g_and_s_law_group_ptd_ltd

Implications of the Use of our Mobile Phone in Social Situations

Wed, 19 Feb 2020 16:42:16 GMT

G&S Law Group acted for a Defendant who was charged with “Use Carriage Service to Menace / harass / Offend”, a plea of guilty was entered and following representations and amended facts prepared on behalf a defendant, “no conviction” was recorded against the defendant, provided he was of good behaviour for 6 months.

See links

https://www.dailymail.co.uk/news/article-4733946/Student-makes-ISIS-bomb-threat-Opera-House-Facebook.html

https://en.mogaznews.com/World-News/607401/Student-makes-ISIS-bomb-threat-to-Opera-House-on-Facebook.html

http://www.au123.com/news/australia/story/20180112/432991.html

Common Assault

Wed, 19 Feb 2020 16:36:32 GMT

Our office is currently acting for an aged worker wrongfully charge with common assault. The matter is currently on appeal to the District Court of NSW.

Please see links below

https://www.dailytelegraph.com.au/subscribe/news/1/?sourceCode=DTWEB_WRE170_a&dest=https%3A%2F%2Fwww.dailytelegraph.com.au%2Fnewslocal%2Fmanly-daily%2Fcare-worker-allegedly-assaulted-dementia-patient-at-rsl-war-vets-home-at-narrabeen%2Fnews-story%2F6dde7e04a31e82e65569d02ab1a53e07&memtype=anonymous&mode=premium&v21suffix=61-a

https://7news.com.au/news/court-justice/sydney-aged-care-worker-found-to-have-stuffed-wet-wipe-in-dementia-patients-mouth-c-419506

https://www.sbs.com.au/language/english/anita-prajapati-found-guilty-of-abusing-a-dementia-patient-in-aged-care-facility

https://hellocaremail.com.au/aged-care-worker-guilty-slapping-resident-stuffing-wet-wipes-mouth/

Loan Agreements, Family Members & Spouses

Wed, 19 Feb 2020 16:32:21 GMT

G&S Law Group have dealt with many matters whereby family members have loaned money to one another (including spouses), not bothered to spend some money getting the Loan Agreement written up by a Solicitor and ended up spending thousands trying to recover the money.

Below are some cases dealing with whether or not Spouses can commence proceedings for recovery of a loan in the Local Court or District Court, or if it should be dealt with as part o family law proceedings in the Federal Circuit or Family Court.

Patel v Patel and ORS [2015] NSWDC 2

Confirmed the authority in NSW & Bate v Priestly (not the Western Australian position). This was a how cause hearing in the District Court of NSW, which confirmed that:

73. Although there is no express admission by either the Husband or the Wife in their affidavits filed in connection with the Wife’s Notice of Motion or in the relevant pleadings, I am satisfied on the balance of probabilities, by having regard to the terms of the Deed itself, that at least one of its purposes was to effect an adjustment of property rights other than through the processes of the Family Court.

74. However, I am respectfully not persuaded that Bate v Priestley can on that basis be distinguished in the manner undertaken by the West Australian Court of Appeal in Sewell v Wilson – at least on the facts of the present case. In my opinion Bate v Priestley, until overruled in the High Court, continues in this State to stand for the proposition that parties to a marriage can, between themselves, and in respect of property adjustment issues, agree to provide remedies at common law outside those available under the Act. To agree to have such remedies does not purport to exclude the jurisdiction of the Family Court. If either party regularly invoked the jurisdiction of that court, it would be a matter for it to decide what effect or weight ought to be given to the Deed; and whether principles of estoppel (ANSHUN or otherwise) arose.

Decision:

75. In my opinion, therefore, this court does have jurisdiction to entertain the claim which relates to the Deed. In other words, the Wife has shown cause as to why the proceedings should not be struck out.

Bate v Priestly

The majority of the New South Wales Court of Appeal held that proceedings to enforce a deed of acknowledgment of debt by the wife against her former husband did not arise out of the parties' former marital relationship, but out of the deed.

Slattery v Slattery (1976) 2 FAM

(90-110), the Full Court of the Family Court held that the Family Court did not have jurisdiction to order the repayment of money lent by a wife to a husband during the course of a marriage, since the payment of a loan was not:

(a) a matter of maintenance since it did not involve considerations of needs and abilities to pay as required by Family Law Act 1975 (Cth) s 75; or

(b) a matter of alteration of property interests since it did not deal with any particular item of property of a party to the marriage.

Enduring Power Of Attorney

Wed, 19 Feb 2020 16:17:18 GMT

A power of attorney is an important legal document that allows you to appoint another person to manage and make financial decisions on your behalf.

The power of attorney gives the attorney the authority to manage your legal and financial affairs, including buying and selling real estate, shares and other assets, operating your bank accounts and spending money on your behalf.

Whereas an enduring power of attorney allows you the same as a normal power of attorney except the attorney’s power continues even if for any reason you lose your mental capacity to manage your own affairs.

An attorney under an enduring power of attorney cannot make decisions about your lifestyle or health. These decisions can only be made by a guardian (whether an enduring guardian appointed by you or a guardian appointed by the Civil and Administrative Tribunal or the Supreme Court).

We recommend you obtain Independent legal advice before appointing an Attorney to act on your behalf.

CPF15 v Minister for Immigration and Border

Wed, 19 Feb 2020 16:13:36 GMT

CPF15 v Minister for Immigration and Border Protection [2018] FCA 1764

G&S Law Group acted in this appeal to the Federal Court after proceedings were remitted back to Judge Street in the Federal Circuit Court. His Honour gave ex tempore reasons for refusing the application which we argued were inadequate, therefore not affording the Appellant’s procedural fairness. The Federal Court found that a number of factors in the decision had exposed appealable error and our appeal on behalf of the client was successful.

Key words.

Migration Appeal, denial of procedural fairness, cost argument, Judge Street, ex tempore reasons, denial of opportunity to be heard, adjournment application, jurisdictional error, Federal Court of Australia, Federal Circuit Court of Australia

See link below:

FULL CASE

Edward Lees Imports Pty Ltd v Commissioner for Fair Trading

Wed, 19 Feb 2020 16:00:48 GMT

Edward Lees Imports Pty Ltd v Commissioner for Fair Trading [2018] NSWCATOD 189 (27 November 2018)

G&S Law Group was successful in obtaining a Costs against Government Department of Fair Trading for delays and costs thrown away in the matter.

See link below

FULL CASE

Hanna v Semaan as the Administrator of the Estate of the late Nelson Semaan

Wed, 19 Feb 2020 15:52:31 GMT

Hanna v Semaan as the Administrator of the Estate of the late Nelson Semaan [2018] NSWCATAP 21 (17 January 2018)

G&S Law Group successfully acted on behalf of the Estate in relation to reopening an earlier determination made by the Tribunal.

Survivorship - Successor in title – costs in NCAT- Costs in NCAT Appeal – Home Building Claim.

The Tribunal Ordered:-

(1) Leave to appeal is refused and the appeal is dismissed.

(2) The appellant is to pay the costs of Dali Semaan as the Administrator of the Estate of the late Nelson Semaan, as agreed or assessed.

See link below

FULL CASE

Cambridge v Anastasopoulos

Wed, 12 Feb 2020 10:01:10 GMT

Cambridge v Anastasopoulos [2012] NSWCA 405

G&S Law Group acted for the Second Appellant in an appeal of proceedings which were originally determined in the District Court of NSW regarding whether a motorboat held by a repairer was held on bailment. Some of the issues relevant to the proceedings are:-

1. whether possession taken on behalf of second respondent

2. agreement that first and second respondents take possession of motorboat and quote for work

3. first respondent took possession on behalf of second respondent pursuant to agreement

4. Was second respondent liable as joint bailee

5. whether primary judge erred in admitting opinion as to value of motorboat

6. opinion not shown to be based on specialised knowledge in turn based on training or experience

7. assumptions on which opinion based not stated

8. no explanation for reasons for conclusion as to value

9. evidence should have been rejected

Link to the full case can be accessed below:-

FULL CASE

Youssef Taouk and Najibi Taouk v Najib Louis (No 3)

Wed, 12 Feb 2020 09:51:48 GMT

Youssef Taouk and Najibi Taouk v Najib Louis (No 3) [2014] NSWSC 1117

Darke J was required to consider an offer:

a) made prior to 4pm on Friday 28 March 2014;

b) which remained open for acceptance until 5pm on Monday 31 March 2014; and

c) where the trial commenced on Tuesday 1 April 2014.

The defendant made the above offer to the plaintiff and on 31 March 2014 served fresh evidence. The plaintiff submitted that the period for acceptance was unreasonably short.

The rules require an offer to remain open for a period of 28 days where it is made outside of two months before the first trial date, or otherwise must remain open for a reasonable period.

The Court held that the plaintiff should have been in a position to “give due consideration” to the offer and would have “had a clear appreciation of the strength (or weaknesses) of their case.” The Court noted that the evidence served went to issues already dealt with in other evidence. Accordingly, an award for indemnity costs was made.

Link to the full case can be accessed below:-

FULL CASE

Youssef Taouk and Najibi Taouk v Najib Louis (No.2)

Wed, 12 Feb 2020 09:46:20 GMT

Youssef Taouk and Najibi Taouk v Najib Louis (No.2) [2014] NSWSC 799 (20 June 2014)

G&S Law Group acted for the First Defendant in proceedings regarding a mortgage transaction. Some of the issues relevant to the proceedings are:-

1. whether loan and mortgage transaction procured by fraud

2. whether signatures on loan and mortgage documentation were forged

3. whether loan contract and mortgage unjust due to plaintiffs' ages, economic circumstances, educational backgrounds and abilities to understand English – pursuant to CONTRACT - Contracts Review Act 1980 (NSW)

Darke J subsequently dismissed the Statement of Claim against our client, with an order that our client’s costs be paid.

Link to the full case can be accessed below:-

FULL CASE

Youssef Taouk and Najibi Taouk v Najib Louis (No.1)

Wed, 12 Feb 2020 09:36:55 GMT

Youssef Taouk and Najibi Taouk v Najib Louis (No.1) [2014] NSWSC 656

REOPENING A CASE FOR NEW EVIDENCE

G&S law Group acted for the First Defendant in these proceedings. This case involved an allegation of Mortgage fraud by Mr. and Mrs. Taouk, both pensioners who claim that they were unaware of and did not sign loan documents that were used to refinance their home with Perpetual Trustees Australia Limited. The Plaintiffs were represented by Counsel and solicitor in the Supreme Court.

After eight days of hearing including a full day for oral submissions that had been supported by written submissions, the Plaintiff sought to re-open their case. The Plaintiff claimed they had new evidence from an accountant, Mr. Ward that was purported to have been involved with producing tax returns that the Mortgage manger, the Second Defendant, relied on when providing the loan. The allegation of the Plaintiff was that Mr. Ward’s ‘fresh evidence’ would establish that these tax returns had nothing to do with him and the Court found that the evidence would be relevant if allowed. However, after considering written submissions on behalf of the Plaintiffs about the interest of justice as set out in s 56 and 58 Civil Procedure Act his Honour Justice Dark held at 35:

“It is clear that if the case was now to be re-opened, considerable additional expense would be incurred by all parties, and the finalisation of the matter will be further delayed. It would also cause some unfairness to the defendants who have conducted the hearing, and likely made forensic decisions, on the basis that the hearing was concerned with the evidence given by the deponents of the affidavits which had been served prior to the hearing.

36. Viewing the circumstances overall, I have come to the conclusion that it is not in the interests of justice for the case to be now re-opened. Whilst the evidence which is sought to be adduced is clearly relevant, I do not think that it is of such importance that the hearing should be re-opened at this late stage, having regard to the considerable additional expense and inconvenience which would be brought about, coupled with the fact that the problem was created by lack of action on the part of the plaintiffs’ solicitor.”

It is clear that the Court has determined that ‘doing justice’ is a weighing up exercise where the competing interests of and any prejudices against each party must be considered. In the case the weight of the evidence claimed to be fresh evidence, did not outweigh the prejudice in terms of costs, delay and forensic disadvantage that the Defendants would have suffered and the new evidence was not allowed nor was the case re-opened. It also loomed large that it was the failure of the Plaintiff’s solicitor to properly prepare the case that caused the delay and for this reason case preparation more than ever is vital in civil litigation.

Link to the full case can be accessed below:-

FULL CASE

Betta Build Group Pty Ltd v El Baba

Thu, 06 Feb 2020 16:50:49 GMT

Betta Build Group Pty Ltd v El Baba [2019] NSWDC 331 (17 July 2019)

G&S Law Group acted for the homeowner, in proceedings regarding defective building works. Some of the issues relevant to the proceedings are:-

1. Whether the construction works undertake for the residential dwelling were in breach of statutory warranties under Home Building Act 1989 (NSW).

2. Whether the works were defective or incomplete.

3. Whether the Bellgrove v Elridge principal for the measuring of damages was applicable.

4. The Relevance of the sale of one of the dwellings to another party.

5. Whether the scope of rectification works as proposed by homeowner’s building expert were reasonable and appropriate.

The court made the following orders in the matter

1. Rejected the builder’s claims on quantum meruit and for delay damages.

2. Upheld the homeowner’s case on defects and the scope of actual and proposed rectification works and claim for overpayment to the builder.

3. Costs of the proceedings to date are reserved, pending the completion of the quantification exercise.

Link to the full case can be accessed below:-

FULL CASE

Wills & Family Provisions Claims

Tue, 31 Dec 2019 14:35:04 GMT

Making a Will

A Will is a legal document which sets out who’ll receive your property and possessions when you die.

When you have a valid Will, you give yourself the best chance of making sure your assets go where you want them to. So you should always make a Will if you have a family or if other people are financially dependent on you.

What makes a Will valid?

A Will generally needs three things to be valid:

• It must be in writing (whether handwritten, typed or printed)

• It must be signed, and

•Your signature must be witnessed by two other people who also need to sign the Will.

If you’ve met these three requirements, your assets can’t necessarily be distributed immediately, a court may need to grant probate first. Please contact G&S Law Group to discuss making a Will today.

What happens if you die without a Will?

If you die without a valid Will (known legally as ‘dying intestate’), usually means a court formula is used, which limits who can inherit from you. Having a valid Will is vital if you want to leave gifts to friends or charities. Please contact G&S Law Group to discuss.
Family Provision Claims & Challenging Wills

A Will can be challenged on the grounds that it is not valid. The person contesting an invalid Will would have to show that:

• it was not your last Will (you had made another one at a later date)

• it was not properly executed and witnessed

• you did not have mental capacity when you made it (which is why it is important to make a Will while you are still well and there is no question about your mental capacity)

• it was changed after it was originally signed, or

• you were forced or pressured (rather than just encouraged) into making the Will.

Certain categories of people (mostly family) can also contest a Will within 12 months of your death if they believe they weren’t properly provided for in the Will. This is called a ‘family provision claim’. Having your Will made by a solicitor can lessen the chances of this happening.

Who makes sure your wishes are carried out?

When you make a Will you’ll need to appoint an executor and trustee, who Will handle your affairs when you die. People usually choose one person to perform both roles, but you can name different people as executor and trustee, and you can name as many executors as you like (although appointing more than two can complicate things).
An executor’s role is to obtain probate, pay your debts, and distribute your assets in line with your Will.

Generally, a trustee administers any trusts set up in the Will. This usually happens where you leave assets to people under the age of 18. Before you nominate someone as an executor or trustee, you should make sure they’re comfortable taking on the responsibility you’re giving them. It’s often a good idea to appoint someone younger than you, or to nominate reserve beneficiaries, in case the ones you’ve appointed die before you do.
Because of their expertise in administering Wills, people often choose to appoint their solicitor as executor. Please contact G&S Law Group to discuss making a Will today.

Can you change your Will?

You should always change your Will when your circumstances change – for instance, if you divorce or remarry, or if one of your beneficiaries dies.
But you can’t just change your Will by crossing something out and writing something different.

Instead, where you want to make a minor change, you’ll need to make a codicil – which is effectively an authorised amendment to the Will. As with a Will, a codicil needs to be in writing and signed and witnessed by two people.

Where you want to make a major change, you’re usually best off making a whole new Will. Please contact G&S Law Group to discuss changing your Will today.

What happens if you marry or divorce?

Getting married normally cancels the terms of any Will you’ve previously drawn up.
If you divorce, it cancels any gift you made to your former spouse under your Will. It also cancels their appointment as trustee, executor or guardian under your Will, except as trustee for property left to any children.

You should always make a new Will if you marry, divorce, or if you’ve been separated for a long time. Please contact G&S Law Group to discuss.

Who can you leave your assets to?

You can leave your assets to whoever you like, but you have a general obligation to provide adequately for your spouse or de facto partner, your children, and any other dependents. If
you don’t they can bring a claim against your estate, known as a Family Provision Claim. Please contact G&S Law Group to discuss making a Will today.

Where should you keep your Will?

You should always keep your Will in a safe place and let your executor know where you’ve put it. That’s because, if you misplace your Will and no one can find it, it won’t be effective. G&S Law Group normally store your original Will for you (free of charge) and give you a copy for your own records.

Some people also choose to give their executor a letter of instructions separate to their Will, letting them know their intentions in more detail. Please contact G&S Law Group to discuss making a Will today.

DIY Wills

Some people choose to make their own Will. We think that’s a mistake. Although writing your own may seem easy enough, the law around Wills can be complex.

When you make a homemade Will, you risk not drawing it up properly or not expressing your intentions clearly enough. It’s also easy to create a tax liability which your beneficiaries Will have to pay. Finally, a DIY Will is more likely to be contested, which means the whole process of giving away your assets could end up in court.

That’s why, when you make your Will, it’s important you have it drafted by someone who understands the law and can advise you on the best way to make sure your assets end up where you want them to. And that means engaging a solicitor, contact G&S Law Group today to discuss making a Will today.

DRINK DRIVING (NSW)

Tue, 31 Dec 2019 14:35:03 GMT

DRIVING WHILST UNDER THE INFLUENCE OF ALCOHOL AND BREATH TESTING

It is an offence to drive a motor vehicle whilst under the influence of alcohol. Drink driving, is legally referred to as the offence of driving with a prescribed concentration of alcohol (PCA). Drink driving can be committed in places other than a road and road related area.

Novice range PCA

A novice range prescribed concentration of alcohol is a concentration of more than zero grams, but less than 0.02 grams of alcohol: s 8A(a) Road Transport (Safety and Traffic Management) Act 1999.

The novice range prescribed concentration of alcohol is applicable to holders of a learner licence or provisional licence.

Possible Defence to Novice Range

It is important to engage the services of our legal team, so that a solicitor can determine if you have a defence to this charge. A possible defence may include that the presence of alcohol in your blood was not caused by the consumption of an alcoholic drink.

Special Range Drink Driving

A special range prescribed concentration of alcohol is a concentration of 0.02 grams or more, but less than 0.05 grams, of alcohol: s 8A(b) Road Transport (Safety and Traffic Management) Act 1999.

Low Range Drink Driving

A low range prescribed concentration of alcohol is a concentration of 0.05 grams or more, but less than 0.08 grams, of alcohol: s 8A(c) Road Transport (Safety and Traffic Management) Act 1999.

Middle Range Drink Driving

A middle range prescribed concentration of alcohol is a concentration of 0.08 grams or more, but less than 0.15 grams, of alcohol: s 8A(d) Road Transport (Safety and Traffic Management) Act 1999.

High Range Drink Driving

A high range prescribed concentration of alcohol is a concentration of 0.15 grams or more of alcohol: s 8A(e) Road Transport (Safety and Traffic Management) Act 1999.

Defence

A person charged with drink driving may raise the issue of honest and reasonable mistake (of fact). Once a proper basis for such a mistake has been shown by the defendant, the onus is on the prosecution to negative the existence of an honest and reasonable mistake of fact beyond reasonable doubt.

An example of the issue of honest and reasonable mistake of fact, may be relevant in circumstances of alleged drink spiking.

Driving under the Influence of Drugs

It is also an offence to drive or attempt to drive a motor vehicle whilst under the influence of illicit drugs. This includes morphine or cocaine being present in your blood or urine.

This offence carries with it an automatic disqualification from driving for six months with a minimum of three months for a first offence and for a second offence an automatic disqualification of 12 months with a minimum of six months. This is identical to that of a conviction of low range PCA.

Miscellaneous

It is an offence to drive a vehicle, occupy the driver’s seat of a vehicle or to attempt to put the vehicle in motion while under the influence of alcohol or any other drug.

It is an offence for the holder of a driver licence, while under the influence of alcohol or any other drug, to be seated next to the holder of a learner’s licence who is driving the vehicle.

Detention of motor vehicles

If you are involved in a drink driving or other offence mentioned above, a police officer may take charge and remove your motor vehicle which was involved in driving under the influence of alcohol or drugs. If this action was reasonable, the court may order costs to be paid by you for this to occur.

Need your licence?

Although you may be guilty of an offence, in certain circumstances you may be entitled to a dismissal without conviction pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999. This section allows a court to discharge you without recording a conviction of an offence, although you have pleaded guilty to the offence. If granted, there is no loss of driver’s licence and no other penalty.

However, a Court will only consider the grant of a section 10 in the most deserving of circumstances and will take into account a number of matters. Therefore you will need specialised legal advice to determine what matters to address before the court so that the most favourable outcome is achieved.

If you need your licence, then call our office now to discuss with one of our lawyers / solicitor, a strategy and the most effective way to get the best possible result for your case, and how to retain your licence.

Divorce – Essential Facts

Tue, 31 Dec 2019 14:35:02 GMT

Divorce – Essential Facts

Requirements of a valid marriage

The law in Australia with provides that in order to be validly married you must meet a number of requirements, some of which will be considered.

The marriage must be monogamous union – that is you cannot be married to more than one person at the same time. (If you are then you may have committed the offence of bigamy, which is a prosecutable offence).

The marriage must be a heterosexual union – which means the marriage must be between a male and a female.

The marriage must be a union for life – you must marry with the intention of spending your rest of your life with that person.

The marriage must be a voluntary union – you have not been forced into the marriage and have married of your own will and accord.

Requirements for a divorce

Unfortunately, there are many situations whereby a husband and wife after living together for some time, decide that they no longer wish to be married to that person and seek to have marriage legally nullified i.e. divorced.

Some of the requirements for a husband or wife to obtain a divorce are dealt with in this article. The first is whether or not you been married for more than two (2) years? The law requires that if you have not been married for a period of more than two years than you may need to seek professionally counselling with your spouse, before you can legally apply for a divorce. Although, there may sometimes be exceptions to this requirement.

The Court must be satisfied that you and your partner have been separated for a period of twelve (12) months or more (this may be so, even if you have been living under the same roof). It is important that you seek professional legal advice to ensure that you meet this requirement.

You must be an Australian citizen and/or have a current and valid Australian visa and lived in Australia for a period of 12 months or more.

If you wish to obtain a divorce or are not sure if you are allowed to get married then contact our office for an obligation free consultation.