Taylors Estate Merlot 2010

by Travis Schultz, Managing Partner

Although Merlot is the most common variety of grape grown in France, it’s never really hit its straps as a single varietal in the Australian wine market. Perhaps that’s because Merlot grapes tend to ripen too quickly in warm climates, or because Aussies just prefer the softness that it brings when blended with Cabernet and Shiraz.

But with rich ripe styles like the Taylors Estate 2010 Merlot hitting the shelves, it’s only a matter of time before it becomes as popular here as it is in the South of France.

I suspect that the winemaker, Mitchell Taylor, has deliberately picked the fruit a touch later than normal for the 2010 release, as the nose is a perfume of spice and berry which becomes lush creamy stewed plums and strawberry on the palate. There’s a touch of gripiness in the middle, courtesy of a brief tannic interlude, before the fruit corralled by French and American oak, takes hold once more to linger through the finish (and an encore performance at that!)

I’m a little surprised that Taylors didn’t use this fruit from their Lodden and St Andrew’s blocks to craft one of their top end St Andrews releases as it’s much better than its $16-$20 price point would suggest.

Travis Schultz, is Managing Partner of Schultz Toomey O’Brien Lawyers and lover of fine food and wine.

Family Violence – Best Practice Principles

by Leisa Toomey, Partner

Accredited Specialist – Family Law

Legal matters can be complex and confusing to the lay person.  Family law is not exempt from this and as legal practitioners we try to ensure our clients understand what is going on and what processes we need to follow.

When it comes to matters that involve family violence and abuse, regardless of whether it is alleged or proven, there is a Best Practice Principal in place to assist all parties involved in the case.  This includes, but is not limited to, the courts, legal practitioners, service providers and litigants.

Developed by the Family Court of Australia and the Federal Magistrates Court of Australia they aim to strengthen the courts efforts to protect children and any other person who has suffered from family violence and abuse.

In essence the Best Practice Principles recognises that family violence is an issue and has a place in the Family Law Act (1975).  It also recognizes the harmful effects it has on its victims. It also specifically recognizes that where there are allegations of sexual or serious physical abuse of children that the Magellan case management system be followed[i].

All Family Law cases that involve family violence or child abuse are required to be assessed under the Best Practice Principles as they act as a tool for gathering and subsequently providing important background information for all those involved in the case.

At the heart of this document is the courts desire to ensure both children and parents are protected from all forms of harm resulting from family violence and abuse. This includes protecting a victims’ rights to feel and be safe when having to deal with the court on Family Law matters.  The courts are able to create an individually tailored safety plan which may provide them with options for how they appear in court.  Various options such as appearing by video, staggering the appearance times (so they do not come face to face with the alleged abuser), attending with support persons and in some instances with security are all available to ensure the safety of those who require it.

Safety planning is a big issue for those who are living in fear as a result of family violence.  The Family Violence Best Practice Principles goes a long way to assisting those who are victims and the legal practitioners and courts who are trying to ensure their safety.

[i] The Magellan program was developed to deal with Family Court cases involving serious allegations of physical and sexual child abuse. As these cases involve the most vulnerable children, the family Court has implemented this fast track program in all of its registries.

Tomich Hill Pinot Grigio 2011

by Travis Schultz, Managing Partner

I can really only speak for my household, but as summer approaches, casual and easy to prepare meals become the norm, and near the top of the warm weather hit list is my favourite – sundried tomato, artichoke and pepperoni pizza. And with any Italian style meal, there’s no better accompaniment than a glass (or two) of Pinot Grigio to wash it down.

I recently discovered a cracker of an Australian Pinot Grigio (the Italian style of Pinot Gris) in the Tomich Hill 2011. It’s highly aromatic on the nose and displays a vivacious liveliness of (ripe nectarine) fruit on the palate. The attraction, however, is in the finale, which is crisp, dry and zesty but still retains the citric apple flavours that give the wine its identity. At only around $20.00 a bottle, it’s hard to say no!

Travis Schultz, is managing partner of Schultz Toomey O’Brien Lawyers and lover of fine food and wine.



When a landlord can be bound by an unsigned lease

Paul Kusy

Paul Kusy, Partner

By Paul Kusy, Partner

It is common for in Lease negotiations for a Letter of Intent or Letter of Offer to be prepared as a starting point. Typically the letter may be worded in one of three ways:

1. It attempts to bind the parties once the letter itself is signed regardless of whether or not the formal lease documents are signed;
2. It specifically states that the parties are not bound until the formal lease documents are executed by both Landlord and Tenant; or
3. The letter does not deal with the issue and is silent on the point.

The third category is dangerous and this was highlighted in a case from the New South Wales Supreme Court decided on 9 September 2011.

In Wayne Edward John Streat v Fantastic Holdings Limited [2011] NSW SC 1097, the Tenant and Landlord negotiated proposed terms for a new Lease. The tenant was an existing tenant in the premises, asked to commit to a new lease to assist the landlord with re-financing.

The correspondence agreed upon all of the essential terms and the Landlord had a formal lease prepared which was submitted to the Tenant for signature. The original lease documents sent did not reach the tenant and the landlord re-issued a fresh copy. Then the Tenant signed the Lease and returned it to the Landlord.

The Landlord later changed its mind and did not wish to proceed with the Lease. The Tenant asked the Court to decide if the Lease was binding despite the Landlord not having signed it. The landlord claimed there was no intention to be bound until the formal lease was signed.

The Court decided that the parties had moved beyond negotiations. All of the terms of the Lease had been agreed in correspondence and the Landlord had agreed in writing to those terms.

Also relevant was the fact that the Tenant had part performed the Lease. It had paid rent in accordance with the proposed new Lease and the Landlord had submitted invoices that recognised a one-month rent free period under the new Lease.

The case highlights the importance of clearly stipulating at the outset at which point of documentation parties will be legally bound by a Lease.

Caveator Beware!

Michael Callow, Partner

By Michael Callow, Partner
Accredited Specialist – Personal Injuries LawA regular “debt recovery” enquiry I receive is whether a Caveat can be lodged against property owned by the debtor, to prevent the sale of the property, to ensure the property remains available as an asset against which the debt can be recovered.

A Caveat lodged against the title of a property is a notification to the Registrar of the Department of Natural Resources and prevents any dealing with the property whilst the Caveat remains registered against the title.

Generally, if the debt is a judgement debt with no other connection or link with the property owned by the debtor there will be no right to lodge a Caveat. When providing that advice I always highlight the consequences of lodging a Caveat against property without justification.

The Land Titles Act 1994 provides that “a person who lodges or continues a Caveat without reasonable cause must compensate anyone else who suffers loss or damage as a result”.

There is also an allowance for a Court, in considering compensation for the improper lodging of a Caveat, to award exemplary damages, being damages, in effect, to punish the party at fault.

An example of the Court’s application of the compensation provisions was outlined in a case in the late ‘90’s where a party, in default under its mortgage, lodged a Caveat to prevent the sale of the property by the mortgagee. The party lodging the Caveat asserted that it was not in default under the mortgage with the Court finding that it was difficult to accept that the Caveator could hold “an honest belief on reasonable grounds that a caveatable interest existed”, given the Caveator knew it was in default under the mortgage.

It transpired that the purchaser of the property, from the mortgagee, intended developing the land into a childcare centre. The evidence disclosed that a director of the Plaintiff Caveator was an executive officer of two other companies who were involved in the building of childcare centres, and was a director of another company which owned land on which a competing childcare centre was to be built. It was evident the lodging of the Caveat was solely to prevent the sale of the land, and by extension cause a delay in the construction of the purchaser’s childcare centre.

In accepting that there was no reasonable cause for the lodging of the Caveat the Court awarded damages to the purchaser of the property, compensating the purchaser not only for interest, bank charges and government duties with respect to the holding costs of the property, and Town Planning application costs thrown away, but also the sum of $200,000.00, as exemplary damages, being an allowance for loss of profits suffered by the purchaser of the land, being unable to finalise the purchase of the land due to the Caveat, resulting in a significant delay in the developing and opening of their childcare centre.

A Caveat can be a useful tool but lodging one without good reason may end up costing you dearly.

Gibbston Valley Gold River Pinot Noir 2011

Gold River Pinot Noir

By Travis Schultz, Managing Partner

Buying Pinot Noir can be a tricky business; not just because of the wide range of wines available or the diverse regions that they hail from, but because the price point can increase exponentially as the quality improves. Finding value is truly a balancing exercise between price point and quality.

Pinot is a difficult grape to grow as it is “high maintenance” (compared to other varietals) and relatively low yielding. As a result, it’s generally an expensive wine by the time it hits the shelf. So it’s refreshing to find an example like the Gibbston Valley Gold River Pinot Noir 2011 that not only stimulates the senses, but which is affordable for those of us who aren’t mining magnates!

The beauty of Pinot is its lively bouquet and red cherry characters on the palate, and the Gold River doesn’t disappoint. It has all the strawberry edged cherriness that is typical of a Central Otago Pinot, but none of the thick, if not astringent tannins that can sometimes creep into more heavily oaked versions of the wine. It falls away slightly at the back, but retains the silky majesty that Pinot is famous for.

At less than $30 a bottle, the Gold River is exceptional value and typically fruit driven, forward and ready to compliment your next lamb roast!

Our wine reviewer, Travis Schultz, is managing partner of Schultz Toomey O’Brien Lawyers and lover of fine food and wine.

Beware the Bully!

By Leisa Toomey, Partner

Accredited Specialist – Family Law

Does harassing your ex into agreeing to something they don’t really want to agree to constitute bullying? That was one of the many factors a judge had to recently consider when deciding whether to set aside property orders.

In the recent case of Hogan & Hogan Ms Hogan alleged that throughout her marriage of 17 years she had suffered stress and anxiety as a result of the violence she had been subjected to at the hands of her husband. When the marriage was over she alleged that she had continued to be subjected to stalking and abuse by her ex Mr Hogan in an attempt to get her to agree to the property orders which she subsequently signed.

The Consent Orders in question provided for Ms Hogan to receive approximately $58,000 in assets out of a pool said to be worth approximately $583,000 at the time.
In his judgement his Honour had to consider what did and did not constitute “duress” in the context of family law litigation. Whilst not agreeing that Mr Hogan’s persistent telephone calls and text messages were sufficient enough to be described as “duress” the judge deemed them to constitute “unconscionable conduct”. Mr Hogan knew Ms Hogan did not wish to speak to him and as they both had their own legal representation he should not have been contacting Ms Hogan at all.

Ms Hogan was ultimately successful in her application to have the deed of settlement set aside. However, in setting aside the orders the judge also took into consideration that Ms Hogan’s legal advice at the time was not “appropriate in the circumstances” and that the disproportionate percentage Ms Hogan was provided for in the Consent Orders, given the length of the relationship was not equitable. In fact the judge described Ms Hogan’s entitlement under those orders as “manifestly inadequate”.

A Judge is entitled to turn parties away if that Judge is presented with an agreement that presents as grossly unfair after taking in all the facts of the marriage/relationship. A Judge can also set aside Binding Financial Agreements if the circumstances allow for it like a grossly unfair settlement. This type of power is available to the court to overcome the power imbalance in some relationships.

The upshot in all of this is that good legal advice is absolutely essential before you sign any form of contract. A good lawyer will advise you whether it is in your best interests to agree to what the other party if seeking. If you find that you are being harassed into agreeing to something you don’t want to agree to you should contact your lawyer without delay.

Source: Federal magistrates Court of Australia – Family Law, Hogan & Hogan [2010] FMCAfam 1255 (9 September 2010)

Turkey Flat Butcher’s Block 2010

Turkey Flat Butchers Block GSM

by Travis Schultz

Question: When is a GSM not a GSM?
Answer: When it comes from the Barossa Valley.

While the blend of Grenache Shiraz (or Syrah) and Mouvedre (also called Mataro) (“GSM”) is the calling card of the southern Rhone region in France, some Australian producers have also had remarkable success with the marriage of the “Holy Trinity” of red wine varietals. In the Barossa Valley in South Australia, however, the Shiraz is typically of such high quality that their winemakers often prefer to lead with their best, making it the proportionally dominant grape in their version of the Rhone classic.

And Turkey Flat’s “Butcher’s Block” 2010 is no different as their SGM blend is 53% Shiraz, 31% Grenache and 16% Mouvedre with grapes they’ve selected from their Bethany, Stonewell and Koonunga vineyards.

If big red wines aren’t your thing, a GSM (or SGM in the Butcher’s Block example) is a perfect compromise as the Shiraz delivers the emboldened upfront ripe fruit flavours while the Grenache fills the mouth with its sweet cherried characters, before the Mouvedre lifts the nose and contributes the fine tannins that support the finish without sucking your cheeks in through your nasal cavity!

And at around $20 a bottle, it’s as good value as you’ll find in an Aussie GSM, although I reckon it’s a “drink now” proposition that won’t get much better. But then again, wine this good won’t last long in my house!

Travis Schultz, is managing partner of Schultz Toomey O’Brien Lawyers and lover of fine food and wine.

Contempt of Court lands husband in jail

by Michael Callow, Partner

Accredited Specialist – Personal Injuries Law

Generally I expect the public would have the view that if you ended up behind bars it would be the result of some criminal activity. That however is not always the case.

Take the matter of John Roach as an example. Mr Roach, his wife, and company had conducted a menswear franchise. After the franchise came to an end, and in breach of a restraint in the franchise agreement, which prevented, in effect, the conducting of a menswear business in competition to the franchise, Mr Roach commenced his own menswear business.

Not surprisingly the franchisor commenced Court proceedings against the Roachs. In the course of those proceedings Mr Roach gave an undertaking to the Court that he would not conduct a “mobile hire of formal menswear business” within the radius of a certain area. When Mr Roach (and his wife) breached that undertaking, by continuing to conduct a menswear business, the franchisor applied to the Court for an Order for contempt of Court. (The Court Rules provide for a person to be penalised if they show contempt by deliberately disregarding a Court Order or undertaking given.) The Court was satisfied Mr Roach was in contempt of Court and fined him $3,000.00.

Apparently Mr Roach did not respect the judicial process, with the franchisor being compelled to make a further Application to the Court for contempt as a result of Mr Roach and his wife continuing to conduct menswear activities. In fact the Application was the result of conduct on the part of Mr Roach and his wife occurring after they had already been subject to the $3,000 fine being imposed. Mr Roach and his wife were again found in contempt of Court (although they did not appear before the Court when the finding was made). When appearing before the Court to be sentenced Mr Roach submitted to the Court that a fine would be a “waste of time” as he would be unable to pay a further fine, and in fact was unlikely to pay the initial fine.

In noting that Mr Roach had continued to act in contempt of his undertaking given to the Court even after being fined the Judge ordered Mr Roach to serve 6 months imprisonment.

The matter came before the Court of Appeal with Mr Roach arguing that the 6 month sentence was excessive. The Court of Appeal, in agreeing that the custodial sentence was warranted, noted the “lack of remorse on the part of the Applicant and his continued refusal in the face of being fined for contempt to abide by the undertaking given to the Court and forming part of this Order” was a significant consideration in determining the appropriate penalty.

Mr Roach’s refusal to acknowledge that he was in any way in the wrong also convinced the Court that the imposition of a fine would be “futile”. Mr Roach did achieve a small result on his Appeal. Whilst the Court of Appeal confirmed the appropriateness of a spell in custody, it did agree that the six month penalty was excessive and substituted that penalty for a three month prison sentence.

Binding Financial Agreements at a glance

By Leisa Toomey, Partner

Accredited Specialist – Family Law

Colin* recently came to see me as he had separated from his partner of two years. He was a hard working young guy and had saved well. He had purchased a small unit, had a nice car that he had paid off, and had some money in the bank. His girlfriend had a part-time job and was studying. She had not contributed to the relationship in any real financial sense but now she was now seeking half of everything he owned. Understandably Colin was worried about his future as he had never really given a lot of thought as to what would happen if their relationship ended.
There is a lot of misconception about what people are entitled to when a relationship fails so this month we will briefly look at what a Binding Financial Agreement (BFA) is and when it might be necessary. In short a BFA is something that married couples or couples living in a de facto relationship can enter into before, during or after a marriage or de facto relationship. You will often hear people refer to them as ‘prenuptial agreements’.

A BFA can be set up in a number of ways and can specify things like the financial settlement or break up of the asset pool, the level of financial support one spouse will give the other and any incidental issues, after the breakdown of a marriage or a de facto relationship. In Colin’s case he could have had a BFA that clearly specified that should the relationship fail, the girlfriend would not be entitled to make a claim on any of the assets he had prior to the relationship.

By having a BFA in place couples can have some certainty over how the asset pool will be broken up when the relationship ends. However, it is strongly recommended that they be reassessed at least every two years and in particular after a significant event has occurred in the relationship such as the birth of a child or one party inheriting a sum of money.

Since their introduction Binding Financial Agreements have come under quite a bit of scrutiny so it is essential that both parties must also have sought and received independent legal and financial advice prior to signing the document and, as stated above, they also need to be reviewed by your solicitor on a regular basis.

Going to court to settle a divorce can be expensive and time consuming, particularly if there is a large asset pool to divide. A BFA may remove the need to go to court at the end of the relationship, but in itself can be a time consuming and costly exercise to complete. However, for those with a large asset pool it may be a worthwhile investment.

*Not his real name.