Superannuation and your Will

In present Australian society, a large number of middle aged and elder people hold a significant proportion of their wealth in Superannuation Funds.

In our Firm we have seen an increasing trend towards what might loosely be called “inheritance impatience” where some family members influence an elder parent to withdraw or transfer superannuation funds prior to death.

As a general guide, we point out that:

1. Superannuation assets are not covered by your Will.

2. The Trustees of the majority of Superannuation Funds remain bound by what is known as Binding Death Benefit Nominations (BDBNs), although the types of BDBNs and the language governing each Superannuation Fund can vary significantly. For many people, a BDBN obviously forms an integral and most important part of their Estate Planning.

3. A person holding an Enduring Power of Attorney would, in most cases, be entitled to execute a BDBN on behalf of the person granting the Power, always subject to the Attorney exercising that function as a fiduciary and without creating a personal benefit for themselves.

It is the view of the writer, one which is still subject to discussion in the legal community, that a person holding an Enduring Power of Attorney should not be able to sign a BDBN on behalf of the grantor of the Power, but should be able to confirm the validity of an existing BDBN to ensure that the Trustees of the relevant Superannuation Fund comply with the wishes of the deceased person.

4. In making a Will, it is clear and accepted law that a Will can only be made by a person with legal capacity at the time the Will is executed. An Enduring Power of Attorney vests in the Attorney the right to execute documents and perform legal tasks whether or not the grantor of the Power retains mental capacity, but not the right to make a Will.

What should you do?

To avoid the obvious uncertainty in the law at this time, an Enduring Power of Attorney can be made expressly restricting the rights of the Attorney to make, confirm, amend or revoke a BDBN for the grantor.  In other words, your BDBN will stand alone and direct the Trustees to pay a death benefit to your nominated beneficiary.  However, there will be some circumstances in which a person holding the Power of Attorney is intended to benefit from the BDBN and, for that reason alone, a properly drafted Enduring Power of Attorney will expressly authorise the Attorney to nominate themselves as the Beneficiary.

As one can readily imagine, the Lawyer certifying any Enduring Power of Attorney will need to have clear and cogent instructions from the grantor before giving such express authorisation in the document and before certifying the Enduring Power of Attorney.

Our Firm recommends that any person holding significant assets in superannuation and considering making or updating a Will, or executing an Enduring Power of Attorney, should obtain specific and independent legal advice on their situation before executing any relevant document dealing with that asset.

If you require legal advice in this area, then appointments can be made with the writer, Matt Howlin, Reg Gibson, Johnathan Neofytou or Daniel Stephenson at any convenient time. 


Recent Developments in Law: Can a stepchild be a grandchild in a Will?

As Society moves to more and more blended families, disputes over rights of inheritance under a Will are likely to escalate.  The importance of plain English drafting in a Will cannot be understated. 

The following is an example of a real-life situation which arose in a recent case in the Supreme Court of Victoria, namely Re Staughton; Grant v McMillan [2017].

The family structure and relevant facts were as follows:

1. Wills were made by a husband and wife in 1997. By 2016 both of the testators had then died;

2. At the time of death, the testators had two (2) surviving children of their own marriage, namely a daughter and a son;

3. Under their 1997 mutual Wills substantial benefits were conveyed to their children, but still leaving a residue. The residue in each of their estates (which comprised real estate and a considerable sum of money) was left to “…their grandchildren…”;

4. The daughter had married and was the mother of two (2) children; and

5. The son was not married at the time of the making of his Parents’ Wills and at that time had no children. However, in 2007 he married a woman who had two children from her previous marriage. Those children were obviously his stepchildren.


Relevant Issue to Determine

It was clear that the daughter’s natural children were “grandchildren” and entitled to benefit under the Wills of their grandparents.  The Court had to decide whether the two (2) stepchildren of the deceased’s son were within the description of “grandchildren” under the Wills.


Wording of the Wills

The Wills were not well drafted and did not include a definition of intended words.  The Victorian Supreme Court found that all of the words in the Wills should be given their ordinary wording, based upon community standards of interpretation.

The Court accepted evidence of the family relationships after the executions of the Wills in 1997 and found that it was the intention of the deceased Parents to widely construe the word “grandchild” and cover the possibility that their son may marry and later have his own children or may marry a woman who has her own children.

His Honour referred to a number of NSW case authorities (including Warton v Yeo [2015] and another case of Re Estate of Wright [2016]) which found that a description of the word “descendants” included step-grandchildren in it.  

Accordingly, the Court found that the stepchildren were entitled to benefit under the Will and were covered by the description of “grandchildren” in each Will.

The residue of the Estate was to be divided in equal one-quarter (1/4) shares between the four (4) “grandchildren”.


Drafting your Will

These cases show how important it is for your Lawyer to properly consider all family relationships and future possibilities within that family structure.  A Will should be drafted in clear terms to cover those possibilities. 

If you need a Will prepared in our Firm, then you should make an appointment with either:

  •  Matt Howlin

Available for appointments and legal work on Thursday and Friday only.

For appointments please contact:

Ashleigh Abbott – Legal Secretary



  • Reg Gibson

Available Monday, Thursday and Friday.

For other days please contact:

Nadia Hollow – Legal Secretary



Sutherland Shire Leading the Way on Domestic Violence Initiatives with the Domestic Violence Disclosure Scheme

In April 2016, an Australian first trial of the Domestic Violence Disclosure Scheme was launched in the St George and Sutherland Shire.

Under the pilot program, people in the St George and Sutherland Shire area, who feel they or someone they know are at risk of domestic violence by a romantic partner, have been able to go into their local police station to find out whether that person has a history of violence.

Applications can be made by partners or by a concerned third party. However, if police believe there is a serious risk involved, the individual believed to be in danger will be notified of the information within 48 hours.

The program values the safety of at risk partners above that of the right to privacy for the past perpetrators.

In the modern age of internet dating and matching making apps such as “tinder”, people are meeting up and becoming romantically involved with people they know virtually nothing about. This creates opportunities for perpetrators of domestic and family violence to slowly escalate their behaviour with romantic partners who may not be aware of what is happening until it is too late.

Unfortunately, the program hasn’t received the publicity it deserves, but by all reports it is starting to gather momentum in the local community.

According to Fairfax Media, across all areas in 12 months, 65 primary and third-party applications have been made under the scheme and of these applications, 20 have been approved.

In the St George and Sutherland Shire areas 20 applications have been made which have resulted with six (6) of those resulting in disclosure being made under the scheme.

It is common for perpetrators of domestic and family violence to repeat abusive and controlling behaviour in successive relationships. Identifying the signs early and being able to make enquires about a partner’s past behaviour when it comes to domestic and family violence can be crucial in not becoming a victim yourself.

Of course, just because a partner does not have a police or criminal record for domestic violence, does not mean they have not been a perpetrator in the past, with many instances of domestic and family violence going unreported.

Family violence is a serious issue for all communities and one that cannot be ignored. Cases of family violence are treated extremely seriously by the Family Court when dealing with Parenting Cases.

In 2011, the definition of family violence in the Family Law Act was expanded to incorporate notions of coercion and control (which are not always accompanied by physical violence or threats). At the same time, the definition of child abuse was amended to include serious psychological harm arising from the child being subjected to or exposed to family violence. The Family Law Act contains a range of provisions designed to protect parties and children from family violence.

The definition of family violence is contained in section 4AB of the Family Law Act and states:

  • For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
  • Examples of behaviour that may constitute family violence include (but are not limited to):
    • an assault; or
    • a sexual assault or other sexually abusive behaviour; or
    • stalking; or
    • repeated derogatory taunts; or
    • intentionally damaging or destroying property; or
    • intentionally causing death or injury to an animal; or
    • unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
    • unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
    • preventing the family member from making or keeping connections with his or her family, friends or culture; or
    • unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
  • For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
  • Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
  • overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
  • seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
  • comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
  • cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
  • being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

As you can see, family violence covers much more than physically abusive behaviour and unfortunately, many victims of family violence do not even realise they are victims.

If you or someone you know is suffering from domestic or family violence, do not be afraid to contact the local police or Sutherland Shire Family Services at

Daniel Stephenson

Employee entitlements in the spotlight

If a company breaches the Fair Work Act by underpaying employees (or denying other entitlements) Directors and other executives of a business can be held personally liable for both compensation for unpaid entitlements and penalties under the Fair Work Act, if they are knowingly involved in the contravention.

There has been a focus recently in the media and by the Fair Work Ombudsman on the underpayment and exploitation of employees, particularly at franchise businesses such as service stations, supermarkets and convenience stores.

Fair Work Inspectors have the power to enter premises without permission (although they cannot use force) to conduct compliance audits, and can interview staff. These powers have been used in recent years to conduct unannounced visits on 7-11 franchisesacross Australia, leading to a series of cases in the last 12 months where Court ordered penalties have been imposed against the franchise owners and their directors.

In the most recent, Fair Work Ombudsman v JS Top Pty Ltd & Anor [2017] FCCA 1689, the Federal Circuit Court found that the franchise owner’s director “deliberately manipulated the data which he entered into the 7-Eleven payroll system” to obscure the underpayments made to its staff. The employees were paid a flat rate between $13 and $19 per hour, well below the award rate. However, the franchise owner would reduce the recorded hours worked by each employee in 7-Eleven’s payroll system to give the appearance of them receiving hourly rates of $25-$30. The Court noted that this practice had also been used by other 7-11 franchise owners.

Even though the franchise owner paid the outstanding employee wages in full, the business was ordered to pay a penalty of $140,000, and the director was personally ordered to pay a penalty of $28,000.Ironically, the total underpayment of staff in this case was only $19,397.15, so the director and the business have been ordered to pay amounts far in excess of the apparent financial benefit derived from underpaying.

These cases emphasise the importance to business owners of understanding what awards their employees are covered by, what their minimum entitlements are and ensuring there is compliance with the Fair Work Act, so as to avoid possible personal liability for any contraventions.

John Ferguson

First Home Buyers given assistance by both NSW & Federal Government

With housing affordability being a hot topic, the NSW & Federal Government has implemented measures to assist first home buyers in achieving the “Great Australian Dream”.

A summary of the measures implemented to assist first home buyers are:

Federal Government

The First Home Super Saver Scheme was introduced on 1 July, 2017, to assist first home buyers to save for a deposit. The scheme assists by:

  • Individuals can make voluntary contributions to their super account up to $15,000 per year, up to a maximum of $30,000 in total over time (and subject to existing annual super caps);
  • The voluntary contributions can be withdrawn together with any earnings on those contributions any time after 1 July, 2018 to pay a deposit on the purchaser of the individuals first home;
  • The voluntary contributions and withdrawals are taxed at a much lower rate than traditional savings, so that the individual can save more money through using this scheme.

NSW Government

The NSW Government as at 1 July, 2017 changed some of the assistance to first home owners from just being on new dwellings to being on both new and existing dwellings. The measures in place are now:

  • There will be no stamp duty for first home buyers, if the property is to be their principal place of residence and it is purchased at a price of $650,000 or less;
  • Stamp duty will be payable on a concessional basis between $650,000 and $800,000;
  • Continuation of the first home owners grant of $10,000 for purchase of new homes only up to a purchase price of $600,000;
  • First home owners grant of $10,000 for first home buyers building a new principal place of residence under a building contract or as an owner builder up to a value of $750,000.

The Property and Conveyancing Team at Gibson Howlin Lawyers is able to assist First Home Buyers as well as buyers and sellers when dealing with property in NSW.

Johnathan Neofytu

In the matter of Dan Phillips Holdings Pty Ltd and Anor [2017] NSW SC954:

Application by newly appointed Administrators to adjourn winding up application.

There have been numerous cases in recent years in which the Supreme Court of New South Wales has given judgments regarding the factors to be taken into consideration when there is an application pursuant to section 440A of the Corporations Act2001 (Cth) by Administrators of a company who are seeking to adjourn the hearing of a plaintiffs winding up application. In many instances, these applications are brought just prior to the hearing of the winding up application and sometimes only days after an Administrator has been appointed. Whilst Brereton J has considered section 440A in many judgments in recent years, notably in Re Bobos Engineering Australia Pty Ltd, there continues to be expansion upon the factors relevant to a Court in considering such an application.

In the matter of Dan Phillips Holdings Pty Ltd and Anor, this was an instance where Black J was required to consider such an application in circumstances where the Administrators had been appointed the business day prior to the hearing of the winding up application which in itself had been on foot for a significant period of time.


The plaintiff in the proceedings, Interleasing (Aust) Limited, had brought an application in the Supreme Court of New South Wales to wind up Biglift Cranes and Heavy Haulage Pty Ltd and Dan Phillips Holdings Pty Ltd on 11 January 2017.

The defendants had previously sought to argue that they were both solvent and the Court had previously made Orders for the service of evidence by the parties which included leading expert accounting evidence as to the companies solvency.

However, on or shortly after 31 March 2017, and prior to the listed hearing date of 3 April 2017, the defendants appointed Administrators to the companies. It is particularly relevant to note that the Administrators were purportedly appointed on the Friday in which the hearing was scheduled to take place on the following Monday.


Applications pursuant to section 440A will require the Court to be satisfied that it would be in the interest of the company’s creditors for the company to continue under administration rather than be wound up. Section 440A(2) states: –

The Court is to adjourn the hearing of an application for an Order to wind up the company if the company is under administration and the Court is satisfied that it is in the interests of the company’s creditors for the company to continue under administration rather than be wound up.

In his Honour’s earlier decision in Deputy Commissioner of Taxation v Bradley Keeling Management Pty Ltd [2003] NSW SC47, Black J noted that where an Administrator had only recently been appointed to a company, the extent of proof required to obtain the necessary adjournment of the winding up application may be less than would arise if an Administrator had been in office for a longer period of time.

In the current matter, Black J also noted, citing Brereton J in Re Bobos, that further factors to consider include whether there are a significant number of creditors opposing the winding up application and whether evidence had been lead of a real prospect of a Deed of Company Arrangement proposed by the company’s director being available.

The matters that raised concern for Black J in the current case, were: –

  • That the Administrators were appointed on the eve of the winding up application;
  • That an adjournment had previously been granted to the defendants to lead evidence of solvency;
  • There seemed to be confusion surrounding the identities of the directors of the companies at various points in time; and
  • There appeared to be potential differences between the value of the companies assets recorded in their accounts and the value of fixed assets now disclosed by the companies to the Administrators.

In circumstances where there was no clear proposal for a Deed of Company Arrangement or the identification by the Administrators of some advantage that the creditors would receive by the companies continuing under administration, Black J was not satisfied to adjourn the winding up application and proceeded to wind the companies up.

In particular, Black J noted that section 440A requires the Court to be satisfied of the continued administration being in the interests of the companyies creditors. This “requires a sufficient possibility, and not mere speculation, that the creditors interests will be advantaged by the adjournment”. His Honour noted that the threshold for demonstrating such an advantage is lower for a newly appointed Administrator but that nevertheless there still needed to be “some plausible basis to identify an advantage for the continuation of the administration”.

Matters to Consider

Whilst Black J was covering areas of the law that had previously been determined in the cases mentioned above, the judgment does provide some guidance that is useful for Administrators in situations where they are receiving an appointment to a company which is already subject to a winding up application. We note that the following matters are important for Administrators to consider when taking an appointment in such circumstances: –

  • Ensure that you are aware of any Court dates and winding up applications on foot
  • Considering if there is sufficient time for you to be able to obtain “real evidence” sufficient to obtain a section 440A adjournment;
  • Perform searches of the company ideally on the day of appointment, or if not as close to it as possible, to ensure that the identity of those appointing the Administrator is not controversial;
  • Speak to the company’s directors as soon as possible and determine whether there are prospects of a Deed of Company Arrangement proposal being put to creditors. If it is the case that this is a possibility, ensure processes are in place to streamline preliminary evidence of such a proposal including confirmation of the director’s asset position and ability to obtain any funds to be injected into the company pursuant to the Deed.

A submission was also made by the plaintiff’s counsel regarding the impact of the Insolvency Law Reform Act 2016 (Cth) regarding the change of the relation-backdate should the administration continue. The Court declined to consider the submission, however, this will no doubt be a prominent area of the law to be reviewed in the coming months as the relevant Act and Regulations come into force.

It is also worth noting that the Court was at no stage critical of the Administrators actions in this matter and in particular Black J stated “I do not doubt that the Administrators are capable of taking control of the company’s affairs, and would properly administer the company’s affairs in accordance with their duties”.

By Jason Green
Solicitor Director

Significant Increase in Family Court Filing Fees

After some debate within the Senate, it has been resolved to significantly increase the filing fees applicable to all applications before the Family Court and Federal Circuit Court of Australia.

This includes a significant increase in the filing fee for a Divorce Application, from $845 to $1,200.

The full list of fees can be accessed through the following link:

Building and Construction Industry Ammendment

1. Require a Head Contractor when making a Payment Claim to accompany it with a Full Statement of the claim and a Statutory Declaration that all Sub Contractors have been paid the amounts due and payable for the relevant construction work.

     A failure by a Head Contractor to serve such a Statement is potentially a criminal offence.

2. For any Commercial Building Contract it is not necessary for a Payment Claim to be endorsed in the manner under the old Act.  A Payment Claim, whether or not it is endorsed, for a Commercial Payment remains valid.

Costs Orders – Supreme and District Court of NSW

There has been an existing prohibition on the making of Costs Orders in small cases, even when a Plaintiff is successful. A Plaintiff obtaining a Judgment for less than $500,000 in the Supreme Court of New South Wales, or less than $40,000 in the District Court of New South Wales, should not expect to have a Costs Order made in their favour.

However, a recent case of Spanos v Thornberry (2013) District Court, Gibson DCJ makes it clear that the Courts have a discretionary right to grant Costs Orders even within these limitations, particularly in complex litigation.

If you are contemplating Court proceedings you should always obtain competent legal advice before doing so. The issue of the recovery of your own Costs is an important consideration. Our Firm can explain the procedures to you in the initial conference with Matt Howlin, Bruce Honeyman and/or Jodie Jamieson.