MMLaw News & Legal Updates

Issues about assets may often arise in connection with estates of persons who have had more than one relationship and may have left a child or children of such previous relationships.

It should not be taken for granted that actions involving estate property may be pursued at the cost of the estate.  The case Glassock v The Trust Company (Australia) Pty Ltd [2012] QSC illustrated this. Here, two of the three executors named in the last Will of the deceased, were children of the deceased and applied to the Supreme Court for directions as to whether they could and ought to start proceedings to set aside a transfer by the deceased during his lifetime, of property which had been owned by him, to the deceased and his wife as joint tenants.

The Court considered the circumstances in that case were such that the Applicants, who were fit and able bodied adults and stood to benefit substantially from the successful pursuit of the proceedings, should fight out the litigation at their own risk as to costs. The Applicants were already residuary beneficiaries of certain property of the deceased and it was not considered right in that case for the action to be pursued at the cost of the estate. 

If you need assistance with estate matters please contact McColm Matsinger Lawyers.

Carmel Davies
McColm Matsinger Lawyers

It is not difficult to realise that evidence in Commercial Litigation matters can be very heavy in complex detail and the legal costs can thus escalate quickly where litigation is resorted to.

It is sensible, in most situations to endeavour to resolve disputes by negotiation, mediation or other alternative dispute resolution processes.  However if this simply cannot be achieved then we must consider carefully the whole situation and weigh up the commercial viability of proceeding to litigation through the Courts and the need to assert positively the rights of a party.

The recent case Hyatt of Australia Ltd v Coolum Resort Pty Ltd & Ors [2012 QSC49 – 9 March 2012] is a good example of this. In this case the Corporate Manager of the Hyatt Regency Coolum Golf Resort has approached the Court to establish its rights to run the Resort pending the outcome of proceedings in the Court to finally decide on the rights of the parties in dispute.

In this case there are very determined and forceful new owners of the subject golf resort in strong conflict with management.  The management has chosen to resort to litigation to firstly establish the right to continue with the management of the resort without interference from the owners.  It will be interesting to follow this case and discover the final outcome.

Carmel Davies
McColm Matsinger Lawyers

The recent decision of South Sky Investments Pty Ltd v Luppi [2012] QSC 27 was handed down in the Supreme Court on 20 February 2012.

The Defendants Mr and Mrs Luppi had paid a deposit of $101,000.00 to secure the purchase of a unit in the Oracle Development at Broadbeach under an “off the plan” contract. The purchase price which they agreed to in 2007 was $1,010,000.00

The Defendants declined to proceed to settlement and the Seller took Court action against them to recover its loss and damage.

It was determined by the Court that the value of the unit as at 16 December 2011 was only $700,000.00 due to recent “challenging market conditions”. The Defendants were not legally represented at the hearing and Judgment was given against them for damages assessed at $428,483.50 plus interest, plus the Plaintiff’s costs. This case illustrates the dilemma that faces buyers in relation to “off the plan” contract where settlement dates may be a considerable time in advance, and when real estate values may unexpectedly take a turn for the worse.

Carmel Davies
McColm Matsinger Lawyers

The Supreme Court of Queensland considered this question in the recent case of Robson v Mine & Quarry Equipment International Limited [2012] QSC13.

In this case the Applicant Charles Robson sought the winding up of the Respondent Company due to its “insolvency”. However it was found, during the hearing of this case that liability of the company for indebtedness was not discharged in circumstances where the Applicant had refused to accept payment. It was found that some of the borrowings by the company from other creditors were not repayable in the immediate future.  It needed to be established by the Applicant that the Respondent Company was not able to pay all its debts as and when they became due and payable and he was unable to establish this. Thus his application was dismissed. 

If you are seeking the winding up of a company then it is best to consult with a legal practitioner with appropriate experience in that area of law.  Contact us for further information.

Carmel Davies
McColm Matsinger Lawyers

This Act provides that a Residential Tenancy Agreement is an agreement under which a person gives to another a right to occupy premises as a residence. It does not matter whether the agreement is in writing or oral or that the agreement is not in accordance with the prescribed form under that Act.

In Evans v Ramsey which came before Q-CAT (Queensland Civil and Administrative Tribunal) in August 2011, the father in-law of the owner of a unit was endeavouring to put forward that he had an equitable interest in the unit as an owner rather than as a tenant but he was unable to produce a document or writing to support his contention. The Adjudicator’s decision at first instance, based on the facts, was that the verbal agreement between the parties was a Residential Tenancy Agreement and that proper notice to remedy breach of the tenancy agreement was given to the tenant with notice for the tenant to leave the premises.  The breach was not remedied and the order for the tenant to give up possession was confirmed.  

If the father-in law was to pursue any claim for an equitable interest in the property then this was not a matter for which the Tribunal had jurisdiction.

It is always best to have agreements in writing and to have written evidence of any right or interest in property.

Carmel Davies

McColm Matsinger Lawyers

Family business disputes can be very messy as the Creswick cases, fought vigorously in 2009, 2010 and 2011 reveal. The Creswick cases involved a family saga in which the chief players were the father Felix Creswick and two of his sons John and William Creswick and their respective wives as well as family companies in which they were all involved.

In essence there were serious allegations made by Felix that his son John had forged signatures with regard to property developments and other family enterprises. Mr Justice Daubney rejected the credibility of several family members including the main protagonists and had to rely on other witness to try to achieve some understanding of the dispute and to obtain some solution. There was deep hostility between father and sons and each went to extreme lengths to traduce one another’s reputations.

In the end, the court decided the dispute and the family members were left with varying cost orders made against them.

Sometimes the issues arising among family members including emotional issues are so deep-seated intense and difficult that the parties look to the Court for resolution rather than taking the more desirable and less public avenue of resolving those issues by alternative dispute resolution processes such as negotiation or mediation. The costs consequences in relation to Court litigation can be extremely significant.

Carmel Davies

McColm Matsinger Lawyers

In the recent case of Mizikovsky v Queensland Television Ltd & Ors (No.3)[2011] QSC 375, the Plaintiff Mr Mizikovsky took a substantial risk in refusing to accept a significant settlement offer and proceeding to trial.

Please click here to see our full article on the importance of considering settlement offers before proceeding to trial.

Carmel Davies

McColm Matsinger Lawyers

The team at MMLaw are back at work and looking forward to 2012

All of us from McColm Matsinger Lawyers wish you a Merry Christmas and a Happy and Prosperous New Year.

Our office will be closed from 5pm Thursday 22 December 2011  and will re-open at 9.00 am on  Monday 9 January 2012

We look forward to a Happy and Healthy 2012

We often hear the term “repudiation”.  What exactly does it mean?

What rights may arise out of “repudiation”?

Generally in a contractual situation, it means a refusal by a party to perform a duty or obligation owed to that party.  However, just what constitutes a “repudiation” may need to be far more closely examined in the context of the circumstances surrounding the so-called “repudiation”.

If you require assistance with understanding your contractual obligations please contact us via our website or see the full article for further information.

Carmel Davies

McColm Matsinger Lawyers.