Issue 57 - October 2008

• Newsflash - Increase in First Home Owner Grants
• The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008
• Landlords can be held liable for leasing unsafe premises
• $12,000 fine and criminal record for inexperienced directors
• Developments in NSW contaminated land legislation
• National filing deadline in the Family Court
• The Verdict

Extra assistance for first home buyers Newsflash - Increase in First Home Owner Grants

The Federal Government has announced an increase to the First Home Owner Grant (FHOG). Commencing from 14 October 2008, first home buyers are now entitled to $14,000 when purchasing an existing home (increased from $7,000) and $21,000 for newly built homes (increased from $14,000). The increased grants are available to new home buyers until 30 June 2009.

For details on eligibility criteria visit www.firsthome.gov.au and more information of the increase visit www.osr.nsw.gov.au/benefits/first_home.

If you want further information in relation to the FHOG, buying or selling a property or any other general property matter, please telephone Melissa Grant or Gina Haramis or email melissa@wmdlaw.com.au or gina@wmdlaw.com.au.

Changes for de facto couples The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) is currently awaiting consideration by the Senate.  As soon as the Bill is passed, de facto couples, including same sex couples, will have similar rights and obligations to married couples in resolving financial disputes.

Currently, whilst both de facto and married couples are able to access the Federal family law courts for child-related proceedings, only married couples have the right to apply to the Family law courts for property and maintenance matters.  Under the current legislation, de facto couples must go to the expense of commencing property and maintenance proceedings in their State and Territory courts.  The Bill will also provide consistency because existing State and Territory laws on property and financial matters for de facto couples vary between jurisdictions.  This results in couples in different States and Territories having different rights.

The Bill seeks to enable one court, such as the Family Court of Australia or Federal Magistrates Court, to deal in the one proceeding with financial, property and child-related matters arising between separated de facto couples. The Bill proposes to create rights for de facto couples in all financial matters presently available to married couples under the Family Law Act 1975 (Cth), such as proceedings for distribution of property or financial resources, or for provision of maintenance, proceedings involving third parties, binding financial agreements, superannuation and related bankruptcy matters.

The new legislative amendments may only apply to de facto couples whose relationship broke down after the commencement of the Act, if the conditions relating to length of relationship or other matters have been met and the application is made within required time limits.  It may also be possible for de facto couples to ‘opt in’ to the new regime by mutual agreement, subject to appropriate safeguards where their relationship breaks down before the Act commences and their property or maintenance matters have not been finalised before commencement.

Please contact Greg Dickson or Amanda Solomon or email greg@wmdlaw.com.au or amanda@wmdlaw.com.au for updates on the progress of the Bill or if you have any questions on how it may affect you.

How safe are your premises? Landlords can be held liable for leasing unsafe premises

A landlord has a general duty of care to a tenant to ensure that the leased premises are safe.  A landlord is responsible to rectify defects in the premises that exist at the time the tenancy commences or at the time the tenancy is renewed, as well as any defects that arise during the term of the tenancy which the Landlord knew or ought to have known about.

The duty owed by the landlord to provide safe premises to a tenant was recognised in the High Court Case of Northern Sandblasting v Harris.  The court held that the landlord was liable for loss and damage suffered by the tenant that was caused by the negligence of an electrical contractor engaged by the landlord. 

To seek to reduce any potential liability, landlords should ensure they at lease take the following steps:

Arranging for a written inspection by a qualified professional to ensure that the premises are safe for tenants before the commencement of the lease;
Ensure that they are informed about the state of the premises, including any repair works which need to be undertaken;
Have the property regularly inspected, especially at the commencement and renewal of a tenancy.  Inspections may involve checking the structure of the building, water pipes, gas connections, wiring, paths etc;
Upon inspection, identify any repair or maintenance obligations which may be the responsibility of a tenant and require the tenant to engage a qualified tradesperson to attend to them.  Once any repair works have been performed, undertake a follow up inspection to confirm the works were performed properly and the premises are safe;
Ensure that any maintenance and repair work, whether by contractors engaged by the landlord, the letting agent or the tenant, are performed in a competent and professional manner.
The case of Northern Sandblasting v Harris involved a residential landlord's duty to the tenant. It is important to note that safety obligations also exist for commercial lessors, particularly as those premises are leased to lessees who run a business and accordingly, occupational health and safety issues may arise.

For further information regarding the rights and obligations of landlords/lessors or any other property related matter, please telephone Melissa Grant or email melissa@wmdlaw.com.au.

Directors need to be diligent $12,000 fine and criminal record for inexperienced directors

According to the recent decision in Inspector Aldred v Salamander Shores Hotel Pty Ltd & Ors [2008] NSWIRComm 102, corporate directors do not have to play a significant hands-on role within a corporation or have responsibility for day to day decision making to be prosecuted for contravening safety legislation.

In this case, 3 directors were each fined $12,000 under health and safety legislation and received criminal records when a 13 year old boy was fatally electrocuted after using a swimming pool without permission at a hotel/motel operated by the defendant corporation.

While the corporate defendant pleaded guilty and was fined $150,000, the Court rejected the arguments of the 3 directors that they were not in a position to influence the conduct of the corporate defendant because they lacked experience and had used all due diligence to prevent the corporate defendant from contravening its safety obligations by delegating the day to day operation of the hotel/motel to qualified employees.

Effectively, this decision sounds a strong warning to corporate directors to be very diligent in the area of Occupational Health and Safety (OH&S) and to satisfy themselves that they are sufficiently discharging their functions or where inexperienced, relying on employees with the necessary expertise to address health and safety concerns. 

For further information regarding the responsibilities of corporate directors or if you have any concerns regarding a particular OH&S incident please telephone Kevin Dwyer or email kevin@wmdlaw.com.au.

What the changes will mean Developments in NSW contaminated land legislation

The Contaminated Land Management Amendment Bill 2008 (NSW) is currently before Parliament and it is anticipated that it will be passed shortly. The new law will redefine the regulation of and liability for contaminated land. 

The object of the Bill is to give the Environment Protection Authority (EPA) greater powers with respect to investigating land that may be contaminated and regulating contaminated land if it considers that the contamination is ‘significant enough to warrant regulation.’

The Bill is likely to increase the range of parties who may be liable and place the burden for cleaning up the land on the party with the greatest ability to pay.  Whereas, previously the clean up regime was based on the principle that the “polluter pays.” If the polluter was insolvent or could not be found, the owner of land would be responsible, followed by a long-term lessee/mortgagee in possession of the land. 

Under the new regime, more than one person may be served with a management order to remediate a site.  This will mean that the party with the deepest pockets will generally be held responsible for the clean up. Directors of companies may also be held liable for contamination in breach of the Act, even if they had no knowledge of the contravention. 

The duty to report a contaminated site has also been extended to land owners, occupiers and polluters.  Failure to report a contaminated site may result in prosecution and penalties of up to $77,000 for an individual and $165,000 for a corporation.

For further information regarding these developments for regulation of contaminated land in NSW, please contact telephone Melissa Grant or Rebecca Flynn or email melissa@wmdlaw.com.au or rebecca@wmdlaw.com.au.

Have you considered arrangements for your children over the Christmas period? National filing deadline in the Family Court

The Family Court national filing deadline to allow the hearing of contact and/or residence disputes during the 2008/09 summer school holiday period is Friday, 14 November 2008. This deadline relates to all applications seeking orders relating to contact or a period of residence during the December 2008/January 2009 school holiday period. 

However, if an application is not filed before 14 November 2008, applications to list a matter on short notice can still be made in urgent cases. It is important to note the fact that an application relates to school holiday contact will not of itself create urgency to justify a listing before Christmas. The Court will not guarantee that applications filed after the deadline will be fixed for hearing prior to Christmas, but every effort will be made in urgent cases.

For any further information or assistance in relation to making an application for holiday contact or family matters generally, please contact Greg Dickson or Kevin Dwyer on 9525 8688 or by email greg@wmdlaw.com.au or kevin@wmdlaw.com.au respectively.

Your questions answered The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously, we are not able to provide specific legal advice or advice in relation to a current legal matter. If you have a question you would like us to answer, please submit it by email to melissa@wmdlaw.com.au.

What do you do if a company sends you an invoice for listing your business on a business directory without your permission or authority?

Generally speaking, a company does not have the right to demand payment for any unsolicited services. If you have not authorised a company to advertise your business and they did so without your consent, then you are under no obligation to pay for the unsolicited service.

Under Section 75AZQ of the Trades Practices Act 1974 (Cth), a company who performs unsolicited services is in breach of the law if it:

makes a demand for payment;
threatens to bring legal proceedings with a view to obtaining payment;
places your name on a list of defaulters or debtors;
starts any other collection procedure against you; or
sends an invoice stating the amount of the payment to be made.
Similarly, if you may have inadvertently already paid for the unsolicited service, you may be able to recover the payment under the Act. An additional claim may also be pursued if the advertisement was misleading or deceptive.

If the company contravenes the Act and seeks demand for payment for unsolicited services, it can be liable for a penalty up to $1.1 million.

For further information regarding commercial disputes please contact Craig Pryor or David Nicoll or email craig@wmdlaw.com.au or david@wmdlaw.com.au.
 

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