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Calderbank Offers – what are they?

Disputes are an inherent part of life. Nobody wants a dispute, though they naturally occur due to difference of opinion on issues that are standing. As most prudent people would appreciate, the best solution is an amicable outcome without the need to litigate in either a tribunal or court on the disputed matter.
 
One of the methods to bringing a dispute to an end is through the use of offers of compromise that incorporate the so called Calderbank offer.
 
So what is a Calderbank offer?
 
This type of offer originates from the English case Calderbank v Calderbank [1975]. This case concerned whether a ‘without prejudice’ offer to settle, could have the confidentiality waivered in order to rely upon the proposed offer in seeking an application for indemnity costs.
&

John Melis Sep 15, 2016 03:24 PM

Don’t be caught out by a caveat!

 
You have sold your amazing property and the purchaser is excited to move in! However, on the day of settlement you cannot provide clear title as someone lodged a caveat on the title 5 days beforehand. There is a breach of contract and the purchaser is now considering pursuing damages against you.  
 
So what are some of the options you have to remove the caveat that is stopping the sale?
 
The first option is to follow the procedure under section 89A of the Transfer of Land Act 1958, which is filing an application to the Registrar that the person who lodged the caveat, called a caveator, does not have an estate or interest in the property claimed by them. The Registrar will give notice to the caveator, that unless the caveat is withdrawn, court proceedings will be brought within 30 days

John Melis Sep 15, 2016 10:14 AM

Ending a Relationship Financial Agreement!

In today’s society where forever means not so... financial agreements are a good contract to have between a couple. The financial agreement can be made at the beginning, during or end of the relationship. The thing is though, sometimes what is agreed too at a certain time, is not really reflective what should have taken place as the accepted circumstance between the parties.
 
So how do you get out of a relationship financial agreement?
 
Financial agreements can either be terminated by the parties mutually under the Family Law Act 1975 (Cth) by entering into a written termination agreement, or having the agreement set aside by the court under the Act where it is void, voidable or unenforceable.
 
Where there is a later financial agreement which has a clause that terminates a

John Melis Sep 14, 2016 09:35 AM

Property Fraud!

Selling and buying property should be a smooth transaction, especially with digital processing where the transaction from start to finish is carried out online. However, the potential for fraud will always be there for the unaware.
 
Generally, as property owner’s know once your name is registered on the title, your rights to the property are secure, which the registration of your name on the title is indefeasibility of title, however, this protection is not absolute.   
 
Where an act of fraud occurs to a property owner, section 42(1) of the Transfer of Land Act 1958 in Victoria, and sections 42, 43 of the Real Property Act 1900 in NSW, may aid in the situation, though the term fraud is not specifically defined by the legislation. Though a good definition of fraud was stated in the

John Melis Sep 13, 2016 05:30 PM

Building Contract – Implied Terms!

Under the Domestic Building Contracts Act 1995 (Vic) there are implied terms into every contract that is entered into for renovation or building from start.
 
Some of these implied terms include:
 
1.     That the builder will complete the work in a proper and workmanlike manner. This implied term in the contract, cannot be excluded from the agreement.
 
2.     That the materials used will be of good quality and reasonably fit for their purpose for which they are to be used, unless the contract excludes such warranty. In relation to materials used there are two implied warranties, a warranty for quality and warranty for fitness; and warranty will also apply for latent defects in materials.
 
3.     That th

John Melis Sep 13, 2016 12:28 PM

What is Perfection under the PPSA!

 
As the economy changes so do the requirements to protect your interests in personal property and with lending of money.
 
Perfection of a security interest serves a publicity function, and is governed by the Personal Property Securities Act2009 (Cth).
 
Under the Act a security interest is perfected if it has attached to the collateral; written requirements have been complied with; and perfection steps have been carried out under section 21(2) of the Act. The security interest is only perfected when all the requirements have been met. If one condition is missed the interest will not be perfected.
 
As example: Sally says to her friend Joe that her business is doing well, and she wants to move to a larger warehouse. Sally borrows $150,000 from Joe on 20 May 2016. Joe takes a s

John Melis Sep 13, 2016 09:36 AM

Unfair dismissal – you have rights!

 
The Fair Work Act provides that a national employee is protected from unfair dismissal, as long as two requirements can be met:
 
1.     The minimum employment, ‘probationary’, period must have been completed, which is normally 6 to 12 months in a small business employer’s situation.
 
2.     The employee must be covered by an award or enterprise bargaining agreement, or their annual earnings are below the high income threshold.
 
If an employee wants to start an unfair dismissal claim against an employer, it must be commenced within 21 days of the dismissal by lodging an application with the Fair Work Commission.
 
In the event that a claim is lodged after that date, the filing party needs to establis

John Melis Sep 12, 2016 09:14 AM

Should you check the property title?

Purchasing property comes with varying risks, and with the economy changing towards the negative, the chance of business and personal insolvency increasing is high, and could make a simple property transaction turn into one which is fraudulent, wrought with disastrous consequences for the buyer.  
 
The most important aspect about purchasing property is the title. Generally, most people understand that the title demonstrates the ownership of the property, and what other interests may be raised against that title.
 
In Victoria the sale of land is governed by the Transfer of Land Act 1958, and the majority of land comes under the Torrens System of Title. The Torrens System has three distinct elements: (1) interests in land are conveyed by registration of a deed; (2) indefeasibility of title; (3

John Melis Sep 11, 2016 01:46 PM

Property Contract Rescission – What is it?

Contracts which are entered into due to duress, mistake, misrepresentation, undue influence and unconscionability may be set aside. This being known as rescission, which is an equitable remedy.
 
Rescission of a contract occurs where notice is given by the rescinding party to the other party of the contract. Where there is an order for rescission it will render the contract non-existent both at law and in equity.
 
A simple example of where rescission may occur is a fraudulent misrepresentation by B inducing A to purchase B’s land. 
 
A more complex example is where a property purchaser is unable to settle on the due date and goes into default, or a vendor is unable to present clear title at settlement.
 
In either situation once a defaulting party is id

John Melis Sep 11, 2016 09:37 AM

When can you register a caveat?

 
Caveats are a form of a statutory injunction and may only be lodged by persons who have an estate interest in land.
 
A party cannot confer a right under contract to lodge a caveat where no caveatable interest exists. However, if there is a proprietary right created through contract, which creates an interest in land a caveat can be registered against that land.
 
A caveatable interest is a proprietary interest. In Municipal District of Concord v Coles (1906) the court held: it is only a person who has a legal or equitable interest in land, partaking of the character of an estate in it or equitable claim to it, who can lodge a caveat.
 
Considering this point another way. An existing proprietary interest at law or in equity will support both the lodgement and extension of a c

John Melis Sep 10, 2016 05:07 PM