Legal Articles
Secret Recordings of Private Conversations
September 4th, 2018 by | Court Disputes
A recent South Australian Supreme Court decision – Nanosecond Corporation v Glen Carron (2018) has clarified the critical aspects of the Surveillance Devices Act 2016 as to the use of secret recordings of private conversations in civil litigation. In Nanosecond, a plaintiff had used his mobile phones to record 20 conversations with various persons in… Read more »
Facebook Defamation
July 31st, 2018 by | Defamation
A recent case in the South Australian District Court, Johnston v Aldridge confirmed that the old ‘notice board rule’ applies to online secondary publishers and Facebook defamation. Just as the golf club was liable for defamatory material posted on its notice board once it had been brought to their notice; just as Google had a… Read more »
Statutory Demand Gets Debtor Company to Pay
July 17th, 2018 by | Court Disputes, Debt Collection
We have spoken before about the critical 21 day time limit of a statutory demand (see: “How to deal with a Statutory Demand” and “Statutory Demand: the 21 day guillotine”) which is often ignored by a debtor company and generally results in payment of the debt, costs and interest. Debtor Company Has 21 Days to… Read more »
How To Get Your Commercial Tenant To Pay Rent On Time
July 9th, 2018 by | Property & Leases
Unfortunately it is not uncommon for landlords to encounter problems with tenants who do not pay rent on time. To make matters worse, this type of tenant is often late with rent payment and often won’t pay until they have received multiple requests from the landlord or their managing agent. In my experience, no amount… Read more »
Option to Renew Commercial Lease
June 28th, 2018 by | Property & Leases
The Retail and Commercial Leases Act 1995 (“Act“) provides that a lease governed by the Act must have a minimum term of 5 years including options. The parties to the lease, and particularly the tenant, may not want to commit to a 5 year term so an option to renew the lease will provide the… Read more »
Buying a Franchise – Pros and Cons
June 20th, 2018 by | Franchises
Thinking about buying a franchise? There are several factors that need to be considered. What’s good and what’s bad about a franchise? Franchises – The Good 1. The business is already up and running There will be an initial outlay of money for the franchise but the purchaser/s should hit the ground running. There shouldn’t… Read more »
Defamation Damages Update
June 19th, 2018 by | Defamation
In our article on defamation damages, we gave an overview of how a court comes to an assessment of damage to reputation and feelings based on a libel or slander of character. The damages for non-economic loss is stated in the SA Defamation Act, 2005 to be $250,000, or such adjusted figure as gazetted from… Read more »
Statutory Wills in South Australia
June 12th, 2018 by | Wills & Estate Planning
In order to validly make a Will, a testator must have testamentary capacity. Section 7 of the Wills Act, 1936 empowers the Supreme Court of South Australia to authorise a Will to be made on behalf of a person who lacks testamentary capacity, in certain circumstances. Such Wills are known as a Statutory Wills. In… Read more »
Is Vendor’s Statement Necessary When Selling a Business in SA?
May 31st, 2018 by | Business Sale & Purchase, Commercial Transactions
A contract for the sale and purchase of a small business should not be completed unless a Vendor’s Statement, also known as a Form 2, has been provided to the purchaser. The Land and Business (Sale and Conveyancing) Act 1994 (“Act“) and the Land and Business (Sale and Conveyancing) Regulations 2010 (“Regulations“) set out the… Read more »
Property Co-ownership Agreements
May 22nd, 2018 by | Property & Leases
Where two or more people own property there needs to be complete understanding between the parties as to their respective rights and obligations. This is particularly so where the co-owners are not married. Very often the parties will assume they share the same views on how a property is to be maintained and whether or… Read more »
Defamation: Malice – When is it Important?
May 11th, 2018 by | Defamation
If someone defames you, legal liability generally doesn’t depend upon whether that was malicious or not. It generally doesn’t matter if it was intentional or not. (Actual malice can be relevant to damages, however, as an aggravating element). Malice irrelevant Bill sends a general-public Facebook message that says “Mike Savile is a pedo”. Mike sues… Read more »
Mediation – Why Bother?
May 7th, 2018 by | Court Disputes
In legal disputes, Mediation is often raised as an alternative to Court proceedings. Why? Why not leave it to the Judge or, alternatively, simply sit down with the enemy and arrange a truce over a coffee? Let’s look at these possibilities – Trial or Negotiation – and come back to Mediation. The Trial Model The… Read more »
Tips for Successful Contract Negotiation
April 18th, 2018 by | Business Sale & Purchase, Commercial Transactions, Conveyancing, Franchises, Property & Leases
In most commercial transactions the parties will need to negotiate the terms before agreeing on the final details. Successful contract negotiation is not just about who has greater bargaining power – it is also about research, planning and following some well recognised guidelines. Examples of these transactions include; shareholder agreements, partnerships dissolutions, commercial leases, the sale… Read more »
Drawing the Line: Finality in Litigation
March 27th, 2018 by | Court Disputes
The Court promotes finality in litigation. That is, once a Court has given a judgment which is ‘perfected’ (broadly speaking, a court’s equivalent to ‘signed, sealed and delivered’), then the matter is over. This is subject to certain exceptions, the most significant of which are: (1) a statutory right of appeal; and (2) a right… Read more »
Testamentary Capacity
March 21st, 2018 by | Deceased Estates & Inheritance Claims, Probate, Wills & Estate Planning
What is Testamentary Capacity? In order for a will to be valid, a testator must have testamentary capacity at the time the will was executed. The test for determining testamentary capacity is set out in the English case of Banks v Goodfellow (1870) LR 5 QB 549; namely that the testator must be of sound… Read more »
