How to Protect Yourself from Being Scammed

How to Protect Yourself from Being Scammed

Every year scams cost Australians millions of dollars as well as considerable non-financial harm, therefore it is crucial that you remain alert so that you are not the target of the next scam. In 2019 alone, there were over 353,000 reports of scams, and Australians lost over $634 million. In this blog, recent trends in scam activity and methods to protect yourself from being scammed are outlined.

Business Scams

Business email scams accounted for the highest financial losses in 2019, costing businesses $132 million according to the ACCC’s Targeting Scams report. A common technique scammers use is to intercept legitimate invoices and change the payment details so that the recipient will not realise that they have been scammed. Scammers may also impersonate staff to request the transfer of funds for purchasing gifts for other colleagues or for other business related expenses.

Small and micro businesses reported more scams than medium and large-sized businesses. The average loss was $11,000, however, some businesses lost up to $200,000. Scams have become increasingly complex and difficult to identify with the aid of technology. Therefore, it is essential for businesses and staff to remain alert and to familiarise themselves with common scams they may encounter.

Consumer Scams

Consumer scams succeed because they mimic genuine deals and catch consumers off-guard. By taking advantage of new technology, new products or services and major events to create believable stories, it is simpler for scammers to target their audience and capture their money or personal details. Scamwatch has received over 2,000 reports about COVID-19 scams and reported losses of more than $700,000.

Scammers set up fake websites, ads on trusted platforms and false social media accounts in the guise of selling real products. They often ask for upfront payments or an initial deposit, plus additional costs such as administration or transportation. Consumers must also be alerted to common scams such as online shopping scams. These scams do not have a verified payment system, offer free products in exchange for personal details and lure you with unexpected winnings or an investment scheme.

How to Protect Yourself from Being Scammed

Scams target people of all backgrounds, ages and income levels. With increased socio-economic vulnerability during COVID-19, scammers have the opportunity to target a wider audience. For example, with many people feeling lonely during isolation, Scamwatch has seen a recent spike in the activity of puppy scams resulting in Australians losing around $300,000.

The best way to combat online fraud is to stay one step ahead of scammers by learning how to protect yourself. Here are some tips from Scamwatch to help you remain alert:

  • Be alert to the fact that scams exist.
  • Know with who you are dealing.
  • Do not open suspicious tests, pop-up windows or click on links or attachments in emails.
  • Keep your personal details secure.
  • Choose your passwords carefully.
  • Requests for personal details or money should be red flags.
  • In particular, be alert to law enforcement scams.

Unfortunately, scams are becoming more sophisticated and are often very difficult to trace, so in most cases, the money can never be retrieved. For further assistance on any matter relating to scams or competition and consumer law, please contact one of our experienced solicitors on 02 9963 9800 or via our contact form here.

Challenging Adjudication Decisions

Challenging Adjudication Decisions

Parties to a commercial building dispute may utilise Security of Payment (SOP) legislation in their jurisdiction, involving adjudication, to resolve payment claims and recover money owing under a construction contract. The relevant legislation for NSW is the Building and Construction Industry Security of Payment Act 1999.

Disputes are resolved quickly by an adjudicator and any amount determined as owing must be paid within the statutory timeframe. The determination is enforceable but without prejudice to the common law rights of either party. Due to the limited time in which an adjudicator must determine a payment dispute, it is not surprising that a determination may come before the Court for judicial review.

The grounds for review have been visited by various Courts with the following cases providing insight as to what might (and might not) justify having an adjudication determination quashed.

No review avenues for non-jurisdictional error

The High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 confirmed that parties to an adjudication determination under the Building and Construction Security of Payment Act 1999 (NSW) may not seek judicial review for non-jurisdictional error of law.

The Court reiterated the nature of the (NSW) Act which, amongst other things, was intended to ‘reform payment behaviour in the construction industry’ by ensuring prompt recovery of payment for work carried out under a construction contract. The legislation is ‘coherent, expeditious and self-contained’ and ‘not concerned with finally and conclusively determining the entitlements of parties to a construction contract’.

Accordingly, an adjudicator is sanctioned to make a determination and a Court is not empowered to quash that decision for non-jurisdictional error, even if based on an incorrect interpretation of the subject contract.

An adjudication determination may only be set aside on grounds of jurisdictional error – an error going to the authority or power of the adjudicator, such as non-compliance with procedural requirements under SOP legislation.

Minimum standards required when assessing an adjudication determination

Nuance Group (Australia) Pty Limited (Nuance) v Shape Australia Pty Limited (Shape) [2018] VSC 362 provides guidance as to when a Court might quash an adjudication determination.

Shape served a payment claim on Nuance for over $3.5 million for demolition and associated works at Melbourne International Airport. Nuance responded with a payment schedule stating the amount payable as nil. Shape applied for adjudication for the sum of $2,243,105.55. An amount of $1,400,007.12 was determined payable, which after an adjudication review instigated by Nuance, was reduced to $1,216,715.72.

Nuance challenged the validity of both the original and reviewed determination in the Supreme Court of Victoria.

Nuance submitted that the adjudicator had not determined the amount of the progress claim as required by SOP legislation, which as a minimum necessitated a finding of whether the work identified in the relevant claim had in fact been performed and the value of that work. Rather, the adjudicator had deducted what he considered were excluded amounts from Shape’s claim to arrive at the revised figure and, in doing so, failed to comply with ‘basic and essential requirements’ of the Act.

Nuance was successful, and the adjudication determination was quashed.

Whilst acknowledging the tight time frames under which adjudicators are required to operate, Justice Digby nonetheless conceded that the adjudicator had:

‘…failed to undertake the required task of addressing the payment claim and payment schedule and, consider those parameters of the dispute between the claimant and the respondent as to what claimed work … had been carried out under the Contract and what the value of that work … was.’

The adjudicator had merely worked back from the original claim in a manner that did not constitute a ‘fair and reasonable consideration’ of the determination providing ‘no sufficiently comprehensible reasons and basis for the amount determined’.

An adjudicator’s reasons must be considered in context

Southern Cross Electrical Engineering (Southern Cross) v Steve Magill Earthmoving (Magill) [2018] NSWSC 1027 considered another appeal of an adjudication decision.

Essentially, Southern Cross disputed Magill’s payment claim, which comprised additional amounts for excavation work based on trenching some areas of the subject site that were wider than stipulated in the contract. Southern Cross submitted that the adjudicator had erred by requiring it to prove that there had been no variation to the contract and that the earthmoving works had been over-claimed.

Relying on Justice Vickery’s lengthy series of matters to consider in Plenty Road Pty Ltd v Construction Engineering (Aust) Pty Ltd [2015] VSC 631, Southern Cross claimed that the adjudicator was required to ‘examine all the material for himself, and to come to a conclusion, based on that material as to what amount (if any) is payable.’

Justice McDougall acknowledged the processes set out by Justice Vickery were applicable to a determination however rejected any requirement for them to be ‘applied serially and mechanically in every case.’ Rather, the adjudicator’s reasons must be considered in context which included ‘the content of the dispute as established by the payment claim and the payment schedule, and the parties’ elaboration of that dispute.’

Further, the reasoning must be assessed considering the interim nature of an adjudicator’s determination under SOP legislation, the voluminous material to be dealt with, the strict timeframe and the fact that adjudicators are not usually lawyers.

Cross Engineering’s appeal was dismissed, Justice McDougall concluding that:

‘Factually, the adjudicator’s approach may have been (and probably was) incorrect. It is no doubt something that could have been improved upon if the adjudicator had “world enough and time”. But looking at his approach … I am far from persuaded that it was unreasonable to the extent that it must be taken to invalidate his determination’.

Conclusion

An adjudication determination is not subject to judicial review for non-jurisdictional error.

An adjudicator must apply certain minimum standards when assessing an adjudication application, however his or her reasoning will be considered in the context of the purpose and intent of the legislation, that being for the timely resolution of payment disputes under a construction contract. A decision that emanates from an error of law not associated with a jurisdictional error, will generally not entitle the Court to intervene.

Security of Payments legislation across Australia has been the subject of review and proposed reform. The recent release of the Murray Report recommends the national harmonisation of SOP laws and the implementation of review rights for parties (by a review adjudicator) for determinations concerning amounts of $100,000 or more.

If implemented, construction industry participants should have greater clarity regarding the circumstances under which an aggrieved party can challenge an adjudication determination.

If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or via the contact form here.

The Five Step Approach to Property Settlement after Separation

The Five Step Approach to Property Settlement after Separation

One of the fundamental issues which require addressing during the process of a breakdown of marriage or de-facto relationship is the subject of a ‘property settlement’. A property settlement is an arrangement which is made between the separating parties when dividing assets, liabilities and financial resources (such as a trust, bank deposits or future inheritance). There is no presumption in family law whereby each party receives an equal division of assets in a property settlement.

Each case is unique and varies depending on a set of circumstances which are set out in in the Family Law Act 1975. For this reason, property settlements should be approached in a bespoke manner to ensure a just and equitable result in achieve for the parties. In assessing this criteria, there are five steps that the courts consider when parties are contemplating a property settlement at the end of a marriage or de-facto relationship. This article will explain these 5 important steps.

The Five (5) Step Approach:

Step 1: Identify the assets available for division

The first step is to determine the net asset pool of the relationship. This will involve identifying whether the current assets and liabilities of each party are held jointly with the former partner or separately.

It is prudent that parties provide full and frank disclosure of their personal property, including real estate, vehicles, furniture, shares and bank accounts, as required by the legislative principles. It is also important that parties account for other financial resources such as whether they are beneficiaries under a trust or a Will. Whether a property forms part of the main asset pool to be divided will depend on the degree of control and interest exercised by each party.

Similarly, joint liabilities must also be taken into account, including mortgages, personal loans and credit card balances.

Step 2: Contemplate whether it is ‘just and equitable’ to make an adjustment

The Court must then consider whether it is ‘just and equitable’ to intervene and make any adjustment to the property division before assessing individual contributions by the parties.

Step 3: Consider the contribution of each party to the relationship

Both financial and non-financial contributions made by each party will be assessed by the Court. This includes contributions from the time of commencement of co-habituation through to after separation.  The main categories of contributions are recognised as follows:

  1. Financial

Monetary contributions made during the relationship, including:

  • Income and wages;
  • Property acquired during the relationship;
  • Assets owned at the commencement of co-habitation;
  • Gifts and prize winnings;
  • In some cases, inheritances.
  1. Parent/Carer and Homemaker

Contributions to the welfare of the family are significant and can be seen as equal compared to a party working full-time. Some examples include:

  • Caring for children;
  • Caring for elderly;
  • Homemaking;
  • Housework;
  • Cleaning;
  • General parenting responsibilities;
  • Grocery shopping and cooking;
  1. Non-financial

This category recognises that non-financial value can be contributed to the relationship.

  • Renovations or landscaping work done to the family home or an investment property;
  • Unpaid work in a family business;
  • Contributing to start up a business.

Step 4: Identify the future needs of each party

After assessing the contributions of each party, the Court must have regard to the current and future needs of each party to the relationship. The factors which the Court considers are detailed in Section 75(2) of the Family Law Act which include:

  • Age and state of health;
  • Income and future earning capacity;
  • Property and financial resources;
  • Parental responsibility of children;
  • Caretaking responsibilities;
  • Duration of the relationship or marriage.

Step 5: Review whether the final proposed division is ‘just and equitable’

In the final step, the Court will consider whether the proposed percentage distribution and allocation of assets and liabilities is fair. In this step, the Court may consider making an adjustment under section 75(2) of the Family Law Act which may vary the end result.

Seek Legal Advice

Property settlement and family law proceedings can often be complex. If you would like further information regarding property settlements or if you have any general family law enquiries, please do not hesitate to contact one of our experienced solicitors on 9963 9800 for a confidential discussion or via our contact form.

Defamation – Be Careful What You Say On Social Media

Defamation – Be Careful What You Say On Social Media

Not many people are aware of the risks associated with posting on social media. Popular social media platforms such as Twitter and Facebook are not safe spaces to vent your thoughts. In fact in a recent defamation case, the defendant was ordered to pay a staggering amount in damages for his post on Twitter. In this blog, we explore the meaning of defamation and how it still applies in the modern age of social media.

What is Defamation?

Defamation is either an oral (called ‘slander’) or written (called ‘libel’) statement about someone which injures the reputation of that person.  In general terms, to prove defamation, one must show the existence of a false statement, which the defendant may try to argue that it was an honest opinion or a fair comment. In Australia, the Defamation Act 2005 sets out the rules regarding defamation law.

Can You Defame People on Social Media?

It is absolutely possible to defame people on social media in Australia and the defamed individual may bring proceedings against you for what you said.

In order to bring a successful defamation case against an individual who posted defamatory material on social media, the following must be satisfied:

  1. The material must be defamatory;
  2. The material must identify the plaintiff; and
  3. The material must have been published to a third party.

Are There Any Recent Case Law Examples?

A recent decision from March 2020 revealed that harsh penalties can be imposed for defamatory statements published on social media. The Supreme Court awarded $110,000 for damaged in relation to defamatory comments made on a Facebook page about the plaintiff.

In this case, a series of posts on a public Facebook page called “Narri Leaks” were made by the defendant Mr Stoltenberg. The post implied that, Mr Bolton, the Mayor of Narrabri Shire Council, was ‘corrupt, dishonest and intimidating in his role as Mayor’. Ms Loder, the other defendant, made “comments” on those Facebook posts.

Mr Bolton commenced defamation proceedings in the Supreme Court against both Mr Stoltenberg and Ms Loder. It was found that the Facebook posts were indeed defamatory, and that Mr Stoltenberg had no defences available to him.

What Can I Do If I Am Defamed Or Being Sued For Defamation?

It is always important to be aware that your activities on social media can have very costly consequences.

If you believe that you have been defamed or if you have been accused of defamation due to posts on your social media page, then you should seek legal advice immediately.

For assistance or advice on how to proceed please call on (02) 9963 9800 or get in touch via our contact form here.

Elon Musk names son “X Æ A-12” – Would this name be allowed by law in New South Wales?

Elon Musk names son “X Æ A-12” – Would this name be allowed by law in New South Wales?

With the recent announcement of SpaceX CEO Elon Musk and Canadian singer ‘Grimes’ naming their son “X Æ A-12”, many people are left confused regarding the legal constraints for naming children. It is common for celebrities and public figures to push societal bounds by naming their children unconventional names, but how far can one go until the name is rejected by the law?

Elon Musk and Grimes have changed ‘X Æ A-12’ to ‘X Æ A-Xii’ in an attempt to comply with Californian laws. However, despite the slight change, it is likely the name will still face issues in California as you can only utilise the 26 characters of the alphabet in a child’s name (excluding apostrophes for names such as O’Neil). Such restrictions call into question what would happen if such a situation were to occur in NSW. This article will address what you can and cannot name a child pursuant to NSW naming laws.

Child Naming Laws in NSW

Once a child is born, the parents must register within 60 days the child’s name with the NSW Registrar.  Under the Births, Deaths and Marriages Registration Act (‘the Act’), it is prohibited to give a child a name that:

  • is obscene or offensive;
  • is too long;
  • includes symbols without phonetic significance;
  • resembles an official title or rank, such as judge, saint, king, prince; or
  • is contrary to the public interest for some other reason.

Specific naming restrictions include:

  • The maximum length of a name, including spaces that can be registered is 50 characters each for the family name, first name and any other middle names.
  • Names cannot contain numbers or symbols, which includes roman numerals, prefixes or suffixes, such as the name “Anne Marie the 1st!”.
  • It is also not possible to register a name which bear a resemblance to a title, such as “Duke of Edinburgh Smith”. However, it is possible to register a name which has a title as a name such as “Edward Duke Smith”.

The state will not register a prohibited name, and can assign a name to a child if the name is a prohibited name, or where each parent lodges a birth registration statement because they are unable to agree on the child’s name.

Changing your child’s name following separation

Changing the surname of both child and spouse has been customary at marriage. Many women may choose to revert to their maiden name upon separation or divorce, however both parents must usually provide consent to change their child’s surname. An agreement can be reached privately or through alternative dispute resolution. The child must also consent to the change of name, unless they are unable to understand the meaning and implications of the change of name.

However, one parent can apply alone to change their child’s name if:

  • they are the only parent named on the child’s birth certificate; or
  • the other parent has passed away; or
  • a court has approved the new name for the child.

Changing Names

Names recognise your individual identity and are a significant part of your personal brand. If you are not happy with your name, in NSW you can only change your name once in a 12-month period, and three times in your lifetime.

You may apply to change your name if you are an adult (over 18 years old) and:

  • your birth is registered in NSW; or
  • you were born overseas and have been a resident in NSW for 3  years when you apply for the name change; or
  • your birth is not registered in NSW and a protection order has been made to protect you and/or your children from domestic violence.

Further Information

It is important to be aware of the laws surrounding name changes in NSW if you are considering changing your name or your child’s name. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or via our contact form.