Case Study: When Binding Financial Agreements Aren’t Enforceable

Case Study: When Binding Financial Agreements Aren’t Enforceable

A binding financial agreement also commonly referred to as a ‘pre-nuptial agreement’ is an agreement which can allow for certainty, trust, and peace of mind in a relationship.

However, the High Court has made it clear in a recent case that it will not enforce any binding financial agreements as a consequence of unconscionable conduct, particularly when there is a significant power imbalance between the parties. Unconscionable conduct is defined to mean conduct which is so harsh that it goes against good conscience. A common instance is when an innocent party is subject to a special disadvantage which seriously affects the ability of the innocent party to make a judgment as to their own best interests.

What are Binding Financial Agreements?

Binding financial agreements are legally binding agreements that address what happens to a couple’s finances and property in the event that there is a break down in a marriage or de-facto relationship.

The Family Law Act 1975 is the relevant legislation which applies to binding financial agreements. Importantly, a binding financial agreement can protect assets including cash, property, superannuation and inheritances. However, in order for a binding financial agreement to be binding on the parties’, it is prudent that each party obtain independent legal advice, and the binding financial agreement must contain a statement from a legal practitioner.

Recent Case: Thorne v Kennedy

A recent High Court case has demonstrated that if a binding financial agreement is entered into in circumstances of unconscionable conduct, the agreement will not be upheld.

Thorne v Kennedy involved a binding financial agreement between a wealthy Australian property developer and his ex-wife.

The couple met online in 2006 on a website for potential brides. At the time, Ms Thorne was 36 years old, living in the Middle East with no substantial assets. Mr Kennedy was 67 years old and had assets in the vicinity of  $18 million – $24 million.

Ms Thorne moved to Australia. Then, ten days before their wedding Mr Kennedy took Ms Thorne to a solicitor to obtain advice about the terms of a binding financial agreement which was purported to be entered into between them. The lawyer told Ms Thorne it was the worst agreement they had ever seen, and advised Ms Thorne not to sign it. Mr Kennedy told Ms Thorne that if she did not sign the agreement then the wedding would not go ahead. Despite the lawyer’s ‘advice, Ms Thorne signed the agreement and the wedding continued.

The couple separated in 2011 and Ms Thorne was provided with what the High Court described as a ‘piteously small’ lump sum payment based on the terms of the binding financial agreement. After lengthy legal proceedings, the High Court ruled that Mr Kennedy had taken advantage of his ex-wife’s vulnerability to obtain an agreement which was ‘entirely inappropriate and wholly inadequate.’ The agreement was entered into as a result of undue influence, illegitimate pressure and unconscionable conduct. As a result, the binding financial agreement was not enforceable and was subsequently set-aside.

Impact on Binding Financial Agreements in Australia

This ruling has been considered a landmark case in the interpretation of binding financial agreements in Australia. As a consequence of the Binding Financial Agreement being set aside, the Federal Circuit Court allowed Ms Thorne to bring a property settlement application against Mr Thorne.

This case serves to reinforce that binding financial agreements are not cheap documents and therefore appropriate advice and caution must be taken when entering into these agreements.

Contact us

If you would like more information on how we can assist you with your binding financial agreement or any other family law matters, do not hesitate to contact us on 9963 9800 or contact us via the form here.

Subpoenas in the Family Court

Subpoenas in the Family Court

What is a Subpoena

A subpoena is a legal document issued by the Court, at the request of a party involved in court proceedings which involves requiring the subpoenaed party to either produce documents or give evidence at a hearing.

Subpoenas in the Family Court

In family law matters, proceedings can be held either in the Federal Circuit Court of Australia or the Family Court of Australia. During these proceedings, it may be necessary for a party to issue a subpoena for relevant information to be provided in Court. Ordinarily, it may be necessary to issue more than one subpoena in Court proceedings.

Subpoenas are generally issued when one party fails to provide all of the necessary documents to the court.  Subpoenas are often issued to banks or superannuation funds for purposes of seeking production of financial material related to the other party. In parenting matters, an Independent Children’s Lawyer, a lawyer who acts for the children in parenting matters, will often issue subpoenas. This may be to the children’s schools and doctor if health issues have been raised. They may also issue a subpoena to either parent’s doctor, if necessary.

Filing for a Subpoena

In some proceedings, you must seek the court’s approval before issuing a subpoena. This is especially relevant when there are court orders in place or there are less than seven days before a hearing commences. In the Federal Circuit Court, there is a capping of no more than five subpoenas to be issued by each party, unless permission is granted by the Court. There is no restrictions imposed in the Family Court for subpoenas.

If you gain the court’s approval, the filing of the subpoena can proceed as normal. The original subpoena must be filed at the Federal Circuit Court or Family Court registry (depending which jurisdiction the matter is in). You must also file enough copies for one to be served on each party in the proceeding as well as the person or organisation being asked to produce material.

Importantly, the court can refuse the issuance of a subpoena if it finds that the subpoena amounts to a ‘fishing expedition’. That is, the deliberate attempt by one party to search or investigate with the hope of discovering information on the other party. Therefore it is important that when issuing subpoenas in family law, one must ensure that they are seeking information or documentation relevant to the current court proceedings.

Filing fee

A subpoena will incur a filing fee of $55.00 per subpoena.

Serving a Subpoena

Once the subpoena has been filed, it must be personally delivered (served by hand) to the person it is addressed to.

If you are serving a subpoena to a bank or financial institution, a small amount of money must be provided to the subpoenaed party. This is known as ‘conduct money’ for the production of documents. Some banks will charge a set amount, so it is important to find out what the production of documents may cost where possible. You also need to provide a copy of the court’s brochure with the subpoena.

Objecting to a Subpoena

A party is entitled to raise an objection to the issuance of a subpoena. A number of objections which can be raised involve:

  • The documents requested are irrelevant
  • The documents are privileged
  • The terms of the subpoena are vague or non-specific
  • Insufficient time given to comply with the subpoena
  • Subpoena issued without a ‘legitimate forensic purpose’
  • Insufficient conduct money

In order to do so, you have to file a Notice of Objection and the matter will subsequently be listed before the court for determination.

Contact us

If you would like more information on how we can assist you with your family law matter, do not hesitate to contact us on 9963 9800 or via the contact form here.

What is the Tort of Negligence?

What is the Tort of Negligence?

Negligence occurs when one fails to take reasonable care to avoid causing damage to another person. It applies to both individuals and businesses. There are several factors that need to be satisfied for an individual or a company to successfully sue for negligence. These are:

  • Duty of care;
  • Breach of duty;
  • Causation; and
  • Damage

Establishing a Duty of Care for Negligence.

A duty of care makes a person responsible for taking reasonable care to avoid harm being caused to another. It exists due to the characteristics of the relationship between the parties. It arises due to the nature of the parties’ relationship. For example, if one party has a substantial degree of control and/or reliance over the actions of another, a duty of care may exist. In this instance the party with greater control has a duty to take reasonable care with their actions so that no harm is caused to the reliant party. Examples include a teacher and a student, a legal professional and the client and a doctor and patient relationship. There are other common relationships which give rise a duty of care. These include the duty owed by a driver to other drivers on the road.

Standard of Care and Breach of Duty.

If a person owes a duty of care to another, a court will determine exactly what duties are owed. This is considered to be “the standard of care”. Under the Civil Liability Act 2002 a professional is held to the standard of their fellow professionals. For example, a doctor or an accountant would be held to the standard of doctors or accountants and what is widely accepted as competent professional practice.

In other instances, the standard of care is what a ‘reasonable person’ would do in the circumstances to ensure the possibility of harm is minimised. It helps to balance the rights of the parties by considering the level of care that is appropriate between the parties. If the standard of care is not met, then the person has acted in breach of their duty owed to the other person.

Damages and Causation.

For a person to be able to sue in negligence, harm as a consequence of the other person’s actions must be shown. Harm caused by negligence could be physical and/or mental. The onus is on the plaintiff to prove harm and that the defendant’s breach of duty has caused the harm. Further, there ought not to have been an intervening event. The court will ask: would the person have suffered harm ‘but for’ the actions of the other person.

Recent negligence case – collapsed balcony

The NSW Court of Appeal considered who was to blame for a collapsed balcony (Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196).

In this case Bhides owned a residential property in Collaroy. Bhides appointed Libra Collaroy Pty Limited to manage the property. In 2012, a group of school children, including the daughter of the tenant, were on the balcony when it collapsed. There was a long history of complaints regarding the state and structural integrity of the balcony from the tenant. The tenant sued the landlord and the managing agent in the District Court of NSW. The agent and the landlord then issued cross claims against each other seeking an indemnity from the other and on the defendant for not locking access to the balcony given previous complaints and issues. At first instance, the District Court decided that the agent was 100% liable. The decision was appealed.

The Court of Appeal decided as follows:

  • Judgment for the plaintiffs against the owners.
  • Judgment for the owners against the agent.
  • Any damages recovered by the owners from the agent to be reduced by 30%.
  • Judgment for the agent against the tenant.
  • The tenant is to contribute 20% to the agent’s liability to each of the plaintiffs.
  • The owners and the tenant to pay the agent’s appeal costs.
  • The agent and the owners to each bear their own costs of their cross claims in the District Court.
  • The tenant to pay the agent’s cross claim costs in the District Court.
  • The agent, owners and tenant are to respectively pay 50%, 30% and 20% of the plaintiffs’ costs.

We can gain the following from the Court of Appeal decision:

  1. That delegating to a managing agent will not form a defence to a claim for personal injury damages;
  2. That contractual indemnity may be excused where there is a contribution to the negligence of the other party (contributory negligence); and
  3. That a tenant who is on notice of a risk of harm may be found liable for negligence if the tenant could have taken steps to remove the risk.

Further Information

As you can see from the Court of Appeal decision above, the law of negligence is not so straightforward and it is important that you seek legal advice from a competent litigation lawyer. If you believe someone has been negligent in their actions toward you or you are being sued for negligence, do not hesitate to contact one of our experience lawyers on 02 9963 9800 or at law@etheringtons.com.au.  For more information, check out our blog here.

COVID-19 and the Family Court system: What changes are being made?

COVID-19 and the Family Court system: What changes are being made?

COVID-19 is impacting the operation of every facet of life and work around the world. There is no exception for the courts in Australia which have seen major changes to the procedure and operation of the court system. In this article, we explore how the Family Court in particular is dealing with the COVID-19 pandemic.

The Changes

The Court has altered its operation in a variety of ways to ensure the health and safety of litigants and court staff and members.

Hearings:
The majority of court hearings and events will now be done remotely via a telephone or video conference. The Court has said that telephone appearance procedures will generally be most appropriate for the following:

  • First Return Duty Lists;
  • Abridgements;
  • Mentions;
  • Directions; and
  • Interim Hearings

The Court will notify the parties as to whether their matter is able to be dealt with remotely. If it is possible, the judge and court staff will be in the courtroom during the time of the listings. Interpreters may also appear by telephone, if required. The parties can attend by telephone or video conference in the comfort of their homes or office.

Once the Court has notified the parties of the requirement to attend court via telephone, a party may ask that the matter not be heard by telephone, due to it being impractical. They may also say that their matter is urgent and requires the parties to attend in person. In this circumstance, the matter may be adjourned or remain listed for a face-to-face hearing. However, the Court has strictly imposed a limit on the number of matters which will be dealt with in open court.

Changes to Everyday Operations:
There are a number of changes the Court has imposed as a result of the Covid-19 pandemic:

  • Non-urgent matters may be adjourned to a future date (meaning postponed). This is at the discretion of the judicial officer.
  • The registry services of the Court will be provided remotely via telephone or online services.
  • In urgent circumstances, face-to-face interaction in a registry may be allowed, but only after an initial assessment.
  • All documentation will need to be filed electronically through the online Commonwealth Courts Portal.
  • For urgent matters (such as those involving domestic violence) which are held in court, matters will not be listed for more than 1.5 hours, and with sufficient time in between to allow cleaning of the court to occur.
  • To reduce the length of any face-to-face hearing, where possible, hearings are to be complemented with written submissions or conducted via telephone, if necessary

Impact for Future Proceedings

If you are involved in current proceedings before the Court, there may be changes in the way your matter is dealt with. It is important to be prepared for changes in the way your matter runs and what form of communication will be utilised. If your matter is classified as ‘non-urgent’ you should be prepared for your matter to be potentially postponed for a period of time.

Further information relating to court operations and COVID-19 can be accessed from the COVID-19 updates and information page on the Family Court’s website.

Where Can I Find More Information?

It is important to be fully aware of the impact COVID-19 may have on your legal matter. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via email at law@etheringtons.com.au.

Etheringtons Solicitors extends our deepest sympathies to those experiencing hardship or health concerns during this difficult time. Further information about COVID-19 can be found at: www.health.gov.au.

Will my Facebook post affect my employment?

Can an employer intervene in an employee’s use of social media outside work?

A recent decision by the Fair Work Commission has shed some light on this question showing that having a detailed workplace policy can provide better protection for your company from damaging posts made by employees. Further, the decision has shown that employees need to think carefully before they comment online.

The recent decision of Waters v Mt Arthur Coal Pty Limited concerned a dispute between an employee, Mr Waters, and his employer, the Mt Arthur open cut coal mine in the Hunter Valley. In the lead up to Christmas 2017, the coal mine was considering whether it would operate on Christmas and Boxing Day due to safety concerns arising from low staff numbers. It was announced two days before Christmas that operations would continue over these days.

Following this decision, an Industrial Safety and Health Representative issued a direction to suspend mining operation over the Christmas period due to the reduced emergency evacuation capacity. Mt Arthur received this direction but decided not to comply with it, and considered the safety risk not to be a real concern.

Mr Waters was a health and safety representative at the mine, and after receiving the safety direction he posted a Facebook status saying ‘Xmas & Boxing day shifts are off for good.’ Mr Waters was not aware this status was incorrect, and assumed the mine would comply with the safety direction. When Mr Waters confirmed with other staff members that the status was incorrect, he deleted it.

Mt Arthur terminated Mr Waters’ employment for being in contravention of a range of their workplace policies including the ‘distribution of material that is likely to cause annoyance, inconvenience or needless anxiety to your colleagues’.

The Fair Work Commission found that the Facebook post was a valid reason for dismissal. They found that the post had a relevant connection to Mr Waters’ employment, was used to communicate operational matters with other employees and was likely to damage Mt Arthur’s interests in operating the mine. The post was ultimately found to be incompatible with Mr Waters’ obligations to comply with workplace policies.

The case provides a timely reminder for employees to be extremely careful with what they post on social media, especially if it relates to their work. It also highlights how important comprehensive workplace policies are for employers. However, employers must be conscious of identifying a connection between the social media post and employment before intervening with an employee’s use of social media use outside work hours.

If you would like to speak with one of our solicitors regarding social media and the work place, please contact us on 9963 9800 or at law@etheringtons.com.au

Debt collection basics for business

If you are owed money for goods or services, the first step in attempting to recover it is generally to send a Letter of Demand to the other party setting out the amount of money outstanding and giving them a defined period of time within which to settle the matter by paying you the money owed or face legal action.

Letter of Demand

The Letter of Demand is sent by you (or your lawyer) if you are owed the money (the creditor) and it warns the person owing the money (the debtor) that if they don’t pay the debt within a certain time period (often seven days) they will be sued in court to recover the debt.

A Letter of Demand should be the last letter a creditor sends before issuing court proceedings. While Letters of Demand are not court documents they are often an effective means of forcing the debtor to take action.

It is a good idea to contact us first to ascertain whether it is prudent to proceed with court proceedings and this will usually depend on the size of the debt. Naturally, if the sum owed is small it maybe uneconomic to pursue the debt by engaging a lawyer or even pursuing the debt at all. You must ensure however that, in enforcing your rights to recover the debt, you act within the law.

Principles of Debt Collection Fairness

When sending a Letter of Demand, you should be careful not to harass the debtor or send a letter which is designed to look like a court document.

You must not pursue a person for a debt unless you have reasonable grounds for believing the person is liable for the debt.

Time Limits

A creditor has a limited period of time to sue for a debt. In most instances, for debts owed, this will be 6 years.

If the debtor has made no payments towards the debt or has not acknowledged in writing that they owe the debt for a period of 6 years from when the debt arose, then the debt may no longer be recoverable.

Disputed Debts

The debtor has the right to dispute a debt and may do so on the grounds that:

  • it is not their debt;
  • they have already paid the money;
  • they disagree with the amount of the debt; or
  • it is an old debt and they haven’t made a payment for at least 6 years, no court judgment has been entered against them and they haven’t admitted in writing that they owe the debt in that time.

If the debt is disputed, then you, as the creditor, may have no alternative but to commence legal proceedings or to seek to negotiate a compromise with the debtor.

When Your Lawyer Becomes Involved

If you, as the creditor, are not willing to negotiate or wait for payment, you may wish to contact us to assist with pursuing the debt.

If you know the debt is due and payable, and you want to commence legal proceedings, it is prudent to have a legal professional assist you and represent you in court to recover the debt. If the size of the debt does not warrant that, then we may still be able to help you to negotiate a payment plan that is manageable to the debtor and acceptable to you.

It is not in the debtor’s interest to ignore your claim and risk the additional costs of the legal fees and interest on top of the original debt. By following the correct process we can help bring the matter to a conclusion satisfactory to you.

New Customer – Credit Application Process

Before you take on a new customer, you should have the correct systems in place to ensure that you are able to assess the customer’s credit position.

Do you have a credit application process for your new customers?

Your Credit Application and Terms of Trade should provide you with security over the goods which you have sold to the customer and, if the customer is a corporate entity, ensure that the directors of the company provide you with their personal guarantees. You must, however, ensure that you register any security over goods on the Personal Property Securities Register and we recommend that you speak with a legal professional to assist you with this process to ensure that the registration is not void.

If you do not have a system in place, contact us and we will help you put a system in place to protect you and provide you with security for monies owed to you. It is important that you have the correct system and documentation in place before you do business with a new customer and before you provide the customer with any credit.

Conclusion

You should contact us to discuss your legal rights and obligations if you are owed money or if you owe money to someone else who is threatening court action.

If you would like more information or require assistance or advice on how to proceed in debt recovery matters please contact us on (02) 9963 9800 or email law@etheringtons.com.au