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  • grandchild b & w

    I'm a survivor

    When drafting your Will it is important to be aware that many words do not carry what would seem to be their everyday meaning. If a document could have a side-view mirror it would read: “Warning: words in Will carry greater legal baggage than appears.”

    Take the word “survive.” If you leave something in your Will to grandchildren who “survive” you, what do you mean? Do you intend to benefit only those grandchildren who were born during your lifetime? Or do you intend to benefit all the children your children may have, even if they were born after your death?

    There have been cases that have turned on just this question. Lawyers and judges alike have debated the sense in which “survive” should be construed, calling on dictionaries, Shakespeare, and “intuition” in the process. Overwhelmingly, the interpretation has been this: to “survive” is to “outlive” – someone survives you if they live both during and after your lifetime.

    It is an interpretation that is not without a catch, or two (or three). One such catch is known as the 30-day rule.[i] It applies in all Australian jurisdictions, and it means that even if a beneficiary survives you, they are presumed to have died before you unless they lived for a full 30 days after your death.

    Another catch in the word “survive” could be that you unwittingly enable impatient beneficiaries to access their inheritance earlier than you wanted them to. Imagine you leave your estate to your two children, Bill and Ben, provided they attain the age of 30. If either die before you, you leave everything to any children that they have “who survive [you].” This means that if you die and Bill and Ben have no children, there are never going to be any grandchildren who could be considered to “survive” you. There is no-one else your estate could possibly go to except for Bill and Ben. So, Bill and Ben say, “why can’t we take the money now? Why should we have to wait til we’re 30?” From a legal perspective, it is a good question.

    Finally, does a child “survive” you if they were not yet born but were conceived and anticipated while you were alive?[ii] What about frozen embryos that are created during your lifetime but only implanted and carried to term after your death?[iii] The normal meaning of the word “survive” does not adequately cover these cases and therefore may not align with your intentions.

    To survive is not merely to live after, and it is not merely to outlive: terms and conditions attach.

    Ultimately, the best way to guard against your testamentary intentions being misconstrued is to seek the advice of specialised estate planners who are aware of these language minefields and can navigate the drafting of your Will through them.

    [i] See, for example, Wills Act 1968 (ACT), section 31C.

    [ii] See, for example, Knight v Knight (1912) 14 CLR 86.

    [iii] See, for example, Krstic v State Trustees Ltd [2012] VSC 344.

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  • Winding Road b & w

    Another twist in the road: the latest case on the standard instrument savings clause 1.8A

    The recent NSW Court of Appeal decision in De Angelis v Wingecarribee Shire Council [2016] NSWCA189 has significant implications for development applications which are made but not determined before an amendment to a Local Environmental Plan (LEP) comes into force.

    In De Angelis v Wingecarribee Shire Council [2016] NSWLEC 1, a case decided by the Land and Environment Court in February this year, the Court found that the standard instrument savings provision, clause 1.8A, applied to an application which was made but not determined before an amendment to the Wingecarribee LEP commenced. In this case Wingecarribee Shire Council delayed determining a development application it had received for mixed use development and amended its LEP by rezoning the land the subject of the application so that the proposed development was prohibited rather than permissible with consent. When the deemed refusal of the application came before the Court the Council asserted that the Court had no power to grant consent to the application on the basis that the development was prohibited by the amended LEP. The Land and Environment Court did not agree and applied clause 1.8A to ‘save’ the operation of the unamended LEP. The Court’s interpretation would then have enabled it to go on to determine the development application on its merits and did not require the application to be refused.

    However, the application of clause 1.8A in this context was comprehensively rejected by the Court of Appeal. The Court of Appeal found that clause 1.8A only applied to development applications which were made before the commencement of an original LEP and did not ‘save’ development applications which were made but not determined before an amendment to a LEP came into force.  The Court noted that savings provisions are generally not ambulatory in their operation, but instead deal with a precise point in time, being when the new legal instrument commences.  In the words of the Court, to give clause 1.8A any additional operation is ‘inconsistent with its purpose, as well as its language’.  It followed that, in this case, clause 1.8A did not apply and the proposed development was prohibited by the time the matter came to be determined by the Court.

    The Court of Appeal’s decision has two key implications:

    1. LEP amendments can provide an effective tool for a Council to block an application for development which it considers undesirable, even after a development application has been received; and
    2. Where a Council wishes to limit the application of a LEP amendment to new development applications then the amending LEP needs to include its own savings clause.


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  • working with friends

    Working With Friends: A complimentary dish or a recipe for disaster

    A married couple have been ordered to pay more than $1.1 million in damages to a friend who fell from a ladder while working with friends on their roof.

    The accident occurred after the couple engaged their friend as a paid contractor to replace the roof of their home.  The husband provided and erected the ladder in the “A position” in front of the carport roof.  The top of the ladder was about 40cms lower than the roofline.  Their friend fell from the ladder while descending it frontwards, hitting his head and suffering other injuries.

    In a decision of Hendrex v Keating [2016] Tas SC 20 (13 April 2016), the Tasmanian Supreme Court found that the husband failed to eliminate the foreseeable risk of a person falling from the ladder in failing to erect the ladder in an extended position instead of the A position or secure it with a rope to the carport roof.  The couple breached their duty of care to their injured friend as they had a duty to protect him from harm while travelling up and down from the carport roof; that his capacity to take care for his own safety did not alter this duty; and that the accident was reasonably foreseeable.

    The case is a timely reminder of the problems that a householder can encounter when a group of friends are engaged to work on their home.  Here, the husband arranged to pay the friend for his work; the other friends volunteered to work without payment.  The husband provided a ladder and was present at all times controlling the work project.

    There was a finding of contributory negligence against the friend as he increased the level of danger to himself by using the ladder when it was not in the extended position, using the ladder when it was not secured, and coming down the ladder frontwards with nothing to hold onto.  The Court considered that the friend’s negligence was greater than the husband’s and the damages ($2.6 million) were reduced by 60% because of contributory negligence.  The Court regarded the friend as an experienced tradesman working irregularly, mainly doing tiling and roofing work and was engaged, at the time of the accident, as an independent contractor.

    It is important that a householder is aware of the liability risks when friends are engaged to perform work on their home.  The householder should always consider the risks associated with the work when making decisions about who will undertake the work.  A risk assessment should be conducted in relation to all facets of a work project so a decision can be made whether to engage experienced or licensed professionals to undertake specific work.  Only involve friends if the overall health and safety risk is very low and, if in doubt, always seek assistance from a licensed professional.  When you engage a tradesman, your home should become their workplace.  These tradesmen should provide their equipment to perform the work and be responsible for their own occupational health and safety issues.

    If you engage a domestic worker such as gardener or cleaner, you could be liable to pay compensation if they are injured.  While your home and contents insurance may have public liability cover, this does not necessarily mean that this will include cover should a worker be injured on your property.

    This is because public liability insurance does not normally apply if the person injured is considered an “employee” under the terms of the policy or generally at law.  It does not matter if you believed you had engaged your gardener or cleaner as an independent contractor and not as an employee – if the terms and conditions of their engagement indicate that they are an “employee” at law, then they will be entitled to bring a workers’ compensation claim and possibly sue for common law damages for their injury.

    Although there is no national code for workers compensation, each state and territory has a Fund that will meet such claims under workers’ compensation legislation.  The Fund will have the right to seek recovery of those claim costs from you, having a devastating impact on you and your family.

    There are three key factors to be considered, although individually each one would not be definitive:

    • Is the individual under your direction and control? Do they come every week at a set time and do what you tell them to do?  Do you supply the tools and products when performing the work?  If this is the case, they may be deemed an employee.
    • Do they work for half a dozen other people in a similar capacity? If so, then they may be more likely to be an independent contractor.
    • How are they paid? If it is by the hour, there is a higher possibility they fall into the employee category.  If they are paid by the job, they may be more likely deemed a contractor.

    As a contractor, the onus is on this individual to have insurance, although if you were found to be negligent, then you might want to have extra cover to protect yourself against this risk.

    If you are planning on having a worker on your property to undertake some work, then in the first instance you should ask them whether they have their own insurance – ask to see proof.  The insurance should cover:

    • any bodily injury or property damage that the worker causes to you, your family, and your property;
    • workers compensation for injuries the individual cause to themselves;
    • accidents involving the worker’s own equipment, such as falling off a ladder (a worker using your ladder could claim it was your faulty equipment, not their clumsiness, leading to an insurance battle and a law suit. The bottom line…don’t provide the worker with anything more dangerous than a pencil).

    It can be expensive for a worker to obtain this contractor liability insurance – this will be reflected in the invoice for their work.  If an uninsured worker hurts themself on your property, you’ll find a lawyer’s hand in your pocket pretty quickly.

    While it may not be necessary for you to take out insurance to cover domestic help in your home, it is certainly worth your while to check the policy.  If you are uncertain, you should approach your insurer to see if you are covered through your home and contents insurance policy.

    Remember that insurance is an essential protection.

    Written by Bill McCarthy, Special Counsel, Insurance. To learn more about liability for working with friends, contact us.

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  • will and estate planning

    Salvation Army Wills Day

    This month, the Estates team donated their time and expertise to the Salvation Army Wills Day.

    The Wills Day has been initiated by The Salvation Army to help relieve some of the confusion and anxiety associated with making Wills, while raising funds for their extensive work with the needy.

    For recognition of their pro-bono work, the team were awarded a certificate of thanks.

    Salvation Army Wills Day

    To see more of the great work the Salvation Army does, or to see dates and locations for their upcoming will days, see their website.

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  • Shareholders meetings – where the majority rules

    Shareholders meetings – where the majority rules

    Directors are not the only decision makers regarding the operation and direction of a company’s business; shareholders also have a lot of power. By being entitled to vote on key resolution affecting the company’s future, its directors and strategic goals, shareholders can be crucial to a company’s success and expansion. Shareholders exercise their powers through general meetings – but who has the right to call these meetings, and what resolutions can be considered by the shareholders?

    Under the Corporations Act 2001 (Cth), such meetings can be called by either a company’s director(s) or its member(s), where the shareholders hold at least 5% of the eligible votes and make the appropriate meeting request to the directors.

    Before a meeting can be held, a notice must be issued to shareholders, detailing the proposed resolutions. Share holders can also propose ordinary resolutions from the floor, if they meet the minimum threshold requirements (5% or 100 members). Ordinary resolutions require 50% majority support to be adopted. Generally, these resolutions relate to the day to-day business of the company, such as the appointment of directors or auditors. Special resolutions require a higher threshold of 75% support which is reflective of their importance.

    Generally share holders cannot overrule a Board decision, but in extreme circumstances they can apply to a Court to prevent the Board from carrying out a decision if deemed ‘oppressive conduct’. This occurs where the conduct of the company’s affairs is either:

    1. contrary to the interests of the members as a whole; or
    2. oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member.

    Read More.

    First published in B2B Magazine.

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  • Australian Employment Contract

    Australian Employment Contracts: The good, the bad & the uncertain

    “The law concerning the duty of good faith, if any, in employment contracts is currently in a state of flux, just as it is in the law of contracts generally.” — Mark Irving

    In 2012, barrister Mark Irving commenced the section on good faith in employment contracts in his text with that pithy summary of the uncertain legal position. He continued: “The following description of the law will be completely outdated once the High Court has resolved these issues.”

    When Mr Irving appeared before  Australia’s apex judiciary two years later, for the respondent in Commonwealth Bank of Australia v Barker, he must have wondered whether those words would prove prophetic.

    Unfortunately for Australian employment lawyers, the occasion has not yet arisen for Mr Irving to wholly revise his consideration of the implied term of good faith. While the High Court in Barker definitively rejected the implication of a term of mutual trust and confidence in employment contracts, they refused to consider its ‘sibling’, good faith.

    The plurality of French CJ, Bell and Keane JJ observed: “The above conclusion [regarding mutual trust and confidence] should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts. Nor does it reflect upon the related question whether contractual powers and discretions may be limited by good faith and rationality requirements analogous to those applicable in the sphere of public law. Those questions were not before the Court in this appeal.”

    Kiefel J provided a slightly lengthier consideration, pondering that ‘in some legal systems good faith is regarded as a vitally important ingredient for a modern general law of contract … This raises the question how other legal systems cope without it.’

    Yet she too refused to delve further. Despite admitting that the question had not been resolved in Australia, as it was not raised in argument she concluded: “It is therefore neither necessary nor appropriate to discuss good faith further, particularly having regard to the wider importance of the topic.”. Read more.

    Written by John Wilson, Director, Employment & Workplace Relations, and Kieran Pender, Law Clerk.

    First published in Ethos.

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