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.

De facto financial disputes come to the Federal Courts

The latest update from Barry & Nilsson lawyers:


On 25 June 2008 the Family Law Amendment (De Facto Financial and Other Measures) Bill 2008 (the Bill) was introduced to the federal parliament. If passed, the Bill will introduce a number of landmark changes to the Family Law Act 1975 (the Act).

Most notably, the Bill will signal the end of the bifurcated [Barry & Nilsson] system that requires de facto couples to resolve financial disputes in state and territory courts, notwithstanding their ability to [Barry & Nilsson] settle parenting matters in the federal court system.

Participating jurisdictions

New South Wales, Queensland, Tasmania and Victoria have all passed legislation referring power to the Commonwealth. Existing constitutional power enables the Commonwealth to legislate in relation to the Northern Territory and the ACT.

Currently South Australia and Western Australia are not participating jurisdictions, but are in discussions with the Commonwealth regarding their position in relation to the Bill.

Jurisdiction

The legislation will not apply to parties to a de facto relationship that breaks down prior to the commencement of the new provisions. This might mean parties either try and break up earlier or later, depending [Barry & Nilsson] upon the benefits of the change of the legislation. It may also mean that the end point of a relationship may well be a litigation point, depending upon the benefits. It’s important to note in this regard that NSW’s present de facto legislation does not provide for “section 75(2) factor” considerations (unlike Part 19 of the Property Law Act 1974).

Applications for maintenance, declarations of property interests or property settlement must be made within two years of the breakdown of the relationship.

There are also threshold tests similar to those in present de facto legislation going to the status of the relationship.

Substantive Provisions

The law is designed to mirror existing financial provisions for married couples. As a result, all relationship [Barry & Nilsson] property settlements will be determined is much the same way and the old distinctions as to the status of a relationship (or the parties to them i.e. same sex couples) are designed to be eliminated. Lawyers will be able to provide greater certainty to clients given that all property settlements will be dealt with by either the Family Court or the FMC, courts specifically tasked with that jurisdiction.

For more information contact Barry & Nilsson

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:

Barry & Nilsson on Eons
Barry Nilsson on Vox
Barry & Nilsson Lawyers on Digg

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