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Signed, Sealed….But Was it Really Delivered? The Perils of Serving Legal Documents by Prepaid Post

By David Burley a Law Clerk of Matthews Folbigg Lawyers in our Insolvency, Restructuring and Debt Recovery Group.

In the recent case of Roderick Group Pty Ltd (in liq), in the matter of Vlahos v Vlahos [2024] FedCFamC2G 1439 (“Vlahos v Vlahos”), the Court was tasked with deciding whether a bankruptcy notice sent by post, but which included an incorrect postcode in the address, had nevertheless been validly served. The case highlights the risks associated with relying on non-personal service methods such as service by post, where minor errors can lead to substantial legal consequences. The judgment underscores the importance of accuracy in serving documents and the benefits for creditors who opt for personal service (especially insofar as time and costs are concerned). [...]  READ MORE →

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Stay Ahead of Cyber Threats: Revised Cyber Security Guidelines for NSW Councils

By Simone Brew, Managing Director and Gigi Au, Senior Associate of Matthews Folbigg Lawyers

As facilitators of essential services and infrastructure to the local community, local councils are responsible for substantial amounts of information, including personal information about residents. It is therefore essential that adequate cyber security and data protection measures are taken to prevent breaches or leaks.

Tabled in March 2024, the New South Wales (NSW) Audit Office released the Local Government 2023 report which revealed that 50 councils had not implemented basic cyber security governance frameworks. This was highlighted as a significant risk and concern by the NSW Audit Office, especially considering state and local government was the second highest reporter of cyber incidents according to the Australian Cyber Security Centre’s 2023-24 Annual Cyber Threat Report. [...]  READ MORE →

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New Approval Pathway for Major Residential Housing Projects: The Housing Development Authority

In a push to boost housing supply and affordability in accordance with the National Housing Accord, the NSW Government has introduced the Environmental Planning and Assessment (Housing Delivery Authority) Order 2024 (‘HDA Order’). The HDA Order has established the Housing Development Authority (‘HDA’) which will lead a streamlined State Significant Development (‘SSD’) approval pathway for major residential development projects, allowing new homes to be delivered more quickly to the community. [...]  READ MORE →

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Court of Appeal overturns LEC decision and provides clarity as to “public purpose” in compulsory acquisitions

The recent NSW Court of Appeal Judgment of Goldmate Property Luddenham No 1 Pty Ltd v Transport for New South Wales [2024] NSWCA 292 has overturned the decision of the Land and Environment Court (“LEC”), providing clarity as to the principles of ‘public purpose’ under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (“Just Terms Act”) relating to the valuation of land in compulsory acquisitions by government authorities.

Background Summary

  1. On 19 March 2021, Transport for NSW (“TfNSW”) issued a proposed acquisition notice to acquire a part of 31.79 hectares of land located at 777-819 Luddenham Road, Luddenham (“the Land”) that Goldmate had purchased in November 2020 for $33,056,500. The purpose of the acquisition was to facilitate in the construction of the M12, being a part of the Western Sydney Infrastructure Plan (“WSIP”) and linked to the construct the Western Sydney Airport (“WSA”). Relevant areas around the WSA were rezoned from RU2 to EUT pursuant to the State Environmental Planning Policy (Western Sydney Aerotropolis) 2020 (“Aerotropolis SEPP”), including the Land.
  1. On 30 June 2021, TfNSW acquired 14.66 hectares of the Land (“Acquired Land”) under the Roads Act 1993 (NSW) (Roads Act) to facilitate the construction of the M12 motorway.
  1. The primary issue in dispute was whether the public purpose had caused the change in zoning from RU2 to ENT and a subsequent increase in market value.
  1. The market valuation of the parties and Valuer General was as follows:
Valuer General’s determinationGoldmateTfNSW
Market Value$0$55,437,200$4,000,200
Disturbance$160,116.58$199,527.59$167,979.78
Total$160,111.58$55,636,727.59$4,168,179.78

 

Land and Environment Court Proceedings [...]  READ MORE →

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Case Review: Sydney Metro v G & J Drivas Pty Ltd [2024] 113 NSWCA 5

Understanding the Impact of Compulsory Acquisition on Market Value

The recent decision in Sydney Metro v G & J Drivas Pty Ltd [2024] 113 NSWCA 5 (Drivas) provides critical clarity on how compulsory acquisition affects the market valuation of land under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) (Just Terms Act). This case focuses on whether the market value of land should include the value of a hypothetical development that was halted due to the prospect of acquisition. The ruling of the Court of Appeal, now upheld after the High Court declined special leave to appeal, reaffirms the principle of just compensation and sets clear limits for claims related to hypothetical development costs. [...]  READ MORE →

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Achieving Accountability: Special Executive Liability Provisions Extended to Council Executives

The recent case of Environment Protection Authority v McMurray [2024] NSWCCA 160 (McMurray) highlights how council executives and those involved in council management can be held accountable under laws attracting special executive liability.

The central issue in the case was the legal status of a council and whether its executives, such as the General Manager, could be prosecuted under section s 169(1) of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act). Section 169(1) of the POEO Act holds individuals involved in the management of a corporation liable if the corporation is found to have contravened certain provisions of the Act. [...]  READ MORE →

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A Garnish on Top?

Recovering monies from debtors can be a lengthy, exhausting and costly exercise. Most people would think that once a garnishee order has been issued by the court then the debt would be quickly recovered, however it is not uncommon that once executed, funds in an account are no longer available. In circumstances such as this often clients will ask the question, what happens next in relation to my garnishee order?

What is a Garnishee Order?

A Garnishee Order is an order of the Court which allows a judgment creditor to recover or ‘garnish’ a third party in respect of an amount owing to the judgment debtor. The third party can include a bank, an employer, a purchaser of the debtor’s property, or any other entity/individual that holds money on behalf of, or owes money to the debtor. [...]  READ MORE →

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Intestacy rules for distribution of deceased estates

The order of death can significantly impact the distribution of estates, as demonstrated in NSW Trustee and Guardian v State of New South Wales [2015]. This case highlights the importance of having a lawyer prepare a will for you and the necessity of regular will updates.

In this case, a mother and son were found dead in their shared home, both without a will. The persons entitled on intestacy would be determined by the sequence of death. The mother was a widow, had not remarried or entered into a defacto relationship since the passing of her late husband.  The son was unmarried and there was no record that he had ever had any children. [...]  READ MORE →

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Diagnosing Cyber Risks: The Rise of Cyber Attacks in the Healthcare Industry

Simone Brew, Principal and Gigi Au, Senior Associate of Matthews Folbigg Lawyers

It is undeniable that cyber-attacks are currently one of the biggest threats to the healthcare industry. You only need to look as far as the latest headlines that set out the unsettling details of data breaches affecting even the biggest businesses in the industry, such as Medibank and MediSecure. What is it about the healthcare industry that makes it a prime target for cybercriminals and what can be done to mitigate the risks? [...]  READ MORE →

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Undue influence, Coercion and Wills

In a recent article we outlined legal issues regarding capacity to make a Will.

A different but related question that is arising more frequently is whether a deceased person who has legal capacity has been coerced into changing his or her Will late in life. This concern is especially relevant in cases involving will disputes and individuals who may have concerns that they have been left out of a will.

Most elderly people, whilst still having legal capacity, find it harder to make decisions and become more easily influenced by those around them. Instances of greater pressure being applied to older people by potential beneficiaries seem to be increasing. [...]  READ MORE →

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Terms used in a Will

WILLS – DOES THE TERM “GRANDCHILDREN’ INCLUDE “STEP-GRANDCHILDREN”?

A big point of confusion in will disputes is whether “step children” and “step-grandchildren” can be included under the expressions ‘children’ and ‘grandchildren’.

When all else fails, Courts aim to determine expressions in a Will according to the intention of the deceased. In some cases, Courts may look into the nature of family relationships in order to determine the meaning of an expression such as “child”. [...]  READ MORE →

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Does Marriage Affect Your Will?

DOES MARRIAGE  INCLUDING SAME-SEX MARRIAGE AFFECT YOUR WILL?

Marriage can cause complications for existing Wills.

If a person marries after making a Will, it will be revoked. Some exceptions apply, including:

  • gifts in the Will from a person to a spouse who they marry;
  • an appointment as executor or whom the testator is married to at the time of his or her death.

Same-sex marriage in Australia has been allowed since 9 December 2017. The same laws apply in relation to Wills of same-sex couples. A same-sex marriage may make a past Will invalid subject to the exceptions mentioned above.

Considering the difficulties which arise in relation to marriage and Wills, it is important that you draft your Will in contemplate of marriage to prevent possibility of a will dispute in the future. Importantly, a Will made in contemplation of a particular marriage is not revoked by that marriage. [...]  READ MORE →