Recently the Supreme Court of NSW dismissed a plaintiff’s claim in equity, on the basis that the deed he relied upon was not validly executed, and there was no legally binding contract between the parties.
In the case, the plaintiff James Brown agreed to be the lender for a hotel and function business that was struggling financially. The first defendant was Tavern operator, the company operating the business, and the second and third defendants, Gregory Nixon and Bronwyn Tallis, controlled the company.
The parties entered into a Heads of Agreement in May 2012 where Brown greed to pay certain debts in exchange for a being appointed director and shareholder of Tavern Operator. Following this, Brown made payments amounting to around $200,000 up until September 2012. On 21 September 2012, Nixon and Tallis signed a document, which was expressed to be a deed, stating that Brown had paid debts for the business and that one half of the property and one half of shares in Tavern Operators, would be transferred to him upon execution of the deed.
Brown commenced proceedings in 2015 asserting his supposed rights under the signed document. The Court considered two issues:
- The first issue concerned whether the signed document was a validly executed deed. The Court held that it was, having found that the witness who attested to Nixon and Tallis’ signatures was not in fact present when the document was being signed. In accordance with law, this means that the signed document is not an executed deed and therefore not enforceable.
Further, it was found that Brown had presented the documents to Nixon and Tallis with the impression that they were merely for “security”, to be kept “in a drawer”, in the event that there was a default in repayments to Brown. The Court held that, if Brown’s claim had succeeded, the defendants would have been successful in a cross-claim that there was unconscionable conduct by Brown in misrepresenting to the defendants what the signed document really was.
- The second issue concerned whether the Heads of Agreement entered into, could be considered a legally binding contract. In the event it did, Brown would be able to succeed in his claim regardless of whether the deed was validly executed. The Court found however, that the agreement was also not binding or enforceable as the only consideration given was past consideration.
In contract law, consideration, which is an act or forbearance put forward to induce the other party into the contract, is one of the elements required to establish a valid contract. Common law, per Re Casey’s Patents [1892], holds that past consideration is not considered good consideration. Hence, the Heads of Agreement in this case, could not be held a valid contract.
Brown was unable obtain any parts of the property or shares in Tavern Operators. This case indicates the importance of ensuring that each element of a deed or contract has been correctly addressed for it to be enforceable.
If you have been a victim of misrepresentation or unconscionable conduct in a deed or contract, or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
Recently, an established Jeweller in India Kalyan Jewellers had released an advertisement screening the famous actor Mr Amitabh Bachchan, (and Swaitha Bachchan Nander for the Hindi Version and Malayam Actress for the South Indian version).
The advertisement portrayed a scenario where a pensioner wrongly received a pension twice a month instead of having received it only once a monthThe advertisement shows the father and daughter visiting a bank regarding the father’s pension being credited twice, and they had attended the bank to notify this and request the money to be returned. The bank officer then asked him to retain the funds wrongly received as the procedure to return the money was “tiresome and cumbersome”! “Who will even know” is what the manager asked Mr Bachchan in the advertisement. The advertisement then portrays the bank officials/officers conveying to a pensioner as to why he would bother to in fact do such an act in this day and age!
You can check out the advertisement at the below link if you haven’t watched as yet: https://twitter.com/SrBachchan/status/1019210031915560960
However, subsequent to the advertisement becoming very popular, it got into trouble for its portrayal of the bank officers, which according to banker’s association in India was conducted in bad taste. They stated that the advertisement degraded and aimed to create the distrust in the banking system, amongst public and reasonable people. The jewellery group issued a statement recently where it confirmed that the advertisement would be removed from all media with immediate effect and apologised stating;-
“We understand that the advertisement has hurt sentiments of some people including members of our esteem banking community, All India officer’s Confederation (AIBOC). Any such hurtful interpretation being drawn is unintended, we state that the advertisement was a work of fiction and not a reflection of banking employees at large. We sincerely regret the inadvertent hurt caused and withdraw the advertisement from all media within immediate effect”.
At all stages, one has to be vigilant and prudent to ensure that information conveyed is at no stage derogatory or defamatory to any other person or organisation at large. If such information is found to be derogatory or defamatory, a victim will be eligible to obtain damages for the same. To avoid the same, one has to be prudent at all times that the information passed around; (especially in the current social media) does not convey or disseminate facts which are untrue.
If you have been a victim of defamation or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
Recently an article written about our Principal, Mittu Gopalan, was featured on the Sydney Morning Herald. She has received an outpour of support and is grateful for the kindness shown by so many people in the Australian community. The article has now been featured all over Australia and we are thankful of the continued support.
The article was written by our very own Maneesha Gopalan! A heartfelt and well-written piece on the effects words can have on one’s self-worth, and the effects racism still has in Australian society.
Recently, we had the pleasure of hosting year 10 student Hemisha, for her work experience. We thoroughly enjoyed having her and her enthusiastic personality around the office. Read below for Hemisha's experience at our firm in her own words.
"This week I embarked on my Year 10 Work Experience at Freedman and Gopalan Solicitors. Upon entering the workplace I had certain expectations and Freedman and Gopalan exceeded these expectations. They greeted me with kind, caring staff members who were ready to help at a moment’s notice and truly made me feel welcome at this prestigious law firm. This week I filed, archived, attended court, scanned and collated documents and assisted secretarial staff. I learnt many new skills and made plenty of new friends. I learnt how to destroy files, archive, use programs, conduct myself in a professional and appropriate manner and come to terms with the city around me.
The reason I chose to do my Year 10 Work Experience at a Law Firm was because I have an interest in legal matters and was still unsure if the path of becoming a lawyer was what I truly wanted to do. I embarked on this week with trepidation and curiosity and now finally after concluding my work experience and spending the last 5 days at Freedman and Gopalan I have decided that I am still unsure about becoming a lawyer. However, this week was very insightful into the everyday life of a lawyer and has cleared my doubts and perceptions I had in place before entering the workplace. I’ve learnt that the life of a lawyer often follows a schedule but is often unpredictable as well. I’ve learnt that becoming a legal representative means you deal with people from all walks of life and that sometimes you put must put your personal views aside for the benefit of a case.
I had multiple surprises this week and was lucky enough to attend court twice, once for a criminal and the other for a family court matter. One surprise for me this week was how friendly and welcoming the staff at Freedman and Gopalan were. Both the criminal and family courts were very different and similarities between the two were stark. The atmosphere of both courts was subdued and serious and a contrast between the two courts was that they both had different court proceedings. The criminal case I viewed was a mention compared to the interim hearing of the family court. The mention featured a magistrate and the interim hearing, a judge. In the interim hearing there was also a court officer, a transcriber and a trainee judge, a very rare sighting which I was lucky enough to see.
Overall, my week at Freedman and Gopalan was a pleasure and I was lucky enough to have been accepted for this opportunity at their firm. I thoroughly enjoyed my time and would recommend to anyone looking for Year 10 Work Experience to apply at Freedman and Gopalan to experience the life of a lawyer, meet their caring and charismatic staff that made me feel like a part of a team and for the new experiences and skills that I got to learn."
Recently, there were incidents where a wife, along with her boyfriend, were found guilty of murdering her husband. The incident took place in Melbourne, the wife having been torn between the two men in her life and proceeded to choose her boyfriend and made plans with her boyfriend to poison and murder her husband. The boyfriend, Mr Kamalasanam, and the wife, Ms Sam, were sentenced for Mr Abraham’s murder by the Victorian Supreme Court as of 21 June 2018.
Ms Sam has been jailed for 22 years with a minimum of 18 years before parole can be obtained. Her boyfriend, Mr Kamalasanam, has been jailed for 27 years with a minimum of 23 years before parole can be obtained. The husband, having been poisoned with cyanide in his drink, would have had an excruciating death, the Court noted.
This murder could have been avoided if the wife had asked for a separation and divorce.
Another incident that took place in Bega, New South Wales South Coast on 22 June 2018 was a severe bullying situation.
A year seven student was thrown to the ground by her attacker, a thirteen-year-old classmate! The teenage girl was punched in the face, thrown to the ground by her hair, and repeatedly kicked. The footage was captured on a mobile phone by another student, who filmed the attack but failed to intervene or stop the attack.
The victim is suffering serious injuries that were caused to her face and body. Her attacker was charged by the police for assault occasioning actual bodily harm and intimidation with intent to cause fear or physical harm. The attacker has been granted bail but has been Ordered to appear at a Children’s Court next month.
A common reason why a child becomes a bully is because he or she lacks attention from a parent at home and lashes out at others for attention. This is a learned behaviour that can be unlearned. To help a child stop bullying, ask him or her to talk to a teacher, a guidance counsellor, or other school officials. An appropriate doctor could also help to an extent.
These incidents confirm that people fail to give consideration to the actual “human life.” It makes us question our values and respect the rights of every individual and to understand and accept our own value, and cherish our own right to life, the freedom to be protected and to protect the intrinsic value and potential of every individual, making absolutely no discrimination whatsoever. Spheres of human value encompasses morality, human traits, human endeavours and social order.
If you believe that you have an issue or know someone who is facing an issue or has an issue they would like to be addressed, advise them to seek appropriate and relevant counselling. For example, if they’re facing issues relating to marriage, they should be then seeking help from marriage counsellors. If kids are encountering issues relating to bullying or self-confidence, they should be speaking with their social counsellors at school to be guided appropriately, or their parents should ensure they are taken to their local GP to make a referral to the appropriate entities/organisations who can guide them.
Any issue that a parent sees, or a friend or partner observes in another person should be addressed as early as possible, and any issue that you believe you might have can have a right and proper solution, rather than you believing that you have no other choice and adopting drastic measures.
We can ensure that your future continues to be secured and appropriate remedial actions are undertaken at each juncture.
Please do not hesitate to contact Freedman & Gopalan Solicitors if you wish to discuss any legal issues to arrive at a proper solution that is legally fit for you and family.
Recently in the news, you may have heard of the name Zenah Osman. But who exactly is Zenah Osman and what did she do to make her such a notorious name in the news?
Zenah Osman is the sister of disgraced former Deputy Mayor of Auburn, Salim Mehajer. She has been charged with serious misconduct because she signed and served false affidavits and claimed to represent people and companies which she did not. On the 23rd of May she was struck-off as a lawyer by the NSW Civil and Administrative Tribunal for her false representations and attempt to mislead the Federal Court.
Following these recent events presented in the news it can be hard not to wonder whether you are getting the best legal service possible, and if there are any rules of conduct that your solicitors or barristers may be breaking.
Here are our top 3 tips to consider when choosing a lawyer to avoid misconduct of any kind:
- The first tip is to look out for your legal representative’s history as these records and their success rates can give an insight their experience. For example: if you seek assistance in family law, a lawyer with expertise in corporate law and a small amount of experience in family law, as opposed to a lawyer who has an extensive amount of experience in family law with expertise in other services such as conveyancing, could affect the outcome of your matter. A lawyer’s history also depicts if they have dealt with negligence, had a conflict of interest, or have had trouble with the law themselves. This history allows and provides knowledge that is important in choosing a suitable representative. A good starting point to learn about a lawyer’s history would be to search their firm or chambers which usually gives a brief summary of their professional history and background. It is also possible, and recommended, to check that the lawyer is practising with an approved practising certificate.
To search solicitors, visit https://www.lawsociety.com.au/for-the-public/find-a-lawyer.
To search barristers, visit http://find-a-barrister.nswbar.asn.au/.
- Checking reviews is an important aspect to picking a lawyer as the feedback from other clients gives a reflection of the lawyer themselves. The reviews and feedback provide you with an idea of the service provided by that lawyer and if they were helpful to other clients with similar issues and concerns as yourself. Feedback can also provide an insight to your legal representative’s personality and how welcoming, caring and committed they were to the case of a client. This is important to view and consider when choosing legal representative. Often solicitors and their firms will have reviews on their website or social media platforms. Since barristers are usually chosen by the solicitors who have built relationships with them, reviews may be less common. This only highlights however, the importance of selecting a professional and committed solicitor.
- The third tip when choosing a legal representative is to consider the lawyer’s communication and availability. Communicating new evidence to the case or making time to discuss how to progress is vital, and having a solicitor that makes time and is available for questions and concerns, is important. Answering phone calls and responding to emails in a timely manner while you are making initial enquiries is a one way for you to determine if the solicitor is someone you can communicate with.
All these tips correspond with the standard of conduct expected of lawyers, as stipulated in the Legal Profession Uniform Law NSW (‘LPUL’) – SECT 297 Professional Misconduct which states that:
‘’Unsatisfactory professional conduct of a lawyer where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence…is not a fit and proper person to engage in legal practice.’’
Lawyers also have fundamental ethical duties that they must abide by which are outlined under the LPUL Australian Solicitors’ Conduct Rules 2015 and LPUL Conduct (Barristers) Rules 2015 and include duties to the client, duties to the opponent, management of the practice, and integrity of evidence. If you believe that your lawyer has behaved in ways that constitute professional misconduct while handling your matter, your best option is to inform the Office of the Legal Services Commissioner (OLSC). They are an independent body who deals with complaints about lawyers and can assist with resolving disputes. Note that complaints about conduct must be lodged within 3 years of the alleged conduct occurring, while cost disputes must be lodged within 2 months of receiving the bill.
If you have been a victim of professional misconduct, or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
Recently, we had year 10 student, Isata Yansaneh-Harleston., do work experience with us at our firm. We thoroughly enjoyed having her and were really encouraged by her enthusiasm and hard work. Read below for Isatah's experience at our firm in her own words.
"There’s always an amazing feeling when you state, you want your future occupation to be one as hugely respected as being a Lawyer, it certainly makes your parents proud. However, despite my knowledge on how rejoiceful and proud my parents will be when I obtain my law degree(s) I still knew that there was going to be a considerable amount of work and dedication that will need to occur in being a lawyer and so I took this short week as a way of gaining a boost of reassurance; that this was what I definitely wanted to become or to enlighten me in going into another field for my next work experience opportunity. Now don’t get me wrong I knew that I couldn’t just discard my dream career due to one negative experience or stop trying to venture into other fields because my time at Freedom and Gopalan Solicitors was undeniably amazing, as stated before my experience would only enable me to ask the question: is being a lawyer what I really want to become?
“Is this what I really wanted to do”? This question lingered on in my mind after I completed tasks, while I had nothing to do and during my observation of this firm’s environment. I’ve concluded that It most certainly is.
The reasoning behind my conclusion doesn’t lie primarily on my experience at F & G solicitors but merely due to my observations of some of the cases I was able to read. Reading the cases and seeing almost the whole process of each one brought within in me an urge to be a part of the process and aid these individuals as much as possible through the legal field. This ‘urge’ I know will modify into immense passion that in turn will assist me to get through university and law school.
I was astonished by how well I was able to adapt to this firm’s environment. Finding out about how the environment in a law firm is like made me very anxious as I wasn’t sure rather I would completely hate it or adjust to it very well. Thankfully, I felt completely comfortable and fine with it, my sudden adjustment to the environment assisted me in concluding that, a career in law is something I most definitely want to venture in.
During my week at F & G Solicitors I was treated with immense respect and felt very welcomed. I was very pleased to see a great relationship between the solicitors, secretaries and interns; I hope to one day be fortunate enough to work at a firm where such relationship is present. It was also very evident from my first day that they care tremendously for their clients and future clients.
I’m very delighted and fortunate enough to have the opportunity to have done my work experience at, Freedman & Gopalan Solicitors as I know that my time here will never be forgotten and has inevitable changed my doubts for the best.
Overall, work experience week for me was and still is extremely important mainly because I knew it would aid me in concluding rather: if being a lawyer was what I really wanted to become- which it is."
We’ve all been in front of an impatient car, the one that instantly honks their horn a millisecond after the traffic light has signalled go. We’ve also occasionally honked the horn to say ‘Hello’ or ‘Goodbye’. Well that innocent act of greeting or farewelling a fellow driver is in contravention of regulation 244 of the Road Rules 2014 (NSW), which are made under the Road Transport Act 2013 (NSW).
Regulation 224 of the Road Rules states:
“A driver must not use, or allow to be used, a horn, or similar warning device, fitted to or in the vehicle unless it is necessary to warn other road users or animals of the approach or position of the vehicle; or it is being used as part of an anti-theft device, or an alcohol interlock device, fitted to the vehicle”.
Use of your horn or warning device unnecessarily can result in a maximum penalty of $2,200 in NSW.
This may come as a shock to many given how often we see people ‘beep’ hello and goodbye. You may be thinking that next time you will simply roll down your window and wave a greeting to your friend outside the car instead. Regulation 268 of the Road Rules states however that:
“A person must not travel in or on a motor vehicle with any part of the person’s body outside a window or door of the vehicle, unless the person is the driver of the vehicle and is giving a hand signal”
Thus, drivers can be penalised if they put their hand outside the window to wave to a friend. This rule also applies to passengers, and drivers can be penalised up to $2,200 if either themselves or their passengers are found in contravention of this rule. The only exception to the rule is if the driver of the vehicle is giving a hand signal to indicate changing direction to the right, or stopping and slowing.
Finally, who hasn’t been driving in a car before suddenly remembering that you may have left the stove on. In your rush, you do a U-turn, drive back home and barely even park properly, leaving your engine running in your haste to get inside and prevent your from burning down. Thankfully, everything is in the clear so you drive back to your previous destination feeling relieved. Turns out however that in your rush to protect your property, you may have broken regulation 213 of the Road Rules.
Regulation 213 of the Road Rules provides that:
(3) "If the driver will be over 3 metres from the closest part of the vehicle, the driver must switch off the engine before leaving the vehicle."
(5) “If the driver will be over 3 metres from the closest part of the vehicle and there is no-one left in the vehicle, the driver must: (a) If the windows of the vehicle can be secured—secure the windows immediately before leaving the vehicle, and (b) If the doors of the vehicle can be locked—lock the doors immediately after leaving the vehicle.”
The rule clarifies that a window is considered “secured” even if it is open, by up to 2cm. As ridiculous as regulation 213 may appear, breach of the rule can come with a penalty of up to $2,200.
Road Rules 2014 (NSW) provides hundreds of rules that cover every aspect of the road including angled parking, how to make turns, and rules for pedestrians. Most other states and territories have an equivalent to the Road Rules 2014 (NSW) which include similar, if not the same, regulations. Find all the regulations applicable in NSW at http://classic.austlii.edu.au/au/legis/nsw/consol_reg/rr2014104/.
If you have any queries relating to issues featured in this article, please do not, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.
The Royal Commission established an enquiry on 14 December 2017 into misconduct in banking, superannuation and financial services industry, after several years of pressure from members of the public, consumer groups, and several politicians. The aim of the enquiry is to investigate whether Australian financial services have engaged in any criminal misconduct, and whether there are sufficient mechanisms in place to compensate victims.
Since the first public hearings on 13 March 2018, a number of scandals have emerged, where the actions taken by some of the biggest financial services in Australia shed light on the unsurprising reality of their priorities. In order to meet targets, many banks have undertaken several acts of misconduct including forging documents, issuing unfair loans, briber, and lying, leaving hundreds of victims in poor financial states at the risk of losing their homes and assets.
Founder of Finance Consumers Support Association, Ms Denise Brailey, has advocated for enquiries into financial services for years. One area of particular concern for her are interest-only loans which banks devised to tempt people who were nearing retirement. Usually these people had paid off their mortgages and were looking to purchase investment property. Ms Brailey claims that these interest-only loans which did not require much documentation, tempted people to take out large loans that they could not actually afford, putting them in serious debt while the bank’s financial advisers gained commission from meeting lending targets. UBS, one of Australia’s most renowned banking analysts, confirmed in 2017 that there are around $500 billion worth of inaccurate mortgages.
The Royal Commission will be making enquiries into all these potential anomalies. Some confirmed acts of misconduct which have been exposed so far include the Commonwealth Bank of Australia admitting that their financial advisers have charged fees to dead clients, some for more than a decade, or clients who were no longer being provided with financial services. What is especially discouraging for the public has been the revelation that these financial advisors were often aware of the charges but made little or no attempt to contact family members to right the situation. AMP similarly charged their customers fees without providing financial services, and further admitted to lying to regulators such as ASIC (Australian Securities and investments Commission). As a result of these discoveries, AMP has announced the resignation of their CEO, Mr Craig Meller.
As well as investigating the big-four banks, the Royal Commission will also be making enquiries into insurance and mortgage companies such as BT Financial and Aussie Home Loans, and car financing companies. The key concern that is now on everyone’s minds is what penalties will be imposed to ensure justice and deter from future misconduct. The government has proposed new penalty regulations including increasing the maximum penalty for some serious offences to 10 years imprisonment for individuals or $9.45 million fines for corporations. They are further proposing to expand the range of offences subject to such penalties.
The Royal Commission’s interim report will be submitted no later than 20 September 2018, and their final report will not be submitted until 1 February 2019. It is clear however, in light of the misconduct unearthed, that regulations by the government and changes from financial services, can be expected. The public is able to assist the enquiry by making online submissions as an individual or entity detailing any misconduct they have encountered. The form can be found at: https://financialservices.royalcommission.gov.au/Public-submissions/Pages/default.aspx.
If you have been a victim of a financial service’s misconduct, or have any queries relating to issues featured in this article, please do not hesitate to contact us on 02 8917 8700 or fill out the enquiry box and we will get back to you ASAP.