Sorry Is Not Good Enough - Or Is It?

Sep 19, 2011

SORRY IS NOT GOOD ENOUGH - OR IS IT?
Article by A. Moutasallem
September 2011

We live in a litigious society where it is often the case that parties elect to fight disputes to the bitter end in court rather than pursuing attempts to reach a mutually acceptable compromise.  It seems we are reluctant to acknowledge fault and to apologise to those who have been aggrieved by our conduct.

In light of recent legislative changes and recent social research in both Australia and overseas we invite all our clients to consider the potential of an apology in dealing with a dispute.

A sincere apology, acknowledging the wrong conduct and expressing genuine remorse, can result in desirable outcomes.  An apology cannot only potentially assist in reducing the time and costs of litigation, it may be so well received that litigation may be avoided altogether.

An apology appeals to the most fundamental emotional and psychological needs of a person who has been harmed by the conduct of another.

Social research has shown that rather than monetary compensation, often the most fundamental need of an aggrieved party is an acknowledgement of the wrongful conduct.  Our hearts and minds are programmed to positively receive a sincere apology.

A refusal to apologise is likely to infuriate the aggrieved party and often results in long drawn out litigation proceedings run only on the basis of “principle”, rather than any carefully thought out commercial consideration.

A sincere apology has the obvious advantages of maintaining an existing relationship.  It is a clear demonstration of trustworthiness and honour on the part of the apologising party.

One may be forgiven for being hesitant to issue sincere apologies fearing the legal repercussions of an admission of liability for wrongful conduct.  Our State Parliament in its infinite wisdom has seen fit to enshrine in statute a protection for apologies that include an admission of responsibility for wrongful conduct.  Pursuant to the Civil Liability Act 2002 an admission made in an apology is inadmissible in civil proceedings as evidence of the fault or liability.

We stand to lose nothing by trying to avoid litigation in this manner, but inevitably there will always be an aggrieved party who for some reason or another chooses to pursue litigation notwithstanding an apology.

If circumstances change, negotiations for an acceptable settlement fail, or you simply have a change of heart, provided that the apology meets the statutory criteria, nothing precludes us from launching a vigorous defence later in the future.  That is the virtue of the statutory protection of an apology.

An apology needs to be carefully drafted to ensure that its clarity and sincerity is obvious to invoke the protection of the Civil Liability Act 2002.  We cannot stress the importance of a sincere and clear apology to avoid having admissions of liability later tendered in evidence.  For this reason we recommend that any apology be drafted or its wording approved by a legal practitioner before it is communicated to the aggrieved party.

This article is not meant to be interpreted as advice to acknowledge fault for each and every accusation levelled against us.  Often a party has no moral or legal standing to demand either an apology or an acknowledgment of liability.  In such circumstances a vigorous defence is warranted.

There are times were liability is a contentious issue, a factor which may not be apparent without legal advice.  It is possible that an investigation of the facts that brought about the dispute by a skilful legal practitioner may disclose that in fact the initial aggrieved party is guilty of the wrongful conduct.  In such circumstances the supposed aggrieved party deserves to be served with a statement of cross-claim rather than an apology.

Therefore, if unsure whether or not you are at fault, seek legal advice before you render an apology.

Litigation can be a traumatic, time consuming and costly exercise.  We have chosen to enlighten our clients about the benefits of a carefully drafted sincere apology in the interests of saving our clients the costs, time, and anguish associated with litigation.  We reiterate: legal advice is always recommended before making any apology or giving any acknowledgement of liability.

“You may now kiss the bride….. right after she signs the prenup”

Oct 05, 2011

“You may now kiss the bride….. right after she signs the prenup”

Most people would be familiar with at least the basic concept of a prenuptial agreement, a legally binding document signed by people before they get married which sets out how property is to be divided.

Once executed, a prenuptial agreement becomes legally binding, and can only be set aside by a court in very limited circumstances. For instance, a court can set aside a prenuptial agreement if a court deems that one party engaged in unconscionable conduct prior to the signing of the agreement.

In April 2011, a Federal Magistrate handed down an interesting decision in which a prenuptial agreement was set aside due to the husband’s unconscionable conduct. The relevant facts can be summarised as follows:

• The Husband was an Australian citizen;

• The Wife was not an Australian citizen and was on fiancé visa;

• The wife was pregnant;

• The Husband instructed his solicitor to draw up a prenuptial agreement 5 days before the couple's wedding date;

• When the Husband and Wife discussed the agreement, the Wife said she did not believe the agreement was necessary as she would not make a claim against his property;

• The Wife, however, entered the agreement as the Husband said he would not marry her and would not sponsor her fiancé visa if she did not sign it; and

• Unsurprisingly the Husband and Wife split up and the wife filed an application in court to set aside the prenuptial agreement.

The Federal Magistrate held owing to the Wife’s desperate circumstances she clearly did not have a choice when signing the prenuptial agreement and therefore the agreement was set aside. The Federal Magistrate could not look past the fact that the prenuptial agreement was prepared so close to the wedding day, as though the wedding day was used a leverage to get the agreement signed.

As it was a decision of a Federal Magistrate the decision is not binding on any court. In other words, other judges in the Family Law Courts are not bound by the decision. This of course does not stop judges from making reference to the case in their own judgment.

To the best of the writer’s knowledge the decision has not been appealed to a higher court. It would be interesting to see how a higher court would have viewed this decision.

The moral of the story is, to ensure that a prenuptial agreement is upheld, the agreement should not be prepared hastily within a few hours or days of heading to the altar. It is important for those parties adamant on a prenuptial agreement to discuss the issue with their fiancé long before the wedding day, that way there can be no suggestion that anyone was unduly pressured into signing the agreement.

If you are engaged and planning to marry anytime, you need to discuss prenuptial agreements with one of our experienced family lawyers.
 

The Interlock Program

Sep 29, 2011

In certain circumstances, it is inevitable that a person convicted of a drink driving offence will lose their licence for a period of time.

However, no matter how desperate your circumstances are our experienced drink driving lawyers will do their utmost to get you back onto the road.

If your circumstances are suitable, our drink driving lawyers can request that the court allow you to participate in the interlock program. Essentially the program allows participants to serve a shorter disqualification period if the participant agrees to install an interlock device for a period of time.

An interlock device is an in-car breath alcohol analyser that is connected to the ignition of the vehicle. The device restricts the participant’s ability to drive if their blood alcohol concentration is higher than a certain level.

The program is voluntary and people who wish to make use of the program must bear the costs of the device’s installation.

Our drink driving lawyers have extensive experience with the interlock program and are skilled in drawing to the court’s attention the relevant considerations in a persuasive manner.

The program may be an option for some; however, for others the lengthy period of time that the interlock device will have to remain installed may be unjustifiably cumbersome.

Conveyancing FAQs

May 11, 2011

CONVEYANCING SYDNEY - FREQUENTLY ASKED QUESTIONS

Confused about Conveyancing or have a million questions going through your head

The Conveyancing Frequently Asked Questions (FAQs):

Q: What is Conveyancing? 

A: Put simply, conveyancing is the legal process of transferring the title of a property from one person to another.

Q: Why should I use a Conveyancer?

A: Buying or selling property is one of the biggest financial transactions or your life. Due to the financial and legal aspects of transferring property, the consequences of making a mistake can be both costly and heartbreaking.

By having a qualified solicitor take care of your property transfer, their qualifications and experience can help protect your assets.

A qualified solicitor has an in-depth understanding of the law concerning property transactions, is required by law to carry professional indemnity insurance, and can offer you their experience on other matters related to your property transaction that may arise.

Q: What is the cooling off period and how does it affect me?

A: A cooling off period is the right of a purchaser of property to cancel the agreement within 5 working days. It offers some protection to purchasers that may have rushed into a contract to purchase property and can be used to finalise financial arrangements or perform title searches. Cancelling the agreement (or rescinding, as it is known) will cost the purchaser 0.25% of the total purchase price.

The cooling off period does not always apply (at auction, for example) and can be waived providing a 66W certificate is signed by a qualified solicitor who has briefed his or her client with regard to the implications involved of waiving the cooling off period.

Q: What is a disbursement?

A: A disbursement is an expense incurred on behalf of you related to the purchase or sale, and includes the costs of obtaining a certificate from local government authorities or local councils and agency settlement fees.

Q: What happens if either party cannot settle on the due date?

A: The vendor or seller can issue a 'Notice to Complete' which means the vendor or seller has 14 days (including weekends and public holidays) to settle the matter. If left unsettled due to the vendor, the purchaser has the right to terminate the contract and is eligible to receive their deposit back (depending on the circumstances). The purchase may also issue a 'Notice to Complete' if provided for in the Contract.  The purchaser may also apply to the Court to have the vendor complete the agreement and hand over possession.

If the vendor is ready to settle by the settlement date and the purchaser is not the vendor is entitled to charge the purchaser interest for the number of days settlement is delayed. The contract usually stipulates the applicable interest rate. When a 'Notice to Complete' is issued, the vendor may terminate the contract and keep the deposit, and can legally place the property back on the market to sell.

Q: What happens at settlement time?

A: Settlement is the finalisation of the sale or purchase process. There are usually four parties involved - the buyer and sellers' solicitors and the banks for the vendor and purchaser.

On settlement, the purchaser's bank will exchange cheques as per the instructions of the buyer's solicitor and in return, receive the Certificate of Title and 'discharge of mortgage' (if applicable) from the seller's bank.

Once the settlement date arrives, the keys can be handed over to the purchaser.  The deposit is released by the depositholder (usually the agent) to the seller or as directed by the seller. At this stage, the buyer's bank registers the change of title and mortgage, and notifies authorities (such as the water company) of the change.

Q: Who notifies the authorities that I have purchased a property?

A: When your transfer papers are lodged for registration after settlement, the council,  water providers and the Valuer General are automatically notified of the new purchase. Other providers, however, will need to be notified.
Arrange a consultation with a Solicitor.

The Conveyancing process looks closely at what happens when a purchaser buys a property, from the pre-purchase stages, and on to the actual conveyancing process itself.

At Platinum Lawyers, we have qualified Lawyers and Solicitors looking after your property purchase at every stage of the conveyancing process.

Simple. Low Cost. Low Risk.

Selling Property

Mar 16, 2011

SELLING YOUR PROPERTY IN SYDNEY

Eliminate the Stress out of Selling

Selling your property or family home will most likely be a very emotional time in your life. Issues such as managing the sale, making sure your sale goes through correctly in order to be able to buy a new property involve difficult legal contracts and processes. If this is all not handled correctly, your dream can quickly turn into a nightmare.

This article will list briefly what happens in the process, however please note it is only a generally summary and you should consult your legal adviser for specific information and advise relating to your specific sale.

The Contract For Sale

Selling your property will require entering into a contract with a potential buyer which is called a ‘Contract For the Sale of Land’. The Contract will set out all the terms and conditions of the sale, for example the agreed price, the time of completion and the nature of the property being offered for sale and any other necessary special conditions.

What is in a Contract for the sale of land?

Your Conveyancing Lawyer will draw the contract up to include the following:

   1. the identity of the buyer and seller;
   2. the title details of the property being sold;
   3. the agreed price;
   4. the date on which the final amount will be paid (the ‘completion’ date); and
   5. other rights such as a ‘cooling off’ period and what inclusions are to be included ( such as curtains, light fittings, stove or shed)
   6. the rights of the parties in relation to matters such as the adjustment of council, water and strata rates.

What is involved in drafting and exchanging contracts?

We now explain the process as it generally occurs in our firm.

Once deciding to sell, the seller will list their property with a Real Estate Agent who will start to market the property to prospective buyers. At the same time, the seller will contact a Conveyancing Lawyer to draft a contract for the sale.

Once a purchaser is found the draft contract will be negotiated during a “cooling-off period”. Your Conveyancing Lawyer will amend the contract based on the buyer’s details and include any of the amendments agreed to;

   1. The buyer will pay a deposit and the contracts will be exchanged.
   2. The buyer then issues "requesitions" seeking details of the seller's title
   3. Your Conveyancing Lawyer will execute the transfer of the title to the property pending settlement; and
   4. Upon settlement the remainder of the sale price will be paid and the property will be transferred.

Should I give a Cooling-off Period

The ‘cooling-off period’ will enable the buyer time to reconsider the purchase. If your buyer wishes to terminate the contract during the cooling-off period then other potential buyers for your property may no longer be interested in your property, having found another property to buy. You may therefore insist that the buyer waive their right to a “cooling off” period. Your Conveyancing Lawyer will be able to advise you on this.

Getting the right advice

The sale of a property is normally complex process. A Conveyancing Lawyer will help your sale proceed with a minimum of complication and stress, and will help protect your interests if things go wrong, such as the purchaser fails to complete the purchase.

Some people may think that they cannot afford the services of a Conveyancing Lawyer and can handle the transaction themselves. This is strongly advised against! You should think about selling your property as one of the most important legal transaction you will make in your life. During this period a readily available Conveyancing Lawyer who can communicate with you in plain English during every step of the process will be vital.

If you are planning on selling a family home or long-term investment property, consulting a Conveyancing Lawyer will greatly increase your chances of a successful outcome.

If you’re thinking of selling your property, contact the expert Conveyancing Lawyers at Platinum Lawyers (NSW) Pty Ltd today.