Legal Articles
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 »
Termination of the Retirement Village Contract Due to Illness
June 5th, 2018 by | Retirement Villages
Retirement villages provide accommodation for older people who wish to live independently but in a communal setting. It is important to understand that a retirement village is not an aged care facility and is not suitable to accommodate people with dementia or other illness where a high level of care is required. Residents who become… 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 »
Retirement Village Deferred Management Fees
May 29th, 2018 by | Retirement Villages
A Retirement Village Deferred Management Fee (“DMF”) is the single largest expense associated with a retirement village contract. Because it is such a large expense it needs to be properly understood. What is a Deferred Management Fee? The DMF is the fee charged by the retirement village operator to generate income. That income is used for… 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 »
Retirement Village Disputes
May 16th, 2018 by | Retirement Villages
Retirement Village disputes will inevitably arise from time to time. It is a byproduct of communal living. The disputes can be between the residents or between the residents and the retirement village operator. The residence contract will set out the procedure for resolving these disputes. Retirement Village Disputes between neighbours The Residence Rules, which form… 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 »
Legal Advice for Retirement Village Contract
May 8th, 2018 by | Retirement Villages
Is it necessary to obtain legal advice before signing a Retirement Village contract? A prospective resident will notice a statement on the Retirement Village contract documents recommending that legal and financial advice be obtained. This statement must be included to comply with South Australian legislative requirements (Retirement Villages Act, 2016 – s21(2)(c)(iii)). The statement alludes… 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 »
Leaving a Franchise
March 21st, 2018 by | Franchises
Before Leaving a Franchise The best advice we can give you before leaving a franchise is the same as we would give before entering a franchise – read the franchise agreement and disclosure statement and, above all, get independent legal advice before you sign anything. This will help you avoid some of the more common… Read more »
SA Supreme Court – Importance of Reasons for Decision
March 20th, 2018 by | Court Disputes
Justice must not only be done; it must be seen to be done. One key part of that commandment is that a court, when reaching a decision, must give reasons for that decision. Why is it Important for Courts to Provide Reasons? A court hearing any appeal from, or judicial review of, the decision needs… Read more »
