• Once Were Warriors or Our Happy Clients

• Are your assets protected?

• Use and operation of Power of Attorney

• Reforms to Immigration Detention Systems

• New De Facto Financial Matters Amendment

• A client or customer being placed into administration – can you still recover the money they owe you?

•  Community Treatment Orders under the Mental Health Act 2007
  
• Changes in MBBF lives

Sonny Bill Williams signed and committed himself to the Bulldogs for five years little more than a year before he walked out on the club in the most explosive of circumstances.

It throws  huge  questions  over  Toulon’s  trumping  of  Williams,  signed, sealed and delivered by his  manager Khoder  Nasser,  and sets up what will be the game’s costliest legal battle since the Super
League  war.  If nothing else, how safe can Toulon feel  about his signature on their own deal?

The contract was tendered to the NSW Supreme Court as part of the affidavit to stop Williams playing rugby in France.The contract allegedly reveals the  guaranteed $2  million Williams would have earned along with the ability to inflate the amount with third- party sponsorships.

After    a  week  of  having  failed  to  find Williams  or  Nasser,  the Bulldogs and NRL went to court and were granted substitute serv- ices. In essence, it allows them to move forward with the case where they will seek an injunction against Williams playing elsewhere.

An injunction is a court order requiring an individual to do or omit doing a specific action. It is an extraordinary remedy that courts utilise in special cases where preservation of the status quo or taking some specific action is required in order to prevent possible injustice. Injunctive relief is a discretionary power of the court in which the court, upon  deciding that the plaintiff’s rights are being  violated, balances the irreparablility of injuries and inadequacy of damages if an injunction were not granted against the damages that grant- ing an injunction would cause.

Williams, Nasser and Toulon president Mourad Boudjellal were added to the Bulldogs’ lawsuit. They added both Nasser and Toulon to the proceedings on the basis of them having engaged in and inducing Sonny Bill to break his contract.

In a bid to shake free of the contract, it is alleged Williams plans to challenge the validity of the NRL’s salary cap in what will be a watershed moment for the game. The alleged legal argument is that because the salary is so crucial to the contract, an illegal salary cap will rule the contract invalid. It is uncertain this is Williams’ argu- ment as yet, he is yet to reveal any legal representation.

What makes a contract?

A contract involves certain basic elements:

• Agreement (arising from an offer and an acceptance);

• Consideration – an exchange of some benefit or some- thing of value by the parties, for example a party pays a sum of money for goods supplied by another party, or money is paid for work carried out by the other party; and

• An intention to enter into legal relations – that is, the parties intended to enter into a legally binding agree- ment (although this is often not specifically stated, it is usually implied).

The parties must also have the legal capacity to enter into a con- tract, for example in relation to age and mental capacity.

Who decides the terms of a contract?

Generally  the terms of a contract are for the parties to  decide. However, the law may ‘imply’ terms into the contract. One implied term is that goods sold for a particular purpose are able to be used for that purpose – for example that a machine which is sold as a clothes dryer will dry your clothes.

Under the New South Wales Contracts  Review Act  the terms of a contract may be altered or disregarded if they are unjust or result from duress or unequal bargaining power. However, the courts do not try to draw up contracts for parties.

What is an unjust contract?

The Contracts  Review Act  describes an unjust contract as one that is unconscionable, harsh or oppressive.

For instance, an unjust contract could be one where one party has been tricked or pressured by the other, or where a person has been encouraged to enter a contract by another party who was aware of the person’s inability to understand the terms of the contract.

Some of the things a court will look at when deciding if a contract is unjust or harsh include unequal bargaining positions of the par- ties; unreasonable or  difficult-to-comply-with  conditions in the contract; and the opportunity the parties had to obtain independent legal advice.

Does a contract have to be in writing?

Generally  contracts do not have to be in writing,  but there are particular cases when the contract must be in writing for it to be binding, for example  guarantees, the sale of a house,  and credit sales or other credit agreements.

However, it is usually better to have the details of an agreement and any variation in writing so both parties have a record of what has been agreed and are aware of what they are obliged to  do, particularly when money is involved.

Are you bound by a clause you did not read?

If you sign a written contract then generally you are bound by all of its terms even if you did not read or understand them.

There are various types of contracts which you may come across in everyday life which do not require your signature, for example a parking ticket or a drycleaning docket which has clauses printed on the back. Generally the rule is that you are bound by the clauses if you have read them or if you knew they were there but did not bother to read them, or if the other person took reasonable steps to draw them to your attention.

It is therefore extremely important that you read all the terms of a contract before you enter into it. You should not sign any document until you are fully aware of what its terms and conditions are and what they mean.

What happens if the terms of a contract are broken?

Once you make a contract you will be committing a breach if you do not comply with its terms,  or if you change your  mind and decide not to perform your side of the contract.

If a party breaches a contract there are a number of remedies available, including:

•   Damages (a sum of money) to compensate the ‘innocent’ party for any loss suffered – this is the most common remedy;

•   A  court order requiring the party who has breached the contract to carry out his/her obligations;

•   A   court order forbidding the party from breaching the contract; and

•   A  court order declaring that the contract is at an end and requiring the party who has breached the contract to put the ‘innocent’ party in the position he/she was in before the contract was entered into

The Courts are increasingly encouraging or compelling parties to consider alternate dispute resolution processes before being able to either file initial documents in the Court or before Hearing dates are being allocated.

Today, any party wishing to commence proceedings involving parenting Orders will be required to attend before an authorised family dispute practitioner and obtain a certificate from that practitioner before any application for a parenting Order can be filed in either The Family Court or The Federal Magistrates Court.

By  compelling parties to attend mediation, Parliament is using its powers to ensure that parties give real consideration to attempting to resolve problems themselves without using the Court system.

Parliament believes the new system will result in healthier and wealthier. This new model of our lawyering practice builds on the skills in knowledge, of our  traditional legal practice and we have  more clients moving through our firm at a faster rate.

Reframing the lawyer-client relationship as a working partnership has profound implications for the balance of power in lawyer-client relationships. Such partnership empowers the client not only to review and protect decisions made by the lawyer, but also to participate in them.

Imagine a ship without a rudder. It will not go anywhere, but imagine a client with the direction and expertise of the lawyer allowing him or her to take a greater  responsibility for choices and outcomes. Having your hand on the steering wheel, and held every step of the way. It is a win win win for you,  the client, the lawyer and the Family court.

For any Family Law enquiry, please contact Harry Freedman on 9264 3877.

The amendments to the Bankruptcy Act in 2006 are summarised as follows:

1.   Reducing the Insolvency Defence to undervalued transactions for related parties;

2.    Introducing the “reasonableness test”;

3.    Introducing the presumption of insolvency where there is no proper documentation or records;
4.    Introducing the Trustee’s power over natural persons who have provided a benefit to the bankrupt. Related entity is defined in Section 5 of the Bankruptcy Act, to include a relative
of the person, body corporate, a beneficiary under trust and trustee of a trust, a member of a partnership.
In 2005 there have also been some controversial Amendments  to the Family Law
Act. These can be summarised as follows:

1.   Powers of the Bankruptcy Trustee to challenge a binding Financial
Agreement;

2.   Streamlining Bankruptcy and Family Law proceedings;

3.   Changes  to Superannuation;

4.   Making void payments by third parties on behalf of the Bankrupt in certain schemes including Superannuation contributions.
If you would like more advice in relation to the above please contact our office on 9264 3877.

When the attorney accepts appointment; Between certain specified dates;
“When my attorney considers that I need assistance in managing my affairs”; or “Other”.

More commonly the principal may stipulate that it is only to commence on their loss of capacity.

Section 11 of the act it is clear that the short form does not authorise the attorney to use the principals fund to give gifts unless the principal expressly authorises the attorney to do so.
Section 12 of the act provides that the form does not include the authority to take a benefit and that any benefit would need to be expressly included in the Power of Attorney document;
In Section 13 of the act it is clear that the statutory short form does not authorise the attorney to use the principal’s fund to benefit  third parties unless the principal expressly authorises the attorney to do so.
Now stringent requirements exist in order that the person giving the power of attorney is judged to have the capacity to do so i.e.: to be capable of granting an enduring Power of Attorney The principal must understand the nature and effect of the document when explained  to them. They must be able to take in what is being explained and be able to demonstrate their understanding by communicat- ing this back to the person explaining the document. There are seven matters that a principal must understand to be able to competently grant an enduring Power of Attorney being:
The ability for a principal to restrict or specify the power to be given to the attorney;

That the attorney’s power begins when authorised by the principal and accepted by the attorney or when the principal loses their mental capacity at such other time;
The attorney is able to do anything with the principal’s property which the principal could have done (subject to restrictions listed above);
Without referring to the principal your attorney can buy and sell real estate, shares and other assets of the principal;
The Power of Attorney may be revoked at anytime by the principal but only when they have the mental capacity to do so; Power under the Power of Attorney continues even if the principal loses capacity;

Decide where you live;

Decide what healthcare you receive;

Decide what other clients are personal services;

To  consent  to  the  carrying  out  of  medical  and  dental treatment.
These are important decisions that a family ought to  discuss. Should you require further information on the above topic please do not hesitate to contact our office.

The United Nations Committee  against torture recommended to Australia  that they abolish mandatory detention and should only use it as a last resort.

MBBF has two accredited migration agents and is able to assist you with any migration issues.

This situation leaves de facto couples whose relationship has broken down and who have children needing to commence two separate sets of proceedings in the event negotiations cannot resolve these issues. In this regard it would be appropriate for a single set of proceedings being able to deal with all issues.
The changes do not only deal with which court has the power to determine the matters but also makes amendments to the Property Relationships Act  so as to direct lawyers and courts to take into account not merely contributions made by each of the parties during their relationships but also to take into account elements which are often described as the ‘future needs’ components which have only previously existed under the Family Law Act.

De Facto couples up until these amendments would divide the property based on the contributions that each of them had made to their pool of assets and standard of living but would not take into account matters such as with which parent did the child reside or disparity of income between the parties and many other issues.
Advocates who oppose the changes point to the expressed desire of de facto couples choosing their living arrangements thus avoiding going through a marriage and becoming subject to the Family Law Act.  This opinion is embraced by many key couples who are entering into a second relationship and wish to limit claims that their new partners might bring against them if the relationship were to breakdown and effectively protect their assets for their children from their first relationships.

There will be much debate about these changes prior to the law being accepted. If you have any enquries please feel free to contact us.

1.  an experienced professional is appointed as Administrator  to the Company

2.  a moratorium period is placed on the recovery of debts. Within this period most creditors are prevented from commencing or continuing proceedings against the company. The purpose of this moratorium period is to allow the administrator time to ascertain the status of the company and report to creditors as to their options

3.  an investigation will be undertaken of the companies financial position by the Administrator.

4.  a recommendation will be made to creditors as to the future of the company; and

5.  a vote will made by creditors on what course the administration of the company should take.

The Administrator is given strict timeframes within which it must convene meetings of creditors and provide recommendations as to what resolutions the creditors should pass at these meetings. The recommendations will be in respect of 3 alternate courses of action:
i. Terminating the administration. This means the company would be placed back in the hands of the Directors.

ii. Deed of Company Arrangement. This is a deed entered into between the Company, the administrator and the creditors. Such deeds take many forms and can end in either the Company eventually being handed back to Directors or being placed into liquidation.
iii. Winding the company up or liquidation.

In any one of the above alternatives a creditor may be provided with an opportunity to recover the whole or part of the debt.

Hence in order to maximise your opportunities of recovering any outstanding liabilities owed by a Company placed into administration, you (or an authorised representative) should:

•      attend the various creditors meetings (of which there are usually at least 2); and

•      obtain legal advice as to your rights and prospects of recovery.

One such little known but potentially important power is found in Section 51 of the Mental Health Act  (the Act). This section states that a Tribunal (formed pursuant to the Act) or Magistrate may make a Community  Treatment Order authorising the compulsory treatment of a person.

An   application for such an order may be made by certain persons including an authorised medical officer of mental institution or a medical practitioner who is familiar with the clinical history of the person. The tribunal or Magistrate will need to consider a number of matters before making such an order. These include the diagnosis, medical reports, proposed treatment plans and any other information placed before the tribunal or Magistrate (referred to in s 53 of the Act).

One of the purposes of the legislation is the proper treatment of such persons in situations where voluntary treatment has not been pos- sible. Once made, such an order will be an order of the court and hence enforceable as such hence therefore it is important that all relevant information is put before the Tribunal or Magistrate.

Such applications are held as soon as possible on limited notice to the interested parties. Where you have a concern in respect of an application or hearing of such an application it is important that legal advice be sought at your earliest opportunity.

Milne Berry Berger & Freedman
Prides itself on Having a Multicultural Philosophy
Various members of our staff speak the following languages:

Hindi, Malayalam, Tamil, Hungarian, Hebrew, Lebanese, French, Croatian and Italian.