What do Wills, Power of Attorney, Enduring Guardianship and Probate all mean?

Wills and estate planning is a task that can feel overwhelming, especially when we haven’t heard of the terms such as Wills, Power of Attorney, Enduring Guardianship and Probate.  Allow One Law to simplify these tasks and define what each term means:

A Will

A Will is a legal document that formalises your wishes in relation to your assets and possessions. A Will appoints your Executor, who is person responsible for administering the deceased person’s estate, ensuring that any debts are paid, and distributing the remaining assets as detailed in the Will. A Will also appoints your beneficiaries to receive your assets.

Power of Attorney

A Power of Attorney is a legal document providing someone (Attorney) the authority to make legal and financial decisions on your behalf. The Power of Attorney is beneficial if you are travelling overseas or unwell, allowing you to still attend to your matters such as signing documents or dealing with property. There are two types of Power of Attorney:

·General Power of Attorney – assists with decisions to be made on your behalf while you have mental capacity to do so.  It ceases when you lose mental capacity.

·Enduring Power of Attorney – assists with decisions to be made on your behalf, before and after you have lost mental capacity to do so.

Enduring Guardianship

An Enduring Guardianship enables you to designate a trusted individual (Guardian) to make vital decisions about your medical health, dental health and lifestyle. This will only apply once you are unable to make important decisions and will continue as longer you require unless:

·You cancel or revoke it, before you lose mental capacity

·Your guardian resigns or unable to be carry out the role

·Guardianship Division of NSW Civil and Administrative Tribunal (NCAT) or the NSW Supreme Court revokes or changes the appointment.

Probate

Probate is a legal process that validates the Will of a deceased person so that their wishes can be carried out by any executors named in the Will. An application for a Probate or Letters of Administration is made where the deceased person has assets. There are two types of applications you can make to the Supreme Court of NSW:

·Grant of Probate – a legal document that authorises an executor (or executors) to manage and distribute the estate of a deceased person in accordance with the provisions of the deceased’s will; and

·Grant of Letters of Administration – a legal document that authorises an administrator (or administrators) to manage the estate of a deceased person in accordance with the law. This applies where the deceased person did not have a Will.

Call us today on 02 9119 2232 to take advantage of our bundle and senior packages!

Defending Against a De Facto Property Claim

At One Law, we are committed to delivering outstanding legal services and achieving favorable outcomes for our clients. Our client Mark*, found himself facing a challenging legal situation. He was subjected to a de facto property claim by a former partner, who was seeking a substantial property adjustment of over $750,000, along with spousal maintenance. She claimed that they had been in a de facto relationship and therefore had legal grounds for such claims.

Mark* turned to One Law for legal representation and we took immediate action to protect his interests. We carefully examined the facts of the case and crafted a robust defense strategy. We argued that there was no de facto relationship between Mark* and his former partner. Alternatively, we contended that if the Court did find a de facto relationship, it was for a period of less than two years. Under the Family Law Act and based on various other legal reasons, we asserted that she was not entitled to a property claim.

Our dedicated legal team presented Mark’s* case before the Court, tirelessly advocating for his rights and interests. We meticulously demonstrated that the applicant did not meet the threshold requirements for a property claim under the Family Law Act.

As a result of our unwavering efforts and strong legal arguments, the Court concluded that, indeed, a de facto relationship existed but for a duration of less than two years. Consequently, the applicant’s claim was dismissed, and Mark* was not required to make any property adjustment or spousal maintenance payments.

This matter exemplifies our commitment to delivering effective legal solutions and securing favorable outcomes for our clients. We are dedicated to protecting our clients’ rights, whether they are facing complex family law matters or any other legal challenges.

If you or someone you know are experiencing a similar situation, call us on 02 9119 2232. We’re here to provide expert guidance, strong representation and a commitment to achieving the best possible results for you. Trust One Law to stand by your side in your legal journey!

*Name in the article has been changed to protect the privacy of our client.

Peter’s Road to Recovery

Peter’s* Road to Recovery

In the world of Personal Injury law, every case is unique, presenting its own set of challenges and complexities. At One Law, we are committed to pursuing justice on behalf of our clients, no matter how intricate their cases may be.

Back in 2020, our client, Peter*, an electrical technician started his day as per normal until an unexpected road accident changed his life forever. Peter’s* workday on that particular day seemed like any other. He was on his way to visit one of his regular regional clients, a routine task that had become second nature to him. However, fate had something else in store for him. On this day, Peter* was behind the wheel of a newly modified van – the first of its kind for his company. Little did Peter* know that this seemingly ordinary workday would change the course of his life forever.

As Peter* was driving the van at approximately 100 km/h, tragedy struck! A kangaroo suddenly darted onto the road on the outskirts of Tamworth, leading to a catastrophic collision. The impact was so severe that it caused Peter’s* van to roll over. To make matters worse, his seat belt snapped upon impact, leaving him unconscious and in critical condition. Peter* was rushed to the local hospital with multiple injuries, where he would remain for over two weeks.

Peter’s* injuries were extensive and life-altering. These injuries included a lumbar spine tear, fractures to the spine, and injuries to his right shoulder. In addition to the physical trauma, Peter* also suffered from psychological injuries, including anxiety, depression, and post-traumatic stress disorder.

In cases involving accidents caused by animals, such as kangaroos, establishing liability can be incredibly challenging. However, Peter’s* case took a different turn due to the unique circumstances surrounding the accident. At One Law, we worked tirelessly on behalf of our client, arguing that modifications made to the van by Peter’s* employer played a crucial role in the accident’s occurrence.

Typically, employers are not held responsible for accidents that occur on the open road during the course of employment. Nevertheless, we contended that the modifications made to the van were so substantial that they rendered it dangerous and unstable on the road. The modifications exceeded the vehicle’s weight capacity, and we argued that this excess weight played a pivotal role in causing our client to lose control of the van, ultimately leading to the rollover.

By taking this strategic approach, One Law was able to secure a substantial compensation for Peter*, providing the support he deserves as he embarks on the challenging journey of recovery and rebuilding his life.

At One Law, we are unwavering in our commitment to seeking justice for our clients, no matter the complexity of their matters. Peter’s* matter serves as a stark reminder that in complex situations, the pursuit of justice is essential, and having the right legal team behind you is imperative.

If you or someone you know has been injured, call us on 029119 2232 or click Motor Vehicle Accidents Compensation | Compensation Lawyers Parramatta (onelaw.com.au) to find out more.

*Name in the article has been changed to protect the privacy of our client.

Starting A Business? Here Are 5 Key Considerations.

Starting a Business? Here Are 5 Key Considerations.

Embarking on the journey of opening a new business can be exciting and often daunting. Starting it requires meticulous planning and consideration of various factors, from how you should structure the business all the way through to the lease. Addressing the fundamentals from the get-go can mitigate future challenges and pave the way for a successful business venture. Equip yourself with the right information to make informed decisions that will propel your business towards growth and success.  Here are five key points to consider when starting a business:

1. Business Structure

Decide the nature and type of your business as far as its structure is concerned. For example, will you operate as a sole trader or as a limited liability company – most common and advised for various reasons including tax obligations. Consider the consequences of each structure so you can make an informed choice that suits your business needs and goals. The nature and type of business structure will affect almost every other aspect of your business dealings.

2. Understanding Occupancy Rights

Every business requires a location, and that location will come with its own terms and conditions. It is crucial to carefully examine the lease terms of your chosen premises including the rent, lease duration, and make good obligations that apply at the end of the tenancy. Also, be wary of rent clauses based on turnover, which are particularly common with retail leases in shopping centres, where your rent may be affected by how much you earn.

3. Local Council Approvals

Check to ensure if your chosen business premise is allowed to operate your business type. If not, steps will need to be taken (with the landlord’s help) to lodge DA’s with Council authorising the type of business activity at the premises.

4.  Condition of the Premises

Consider whether the current status of the premises is appropriate for your business needs or whether a refurbishment or alteration works are necessary. If so, you will need to speak to the landlord and come to an agreement about how those works are to be carried out and who is responsible for such costs.

5. Franchise Alternatives

If a similar business model exists, especially in the form of a franchise, explore the possibility of joining the network. It can offer advantages such as an established brand name and customer base, reducing the need for extensive marketing and building brand awareness.

Are you thinking of starting a business?  To find out how One Law can help you, call 02 9119 2232 or contact us through our website Contact Us | One Law Group Parramatta.

Success Story: Swift Resolution for an Injured Worker

In the bustling heart of a renowned shopping centre in 2019, a construction worker, whom we’ll refer to as “John,” was diligently preparing a base for a concrete pour. The task at hand was no small feat. Alongside were three colleagues and they all had the responsibility of maneuvering a heavy steel sheet weighing a staggering 200kgs.

However, the day took a turn for the worse when the steel sheet was incorrectly positioned on the base. To rectify the situation, the team had to lift the sheet to shoulder height and flip it. As they were in the midst of this challenging task, one colleague, unable to bear the weight, unexpectedly released his grip. This sudden shift left only two others, including John, to manage the cumbersome load. The immediate aftermath was a sharp, excruciating pain that radiated through John’s lower back, neck, and elbow.

Fast forward to early 2021, and the repercussions of that fateful day became even more evident. John had to endure two fusion surgeries on his lower back: an initial procedure followed by a revision surgery.

Recognising the gravity of his situation and the potential long-term implications, John sought legal advice. Earlier this year, One Law commenced a Work Injury Damages (WID) claim on John’s behalf after wrapping up his workers compensation permanent impairment claim. Our dedicated team, understanding the urgency and the stakes involved, especially given that John is a father of four, worked diligently on his case. We are proud to report that by mid 2023, after a mediation process, One Law successfully settled the matter. This swift turnaround, achieved in less than 6 months, provided our Client with the financial security he deserved, allowing him to close a painful chapter of his life.

At One Law, we’re committed to ensuring that every client receives the justice and compensation they deserve, especially in challenging times. John’s story is a testament to our dedication and expertise in the field.

If you or someone you know has been injured at work call us on 02 9119 2232 or click Compensation Lawyers | Compensation Lawyers Blacktown | One Law Group to find out more.

5 Things You Should Know When Buying A House

Buying a house is an exciting time full of emotions.  Before you buy a property, here are 5 tips to help with the process:

1. Ensure the Contract for Sale is reviewed, before signing
   • When considering a property ask the agent to provide you with the Contract for Sale of Land (Contract). The Contract is a legal document outlining the terms and conditions of the sale, including the purchase price, inclusions, settlement date and special conditions. It is crucial to thoroughly review the Contract prior to signing. Our expert team of lawyers can help you understand the legal implications of the contract, explain your rights and obligations and suggest any necessary changes or additions to protect your interests.
2. Ensure your finances are in order, prior to bidding at auction
   • When purchasing a property at auction, it’s important to note that there is No Cooling-Off Period. This means that if you are the winning bidder at an auction, you are legally obligated to proceed with the purchase immediately and pay the agreed deposit at the time of signing the Contract. It is imperative to have all your due diligence completed and finances in order before participating in an auction to avoid any legal consequences.
3. Obtain Building and Pest Inspection or Strata Report (for units)
   • A building and pest inspection is a critical step when buying a house, while a strata report is essential when purchasing a unit in a strata-titled building. These inspections assess the property’s structural integrity and identify any potential issues or pest infestations. A thorough inspection report can help you make an informed decision and negotiate repairs or price adjustments if necessary.
4. Obtain Pre-Approval and Unconditional Finance Approval
   • If you require finance to complete your purchase, it’s advisable to obtain pre-approval, prior to attending an auction or signing the Contract. This will help increase your confidence and strengthen your position as a purchaser.
     1. A pre-approval indicates the amount you are eligible to borrow. However, it’s crucial to understand that having pre-approval does not guarantee your loan will be approved.
     2. An unconditional finance approval means your lender has completed their assessment and is ready to fund your purchase. You should work towards obtaining unconditional finance approval before the cooling off period expires.
5. Check your eligibility for Stamp Duty exemption (First Home Buyers Assistance Scheme)
   • Revenue NSW offers stamp duty exemptions or concessions to first-time homebuyers as a form of financial assistance. It’s essential to check if you are eligible for such exemptions under the First Home Buyers Assistance Scheme in your area. To qualify, you typically need to meet specific criteria related to the property’s value, your residency status, and whether you plan to live in the property as your primary residence. We can help you navigate the application process and ensure you take advantage of any available benefits.

Our expert team of lawyers can help you understand the legal implications of the contract, explain your rights and obligations, and suggest any necessary changes or additions to protect your interests.  Let our team of experts take away the stress. Call us on 02 9119 2232 or we can contact you via Contact Us | One Law Group Parramatta.

Varying Final Parenting Orders: The Rule in Rice & Asplund

Family law matters involving children are often complex, overwhelming and emotional. One Law recently represented a father in a case that involved varying final orders to protect the welfare of his young child.

The parties involved had final orders in place since 2019, which allowed for equal time arrangements between the father, the mother, and the child. However, due to growing concerns about the child’s well-being in the mother’s care, the father sought to vary these final orders.

The decision to recommence proceedings was not taken lightly. According to the rules published in the landmark case of Rice & Asplund (1979), final orders can only be varied if there is a significant change in circumstances that warrants a review. In this case, the father had substantial concerns about many things such as, the child being subject to psychological harm in the mothers care, the mothers attitude and lack of care toward the child and the child being exposed to family violence.

The family law team at One Law represented the father at an interim hearing. The objective was to temporarily suspend the existing final orders and reduce the time the child spent with the mother. The Court was satisfied the final orders needed to be varied and agreed with the risks presented to the child. In his judgment, the Senior Judicial Registrar noted:

1. That the child was at risk and exposed to family violence in the Mother’s care;
2. That the mother posed a risk of harm to the child’s psychological wellbeing;
3. That the mother’s attitude towards the wellbeing of the child was concerning; and
4. That the mother failed to adequately address the risk concerns to the child’s physical and psychological wellbeing.

The matter is listed in mid-2024 for a final hearing. One Law will be arguing the Final Order needs to be varied and the mothers time needs to be reduced in a manner that does not expose the child to family violence and significant psychological harm in the mother’s care.

This case serves as a reminder that the child’s best interest is the paramount consideration in family law matters. It also highlights the importance of legal representation in navigating the complex landscape of family law, especially when it comes to varying final orders.

If you find yourself in a similar situation and need legal advice, call us on 02 9119 2232 or jump on https://onelaw.com.au/contact-us/#form and we’ll contact you. Our team of experienced lawyers are here to help you navigate through these challenging times.

Subcontractor ordered to pay liquidated damages to head builder due to delay in completing works

Growthbuilt is a building company who had entered into 4 contracts with various developers for building projects in Surry Hills, Mosman, Balgowlah and Putney.

In turn, Growthbuilt entered into 4 subcontracts with Modern Touch so that they can manufacture, supply and install marble and granite stones for the building projects.

All 4 subcontract were in similar format with difference only in the payment terms, site address, date of commencement, liquidated damages etc

On 30 August 2016, GB terminated each of the subcontracts for the reason that Modern had failed to complete the subcontract works on time. Commencing by way of summons, GB sought to recover from Modern:

• Liquated damages under each of the 4 subcontracts from the date of completion specified in each subcontract to 30 August 2016 when the subcontracts were terminated
• Post-termination completion cost for them having to get another sub-contractor to do the works
• The cost of stone purchased for the Putney project which GB alleges Modern has wrongfully kept in their possession

On average, the liquidated damages clause under each contract were approx. $3,500 per calendar day.

Under each subcontract, Modern agreed to execute and complete the whole of the works diligently and expeditiously and to the satisfaction of GB. Clause 11 of each subcontract contained an important clause regarding extension of time and provided that the subcontractor can within 5 days of an act of prevention occurring (which was defined as an event or circumstance which results in actual delay to the works arising from an act of default of GB other than permitted under this subcontract, a breach of contract by GB or a variation direction) Modern can submit a claim for an extension of time for date for completion. GB retained absolute discretion whether to grant an extension of time, or whether to consider one at all.

Liquidated Damages Claim

In relation to GB’s liquidated damages claim, Modern raised a number of defences. One was that although the works had not been completed, they had not been completed due to GB’s fault. The other defence raised was that GB had in fact extended the time for completion which had the effect of reducing or extinguishing GB’s liquidated damages claim. The final defence raised was the application of the prevention principle. On this point, Modern sought to adduce evidence to demonstrate that Modern’s delays in completing the works by the date for completion were the result of GB’s acts or defaults. On the issue of prevention principle, the Court was asked to rule.

Prevention Principle

The essence of the prevention principle is that a party cannot require the other party to perform a contractual obligation if it itself has caused the other party’s non-performance (Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2012] WASCA).

In the context of construction contracts, the prevention principle may preclude the recovery of liquidated damages for delay caused by the principal contractor. An act of prevention in breach of contract by a principal which causes actual delay to the contractor will, in the absence of a contractual mechanism to grant an extension of time, have the effect of setting the time for performance of the contract ‘at large’ with no date from which liquidated damages can run (Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd NSWCA 2017).

The operation of the prevention principle can be modified or excluded by contract. The manner in which this is usually done is by a contractual extension of time regime (Probuild). If a contractor fails to exercise its right of extension of time where such a mechanism exists, may have the effect of negating the prevention principle from operating against the principal such that there will be no ‘at large’ operation of completion date. Whether that happens or not depends on the proper construction of the contract.

In this case, GB submitted that as Modern had not claimed any extension of time and had not pleaded it in the proceedings, any evidence by Modern contending that there were acts of prevention which caused delay was of no legal consequence and irrelevant.

GB relying on the statement of Cole J in Turner Corporation Ltd v Austotel Pty Ltd said that Modern could not rely on any preventing conduct as it had failed to exercise the contractual right to claim an extension of time that would negated the effect of that conduct. In Turner case, Cole J said:

If the builder, having a right to claim an extension of time fails to do so, it cannot claim that the act of prevention which would have entitled it to an extension of the time for practical completion resulted in its inability to complete by that time. A party to a contract cannot rely upon preventing conduct of the other party where it failed to exercise a contractual right which would have negated the affect of that preventing conduct.

Modern submitted that GB’s unilateral power in cl 11 of the subcontract to extend the dates for completion meant that the prevention principle remained an issue. In pleading this, Modern relied on the NSW CA decision in Probuild where an adjudicator’s decision to reject a set off claim for liquidated damages by a head contractor was being appealed. The NSW CA dismissed the head contractor’s appeal seeking to quash the adjudicator’s decision and considered the prevention principle.

In Probuild, the NSWCA considered a decision of Peninsula Balmain where Hodgson JA found that a principal was obliged to act honestly and fairly in deciding whether to exercise a discretionary power in a contract to grant an extension of time. This was a similar situation in the current subcontract between GB and Modern where GB retained absolute discretion whether to grant an extension of time or whether to consider granting an extension of time. The NSWCA in Probuild affirmed the decision of Peninsula on this regard and applied it in that case in the context of a clause which provided the head contractor with the discretionary power to extend time.

McColl JA concluded that Probuild was obliged to exercise the unilateral power to grant extensions honestly and fairly having regard to the underyling rationale of the prevention principle, or if necessary, because there was an implied duty of good faith in exercising the clause in question.

In addition to Probuild, Modern also referred to other cases where the Court had considered the obligation of reasonableness and good faith. Modern referred to the decision of Edelman J in Minister for Immigration and Border Protection v SZVFW (2018) where his honour observed that a contractual clause that empowers one party to act to the detriment of another has sometimes been construed as requiring the power holder to reach a decision reasonably and with fair dealing having regard to the interests of the parties and provision and purposes of the contract, objectively ascertained.

The Court in this case did not accept Modern’s submissions. It viewed the power as being described as ‘absolute discretion’ under cl 11 as excluding an obligation to act reasonably although his honour noted that there may be some room left for the obligation to act in good faith (Macquarie International Health Clinic v Sydney Local Health District 2020). The reason the Court was not persuaded by Modern’s submissions is because cl 11 of the subcontract expressly provided that GB had no obligation to extend, and had no obligation to consider whether to extend an extension of time. Although his honour notes that the obligation of good faith and to act reasonably can be implied as a matter of law as an incident of a particular type of commercial contract, the implication of such a term cannot be inconsistent with the express terms of the relevant agreement itself (Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184). His Honour found that there was no room for the imposition of an obligation to act in good faith on the part of GB where the express terms of cl 11 provided for no such obligation.

His Honour found that the language of ‘absolute discretion’ and ‘no obligation’ reflected a clear intention to confer a discretionary power to extend without any obligation being imposed on GB to exercise or to consider whether to exercise that power. His Honour found that the concept of the prevention principle is dealt with under cl 11 where Modern had a contractual right to seek an extension of time for completion through following the procedure set out under that clause. Such compliance would thus enable Modern to have new dates for completion in the event of default of an act of prevention by GB. This clause also made clear that if the procedure under it was not adhered to, Modern had no entitlement to an extension of time or to claim on or any right of action under law or in equity. They also make clear that GB had an absolute discretion to extend the date for completion for any reason but was under no obligation to exercise that discretion or even consider doing so, and provided for GB to be paid liquidated damages if Modern failed to complete the works by the completion date, subject to any adjustment for an extension of time. His Honour also said that the implication of terms sought by Modern were inconsistent with the express terms of the agreement where it provided that GB had no obligation to exercise or to consider exercising its contractual discretion.

In arriving that decision, his Honour stated that the terms referred to in ProBuild and Peninsula were different to the current case.

Is the liquidated damages provision of the Putney subcontract a penalty?

Modern contended that cl 12 providing for liquidated damages of $3,500 per day is unenforceable as a penalty.

The principles surrounding the doctrine of penalty were expounded by the HCA in Ringrow Pty Ltd v BP Australia where the Court accepted aspects of Lord Dunedin’s speech in Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd 1915 as expressing the law applicable in Australia.

The HCA also followed this in Andrews v Australia and New Zealand Banking Group Ltd. The essence of that speech are as follows:

1. The essence of a penalty is a payment of money stipulated as in terrorem (in intimidation) of the offending party; the essence of liquidated damages is a genuine covenanted pre-estimate of damage
2. The question whether something is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of making the contract, not as at the time of the breach
3. To assist this task of construction various tests have been suggested, which if applicable to the case under consideration may prove helpful or even conclusive. Such are:
   a) It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be provided to have followed from the breach
   b) It will be held a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid
   c) There is a presumption (but no more) that it is a penalty when ‘a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others trifling damage

The NSW CA in Arab Bank Australia Ltd v Sayde Developments, referred to the HCA case in Paciocco v Australia and New Zealand Banking Group where the Court summarised the propositions as follows:

1. Lord Dunedine’s propositions were not ‘rules of law’ but ‘distillations of principle’.
2. The essence of a penalty is that it is a collateral stipulation, the purpose (or predominant purpose) of which is to punish the borrower for breach and thus compel performance
3. One way of testing whether the impugned stipulation is penal – intended to punish – is to inquire whether the sum that it stipulates to be payable on breach is to ask whether the stipulated sum is extravagant or out of all proportion to, or unconscionable in comparison with, the maximum amount of damage that might be anticipated to follow from breach.
4. Damage in this sense is not limited to damages recoverable upon breach of contract, but may extend to damage, or losses, caused by the impairment of other legitimate commercial interests that were intended to be protected by the stipulation.
5. The analysis is prospective, not retrospective, in the sense that it is to be made at the time and taking into account the circumstances, when the contract was made.
6. Mere disproportion between the stipulated sum and the possible damage is not enough to indicate penalty; the disproportion must be such that it is unconscionable for the lender to rely on the stipulation.

The Court also referred to Murphy JA dissenting judgement in Spiers Earthworks where his Honour said: ‘in considering the question of whether a provision operates as a penalty, regard may be had to whether the provision stipulates for the payment of a rate over time, so that the total payment increases as the inconvenience caused to the innocent party by the defaulting party increases. In the absence of circumstances indicating to the contrary, a provision of that nature will ordinarily not, prima facie, be a penalty (Williamson v Murdoch (1912) 14 WALR).

The Court then had to consider whether as contended by Modern, a Jones v Dunkel inference was available to be drawn for the failure of GB to call into evidence one of the directors of GB to give evidence about one of the contracts. In discussing the principle, the Court said that the drawing of inference based on the principles of Jones v Dunkel, enables the Court to give greater significance to an already existing evidence against a party in circumstances where that party fails to adduce evidence to the contrary. However, the inference cannot be employed to fill gaps in the evidence (Manly Council v Byrne [2004] NSWCA).

In discussing the liquidated damages clause, the Court noted that Modern had agreed that the amount of liquidated damages was a genuine pre-estimate of GB’s damages. While such an agreement is not conclusive, it is not irrelevant. The Court refers to the judgement of McDougall J in Arab Bank where his honour said that the doctrine of freedom of contract remains important when considering penalty provisions.

In Ringrow, the HCA said: ‘exceptions from that freedom of contract require good reason to attract judicial intervention to set aside the bargains which the parties of full capacity have agreed. This is why the law on penalties is, and is expressed to be, an exception from the general rule. It is why it is expressed in exceptional language. It explains why the propounded penalty must be judged ‘extravagant and unconscionable in amount’. It is not enough that it should be lacking in proportion. It must be ‘out of all proportion’.

In the end the Court said that the burden of establishing that the sum stipulated under cl 12 should be characterised as ‘extravagent, out of all proportion or unconscionable’ compared to the greatest loss which may be suffered by GB rested with Modern but they had failed to discharge that onus.

Growthbuilt Pty Ltd v Modern Touch Marbles & Granite 2021 NSWC:

Builder awarded damages against homeowner after homeowner directed the builder to stop works

A builder entered into a standard form contract with a homeowner to build a granny flat on their land, under a cost-plus contract of approx.. $200k.

Disputes arose which caused the homeowner to direct the builder to stop the works. Builder, who was owed money under the contract, contended that the homeowner had no basis for issuing such direction and therefore they were repudiating the contract by virtue of that direction. The builder therefore, accepted the homeowner’s repudiation and terminated the contract.

In the Tribunal, the builder sought damages for monies owed under the contract, damages for loss of expectation and damages for loss of anticipated profits under the balance of the contract price. Interest was also claimed.

The owner rejected the builder’s claim and filed a cross claim seeking repayment alleging that the builder had been overpaid and rectification costs. The owner claimed that the cost-plus contract, contained an implied term that the builder will do all that is reasonably necessary to ensure costs incurred were actually reasonable and fairly determined. An expert was instructed on their behalf who gave evidence that the costs incurred by the builder under the contract were not reasonable.

The Tribunal did not accept the owner’s expert’s evidence that the costs incurred were unreasonable because it held the cost plus contract entered into by the parties entitled the builder to be paid the actual costs incurred, not what the expert subjectively considers (with the benefit of hindsight) to be appropriate. The expert had also failed to provide a proper basis for how he had reached the quantum meruit assessment of the costs incurred. For these main reasons, the owner’s claim that the costs incurred were unreasonable failed.

Dealing with the question of measure of damages for the builder, the Tribunal assessed them using the principles of Robinson v Harman (1848) 1 Exch 850, noting that the damages claimed by the builder were effectively the margin or profit forgone on the value of the building works that it was deprived of the opportunity of completing.

The Tribunal ordered the builder the sum of $73,609.73 against which it offset $5,234, being the cost of minor rectification work. This entitled the builder a sum of $68,375.73. This amount was upheld on appeal and the owner’s appeal was dismissed with costs.

Burns v Hogg Constructions [2021] NSWCATAP 417

Contractor wins restitution order against family members for extensive renovation work without written contract

A contractor, who was the former brother-in-law of the Defendant, carried out major renovations on a property in Winston Hills owned by the Defendant and her former husband.

The value of these renovations was alleged to be worth around $700,000. There was no written agreement between the contractor and the Defendant in relation to the works.

The contractor later sought to get a written acknowledgment from the Defendant that she owed him for the renovations through a Deed, which was prepared by his solicitors.

Although the Deed was signed by the parties, the Defendant, who was in the process of separating from her husband at the time of these proceedings (contractor’s brother) claimed, amongst other things, that the contractor should be barred from recovering any monies by virtue of sect. 10 of the Home Building Act (the Act) as there was no written compliant contract under sect. 7 of the Act.

Robb J sitting in Supreme Court’s equity jurisdiction, found that the requirements of the Act did not prevent the contractor from recovering his debt pursuant to the terms of the Deed. However, the contractor was unable to enforce the terms of the Deed against the Defendant who succeeded in her claims that the Deed was unjust and therefore, deemed void under the provisions of the Contract Review Act.

The Court, nevertheless, accepted the contractor’s alternative pleaded claim for restitution because it found it would be unfair if he was unable to recover a reasonable sum for the works he carried out on the property. Due to lack of evidence from the parties about the proper cost of the renovations, the Court deferred making an order and asked that the parties conduct a cost-effective way to reach a fair determination about what the contractor should be paid. The matter is due to return to the Court later this year for a determination of that final question.

Anjoul v Anjoul [2021] NSWSC 592

Challenging a Relative’s Will

Simply being treated unfairly under a relative’s will is not grounds for you to challenge the testator’s will. However, if you believe that a close relative was forced into doing a will or they were forced into making an amendment to their will (called a codicil) by someone you may have grounds to challenge that will.

All testamentary documents (such as wills or codicils) only come into effect after the person’s death. Where the validity of a testamentary document is in question, the most important question for the court to determine is whether the document was the last will of a free and capable testator.

Challenges are generally limited to the following grounds:

• If there are allegations that the will or codicil was not executed in a manner required by law
• If there are allegations that the testator lacked testamentary capacity
• If there are allegations that the deceased did not know and approve of the document.
• If there are allegations that the document was obtained by undue influence (in the sense that the person was forced)
• If there are allegations of fraud
• If there are allegations that the document has been revoked. This is usually established by a later testamentary document or conduct of the deceased.

It is important to understand that suspicious circumstances surrounding a testamentary document of themselves are not enough. There must be good evidence to establish a fact that the will or codicil was not made by a testator who was free and capable of giving such instructions.

In matters involving challenges to a testamentary document, the court will usually make orders for the parties to attend a mediation. The purpose of mediation is for the parties to see if they can come to an agreement without the need to proceed to an expensive court hearing. If mediation has already been attempted, then court may by-pass this stage.

If you believe any of the grounds explained above may apply in your case, contact us today for more information.

Have you been Treated Unfairly under a Will?

A testator (person who has done a will) can leave their property (or estate) to whoever they like. However, this leads to instances where people closest to the testator are left with little to no inheritance under a will.

There are many reasons for this but usually the most common is disputes between members of a family, such as siblings or spouses.

If you are a member of a family and feel that you have been treated unfairly under a will, you may have grounds to bring a Family Provision Claim against the person who has left very little or nothing for you after their death.

What is Family Provision Claim?

The law recognises that people can leave their assets to whomever they wish to do so after they die. However, the law imposes a moral obligation on people to provide adequately for others in their lives after their death.

This is usually the person’s surviving spouse and children. It can also include those that were dependant on the deceased.

In rare cases, it can also include a former spouse and also a person with whom the deceased lived with.

The persons described above may be considered ‘eligible persons’ for the purposes of a Family Provision application. In determining an application, the court takes a number of others matters into consideration before making a decision.

If you think that you have been treated unfairly under a will and believe you may be an eligible person, you have 12 months from the date that the deceased died to make an application to the NSW Supreme Court for a Family Provision order.

Call us today to find out more.

What Happens to your Will after your Death?

Every properly drafted will should nominate an executor and also another executor in the alternative in case the first one is unable or unwilling or unable to act.

After your death, your executor who is now your legal representative, is responsible for obtaining what is called a ‘grant of probate’. Probate is necessary for essentially two main reasons:

• To obtain title to your property; and
• To have authority to deal with your estate

Probate is granted by the NSW Supreme Court to the executor. It is important to note that until probate is granted, your executor is not allowed to deal with your estate or do anything including making payments to anyone. If your executor begins to administer your estate prior to probate being granted, they may be held personally liable for any loss or damage suffered by anyone including any beneficiaries.

Applying for a grant of probate is technical and should not be attempted without professional advice. There are also time limitations that apply for the Supreme Court from the date of death and missing them can present problems for executors.

If you are an executor of a will and need help, contact our office for a free initial consultation.

We can advise you whether a grant is required or not. If the circumstances of the estate indicate that a grant is required, we will give you the right advise to ensure that the administration of estate takes place in a timely fashion, and the rights of beneficiaries under the will are protected.

Superannuation Benefits and your Will

By the time many Australians reach maturity or retirement age, the balance of their super is often a decent sum. A common mistake in many wills drafted by non-professionals is to include instructions on who is to receive super money after the person dies.

It is important to note that super is managed by a Trustee on behalf of the fund. The Trustee makes their decision on who is to receive the death benefit of a member who has died in accordance with legal guidelines as well as any binding death nominations that the member provided to the fund before they died. If the member had completed a binding death nomination form and nominated any person(s) as their benefactors, then the Trustee must distribute the death benefit in accordance with that nomination.

But if there is no binding death nomination form, or it has expired because it was done more than 3 years ago, then the Trustee has discretion to give the death benefit to any persons they deem appropriate. As a result, super does not form part of your estate and any instructions in your will as to who will benefit from your death benefit is invalid.

If you or a loved one have a will that gives instructions on who is to benefit from your super and you are unsure whether a binding death nomination form has been completed with your super fund, it is crucial that you speak to one of our lawyers today to make sure proper arrangements can be made (including changing your will if necessary) to ensure your super is dealt in a way that you want it.

What is a Will?

A person (called a testator or testatrix) leaves a will when they make a written declaration about what they want done with their property and assets (called their estate) after their death.

Your will does not have to just deal with your estate. It can include other wishes like who will look after your children until they reach 18, and whether you like to set up trusts to benefit certain people in your life.

Many people have already done a will at some point in their life, whether on their own or with the help of a professional. However, not many people are aware that whilst the legal requirements of a valid will are simple under the Succession Act 2006 (NSW), these requirements can easily be overlooked or challenged by others after their death leaving their estate subject to family disputes and legal battles. Your will should also include a revocation clause to clearly indicate that you want your will to operate as your final testamentary wishes. This removes doubt on any old documents that may also be considered a will or an informal will.

Regardless of your age, If you have any assets and want to make sure that those assets are dealt with in a particular way, it is important that you speak to a lawyer who specialises in Estate Planning and get them to prepare a professionally drafted will.

Our lawyers at One Law can also advise you on other Estate Planning documents to ensure that you are protected if adversity strikes.

Matters you should consider when entering into a commercial lease.

Before you sign a commercial lease with a landlord, you should understand that you are entering into a legal relationship which will bind you for the term of the lease.

If you breach the terms of the lease, your landlord can sue you for damages or take other forms of compensatory action against you.

From the perspective of a business owner, a lease is an asset and an integral part of a business and can mean continuous prosperous trade for the tenant for many years to come. If you decide to sell your business in the future, the importance of a good commercial lease becomes magnified and is just as important as the goodwill of your business.

• Our commercial lawyers at One Law can advise you on the following important matters for a variety of commercial leases:
• Whether the provisions of the Retail Leases Act NSW 1994 apply to the lease?
• What terms are favourable to you and what terms should be removed?
• If the landlord is charging you for something they are not allowed to do?
• Your right as a tenant to sub-lease to a third party?
• Your obligation as a guarantor if your company is leasing
• Any make good clauses and your obligations when you take over
• Terms allowing the landlord to terminate and take possession of the premises and if they are lawful under the law

Make an appointment with one of our commercial lawyers for a no obligation consultation regarding any of the above.

What benefits are available to first homeowners in NSW?

First Home Loan Deposit Scheme

First-home buyers can apply for the First Home Loan Deposit Scheme which will allow eligible singles and couples to pay a deposit of as little as 5% on their first home.

Under the scheme, the government acts as guarantor so borrowers won’t need to pay lender’s mortgage insurance, which usually applies when buying with a deposit less than 20 per cent of the value of the property.

The objective of the Scheme is to assist in the purchase or construction of a modest home and the value of the residential property must not exceed the relevant price cap for the area in which it is located.

Who is eligible?

Singles with a taxable income under $125,000 per annum in the previous financial year, and couples with a taxable income of up to $200,000 per annum in the previous financial year.

Couples must be married or in a de factor relationship – siblings, friends or relatives buying together are not eligible. The scheme is only available to owner occupiers, and investment properties are not eligible.

Eligible residential properties include:

• An existing house, townhouse or apartment
• A house and land package
• Land together with a separate contract to build a home
• An off-the-plan apartment or townhouse

Applicant must be first home buyers who have not previously owned or had an interest in a property in Australia either separately or jointly with someone else

First-Home Owner Grant (New Homes)

• This is a $10,000 grant for purchasers of new properties costing less than $600,000 and owner-builder/building contracts worth less than $700,000.
• If you’re buying land to build a new home, the total price – including the land and home – must be no more than $750,000.
• You will also be eligible for this grant, if you’ve already completed the purchase process or construction has commenced.

First-Home Buyer Assistance Scheme (Existing Homes)

First-time purchasers of existing homes will pay no stamp duty on property worth less than $650,000, or vacant land worth less than $350,000, and reduced stamp duty on properties up to $800,000 or land up to $450,000.

First-Home Buyer Assistance Scheme (New Homes and Vacant Land)

• To be eligible for an exemption or reduction in the amount of duty payable you will need to be a first home buyer who purchases a new home or a vacant block of land on which you intend to build a new home.
• For the full exemption to apply, the value of the new home must be no more than $800,000 and the value of a vacant block of residential land must be no more than $400,000.
• A concessional rate of duty will apply to homes valued more than $800,000 but less than $1,000,000 and vacant block of land valued more than $400,000 and less than $500,000.

The new transfer (stamp) duty threshold will only apply to contracts executed from 1 August 2020 to 31 July 2021.

*Details current as of 1 October 2020

How can a Lawyer help with Buying and Selling Property?

Conveyancing is a necessary process in both buying or selling property. As solicitors, we can assist with the settlement and title transfer process by ensuring our clients are meeting all their legal obligations and their rights are protected during the entire transaction.

Preparing Contract of Sale

One of the primary roles of a solicitor is to help prepare all the legal documents that are part of any real estate transaction.

When you are selling your property, this includes preparing the Contract of Sale and ensuring that any special conditions you require are included in this final contract. This will protect you from any potential conflict later. A solicitor will also conduct all the title and planning searches that go into the Vendor’s Disclosure Statement, so that you have met all the disclosure obligations according to the relevant laws in your state or territory.

When you are purchasing a property, you will need a solicitor to prepare all the transfer documents that ensure a property is rightfully and legally transferred to them. These important documents will include all necessary details to meet legal regulations in your state or territory.

Legal Advice

A solicitor will also undertake a good portion of the legal work needed to help you make the right decisions and navigate this process successfully.

When you are selling your property, your solicitor will be able to advise you if there are any particularly conditions that must be included in the Contract of Sale. The special conditions will be dependent on your circumstances. A solicitor can also help advise you regarding the legal documents that you will need to give to the buyer to complete the settlement, so that there is no confusion.

When you are buying property, your solicitor will give you advice regarding the terms and conditions of the Contract of Sale. They will point out any specific terms that you should be aware of as well as any planning restrictions or other details out of the ordinary that you should consider. It’s always a good idea to let your solicitor read through your Contract of Sale before you sign it. Finally, the solicitor can help you determine what statutory fees need to be paid. These will depend on several factors, including the purchase price of the property and the state or territory in which you purchased the property.

Arranging Settlement

One of the major roles of any solicitor is to help arrange the final details of the settlement. The solicitor will coordinate a proper time for Settlement, depending on the parties’ banks and mutual convenience. The solicitor will also contact your bank to make sure that your funds are in place to pay the vendor and providing the bank with any necessary payment details. If you are holding the funds yourself, you need to transfer these to the solicitor’s trust account at least 24 hours before the settlement date to ensure that there is enough time. The solicitor will then contact the seller’s real estate agent and direct them to release the keys.

First Home Owners in NSW

Buying your first home is often one of the biggest and most exciting purchases you will ever make, and while this may be the case, many first home buyers are not fully aware of the government incentives and entitlements they are eligible for when making this purchase.

Did you know that in NSW, if you’re planning to buy your first house, you may be eligible for the First Home Loan Deposit Scheme? This means that you are able to pay a deposit of just 5% to secure the loan to your first home.

In this instance, the government will act as a guarantor, so you won’t need to pay lenders mortgage insurance, which is what usually applies when you have less than 20% deposit.

There are however some conditions you must meet to be considered eligible for the scheme. These include, but are not limited to:

• Singles who had a taxable income of less than $125, 000 in the last financial year.
• Couples with a combined taxable income of less than $200, 000 in the last financial year.
• Buyers must plan to live in the house, as investment properties are not eligible.
• Buyers must not have previously owned or had an interest in a property in Australia either separately or jointly with someone else

There are also grants available for new home builders and first home owners wishing to buy a new house, as well as the First-Home Buyer Assistance Scheme.

With so much opportunity, and so much at stake it’s important to talk to the dedicated team of specialists at One Law who will guide you through this milestone purchase and help your better understand your entitlements and eligibility.

Injured in a Motor Vehicle Accident?

Your step by step guide on how to make a compensation claim in New South Wales.

Personal injury arising from motor vehicle accidents are an unfortunate yet unavoidable occurrence of daily life. During this period, it essential that you are aware of your rights and entitlements.

To make a claim after being injured in a motor vehicle accident:

• You will need to identify the insurer of the vehicle who you believe is most at fault as well as report the accident to police.
• After having done so, you must lodge your Application for personal injury benefits within 28 days from the date of accident to ensure your statutory benefits (wages and medical expenses) are paid from the date of accident.
• You may lodge your application for personal injury benefits within 3 months however, your statutory benefits will only begin from the date the claim is made.

Your statutory benefits will only continue after 26 weeks from the date of accident if it has been found that you are both not wholly at fault for the accident and that your injuries have been deemed to be ‘non-minor’.

It is only in this instances that you would then be entitled to make an Application for damages under common law. Damages under common law can be awarded for the injury you have suffered as a result of the accident.

• If you are assessed by an Independent Medico-legal doctor as having sustained a whole person impairment percentage of less than 10%, then a common law claim for damages can only be made from 20 months to three years after the date of accident. In this case you will only be eligible to claim past and future economic loss.
• While if you have been assessed as having sustained greater than 10% permanent impairment you are entitled to make a claim for damages under common law at any stage within three years from the date of accident. You are entitled to claim past and future economic loss as well as non-economic loss, which is also referred to as pain and suffering.

One Law Group has a specialist team dedicated to personal injury arising from motor vehicle accidents, if you would like more information or advice in relation to the practices and procedures in place, please contact our team on (02) 9119 2232.

Pursuing a Claim for Compensation Against Public Authorities

Public authorities are important bodies that serve various functions in our society and at times, these bodies may be subject to a common law claim for negligence for exercising or failing to exercise their statutory powers or duties. Individuals who seek to sue public authorities for negligence face some difficulties with succeeding as the authorities are often safeguarded by the Civil Liability Act 2002 (NSW).

Sections 43A and 45 of the Civil Liability Act 2002 (NSW)
In certain circumstances provide public authorities immunity from liability. In some circumstances, it can be suggested that the standard of care that is expected of a public authority is much lower than that the standard of care expected of an individual.

Section 43A
Provides that the failure to exercise a statutory power does not give rise to a claim unless the act or omission was “in the circumstances so unreasonable that no authority having the special statutory power could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power”.  Section 45 provides immunity to public authorities where they did not have “actual knowledge” of the risk which caused harm.

The matter of Holland v City of Botany Bay Council [2017] NSWSC, demonstrates the strict thresholds that apply before public authorities can be found negligent. The case considered whether the council was immune from liability under section 45 of the Civil Liability Act 2002 (NSW).

In summary of the facts, the plaintiff tripped and fell at the intersection of a road and sustained several injuries to her shoulder and back. She brought a claim against the City of Botany Bay Council for damages. The Plaintiff argued the road was in poor condition and that the Council should have repaired and maintained the condition of the road.  The court determined whether the Council, or the Roads and Maritime Services (RMS) was the roads authority for Gardeners Road. It was determined that the council was the relevant roads authority at the time of the incident. The court found the council was entitled to rely on section 45 of the Act as there was no evidence that the Council had been aware of the road condition. There had been no prior complaints made to the Council about the condition of the road and no prior injuries in that location. The Court held that the Council could not have had ‘actual knowledge’ of the risk.

In light of the above matter, a question that remains is, is it always so difficult to pursue a claim in negligence against a public authority? The decision in Roads and Maritime Services v Grant [2015] NSWCA 138 suggests otherwise.

The plaintiff was riding his bike when it collided with a median strip at an intersection.  The court held the Plaintiff would not have been able to see the median strip before the collision.  The court held that Roads and Maritime Services (RMS) failed to exercise its statutory powers by failing to install a “Keep left” sign on the median strip which would have avoided the Plaintiff’s injuries. The court found that a reasonable person in the position of RMS would have painted the nose of the median strip, installed adequate lighting and clearly marked the lanes on the road to avoid any collisions.

Section 43A of the Civil Liability Act 2002 (NSW)
Could not be relied on by RMS as it was held that there were several measures that RMS should have actioned in exercising their duty. The Plaintiff was successful in claiming damages, however, the court took into consideration the speed at which the plaintiff had been travelling before the accident and there was a reduction of damages due to contributory negligence.

Resources of public authorities is another issue that is important when considering liability of a public authority. Under Section 42(a) of the Civil Liability Act 2002 (NSW), the court often considers that some duties and powers that should be exercised by a public authority are sometimes limited by financial and other resources. The way in which resources are allocated cannot be challenged nor questioned under Section 42(b) Civil Liability Act 2002 (NSW).

Negligence claims for compensation against public / government authorities can be challenging and complicated. At One Law, our team of compensation lawyers will guide you through the process and take all possible steps to secure a successful outcome.

Parenting Orders

During a separation or divorce, one of the most important factors to consider is the safety and wellbeing of any children involved.

At One Law we work with you to ensure that the long-term effects of your separation have as little impact on your children as possible.

The first step is to participate in what is known as Family Dispute Resolution (FDR) . Here under the guidance of the team at One Law, you and your former partner have the opportunity to discuss and resolve all parenting and/or financial/property arrangements without going to court.

If you are unable to reach an agreement or unable to partake in FDR, then you will be issued with a section 60I certificate. This is what you need to go to Court to seek Parenting Orders.

Parenting Orders are a set of parenting arrangements that are made by a court. They set out and define the responsibilities of each parent in relation to the child/ren, and include factors such as:

• Who the child will live with
• The time a child is to spend with another person (often the other parent)
• The allocation of parental responsibility
• Communication between the child and the parents
• Any other aspect of the care, welfare or development of the child.

Parenting orders come with legal obligations for both parents, and there are penalties if the parenting order is broken without reasonable excuse. This can include:

• Changes to the parenting order
• Compulsory post separation parenting programs
• Compensation of expenses related to a breach of the parenting order
• Community service

And in more extreme circumstances the penalties can include fines and/or imprisonment.

Going to court for Parenting Orders can often be a costly and time-consuming experience. At One Law, we make every effort to avoid court where possible. If, however we must go to court, then our team of Family Lawyers will fight for a favourable outcome for you and any children involved.

Court Orders by Consent

Divorce is a stressful and emotional time for separating couples and often, prioritising the rights and wellbeing of the children involved can be challenging.

The first step to resolving the issue is for the separating parties to participate in Family Dispute Resolution (FDR) whereby every effort is made to resolve all parenting and/or financial/property arrangements without going to court.

If during FDR both parties can reach an agreement on these matters, they must then formalise the agreement making it binding. This is what is known as Court Orders by consent.

Consent Orders are the written agreements which set out the parenting arrangements agreed upon by the separating parties. They are then filed and approved by a court, and while you do not have to go to court to file Court Orders, they have the same legal effect as if they had been made by a judicial officer after a court hearing.

While it is best practice to start these proceedings as soon as possible, it is important to note that it must be filed within 12 months of a divorce or two years after the end of a de facto relationship.

With so much to consider, it’s important you speak to the team of family law professionals at One Law, who will guide you through the FDR process, and if necessary, file for the court orders on your behalf. Our team will explain your rights and responsibilities and fight to find a solution that works best for you and your family.

Family Dispute Resolution – FDR

Family Dispute Resolution (FDR) is the legal term for services (such as mediation), which help families going through a divorce or separation.

It is a compulsory step in the separation process, where both parties are asked to discuss issues relating to their children, any properties and finances.

It is however, the main objective of FDR to assist participants in making a parenting plan, which sets out the agreed arrangements for future parenting without going to court.

In most circumstances, children will not be included in FDR, minimising stress and emotional pressure on any children involved.

There are some exceptions to this however, which include child abuse, family violence and extremely urgent matters. The team at One Law will guide you through the process, and help you to understand your rights and responsibilities, and explain the law that applies to your case.

Family Law – Children and Parenting

A separation is often one of the most difficult and challenging times for young children, especially when conflict and tension is present between parents.

At One Law, our team of Specialist Family Law Lawyers place the children’s needs first, and work with both parties to ensure their ongoing safety and wellbeing.

When considering divorce, separating parties must first take part in what is known as Family Dispute Resolution (FDR), where every effort is made to resolve the matter.

If both parties are successful in reaching an agreement at FDR, we then assist in documenting the agreement in the form of either Court Orders by consent, or by way of a Parenting Plan. Both of which have different outcomes for the separating parties, and any children involved.

Court Orders are enforceable by the courts, but Parenting Plans are not. Parenting Plans can be useful for parents that are able to co-parent and don’t want the stringency attached to parenting orders made by the Court.

If, for any reason a successful outcome cannot be reached at FDR, then both parties will be issued with what is known as a Section 601 certificate. This is what is needed to go to Court to seek Parenting Orders.

Parenting proceedings can be brought on not only the biological parents of a child, but also by a grandparent, by the child themselves, or by any other person concerned with the care, welfare or development of the child.

The decision to separate already has profound impacts on all parties involved, at One Law we work to minimise the stress and avoid court where possible. We work hard to ensure your child’s best interests remain our priority, as we work to find a solution that fits.

Letters of Administration

The death of a family member or loved one a truly emotional time, and often with their death comes unexpected burden.

On one particular instance, our team of specialist lawyers acted for an estate where the deceased died intestate (passed away without having made a will). The gentleman however, left a suicide note intended to be his ‘final will & testament’. In that note, the deceased named our client Bella as the executor of his estate and residuary beneficiary, meaning she was to receive any property that was not specifically left to anyone else. Also included in his note, the deceased named individuals to whom he owed money to.

Apart from requesting that the court grant probate of the suicide notes as an informal document, we were required to obtain the consent of all those named on the suicide notes as they were deemed to be ‘affected persons’ for the purpose of the Supreme Court Rules. Time was of the essence in this matter as the estate owed considerable debts to mortgagees on properties which were attracting interests.

We were able to draft and execute proper documents with respect to all affected persons to obtain their consent so that the probate application can be granted for our client and she could administer the deceased’s estate as per his final wishes.

In instances such as these it’s important to speak to the dedicated team of specialists at One Law to ensure that not only are your loved ones best interests maintained, but also that unexpected financial costs are kept to a minimum.

Will

Writing a will can be a challenging and emotional experience, and there are often may parties that are affected by the decisions you make in your will. One such example of this is the story of Anita and Ellen.

Anita and her sister Ellen came to our office to seek guidance in preparing Anita’s will.
Whilst in many instances, the presence of a support person is helpful, certain events raise concern because it appeared in this particular situation that Anita seemed swayed and pressured by her sister Ellen. We tried seeking instructions from the Anita on her own, but as hard we tried, Ellen would not leave her side.

To avoid a family conflict, we advised both Anita and Ellen that under the law (Succession Act 2006 NSW), a beneficial disposition in a will, whether in a gift or otherwise, becomes void if the person receiving that gift is present or is a witness to the will when it is made.

It was only then that Ellen stepped back and allowed us to speak in private with Anita. During this discussion, the team discovered that Anita did not want to leave her sister Ellen anything in her will, as she had three children of her own, and preferred to leave her assets to them instead.

Anita had a sizeable estate, and we were concerned that there might be future claims to dispute the will. To minimise future claims, we advised her that we should do a detailed affidavit for her and leave it on the record to explain the reasons for her decisions under the will.

This is a perfect example of ensuring will drafting is done right from the start as to minimise any future conflicts, will disputes or family provision claims that can really exhaust the assets of the estate and leave those who are rightfully entitled with nothing. That’s why it’s crucial that when preparing you will you speak to the team of experienced Lawyers at One Law Group.

Successful Purchase of Property with lower penalty negotiated and no default interest being charged

It is without a doubt that COVID has changed an immeasurable number of things. One such example of this is the story of our client Arnold.

Arnold was purchasing home for his family, and was excited about the purchase after realising his children had fallen in love with the house, and the fact that they had a big backyard to play in. The matter exchanged with a 5-day cooling off period.

Our team received the contract, advised the client and sought the required amendments. Although Arnold was ready to proceed, his loan approval was being held up due to the mortgagee’s back log as a result of COVID.

We were able to quickly negotiate a further 10 day cooling off period which allowed Arnolds incoming mortgagee time to organise finance. The day prior to the expiry of the cooling off period, Arnolds incoming mortgagee informed us that a deposit bond was required to effect unconditional exchange. We requested this from the other side and were able to provide a deposit bond in time.

Because we were granted multiple extensions to the cooling off period, Arnold had two and a half extra weeks to finalise his loan and settle the matter. However, one day prior to settlement, we were notified by the incoming mortgagee that they will not be in a position to settle the matter by the settlement date and to request another extension.

The Contract of Sale is very strict in terms of default interest and penalties which apply if settlement does not occur on time. One Law wrote to the other side and successfully negotiated a lower penalty and no default interest being charged, which meant that Arnold was able to save some money in an otherwise very expensive transaction.

Successful Sale of Property without incurring Extra cost in transfer duty.

Our client William had subdivided his land into three separate lots and decided to sell one of the lots to a third-party purchaser. The settlement was due to occur 6 weeks after exchange.
Upon attaining the council and water certificates, we were notified that the 3 lots were not independently rated, and after further investigations, it became apparent that when William subdivided the property, he had mistakenly registered his principal place of residence in their names as “owners in part formerly ownership” as opposed to “joint tenants or tenants in common”. This meant that William was unable to sell one of the lots without selling part of his principal place of residence.

One law arranged for a transfer to occur on their Principal Place of residence without incurring any transfer duty, a security substitution, and a successful settlement of the property to the third-party purchaser.

Successful on time Sale of Property despite Purchasers unreasonable rectification requests.

Our clients Scott and Holly decided to sell their first home. On the day settlement was due to occur, the purchaser completed their pre-settlement inspection and made unreasonable rectification requests which threatened to delay settlement.

One Law prepared the Contract of Sale which included Special Conditions that would protect Scott and Holly should this situation ever arise. When our firm expressed our intention to rely on those Special Conditions, the purchaser’s Solicitor argued that our clients were not providing vacant possession in accordance with contractual obligations.

Our team however respectfully drew the Purchaser’s Solicitors attention to the same case they cited and were able to prove that Scott and Holly had not breached their contractual obligation.

We reminded the Purchaser’s Solicitor that our client was ready, willing, and able to settle and their client would be in breach if settlement did not occur on that same day. Much to Scott and Hollys satisfaction, settlement was completed on time.

Successful Sale of Property with over $8,500 in adjustments which made up for loss of rent suffered.

Our clients Matthew and Elenor decided to sell their family home in Melbourne. The purchaser was a developer and required a 6-month settlement period, to which our clients agreed. An ordinary settlement period is usually 6 weeks, but Matthew and Elenor were happy to grant the extension given that our team was able to negotiate an unconditional early release of the deposit.

Unfortunately, there were many hiccups throughout the settlement process. Less than two months after the exchange, our clients’ tenant decided to vacate the premises which resulted in our client being out of rent for 4 months. Being pensioners, they were not working, and the rental income Matthew and Elenor received from the property was their only source of income at the time.

Closer to settlement, the purchaser nominated another purchaser to complete the sale, which resulted in a delay with settlement. The new purchaser had also requested an extension to the settlement period of another month.

When settlement finally came around, One Law (with our client’s approval) charged the purchaser penalty interest of 12% p.a. on the balance of the purchase price which resulted in an $8,500.00 adjustment being made in our client’s favour. Both Matthew and Elenor were very pleased with this result as it made up for the loss of rent they had suffered in the process.

Small debt successfully recovered in Local Court

Our client Nathan loaned a total of $6,000 to his friend, on the basis that it would be repaid within a certain amount of time. Unfortunately, this didn’t go to plan, and Nathan and his friend were unable to settle through negotiation.

Action was brought against his friend in the Local Court and eventually listed for a small claims hearing. Our team argued that several attempts were made to recover the total amount loaned, however those attempts were unsuccessful, and that Nathan’s friend had wasted the Courts time and resources by continuing to make frivolous statements.

We also argued that Nathan’s friend had intentionally misled the Court by making statements which contradicted other documents they had already filed in Court. Instead of repaying the loan as promised, Nathans friend was making unsubstantiated claims that resulted in Nathan incurring further legal costs to bring this claim forward.

We successfully won the case against Nathan’s friend, and Nathan was awarded judgement in his favour. Orders were made for the total amount loaned to be repaid, including interest on the total amount claimed. We were also able to claim the maximum amount of costs that can be ordered in a small claims matter.

Successful negotiations result in recovery of unpaid rent money from lessee.

Our clients Julian and Simon owned a commercial building of about 10 shop lots. Unfortunately, one of the tenants broke their contract and left the tenancy and commercial property without giving any notice. This meant our clients were left out of pocket.
One Law was retained to act for Julian and Simon, and through extensive investigations we were able to track down the tenants. We then commenced court proceedings against them. The tenants retained legal representation, and within a short space of time we successfully negotiated a settlement, recovering unpaid rent money from them.

Court proceedings were withdrawn, saving both parties money in extensive litigation and court fees. This proved to be a win-win for both Julian and Simon as well as the other party.

Business Partners win against a Builder for building left with Defects and Incomplete work.

Our clients Brad and Steve were business partners who entered into a Home Building Contract with a builder to carry out building works which included the construction of residential and commercial premises for over 2.5 million dollars.

As the project progressed, the builder carried out additional works and charged our clients an additional $50k.

At the conclusion of the project, both Brad and Steve discovered there were numerous defects and incomplete work in the subject build. To rectify the issue, the men had to fund the extra costs to fix the defects. This was an additional blow as not only were they paying extra money, but they were now also losing potential rental income.

A case was brought against the builder for recovery of the cost of rectifications and defects, and loss of rental income. Brad and Steve were then hit with a cross claim against our clients alleging further costs for additional works done.

Our specialist team of Commercial Lawyers acted for Brad and Steve in the District Court matter and prepared the matter all the way to a Final Hearing.

One week before the commencement of the Hearing, the builder offered to settle the matter and discontinue the cross claim against our clients. This was a great win for Brad and Steve, as they were able to recover the costs of rectification and defects, including loss of rental income.

Petrol station operator & company director facing loss of family home from corporate watchdogs.

Our client Chris, along with another director operated a small petrol station in Sydney. Much like many other people, Chris put all his trust and confidence in his business partner, who assured him that the maintenance and financial stability of the business, along with all legal responsibilities would be well taken care of.

Unfortunately, the business suffered financially, and debts quickly escalated. With financial pressure intensifying, Chris and the other director could no longer see eye to eye and a decision was made to close down the company.

Almost a year later, corporate watch dogs audited the company along with both the directors and found many gaps in the books and records of the business. Chris was subsequently hit with a tax bill of almost $150,000.00 from the ATO, for affairs arising from the company and the petrol station business. Coupled with this, Chris was also facing other sanctions and penalties from the Australia Securities and Investment Commission.

Stressed and concerned, Chris sought One Law’s assistance and we successfully negotiated a deal with the ATO. We managed to get Chris a good outcome which meant he only had to pay back a fraction of the initial amount, especially noting the other director had disappeared and was nowhere to be found.

Informal Partnerships Challenged in the Supreme Court of NSW.

Our client Sam, was an Iraqi migrant who had come to Australia to live a better life. He had put all his life’s savings into a number of different partnership businesses with a number of other partners.

It wasn’t long before some of these partners took advantage of Sam’s limited knowledge in business and the English language, and tried to exclude him from the business dealings.
Sam sought guidance from the team at One Law’s, and we soon discovered that these partnerships were not created in a formal manner, so proving they even existed was a challenge.

Our Commercial Lawyers conducted due diligence and gathered evidence, from bank statements to paperwork, and even text messages from our client’s mobile phone (which had to be translated from Arabic to English). This was all to commence proceedings in court to ensure Sam’s rights and entitlement in all the partnership businesses and assets were preserved.

Once the other partners saw that Sam had good legal support and representation behind him, we were able to successfully bring all parties to the table and start the process of negotiation to obtain a favourable result for Sam without having to go to court.

Formworker facing a $83,000 claim against his company receives $35,000 by way of a lump sum settlement.

Our client Timothy was a formworker for a company with whom he had done sub-contracting formwork and steel fixing work on a residential job site in the Sydney Metropolitan Area that worth almost half a million dollars.

Timothy had completed the work and had paid his workers out of his own pocket, but the main contractor refused to pay our client for the final stages of the work. Timothy was left out of pocket and came to One Law for assistance.

After initial investigations, we found out that Timothy did not have the required license and qualifications to be carrying out the work they were doing for the contractor. To make matters worse, Timothy was sued by the contractor, who alleged defective and incomplete work, in the amount of approximately $83,000.00.

The team of Commercial lawyers at One Law, were able to successfully negotiate a lump sum settlement of $35,000.00 in favour of our client and the court case was withdrawn by the contractor.

Client succeeds in Contravention Application against spouse for breach of parenting orders and reunites with child after 6 months

After settling the matter for our client, and achieving final parenting Court Orders, the other party breached the final orders by deciding to withhold unsupervised time between our client and his child, without a valid reason. We urgently lodged a Contravention Application in the Federal Circuit Court against the other party and our client was successful in his Contravention Application and in proving that the other party did not have a reasonable excuse to withhold time between him and his child. Orders were made for immediate resumption of time in accordance with the final orders, makeup time for our client, as well as orders that the other party partake in a parenting after separation course together with entering into a good behaviour bond for 2 years, as a result of her contraventions. Our client was overjoyed to resume time with his child after 6 months of restricted time.

De facto spouse successfully obtains an order to keep the former matrimonial home and receives monetary settlement.

De facto separations can often bring about challenging times where one partner makes a decision that has a profoundly negative impact on the other. This was the case with our client Scott who came to us seeking legal advice after he found out his partner was trying to hide the fact that she was going to receive a significant inheritance from her late mother’s estate.
After careful scrutiny, seeking further disclosure about the inheritance and issuing relevant subpoenas, the other party agreed to our offer of settlement. This offer detailed that Tony would keep the former matrimonial home and for her to receive a small payout, on the basis that Tony knew she would land her inheritance in a short time.

Tony, who was already suffering from a work injury and financial burden, was provided a great deal of relief due to the family law settlement we achieved for him, in that he did not have to lose his home.

If you’re experiencing a breakup or divorce, it’s best to speak to the team at One Law today to discuss your options and entitlements.

Husband receives double the property settlement he was first willing to accept.

Not all separations go smoothly the first-time round. This was the case with Tony after he tried to reach an agreement privately with his wife, without first receiving legal advice. Tony’s ex-wife was legally represented during the initial discussion. Soon after the application was filed in the Family Court, it was rejected on the basis that the deal seemed unfair to the husband and also due to the fact that he did not receive legal advice before signing the agreement.

It was then that Tony came to see the family law team at One Law and in a short time, we were able to negotiate a fairer deal, which resulted in him walking away with double the property settlement sum that he was previously offered.

Often in circumstances like Tony’s, you may not always know what you might be entitled to in a property settlement. It’s always recommended to obtain legal advice before entering into negotiations so you know with certainty where you stand.

The team at One Law can assist with negotiations and settlement discussions to make sure you achieve a great result. Call us today on freecall 1800 663 529 to find out more.

Enquiry and prompt investigation leads to the discovery of undisclosed property and a successful spousal maintenance order for our client

It is often the case in many partnerships, where one partner is more actively involved in managing the family’s finances. In this particular instance, we acted on behalf of Melissa, whose ex-husband was managing the finances of their marriage, giving him most of the financial decision-making power.

Through the process of disclosure, properties previously not known to Melissa were uncovered, and we also became aware that her ex-husband had also been receiving significant amounts of rent from these properties, unbeknown to Melissa.

We acted quickly and applied for a spousal maintenance order for Melissa, who was suffering a huge amount of financial stress as a result of debts that had also been racked up. We succeeded in obtaining such an order, giving Melissa much needed financial support for herself and the children.

Father reunites with child after mother relocates with child to Melbourne without father’s consent

Michael came to us after his ex-wife had taken their one-year old daughter to Melbourne. She refused to return to Sydney, leaving Michael distressed and upset at the prospect of not seeing his daughter again.

In this instance, we filed an urgent application to the court to get orders for his ex-wife’s immediate return to Sydney, and our team succeeded at the first urgent hearing before a Judge.

Our team lawyers then succeeded at the next hearing in getting orders for the wife to remain in Sydney with the child. This meant that Michael was able to see his daughter regularly and continue to build a relationship with her.

Relocation matters can be complicated, but our team was able to draw on their expertise and act quickly to achieve a favourable result for Michael and his daughter.

If you find yourself in a similar situation, the team at One Law can help. Call us to find out more.

Financially Dependant Partner with ill child gets 67% of proceeds of property Settlement

Every family living situation is different, and in one such situation, we acted for a client who was financially dependent on their partner throughout their marriage. Anna was a stay at home mum of two, while her partner worked, and at the time of separation, her partner left their matrimonial home to move in with their new spouse, leaving Anna to care for their 2 children alone.

Following the separation, Anna’s ex-partner failed to adequately support her and the children, leaving Anna in a tough predicament, as not only had to raise the children alone, but she didn’t have the immediate skills required to return to work.

The team at One Law was able to achieve a favourable property settlement for Anna without having to go to Court and by arranging a mediation at our office. We argued her the ex-partner had a duty under the Family Law Act to financially maintain our client and the children as Anna did not have the same earning capacity as her ex-partner.

As she left to bear the costs of raising the children, which included one child who had an illness, we needed to ensure she could also afford whatever was necessary for that child’s needs.

We successfully negotiated a win for Anna, whereby she received 67% of the proceeds once the home was sold. Our team was able to prepare the mediation well, and achieved an excellent result for our client while saving court costs by reaching a resolution quickly.

If your family living situation has changed, it’s best to seek legal advice from the team at One Law, who can guide you through your legal rights and entitlements.

Slip and Fall at Supermarket results in $20,000 compensation for 74 Year old Pensioner

Our client Samuel was doing his weekly grocery shop at his local supermarket. On this particular day, he walked along the bread aisle and grabbed a loaf of bread before heading towards the checkout counter through the fruit section. During the short walk to the counters, Samuel slipped and fell causing injuries to his neck, lower back and shoulders.

He consulted with the team at One Law Group and sought our assistance in helping him navigate his compensation claim. Initially, the Defendant argued that the accident was not captured on CCTV Footage, and they denied any liability for the claim. However, our team worked to uncover evidence which proved the accident occurred at the supermarket. This proved to be a crucial aspect in obtaining damages for our client.

Samuel was a pensioner with pre-existing injuries, and as such the case was quantified modestly, however, One Law Group took the same care and diligence as they would in any other case, ensuring a fair, just and desirable outcome.

If you’ve been injured in a public place, get in touch with the team at One Law Group today to discuss your legal rights and entitlements.

Worker receives $200,000 in Compensation from Injury caused by lifting Old Analog Television at Work without Assistance

Jack sought the assistance of our firm after having sustained an injury to his back while working at a recycling and waste management site. During his employment, Jack performed what seemed to be the simple task of lifting a television out of a vehicle for disposal, but he accidentally twisted his upper body prior to moving his feet, which resulted in severe injury to his back.

With only months to retirement, Jack was rendered unemployable after having to undergo multiple operations on his spine.

After learning of Jacks story, and hearing of the physical, emotional and financial strain this injury had on his life, we started to build a case for compensation.

Our first priority was Jacks physical and mental health, and after spending time with him, we quickly learned of the significant impacts this injury had on his ability to complete even the simplest of tasks. We also learned there wasn’t adequate workplace safety measures in place, and Jack was not given any formal training in how to properly lift heavy or ill-shaped objects, both of which could have easily prevented Jack from sustaining such an injury.

With an evident breach in their duty of care owed to Jack, our team of accredited and experienced specialists and solicitors put Jacks employer on notice of intention to pursue a Work Injury Damages claim.

We obtained expert evidence and acheived an outstanding result for Jack, by resolving the matter prior to commencing court proceedings. This resulted in $200,000.00 in compensation for Jack.

If you’ve been injured at work you may not always know what your legal rights are, and if compensation is possible. That’s why it’s important to speak to the dedicated team at One Law. We take the time to listen to your story, and we fight hard to win your case.

Hazzardous Workplace and Lack of Assistance Results in $500,000 in Work Injury Damages Compensation Settlement

Our client Mark was injured during the course of his employment as a production/testing and inspection officer. His employer had instructed him to perform production and testing of wire rope and chain assemblies without the appropriate equipment, tools or assistance, and as Mark pulled a wire rope away from a winding machine, grease began to drip onto the floor causing him to lose his footing and fall backwards.

Mark’s health suffered greatly as a result of the incident, and not only was he rendered incapable of returning to work, but he also had to undergo surgery to fuse the damaged discs in his spine.

After learning more about Marks workplace environment, we came to understand that his employer was negligent, and had failed to uphold a duty of care to Mark. Knowing this, we were able to fight for compensation for Mark for loss of income and loss of superannuation for the past and the future.

Our dedicated team of specialists and solicitors experienced in workers compensation fought to settle the matter at the Workers Compensation Commission, resulting in $500,000.00 workers compensation settlement.

If you have suffered from a workplace injury and would like more information on your legal rights and entitlements, call the team at One Law today.

Over $4.3 mil Secured for a Family involved in a Head on Collision with a Truck Driver who fell asleep at the wheel

Our clients Mike, Jenna and their two kids were coming home from a short family vacation on the Gold coast with their Aunt Georgia, when tragedy struck.

A truck driver who fell asleep at the wheel swerved onto the wrong side of the road and collided head-on with the family’s vehicle. Georgia passed away at the scene of the accident, and the rest of the family suffered severe injuries.

Jenna, who was a passenger in the car was in a critical condition. She underwent multiple surgeries and was in a coma for 24 days. The extent of her injuries was extreme, as she had suffered injury to her brain, lungs, spleen, ribs, legs, feet and hands as well as her cervical and lumbar spine.

In addition to this, the entire family had to come to terms with the death of their aunt, and the new physiological, physical, and financial stresses this had on their lives. With Jenna and the family diagnosed with post-traumatic stress disorder (PTSD) and depression from the accident, they whole family needed extensive counselling and support to help them overcome the trauma they’d experienced.

Mike was unable to work for an extended period of time, as he too needed to recover from his injuries, in addition to caring for their two children. Both children required special care as the accident had not only caused physical injuries, but it affected their studies and mental health with recurring dreams from the accident and death of their Aunt.

The team at One Law Group supported the family through this trying time and dealt with the insurer with all aspects of the claim, from getting treatments approved to getting care at home and special equipment approved.

Our dedicated team fought to get a combined compensation of over $4.3 mil for the family to ensure their financial and future wellbeing was secure.

If you have been injured in an accident, contact One Law for expert legal advice.

Injured Worker receives $150,000 in lost Workers Compensation Weekly Payments

Our client Sarah was employed as a veterinarian, and on the date of her injury, she was lifting a heavy dog onto the bed, causing her to suffer an injury to her back. She reported the injury to the Workers Compensation insurer, who quickly declined the claim arguing that what had happened was not a substantial contributing factor to her injury.

Sarah was out of work for over a year and a half, and a spinal fusion surgery which the insurer refused to pay for had left her unfit for work. Stressed and unsure of what to do next, Sarah consulted with the team at One Law Group, who applied for a grant of funding from the Workers Independent Review Office (WIRO) to fight the insurer’s decision.

We gained expert evidence, which proved that the back injury was work related, and the surgery Sarah underwent was required as a result of the accident at work. We also worked closely with her treating doctor to obtain all the necessary reports which proved Sarah’s inability to work in the year and half since the incident.

We used this evidence to file another application to the insurer, who then revoked their initial dismissal. This meant that Sarah was paid all her lost wages as well as the cost of the fusion surgery which could have put Sarah out of pocket by approximately $50,000.

We’re now working on claims for a tax-free lump sum payout and a larger claim for common law negligence.

Don’t settle for less than you deserve. Get the best compensation lawyers on your side.

Security Guard Injured at Work Receives $46,500 Payout for Workplace Bullying and Harassment

Five legal mistakes to avoid after a car accident

After getting injured in a car accident, your actions can have an influence on whether you will receive money for damages. When consulting an auto accident lawyer, they will ask you what you did and did not do after the accident. To build the best case for you, avoid these five mistakes after an accident:

Not Calling the Police

While an officer does not work for you, the evidence they collect may help your case. They will provide evidence such as witness statements and photographs that are valuable to your lawyer. Police officers also create a crash report that details all aspects of the crash. If you do not call the police, your insurance company may grow suspicious of your actions.

Admitting Guilt

Even a simple apology can be turned against you. After an accident, you may feel bad about what happened, so you say sorry to the other party. However, they can tell the jury that you apologized for the accident, putting you at fault. It is best to simply keep quiet and contact a lawyer.

Leaving Out Parts of the Story

Your lawyer needs to know every single part of the accident, including your story. If you neglect to tell the whole story, your case will not be as strong due to inconsistencies. If there are some bad parts that may put you at blame, talk to your lawyer so they can best prepare a case for you.

Filing a Case Too Late

Some states have time limits on filing a case. You may find that your insurance company is holding you back on filing. This is to help them keep the money that you deserve in their own pockets. Act quickly and do not waste time.

Accepting a Traffic Ticket

If you get a traffic ticket due to the accident, you need to fight it. It may seem easier to just pay the fine. However, the court will see you accepting the ticket as guilt on your part, and you can lose your case. Have your auto accident lawyer represent you in court.

In Conclusion

Simple actions can quickly change the outcome of a case. The most important thing to do is to contact a lawyer and follow their advice. This will help you get the compensation you need to move on after the accident and injury.

Injured at work? 7 things you must know!

Most injured workers don’t know their rights or entitlements. Here are 7 things you must know.

You can make a claim for compensation.
If you’ve been injured at work you can immediately start receiving compensation for loss of wages if you are unable to return to work and treatment expenses such as investigations (MRI & CT scans), physiotherapy, specialists consultations and surgery.

You have the right to choose your own doctors and treatment providers.
You can consult your own family doctor, specialists or rehabilitation providers to assist you in your treatment, recovery and return to work. Don’t let anyone tell you otherwise!

You may be entitled to receive a tax free lump sum payment.
If your injuries become permanent you may be entitled to a tax free lump sum payment usually between $25,000 and $200,000. Your injuries will need to be assessed by an approved doctor.

If your injuries are serious or you are recovering from surgery you can apply to receive help around the home also known as domestic assistance.
Your injuries may prevent you from completing tasks around the home such as mowing the lawn and cleaning the house, if so the insurer may pay for these services on a temporary or ongoing basis.

Your workers compensation claim may not be the only claim for compensation you can make. There are times when others may be held responsible for your injuries.
There are times when others may be held responsible for your injuries and larger claims for compensation can be made, for example, if you are sent by your employer to a construction site managed by others, or involved in a car accident that was not your fault. If your injuries are serious, larger claims for compensation can be made against your employer and you may be eligible for total and permanent disability compensation through your superannuation fund.

If the insurer denies your claim or treatment they must provide you with a letter (usually titled a Section 74 Notice) explaining all the reasons for the denial.
You can usually fight any decision of the insurer at the Workers Compensation Commission with the assistance of a lawyer at no cost to you.

Injured workers are entitled to receive free legal representation.
Why struggle to deal with the insurer on your own when you can apply for free legal assistance. The Workers Independent Review Office (WIRO) will pay all your legal fees and will also pay for clinical records and medical reports from your treating doctors and reports from independent doctors needed to help prepare your case.

Help is available,  call our advice line on 9119 2232 to speak directly with one of our team. 

Workplace bullying and harassment

Security guard injured at work receives $46,500 payout for workplace bullying and harassment

Our client was employed as a security guard at a Hospital for 15 years. His employment was terminated for an alleged misconduct. Our client made a workers compensation claim for a psychological injury. The insurer declined his claim with a Section 74 notice. The insurer relied on Section 11A of the Workers Compensation Act, which provides that no compensation is payable for psychological injuries caused by reasonable action taken by the employer. In this case, the insurer said the termination was reasonable.

The injured worker consulted the expert Workers Compensation lawyers at One Law Group. One Law group took the time to listen to the injured worker and asked several questions. It was then discovered that the worker was targeted and harassed before the termination, because of his old age and race.

The Lawyers at One Law Group obtained several witness statements from his work colleagues. All the statements confirmed that the injured Worker was bullied, harassed and humiliated on several occasions because of his age and race. Forensic evidence from a psychiatrist was obtained which showed the injured worker was suffering permanent impairment as a result of the bullying and harassment.

An Application to Resolve a Dispute was filed with the Workers Compensation Commission. The Lawyers at One Law Group argued that the Worker was in fact bullied and harassed and that the termination was used as a vehicle to get rid of him. The actions of the employer were not reasonable in the circumstances. The insurer paid the injured worker a $46,500 lump sum payment for his psychological injury.

Get the best Workers Compensation Lawyers on your side. We listen and get the full story to ensure the best possible case is put forward.

Injured worker receives $150,000

Injured Worker receives $150,000 in lost workers compensation weekly payments.

Our client was employed as a veterinarian. On the date of injury, she was lifting a heavy dog onto the bed causing her to suffer an injury to her back. Our client did not realise how significant the injury was until weeks later when the pain increased, and she had to stop working. Our client reported the injury to the Workers Compensation insurer; however her claim was declined with a Section 74 notice. The insurer alleged that work was not the substantial contributing factor to her injury. Our client was out of work for 1.5 years and was still totally unfit for work. She also required fusion surgery which the insurer refused to pay for.

The injured worker consulted the expert Workers Compensation lawyers at One Law Group who applied for a grant of funding from the Workers Independent Review Office(WIRO) to fight the insurer’s decision. Expert evidence was obtained which proved that the back injury was work related and the surgery was required as a result of the accident at work. Reports from her treating doctor were also obtained.

An application with all the evidence was provided to the insurer. The insurer reviewed all the evidence and revoked the Section 74 notice. Our client was paid all her lost wages. The insurer also paid for the fusion surgery which cost approximately $50,000. The insurer continues to pay weekly compensation and medical treatment expenses.

Our client will also be entitled to a lump sum payout for permanent impairment. A claim in negligence will also be made against the employer for an unsafe system of work. Also, as the injuries are serious, and our client has not been able to return to work for more than six months, a claim against her superfund has been made to access her Total and Permanent Disability benefit which is worth $1 million.

Don’t settle for less than you deserve. Get the best compensation lawyers on your side.

Should you contest the will?

Have you been unfairly left out of a Will? Do you think you deserve a bigger share of the Estate? We can assist you to determine whether or not you are eligible to contest the Will.

Whilst the law usually protects a person’s right to make a Will however they choose, sometimes their decision (which may have been made many years before their death) ultimately results in an unfair outcome.

The State of NSW recognises that we have a moral obligation to provide for the people who are dependent on us financially when we die.

Reasons why a Will may be contested include:

• Whether a Will is grossly unfair.
• Whether the person left out of the Will has financial needs.
• Whether there are dependents which relied on the deceased financially.
• Whether circumstances regarding the relationship with the deceased changed after making the Will.
• Whether the deceased had mental capacity to make the Will.
• Whether the deceased was unduly influenced to make the Will.
• There is no valid Will.

In contesting a Will, we are governed by the legislation set out in the Succession Act 2006 (NSW). There are time limits in making a claim for provision against the State so you must act promptly.

Our expert Estate Lawyers at One Law will review your situation on a “no win no fee” basis to determine whether or not your claim has merit and whether we can assist you in lodging a Family Provision Claim against the Estate.

In reviewing your case we will look at:

• The size and value of the Estate
• Whether or not you were financially dependent on the deceased.
• Whether or not the claim is viable (costs versus outcome).

Contact one of our expert Estate Lawyers on 1800 ONE LAW (663 529) to discuss your situation confidentially.

Injured in a fall at a shopping centre?

Have you suffered an injury as a result of a slip and fall in a supermarket or shopping centre? We can help you investigate whether or not you can claim for compensation.

Shopping centres and supermarkets have a duty of care to customers to ensure the premises are kept clean and safe. Unfortunately, too often customers are injured due to poor cleaning practices resulting in spills which are all too easy to slip on and cause injury.

In the High Court decision of Strong v Woolworths Ltd [2012] HCA 5 Katherine Strong sued Woolworths Ltd (and another party) for compensation as a result of injuries caused by slipping and falling on a hot chip while on their premises. Katherine Strong argued that Woolworths Ltd had been negligent because at the time they had failed to have a proper system of cleaning in place.

The High Court found that Woolworths Ltd had been negligent for failing to ensure a proper system of cleaning was in place. The High Court also said that a system of cleaning and inspection within a 15-20 minute rotation would have been sufficient and could have prevented the incident occurring.

As a result of this decision, cleaning contractors, shopping centres and supermarkets all attempt to ensure that a system of cleaning and inspection is put in place on a 15-20 minute rotation. In order to prove negligence, it must be shown that this system has not been followed and that the spill had been on the floor for a sufficient period to find a party negligent for failing to clean it earlier.

What does this mean for my case and how can I see whether the Council had “actual knowledge”?

​We can assist you in investigating your case against a supermarket or shopping centre on a “no win no fee” basis. This means, if we investigate your case and find that the supermarket or shopping centre had a proper system of cleaning and inspection in place at the time of your incident, you do not have to pay us for the work that we have done.

If you would like us to investigate your case, we will write to the supermarket or shopping centre and confirm that we act for you and request that they provide us with information regarding their cleaners, inspection records, CCTV footage and the incident report. This information will help us to determine whether their system of cleaning was sufficient and in place at the time of your fall.

​Our accredited specialist personal injury lawyers can undertake an investigation into your slip and fall case on a “no win no fee” basis to determine whether or not you are eligible to claim compensation.

Feel free to contact one of our lawyers to discuss your case on 1800 ONE LAW (663 529).

Changes to the NSW CTP Scheme

The NSW Government has recently passed the Motor Accident Injuries Act 2017 (NSW). The new legislation will result in significant changes to the outcomes of compensation claims lodged on or after 1 January 2017.

The new CTP greenslip law creates a new system of what is called “statutory benefits”. Similarly if you were injured at work, your employer’s insurer would cover you for lost income, pay your treatment expenses and arrange for any domestic assistance required at home. The difficulty will be when there is a dispute regarding the benefits you should receive and the level of your injuries. These disputes will be handled by lawyers and it will be our role to fight the dispute and do everything we can you prove that your injuries are genuine and serious.

The advantages include:

• Everyone who is injured in an accident, regardless of fault, will be entitled to benefits covering wage loss, treatment and domestic assistance.
• Benefits will commence immediately after lodging a claim and will continue for 6 months or more depending on the level of your injuries.

The disadvantages include:

• There will be no entitlement to lump sum compensation for the majority of claims. Unless you are seriously injured (with a whole person impairment of 11% or more), you will not receive lump sum compensation.
• Regardless of whether or not your soft tissue injuries have resolved, benefits for soft tissue injuries will cease after six months. If your injuries are more serious, your benefits may continue for a maximum of two years.

Essentially the law has been created to prevent the majority of claimants from receiving lump sum compensation. This is due to the number of fraudulent and exaggerated claims within the system, ruining the system for the genuine claimants.

You can view the new legislation at http://www.legislation.nsw.gov.au/acts/2017-10.pdf .

If you are involved in a motor vehicle accident and have suffered injuries, we recommend that you lodge your claim as soon as possible after the accident. The team at One Law can assist you with the process to ensure you have a hassle free experience while you focus on your recovery. Our accredited specialists have the experience to ensure you receive maximum compensation.

Contact one of our personal injury lawyers on 1800 ONE LAW (663 529) if you have any questions regarding the upcoming changes in the CTP greenslip legislation in NSW.

Trip and falls on council property

Have you suffered injury as a result of a trip and fall whilst on Council property? Do you believe the Council has been negligent? Personal injury claims against government bodies such as the Council are difficult to win. This is because the law gives the Council protection from people making claims due to their supposed budgetary and time constraints.

There are certain sections within the Civil Liability Act 2002 (NSW) which protect Councils from claims against injured people for failing to fix issues within their Council. Examples include potholes, broken pathways and footpaths.

The legislation was discussed in the 2015 case of Nightingale v Blacktown City Council [2015] NSW 423. In Nightingale, a man suffered injury as a result of tripping on an uneven surface on a Council pathway. The pathway had sunken about 8-10cm at the join, causing a trip hazard. Mr Nightingale claimed that the Council was negligent in that it failed to repair the footpath and ensure the footpath was adequately lit at night.

The District Court of NSW found that the Council was not negligent because the people within the Council who were responsible for ensuring the maintenance and repair of the footpath were unaware of any defect that needed repair. As per the legislation within the Civil Liability Act, if the people responsible for the maintenance and repair of the pathway who work within the Council are unaware of the defect then they cannot be found negligent for someone who suffers injury as a result of that defect.

Mr Nightingale appealed the decision of the District Court of NSW and his appeal was heard by the Court of Appeal. The Court of Appeal dismissed Mr Nightingale’s case and said that for the Council to be found negligent, Mr Nightingale must have been able to prove “actual knowledge must be found in the mind of an officer within the Council having delegated (or statutory) authority to carry out the necessary repairs”. Unfortunately Mr Nightingale was not able to prove the Council’s knowledge of the particular defect in the footpath where he suffered his injury and as a result he was not able to obtain compensation for his injuries.

What does this mean for my case and how can I see whether the Council had “actual knowledge”?

Our specialist accredited personal injury lawyers can assist you in investigating your case against the Council on a “no win no fee” basis. This means, if we investigate your case and find that the Council did not have actual knowledge relating to the defect that caused your injuries, you do not have to pay us for the work that we have done.

There are a number of ways we can investigate whether the Council had actual knowledge of the defect. The first and most important thing we will undertake is a request for information under the GIPA (Government Information Public Access) Act. This request will force the Council to provide us with the information we request about the defect. This request will give us an initial idea as to whether we are able to assist you with a claim against the Council.

If you would like to know more information about a potential claim against the Council, please contact the team at One Law on 1800 ONE LAW (663 529).