About Michael Callow

Michael Callow is a Partner at Schultz Toomey O'Brien Lawyers. Find more about Michael Callow on Google +.

Where there’s a will….

24.09.10 25By Michael Callow

A Will must be in writing, signed by the person making the Will (or someone else in the presence of the Will maker and at their direction), with the signature to be made (or acknowledged) in the presence of two witnesses who must then sign the Will in the Will maker’s presence.

The Queensland Supreme Court recently was called on to decide whether a document which did not satisfy those conditions could still be a valid document determining the distribution of the assets of an Estate.

The deceased had made a Will in November 2000, which the Court described as a “complicated Will” naming a number of different beneficiaries including various friends, a hospital foundation, the Red Cross, together with various associations or foundations supporting vision impairment (as the deceased was vision impaired).

In the later years of the deceased’s life she apparently became “increasingly difficult to get along with” with the Court observing that “many of her friends and acquaintances distanced themselves from her as a result”.  However three of the deceased’s friends continued to maintain contact with the deceased, both by visiting her and maintaining telephone contact.

While cleaning the deceased’s house after she had passed away a piece of paper was found, dated 10 October 2009 which stated “because I can’t get to my solicitor I want to change my Will to leave my house to Barbara Castiglione and my shares to Robert and Val Klauke” (being the friends who had maintained contact with the deceased).  The document was signed with the deceased’s name. The Court was obliged to determine whether that informal document was a valid addition to the deceased’s earlier Will.

The Court has power, under the Succession Act to dispense with the formal requirements in relation to a Will if it is satisfied that the document was intended to form the Will, or part of the Will (or alteration of the Will), taking into account the evidence as to how it was signed, and of the person’s testamentary intentions (i.e. how the person proposed disposing of their assets).  The Court was satisfied that the document identified changes that the deceased wished to make to her Will, it being clear that she wished to leave her property to her friends.  The people identified in the document were those friends who had maintained contact with her, with the Court being satisfied that the document was “consistent with what might be anticipated to be her testamentary intentions”.

The Court was also satisfied that the wording of the document constituted a Will, rather than simply being a “note of instructions or a draft Will or a trial run”.  The Court was satisfied that the document represented the deceased’s testamentary intention and ordered that the disposition of those assets proceed in accordance with that document.  I expect the Court was somewhat swayed by medical evidence that the deceased retained capacity to make her own decisions at all times and the Court was therefore prepared to recognize the document as her intentions to provide a gift to those people who had continued to provide support to her in her later years.

Unlicensed building work – why would you?

Michael Callow, Partner

By Michael Callow, Partner

In Queensland, people or companies wishing to undertake building work have an obligation to hold a Building Services Authority licence. I expect that requirement is for the protection of the public, to ensure any building work undertaken is done so by qualified trades people.

One of the consequences of undertaking unlicensed building work was highlighted in a recent action brought under the Queensland Building Services Authority Act, when an unlicensed contractor commenced a claim for an unpaid final claim.

The unlicensed contractor, Mr McCoy, reached agreement with Mr and Mrs Sloss to find a removal home to be relocated to a block of land owned by the Slosses, and to undertake the work necessary to obtain council approval, to then able the house to either be rented, or sold.

Mr McCoy successfully identified a suitable house, relocated it to the vacant block, and undertook, either by himself or with the assistance of other relevant trades people, the work necessary to satisfy council.

There was trouble in paradise however, when the budget blew out (which is probably a familiar story for people having a home built). Mr and Mrs Sloss were also “dismayed to discover” that they did not qualify for the first home owner’s grant, which they had, it would appear, factored in to contribute $21,000.00 towards the cost of the project. Consequently, when Mr McCoy delivered his last account to the Slosses they refused to pay, resulting in proceedings being commenced to recover the final claim.

Unfortunately for Mr McCoy his lack of a QBSA licence came back to haunt him.

Under the Queensland Building Services Authority Act an unlicensed person cannot recover an amount for that person’s own labour, or for any profit which would have been made by the person, for carrying out building work. There remains an entitlement for an unlicensed person to recover costs paid for material, to other people for their labour, or for other costs, but the legislation does not allow an unlicensed person to personally be rewarded for undertaking building work – the price to be paid for not being licensed.

In determining Mr McCoy’s claim, the tribunal allowed Mr McCoy to recover costs incurred in undertaking the project, including the provision of materials and labour from other people, in an amount of slightly less than $10,000.00. However, the tribunal also identified that the Slosses had paid to Mr McCoy almost $27,500.00, including GST, for his labour to which Mr McCoy was not entitled, with the end result being an order that Mr McCoy in fact pay to the Slosses approximately $17,500.00, being the difference between the two amounts.

There was no question that Mr McCoy had not performed the contract in a tradesmanlike manner, with no complaints as to the relocation and establishment of the house, however, his lack of a licence meant he received no benefit in the process. And to add injury to insult Mr and Mrs Sloss reported Mr McCoy to the Building Services Authority for being unlicensed which in all likelihood led to a fine being imposed. I expect the Slosses are not on Mr McCoy’s Christmas list!

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.

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.