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15/06/2024

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13/02/2022

Two important High Court rulings on the difference between an employee and an independent contractor were handed down this week.
The first, ZG Operations Australia Pty Ltd v Jamsek, emphasised the written terms of the contracts the 'employees' signed with the company, rather than the "substance and reality" of their daily work routine, and it was held that the 'employees' were in fact contractors. In summary, "If you've undertaken to do some work on the basis of a comprehensive set of written terms, it's those terms which will be the basis for determining whether or not you're an employee or an independent contractor, not the reality of your working arrangements". This is a change from previous Court decisions.
However, the second, namely Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd, which involved a 22-year old British backpacker, held that the 'employee' was an employee and entitled to Award rates of pay, because the employer was entitled to control who the man worked for and that, once the man was assigned to a client, he had to do what the client told him to do.
These decisions will have far-reaching implications. Read more:

The High Court says written contracts are crucial to determining whether you are an employee or an independent contractor.

10/06/2021

The recent decision of the England and Wales Court of Appeal in Berkeley Square Holdings Ltd & Ors v Lancer Property Asset Management Ltd & Ors [2021] EWCA Civ 551 is a reminder that ‘without prejudice’ communications during mediation are not necessarily protected from later use by either or both of the parties. It was affirmed that parties to ‘without prejudice’ ADR are permitted to adduce evidence from this process to prove misrepresentation, fraud or undue influence on the part of the other party. For more information, see https://www.lexology.com/library/detail.aspx?g=3978d05d-6cee-453d-8aae-83bb4cae9dde&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2021-06-10&utm_term=

03/06/2021

Some interesting articles recently in relation to one of the more common taks of a smaller practice - Recovering a Debt including Letters of Demand. For anyone running a business (including solicitors!) it is a fact of life that sometimes people don't (or can't) pay...
Broadly, Solicitors' Conduct Rules (although not strictlyin force in WA, they still guide practice here) provide that letter of demand cannot:
- include any statements that grossly exceed the legitimate assertion of the rights and entitlements of the solicitor's client, and which misleads or intimidates another person;
- threaten the institution of criminal or disciplinary proceedings against the other person if a civil liability to the solicitor's client is not satisfied.
- use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.
The same restrictions as apply to debt collectors also should be followed in legal correspondence, namely:
- If something is only a possible consequence of not paying a debt, ensure no impression that it is a definite consequence;
- Before asserting the right to payment of administrative and/or legal costs on top of a debt amount, ensure the client has a legal entitlement to claim this amount;
- Ensure no impression that debt collection letters and notices are documents that have been or are able to be filed with a Court.

In such correspondence it can particular wise to not the obiter in SIMIC & NORTON[2017] FamCA 1007 at [19-20]:
'Solicitors are not employed to act as ‘postman’ to vent the anger and vitriol of their clients.... The solicitors are professional legal practitioners and charge significant hourly rates for their time and skills. To that end, they must ensure that correspondence and communication is necessary, balanced, considered and relevant.'

More information here: https://www.mondaq.com/australia/court-procedure/1075002/chasing-debtors--the-solicitors-letter-of-demand?email_access=on

If a letter of demand does not work, there are many option s to proceed. If the debtor is a company, a statutory deman can be used.
A statutory demand is a demand made to a company by a creditor under Section 459E of the Corporations Act, which if not paid or set aisde, can result in a company being wound up. It can be made by a person who is owed a debt, or more than one debt, totaling more than the statutory minimum, which, from 1 July 2021, changes to $4,000. More information here:
https://www.lexology.com/library/detail.aspx?g=60c9cd53-f125-41f6-a842-4b1bea618788&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2021-06-03&utm_term=

Legislation, conduct rules and guidelines impact upon what your solicitor can and cannot say in a letter of demand.

17/05/2021

A really thorough and inresting article from Attwood Marshall lawyers came into my inbox today - https://attwoodmarshall.com.au/part-1-will-and-estate-disputes-common-misconceptions/

I think the really important things of note are:
- 'DIY Wills are very rarely made properly.'
- 'all children of the deceased are entitled to make a family provision claim on their parents’ estate.' [so have your Will properly drafted!!]
- 'misconception: I don’t need a Will; my family knows what I want and can sort everything out after I die'

Of course, one misconception perhaps that was missed is that 'my Will from long ago is still valid'. Remember, in WA, if you married or divorced since your Will, you generally have no valid Will.

22/04/2021

Two really interesting articles appearing in Mondaq today -

Firstly, on a topic particularly relevant to disputes in the building industry. The conept of Quantum meruit is a "restitutionary remedy" (i.e. meant to place the builder back in a position where it should have been) if they are not paid. But the concept 'goes both ways': https://www.mondaq.com/australia/contracts-and-commercial-law/1059230/quantum-meruit-does-your-building-contract-still-matter?email_access=on

Secondly, the second part of 'Who gets the superannuation on death?' and the many interesting ways the decision can be challenged:
https://www.mondaq.com/australia/arbitration-dispute-resolution/1058316/2021-update-who-gets-the-superannuation-on-death-part-2?email_access=on

Happy reading!

When does a claim for QM arise? How does it work? Recent case & key takeaways discussed.

19/04/2021

https://www.lexology.com/library/detail.aspx?g=3d30d5a6-78e0-4a85-acfc-

An interesting article today in Lexology with a quick list of circumstances where it is wise to review your Succession Planning (Wills, any Trusts, Enduring Powers etc). There are certainly though, in my view, other circumstances of which you should take heed.

https://www.lexology.com/library/detail.aspx?g=3d30d5a6-78e0-4a85-acfc-aec8e11a6e7b&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Lexology+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2021-04-16&utm_term=

It is always important to keep your estate plan under review to ensure that the plan continues to match your wishes and any changes in the family or…

09/09/2020

An apposite precis about whether your Will should include a testamentary trust - published today on Lexology.

https://www.lexology.com/library/detail.aspx?g=25e45449-f12a-416c-9868-d4ecf888bf24&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Australian+IHL+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-09-09&utm_term=

What are the main benefits of testamentary trusts?

1. protection of the assets in the trust from the risk of the beneficiaries
2. being able to distribute income to children who are under 18 (or for their benefit) at normal adult tax rates.

A good lawyer will consider whether to include a testmentary trust based on the life circumstances of every client.

These are some of the common questions we get asked when preparing a Will and estate plan…

21/08/2020

A very interesting decision recentlty handed down by the Victorian Court of Appeal in relation to Independent Solciitors' Certificates (often known as Guarantors' Certificates).
https://www.lexology.com/library/detail.aspx?g=c788e933-7653-47cb-aeb5-808e66336d24&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=Australian+IHL+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2020-08-21&utm_term=
On appeal, the Court emphasised that a lenders can rely
on certificates of independent legal and financial advice, as evidence that an independent professional has been consulted and as to the truth of those certificates, rather than requiring a lender to make its own inquiries into such matters. In layman's terms, banks can be protected if even their action is 'suspect'. Conversely, borrowers etc may be subject to some 'suspect' loans / agreements which need to be legally reviewed. It is a complex area but that is my brief precis :)

Socrates famously said “to find yourself, think for yourself.” The Victorian Court of Appeal recently disagreed and reasserted the ability of lenders…

10/07/2020

A fascinating article on ABC News online today - How a digital death certificate could help sort out estate and tax matters when you pass.
As stated in the article: 'The long and difficult process of sorting out deceased estates could be made easier by allowing digital "death certificates" — or automatic notification using their Medicare number — which is legally enforceable and shared between all layers of government.'
Obviously, there are privacy concerns but in my view it would make what is often a long, difficult process somewhat easier.

The tax ombudsman suggests the long and difficult process of sorting out deceased estates could be made easier by allowing digital death certificates.