As family lawyers, we understand that court deci sions can have a profound impact on families, and sometimes, a party may feel that the court has made an error in their case. In such situations, an appeal may be an option. However, it's crucial to understand the legal grounds for appeal and the potential risks and costs involved. An appeal is not simply a rehearing of the case. It's a review of the lower court's decision by a higher court to determine whether the decision was legally sound. Generally, appeals are only allowed on questions of law, not on questions of fact. This means that the appeal court will not usually reconsider the evidence presented in the original trial but will focus on whether the lower court applied the law correctly. There are strict time limits for filing an appeal, and the process can be complex and expensive. As lawyers, we advise clients on the merits of their appeal, the likelihood of success, and the potential costs and delays involved. We also assist in preparing the necessary legal documents and representing clients in the appeal court. Appealing a family law decision is a significant undertaking that should not be taken lightly. It's crucial to seek legal advice to understand your options and make an informed decision about whether to proceed.

Whether you're a first-home buyer eagerly stepping onto the property ladder, a parent helping your child secure their first mortgage, or a business owner financing a new venture, securing a loan is a significant financial milestone. The paperwork can be overwhelming—a dense stack of documents filled with complex legal terms and clauses. It’s tempting to simply trust the lender, sign where indicated, and get on with it. However, these documents are legally binding contracts that can have profound and lasting consequences for your financial future. This is where Independent Legal Advice (ILA) becomes not just a recommendation, but an essential safeguard. At Hammond Nguyen Turnbull, we believe that being fully informed is the best way to protect your interests. Let's explore what ILA is and why it's a non-negotiable step in the loan process. What Exactly is "Independent" Legal Advice? Independent Legal Advice is guidance provided by a solicitor who has no connection whatsoever to the lender (the bank or financial institution). Their duty is solely to you—the borrower or, very commonly, the guarantor. This independence is crucial. It ensures the advice you receive is unbiased, impartial, and focused exclusively on protecting your rights and ensuring you understand the full scope of your commitment. The solicitor isn't there to give financial advice on whether the loan is a "good deal," but to explain the legal nature and practical effect of the documents you are about to sign. Why is ILA So Important? Lenders often make ILA a mandatory condition before they will advance funds, especially when a third-party guarantor is involved. Here’s why this step is so critical: Translating the Jargon: Loan and mortgage documents are notoriously difficult to read. A solicitor will cut through the legal jargon and explain the key terms, such as interest rates, repayment schedules, fees, and penalty clauses, in plain English. Understanding Your Full Obligations: Do you know what happens if you miss a payment? Or if the primary borrower defaults on the loan you've guaranteed? ILA clarifies the full extent of your liabilities and the "worst-case scenarios," ensuring there are no surprises down the track. Preventing Undue Influence or Pressure: A key role of ILA, particularly for guarantors, is to ensure you are signing the documents of your own free will. The solicitor needs to be satisfied that you haven't been pressured or unduly influenced by the borrower or another party. This protects you and ensures the enforceability of the guarantee for the lender. Protecting Your Assets: The legal advice will clearly identify which of your assets are being used as security for the loan. For a guarantor, this often means your family home could be at risk if the borrower defaults. Understanding this risk is fundamental. What Does an ILA Session with a Solicitor Involve? The process is straightforward and designed to be as clear and helpful as possible. Document Review: First, you will provide your solicitor with the complete set of loan, mortgage, and/or guarantee documents received from the lender. The Private Meeting: You will meet with your solicitor. Critically, if you are a guarantor, the primary borrower will not be present at this meeting. This is to ensure you can speak freely and that the advice remains confidential and independent. Detailed Explanation: Your solicitor will walk you through the documents, explaining: The nature of the transaction and the amount being borrowed. The key obligations, risks, and responsibilities you are undertaking. The specific consequences of a default. The circumstances under which the guarantee can be called upon. Your Questions Answered: This is your dedicated time to ask any questions you have, no matter how simple they may seem. The goal is for you to leave the meeting with complete clarity and confidence in your understanding. The Solicitor's Certificate: Once the solicitor is satisfied that you fully comprehend the legal ramifications of the documents, they will sign a formal "Solicitor's Certificate" or "Certificate of Independent Legal Advice." This certificate is provided to the lender as proof that you have received the required advice. It confirms you understand the commitment you are making. Who Needs Independent Legal Advice? While beneficial for all borrowers, ILA is especially critical for: Guarantors: This is the most common scenario. Parents, family members, or friends guaranteeing a loan are placing their own assets on the line. ILA is vital to ensure they understand this significant risk. Joint Borrowers with Unequal Benefit: If you are buying a property with a partner but are contributing unequally or one partner is taking on a greater share of the debt. Spouses Providing Security for Business Loans: When a family home is used as security for one partner's business venture. Borrowers in Complex Structures: This includes loans involving companies, trusts, or a Self-Managed Super Fund (SMSF). A Small Investment for Significant Peace of Mind Signing a loan or guarantee document is one of the most significant financial decisions you will ever make. The cost of obtaining Independent Legal Advice is minor compared to the potential financial and emotional cost of not fully understanding your obligations. It’s a crucial investment in your long-term security and peace of mind. Before you put pen to paper, ensure you are making an informed decision.  If you have been asked to sign loan documents or act as a guarantor, contact the experienced team at Hammond Nguyen Turnbull today. We are here to provide clear, independent, and practical legal advice to protect your interests.

Terminating an employee’s contract is one of the most challenging and legally sensitive actions a business owner or manager will ever have to take. While it’s a necessary part of managing a workforce, the decision to dismiss an employee cannot be taken lightly. In New South Wales, the process is governed by a strict legal framework designed to protect employees from unfair treatment. It’s not enough to simply have a reason for dismissal; you must also follow a fair and lawful process . Getting it wrong—even during a probationary period—can expose your business to costly legal claims, including unfair dismissal, general protections, or breach of contract. This guide will outline when you can lawfully terminate an employee in NSW and the critical steps you must follow to protect your business. A Special Case: Termination During a Probationary Period Many employers believe a probationary period gives them a "get out of jail free" card, allowing them to dismiss an employee for any reason without legal risk. This is a dangerous misconception. The maximum probation period under the Fair Work Act 2009 is: 12 months for a small business (fewer than 15 employees). 6 months for all other businesses. This period is known as the minimum employment period under the Act. An employee cannot file an unfair dismissal claim until they have completed this minimum employment period. While this provides a level of protection, it does not make an employer immune to other serious legal claims. The Hidden Risks of Probationary Terminations: Even if an employee can't claim unfair dismissal, they can still take legal action if you terminate them for a prohibited reason. The biggest risk is a general protections claim , where an employee alleges they were dismissed for: Exercising a workplace right (e.g., making a complaint about safety, asking about their pay or entitlements). A discriminatory reason (e.g., due to their race, sex, age, pregnancy, or disability). Being temporarily absent due to illness or injury. Furthermore, you must still abide by the employment contract, which includes providing the required notice period . Failing to do so can lead to a breach of contract claim. Best Practice: Think of probation not as a risk-free trial, but as a period for actively managing performance. If you do decide to terminate, ensure you have a valid, documented, performance-related reason and are not acting for a prohibited reason. 1. Termination with Notice (For Performance or Misconduct) This is the most common method of termination. It is used in situations involving consistent poor performance, or misconduct that is not severe enough to warrant instant dismissal. a) The Valid Reason The reason must be sound, defensible, and well-documented. Examples include: Poor Performance: The employee has consistently failed to meet the inherent requirements of their role, despite being given clear warnings and an opportunity to improve. Misconduct: The employee has breached their employment contract or a workplace policy (e.g., inappropriate use of company resources, breaches of safety rules). b) The Fair Process (Procedural Fairness) To terminate for poor performance or misconduct, you must demonstrate you have acted fairly. This involves: Issuing Warnings: For poor performance, you should have records of meetings, performance improvement plans (PIPs), and clear written warnings outlining the consequences of failing to improve. Conducting an Investigation: For misconduct, investigate the allegations thoroughly and impartially. Notifying the Employee: Inform the employee of the specific reasons for the potential termination in clear, unambiguous language. Providing a Chance to Respond: This is a critical step. You must give the employee a genuine opportunity to respond to the reasons and have their response considered before you make a final decision. Allowing a Support Person: You must permit the employee to have a support person present at any formal meetings discussing their potential dismissal. You must then provide the employee with the minimum period of written notice as required by the National Employment Standards (NES) or their contract, whichever is greater. You can also choose to pay them in lieu of this notice period. 2. Summary Dismissal (Instant Dismissal) Summary dismissal is termination without notice. This is reserved only for cases of serious misconduct , which is conduct so severe that it destroys the employment relationship. The Fair Work Regulations 2009 define serious misconduct to include actions like: Theft, fraud, or assault Being intoxicated at work Refusing to carry out a lawful and reasonable instruction that is central to the work A Word of Warning: Summary dismissal is a high-risk strategy. The burden of proof is on you, the employer, to show the misconduct occurred and was serious enough to justify instant dismissal. Even in these cases, it is highly advisable to conduct a swift investigation and give the employee a chance to explain themselves before acting. 3. Genuine Redundancy A redundancy occurs when you terminate an employee because their job is no longer required to be done by anyone. This is about the role , not the person or their performance. For a redundancy to be "genuine" under the Fair Work Act , three conditions must be met: The employer no longer requires the person’s job to be performed by anyone due to changes in operational requirements. The employer has complied with any consultation obligations in a relevant Modern Award or Enterprise Agreement. This usually involves discussing the proposed changes with affected employees. It was not reasonable in the circumstances to redeploy the employee to another role within your business or an associated entity. If these conditions are met, the employee will not be able to make an unfair dismissal claim. You must still provide notice and, in most cases, pay redundancy severance based on their years of service. The High Cost of Getting It Wrong Failing to follow a fair and lawful process can lead to significant legal claims: Unfair Dismissal: A claim that the dismissal was "harsh, unjust, or unreasonable." A flawed process is the most common reason for a successful claim. General Protections Claim: An allegation that you dismissed an employee for a prohibited reason, such as exercising a workplace right or on discriminatory grounds. These claims carry the risk of uncapped damages. Breach of Contract: If you fail to follow a process mandated by the employment contract. Final Thoughts Termination is a legal minefield where process is paramount. Always ensure you have a clear, documented reason and have followed the steps of procedural fairness. Taking the time to manage the process correctly is a small investment compared to the time and cost of defending a legal claim.

Grandparents play a vital role in the lives of their grandchildren, offering love, support, and a sense of belonging. However, in the context of family breakdown, grandparents' rights to maintain relationships with their grandchildren can become complex and contentious. As family lawyers, we often advise grandparents on their legal rights and options for staying connected with their grandchildren, particularly when faced with resistance from parents or other family members. In Australian family law, the best interests of the child are paramount. While there's no automatic right for grandparents to have contact with their grandchildren, the law recognises the importance of maintaining these relationships where it's in the child's best interests. Grandparents can apply to the Family Court for orders regarding spending time with or communicating with their grandchildren. The Court considers various factors when determining what's in the child's best interests, including the nature of the grandparent-child relationship, the child's views (depending on their age and maturity), and any risk of harm to the child. Grandparents may need to provide evidence of a close and meaningful relationship with the child and demonstrate their ability to provide a safe and supportive environment. As family lawyers, we assist grandparents in navigating the legal process, from preparing applications to representing them in Court. This involves gathering evidence, negotiating with parents and other parties, and presenting arguments to the Court. We also advise on alternative dispute resolution options, such as mediation, which can be a less adversarial and more cost-effective way to resolve disputes.  While the legal process can be challenging, we’re committed to helping grandparents assert their rights and maintain their precious bonds with their grandchildren. By providing clear legal advice and compassionate support, we strive to achieve outcomes that benefit the child and preserve the invaluable role of grandparents in their lives.

It’s a classic neighbourhood dispute: a neighbour knocks on your door, complaining that your beautiful trees are blocking their prized view and demanding you cut them down. If you refuse, they might threaten legal action. So, what are your rights, and can they actually force you? In New South Wales, these conflicts are governed by the Trees (Disputes Between Neighbours) Act 2006 (NSW) (the "Trees Act"). While a neighbour can't simply force you to remove a tree, they can apply to the NSW Land and Environment Court for an order. However, they have a high bar to clear, and as a recent case handled by our firm shows, a strong defence can protect your property and your privacy. Last week, Andrew Pacini of Hammond Nguyen Turnbull successfully defended a client whose neighbour was demanding the removal of a row of screening trees. We won the case by demonstrating two key points: first, that the Tribunal had no power to make the order because the trees weren't actually on our client's land, and second, that the neighbour's view was not severely obstructed anyway. The Process: What a Neighbour Must Prove When a neighbour makes a claim about trees blocking a view, it's typically because they believe the trees form a "high hedge" that is causing a "severe obstruction." For their application to the Tribunal to succeed, they must prove several key things: The Trees Are on Your Land: The Trees Act only applies to trees that are situated " wholly or principally " on the land of the person the claim is brought against. This is a crucial first step. They Constitute a Hedge: The trees must consist of two or more trees that are planted closely together to form a continuous screen. There is a "Severe" Obstruction: This is a very high standard. It's not enough for the trees to partially interrupt a view. The applicant must convince the Tribunal that the obstruction is severe . A View from a Dwelling is Obstructed: The alleged view obstruction must be from a dwelling on the applicant's land, not just from the backyard or garden. How to Defend a Claim: A Case Study In our recent case, the neighbour's claim failed before it even got off the ground. A careful look at the property survey revealed a critical fact: the trees in question were growing on a narrow strip of land—a drainage reserve—owned by the local Council. 1. Challenge the Tribunal's Jurisdiction Because the trees were not "wholly or principally" on our client's land, we successfully argued that the Tribunal had no jurisdiction (i.e., no legal power) to make an order against our client. The neighbour's claim was directed at the wrong party; if they wanted to pursue the matter, they would have to take it up with the Council, who had already inspected the trees and decided to take no action. Key Takeaway: Always check your property boundaries. The location of the tree is the most important first question. 2. Argue the Merits of the Case Even if the trees had been on our client's land, the neighbour's claim was weak. We successfully argued: The Obstruction Wasn't "Severe": The neighbour’s own photos showed they still had extensive river views from their home. The trees only partially intersected the line of sight and did not come close to causing a "severe obstruction". In fact, our client had previously removed several large, mature trees, significantly improving the view compared to what it was when the neighbours first purchased their property. Privacy Outweighs the View: The Tribunal must balance the neighbour's interest in a view against the tree owner's interest in keeping the trees. Our client's trees formed an essential privacy screen, shielding their home, pool, and entertaining areas from being directly overlooked by several elevated neighbouring properties. We argued that removing them would have a devastating impact on our client's privacy and amenity, which far outweighed the minor impact on the neighbour's view. What to Do if You Receive a Claim If a neighbour has threatened or commenced legal action over your trees, don't panic. Here are some simple first steps: Confirm Your Boundaries: Get a copy of your property survey to confirm exactly where the trees are located. We can assist you with this. Gather Evidence: Take photos and videos from the neighbour's likely point of view to assess the extent of any view obstruction. Document the history of the trees and any maintenance you've performed. Don't Engage in Hostility: While these disputes can be emotional, it's important to remain calm. In our case, the neighbour's harassing behaviour towards our client did them no favours. Seek Legal Advice: A lawyer experienced in property law can assess the strength of the claim against you and formulate a clear defence strategy. Tree disputes can be stressful, but you are not powerless. Understanding the law and your rights is the first step to protecting your property.  If you're facing a tree dispute with a neighbour, contact the expert team at Hammond Nguyen Turnbull for advice and representation.

Starting a company with business partners is often built on a foundation of shared vision and trust. In the early days, everyone is pulling in the same direction. But as a business matures, priorities can diverge, personalities can clash, and what once seemed like a perfect partnership can start to feel like a battle for control. Disputes between shareholders are one of the most common and damaging issues a private company can face. They can paralyse decision-making, destroy value, and turn trusted colleagues into bitter adversaries. Understanding the common battlegrounds and the legal pathways to resolution is essential for protecting your investment and your rights. Common Battlegrounds: Where Disputes Ignite Shareholder conflicts typically arise in a few key areas. Disputes Over Control and Company Direction This is the classic "vision" conflict. One shareholder might want to pursue aggressive, high-risk growth and expansion, while another prefers a conservative approach, focusing on steady profitability. This can lead to deadlock on major decisions, especially in a 50/50 ownership structure where neither party has a deciding vote. The Dividend Dilemma: Reinvest vs. Distribute Cash is the lifeblood of a business, and disagreements over what to do with profits are frequent. For example: An active shareholder working in the business may prefer to reinvest all profits back into the company to fuel growth. A passive shareholder (or one nearing retirement) may rely on that income and want the company to distribute profits as dividends. This conflict places the financial goals of the shareholders in direct opposition. Oppression of Minority Shareholders This is one of the most serious and legally complex areas of conflict. It occurs when majority shareholders use their voting power to run the company in a way that is unfairly prejudicial to the minority shareholders. Common examples of oppressive conduct include: Excluding minority shareholders from management roles they previously held. Paying excessive salaries and bonuses to themselves (the majority) to reduce the profits available for dividends for everyone. Diverting business opportunities or clients to other companies they control. Refusing to provide access to financial information. Blocking the minority shareholder from selling their shares at a fair market value. Pathways to Resolution: From Negotiation to Court Action If you find yourself in a shareholder dispute, a structured approach is critical. Step 1: Check the Shareholders Agreement A well-drafted Shareholders Agreement is your first and most important line of defence. This document is the "rulebook" for the company and its owners. It should contain clauses outlining: How key decisions are made. A process for valuing shares. A formal dispute resolution procedure (e.g., requiring mediation before litigation). How shares are to be sold / transferred. Before you do anything else, review this agreement with a lawyer. Step 2: Negotiation and Mediation The most commercial and cost-effective solution is always a negotiated settlement. Formal or informal discussions, aimed at finding a business-like solution, should be your first step. If direct negotiation fails, mediation is an excellent option. A neutral third-party mediator can help facilitate communication and guide the parties toward a mutually acceptable outcome, such as a structured buyout or a revised management plan. Step 3: Your Legal Rights Under the Corporations Act 2001 When negotiation and mediation fail, the Corporations Act 2001 provides powerful remedies. The two most common actions are: The Oppression Remedy (Section 232): This is the primary tool for minority shareholders. If a court finds that the company's affairs are being conducted in a manner that is oppressive or unfairly prejudicial, it has broad powers to make orders. The most common order is for the majority to buy the minority shareholder's shares at a fair value , determined by an independent expert. Winding Up the Company (Section 461): This is the "nuclear option." A court can order the company to be wound up (liquidated) if it is "just and equitable" to do so. This is typically reserved for cases of complete deadlock or a total breakdown of mutual trust and confidence, where the company can no longer function as intended. Protect Your Investment A dispute with your business partners can feel personal and overwhelming. The key is to act strategically, not emotionally. By understanding your rights and the legal pathways available, you can move to protect your investment and fight for a fair outcome.  If you are involved in a shareholder dispute, don't wait for the situation to deteriorate. Contact us for expert legal advice on your rights and strategic options.

As family lawyers, we witness firsthand the profound emotional and psychological toll that family law matters can inflict on individuals. The stress, anxiety, and uncertainty associated with separation, divorce, child custody disputes, and other family law issues can significantly impact mental health and well-being. It is crucial to recognise that seeking support for your mental health during these difficult times is not a sign of weakness, but rather a proactive step towards self-care and resilience. As family lawyers, we encourage our clients to prioritise their mental health and seek appropriate support, recognising that emotional well-being is essential for navigating the legal process and making informed decisions. The family law system itself can be overwhelming and intimidating, with its complex legal procedures, adversarial nature, and potential for conflict. This can exacerbate existing mental health conditions or trigger new ones, such as depression, anxiety, and post-traumatic stress disorder. There are various avenues for seeking support, including individual therapy, counseling, support groups, and online resources. Mental health professionals can provide a safe and confidential space to explore emotions, develop coping mechanisms, and manage stress. They can also assist with navigating the legal process, providing emotional support and guidance during court appearances or mediation sessions. In addition to professional help, it's important to build a strong support network of trusted friends, family members, or community groups. These individuals can offer emotional support, practical assistance, and a sense of belonging during a challenging time. Self-care practices, such as exercise, healthy eating, mindfulness, and adequate sleep, are also crucial for maintaining mental health and well-being during family law matters. Engaging in activities that bring joy and relaxation can help manage stress and promote emotional balance. Remember, you are not alone. Many people experience mental health challenges during family law proceedings. By seeking support and prioritizing your well-being, you can navigate this difficult time with greater resilience and emerge stronger on the other side.

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For any business owner, facing significant financial difficulty is one of the most stressful challenges imaginable. The pressure from creditors, the concern for your employees, and the uncertainty of the future can be overwhelming. However, it's crucial to remember that Australian law provides structured pathways to manage these situations. Making a proactive, informed decision is not an admission of failure, it is an act of responsible leadership. This guide will outline three key options available to companies in distress: Voluntary Administration, Receivership, and Liquidation. 1. Voluntary Administration: A Chance to Restructure and Survive Think of Voluntary Administration (VA) as a breathing room. It’s a process designed to give a financially troubled company the best possible chance of continuing to exist, or if that’s not possible, to provide a better return for creditors than an immediate liquidation would. What is it? The directors of a company determine it is insolvent or likely to become insolvent, and they appoint an independent, registered liquidator as an Administrator. This places a moratorium (or freeze) on most creditor claims, giving the company vital space to figure out its next move. What is the goal? The Administrator takes full control of the company to investigate its financial affairs. They then form an opinion on the three possible outcomes for the business: Return the company to the control of the directors. Approve a Deed of Company Arrangement (DOCA) – a binding agreement between the company and its creditors to settle its debts and continue trading. Wind the company up via Liquidation. Best for: Businesses that are fundamentally viable but are struggling with cash flow or debt. It provides a genuine opportunity to restructure, renegotiate with creditors, and emerge stronger. 2. Receivership: The Secured Creditor Takes Control Receivership is not typically a choice made by the business itself. Instead, it is initiated by a major secured creditor (like a bank) that holds security over some or all of the company's assets. What is it? A secured creditor appoints a "Receiver" to take control of the specific assets they have security over. The Receiver's primary duty is to the creditor that appointed them. What is the goal? The Receiver's main objective is to sell the secured assets to recover the money owed to their appointing creditor. Their focus is not on saving the company as a whole, but on satisfying the debt of one specific, powerful creditor. Key takeaway: If your business has significant loans secured by assets like property or equipment, receivership is a real possibility if you default. The directors' control over those assets is lost. 3. Liquidation: The End of the Company's Life Liquidation, also known as "winding up," is the formal process of bringing a company's existence to a close. It is the final stage when restructuring or recovery is not possible. What is it? A Liquidator is appointed to take control of the company's affairs. Their job is to identify and sell all company assets, use the proceeds to pay creditors in a specific order of priority defined by law, and officially deregister the company. What is the goal? The primary goal is to ensure an orderly and fair distribution of the company's remaining assets to its creditors. Any surplus funds, in the rare event they exist, are distributed to the shareholders. For the company itself, this is the end of the road. Key takeaway: This is the terminal option. It is initiated either by a court order, by creditors, or voluntarily by the company's directors and shareholders when they know the business cannot pay its debts. Why Early, Expert Advice is Your Most Valuable Asset Navigating the complexities of the Corporations Act 2001 is not something any director should do alone. The risks of trading while insolvent are severe and can expose you to personal liability. Engaging with legal and financial experts at the first sign of trouble is the most strategic step you can take. An experienced insolvency lawyer can act as your partner, helping you understand your duties, protect your personal position, and identify the best pathway for your unique situation. We can help you negotiate with creditors, correspond with administrators, and ensure every decision is made to secure the best possible outcome. Don't wait until the choice is made for you. Take control of the situation. If your business is facing financial uncertainty, contact our Commercial Advisory team for a confidential, no-obligation discussion about your options.