Katherine asks:
Last year I found out I’d been convicted of a driving offence. But I was not
driving the car. My (now ex) husband was. I was driving a taxi, which I can prove. The
penalty notice was paid by him. The authorities say the statute of limitation has passed. The
only glimmer of hope appears to be to get a statutory declaration from him admitting he was
driving. Can you suggest anything else?

I am guessing this was a camera detected offence involving a car registered in your name, where your former husband paid the fine which took from you the ability to pass the blame onto the appropriate person. I would suggest that you marshal all the evidence you have proving you were not the party driving and write a letter to the Roads and Maritime Authority asked them to correct your driving record. The evidence should include the fact you never saw any correspondence and evidence your husband not you, paid the fine, if possible. Obviously a statutory declaration would assist but I suspect your ex-husband may not be willing to assist in that regard. Further action can be taken if needed once they make their decision. Keep a copy of all your evidence as if the matter of your driving record is ever raised in Court you are able to submit to the Court that particular offense should be overlooked. I am not sure how long ago the offence occurred but if it is over 3 years ago the points are now no longer affecting your Demerit Point Balance.

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22 May 2015

Regrettably there is no way to prevent any person from lodging a claim as against the estate of another. That is not to say that the challenge will be successful. An estranged child is well recognised by the law as having entitlement to a parents’ estate. Still the court would undertake an enquiry into the matter by taking evidence from all interested parties and then determining whether it was just and equitable for your son to partake in the estate. In order to successfully bring such a challenge your son would also have to establish to the court’s satisfaction a need in addition to any entitlement. It is of great assistance that when preparing a Will which deliberately fails to provide for a person who otherwise would expect to benefit, a letter be prepared setting out the reasons for same. Although this letter would not form part of the Will it is evidence that would be taken into account by a court. It would also be a relevant factor if the Will provided for a benefit that would otherwise go to the son, being left on trust for their son's son.

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23 March 2015
In short it is not illegal to ask, but you are right to be concerned about giving that information out without good cause. I am guessing the delivery persons are concerned that they are making the delivery to the correct person and obviously are wanting proof if ID. There are some occasions where you must produce your licence when asked such as when asked by Police in relation to driving offences, to other drivers (when involved in traffic accidents) Car Hire places when renting a vehicle and there is a requirement for JP’s witnessing your signature on a Statutory Declaration to sight and record details of the document as proof of identity if they have not known you for over 12 months.26 February 2015

I assume that a formal demand for payment has been made and ignored. Regrettably you are then left in the position of having to commence legal proceedings to recover the amount outstanding. Claims such as this can be dealt with in the Small Claims Tribunal of the Local Court. In the event that the proceedings were not defended judgment can be entered and then enforced. A Writ of Execution can be taken out which involves a Sheriff attending the debtor’s premises to seize and sell property for the purpose of paying the judgment. You would also be entitled to claim interest on the monies owing and a small allowance for your legal costs. In the event that the proceedings are defended then of course there would be a hearing, presided over by an arbitrator or magistrate, who will determine whether the monies are legitimately owed and enter a judgment accordingly.

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19 February 2015

There is very comprehensive consumer legislation in place at both the Commonwealth and State levels. Same provide for implied warranties. This would include that the service as provided was done so with acceptable care and skill so the item, in this case the sunglasses, will be fit for the purpose or give the result that you had agreed to. Whether there has been a breach of any such implied warranty will be a factual matter. That is, did the break arise as a result of some defect in terms of the repairs as undertaken or some other cause? Sunglasses did not break for no reason. In the event that the reason for the sunglasses breaking a second time can be brought home to some failure on the part of the repairer to undertake the repair in accordance with their legal obligations then you would be entitled to demand that the sunglasses be repaired. In the absence of any joy when dealing with the repairer directly you can take the matter up with the NSW Civil & Administrative Tribunal.

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05 February 2015

It would appear from your enquiry that provision was made for your return to the role of executor. In those circumstances an application would need to be made to the court. Your auntie can retire from the position of executrix if she appoints New South Wales Trustee & Guardian or a trustee company in her place. Again this would be the subject of an application to the court. An executor or executrix can be afforded personal protection from any liability arising from the distribution of the estate or potential family provision claim if proper notice is given with respect to the distribution of the estate. Notice is to be published on the Supreme Court of New South Wales website and, if the deceased was a resident of New South Wales, publication of a notice in a newspaper in the district where the deceased resided. It would also be prudent to write directly to the grandchild in question seeking confirmation of their intentions with regards to the making of a family provision claim. They should be told that the estate will be distributed if no affirmative response is received. Note however that the estate cannot be distributed within 6 months of the deceased’s passing. The grandchild has only 12 months from the date of passing of the deceased in which to bring a family provision claim. In these circumstances it would be advisable to wait at least 12 months from the date of death before any distribution of the estate is undertaken.

Anyone can contest a will, if you’re the executor of the Will and require legal advice to reduce the chances of this occurring, or you wish to contest a will yourself Brydens Lawyers can help. We have offices in Liverpool and Sydney. Contact us now.

22 January 2015

Regrettably it is difficult to provide a detailed response to your enquiry due to advertising regulations enacted by the State Government which prevents lawyers from advertising certain services. A detailed response could be construed as advertising and the consequences for breaches of the regulations can be very serious. However, doing the best I can, I can advise that a person who has suffered, as a result of another's negligent or deliberate actions, can bring a claim for damages. The court would need to be satisfied that there was a duty of care owed and that there was a breach of that duty. Alternatively, should it be capable of proof that the actions were deliberate and unlawful then similarly a cause of action is available. As to security guards they are either employed directly by the club or subcontracted through a third party. Either way the club can be held vicariously liable for the actions of the security guard. In the event that the security guard is contracted to a third party then the proceedings would, in all likelihood, be brought as against that third party as well. Interesting arguments are often raised by defendants in these types of proceedings to assert that the actions of the security guard go outside the security guard’s scope of employment and in those circumstances the club and/or security company cannot be held liable for same. Such arguments put forward by defendants rarely, if ever, meet with any success. The fact of the matter is that these security guards are engaged by clubs and/or security companies for the purpose of “keeping the peace” so to speak. There are ways of lawfully doing so. Regrettably we often see unlawful means being utilised. This can either be by way of use of excessive force or, in some unfortunate cases, the wrong person entirely being identified by the security guards and being inappropriately dealt with. There is no need to await the finalisation of the police investigation. The police investigation however could assist in identifying the relevant facts and providing witness statements and the like which would assist in discerning exactly what occurred and whether a cause of action arises from same. The determination of the Police however is not definitive so far as ascertaining whether a cause of action is available. You should also be aware that there are strict time limits in place for the prosecution of these types of claims. It is three years from the date of the incident.

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15 January 2015

Since the introduction of the Family Law Act in 1975 there is no need for either party to divorce proceedings to establish fault. In those circumstances any infidelity by your wife would be irrelevant so far as any divorce proceedings are concerned. Similarly fault for the breakdown in the marriage would be of no relevance to the Court in determining the distribution of assets. The Court would take into account relevant matters only which would include things such as the length of the marriage, the respective contribution of the parties and the like. Things however may be slightly different so far as custody disputes are concerned. In such matters the interests of the child are paramount. The Court's consideration of a custody dispute would take into account far more wide ranging and extraneous matters than what would be ordinarily relevant in any divorce or property proceedings. That is not to say that the Court will make an enquiry into each of the party’s respective moral standing and pass judgement. Infidelity, in itself, would not disentitle one of the parties to custody of a child. Such matters are determined by the Court according to the moral standards of the day. Infidelity today would not generate the same moral outrage that it did for our parents or grandparents. Only if such conduct posed some sort of risk or disentitling behaviour on the part of a parent would same be brought into account by a court when considering questions of custody.

Family law matters can be emotional, time consuming and costly. Getting expert Legal advice from the start can help reduce the impact of all three.

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08 January 2015

It is indeed regrettable that your father did not leave a Will. It would have avoided much of the difficulties which you now face. A Will however is not automatically revoked by a divorce. A divorce does however revoke any benefits provided for in a Will to a former spouse. In the event that your father had a Will the terms of same would have been administered by the Executor or Executrix and this situation may have been well avoided. However, given the absence of a Will the Estate will be administered in accordance with the ordinary principles once letters of administration have been recovered from the Court. Your mother would be considered an eligible person pursuant to the Succession Act 2006. That is, she would have an entitlement to contest the distribution of the Estate. Such would be determined by the Court in accordance with the usual principles which would include a determination of your mother's entitlement and need. That is, your mother, having divorced your father prior to his death, does not have an automatic entitlement to benefit in his Estate but is a person entitled to make an application to the Court for such benefits. It will then be a matter for the children as to whether such an application is opposed or whether some agreement can be reached.

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01 January 2015

The short answer is no. Assuming that there are no issues so far as the validity of your mother's Will is concerned no action taken by the Guardian Tribunal can disturb or set aside the terms of your mother's Will. If the Will provided that your mother's home was to pass to you then this is what will occur. The Will will also have made provision for an Executor or Executrix. The obligations of the Executor or Executrix will be to administer the terms of your mother’s Will as provided by her. The role of the Guardian Tribunal as Guardian and Financial Manager is limited. It will cease upon your mother's passing at which time the Executor or Executrix will step in for the purpose of administering the Estate.

Getting legal advice now can save you time an money in the future. If you have any legal questions around Wills and managing Estates when loved ones are unable to due to ill health make an appointment with Brydens Lawyers.

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25 December 2014

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