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Land Contract Disputes – Ye Olde Requirements For Writing Have Byte In A Digital World

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oldlawmodernworld

When Captain James Stirling established the Swan River Colony at Perth in 1829, he brought with him as ‘received law’ all of the general statutes of England that were in force at that time. But with Land Contract Disputes – Ye Olde Requirements For Writing Have Byte In A Digital World.

Only a few of those provisions still survive, but one is section 4 of the Statute of Frauds 1677 which, for 186 years has had the effect of requiring that for certain types of contract to be legally enforceable in Western Australia, they have to be recorded in writing and signed by the person to be bound.

Similar requirements for writing and signature are also found in section 4 of the Sale of Goods Act 1893, and section 34 of the Property Law Act 1969.

These days, the most important practical application of these formal requirements is in relation to contracts (or alleged contracts) involving dealings with interests in land.

Modern Law

In 2011, the WA Parliament modernised the definition of what would be an acceptable legal form when it enacted the Electronic Transactions Act 2011.

In substance, section 10 of that Act provides that if a WA law has a requirement for the signature of a person, then that requirement will be met in relation to an electronic communication if:

  • (a) A method is used to identify the person, and to indicate the person’s intention in relation to the information communicated; and
  • (b) The method used is sufficiently reliable having regard to the circumstances of the communication (or the method is proven as a matter of fact to have complied with the requirements of paragraph (a)); and
  • (c) The person to whom the signature is required to be given consents to the requirement being satisfied by the use of the method described in paragraph (a)).

Old Law in a Modern World – a Case Study

In a recent WA Supreme Court decision (Claremont 24-7 Pty Ltd v Invox Pty Ltd [2015] WASC 220 – delivered 17 June 2015), it was held that section 10 of the Electronic Transactions Act applied to the Statute of Frauds and Property Law Act requirements for writing and signature in relation to contracts involving interests in land.

Importantly, the Judge found that an email sent by a director of a land owning company indicating acceptance of terms to be included in a formal offer to lease was sufficient to bind the company to an agreement to enter a lease on the terms offered.

This outcome was no doubt an unpleasant surprise for the director who, in the absence of a formal written offer being signed, had gone on to separately negotiate and conclude a formal lease with another party.

In the result, the Court found that both agreements were enforceable, and the landowner company suddenly had a damages problem!

Land Contract Disputes – Ye Olde Requirements For Writing Have Byte In A Digital World.

Land contract disputes can be complicated, and a bad result can be expensive.

If you have a land contract dispute, or want some advice to help avoid one, contact Tim Retallack or Charles Clifton (Litigation) or Marcus Easthope or Christian Hofferberth (Property)  at Culshaw Miller Layers in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email

Can I Get Divorced?

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divorcedecreeCan I Get Divorced? An application for divorce no longer requires that one party demonstrate that the other party is somehow at fault for the breakdown of the marriage.

However, a party applying for a divorce must demonstrate a number of other key requirements.

How long have you been married?

In the event you and your spouse have been married for less than 2 years, the Court (unless there are special circumstances) will require parties to attend family counselling before it will approve an application for divorce.

How long have you been separated?

In the event you and your spouse have separated, you must satisfy the Court as to the following:

– You must establish that relationship has irretrievably broken down, that is, nothing can be done by either party to mend the relationship; and
– Parties to the marriage must have lived separately and apart for a continuous period of at least 12 months.

Separated but still living together?

The law understands that sometimes following a separation, parties may still have to share the same accommodation and may still perform some household services for each other, such as cooking or cleaning, for example, where it is necessary for the running of the home and the convenience of others who live there. This is called separation under one roof. As long as you can prove that one or both of the parties left the marriage and you began living independently of each other, the 12 month separation period can start to run and will not stop merely because you continue or resume sharing the same accommodation.

It will be easier to prove separation under one roof if:

– there were good reasons why you had to continue or resume sharing the same accommodation (such as for the sake of your children or one of you could not find or afford separate accommodation); and
– you do intend to live apart in the near future.

Tried resuming the relationship but it did not work out?

In some instances parties may resume their relationship during the 12 month period only to find that it simply cannot work. If this happens, the Court will aggregate the time prior to the re-commencement of cohabitation and the period following the ultimate breakdown of the relationship. This ensures that parties do not then have to start the 12 month period from scratch before they can apply for a divorce.

Any children of the relationship?

Finally, the Court must be satisfied that there are appropriate arrangements as to the ongoing care and welfare of any children of the marriage who are under the age of 18 before it will grant an order for divorce.

The current filing fee for an Application for Divorce is $1,195. If you are thinking of applying for a divorce order, contact Culshaw Miller Divorce & Family Lawyers who can assist you with your application.

Contact the family lawyers at Culshaw Miller in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email

Blog post by Meroë Kuhl

Why Everyone Needs To Know About Estate Planning

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estateplanning2Why Everyone Needs To Know About Estate Planning.

Estate planning means putting in place a structure to organise your financial and personal affairs before any future incapacity and your death.

A complete Estate Plan enables your family, your business associates and others close to you to know your wishes and how you would like them carried out. Documents to consider when planning for the future include your:

– Will;
– Enduring Power of Attorney; and
– Advance Care Directive.

Wills

A Will is the document which sets out how your estate will be distributed upon your death. It deals with property that you personally own, but can direct control of other entities such as family trusts.

Issues to consider in your Will:

– Who will be the Executor? – that is, the person who administers your estate;
– Who are the family members or dependants that you should make provision for in your Will?;
– If your beneficiaries are minors or have a disability you can structure your Will to take these factors into account; and
– The tax consequences of distributing your estate.

The Will must comply with the procedures set out in the Wills Act 1936 (SA) including being witnessed by two independent witnesses who sign the document in your presence and in the presence of each other.

It is important that your Will is reviewed often and updated as your circumstances change. Marriage and divorce revoke a Will in South Australia.

Why should you have a professionally prepared Will?

If you pass away without a valid Will, and you have died leaving behind assets that need to be dealt with, it is usually necessary to apply to the Court to appoint an Administrator to distribute your estate in the order set out in Part 3A of Administration and Probate Act 1919 (SA). The Act divides your estate in set proportions depending on which family members survive you (‘statutory order’). The Act does not allow for your wishes to be considered in the distribution of the estate.

Enduring Powers of Attorney 

An Enduring Power of Attorney (EPOA) is a document by which you appoint an Attorney to make decisions about your financial affairs on your behalf. The document can become effective as at the date you sign the document, or upon your legal incapacity.

An Attorney must act in your best interests and cannot use your finances to benefit him or herself. It is a power that you give only to a person you trust absolutely as it authorises third parties such as banks and the Land Titles Office to deal with your property on the instructions of the Attorney.

An EPOA is effective only during your lifetime and ceases to have effect on your death.

If you change your mind, you can revoke the EPOA and appoint a different Attorney.

Why should you have an EPOA?

If you become incapable of managing your own affairs, and you do not have an Attorney authorised to act for you, a person must be appointed by the South Australian Civil and Administrative Tribunal to administer your financial affairs. If there is no suitable person to act as an Administrator, an independent body such as the Public Trustee may be appointed to make those decisions for you.

Advance Care Directive

An Advance Care Directive (ACD) is a document by which you appoint one or more Substitute Decision-Makers to make health and welfare decisions for you during periods when you are unable to exercise reasonable judgment.

The types of functions that a Substitute Decision-Maker can perform include: deciding where you will live, what medical treatment you will receive and conducting legal proceedings on your behalf. Your appointed Substitute Decision-Makers must give consideration to the wishes, preferences and instructions for future health care, end of life, living arrangements and personal matters expressed by you in the ACD.

If you would like to discuss your Estate Planning needs or require further information about any of the above information, please contact Meroë Kuhl at Culshaw Miller Divorce & Family Lawyers on (08) 8464 0033 or make an appointment.

Blog post by Meroë Kuhl

Why It Matters To Have A Valid Will

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ScreenshotDeath is not a subject that is easy or pleasant to think about, but, along with taxes, it is one of life’s certainties. Which is why it matters to have a valid Will.

Everyone has heard a story from their relatives, friends or co-workers where a family became involved in a bitter dispute over a deceased estate. Why are these disputes so common?

There are many misconceptions about how estates are administered when a person dies without a Will.

It pays to be prepared in your estate planning – by obtaining proper advice and making informed decisions. Things become a lot more complicated if you die intestate (without a Will). In Western Australia, intestate estates are governed by the Administration Act 1903.

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The importance of using the correct language in a Will

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the importance of using the correct language in a Will

A recent decision of the New South Wales Court of Appeal highlights the importance of using the correct language in a Will as well as the importance of Executors acting ‘reasonably’ in disputed estate litigation.

In Warton v Yeo [2015] NSWCA 115, the late Mr Justin Callaghan left a Will appointing Mr Yeo as the Executor. By his Will, the deceased left a quarter of his estate to his sister, Mrs Ailsa Lamond, and if she died before him, her share was to pass ‘to such one of her children as shall survive me and if more than one in equal shares’.

Mrs Lamond died before the deceased. A dispute arose between the Executor and the deceased’s family about the meaning of the word ‘children’ in the Will. Mrs Lamond had only one biological child, but she had four stepchildren whom she had brought up as her own children.

The deceased was close to his sister and was aware of her family circumstances. The question for the Court was whether he intended to leave that share to one child, or five.  Two of Mrs Lamond’s stepchildren filed a claim against the  Executor and asked the Court to rule on the meaning of the word ‘children’ in the Will.  Mrs Lamond’s natural child agreed to abide by the decision of the Court.

The Executor had prepared the Will and took an active role in the Court proceedings, arguing that the deceased had clearly meant that part of his estate pass to Mrs Lamond’s biological child.

The Judge at the first Court hearing agreed with the Executor and found that the word ‘children’ included only Mrs Lamond’s biological child.

The stepchildren appealed. The Court of Appeal found that the deceased, knowing his sister’s family, had intended to benefit Mrs Lamond’s biological child and the step-children by including the word ‘children’ in the Will.

The second issue in this case was the action of the Executor in actively defending the claim by the step-children. The Court found that the Executor had acted unreasonably in incurring costs.

In most disputes the whole of an Executor’s costs will be paid out of the estate. The Court rejected the Executor’s application for indemnity costs.

The two critical lessons to be learned from this case – make sure your Will fits your circumstances and your family’s circumstances.

A warning to Executors – an Executor who acts unreasonably is not guaranteed to have their costs paid from the estate.

Contact Michaela Speering for more information about Wills & Estate Planning at Culshaw Miller in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email
Blog post by Michaela Speering and Sarah Nicholls

How Can I Test The Parentage Of A Child In Family Law?

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How Can I Test The Parentage Of A Child In Family Law?In some proceedings before the Federal Circuit Court or Family Court of Australia it may be necessary for the Court to test the parentage of a child in relation to a party to Family Law proceedings. This can become necessary where one party disputes that they are the parent of a child and thus owe legal obligations to the child or to the corresponding parent, or can be the subject of a parenting order made by the Court.

How Can I Test The Parentage Of A Child In Family Law?

There are a number of ways the issue of parentage can be determined by a Court if it is in issue in proceedings before it.

Firstly, the Court may order a party or organisation to give any evidence as is material to the question of parentage (section 69V of the Family Law Act 1975). This may require the parties to provide a statement to the Court explaining why, or why not, they consider themselves to be the parent of the child.

However, if the Court is unable to make a determination on this evidence alone, it may make a parentage testing order that requires a testing procedure to be undertaken to assist it in determining the parentage of a child. A party to the proceedings or an Independent Children’s Lawyer may also apply to the Court for a parentage testing order (section 69W).

Testing Parentage

The parentage testing procedure can be undertaken in relation to the child whose parentage is in question, the person known to be the mother of the child or, any person who in the opinion of the Court may yield information resulting from the procedure that may be useful to the Court in determining the question of parentage. Failure to take a parentage test has no penalty but the Court can draw inferences (section 69Y(2)).

Where the Court makes a parentage testing order in relation to a child under the age of eighteen however, the procedure cannot be undertaken without the consent of the child’s parent, guardian or, a person who due to a parenting order, is responsible for the child’s day-to-day care, development and welfare (section 69Z). If the relevant party refuses to consent to the procedure on behalf of the child, the Court is able to make any conclusions based on the circumstances that surround that refusal. This extends to a contravention of the order by a person over the age of eighteen who is the subject of a parentage testing order (section 69Y). Any report then made in relation to the procedure may be tendered into evidence before the Court and helps the Court to make a determination as to the parentage of the child (section 69ZC).

If you are the subject of a parentage testing order, or wish to dispute a claim of parentage made against you, it is important to obtain legal advice. Please contact Meroe Kuhl of Culshaw Miller Divorce & Family Lawyers in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email

Blog post by Meroë Kuhl

Is There Such A Thing As Spousal Privilege In Australia?

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spousalprivilege                                                                                       Is There Such A Thing As Spousal Privilege In Australia? In 2011, the High Court of Australia determined by a majority that there was no recognition of a right of spousal privilege at common law in Australia.

In Australian Crime and Corruption Commission v Stoddart, the wife of an accountant was compelled by summons to appear before the Federal Court in order to provide evidence of her knowledge of the husband’s preparation of certain tax documents. The wife claimed privilege in the conversations she had with her husband under a general principle of common law. The issue was remitted to a higher court for determination.

The Full Court of the Federal Court determined that the privilege did exist at common law and the Act under which the husband was charged did not cancel out the privilege.

The ACC appealed to the High Court. The High Court by a 5-1 Majority determined that there was not a generally accepted principle at common law of spousal privilege. Justice Heydon gave a dissenting judgement.

So is there such a thing as spousal privilege in Australia?

The majority determined that as there was not a generally accepted substantive rule regarding spousal privilege but it was important to explain where the concept had arisen.

Competence, Culpability and Privilege

Competence is the concept that you are able to properly give evidence.

Culpability is a determination of whether you should be legally compelled to answer questions.

These issues usually arise before a witness provides evidence or when evidence is being taken.

These concepts attach to the qualifications and personal experience of the person.

Privilege is attached to evidence. Privilege is a right. Privilege can be waived, or enforced. A common example is the legal professional privilege that occurs in communication of Legal Advice between lawyer and client. The witness can therefore determine whether they wish to use the right of the privilege or to waive it.

The Court explained that there was generally a problem with the overlap of these concepts of competence, culpability and privilege and that ultimately the common law had never declared a substantive right to spousal privilege against inclination of the spouse.

It was noted by part of the majority however that a spouse may seek a ruling that they not be compelled to give evidence which might incriminate the other spouse.

Self-incrimination Generally

Section 128 certificates under the Commonwealth and Western Australian Evidence Acts allow a party to object to providing evidence where the party may incriminate themselves as to an offence against or arising under Australian or Foreign Law. The Court makes a determination as to whether there are reasonable grounds for providing a certificate protecting the person from incrimination. The Court may still compel the witness to give their evidence in the interests of justice.

Contact Daniel Sampson of Culshaw Miller Lawyers for more information about the status of spousal privilege in Australia.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email
Blog post by Daniel Sampson

CM News – Chris Kummerow Joins The DPP

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CM News - Chris Kummerow Joins The DPP

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CM News – Chris Kummerow Joins The DPP

Chris Kummerow, a stalwart of Culshaw Miller in Adelaide, will soon be commencing a new role as a Federal Prosecutor with the Commonwealth Department of Public Prosecutions in SA.

CM News – Chris Kummerow Joins The DPP

Chris Kummerow, a stalwart of Culshaw Miller in Adelaide, will soon be commencing a new role as a Federal Prosecutor with the Commonwealth Department of Public Prosecutions in SA. This is a fantastic opportunity for Chris, who brought his 11 years of experience with the South Australia Police to Culshaw Miller.

With us from when we opened the doors to Culshaw Miller Divorce & Family Lawyers in Adelaide on 4 March 2014, Chris has helped us to grow to where we are today. Not content to solely practice in the area of Family Law, Chris’ significant experience and knowledge of Criminal Law has helped us to develop a burgeoning practice with Culshaw Miler Criminal Lawyers.

Without question, Chris has been an important part of the genesis and development of our Adelaide office. His practical approach and passion for no-nonsense advice will be missed – and while we are of course sad to see him go, Chris’ new appointment with the DPP is a fantastic opportunity for him and we wish him and his fiance Lou all the best for the future.

Contact the family lawyers at Culshaw Miller in Adelaide today for more information.

Adelaide: (08) 8464 0033 or email

Clemency For The Bali Nine: A Question Of Morality Not Rehabilitation

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Clemency For The Bali Nine: A Question Of Morality Not Rehabilitation

Clemency For The Bali Nine: A Question Of Morality Not Rehabilitation
In his famous defence of Madeline Smith in 1857, Lord Glencorse told the Edinburgh jury that they had been “…invited to snap the thread of that young life… to consign to an ignominious death on the scaffold one who, within a few short months was known only as… gentle, confiding & affectionate.”

Glencorse may have been talking of either Myuran Sukumaran or Andrew Chan.

There has always been, in the centuries of criminal justice, an inherent juxtaposition between the rhetorical flourishes of criminal procedure, niceties of courtroom etiquette and inherent violence in the administration of the ultimate penalty. Nowhere can this be seen more starkly than in the contrast between the mildly delivered sentence of the Denpasar District Court in 2006 and the bloody violence that seems likely to conclude the matter.

Mr Sukumaran and Mr Chan will be tied with hemp ropes to a rough wooden cross in an open jungle clearing. There will be the firing squad’s staccato report followed by the smell of blood and cordite in oppressive tropical air. The politely detached verdicts, sentences and rejections of appeals will find effect in bullet-riddled corpses in an isolated jungle.

Does Rehabilitation Matter?

Much has been made of the reformation of Chan and Sukumaran, and of their undeniable rehabilitation and assistance to others. It has however been pointed out by the Indonesian authorities that it is easier to reform when facing down a firing squad than when lured by the promise of the ‘easy money’ in drug trafficking.

While it is understandable that our government and advocates for the condemned draw attention to this redemption, it is perhaps more properly characterised as a minor point in their column or otherwise irrelevant.

The truth is that the butchery of civilians on judicial orders is an archaic remnant of times when human life was cheap and law enforcement lacked alternatives. It is important to note that such butchery is equally true of the United States and other ‘developed’ nations which maintain a shameful foot in 19th century criminal justice. The focus on the rehabilitation of Chan and Sukumaran invites the conclusion that, had they been ‘ordinary’ or, heaven forbid, poorly behaved prisoners, the executions would be justified. Whether or not a prisoner spends his or her time in custody teaching art classes, it is a barbaric act to line up that person and shoot them to death.

How Important Is Deterrence?

Execution derives, largely, from the importance of a deterrent effect; England’s ‘Bloody Code’ of the 18th Century prescribed that a criminal could be hanged for over one hundred and sixty offences. The Bloody Code existed in a time were crime was rife and policing sparse, experimental and ineffective.

Most got away with the crime so to effect deterrence it was thought that there would need to a public and terrible punishment for even the most minor offending. The Bloody Code outraged the population and was soon moderated substantially. Even at those times, the public understood that deterrence could not outweigh the fundamental obligation of a nation to treat even its worst with some semblance of humanity.

One proponent of the Bloody Code, the 1st Marquess of Halifax, proffered an explanation that is chillingly similar to the rationale of President of Indonesia Joko Widodo: “Men are not hanged for stealing horses, but that horses may not be stolen.”

That Indonesia, and other nations, have not yet outgrown the savagery of violent retribution for criminal conduct is an indictment on those societies. The events of the 20th Century have made it plain that there exist values that are universal; there are situations when it is acceptable to take the life of another and situations when it is not.  The application of moral relativism, not overburdened with merit at the best of times, is a cancerous creed in the context of judicial murder.

The apologist for Indonesia shooting a drug courier is an apologist for the stoning of the Iranian adulteress, the lethal injection given to the intellectually disabled Texan and, it follows, for the SS Officer shooting the Polish partisan and the tank treads crushing protesters in Tiananmen Square. As a result clemency for the Bali nine: a question of morality not rehabilitation.

Contact the family lawyers at Culshaw Miller in Perth or Adelaide today for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email
Blog post by Tom Cuthbertson

Surrogacy In South Australia

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Surrogacy In South AustraliaEach of the States has differing regimes concerning the regulation of surrogacy in South Australia. The process of surrogacy in South Australia allows for the regulation of altruistic surrogacy arrangements and the prohibition of commercial surrogacy arrangements.

The basic scheme contained in the Family Relationships Act 1975 (SA) (the ‘Act’) is to ensure that commissioning parents, the surrogate mother and her partner obtain medical clearance, independent legal advice and counselling before a written recognised surrogacy agreement (the ‘Agreement’) is entered into. Without the Agreement, parentage orders cannot be sought in the South Australian Youth Court and the surrogate parents will remain the legal parents of the child.

Recognised Surrogacy Agreements

An inadequate agreement lacking in precision and detail will considerably diminish the chances of a successful outcome in the Youth Court. In order for parentage orders to be granted (and the birth register be altered to reflect the commissioning parents as the birth parents), the Agreement must be especially particular and embody a number of criteria as stipulated in the Act, including, but certainly not limited to the following:

  • Commissioning parents are married or are in a heterosexual relationship for 3 of the last 4 years at the time of signing (notably, same sex couples are not eligible commissioning parents in South Australia);
  • The commissioning parents are domiciled in South Australia;
  • A commissioning mother is, or appears to be, infertile;
  • The surrogate mother has children of her own;
  • The child must be conceived as a result of fertilisation procedure carried out in South Australia; and
  • The Agreement must state that no valuable consideration is payable under, or in respect of the Agreement, other than for expenses connected with –
    • A pregnancy (including any attempt to become pregnant) that is the subject of the agreement; or
    • The birth or care of a child born as a result of that pregnancy; or
    • Counselling or medical services provided in connection with the agreement (including after the child is born); or
    • Legal services provided in connection with the agreement.

Applying to the Youth Court

Upon the birth of any child born pursuant to an Agreement, the commissioning parents are then responsible for making the application to the Youth Court when the child is between 4 weeks and 6 months of age. In considering the application, the Youth Court will regard the welfare of the child as the paramount consideration.

Once the parentage order is made in the Youth Court then for all purposes under Australian law the commissioning parents are recognised as the parents of the child, by virtue of section 60HB of the Family Law Act 1975 (Cth).

A receipt of these parentage orders, it is then necessary to alter the birth register which is done in a straightforward manner with the Registrar of Births, Deaths and Marriages.

Surrogacy In South Australia is achievable but the situation is remarkably different in international commercial surrogacy situations. As raised previously, a 60HB of the Family Law Act 1975 intends that parentage is dealt with by state and territory legislation, which in turn legislate only for domestic altruistic surrogacy arrangements.

As it stands, children born overseas as a result of commercial surrogacy arrangements are not the legal children of their commissioning Australian parents under Federal or state law, regardless of any genetic link.

If you are seeking advice as a potential commissioning parent, or as a surrogate parent, Kate O’Leary of Culshaw Miller Lawyers can advise you or contact our Perth or Adelaide offices for more information.

Perth: (08) 9488 1300 or email
Adelaide: (08) 8464 0033 or email

Blog post by Kate O’Leary