FAQs

What does it mean to have testamentary capacity?

Testamentary capacity is defined as the mental capacity of a testator while executing their will. A case, (Banks v Goodfellow (1870) LR 5 QB 549) affirmed by multiple Australian authorities including the New South Wales Court of Appeal in  (Mekhail v Hana [2019] NSWCA 197) sets out the following as a test of testamentary capacity. […]

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There is an AVO between me and my neighbour. Does this need to be disclosed when I sell my property?

NO An agent does not have a duty to disclose the existence of an AVO between a tenant and a neighbour. However, if asked about the AVO the agent cannot make misleading representations about relations between yourself and the neighbour. Pursuant to section 52 of the Property and Stock Agents Act 2002 (NSW), the agent […]

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When can an employer deduct from my wages as an employee?

Generally, an employer is NOT allowed to deduct from an employee’s wages unless they are authorised by the employee, the modern award or by a Commonwealth law. The deductions that are allowed are specified under section 324 of the Fair Work Act 2009 (Cth) (‘the Act’).   324 Permitted deductions (1)  An employer may deduct […]

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Can my lessor charge me (the tenant) for the mortgagee consent fee?

NOT FOR A RETAIL LEASE! For a retail lease to be registered the consent of the mortgagee is required. In providing consent, the mortgagee will charge a consent fee. The lessor is solely responsible for paying the full costs of this mortgagee consent fee. Hence, a lessor cannot pass this fee onto you. If the […]

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I am a minority shareholder and I believe the majority are acting badly, what are my options?

Given the scope of company law and breadth of varying divergence between majority and minority shareholders, let us consider the most common disputes whereby the company’s affairs are contrary to the interests of its members or are oppressive, unfairly prejudicial or unfairly discriminatory against a member(s). Examples include: Improper diversion of a business to another […]

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What is the process for getting a by-law amended or repealed?

If a by-law needs to be AMENDED it is necessary to look at s 141 of the Strata Schemes Management Act 2015(the Act) as it provides the procedure for changing by-laws. Simply, the owners corporation, through a special resolution, can alter by-laws as they wish. This change however does not come into effect until the owner’s […]

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Should I use a Deed or a Contract?

Nicholas Seddon observes in Seddon on Deeds (The Federation Press, 2015), 19: “As a general principal, a contract should be preferred over a deed if there is a choice.”

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What is the difference between a guarantee and an indemnity?

Lord Justice Pearce in Yeoman Credit Ltd v Latter (1961) WLR 828, at p.830. said: “In its widest sense a contract of indemnity includes a contract of guarantee. But in the more precise sense … a contract of indemnity differs from a guarantee. An indemnity is a contract by one party to keep the other […]

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When can Legal Aid NSW register a caveat?

Firstly, a caveat (form 08X) is a warning that informs the public that someone has a priority interest in a property, and the party that lodges the caveat is the caveator. Secondly, an individual must have a ‘caveatable interest’ to lodge a caveat. So, under what circumstances can Legal Aid NSW be a caveator? Pursuant […]

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I have been served with a ‘Lapsing Notice,’ what do I do?

A lapsing notice is a form which once served on the caveator will cause a caveat registered on title to ‘lapse’ after 21 days of the service of the noticeunless orders are obtained from Supreme Court for an extension of the caveat. You must obtain those orders before the expiry of 21 days. Generally on service of a lapsing […]

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