a file regarding family law for work done on that file and a conveyance file.

An interesting case on this topic is Stapley v Towing Masters Pty Limited (trading a Dynamic Towing) [2009] NSW CA 382.  This involved a tow truck driver claiming a lien over a vehicle.  The case was bought by an insurer who argued that a tow truck driver did not have lien over the vehicle. 

The facts in short are that the truck driver picked up a vehicle and was asked by the driver’s insurer to drop it to a service centre so that the insurer could assess the damage.  When they went to deliver it the insurer refused to pay their account, so the tow truck driver took the car back to its depot and claimed a lien over it.

At first instance the court held that the tow truck driver was entitled to exercise a lien over the car as he was a common carrier.

The Court of Appeal however held that the tow truck driver was not a common carrier and therefore was not entitled to the lien.  This matter turned on the facts and whether the tow truck driver was a common carrier and held himself out to pick up all jobs at reasonable rates without reservation.

If you should have any queries about goods being held until payment, please do not hesitate to call us at Everingham Solomons because Helping You is Our Business.

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As might have been anticipated, most State Governments including NSW have not been particularly prompt in doing that. Finally, there is good news the business on this front.

Effective 1 July 2013 NSW stamp duty on –

• Purchase of shares in private companies;
• Mortgages; and
• Purchase of business assets other than land,

is to be abolished.

The abolition of these duties was originally proposed to take effect from 1 July last year however that was deferred in the 2012 State Budget to this year. Most experts are waiting on this year’s State Budget, scheduled to be released on 18 June, before relying upon the proposed changes taking effect.

Traditionally June is a peak activity month for business sales and purchases. This year however the “carrot” of reduced or eliminated stamp duty and the uncertainty until after the State Budget may recommend that some business transactions be deferred into the new financial year.

There are anti-avoidance provisions already in the stamp duty legislation to stop the exemption applying to transactions which finalise after 1 July but result from legally enforceable arrangements entered into before that time. This means that there is limited scope to put a legally binding deal in place before 30 June and then claim the benefit of the stamp duty exemption if settlement takes place after 1 July.

This will be one of the issues that vendors and purchasers will need to grapple with in the period leading up to the end of the financial year. Sellers will naturally wish to complete transactions whereas some purchasers may wish to defer until the new financial year.

At Everingham Solomons the business law team has the experience and expertise to provide advice on all sale and purchase of business matters and associated stamp duty issues because Helping You is Our Business.

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Despite clear intentions set out in a will to leave property to a particular party, it is possible to argue before the Family Court that such an inheritance should be considered an asset of, or contribution by, both parties – not just a contribution made by the party who received the inheritance.

Ultimately, there are a number of factors which the court takes into consideration.  For instance, the court may look at the timing of the inheritance (i.e. prior to co-habitation, during the relationship or immediately after separation); the length of the relationship; the size of the inheritance; and whether the non-recipient party could be said to have made a contribution to it.

In the interesting case of White and Tulloch v White (1995) FLC 92-640, the full bench of the Family Court considered a husband’s claim that his estranged wife had an expectation of inheriting a substantial amount of property upon the death of her mother, and that this should be a factor when assessing the asset pool.  The Family Court determined that an expectant inheritance could not be a seen as a financial resource as the wife could not control or be certain that she would receive such property under her mother’s will, because the mother could revoke her will or completely alter how her estate was to be distributed upon her death, at any time.

There is no hard and fast rule when it comes to how the court will view an inheritance in relation to the financial contributions of the parties.  Whilst the Family Court in White and Tulloch v White said that a prospective inheritance could not constitute a financial resource, it can still be taken into consideration under the very wide provision of s75(2)(o) of the Family Law Act (1975).  This provision requires the Court to bear in mind “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.  In other words, the Court will consider facts or circumstances (of a largely financial nature) when assessing the financial pool, which therefore may include a potential or expectant inheritance to one the parties.

Clearly it is always advisable to have a carefully written will which sets out your intentions in relation to the distribution of your estate.  However due to the often unpredictable nature of the law you must also be mindful that the contributions made within a marriage or de-facto relationship may extend to inheritances and even to property not yet in your hands.

At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.

National Buildplan went into administration on 8 April 2013 and more than likely will end up in liquidation.

The collapse has left local contractors out of pocket for many millions of dollars.

We are yet to see the full effects of the insolvency which will involve contractors retrenching staff, contractors unable to pay their own debts resulting in further retrenchments and the closure of contractors’ businesses, some of which have already closed.

After the collapse of a number of high profile construction companies, the New South Wales Government commissioned the Collins Report last year.

The key recommendation was the establishment of a Statutory Construction Trust for projects greater than $1 million. The idea was that the Statutory Trust would receive the progress payments from the principal and the trustee would pay the sub-contractors direct.

Sadly the recommendations of the report have not been implemented however it is hoped that the anguish that our local contractors and employees are now suffering will motivate the Government into taking swift action to reform the building and construction industry.

I also ask, how long has the Government, which includes the Government departments who are administering contracts such as Health Infrastructure and Public Works, known that National Buildplan was in financial trouble?

There is evidence to suggest that various Government departments were well aware of the potential insolvency a number of weeks ago having met the company to discuss these issues.

Further anecdotal evidence suggests that National Buildplan were rejected as a potential tenderer for a large Government infrastructure job more than two months ago based on its perceived risky financial position.

What did the Government think when sub-contractors walked off the Nepean Hospital job on two separate occasions based on non payment.

Surely the Government should have taken notice and immediately reviewed the financial position of the head contractor and taken action to protect the sub-contractor’s payments. After all, it was the Government who commissioned the Collins Report .They were fully aware of the risk that a subcontractors takes in such contracts.

Is the Government not required, prior to the tender and during the construction process to monitor the financial health of its head contractors? Was this done?

It is time for the sub-contractors, their workers and families to take a stand on this issue and seek a Government rescue package for the sub-contractors who are left stranded and to change the laws to prevent this situation happening again.

At Everingham Solomons we have the legal expertise to help with all your legal problems because Helping You is Our Business.

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But good faith clauses are fighting back. Late in 2010, the New South Wales Court of Appeal decided a case involving a heads of agreement between Macquarie International Health Clinic Pty Limited and Sydney South West Area Health Service, relating to the development by Macquarie of a private hospital and a car park on Royal Prince Alfred Hospital land, which required the parties to act with the utmost good faith to one another.

After the agreement was signed, Area Health created a strategic plan which did not propose any development consistent with the agreement with Macquarie.  Area Health never mentioned this to Macquarie and was nailed  under the good faith clause because disclosure would have made a substantial difference to Macquarie’s expectations under the heads of agreement.

The Court said that the good faith promise must be construed having regard to the terms of the contract and the circumstances known to the parties in which it was entered into. It said that a contractual obligation of good faith embraces an obligation on the parties to cooperate in achieving the contractual objects, compliance with honest standards of conduct, and compliance with standards of conduct that are reasonable having regard to the interests of the parties.  It said that a contractual obligation of good faith does not require a party to act in the interest of the other party or to subordinate its own legitimate interest to the interest of the other party but it does require it to have due regard to the legitimate interests of both parties.

So, parties entering heads of agreement, letters of intent, memorandum of understanding or formal contractual documents should be careful about good faith clauses.  If you require advice in relation to the negotiation or preparation of contract documents, the commercial team at Everingham Solomons can assist you because Helping You is Our Business.

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Requests to work on a public holiday

The factors set out in the NES to determine the reasonableness of a request to work (or the reasonableness of a refusal to work) on a public holiday are: 

• the nature and operational requirements of the workplace
• the type of work required to be performed
• the employee’s personal circumstances (eg family responsibilities)
• any reasonable expectation that public holiday work is required
• entitlements to be compensated for working on the public holiday
• the type of employment of the employee (ie full-time, part-time or casual)
• the amount of advance notice provided to the employee to work on the public holiday, and
• the amount of advance notice given by the employee if refusing to work on a public holiday.

What does this mean for employers?

Employers requiring employees to work on public holidays should:

• consider the reasonableness of the request 
• provide as much notice as possible to avoid an employee claiming that the request was unreasonable, and also
• consider any obligations that may arise under industrial instruments such as enterprise agreements or modern awards that regulate employees’ entitlements on public holidays

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.

Click here for more information on Jessica Simmonds.

When a Court has made final orders, it is almost impossible to change them unless there has been a significant change in circumstances as outlined in the leading case of Rice and Asplund (1979) FLC 90-725.

The question may be asked, what happens when a Court has made final orders for one of the parents to only spend supervised time with the children? Can the issues leading to the supervision be re-addressed and changed at a later time?

This issue was the subject of debate in the matter of Slater & Light [2013] FamCAFC 4. This was an appeal from the Federal Magistrates Court concerning a decision whereby a father was to spend supervised time with his children. It was determined at that time that the father posed an unacceptable risk of emotional harm to the children.

The problem for the father was that the orders provided that he could only have supervised visits with the children. There were no other orders for the father, whether he was rehabilitated or not.  He was not to spend unsupervised time with the children.

On appeal, the Family Court had to determine whether the Federal Magistrate, had the intention that the orders were to be final with no prospects of changing them.

Whilst the Court found that the order for supervised time was justified in the circumstances, they did not agree that an indefinite supervision order was the correct outcome.  The reason is that it did not allow the father the opportunity to apply to vary the orders due to the matters outlined in Rice and Asplund.  

Further, the Court did concede that there had been a time delay between the initial hearing in 2011 and the time of the appeal. In that regard, they ordered a re-hearing of the matter with updated expert evidence about the time that the father should spend with the children.

If you need advice in relation to parenting orders, you should contact Everingham Solomons because we have the experience and expertise to assist you because Helping You is Our Business.

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As a creditor (person who is owed money) one option that is available is to pursue the debtor (person who owes the money) through the court system for payment.

Unfortunately however, sometimes debtors don’t respond to court proceedings.  The issuing of a statement of claim, entering of judgment and enforcing of an order can be a long, and cumbersome exercise.  The debtor gets to keep your money in his pocket for months while you jump through the hoops.

If, however, the party that owes you money is a corporation, there is another very, very effective alternative available to you. 

It is called the statutory demand and it works like this: 

You send a simple and inexpensive document requesting payment to the debtor company.  If the debtor company does not pay the debt within 21 days, the company can be almost immediately wound up – The company’s life is over.  Trading stops, an administrator is appointed and all the company’s assets are sold off to pay you.

If the debtor company has even a half serious business they will not want this to happen.  It’s not a good outcome for it’s business.

Of course, the debtor company can always object to the statutory demand by refuting the legitimacy of the debt.  But, they have a very strict 21 day deadline in which they are entitled to do so.  They will also have to pay a filing fee of about $2,500 to give a Supreme Court Judge the pleasure of listening to their argument.

It’s the perfect medicine to wake up a sleepy debtor that will not respond to any other prodding for payment.

If the creditor’s entitlement to the debt is straightforward, it will be futile and incredibly expensive for the company to resist.  A smart debtor will simply pay up rather than being wound up.

A statutory demand is a simple document but must be drafted meticulously.  It must be verified, sworn and served in accordance with complicated Corporations Rules.

If a statutory demand contains any defect it can be set aside by the court and the creditor can be ordered to pay for the debtor’s inconvenience. 

In order to make sure your statutory demand is done correctly the first time, contact Everingham Solomons, because Helping You is Our Business.

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It is the informality, uncertainty and irregularity that gives rise to the characteristics of being a casual.

In the recent decision of Williams v McMahon Mining Services Pty Limited [2009] FMCA 511 the court held that as the employee’s work were performed according to a stable organised and certain roster, with certainty of working hours throughout the term of employment, he was not a casual worker.

There is however no one characteristic that makes an employee a casual and each case needs to be looked at on an individual basis.

Another older case is Licensed Clubs Association of Victoria v Higgins (1988) AILR497 where the court examined the following factors to determine what the ongoing relation was:

• the number of hours worked each week;
• whether a roster system is published in advance;
• whether the employment pattern is regular;
• whether the employee has an expectation of continuity of work;
• whether the employer requires notice before an employee is absent or on leave;
• whether the employee works to consistent starting and finishing times.

Implications for getting it wrong are significant.  Apart from fines, there are also entitlements to personal leave, notice of termination, redundancy pay, annual leave and protection from unfair dismissal. 

Employers should carefully consider when engaging a casual employee whether the employee can be considered a true casual.  Employers should also review the employment contracts they use, particularly for casual employees, to ensure that they reflect the true legal relationship created.

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.

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Employees on the other hand are paid to work certain hours for an agreed wage, and are usually entitled to paid leave.

A common distinction between contractors and employees is the documentation used to engage the worker – an employee will usually be provided with an employment agreement for ongoing services; an independent contractor will usually enter into a contract specifying the nature of the work to be carried out during a particular period. The difference is sometimes small and it can be difficult to ascertain whether a person is a contractor or employee.

Whilst a difficult distinction, contractor versus employee is an important one for businesses to make.

A recent Federal Court case has held that signing contracts indicating an independent contractor relationship is not sufficient to shirk responsibility if the real nature of the relationship is that of employer/employee.

The case involved a number of insurance sales representatives who signed contracts to provide independent contractor services. The sales representatives however were trained by the insurance company, supervised and directed by the insurance company, and worked closely with the insurance company. The Court held that the insurance company’s ability to control the sales representatives placed them into the category of employee rather than contractor. The decision resulted in more than $500,000 in accrued annual and long service leave being paid to the insurance representatives by the company.

To avoid a costly claim for back pay or other entitlements such as superannuation or long service leave, contact the employment law team at Everingham Solomons where Helping You is Our Business.

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