Legal

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ASIC has commenced civil proceedings in the Federal Court against Mustafa Mohammed, Mahek Mustafa, Mubashir Mohammed, MyWealth Manager Financial Services Pty Ltd (trading as MyWealth Manager), MyWealth Protection Pty Ltd, 3M Financial Planning Pty Ltd (trading as MCube Planners) and Secure Investments Pty Ltd (together the Defendants).
ASIC is seeking declarations from the Federal Court that the Defendants have contravened the Corporations Act by operating an unregistered managed investment scheme called ‘MyWealth Manager’. ASIC alleges the scheme should have been registered and that the Defendants operated the scheme without holding an Australian Financial Services (AFS) licence.
On 21 November 2019, ASIC obtained interim orders in relation to the Defendants, including orders:
1. appointing Tim Norman and Rob Woods of Deloitte as Receivers and Managers of MyWealth Manager Financial Services Pty Ltd and 3M Financial Planning Pty Ltd; 2. restraining the assets of the remaining Defendants; 3. restraining the Defendants from carrying on a financial services business in this jurisdiction without an AFS licence; 4. restraining the Defendants from managing, directing, controlling or otherwise operating the unregistered scheme; and 5. restraining the Defendants receiving, soliciting, transferring or disposing of investor funds received in connection with the unregistered scheme. 6. ASIC alleges Mustafa Mohammed operated My Wealth Manager from February 2017and targeted consumers from certain ethnic and cultural backgrounds.
ASIC alleges the scheme has raised approximately $7 million from more than 55 investors where investors were encouraged to roll over their externally managed superannuation into newly created self-managed superannuation funds (SMSFs) and then invest the SMSF monies, by way of a loan, in MyWealth Manager.
ASIC also alleges that the Defendants used investor funds for their own personal use, including substantial payments to friends and family members and the promotion of cryptocurrency.
ASIC said their investigation is continuing.
The hearing has been adjourned to a date to be fixed after 5 December 2019.
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j.ballantyne1990-6AQqhLzZaK

ASIC takes civil action against former Financial Adviser Mustafa Mohammed and Co

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GUEST OBSERVATION
It was defoliants, seen above during Operation Ranch Hand in the Vietnam War, that prompted action to protect the environment during conflicts. (Source: <a class="source" href="https://www.nationalmuseum.af.mil/Upcoming/Photos/igphoto/2000445232/">National Museum of the US Air Force</a>)<a href="https://theconversation.com/profiles/shireen-daft-450045"> </a>
An <a href="https://www.nature.com/articles/d41586-019-02248-6" target="_blank" title="Stop military conflicts from trashing environment">open letter</a> from 24 scientists published in Nature last month calls on governments to draft a new Geneva Convention dedicated to protecting the environment during armed conflict.
This inspired a <a href="https://www.motherjones.com/environment/2019/07/should-destroying-the-environment-be-a-war-crime/" target="_blank">number</a> of <a href="https://www.theguardian.com/law/2019/jul/24/make-environmental-damage-a-war-say-scientists-geneva-convention" target="_blank">headlines</a> that <a href="https://www.vox.com/future-perfect/2019/7/26/8931699/environment-war-crime-scientists-nature-geneva-convention" target="_blank">misleadingly</a> said the scientists want environmental destruction to be made a war crime.
But environmental destruction is already recognised as a war crime by the International Criminal Court. The existing legal framework governing armed conflict also provides some protections for the environment.
The problem is these protections are inadequate, inconsistent, unclear, and most military behaviour won’t fall foul of these laws.
The legal protections already in place
There are currently four <a href="https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions" target="_blank">Geneva Conventions and three Additional Protocols</a> that are supposed to regulate conduct during armed conflict, sometimes known as the rules of war.
The original four Geneva Conventions, which celebrate their <a href="https://www.redcross.org.au/stories/ihl-blog/gc70" target="_blank">70th anniversary</a> this year, contain no explicit mention of the natural environment.
The use of <a href="https://theconversation.com/agent-orange-exposed-how-u-s-chemical-warfare-in-vietnam-unleashed-a-slow-moving-disaster-84572" target="_blank">Agent Orange</a> (and Agents White and Blue) to defoliate huge spans of land during the Vietnam War led to the introduction of the first specific protections for the environment during armed conflict.
<iframe src="https://www.youtube.com/embed/wUZA0GAMmfI?wmode=transparent&amp;start=0" frameborder="0" width="440" height="260"></iframe>
It’s shaky video to begin with but 18 seconds in you see US soldiers spraying Agent Orange during the Vietnam War.
Following the Vietnam War, two major developments in the law occurred.
The first was the adoption of the United Nation’s <a href="https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&amp;mtdsg_no=XXVI-1&amp;chapter=26&amp;clang=_en" target="_blank">Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Convention</a> (ENMOD) that prohibits the hostile use of environment-altering techniques that have “widespread, long-lasting, or severe effects”.
The second was the inclusion of provisions in Additional Protocol I (API) that <a href="https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/ART/470-750044?OpenDocument" target="_blank">prohibits</a> methods or means intended or expected to cause “widespread, long term, and severe damage to the natural environment” during warfare.
Near impossibly high standards
Both treaties set a very high threshold for falling foul of the prohibitions. API requires that all three elements of damage — widespread, long term, and severe — must be met for military action to be in violation of this provision.
The consequence is that most military behaviour, even when damaging the environment, won’t be in violation of these laws.
Making it even more difficult, the meaning of the three terms differs between the two, and there is ongoing disagreement as to their definition.
<a href="https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img src="https://images.theconversation.com/files/287283/original/file-20190808-144851-ycqfs0.png?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;fit=clip" alt=""></a>
While an understanding was reached to determine the definitions in ENMOD, there is still dispute about the meaning of the terms in API. The definitions provided here are among the more commonly accepted. Shireen Daft, Author provided
The only environmental destruction in recent times that has been considered to meet such a high threshold was the <a href="https://www.theguardian.com/world/2003/jan/19/iraq5" target="_blank">setting alight of Kuwaiti oil fields by Iraqi forces</a> as they withdrew during the 1991 Gulf War.
<a href="https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=1000&amp;fit=clip"><img src="https://images.theconversation.com/files/287291/original/file-20190808-144847-niiysk.jpg?ixlib=rb-1.1.0&amp;q=45&amp;auto=format&amp;w=754&amp;fit=clip" alt=""></a>
A Kuwaiti oil well fire, south of Kuwait City, in March 1991. <a class="source" href="https://commons.wikimedia.org/wiki/File:Kuwaiti_Oil_Well_Fire.jpg" target="_blank">Wikimedia/EdJF</a>, <a class="license" href="http://creativecommons.org/licenses/by/4.0/" target="_blank">CC BY</a>
The <a href="https://uncc.ch/category-f" target="_blank">United Nations Compensation Commission</a> held Iraq liable for the environmental damage caused in Kuwait. But because Iraq was not a party to either ENMOD or API, the Commission applied a unique legal standard derived from <a href="https://peacemaker.un.org/sites/peacemaker.un.org/files/IQ%20KW_910403_SCR687%281991%29_0.pdf" target="_blank">Security Council Resolution 687</a> and Iraq is still paying compensation to Kuwait to this day.
Neither ENMOD nor API specifies that a breach of these provisions constitutes a war crime. This came in 2002 when the <a href="http://legal.un.org/icc/statute/99_corr/cstatute.htm" target="_blank">Rome Statute</a> establishing the <a href="https://www.icc-cpi.int/" target="_blank">International Criminal Court</a> came into force.
The Rome Statute says it is a war crime to intentionally cause “widespread, long-term, and severe damage to the natural environment which would be clearly excessive” to the military advantage to be obtained.
The terms are not defined in the Rome Statute, and what is meant by “clearly excessive” is subjective, and introduces a test of proportionality.
Another Geneva Convention?
A new international agreement that balances the interests of environmental protection and respects the laws on armed conflict could be of enormous benefit.
The existing legal framework is only equipped to deal with direct attacks on the natural environment.
But this ignores the many other ways the environment is affected by conflict. Resources such as <a href="https://edition.cnn.com/2011/12/05/world/africa/conflict-diamonds-explainer/index" target="_blank">diamonds</a>, <a href="https://www.aspistrategist.org.au/the-conflict-mineral-coltan-mining-in-dr-congo-and-australia/" target="_blank">coltan</a>, <a href="https://www.globalwitness.org/en/campaigns/forests/bloodtimber/" target="_blank">timber</a> and <a href="https://www.newscientist.com/article/mg22229692-700-ivory-poaching-funds-most-war-and-terrorism-in-africa/" target="_blank">ivory</a> are all used to help fund conflicts, and this can place enormous stress on the environment.
A particular gap is that no consideration is given in the existing framework to non-human species - to wildlife affected by war or to <a href="https://edition.cnn.com/2019/05/03/europe/beluga-whale-norway-scli-intl/index" target="_blank">animals used for military purposes</a>. Yet conflict has proved the <a href="https://www.icrc.org/en/document/natural-environment-neglected-victim-armed-conflict" target="_blank">biggest predictor</a> of population declines in wild species.
But a new treaty that creates strong, effective, and enforceable protections requires significant political will.
An <a href="https://www.toxicremnantsofwar.info/whatever-happened-to-the-5th-geneva-convention/" target="_blank">attempt</a> was made two decades ago, headed by Greenpeace, but no agreement could be reached. That attempt was made during a time when international cooperation and treaty development was at its highest, following the end of the Cold War.
In the current political and social environment it seems unlikely any attempt for such an agreement would be successful. At best, we would see watered-down protections, no stronger than what is already in place. Thus drafting such a Convention now could do more harm than good, in the long run.
If not a new treaty, then what?
The International Law Commission (ILC) is <a href="http://legal.un.org/ilc/guide/8_7.shtml" target="_blank">about to release its report</a> dealing with the issue of protecting the environment during armed conflict. This was what inspired the Open Letter from the scientists in the first place.
The <a href="http://legal.un.org/docs/index.asp?symbol=A/CN.4/L.937" target="_blank">Draft Principles</a> it is producing are not new principles of law, but those already found in the existing legal framework. Unfortunately the work produced so far continues to use “widespread, long term, and severe” with no clarity as to what they mean.
But they do confirm that all the fundamental principles of the rules of war apply to the environment, and should be interpreted “with a view to its protection”. The environment should not be a target, and the impact on the environment must be taken into consideration in military operations.
The work of the ILC should inform governments of the interpretation of existing law. Governments should then give more attention to the environment in the operational guidelines used by their militaries.
The Australian <a href="https://www.propertyobserver.com.au/https://trove.nla.gov.au/version/39374943" target="_blank">Law of Armed Conflict</a> manual, used by our defence forces, already acknowledges they have a duty to protect the natural environment. The next step is to move beyond this general principle to the specific, and have clear guidelines about what protecting the environment during armed conflict means, in practice.
The International Committee of the Red Cross is also currently updating its <a href="https://www.icrc.org/en/doc/resources/documents/article/other/57jn38.htm" target="_blank">guidelines</a> for all military manuals to ensure the environment is a consideration to be evaluated during all military operations.
While the world might not yet be ready to consider a new Geneva Convention relating to the environment, the survival of our natural environment does depend on changes being made to the way the war is conducted.<img src="https://counter.theconversation.com/content/121180/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important; text-shadow: none !important;">
Shireen Daft, Lecturer, Macquarie Law School, Macquarie University
This article is republished from <a href="http://theconversation.com" target="_blank">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/environmental-destruction-is-a-war-crime-but-its-almost-impossible-to-fall-foul-of-the-laws-121180" target="_blank">original article</a>.
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Environmental destruction is a war crime, but it’s almost impossible to fall foul of the laws: Shireen Daft

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GUEST OBSERVATION
In the midst of England’s housing crisis, when many young people face <a href="https://www.theguardian.com/business/2018/aug/09/rents-in-uk-will-rise-for-next-five-years-experts-predict" target="_blank">rising rents</a> in major cities, alternative forms of accommodation have emerged. <a href="https://www.london.gov.uk/sites/default/files/plpg.pdf" target="_blank">Property guardianship</a> is one example, where disused buildings are converted into residential quarters, and let out temporarily until the owners make further plans for the buildings.
The arrangement helps keep squatters out, offers young people more affordable rent and allows the owners to <a href="https://liveinguardians.com/owners" target="_blank">avoid paying</a> the <a href="https://www.gov.uk/apply-for-business-rate-relief/exempted-buildings-and-empty-buildings-relief" target="_blank">higher rates</a> imposed on empty buildings. It might sound like a win-win situation for tenants and building owners, but in a sellers’ market, where tenants are easy to find, landlords can be less concerned with keeping accommodation in good repair.
<a href="https://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-8185" target="_blank">In response</a> to reports of hazardous conditions the UK government passed <a href="https://theconversation.com/renters-in-england-can-now-sue-landlords-over-mouldy-cold-or-noisy-properties-an-expert-explains-93299" target="_blank">a new law</a> which gives tenants in England and Wales the right to demand a basic standard of accommodation. This builds on tenants’ existing rights, which include <a href="https://www.gov.uk/tenancy-deposit-protection" target="_blank">deposit protection</a> and <a href="http://england.shelter.org.uk/legal/security_of_tenure/notices/notices_assured_shorthold_tenancies/section_21_notices" target="_blank">longer notice periods</a>.
Yet the law for property guardians remains unclear: if they wanted to take their landlord to court to enforce basic repairs under the new law, a judge could rule that they are not tenants at all – merely licensees, which would leave them without legal protection.
This has happened already: while in one 2017 case a property guardian was <a href="https://nearlylegal.co.uk/2017/02/aint-way-property-guardians-licences/" target="_blank">held to be a tenant</a>, in another 2018 case <a href="https://nearlylegal.co.uk/2018/10/property-guardians-licence-not-tenancy-in-office-building/" target="_blank">the guardian was held</a> to be a licensee. In each case, the lower court judges took different positions on how to interpret the law.
If property guardians find themselves needing to appeal a judge’s ruling, in order to secure repairs for their home, they would <a href="https://whaymand.wordpress.com/2019/03/20/article-old-issues-new-incentives-new-approach-property-guardians-and-the-lease-licence-distinction/" target="_blank">have to take the matter</a> to a higher court. This raises two difficult issues: for one thing, should it be the guardians’ job to take an active role in settling the law in the appeal courts, rather than leaving it to parliament – and for another, how should such challenges be funded?
Review overdue
The law is conventionally divided into lawyers’ law (such as contract law) and public interest law (such as family law and criminal law). Unelected appeal judges can legitimately change lawyers’ law, because its subject matter is less politically sensitive. But public interest law is for elected politicians to change.
When guardians try to enforce repairs against landlords, the case will be governed by both models: the judges decide who is a tenant, while parliament decides on what protections tenants are offered. Conventionally, this is considered legitimate, because if parliament does not like a court’s decision, it can change the law afterwards.
Yet the law determining whether a resident is a tenant was settled the 1970s and 1980s, when <a href="https://www.fabians.org.uk/wp-content/uploads/2017/09/Bach-Commission-Appendix-6-F-1.pdf" target="_blank">legal aid was widely available</a>. Back then, tenants also benefited from <a href="https://www.legislation.gov.uk/ukpga/1977/42/part/III" target="_blank">rent control</a> and <a href="https://www.legislation.gov.uk/ukpga/1977/42/part/I" target="_blank">secure tenancies</a>. Now the context has changed, it’s not surprising that the law needs to be reviewed.
The problem is that taking a case to the <a href="https://www.judiciary.uk/you-and-the-judiciary/going-to-court/court-of-appeal-home/" target="_blank">Court of Appeal</a> or the <a href="https://www.supremecourt.uk/" target="_blank">Supreme Court</a> is expensive, and disproportionately so if one case is considered on its own. Depending on its complexity, by the time a case reaches even the county court costs can reach <a href="https://www.bailii.org/ew/cases/Misc/2016/B67#para56" target="_blank">many thousands or tens of thousands of pounds</a>. Appeals will cost more still.
Protecting public interest
When guardians take landlords to court over tenants’ rights, they’re not just deciding an individual case – they’re also setting a precedent for future cases, which helps to settle what the law actually means. Because of this, such cases are in the wider public interest. The legal aid system has a facility to provide extra funding for such cases – even to appeal.
If members of the public are to be co-opted in settling the law for the public benefit, they should be funded from the public purse. If funding is denied, it doesn’t just affect those bringing the case – it has an impact on the legal system itself, which becomes paralysed and unable to deal with more modern circumstances. And if the law is uncertain, the wider public are at a disadvantage too, because they will not know their rights.
There are nonetheless barriers to this process. Property guardian companies may prefer to settle, rather than risk getting a firm ruling that their residents are tenants, which may undermine their business model. Tenants might also prefer to avoid the stress of litigation and simply decide to find somewhere else to live. But the biggest barrier is the lack of state funding.
In an age of austerity, which has seen <a href="https://www.independent.co.uk/topic/legal-aid-cuts" target="_blank">massive cuts to legal aid</a>, the <a href="https://www.gov.uk/government/organisations/legal-aid-agency" target="_blank">Legal Aid Agency</a> may be unwilling to fund such cases to appeal. But failing to fund public interest litigation because of <a href="https://theconversation.com/uk/search?utf8=%E2%9C%93&amp;q=legal+aid+cuts&amp;sort=relevancy&amp;language=en&amp;date=all&amp;date_from=&amp;date_to=" target="_blank">budgetry concerns</a> is shortsighted and will cost the public in the long run.<img src="https://counter.theconversation.com/content/114943/count.gif?distributor=republish-lightbox-basic" alt="The Conversation" width="1" height="1" style="border: none !important; box-shadow: none !important; margin: 0 !important; max-height: 1px !important; max-width: 1px !important; min-height: 1px !important; min-width: 1px !important; opacity: 0 !important; outline: none !important; padding: 0 !important; text-shadow: none !important;">
Derek Whayman, Lecturer in Law, Newcastle University
This article is republished from <a href="http://theconversation.com" target="_blank">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/property-guardians-live-in-legal-limbo-despite-new-law-to-protect-tenants-from-exploitation-114943" target="_blank">original article</a>.
Main photo: A guardianship property in London. <a href="https://www.flickr.com/photos/sarflondondunc/25962547431/sizes/l" target="_blank">sarflondondunc/Flickr.</a>, <a href="http://creativecommons.org/licenses/by-nc-nd/4.0/" target="_blank">CC BY-NC-ND</a> <a href="http://theconversation.com/institutions/newcastle-university-906"></a>
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UK property guardians live in legal limbo – despite new law to protect tenants from exploitation

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GUEST OBSERVATION
A “granny flat agreement” is an informal arrangement between a parent and their adult child or children. The parent (often elderly) contributes funds to create granny flat accommodation either by modifying a home or by buying a suitable property in the name of the children. In return they agree to provide the parent with a lifetime right to live in the granny flat, or at least until the parent needs residential care.
Many of these arrangements work out well. The older person then enjoys the love and support of having their family close by as they age.
When an arrangement of this kind goes wrong, however, it can seriously threaten the wealth, autonomy and dignity of the elderly parent. If the relationship between the parent and child, or child’s spouse, breaks down and the parent is asked to leave the property, he or she may be left with nothing.
How does the law treat granny flats?
The parent’s only chance of recovering her contribution is to go to court. These court cases depend on applying a complex set of rules.
The parent must prove the contribution was not a gift but that they supplied funds as part of an arrangement that the parties would live together. Agreements creating interests in land need to be <a href="https://www.legislation.nsw.gov.au/#/view/act/1919/6/part4/div1/sec54a" target="_blank">in writing</a>, and usually there is no written agreement.
The court can apply <a href="https://www.translegal.com/legal-english-dictionary/equitable-principle" target="_blank">equitable principles</a>. A parent who contributed to improving the property ought to have the contributions back, or a proportionate share of the property returned if the arrangement ends prematurely, because it is unjust for children to retain the benefit of the contribution without providing the granny flat.
Where the court finds that the parent relied on a promise by the child that the parent would have an interest in the house, or at least a right to live with the child for life, the child can be required to repay the contribution.
This often means the child must sell their house if they cannot refinance to obtain the money to pay the parent. If the parent is entitled to a share of the property, the house has to be sold to realise the parent’s share.
The problem for parents is that court cases cost money, unless Legal Aid is available, but only parents who are truly destitute qualify for assistance. The parent has to produce evidence of the arrangement or the promise. They often have to recount conversations from many years ago to prove there was an arrangement. The children have to spend money on their own lawyers.
Parents and children very rarely put these agreements in writing and almost never consult a lawyer. Sometimes, to help the child get finance, a parent may have told the lender the contribution was a gift.
All this makes court cases complex, difficult and expensive.
In New South Wales, the <a href="https://www.propertyobserver.com.au/https://www.legislation.nsw.gov.au/%7E/view/act/1984/147" target="_blank">Property (Relationships) Act 1984</a> may apply to granny flat disputes, but the parent still has to show how they contributed to the child’s property. Other states and territories – including <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/ra2008173/" target="_blank">Victoria</a>, <a href="https://www.legislation.sa.gov.au/LZ/C/A/DOMESTIC%20PARTNERS%20PROPERTY%20ACT%201996/CURRENT/1996.51.AUTH.PDF" target="_blank">South Australia</a>, <a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/tas/consol_act/ra2003173/" target="_blank">Tasmania</a> and <a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/act/consol_act/dra1994253/" target="_blank">ACT</a> – have similar laws for couples, which might apply to family arrangements. However, the NSW legislation is broader, which makes things worse for parents outside NSW.
When a dispute arises, the parties usually want to resolve the matter as quickly and as cheaply as possible. But court cases can take a year or more to get to hearing. Affidavits must be prepared and financial documents reviewed. During this time the parent may be living in emergency housing, often at public expense.
The picture gets worse if the child’s marriage breaks down. The parent’s claim then gets taken into family property proceedings between the child and their spouse in the Family Court or Federal Circuit Court. This can take even longer than going to the Supreme Court.
A better way to resolve disputes
Parties to these disputes need fast access to a system of practical rules for separating the parties’ property interests, and one that offers early mediation. These rules would cover factors such as increases in the value of the property, how long the parties lived together, what benefits they received, and other discretionary considerations. Such rules might provide the basis for a set of statutory guidelines for a tribunal to apply.
Civil and administrative tribunals <a href="http://www.ncat.nsw.gov.au/Pages/going_to_the_tribunal/going_to_the_tribunal.aspx" target="_blank">emphasise informality and conciliation</a>, so giving these tribunals jurisdiction to resolve granny flat disputes according to statutory guidelines would arguably be more efficient than going to the Supreme Court or Family Court.
Parties really should seek legal advice on granny flat arrangements before they commit to the deal. But parents often trust their children and are optimistic that they can live together as a family. If a lawyer provides advice to an elderly parent individually and with an awareness of their client’s possible incapacity or vulnerability to undue influence, that gives all parties a chance to decide what they want to happen if the relationship breaks down.
Centrelink <a href="https://www.smh.com.au/money/how-to-give-property-to-your-kids-and-keep-the-age-pension-20151118-gl1ypg" target="_blank">recognises granny flat arrangements</a>, so parents’ contributions are not automatically <a href="https://www.humanservices.gov.au/individuals/enablers/gifting" target="_blank">treated as a gift</a>. Gifting attracts an asset test under which the parent might be deemed still to have the funds contributed, which could reduce their pension.
The children can also be worse off if the Tax Office considers that the child accepting the contribution made a capital gain because the parents’ contribution increased the value of the home.
Although the Australian Law Reform Commission has <a href="https://www.alrc.gov.au/publications/elder-abuse-report" target="_blank">looked at some aspects of this issue</a>, action is need to reduce the complexity of existing equitable and statutory rules. Elderly parents should not have to take their children to court in expensive legal proceedings to retrieve the contribution that was meant to ensure they had a secure home in their later years.
Patricia Lane, Senior Lecturer, University of Sydney
This article is republished from <a href="http://theconversation.com" target="_blank">The Conversation</a> under a Creative Commons license. Read the <a href="https://theconversation.com/when-granny-flats-go-wrong-perils-for-parents-highlight-need-for-law-reform-103335" target="_blank">original article</a>.
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When granny flats go wrong – perils for parents highlight need for law reform

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GUEST OBSERVER
On 11 September 2017, the NSW Court of Appeal entered final orders allowing the appeal of a District Court judgment that had found against a managing agent of a residential property, in favour of its owners and tenant, as to liability to various people injured when the property's balcony collapsed.
The decision confirms that:
<ul>
<li>appointing a managing agent to manage residential rental premises will not necessarily be a defence to a claim for personal injury damages;</li>
<li>an entitlement to a contractual indemnity may be reduced by reason of that party's contributory negligence;</li>
<li>a tenant who is on notice of a risk of harm may be found liable to lawful entrants if there are measures the tenant could have taken to remove the risk; and</li>
<li>section 5B(1) of the Civil Liability Act 2002 (NSW) requires accurate identification of the actual risk of harm faced by a plaintiff.</li>
</ul>
Background
Deepak Bhide and Alka Bhide (the owners) owned residential property at Collaroy, NSW (the property). In 2005, they appointed Libra Collaroy Pty Ltd (the agent) to manage that property pursuant to an Exclusive Management Agency Agreement (Residential) (MAA). There was a long history of complaints regarding the state and structural integrity of the balcony from the tenant of the property, Joanne Gillies (the tenant), who also happened to be an architect.
On 15 June 2012, a group of school friends were gathered on the balcony at the property. The balcony collapsed.
Four of the people injured in the collapse commenced proceedings in the District Court of NSW against the owners and the agent. The tenant was the mother of one of the victims. She was not home when the balcony collapsed, but she also sued the owners and the agent for nervous shock.
The agent and owners issued cross claims against each other seeking an indemnity from the other, firstly, as joint tortfeasors pursuant to section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) and, secondly, pursuant to a contractual indemnity clause in the MAA.
The owners and the agent also issued cross claims on the tenant for her failure to lock access to the balcony in circumstances where she was fully aware of the potential risk of harm, as she had made multiple complaints to the agent that the balcony was not structurally sound.
First Instance decision
On 29 September 2015, a liability trial took place before Judge Curtis of the District Court. On the last day of trial, his Honour delivered an ex tempore judgment, finding that:
<ul>
<li>the agent was 100% liable to the plaintiffs;</li>
<li>the owners discharged their duty of care as owner to the plaintiffs by delegating the management of the property to the agent; and</li>
<li>the tenant did not breach any duty of care she owed to any of the plaintiffs.</li>
</ul>
His Honour found that the cause of the balcony collapse was, in essence, a deterioration of steel bolts caused by weather and poor maintenance. The agent had obtained and passed on various quotes for repairs to the balcony to the owners, who had rejected them. His Honour found that the agent should have gone further than simply passing on the quotes and should have instead specifically recommended that the owners obtain expert advice to assess the structural integrity of the balcony.
His Honour also found that the owners were not liable to the plaintiffs in tort because they had discharged their duty owed to the plaintiffs by appointing a managing agent to manage the property.
His Honour further found that the tenant had discharged her obligations owed to the plaintiffs by complaining to the agent about that the balcony was not structurally sound.
The agent appealed.
Appeal
On appeal, the agent did not challenge the finding that it was liable, but instead challenged the findings that the owners and the tenant were not liable to the plaintiffs.
The agent also challenged the decision on the ground that Judge Curtis had failed to consider and apply section 5B of the Civil Liability Act, in not identifying the precise foreseeable risk of harm, which, in this case, was the risk of injury to people due to the failure to properly investigate and maintain the structural integrity of the balcony.
The Court of Appeal found that:
<ul>
<li>Judge Curtis had erred in failing identify the relevant risk of harm and whether the owners and/or the tenant knew, or ought to have known, of the risk as required by section 5B of the Civil Liability Act. Accurate identification of the risk is necessary to determine what constitutes a reasonable response to the risk;</li>
<li>a reasonable person in the position of the owners should have formed the view that the agent had not properly discharged its duty and that they should have expressly instructed the agent to engage an expert to investigate the structural integrity of the balcony. The owners could not rely on their delegation to the agent in answer to their alleged breach of duty;</li>
<li>the owners succeeded in their claim for a contractual indemnity from the agent, but the entitlement to a contractual indemnity should be reduced by 30% by reason of their contributory negligence pursuant to section 9 of the Law Reform (Miscellaneous Provisions) Act in failing to expressly instruct the agent to engage a suitable expert to investigate the structural integrity of the balcony;</li>
<li>the tenant was liable to contribute 20% to the agent's liability to the plaintiffs by reason of her failure to lock access to the balcony in circumstances where she knew about potential structural issues; and</li>
<li>apportionment of liability between the agent, owners and tenant should be 50%, 30% and 20%, respectively.</li>
</ul>
Final Orders
On 11 September 2017 the Court of Appeal made orders giving effect to its reasons, which, in addition to setting aside various orders made by Judge Curtis, were essentially:
<ul>
<li>Judgment for the plaintiffs against the owners.</li>
<li>Judgment for the owners against the agent.</li>
<li>Any damages recovered by the owners from the agent to be reduced by 30%.</li>
<li>Judgment for the agent against the tenant.</li>
<li>The tenant is to contribute 20% to the agent's liability to each of the plaintiffs.</li>
<li>The owners and the tenant to pay the agent's appeal costs.</li>
<li>The agent and the owners to each bear their own costs of their cross claims in the District Court.</li>
<li>The tenant to pay the agent's cross claim costs in the District Court.</li>
<li>The agent, owners and tenant are to respectively pay 50%, 30% and 20% of the plaintiffs' costs.</li>
</ul>
Implications
If a party is entitled to be indemnified pursuant to a contractual indemnity clause, the amount of indemnity can be reduced by operation of section 9 of the Law Reform (Miscellaneous Provisions) Act.
In claims against real estate agents and property owners by injured plaintiffs, a tenant may bear some responsibility if they did not act as a reasonable tenant to avoid a risk of injury, if measures were available to them to prevent the risk of harm. Presumably, a tenant will always know about the risk; they will usually be the source of the complaint. Whether they can take steps to prevent the harm occurring will depend on what is required. In this case, the Court found the tenant could have simply locked the door, blocking access to the balcony.
Gilchrist Connell acted for the successful agent.
Paul Kozub is principal at Gilchrist Connell (Sydney) and Catherine Hing senior counsel at Gilchrist Connell (Sydney).
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Shared blame in the collapsed Collaroy balcony court decision: Gilchrist Connell

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Paul Wilsher, a Brisbane real estate agent has been disqualified from working in the industry for 10 years by the Brisbane Magistrates Court following an Office of Fair Trading (OFT) investigation.
Paul James Wilsher, director of Spot4Rent, was also fined $15,000 and ordered to pay court costs after he pleaded guilty to misappropriating trust money.
A conviction was recorded. He was ordered to pay the fine and court costs within three months, or will face imprisonment.
He ran the business for six years.
The court heard that between 1 January 2016 and 13 May 2016 Mr Wilsher transferred a total of $14,056.41 from Spot4Rent’s trust account to his personal account for personal expenses.
The OFT appointed receivers over the business in July 2016 and found an $18,375.41 shortfall in the trust account.
Affected consumers were repaid loses via a claim fund administered by the OFT, which Mr Wilsher will be pursued to reimburse.
The court further heard that Mr Wilsher knowingly failed to appoint an auditor and have his trust account properly audited for the financial period 1 October 2015 to 30 September 2016.
In sentencing, the court considered Mr Wilsher’s guilty plea, his personal circumstances and remorse, but said a strong message had to be sent to other real estate professionals.
Fair Trading Executive Director Brian Bauer said Mr Wilsher’s behaviour was disappointing and a stain on the real estate industry.
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Brisbane estate agent disqualified for decade after trust fund misappropriation

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Accounting giant KPMG's property consulting arm has been accused by real estate group GDI Investment Management of misleading advice that lifts in a commercial building had been upgraded in 2010 in spite of no upgrades since their installation in 1992.
The listed GDI Investment Management says KPMG SGA's due diligence report contained untrue and misleading findings about the lifts in Stanley Place, a 12-storey commercial building in Townsville.
There are three passenger lifts and two combined passenger-goods lifts, according to a statement of claim filed in the NSW Supreme Court, reported The Australian Financial Review.
GDI bought the building in June 2016 through a trust, with GDI holding a 45 per cent stake in the trust, the AFR said.
The company also alleges that KPMG SGA’s report on the condition of the lift controllers was based on a promotional memo prepared by the selling agent Knight Frank and an oral statement of the vendor's facilities manager Lee Messenger, rather than its own inspection and a professional evaluation.
GDI and KPMG declined to comment, citing the ongoing court case.
KPMG SGA was acquired in 2014 to provide end-to-end services in property transactions to meet the demand from Asian and other offshore investors.
In February 2016, KPMG SGA made a finding that a lift upgrade was carried out in about 2010 which replaced the electronic lift control system.
GDI cites that part of the report as "untrue or misleading" because the lift controllers had not been replaced or upgraded since the lifts were installed in 1992, the AFR said.
It alleges that KPMG SGA's finding that no expenditure would be required for the lifts in the next 10 years was unreasonable.
It says it bought the Stanley Place building in June 2016 based on the report and is now seeking damages and compensation from KPMG.
In its defence document, KPMG SGA has denied the allegations.
KPMG SGA says the main processor circuit cards were upgraded progressively, new door controllers and associated components were installed and there was a progressive upgrade of control circuit boards, auxiliary relays, electrical contractors and other components under the service agreement with lift manufacturer Kone.
It also denies relying on Knight Frank's promotional memo and the vendor's facilities manager's statement in preparing its due diligence report. 
The accounting firm says GDI is not entitled to damages or compensation.
Separately, KPMG is defending a class action brought by law firm Piper Alderman which alleges the firm gave misleading advice to the board of failed junior miner Discovery Metals by inflating the value of the company's principal asset by as much as 40 per cent.
 
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KPMG SGA, GDI in legal battle over due diligence report of office building

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The NSW state government and the Roads &amp; Maritime Services have been ordered by the NSW Supreme Court to disclose documents justifying the compulsory acquisition of ASX-listed developer Desane Group Holdings' residential development site in Sydney’s Rozelle for the WestConnex project.
The third stage of the project involves a widening of the M4 motorway and connection to the M5 and will involve digging tunnels in Rozelle and surrounding inner west suburbs. The cost would be around $1.8 billion. 
The  documents relate to the "contemplated uses of the subject property in connection with Stage 3 of the WestConnex project and after completion of Stage 3 of the WestConnex project".
The government, through the Roads and Maritime Services, offered to pay Desane $18.4 million for its 5,274 sqm site at <a href="https://desane.com.au/for-lease/68-72-lilyfield-road-rozelle/">68‐72 Lilyfield Road</a>, which could yield a 200-apartment complex worth more than $100 million for use as a "staff carpark”, The Australian Financial Review reported.
At a hearing on Friday, Justice David Hammerschlag asked the state and the RMS, which is acting for the Sydney Motorway Corporation (SMC), to provide documents that have been created since January 1 to Desane. 
Justice Hammerschlag said if the state wanted to acquire Desane's property, Desane was "entitled to know the true reason why", according to a note issued to the ASX.
The court also refused to hear the state's application to remove itself from proceedings, according to the ASX announcement.
The developer had requested the NSW government to reconsider the acquisition, and also invited the NSW Premier Gladys Berejiklian to a meeting, which she declined.
The State and the SMC have also been asked to disclose to Desane documents showing the proposed structure of any sale of shares in SMC and SMC had to produce its company constitution, and the constitutions of its subsidiaries.
The next court date is on November 20.
 
 
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Supreme Court asks state, RMS to disclose documents to Desane over compulsory acquisition

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The NSW Land and Environment Court has ruled in favour of a garden outlet owner in Sydney’s Haberfield over a valuation dispute between him and the Roads and Maritime Services which acquired the property.
Judge Sheahan ruled that the applicant, Dan Wei Zheng’s claim for market value through his valuer was preferred to the government valuer.
The RMS compulsorily acquired the land owned by Dan Wei Zheng at 269 Parramatta Road, Haberfield on 15 December 2015 for the construction of Stage 1(b) of the NSW government’s WestConnex Motorway M4 East Project, involving the extension and widening of the M4 Motorway from Parramatta to Haberfield. 
The land area is 1,353.2 sqm with a potential floor space area of 2,029.9 sqm (if redeveloped) and contained buildings originally constructed around 1970 for use as a service station, but were used as a warehouse and display area for the sale of stone products such as bench tops, statues and garden features, noted the judge.
Valuers from the two sides, Messrs John Sanidas for the original owner and government valuer Lunney said the direct comparison method should be the primary valuation method.  
Even, adopting the same valuation method, the two experts arrived at two different market valuations being $805,000 apart. 
David Lunney determined market value at $3,755,000 or $1,850 of potential gross floor area. 
Dan Wei Zheng’s case for valuation was determined by Sanidas who found the market value at $4,560,000 or $2,250 of potential gross floor area. 
The valuer-general valued the land for RMS at $3,635,000 or $1,790 of potential gross floor area.
“In general terms, I prefer Sanidas’s evidence to Lunney’s, but I need now to explain my reasons,” said the judge.
When the two experts adopted secondary (or check) valuation method i.e capitalisation of (notional) rent a difference of $1,760,000 was revealed. 
The government valuer determined ($2,500,000) whist Sanidas determined ($4,267,000). 
Sanidas said the close assessments based on the primary and secondary methodologies was largely due, in his view, to competing property market segments. For example, the owner occupier and or investment/development market segment each saw comparable underlying land value.  
The judge noted that “given the disparity between the valuer’s applications of their secondary/check method – capitalisation of (notional) rent – I do not consider it necessary or useful to go into detail, beyond noting that the figure arrived at by Sanidas, when employing this method ($4,267,000) is reasonably comparable to the value at which I have arrived after my analysis of the valuation evidence”.
While the valuers agreed regarding what constituted the highest and best use of the land, as it existed at the date of acquisition, Sanidas said the land had the further advantage of being able to continue indefinitely in a profitable manner. 
The valuer for the RMS submitted that the improvements to the site at the date of acquisition represent a significant underdevelopment, which were at the end of their economic and functional life; albeit nevertheless capable of ongoing use. 
Sanidas said the jurisdiction of the NSW Land and Environment Court allow where a person or business is dissatisfied with the award of compensation determined by the Valuer-General in connection with the compulsory acquisition of land, that person or business is entitled to have that determination reviewed by a judge of the Land and Environment Court, in what is known as ‘Class 3’ of the Court’s jurisdiction.  
Class 3 is unique, because it represents the only forum in which an applicant may go to have their compensation reviewed by a third party. 
The valuers identified the “Bunnings precinct” as a prime retail hub for, particularly, industrial and construction goods. That hub benefitted from exposure to very heavy passing traffic, but there were competing views as to how far from the Bunnings corner along Parramatta Road, the precinct extended to the east (city bound). 
But there was general agreement between the expert valuers as to the number of adjustments to apply to the evidence. The three adjustment factors included:-      
1.The Bunning Precinct - location advantage due to large traffic volumes 
2.Corner advantage - evidence showing premiums paid for corner sites 
3.Monthly market improvement- evidence showing market growth of 1.5% per month or 18% per annum. 
The adjustment — 5% of 15% — to be applied to the evidence was for the court to determine. 
The court’s adjustment ultimately saw a judgement for market value $4,560,000/$2,250 sqm generally in line with Sanidas’ determination of market value. 
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Valuation court rules in favour of Haberfield site owner whose site was acquired by RMS

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Woolworths has won its legal battle with Harris Farm to prevent organic grocer About Life from transferring its lease at Kiaora Lane precinct in Sydney’s Double Bay to the latter.
The dispute started after About Life sold the store to family-owned grocer Harris Farm for $10 million in April and agreed to transfer the 77-year lease as part of the sale.
Woolworths went to the Supreme Court of NSW saying it had the <a href="https://www.urban.com.au/expert-insights/investing/73949-woolworths-harris-farm-lock-horns-in-court-over-shop-lease-in-sydney-s-double-bay-shopping-centre" target="_blank">first right of refusal</a> over About Life's retail lease,  while Harris Farm alleged that Woolworths was engaging in anti-competitive practices by entering into leases that gives the supermarket giant the first right of refusal.
Justice Arthur Emmett ruled in the supermarket giant’s favour that it was entitled to an order restraining About Life from transferring the lease to Harris Farm unless it first offered the lease to Woolworths, The Daily Telegraph reported.
Woolworths is now expected to make an offer to take over the site, which is still occupied by About Life.
The organic grocer has been planning to close its Double Bay outlet to focus on its flagship store at Bondi Junction.
The decision would allow Woolworths to open a smaller retail offering such as a Woolworths Food Quarter on the site when About Life vacates the premises.
According to the judgement, Woolworths’ general manager of property management Matthew Franich said the supermarket giant was “content” to see About Life lease the space because it had dropped plans to build a Thomas Dux there and because of the “symbiotic relationship” that existed between Woolworths and About Life.
“Mr Franich said that, conversely, if the subject premises were occupied by a retailer that sells many of the same products that are sold by the Woolworths supermarket, as a typical Harris Farm store would, Woolworths would lose the benefit that the co-location with About Life brings to the supermarket, without obtaining any offsetting benefit,” it said.
According to Franich, Woolworths has plans for a “smaller innovative retail offering such as a Woolworths Food Quarter”, which would predominantly provide ready-to-eat meals in a similar fashion to About Life.
It could expand the supermarket chain’s “Click &amp; Collect” point for online shoppers and a Dan Murphy’s cellar business.
Woolworths already has a flagship supermarket at Kiaora Place.
But the judgement noted that Harris Farm had no knowledge of Woolworths’ first right of refusal and its  CEO Angus Harris was assured by About Life earlier that there were no restrictions on the organic grocer selling its interest in the premises.
Justice Emmett dismissed Harris Farms’ allegations the supermarket giant had breached an “enforceable undertaking” with the Australian Competition and Consumer Commission to not enter into restrictive, anti-competitive leases.
A Woolworths spokeswoman said it welcomes the decision upholding its first right of refusal while About Life and Harris Farm did not comment.
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