Litigation

Am I entitled to a copy of a Will?

At a very emotional time, often there is confusion as to what rights and obligations exist in relation to obtaining a copy of someone’s Will.

Many clients ask us “Am I entitled to a copy of a Will?” or “Do I really need to give them a copy of the Will?

It should go without saying that no-one is entitled to see the Will of a person who is still alive! After death however, the Succession Act 2006 (NSW) provides that any person who has possession or control of a Will of a deceased person must allow any one or more of the following persons to inspect or to be given copies of the will (at their own expense):

“(a) any person named or referred to in the Will, whether as a beneficiary or not,
(b) any person named or referred to in an earlier Will as a beneficiary of the deceased person,
(c) the surviving spouse, de facto partner or issue of the deceased person,
(d) a parent or guardian of the deceased person,
(e) any person who would be entitled to a share of the estate of the deceased person if the deceased person had died intestate,
(f) any parent or guardian of a minor referred to in the Will or who would be entitled to a share of the estate of the testator if the testator had died intestate,
(g) any person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person,
(h) any person committed with the management of the deceased person’s estate under the NSW Trustee and Guardian Act 2009 immediately before the death of the deceased person,
(i) any attorney under an enduring power of attorney made by the deceased person,
(j) any person belonging to a class of persons prescribed by the Regulations.”

As you can see:

  • there are a number of persons that have a right to a inspect or to be given a copy of the Will; and
  • the executor or person with possession or control of a Will (which could include a lawyer or firm that holds it in safe custody) have an obligation to provide a copy on request.

Of course, there needs to be proof provided that the person who made the Will has in fact died – ie, provide the death certificate (which usually happens via the executor or next of kin).

The purpose of this access to the Will is partly to allow an persons with a claim on a deceased estate to know if they have been provided for in the Will, that it is the deceased person’s latest Will and who the executor is.

There is sometimes also confusion as to the effect of clauses in Wills that provide for the appointment of a particular person or firm as the estate’s lawyers for the purposes of obtaining probate. The executor is free to choose whichever lawyer or firm they wish to act for them in obtaining probate and assisting with the administration of a deceased estate.

The Probate and Administration Act 1898 provides that the Will of the deceased, once admitted to probate, is a public document and that anybody is entitled to apply for a copy of it from the Supreme Court of New South Wales  (and paying the relevant fee) however, it is generally best to contact the person in possession of the document for a copy, before approaching the Supreme Court.

FURTHER INFORMATION

For further information in relation to Wills, Probate, estate planning or even International Wills, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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Coronavirus: JobKeeper subsidy

Further to our COVID-19 blogs on employee standdowns and negotiating changes to commercial leases but in this post, the Government on 30 March 2020 announced a $130 billion JobKeeper payment system to help keep more Australians in jobs and support businesses affected by the significant economic impact caused by the Coronavirus. Those workers that are covered by the scheme will receive a fortnightly payment of $1,500 (before tax) through their employer. Employers are to pay their employees and then get reimbursed by the Government later.

The payment is intended to ensure that eligible employers remain connected to their workforce so that businesses are in a position to restart quickly when the pandemic is over.

To get the payments, employers must be eligible and the employees must be eligible.

If your business has been significantly impacted by the Coronavirus (generally able to show a 30% decline in turnover in the relevant month or quarter relative to a year earlier), the business will be able to access a wages subsidy for a maximum of 6 months to assist you to continue paying its employees.

Eligible employees are those who:

  • are currently employed by the eligible employer (including those stood down or re-hired);
  • were employed by the employer at 1 March 2020;
  • are full-time, part-time or a casual employed on a regular basis for longer than 12 months as at 01 March 2020;
  • are at least 16 years of age;
  • are an Australian citizen, the holder of a permanent visa, or a Special Category (Subclass 444) Visa Holder; and
  • are not in receipt of a JobKeeper Payment from another employer.

To register your business’s interest in the JobKeeper system, visit the Australian Taxation Office’s dedicated page.

FURTHER INFORMATION

For further information in relation to legal issues arising from Coronavirus or if you need to discuss how to best deal with employment issues, please contact us on (02) 9521 2455 or email help@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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Coronavirus – Negotiating changes to commercial leases

Any businesses that are experiencing a downturn as a result of the current economic crisis that has come as a result of the Coronavirus pandemic will know that one of the largest expenses, apart from that of staff, is its leasing of premises. We have another article on options for employers including standing down its workforce.

The Government has introduced a range of measures to assist businesses and employees with the ongoing payment of wages with the JobKeeper program and the National Cabinet has agreed to implement a moratorium on the eviction of commercial and residential tenants for 6 months. This will be implemented by the States and Territories.

The Government has suggested that commercial leasing arrangements are a matter that ought to be discussed and agreed between lessors and lessees as it is a very complicated area of law that affects businesses from sole traders to multinational corporations. There are many advantages of having these discussions, rather than seeking to strictly enforce the terms of the previously agreed leases, including:

  • The lessor can retain the lessee in the premises – this will be important for them after the pandemic ends
  • The lessee will need to continue trading from the premises – either during the pandemic and/or after the restrictions on movement are relaxed.
  • The lessor may have mortgage repayment obligations to its bank and will need some level of cashflow to assist it to do this

Any  discussions between lessors and lessees should, in the first instance, be informal and without prejudice to the written lease obligations.

There is a moratorium on evictions, but there’s not a moratorium on the requirement to pay rents. Landlords/Lessors and tenants/lessees not significantly affected by COVID-19 are expected to honour their lease and rental agreements.

Every business and each premises is different so there is no ‘one size fits all’ answer but points for negotiation could include:

  • changing the amount of rent to be paid for a period (say a reduction in rent of 25% for 6 months)
  • a rent free period or a reduced rent period (for example 3 months of no rent payable)
  • a delay in payment of the rent (same rent is payable but the obligation to pay is deferred to a later time).
  • extension of the term of the lease to accommodate any rental concessions

Any agreement that may be reached should be documented in writing and signed, and it may be that the lease if registered will also need to have any changed also registered on title.

There may be situations where no negotiated solution will work and parties may need to rely on dispute resolution procedures either now or at the end of the moratorium period, noting that the moratorium does not relieve a lessee from the obligations under the Lease, just that they cannot have the lease terminated during the moratorium period.

FURTHER INFORMATION

For further information in relation to legal issues arising from Coronavirus or if you need to discuss negotiating changes to commercial leases or licensing arrangements, please contact us on (02) 9521 2455 or email help@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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Coronavirus: Employees and standdowns

Many businesses are struggling at present with the turndown in sales that are a consequence of the Government’s social distancing rules to help slow down the spread of COVID-19. Those businesses are seeking to minimise costs so as to be able to survive until the Coronavirus heath crisis ends, which appears to be at least 6 months away.

The 2 biggest expenses in business are generally rent and employee/payroll. In another blog post, we discuss how lessors and lessees can negotiate mutually beneficial but generally temporary changes to their commercial leases but in this post, we discuss employee issues.

Options for employers

It is always an option for employers and employees to agree on things such as:

  • working remotely;
  • reduced hours;
  • reduced pay; or
  • taking leave (either accrued or in advance).

Where a business is unable to agree with their staff as to such matters, or if the business needs to significantly and quickly reduce costs or go into hibernation and not just change the way it goes about its business, the first point of reference in relation to the employer/employee relationship is the Employment Contract, followed by any relevant Award. If an Enterprise Bargaining Agreement or EBA applies, then that is the place to look.

Casuals and those on probation are unfortunately the first to be let go as employers seek to minimise costs. This article assumes full time or part time employment.

Often, employment contracts have provisions that allow for the standing down of employees where there is not enough work to keep them engaged.

Assuming there is such a right, then if there is work they can do (even if not their normal role), they can be redeployed but if not, the standdown option generally would be available.

Standdowns are periods where the employment relationship is still in place but there is no payment made by the employer.

So as to keep paying employees at such a time when a standdown is warranted, a business could for example give notice of a requirement to take any accrued annual leave and possibly accrued long service leave. Taking leave in advance is also an option but it does not assist the business as it is still incurring the wage costs and the employees are then in debt to their employer for leave taken but not yet earned.

A benefit to the business of paying out leave entitlements is that this also reduces the businesses’ leave liability in its books (and the benefit to the employee is still getting paid). Note that the payment of leave loading (if leave loading is required by any Award or agreement) is also required when leave is being taken. There is generally no such payment of loading if leave is taken in advance).

Employment contracts or Awards may provided for a period of notice for a standdown but in the absence of that, reasonable notice should suffice.

Where it is not covered in any other document, s.524 of the Fair Work Act 2009 (Cth) can apply. It provides:

(1)  An employer may … stand down an employee during a period in which the employee cannot usefully be employed because of one of the following circumstances:

 …

(c)  a stoppage of work for any cause for which the employer cannot reasonably be held responsible.

Where an employer simply faces a reduction in trade volumes or where it is merely uneconomical to continue to employ staff, it can be a grey area as to whether this is considered a “stoppage” of work for the purposes of the legislation however, where an industry has been shut down as a result of a ministerial direction or public health orders, it will generally be uncontested.

Whilst on stand down:

  • annual leave, personal leave and long service continue to accrue;
  • employees can access personal and carer’s leave (provided they comply with notice and evidence requirements); and
  • employees must be paid for public holidays where it would ordinarily fall on a day they have been stood down.

The main thing to note is that on a standdown, the employees are not being terminated or made redundant – the role is still there, just they can’t be usefully engaged. It may be that termination or redundancy is still an option but it is generally a last resort.

NOTE: Since this blogpost, the Government has announced the JobKeeper subsidy.

FURTHER INFORMATION

For further information in relation to legal issues arising from Coronavirus or if you need to discuss how to best deal with employment issues in light of the current health crisis, please contact us on (02) 9521 2455 or email help@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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COVID-19: McKillop Legal remains open for business

McKillop Legal remains open for business and is fully operational despite the significant and unprecedented challenges facing our families, the Australian economy and our way of life as a result of the Coronavirus/COVID-19 pandemic.

We remain open for business and available to provide advice either by telephone, email or other services (and, if necessary, in person, abiding by the Government’s social distancing guidelines).

Our staff all have the ability to work remotely from home or in other places using our secure technology infrastructure and systems.

If you or your business has any legal issue it requires assistance with, whether relating to your rights or responsibilities relating to business, shutdowns or employment in relation to the pandemic or in relation to other matters, please call or email us and we will be in touch promptly.

Take care.

What does “Without Prejudice” mean?

Have you ever received a letter or email with the words “without prejudice” or “without prejudice except as to costs” on it? Perhaps your lawyer has sent one on your behalf? Do you even know what it means?

It is advantageous for parties to try to resolve that dispute prior to incurring the significant costs and taking on the substantial risks that are involved with litigation. In having those settlement discussions or in making offers of settlement, parties may be disinclined to make admissions or concessions for fear that they may be used against them by the other party. This is where the concept of “without prejudice’ helps.

Without prejudice” is a common law concept (now covered by statute since the Evidence Act 1995 (Cth) (the Act) was enacted) that communications marked as being “without prejudice” cannot be used by the other party as evidence in Court. This means that parties can speak openly about the matters in dispute without the risk of the other party using that offer against them later.

If you do want to be able to use the communications, you would not mark them as being “without prejudice” – you would want them to remain “open”.

So why the “except as to costs” or “save as to costs” part? Well, the privilege afforded by s131 of the Act that the communications cannot be placed into evidence does not apply to when the Court has to determine who is responsible for the costs of the litigation (ie, after the dispute has been resolved or determined by the court when entering a judgment).

In addition to these “without prejudice” communications, the various Courts have their own rules that provide for formal Offers of Compromise and the like and that govern the effect of not accepting an offer that you otherwise ought to have (the idea being to seek to have the parties really turn their mind to settling, and not wasting their own, the other party’s and the Court’s time and resources).

Ordinarily in litigation, the rule is that the losing party pays the winning party’s costs. The rules operate to change that where formal offers have been made and not accepted.

As an overly simple scenario by way of example, if an offer was made by Party A that Party B did not accept and at the hearing, Party A received a judgment for an amount equal to better than their offer, Party B can be penalized in the form of a costs order for the failure to accept that offer.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal.

For further information in relation to any legal dispute or litigation matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice.  Please contact McKillop Legal to discuss your needs.

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What is client legal privilege?

Client legal privilege, also known as “legal professional privilege” is a fundamental common law concept now covered by the Evidence Act 1995 (Cth) (the Act) that protects the confidentiality of certain confidential communications made between a lawyer and the lawyer’s client.

The rationale for the privilege was to enhance the administration of justice and the proper conduct of litigation by promoting candid and honest disclosure between clients and their lawyers to enable lawyers to give proper advice and representation to their clients. We live in a complex society and our laws and legal system are at times very complicated so obtaining advice is to be encouraged.

Client legal privilege applies to confidential lawyer/client communications or even confidential communications between 2 or more lawyers acting for the client (whether oral or in writing and whether prepared by the lawyer or the client) where the dominant purpose of the communication is:

  • seeking or providing legal advice (“advice privilege” – s.118 of the Act); or
  • in relation to existing or anticipated legal proceedings (“litigation privilege” – s.119 of the Act)

The communication must have been made confidentially to attract privilege. Where a communication is made in front of a third party, privilege will likely not apply.

Privilege can attach to communications between an in-house lawyer and their employer, provided that the communication is made in confidence and the lawyer is acting in their professional capacity.

It is called “client legal privilege” because the privilege belongs to the client and not the client’s lawyer. A lawyer may only disclose privileged communications if clearly instructed to do so by a client.

How is the privilege waived or lost?

Client legal privilege may be waived by doing some act inconsistent with the confidentiality that the privilege is intended to protect, such as

  • knowingly and voluntarily disclosing the substance of the evidence to another person; or
  • the substance of the evidence has been disclosed with the express or implied consent of the client.

The litigation arm of the privilege can also attach to third parties such as experts however, where a party seeks to rely on an expert report in litigation, this will waive privilege over the instructions given and the documents referred to or relied upon within the expert’s report.

Privilege does not apply to communications made for the purpose of facilitating illegal or improper purposes. There are also some statutory exclusions to client legal privilege such as in relation to the investigative and regulatory powers of some Commonwealth agencies.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal.

For further information in relation to any legal dispute, litigation matter or any business or commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice.  Please contact McKillop Legal to discuss your needs.

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Creditor’s Statutory Demand

If you or your business are owed a debt by an Australian company that is not disputed, then there can be a relatively simple, yet effective way of obtaining payment in as little as 3 weeks.

The Corporations Act 2001 (Cth) provides for the issue of a document called a “creditor’s statutory demand” to any company that owes a debt greater than the prescribed amount (which is presently $2,000).

The process is basically that the demand is served and then you wait.

Statutory demands must be in the prescribed form, detail the debt due, be signed by or on behalf of the creditor and be properly served on the company. Where the debt is not a judgment debt, an affidavit is also required to be signed, certifying that the debt is due and payable.

The Act provides where the demand is served and not complied with within 21 days, the company is presumed to be insolvent and is liable to be wound up. Compliance with the demand is achieved by either paying the debt due or coming to an arrangement satisfactory to the creditor in relation to payment of the debt within that 21 day period.

The presumption of insolvency lasts for 3 months after the 21 day period expires. Any proceedings to wind up the company on the basis that it is insolvent must be commenced within that period.

Creditor’s statutory demands may only be set aside by the Court on certain grounds and applications to do so must be both filed with the Court and served on the creditor that issued the demand within that 21 day period. Grounds for setting aside the demands are limited and include where there is a defect in the demand, where the amount owed is less than the prescribed amount or where there is a dispute as to the existence and/or amount of the debt claimed. None of these grounds may be relied on to oppose a demand after the 21 day period.

Where the debt is disputed, the service of a creditor’s statutory demand is not the appropriate way to obtain payment however, there are other methods available.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to debt recovery, company issues or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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What is an indemnity clause?

WHAT IS AN INDEMNITY CLAUSE?

An indemnity clause is a common clause in contracts, whether for the supply of goods, terms and conditions of the provision of services, leasing of assets or the sale of property.

The indemnity is intended to assign responsibility for risks in performing the contract to a particular party – it either confirms or alters the position at common law which would otherwise apply to determine responsibility for such events.

COMMON EXAMPLES

When drafting an indemnity, the nature and types of losses that may arise need to be considered.

Common areas that you may want an indemnity clause or limitation of liability cause to cover may include: negligence; injury to or the death of any person; loss of or damage to property; infringement of third party rights, such as intellectual property rights; duties and taxes; and legal costs and disbursements.

REMOTENESS & REASONABLE FORSEEABILITY

The common law (extending back to the 1854 case of Hadley v Baxendale) basically provides that if a head of damage wasn’t contemplated by the parties at the time of contracting (wasn’t reasonably foreseeable) or didn’t arise naturally arises from the breach according the usual course of thing (is too remote) – it may not be a recoverable loss.

Accordingly, if the damages that you may want the other party to wish the other party to bear on the occurrence of a certain event are considered remote, then they would probably not be recoverable at common law and therefore, you may wish to specifically provide for them in the clause.

The other party may not agree, so the negotiation would then begin and the parties will ultimately have to agree on what is a reasonable compromise in the circumstances.

DRAFTING THE INDEMNITY

Commonly, indemnity clauses are drafted such that where a right to indemnity arises, the liability reduced to the extent that the party benefited by the clause caused or contributed to the loss, that is reduced proportionally.

The extreme in indemnity clauses is where the liable party is liable absolutely (ie, there is no carve out to reduce the liability proportionally). This type of clause, given its strict nature, is usually only agreed to where the event is wholly within the control of the indemnifying party.

INSURANCE COVERAGE

Just as the strength of a personal guarantee is in the financial standing of the guarantor, you also need to be satisfied that the party providing the indemnity has the means to meet any claim if called upon. Often, a party is required to have insurance to support any indemnity but they fail to investigate the extent of their cover and are often not insured at all.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to any contract negotiation, agreement drafting issue commercial dispute, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.

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How does jury service work?

Jury service plays an important role in our justice system. Juries are used to ensure that legal verdicts are impartial and in line with community standards of behaviour.


The jury system in New South Wales is administered by the Jury Services Branch of the Office of the Sheriff of New South Wales, operating in accordance with the Jury Act 1977 and the Jury Amendment Act 2010.

WHAT DOES A JURY DO?

Juries are used in the District and Supreme Courts of New South Wales to:
  • hear and determine more serious criminal matters
  • hear and determine civil matters involving large monetary claims
  • participate in coronial inquests in the New South Wales Coroner’s Court.

In criminal trials, a jury hears evidence, applies the law as directed by the judge, and decides if a person is guilty or not guilty of a crime, based on the facts. A jury does not participate in the sentencing process.


In most criminal trials, 12 people are selected to be on the jury. Up to 15 jurors can be empanelled if a trial is expected to last longer than 3 months. To be ‘empanelled’ means to be chosen for a specific trial.

Civil trials which require juries are usually defamation proceedings. The trial judge will outline the issues the jury needs to consider to decide who is at fault. A civil trial jury is typically comprised of 4 jurors however, in the Supreme Court, 12 jurors may be ordered.

HOW IS A JURY SELECTED?

There are 3 steps to jury selection:
  1. Inclusion on the jury roll
  2. Receiving a jury summons
  3. Jury selection and empanelling

People who sit as jurors in a particular trial have gone through all 3 steps.

Each year, the names of around 200,000 potential jurors are randomly selected from the New South Wales Electoral Roll (the list of registered voters) and included on a jury roll. Notices of Inclusion are sent out to tell people they are on the jury roll. This is a list of people who could be selected for jury service in the next 12 months.

Approximately 150,000 people on the roll are sent a jury summons notice at some point in the year. This notice requires them to come to court, where they may be selected as a juror for a specific trial.

Out of these, only about 9,000 people a year are selected to serve on jury panels for specific trials. They are then empanelled as jurors.

You can ask to be excused from jury service for various reasons, including the kind of work you do, personal circumstances or because you are away from the state.

There are several categories of people that are excluded from being on a jury (such as lawyers, judges, members of parliament, policemen etc) and others who may be exempted from being on a jury (such as doctors, firemen, members of the clergy, the ill and those who have been on a jury in the last 3 years etc).

DO YOU GET PAID?

If you are selected as a juror, you will get paid an allowance for attending (only if for more than half a day) plus a travel allowance. This is intended to reduce any financial hardship you may incur by serving as a juror, but is not intended to be equal to your normal wage or salary payment – it is effectively a public service obligation on all citizens of New South Wales.

The amount you are paid depends on the length of the trial and whether you are currently employed or not employed. People who are not employed include carers, stay at home parents, retirees and unemployed people.

The present entitlement are:

The travel allowance is calculated on the distance from your postcode to the courthouse and is presently paid at the rate of 30.7c/Km.

Allowances are paid weekly by electronic funds transfers to your nominated bank account. You will be given details to log onto juror.nsw.gov.au and enter your bank account details prior to your court attendance.

WHAT ABOUT EMPLOYERS?

The allowance paid to jurors is not intended to be a substitute for a salary or wage.

Under the Fair Work Act 2009, an employer is required to pay full-time or part-time staff for the first 10 days of jury service.

Employers cannot:
  • force employees to take own leave, such as recreation or sick leave, while doing jury service;
  • dismiss, injure or alter their employees position for doing jury service;
  • ask employees to work on any day that they are serving as jurors; or
  • ask employees to do additional hours or work to make up for time that they missed as a result of jury service.

 

FURTHER INFORMATION
Craig Pryor  is principal solicitor at McKillop Legal. For further information in relation to jury duty or any court/litigation related matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.
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