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Derek Legal Blog

Author: Derek Legal


Derek Legal Blog

Number of blogs returned: 41 to 45 records of 45

Head-on accident on country road

When driving on a single lane country road the practice of drivers heading towards each other and the Transport Operations (Road Use Management-Road Rules) Regulations 2009 Qld 132 and 133 require that each vehicle shares the bitumen. So, the practice is for each vehicle to have their left-hand tyres off the bitumen so that they are each as far as practical to the left to allow the vehicles to pass safely.

In Gary Hopman QBE Insurance (Pty Ltd), Justice McMeekin in the Supreme Court at Mackay was required to determine whether the Defendant driving a car towing a caravan had kept as far to the left as practicable so as to avoid a collision. The Plaintiff collided with what was probably the wing mirror of the Defendant’s vehicle causing his motorcycle to leave the road and he suffered injury. The Plaintiff alleged that the Defendant had not kept as far as practicable to the left and alleged that the Defendant did not follow the usual practice, leaving all of his wheels on the bitumen thereby not leaving him sufficient room to pass safely. The Plaintiff was travelling with two companions on motorcycles who were in front of him. Both those motorcycles passed the car and caravan safely. It was accepted by all parties that the motorcycles could not move off the bitumen to any speed because of the loss of control given the drop off from the bitumen to the gravel. The Plaintiff failed in his case for three reasons:

  • Firstly, the investigating Police Officer who knew the road was of the opinion that if the Defendant’s car and caravan remained on the road on the bitumen surface, motorcycles could not have passed.
  • Secondly, the two leading motorcycles had safely passed the car and caravan.
  • And thirdly, in his interview shortly after the accident with the investigating Police Officer, the Plaintiff said that he had seen the other two leading bikes slowing down, had to brake heavily and moved to the right which would have been towards the car and caravan.

Although Justice McMeekin found for the Defendant he assessed damages as he was required to do at $760,553.68.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 09 January 18

What is conveyancing?

What is conveyancing?

Conveyancing is a necessary process in both buying or selling property. A professional conveyancer or Solicitor helps with the settlement and title transfer process by ensuring that their client is meeting all legal obligations and that their client’s rights are protected during this transaction. Both buyers and sellers will need to use the services of a conveyancing professional, because both sides will have certain obligations that they must fulfil in a Contract of Sale.


What You Do

Instruct the Real Estate Agent to forward us the signed Contract of Sale by fax/email/post (or send us a copy yourself)

— If you are obtaining finance, get this Application underway.
— Organise Building and Pest Inspections.

What We Do

Receive and peruse the signed Contract from the Real Estate Agent or the Buyer.
Open the file and send you a Conveyancing Package containing a specific advise and forms for signing in relation to your Stamp Duty Concessions if applicable.


Finance Condition

We will advise the Sellers Lawyers of the outcome of your Finance Application and/or seek any extensions that you request. Advise us of the outcome of your Finance Application as soon as possible.

Building and Pest Condition

We will advise the Sellers Lawyers of the outcome of your Building and Pest Inspections and/or seek any extensions that you request. Advise us of the outcome of your Building and Pest Inspections.


Once Contract is Unconditional

– Prepare Transfer Documents and forward to Sellers Lawyers for signing
– Begin Searches on the Property.
– We will conduct the Standard searches

– Once we have these back we will review them

– Attend to Stamping of Transfer Documents and Contract.
– Calculate Settlement figures and/or any adjustments.
– Liaise with your Financier in preparation for settlement and ensure that funds will ready for drawdown.

– We can sign Transfer Documents (as your Lawyer) on your behalf
– When you get these, read any information that we have provided as well as reviewing them for yourself.
– If there is anything that you are unhappy with or wish to question please advise us.

Provide us with funds for Stamp Duty (unless Stamp Duty is being paid at settlement by your lender)

– If you need to provide any additional funds in order to complete the purchase you will need to ensure these are Telegraphically Transferred at least 1 day prior to settlement, to our Trust Account.
– Book Settlement.



– We will attend settlement on your behalf and conduct any required searches on the day of settlement to ensure there are no further notations on the title.
– We will deliver the necessary documents required for Settlement to your Bank, and accept the funds from them for your Purchase.
– We will pay the balance purchase price to the Sellers Lawyers.
– You will need to conduct a pre settlement inspection of the property. We recommend doing this the morning of settlement if possible. If there are any problems notify us IMMEDIATELY.
– You will not need to attend settlement.


After Settlement

We will advise the Agent that settlement has been effected and request them to release the keys to you.

If you did not need finance, we will attend to the registration of the Transfers and Release of Mortgage. If you did obtain finance this will be attended to by your bank.

We will collect the keys from the Agent (unless there were other instructions regarding the keys)

We will transfer any insurances you need to, and attend to connections such as Gas, Electricity, Phone etc.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 18 December 17

Have you "rear ended" anyone in a motor vehicle accident recently?

The prevailing view is that if you run into the back of another vehicle you are responsible for the damage caused.

Not necessarily!

The Supreme Court of Queensland recently had the opportunity to look at this matter. An accident occurred involving a utility and a truck travelling in the same direction on the highway, when the utility slowed the truck attempted to overtake it, and at that the utility did a right-hand turn and a collision occurred. The driver of the truck said the, driver of the utility failed to indicate.

The Supreme Court stated the following principles

 – The driver of the following vehicle is in a better position that the leader to observe certain matters. However, one must not over-emphasise the responsibility of the following driver or the importance of that driver’s opportunity to avoid the risk created by the carelessness of another. The driver of a following car is not inevitably liable should his or her vehicle collide with the vehicle in front. Liability and comparative culpability must be determined by reference to the particular facts of the case.

The Trial Judge Justice Applegarth found that both drivers were equally to blame for the accident. This was so because if the driver of the utility had indicated or kept a proper lookout, then the driver of the truck would not have attempted to overtake him on the right hand side, and if the driver of the truck had slowed when he saw the utility and travelled behind the utility, the utility would have made the turn and the collision would have been avoided.

So…. If you have rear ended somebody you may not be liable for the damages caused.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 13 December 17

When a Binding Financial Agreement made under the Family Law Act is not binding

The Family Law Act provides that the parties to a marriage may enter into a Financial Agreement that regulates what should happen with their property on the termination of the marriage. Similar provisions apply to de facto relationships. A binding Financial Agreement ousts jurisdiction of the Court provided it is a valid agreement.

To be valid the agreement must be entered into after independent legal advice has been given by a legal practitioner, with the advice dealing with the rights of the parties and the advantages and disadvantages of the agreement. The advice must be provided prior to signing the agreement. It is also a requirement that there is a signed statement by the legal practitioner providing that the advice has been given prior to the signing of the agreement.

The question of determining whether a Financial Agreement is valid and enforceable is determined by a Court, applying the principles of law and equity that are applicable in determining the validity and enforceability in affected contracts. This means that any agreement that was obtained by unconscionable conduct or undue influence or duress is liable to be set aside.

In a recent case, where the wife had in fact received advice not to enter into the agreement, the trial judge found that the wife had no choice but to enter into the agreement and set out six reasons for that conclusion. The trial judge concluded “(i) her lack of financial equality with her husband; (ii) her lack of permanent status in Australia at the time; (iii) her reliance on her husband for all things; (iv) her emotional connectedness to their relationship and the prospect of motherhood; (v) her emotional preparation for marriage; and (vi) the “publicness” of her upcoming marriage.” Thorne v Kennedy [2017] HCA 49 (8 November 2017). So, under those circumstances, the trial judge found that the agreement should be set aside for duress and undue influence and this decision was upheld by the High Court of Australia.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 11 December 17

Just and equitable: a condition precedent to making a Property Order under the Family Law Act

Section 79 of the Family Law Act provides for a Court exercising jurisdiction under the Act, to make an Order altering the interests of parties to a marriage in property to which one or both of those parties are entitled.

In exercising that jurisdiction, the Court takes a tour step approach. Firstly, it assesses the extent of the property of the parties and determines its value. Secondly, it considers what contributions have been made by the parties including direct and indirect contributions of a financial character and non-financial character and contributions to the welfare of the family including contributions as homemaker and parent. Thirdly, it considers the circumstances which relate to the present and future needs of the parties and their means and resources, earning capacity both actual and potential. Fourthly, it considers, in relation to the findings in the first three steps, what Order is just and equitable in all the circumstances of the particular case.

Note that the last step requires that the finding is just and equitable. However, Section 79(2) of the Act provides that the Court shall not make an Order under Section 79 unless it is satisfied in all the circumstances that it is just and equitable to make the Order.

The High Court has held that Section 79(2) must be satisfied first before the Court can embark on the four-step exercise.

This means that there is not an absolute right to an Order altering property interests at the end of a marriage or a de facto relationship. In a short marriage the circumstances may be such that it would not be just and equitable to alter the parties’ property interests, for instance, where one party entered the marriage with all or most of the property and the other party contributed little during the course of the marriage. Alternatively, where in a long marriage, the conduct of the parties is such that may have kept their property and financial resources separate and not have made contributions towards the others parties’ property.

In many cases however, the requirement of being just and equitable is readily satisfied, for instance, where the parties have been together, jointly acquired and used the property and because of the breakdown of the marriage or the de facto relationship, the joint use is no longer possible.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 06 December 17

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