Barry and Nilsson - Financial agreements and property settlements - the pitfalls

It is increasingly the policy of our governments that parties to an ended marriage or de facto relationship should be able to resolve their differences by way of agreement, rather than litigation.

It is also the case that newly committed couples are encouraged to enter into agreements to spare themselves further heartache upon the foreseeable, [Barry and Nilsson] yet unwanted, demise of their relationship.

Of the latter variety, there is still some resistance, particularly from young couples, who see the negotiation and existence of such an agreement as unromantic and contrary to the very nature of their new commitment. And before we laugh at their naivete, it must be remembered that it was not too long ago that such agreements were deemed void in Australian law as a imposition upon the sacred institution of marriage. There is some small hypocrisy in making a vow “for life” and at the same time negotiating to break that vow.

But, now we have them, and they ought to be used. Our preferred form of advice to unwilling couples is to think of the agreement a little like a will. No-one plans to die, certainly not in the short term future, and yet a will provides for that eventuality.

It is also our experience that agreements made at the start of a relationship can disfavour women. Even couples willing to enter into agreements generally negotiate it on the basis that what each party brings in to the relationship is theirs and they will split what they acquire during the relationship equally. It seems fair, but it’s usually not. [Barry and Nilsson] The reason being is that inevitably during a lengthy relationship, the dynamics of the relationship change. One party, usually the man, acquires the greater financial control. One party, usually the woman, sacrifices career and money for the primary care of children. Inevitably couples do not consider the “future needs factors” the courts must consider in property settlements in Queensland – for both married and de facto couples.

There are mechanisms to counter this – sunset clauses, contingency clauses and the like. All are acceptable. But even sophisticated couples will be reticent to find out they might have to do this unromantic thing again, perhaps at a time when the relationship is at its zenith – at the birth of a child.

Further still, our governments have decided that if the agreements don’t “tick all the boxes” the relevant legislation requires, then the parties may well have not bothered. If a de facto couple does not have a “recognised separation agreement” as opposed to an “agreement,” or if a married couple does not have a “binding financial agreement” as opposed to an “agreement,” then the agreement is almost of no value whatsoever.

What does this all mean?

Unfortunately, and perhaps in spite of the governments’ policies, it is simply impossible for these agreements, if they are to be just, equitable and binding, unless each party consults upon a family lawyer. If you, or someone you know, is about to start living with someone else, get married, or is dealing with the death throes of a relationship, encourage them to enter into an agreement and to seek the appropriate advise to make the agreement work.


For further information on this topic, please contact Barry and Nilsson Lawyers.

Low cost retail shop lease disputes does not mean low evidence

Barry & Nilsson lawyers posts under commercial & property law.

To avoid costly and time-consuming disputes in the Retail Shop Leases Tribunal, the party intending to commence proceedings should ensure that it has evidence to the standard required to prove its claim. This is a key point to take away from a recent decision by the Retail Shop Leases Tribunal in which our firm successfully acted for the landlord in defending a claim for compensation by a tenant.

What happened?

• The tenant operated a café and take-away food outlet and service station business. The tenant’s lease was for a period of three years, commencing on 30 September 2003, with two three-year options to renew.

• The landlord was required by the lease to supply all the fuel required for the operation of the service station and to maintain the fuel bowsers in good repair. The lease also made provision for the tenant to supply its own fuel if the landlord did not supply fuel for 7 days or more.

• The tenant’s obligations under the lease included accounting to the landlord for the proceeds of fuel sales (less the tenant’s commission) and keeping proper records of all purchases and sales of fuel.

• The tenant was in arrears in its accounting to the landlord for the proceeds of fuel sales (less commission) and the landlord locked the fuel pumps. Within a few trading hours, the tenant had removed the locks from the fuel pumps and it was able to continue selling fuel.

• During the term of the lease, the landlord served three separate notices to remedy breach in relation to the tenant’s failure to make certain payments under the lease (including the proceeds of fuel sale less commission) and provide daily control sheets to the landlord recording sales of fuel and stocks held.

• The landlord terminated the lease on 17 August 2006 after the tenant failed to comply with the latest notice to remedy breach. The tenant remained in possession of the premises for a further six months, but it only operated the café part of the business.

What the tenant claimed

• The tenant claimed damages for breach of the term implied in the lease by s43 of the Retail Shop Leases Act (“RSLA”), alleging that the landlord substantially restricted the flow of potential customers and caused significant disruption to the café and service station business by:

• regularly failing to supply fuel;

• locking the petrol pumps;

• failing to maintain fuel pumps and delivery measures in a safe condition; and

• failing to repair and maintain the subject premises.

• The tenant also claimed damages of an unspecified amount for unconscionable conduct, the conduct being the landlord’s refusal to renew the lease after a purported exercise of the option by the tenant and alleged interference with the tenant’s quiet enjoyment of the premises.

What the landlord argued

• The landlord denied that the tenant was without fuel on the days alleged by the tenant. The landlord argued that it was diligent in efforts to maintain supplies of fuel, but in the absence of the daily control sheets, the landlord was forced to estimate the amount of fuel to be delivered, which at times resulted in an over or undersupply of fuel.

• The landlord denied that any failure to supply fuel caused significant disruption to the café trading because the business attracted numerous walk-in customers unrelated to the sale of fuel and the tenant kept the café open for trading in the evenings after the service station had closed.

• The landlord argued that it had properly maintained the fuel pumps and it gave the Tribunal evidence of that maintenance.

• The landlord made a counterclaim for arrears of rent, electricity, other payments owing to the landlord by the business and the value of equipment removed from the premises by the tenant.

What the Tribunal decided

• The Tribunal found that the tenant had failed to substantiate its claim that the landlord had substantially restricted the flow of traffic to the premises by failing to supply fuel.

• The Tribunal’s view of the landlord’s conduct in locking the fuel pumps was that the tenant did not appear to have suffered any loss.

• The tenant’s claims in relation to interference with quiet enjoyment and the landlord’s failure to maintain the fuel pumps were dismissed due to lack of evidence. The Tribunal also dismissed the claim that the landlord had failed to maintain and repair the premises, as the majority of alleged defects were minor and did not adversely affect the business.

• The Tribunal found that the tenant forfeited the right to exercise the option because it was in breach of the lease at the time, a circumstance not permitted under the lease.

• The tenant’s claim for loss of capital value was dismissed due to lack of evidence of the market value of the business. The Tribunal did not accept the tenant’s accountant’s evidence of the value of the goodwill of the business, pointing to declining sales and diminishing gross profit, as well as the nominal value of the plant and equipment that remained.

• In relation to the landlord’s counterclaim, the Tribunal rejected the claim for the value of the plant and equipment but awarded the landlord a reduced amount for rental arrears and electricity costs.

Why the decision is important

The tenant’s failure to prove any aspect of its claim should be a timely reminder about the standard to be met in proving a case before the Tribunal. While the RSLA provides that the object of the RSLA is to be achieved through a low cost dispute resolution process for disputes, landlords and tenants should not expect that the low cost process is available at the expense of the evidence that a party would otherwise be required to adduce in other courts or tribunals.

For further information contact Barry & Nilsson lawyers.

Motor vehicle claims

Our motor vehicle insurance team manages a large portfolio of claims for a number of prominent Australian insurers. We prosecute and defend subrogated motor vehicle recovery claims of all sizes in a number of jurisdictions, predominantly Queensland and New South Wales.

Our team provides motor vehicle insurers with practical advice in relation to the prompt and cost-effective resolution of these types of matters.

We advise insurers in relation to property damage claims brought against their insured heavy vehicles. This includes damage to other vehicles, infrastructure or property caused by accidents, loss of cargo and mechanical failure.

Our team specialises in the pursuit and defence of loss of use, demurrage and consequential loss claims for insurers.

Some recent matters we have been involved in include:

• Pursing a subrogated recovery action for a cargo insurer after a container fell off a truck causing property damage to the cargo and surrounding area

• Acting for the insurer of a heavy vehicle damaged by fire in recovery proceedings brought against a negligent repairer

• Bringing a claim against a mechanic after a heavy vehicle crashed and damaged commercial premises after losing control when braking

• Acting for heavy vehicle insurer involved in a front end collision that wrote off a semi-trailer

• Defending a claim brought against driver involved in a multiple car collision in an area subject to road works

• Acting for the insurer of a heavy vehicle pursuing recovery after it was written-off by a lessee’s contract driver

• Pursuing recovery from the manufacturer of a truck part which ignited causing property damage to the heavy vehicle and its cargo

• Advising the insurer of a heavy vehicle which caused property damage and business interruption to commercial premises after a roll-over accident

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Providing family law services to Australians overseas

With more and more Australians living and working overseas it is inevitable that the services of a family lawyer in Australia may become necessary. I have identified and responded to this need by creating the Australian Family Law website. The site has been designed and launched as a vehicle to provide information on the types of issues that are of particular interest to Australians abroad.

To avoid the need for a paper file, a secure on-line access facility provides an electronic file which can be reviewed at any time and from any location that has internet access.

Please check out the new site. I invite you to blog your comments or ideas about information that you would like to see included.

http://www.australianfamilylaw.com.au/

Some more useful links:

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Public and products liability

The Barry & Nilsson Insurance team acts for more than half of the top 10 Australian general insurers as well as a range of specialist insurers, brokers, underwriters and self-insured corporations. We handle hundreds of new claims each year, covering the full range of property damage, personal injury and coverage/indemnity issues.

While the national tort reforms introduced over the last few years have reduced the total number of litigated claims, the types of claims we handle continue to cover a wide spectrum of issues. This is because there has been little change in the major areas of breach of duty, causation and liability generally. In many instances, the claims have become more complex, reflecting changes in Australian society and the business environment.

A significant proportion of our workload involves multiple parties, host employers, catastrophic injuries, product failure, natural disaster property damage, dangerous recreational activities, intoxication, nuisance claims, and occupiers’ liability. The construction "boom" in Queensland has increased our focus on workplace/construction type claims.

We resolve the majority of matters through the use of negotiation and formal and informal settlement forums. Our use of technology enables us to handle a large volume of work consistently, pro-actively and cost-effectively. We strive to add real value to our clients' businesses.

Some recent matters we have been involved in include:

Public liability

• Advising an insurer in relation to a claim by a minor who was catastrophically injured following a motorcycle incident on rural property

• Securing judgment for our local authority client in a matter involving a quadriplegic injured in a single vehicle incident on a State controlled road within our client's jurisdiction. Click here to read more

• Defending multimillion dollar property damage claims following a smelter shutdown and flood damage allegedly due to an insured's construction work

• Acting for an occupier in relation to a significant claim made following a relatively minor injury where treatment resulted in serious medical complications

• Acting for insurer with respect to mining-related property damage and nuisance claims involving issues of proportionate liability

• Representing a hotel where a patron had been assaulted by another patron in its car park. The claim was dismissed at first instance and on appeal. Click here to read more

• Successfully appealing a Supreme Court application for detailed disclosure from the defendant. The appeal set the parameters for respondents' disclosure under section 27 of the Personal Injuries Proceedings Act. Click here to read more

Products liability

• Advising an insurer in relation to a claim in excess of $15million made by a Japanese company relating to losses sustained as a result of the supply to it of contaminated wood chip

• Settling a claim (made by a distributor of solar pool fencing which had structural deficiencies) before trial for a sum well below reserve. The initial claim was for $12million

• Acting for an insurer of an out-of-date treatment which allegedly resulted in the death of cattle. The claim failed on causation due to the dosage timing

• Acting for a manufacturer of alleged faulty glassware following a partial amputation injury to the plaintiff's dominant hand

• Acting for the insurer of a rock supplier after a tainted batch allegedly resulted in damage to hundreds of newly constructed driveways

• Advising an insurer of a "high health herd piggery" who had supplied contaminated pigs resulting in a disease outbreak and focussing on the mitigation issues for the numerous claims that arose

To find out more, please contact Barry & Nilsson Lawyers

Courts to Merge

New post by Don Leembruggen, category: Family Law

The Semple review recommends the merger of the Family Court of Australia and the Federal Magistrates Court. Apparently, this is not as simple as it sounds (see Australian article).

I can’t help thinking, regardless of all that, that all we the profession, and our clients the litigants, want are consistent cogently communicated decisions from judicial officers. Regrettably, I can’t say this is being achieved nearly as much as it should be.

Thanks and Regards,

Barry & Nilsson Lawyers

Commercial and Property Law at Barry Nilsson

The property services sector - acquisition, development, leasing, management, financing and sales - is the market sector in which we specialise. At Barry & Nilsson, our large specialist Commercial & Property practice is lead by 2 partners and we have provided legal services in this discipline since the firm’s establishment in 1963.

The related commercial and dispute resolution matters are dealt with by partners and staff in this group rather than being handled by a different section, which frequently happens in other firms. This gives our clients and lawyers an undisputed advantage. Our clients don’t have to brief separate lawyers because our property lawyers have the skills to advise on a broad range of related issues. Additionally, clients receive much greater continuity of representation and our services are more cost-effective as a result.

From our lawyers’ perspective, the advice they are able to give because of their broader role in clients’ work is highly commercial and pragmatic, and takes full account of the environment in which the client operates.


Like a number of other law firms, at Barry & Nilsson we believe we really understand our clients’ business. Unlike others, the proof for making this claim is clearly demonstrated in almost every thing we do for our clients. This includes:

• Keeping matters moving, so that deadlines are met, delays that result in lost rental or other revenue are minimised and legal bills are lowered;

• Presenting options and making practical recommendations based on our extensive experience. This helps our clients make decisions and implement them;

• Knowing what options are feasible and where to make compromises to get deals done; and

• Working closely with other service providers to ensure advice is consistent and capable of being implemented.

While all clients expect the quality and accuracy of legal advice to be a given, what they really appreciate is lawyers who truly know a client’s business. We go a step further and build this into the way we do business and give advice.

Barry & Nilsson lawyers offers a vast range of legal services, please visit our website for more information.

Peter Murdoch - Barry Nilsson

Time to meet another member from the Barry & Nilsson Lawyers Insurance Law team...

Peter is a hard working and dedicaterd partner in Barry Nilsson lawyers. His interests and accolade are outlines as follows:

Peter's sporting background and passion for team work carries over to his approach to managing claims for major insurers, underwriters and self-insureds and mentoring people in his team. In over 15 years he has developed a broad range of expertise in public liability and professional indemnity claims and complex policy advice, with industry-acknowledged specialisation in claims involving local government, hoteliers and sporting injuries.

Peter frequently advises clients in relation to multimillion dollar property damage and product liability claims, many of which involve fraud, fire or product failure.

Typical matters handled

• Defending multimillion dollar property damage claims following a smelter shutdown and flood damage allegedly due to an insured's construction work

• Sporting liability claims involving rugby union, rugby league, soccer, judo, volleyball and gymnastics

• Frequent advice to insurers in relation to fire claim policy coverage issues:

• advising landlord's insurer on business interruption issues with respect to large factory fire with multiple tenancies

• advising on fraud allegations in relation to small business owner deliberately lighting fire to premises

• Advising brokers and insurers with respect to proposed Civil Liability Regulation amendments

• Defending $16million business interruption liability claim against local council

• Advising local authorities in relation to a multitude of claims relating to alleged negligent advice as to approvals, design and construction

• Providing risk management advice to Lloyds syndicate in relation to property wording for use by Australian-based underwriting agents and appropriate audit procedures to set in place

• Supervising and mentoring his team of lawyers in relation to quantum, liability and insurers' preferred approach to claims management

Qualifications & memberships

• Past president and current committee member of the Queensland chapter of Australian Insurance Law Association (AILA)

• Current AILA 2008 National Conference Program Committee Chair

• Member of Australian Association of Fire Investigators Inc.

• Member of Australia and New Zealand Institute of Insurance and Finance

• Member of ANZSLA (Sports Law Association)

• Bachelor of Laws, Bachelor of Economics

Thanks and Regards,
Barry & Nilsson Lawyers

Geoffrey SInclair ascends to chairman

Barry & Nilsson family law partner, Geoff Sinclair, has been elected Chair of the Family Law Section (FLS) of the Law Council of Australia.

The FLS is the pre-eminent representative body of the Australian family law profession. It is to the FLS that the government and courts speak. Geoffrey Sinclair is the first Queenslander to be elected to this position. Congratulations Geoff!

Find out more about Geoff's achievements at the Barry Nilsson website.

Thanks!

Geoffrey Sinclair from Barry Nilsson

Geoff has practised exclusively in Family Law for over 20 years and is an accredited family law specialist. He has particular expertise in international child abduction law and negotiating complex property settlements, in particular those involving intricate superannuation arrangements.

As a partner of Barry & Nilsson Lawyers, Geoff is acknowledged as an expert by his peers, evidenced by his appointment as the Queensland representative of the Family Law Section of the Law Council of Australia, and his further appointment as Deputy Chairperson of the Family Law section of the Law Council of Australia.

Geoff contributed to the Superannuation Section of the CCH Family Law and Practice Guide and has published various other articles on issues relating to bankruptcy law, family law and international child abduction matters.

Geoff is married with four children and his interests include cooking, playing golf and rugby union.

Qualifications & memberships

• Accredited Family Law Specialist

• Former member of Queensland Child Support Liaison Group

• Past Secretary of Family Law Practitioners Association of Queensland

• Family Law Practitioners' Association

• Queensland Representative of the Family Law Section of the Law Council of Australia

• Deputy Chairperson of the Family Law Section of the Law Council of Australia

• Director of Australian Institute of Family Law Arbitrators and Mediators

• Member of the Advisory Board for the World Congress on Family Law and Children's Rights

For more information on Geoffrey Sinclair's achievements and accolades you can visit his official staff profile at the Barry Nilsson Lawyers website.

About Barry and Nilsson Lawyers

At Barry & Nilsson our clients come first.
We offer specialised legal advice and solutions regarding Insurance, Commercial & Property and Family Law. This unique approach ensures that our clients receive unequalled expertise from lawyers recognised as market leaders in these 3 chosen specialties.

Though our firm is based in Brisbane, our teams are regularly visiting clients in every Australian jurisdiction. With over 50 lawyers, we have the ability to satisfy both our national and international clients' needs.

Our team at Barry & Nilsson Lawyers strives to achieve the best outcomes for our clients whilst providing personalised service, advice and strategies to support our clients' commercial and personal interests.

At Barry Nilsson we consider our people are our most valuable asset. We understand the importance of working in a genuine team environment.

Our team's friendly and energetic culture is evident in every aspect of our work. Our lawyers are approachable, motivated and proficient in their ability to offer timely and technical advice.


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