Pierre Hawach quoted in ‘The Daily Telegraph’

McAuley Hawach Lawyers — Tue, 13 Feb 2018 02:32:18 +0000

Pierre Hawach of McAuley Hawach Lawyers was quoted in this morning’s ‘The Daily Telegraph’.

Shareholders’ Remedies: Part 1 – Expansion of Oppressive Conduct Claims in NSW

McAuley Hawach Lawyers — Fri, 02 Feb 2018 05:49:03 +0000

In the first in a series of articles focusing on shareholders’ remedies, we look at potential changes to shareholders’ remedies in NSW which may involve an expansion of potential claims.

The law in NSW is significantly different to the law in Victoria when it comes to the state court’s respective approaches to granting remedies for oppressive conduct where a company is a trustee holding assets in trust.

Section 232 of the Corporations Act 2001 (Commonwealth) (the Corporations Act) provides that the Court may make an order if the conduct of a company’s affairs, or an actual or proposed act or omission by or on behalf of a company, or a resolution, or a proposed resolution, of members or a class of members of a company, is either:

Contrary to the interests of the members as a whole; or

Oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

Section 233 of the Corporations Act provides that the Court may make any order that it considers appropriate in relation to a company including an order that the company be wound up, that the company’s existing constitution be modified or repealed, regulating the conduct of the company’s affairs in the future, requiring the purchase of any shares by any member or person to whom a share in the company has been trasmitted by will or by operation of law, or various other remedies as provided for in this section.

The Courts in Victoria have interpreted section 232 and 233 of the Corporations Act as enabling beneficiaries of a trust to seek relief for oppressive conduct where the trustee is a company: see Vigliaroni v CPS Investment (2009) 74 ACSR 281.

The Courts in NSW have interpreted section 232 and 233 of the Corporations Act as not being open to beneficiaries of a trust: see Trust Company Limited v Noosa Venture 1 Pty Limited [2010] NSWSC 1334.

It is not clear what the federal Court’s view is in relation to the question.

A recent report of the Victorian Law Reform Commission, entitled “Trading Trusts – Oppression Remedies” recommended legislative reform, essentially to fall in behind the Victorian Court’s position.

The New South Wales Law Reform Commission has put out a Consultation Paper late last year and is seeking submissions.

Given the undesireability of having conflicting legal positions in NSW and Victoria, there would seem to be a real prospect that either NSW will fall in behind Victoria, or the Commonwealth will legislate in relation to this area of the law, or the High Court of Australia will determine the issue.

By Steve McAuley, McAuley Hawach Lawyers

Principal Solicitor

Accredited Specialist – Commercial Litigation

Telephone: (02) 9633 1826

Email: reception@mcauleyhawach.com.au

Website: www.mcauleyhawach.com.au

Parramatta Office: Level 7 | 9 George Street | Parramatta NSW 2150 | Australia

PO Box 873 | Parramatta NSW 2124 | Australia

DX 8282 Parramatta

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. The information therefore does not constitute legal advice and should not be relied upon. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

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Shareholder rights under review by NSW Law Reform Commission

McAuley Hawach Lawyers — Fri, 26 Jan 2018 07:36:40 +0000

Beneficiaries of trusts have limited rights when they are not shareholders of the trustee company. The law in Victoria grants such shareholders more rights and it may well be that the Victoria parliament will enact legislation extending those rights even further. In NSW, the rights of beneficiaries of trusts are more limited. However the NSW Law Reform Commission is examining this area of the law and is calling for submissions. A link to the section of the website of the NSW Law Reform Commission which deals with this area of potential reform is at:

http://www.lawreform.justice.nsw.gov.au/Pages/lrc/lrc_current_projects/Beneficiaries/Beneficiaries.aspx

By Steve McAuley, McAuley Hawach Lawyers

Principal Solicitor

Accredited Specialist – Family Law

Telephone: (02) 9633 1826

Email: reception@mcauleyhawach.com.au

Website: www.mcauleyhawach.com.au

Parramatta Office: Level 7 | 9 George Street | Parramatta NSW 2150 | Australia

PO Box 873 | Parramatta NSW 2124 | Australia

DX 8282 Parramatta

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Travelling overseas with a child after separation

McAuley Hawach Lawyers — Wed, 08 Nov 2017 00:28:05 +0000

Travelling overseas with a child can be quite difficult in itself without the added complexity of trying to arrange overseas travel when there are Family Law proceedings before the Courts in relation to parenting matters.

Passports, visas, flights, accommodation and other travel arrangements may be planned, however travelling overseas with your child without obtaining a Court order or without obtaining the written consent of the other parent is an offence punishable with up to 3 years of imprisonment.

Sections 65Y and 65Z of the Family Law Act prohibit the taking or sending of a child from Australia to a place outside Australia unless it is done with the consent in writing of each other party to the proceedings or is done in accordance with an order of a Court.

Conversely, if you become aware of your former spouse intending to travel overseas without your consent there are steps that you as a parent can take to place the children on the airport watch list and have the Australian Federal Police prevent the children from boarding any aircraft or vessel and leave Australia irrespective of whether there are proceedings before the Family Law Courts.

Any parent who has separated and is seeking to travel overseas with a child should first obtain legal advice prior to making any arrangements to do so, especially in circumstances where there are parenting matters before the Family Law Courts.

The last thing a parent would want to see is a child getting excited about overseas travel with their bags packed and arriving at the airport only to be told by the Australian Federal Police that they are not permitted to board their plane and travel to their overseas destination.

By Pierre Hawach, McAuley Hawach Lawyers

Principal

Accredited Specialist – Family Law

Telephone: (02) 9633 1826

Email: reception@mcauleyhawach.com.au

Website: www.mcauleyhawach.com.au

Parramatta Office: Level 7 | 9 George Street | Parramatta NSW 2150 | Australia

PO Box 873 | Parramatta NSW 2124 | Australia

DX 8282 Parramatta

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What happens if you die without a Will?

McAuley Hawach Lawyers — Fri, 06 Oct 2017 06:22:11 +0000

Approximately half of Australians do not have a Will, according to the NSW Trustee & Guardian. This figure is almost certainly an underestimation. A more realistic figure is that 70% of Australians do not have a Will.

There are various consequences of not having a Will, including that a person’s estate may end up being received by unintended beneficiaries. Other consequences include that the estate may be controlled by an unintended person, close relatives may be inadequately catered for, legal disputes may arise as to who should inherit, unintended tax consequences may eventuate, and additional time and costs will almost certainly be involved in administering a deceased estate where there is no Will.

If a person dies without a Will, and does not leave a spouse or children, there are rules that set out who is to inherit. As a general proposition, the following inherit in the order set out below:

Parents
Siblings
Grandparents
Uncles and aunts
Next of kin
The Crown

Different states and territories of Australia have different rules in relation to who inherits.

In New South Wales, the Succession Act 2006 sets out the law in relation to intestacy.

In New South Wales, a “spouse of an intestate” person is defined as a person:

Who was married to the intestate immediately before the intestate’s death; or
Who was a party to a domestic partnership with the intestate immediately before the intestate’s death.

The law in relation to succession is complex and it is important to obtain legal advice based on your individual circumstances. For an obligation fee appointment, please contact our office today on (02) 9633 1826 or email reception@mcauleyhawach.com.au.

By Steve McAuley, McAuley Hawach Lawyers

Telephone: (02) 9633 1826

Email: reception@mcauleyhawach.com.au

Website: www.mcauleyhawach.com.au

Parramatta Office: Level 7 | 9 George Street | Parramatta NSW 2150 | Australia

PO Box 873 | Parramatta NSW 2124 | Australia

DX 8282 Parramatta

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Motor Accident? Don’t delay – lodge your claim on time!

McAuley Hawach Lawyers — Thu, 25 May 2017 06:53:15 +0000

If you are involved in a motor accident and suffer any injury (or even think you may have suffered an injury), a claim form should be lodged.

There are time deadlines that need to be kept in mind when lodging a claim form.

The accident must be reported to police, preferably as soon as possible after the accident and ideally at the accident scene.

Otherwise, a report must be made to the police within 28 days after the accident at the latest (but it is not advisable to leave it so late).

A compulsory third party insurer may reject a motor vehicle accident claim if a late report to the police is made.

The claim form needs to be submitted to the compulsory third party insurer of the driver at fault within six months of the accident.

There is a shorter claim form that needs to be submitted within 28 days of the accident.

If the claim is lodged after the 6 month period, the claim will not ordinarily be accepted unless there is a fully and satisfactory explanation for the delay.

Similarly, if you are the close relative, or the executor or administrator of an estate, of a person who died in a motor vehicle accident, a claim form must also be lodged with the compulsory third party insurer no later than 6 months after the accident.

Obtain advice

It is important to obtain legal advice in relation to making a motor accident claim.

Please feel free to contact us for an obligation free discussion.

By Steve McAuley and Andre Lim, McAuley Hawach Lawyers

Telephone: (02) 9633 1826

Email: reception@mcauleyhawach.com.au

Website: www.mcauleyhawach.com.au

Parramatta Office: Level 7 | 9 George Street | Parramatta NSW 2150 | Australia

PO Box 873 | Parramatta NSW 2124 | Australia

DX 8282 Parramatta

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Who is the Father? Presumption and Evidence of Parentage

McAuley Hawach Lawyers — Mon, 20 Mar 2017 21:00:58 +0000

Sadly, there are circumstances where there may be doubt as to who the biological father of a child is.

In these circumstances, the law applies a presumption in respect of parentage and evidence that may be obtained to decide the biological parent of the child at law.

Presumptions may be made by the Court in circumstances:

where a child has been born while the mother is married; and/or
where a child has been born and the mother has been living with a man; and/or
from the registration of the birth certificate of the child and the names noted on the certificate; and/or
in circumstances where the Court has made a finding that a person is the parent or it could not have been any another person, and that finding has not been challenged; and/or
an acknowledgment or declaration in a document by the man that he is the biological father of the child.

The above presumptions may be rebutted by evidence which satisfies the Court on the balance of probabilities.

A parent may also apply to the Court to obtain evidence in respect of parentage of a child where parentage is an issue in the proceedings before the Court.

The Court after receiving evidence may make a declaration as to the parentage of the child which will be conclusive evidence of the parentage of that child for the purposes of all laws in Australia.

The Court may make a parentage testing order on its own initiative or on the application of a party or an independent children’s lawyer.

Failure to comply with the order does not result in a penalty per se, however the Court will use the failure to comply with the Order to draw an inference against the person who failed to comply with the testing order.

By Pierre Hawach,

Solicitor Director

McAuley Hawach Lawyers

Level 7, 9 George Street

Parramatta NSW 2124

Tel: (02) 9633 1826

Fax: (02) 9687 8114

Web: www.mcauleyhawach.com.au

Email: reception@mcauleyhawach.com.au

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.

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Two Ways a Contract can be ‘Illegal’

McAuley Hawach Lawyers — Wed, 15 Feb 2017 01:19:31 +0000

A contract can be ‘illegal’ because it is prohibited by legislation or it infringes a rule of public policy.

Prohibited by Legislation

In order for a contract to be ‘illegal’ because it is prohibited by legislation, the contract must be expressly or impliedly prohibited by legislation. An example might be a contract for gambling where parliament has prohibited and/or regulated such contracts.

It is important to remember that a failure to comply with a legislative requirement impacting upon a certain type of contract does not necessarily mean that the contract is automatically illegal. It may be that the contract is rendered void, voidable or unenforceable. For example, contracts for sale of land must be in writing but a failure to comply with this requirement does not mean the contract is ‘illegal’.

Infringes Public Policy

A contract may also be illegal because it infringes a rule of public policy. An example may be where a contract involves the commission of a criminal offence.

Another example may be a contract that prejudices the administration of justice.

Impact of a contract being ‘illegal’

Generally speaking, if a contract is void and/or illegal, any action on the contract will not be possible.

Illegality can impact on the rights and remedies of the parties to the contract. A court may refuse to grant relief to an illegal contract on the ground of, for instance, public policy.

If some but not all of the terms or conditions of a contract are illegal, the court may ‘sever’ the illegal terms or conditions but not deem the ‘non-illegal’ terms or conditions to be illegal.

A term or condition which is partially legal and partially illegal may be severable so as to allow the enforcement of the legal part of the term or condition.

Conclusion

It is important to obtain legal advice in relation to all of these matters. Please feel free to contact us for an obligation free discussion.

By Steve McAuley, Accredited Specialist – Commercial Litigation; telephone: (02) 9633 1826; facsimile: (02) 9687 8114; email: stevemcauley@mcauleyhawach.com.au

Parramatta Office: Level 7 | 9 George Street | Parramatta NSW 2150 | Australia

PO Box 873 | Parramatta NSW 2124 | Australia

DX 8282 Parramatta

P: (02) 9633 1826 | F: (02) 9687 8114 | M: 0413 853 331

W: www.mcauleyhawach.com.au | E: reception@mcauleyhawach.com.au

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Five Ways to Challenge a Will

McAuley Hawach Lawyers — Mon, 14 Nov 2016 21:50:37 +0000

There are many ways to challenge the validity of a Will. If a Will is successfully challenged, a Will can, in effect, be set aside or varied.

The main ways of challenging a Will are to allege undue influence, fraud, forgery, lack of testamentary capacity and/or bring an application under the Succession Act 2006 (NSW).

1 Undue influence

A Will may be set aside due to ‘undue influence’. In this context, ‘influence’ means a psychological ascendancy by the donee over the donor, and ‘undue influence’ means the donee takes improper advantage of such ascendancy: Union Bank of Australia v Whitelaw [1906] VLR 711 at 720.

It is not necessary that the ascendancy amount to domination: Goldsworthy v Brickell [1987] Ch 378 at 402-6.

In order to prove undue influence, it is generally necessary to prove facts establishing that the gift was made by the donor as a result of undue influence of the donee; or facts that give rise to a presumption that the gift was so made, unless the donee rebuts the presumption in the manner mentioned below: see Quek v Beggs (1950) 5 BPR 11,761 at 11, 764.

A presumption of undue influence arises if it is proved that at the time the gift was made there existed a relationship between the donor and the donee of such a nature as to involve reliance, dependence or trust on the part of the donor resulting in an ascendancy on the part of the donee; and the gift is so substantial, or so improvident, as not to be reasonably accounted for on the ground of friendship, relationship, charity or other ordinary motives on which ordinary persons act: Allcard v Skinner (1887) 36 Ch D 145, 185.

The donee may rebut the presumption of undue influence, when it arises, by proving that the donor (a) knew and understood what he or she was doing; and (b) was acting independently of any influence arising from the ascendancy of the donee: see Lancashire Loans Ltd v Black [1934] 1 KB 380 at 409; West v Public Trustee [1942] SASR 109 at 119.

2 Fraud

If it can be proved that the Will was procured by fraud, it may be set aside or varied. In Re Snowden (dec’d) [1979] Ch 528, Megarry V-C considered the relevance of fraud in some detail. In that case, his Lordship was referring to deliberate and conscious wrongdoing. It might be argued that trickery or the making of false statements amounts to fraud. It is often difficult to prove fraud.

3 Forgery

A document purporting to be the Will of the deceased might be a forgery. If this can be proved, the document may be set aside. A forgery might involve a circumstance where a potential beneficiary creates a document and claims that the document is the last known testament of the deceased person. Expert evidence may be required to prove a forgery.

4 Lack of testamentary capacity

In order for a Will to be valid, the person making the Will must have ‘testamentary capacity’. In general terms, the person must be of full age, in possession of the necessary mental capacity and must know and approve the contents of the Will.

In addition, the person making the Will must possess the necessary testamentary intention.

Generally, a person must be 18 years of age to make a Will and must be of sound mind, memory and understanding. Sanity is presumed unless the contrary is shown.

It is also necessary that the person making the Will know and approve the contents of his or her Will at the time of execution.

5 Succession Act 2006 (NSW)

An eligible person may bring an application to, in effect, vary or set aside the terms of a Will. In general terms, the Court may make an order varying the Will if the Court is satisfied that at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

Persons who can bring an application to the Court for a family provision order include a person who was the wife or husband of the deceased person at the time of the deceased person’s death, a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death, a child of the deceased person and a former wife or husband of the deceased person. There are other categories of eligible persons who can bring an application for a family provision order.

Conclusion

It is important to immediately seek legal advice regarding your rights. Contact us for a free and no-obligation first consultation today to discuss your matter.

By Steve McAuley, Accredited Specialist – Commercial Litigation

McAuley Hawach Lawyers.

McAuley Hawach Lawyers

Level 7, 9 George Street

Parramatta NSW 2124

Tel: (02) 9633 1826

Fax: (02) 9687 8114

Web: www.mcauleyhawach.com.au

Email: reception@mcauleyhawach.com.au

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Proportionate liability – What is it? Why does it need fixing?

McAuley Hawach Lawyers — Wed, 17 Aug 2016 06:09:13 +0000

In simple terms, proportionate liability is a system which limits some types of civil liability.

By way of illustration, if a manufacturer and a distributor are both responsible for faulty software, a system of proportionate liability might limit each of the manufacturer and distributor’s liability to an amount reflecting that proportion of the damage or loss claimed that is each of the manufacturer and distributor’s respective responsibility.

A court might find that the manufacturer is 70% responsible (and therefore liable for 70% of the damages) and the distributor is 30% responsible (and therefore liable for 30% of the damages).

Essentially, if a wronged party brings a claim which is covered by a proportionate liability regime, the court must consider what proportionate responsibility should be applied to each defendant.

Another type of system which proportionate liability has essentially replaced for some types of claims is the ‘joint and several liability’ system.

Applying the earlier example, the ‘joint and several liability’ system might make the manufacturer 100% responsible for the damages even though his negligence only caused 90% of the damages. In other words, a joint and several liability may enable a plaintiff to recover all of the damages from any of the defendants regardless of their individual share of responsibility.

Proportionate liability regimes only apply to some types of civil claims. For instance, claims relating to personal injury damages and intentional acts are generally not covered by proportionate liability regimes.

Parliaments across Australia rushed into law proportionate liability regimes in the early to mid 2000s.

There are numerous problems with proportionate liability regimes.

At a basic level, there is a lack of uniformity in the various jurisdictions across Australia.

There are also ambiguities in the various legislation which has caused unnecessary litigation.

Even more importantly however, proportionate liability regimes are fundamentally unfair. In general terms, plaintiffs face greater costs and risks as a result of proportionate liability. A diminished ability to provide just compensation for tortious, and to a lesser extent, contractual wrongs, results from proportionate liability systems.

Under proportionate liability regimes, plaintiffs bear the risk of impecunious concurrent wrongdoers. Plaintiffs also bear the risk of not succeeding against concurrent wrongdoers. It is also argued that proportionate liability regimes add to the cost and uncertainty of litigation.

Given the varying interests at play, and the practical difficulties of harnessing a uniform nationwide approach, there are many potential stumbling blocks to achieving reform. Draft model provisions relating to proportionate liability were circulated in September 2011, and later revised in September 2013. It seems that the momentum for reform has diminished. Even if adopted, the model provisions do not address the injustices in the proportionate liability regimes across Australia which work against the interests of plaintiffs, without proper regard to the dictates of adequate compensation.

By Steve McAuley, Accredited Specialist – Commercial Litigation

McAuley Hawach Lawyers.

McAuley Hawach Lawyers

Level 7, 9 George Street

Parramatta NSW 2124

Tel: (02) 9633 1826

Fax: (02) 9687 8114

Web: www.mcauleyhawach.com.au

Email: reception@mcauleyhawach.com.au

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