newsletter - Kenny Spring Solicitors

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Winter
newsletter
Issue 5 • July 2009
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Welcome to the fifth Kenny Spring Solicitors newsletter, packed with updates and news on legal issues that affect
your personal, business and working lives.
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legal updates
POSTAGE
PAID
AUSTRALIA
Changes to Workers Compensation death benefits
New security features for certificates of title
In December last year the Workers Compensation Legislation
Amendment (Benefits) Act 2008 commenced. This Act introduced
changes to existing legislation, including:
To prevent identity fraud and instances of forged Certificates
of Title, the Department of Lands has introduced new security
measures and changes to Certificates of Title for real property
from 1 June 2009. These include an Authentication Code, Security
Trust Seal, fine line pattern and a watermark. Talk to Rod Anthes
for further details on these new measures.
• An increase to the lump sum death benefit to $425,000;
• Allowing the lump sum death benefit to be paid to a worker’s
estate where the deceased worker leaves no dependants;
• Ensuring that weekly payments to a dependant are not reduced
because of partial dependency. However, partial dependency
may still be taken into account when apportioning the lump sum
between multiple dependants.
These reforms are retrospective and apply to deaths that occur
on or after 24 October 2007, as a result of workplace injuries
that occurred on or after 30 June 1987. However, the reforms
do not apply to death benefit entitlements under the Workers
Compensation (Dust Diseases) Act 1942.
If you have any questions about workers compensation matters,
talk to Angus Edwards or Kristi McCusker.
New Federal Magistrates appointed
Level 1
The Reliance Centre
203-209 Russell Street
PO Box 149
Bathurst NSW 2795
DX 3103 Bathurst
T 02 6331 2911
F 02 6331 8957
Branch Office:
95 Oberon Street
Oberon NSW 2787
T 02 6336 1485
www.kennyspring.com.au
Rod Anthes
r.anthes@kennyspring.com.au
Angus Edwards
a.edwards@kennyspring.com.au
Kristi McCusker
k.mccusker@kennyspring.com.au
Peter McManus
p.mcmanus@kennyspring.com.au
Daryl Pike
d.pike@kennyspring.com.au
The Federal Magistrate’s Court has recently
made a number of new appointments
including Federal Magistrates Judith Walker,
Geoffrey Monahan, David Dunkley and
Dale Kemp. Federal Magistrate Dunkley has
recently been sitting in the Orange circuit
sittings of the Federal Magistrate’s Court. It is hoped the appointment of additional
Magistrates will assist in clearing the
backlog of family law cases currently before
the courts.
Changes to the Coroner’s Act
The State Government has made a number of changes to the
Coroner’s Act to expedite coronial enquiries and improve their
effectiveness. Of particular note are additional steps to ensure
Government agencies respond to any recommendations made by
the Coroner as a result of any enquiry.
Of more interest, particularly for clients who have been involved in
coronial enquiries, is to ensure closer consultation with the next of
kin or other interested persons.
The President of the Law Society, Mr Catanzriti said, “The coronial
enquiry can be a very emotional time. The Law Society is pleased
that a more consultative approach, particularly with family, is being
adopted”.
The changes came into effect on 19 June 2009.
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Kenny Spring Solicitors news
New faces
Karen Hummelshoj recently joined the litigation team, supporting
solicitors in the areas of family and criminal law. Karen brings
with her a wealth of administrative experience from previous
employment including Telstra and the Morse Group.
Rachelle Turner has also joined the Kenny Spring team after
completing her HSC at Mackillop College. Rachelle provides
administrative support to solicitors and secretarial staff, and assists
with reception. She is currently studying her Certificate III in
Business.
Parking restrictions eased
Visitors to the Kenny Spring Solicitors office will be pleased to
know that parking restrictions have eased with the opening of the
new shopping centre. Parking is also available in Russell Street.
issues
Demerit points and section 10 dismissals
When facing a criminal charge, such as a speeding offence, people
with a clean record can apply for the offence to be dismissed
without conviction under Section 10 of the Crimes (Sentencing
Procedure) Act 1999 NSW. Under Section 10, the court can find
the person guilty of the offence, yet no conviction is recorded on
their criminal record and penalties, such as losing your license, are
waived. The court can also impose a good behavior bond of up
to two years. The nature of the offence and the record of the
person charged are taken into account by the Court.
While the Crimes (Sentencing Procedure) Act 1999 NSW allows
the court to dismiss charges after finding a person guilty, the
Road Transport (Driver Licensing) Act 1998 NSW does impose a
penalty. The wording of the Act requires that anyone found guilty
of an offence will still lose the proscribed demerit points, although
no criminal conviction will be recorded.
Child support agreements
The Child Support Assessment Act provides for two forms of
agreement between parents who have separated:
The great advantage of mediation is that it must be by agreement,
and it does not end up with a judgment against either party. The
vested interest of both parties is an outcome freely negotiated
and not financially destructive.
Needless to say, great caution should be exercised when
contemplating the entry into a franchise arrangement. Kenny
Spring Solicitors has extensive experience in advising with respect
to franchise documents and business matters, consult with Rod
Anthes about this today.
What to do in a home building dispute
1. Binding Child Support Agreement – this can only be entered
into after legal advice as to its advantages and disadvantages. The
parties need to be very sure of their circumstances before entering
into such an agreement as it cannot be varied, even if your
circumstances change, such as loss of employment. However, it
can be terminated upon both parties receiving independent legal
advice with respect to such termination.
Mediators are available locally for a variety of types of cases at
modest cost. If you find yourself in a dispute, talk to Rod Anthes
or Daryl Pike to find out more about mediation.
The New South Wales Home Building Act 1989 requires that all
home building disputes must be referred in the first instance to
the Office of Fair Trading’s dispute resolution process. This may
involve referral to a building inspector or direct referral to the
Consumer, Trader & Tenancy Tribunal (CTTT).
If you are unsuccessful, in the Office of Fair Trading’s dispute
resolution process, then you can make an application to the CTTT
Home Building division to settle a home building dispute.
The CTTT’s Home Building division deals with disputes between
consumers, traders and insurers concerning residential building
work up to the value of $500,000.
2. Limited Child Support Agreement – requires an
administrative assessment at the time of entering into the
agreement. The agreement must provide for payment of child
support for an amount at least equal to any existing agreement,
and must be approved by the Child Support Registrar.
Common types of home building disputes include:
The agreement can be terminated if a new assessment finds that
payments should be for an amount that varies by more than 15%
from the agreed amount.
• Insurance
For further information on child support agreements or any family
law matter contact Angus Edwards.
Franchisee problems
It is absolutely essential that anyone who wants to become a
franchisee receives legal advice with respect to the franchise
documents and carries out an appropriate due diligence (via their
solicitor) of the franchisor. Without such advice you could end up
like many of the Kleenmaid franchisees who are now unsecured
creditors, unlikely to be paid, following the franchisor’s collapse.
More importantly, in a lot of cases the franchisor holds the lease
over the business premises, and of course, supplies the product.
If the franchisor collapses, the franchisee can be left without the
right to occupy their business premises and with no access to
products to sell.
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Typically, solicitors place a great deal of emphasis upon a proposed
franchisee’s documentation, the liability to the franchisor and
finance for the new venture. However, equal emphasis must be
placed upon investigating the substance of the franchisor with
whom the client is dealing. This involves searches and enquiries
into the solvency and liquidity of the franchisor, together with
careful investigation of any matters which are disclosed by the
franchisor which may be of later concern, such as major lawsuits.
• Home owner’s non-payment for building work
• Building work not carried out as agreed in the contract
• Defective building work
Alternate dispute resolution – mediation
Disputes are always stressful and have the potential to be
emotionally draining, whether they involve personal or business
relationships. Until recently the only place to have a dispute
resolved was the civil courts, which is inevitably expensive,
emotionally draining and there can only be one winner.
More recently, mediation has emerged as an alternative to the
courts. It is a process of facilitation by trained mediators which is
protected by confidentially.
The CTTT will first attempt to settle the matter via conciliation,
however if both parties are unable to reach an agreement, the
case will be heard by the Tribunal. If a party fails to attend a
hearing, the CTTT may deal with the matter in the absence of the
party, including dismissal of the case or an order as to costs.
It’s important to be aware of the processes available for resolving
building disputes and that you are well prepared should it go
before the Tribunal. Contact Angus Edwards or Peter McManus
to assist you with your home building dispute.
We specialise in a range of areas of the law, including:
Real estate, planning & conveyancing (selling and purchasing property)
Business & company advice, including debt recovery
Insurance disputes • Wills, probate & estate planning • Court cases • Family law
Defacto relationship disputes • Dispute resolution • Employment law • Workers compensation claims
Personal injury matters, including public liability & motor vehicle accident claims • Criminal & police matters
www.kennyspring.com.au