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Thursday, 28 July 2016

Credit card late payment fees to stay

A multimillion-dollar class action that has been running through the hierarchy of courts for the past 6 years between ANZ bank and 43,500 ANZ customers has today finally been decided once and for all.

The main issue that was the subject of the proceedings was the legality of credit card late payment fees.

ANZ customers took ANZ to Court on the basis that the late payment fees for credit cards are extravagant, unenforceable and amounted to unconscionable conduct.

In 2014 the Federal Court found that some of the bank’s charges were illegal as the late payment fee for a credit card was $35.00. It is now known that the actual cost to the bank was often as little as 50 cents.

However, in 2015 the full Federal Court reversed this decision. As a consequence, the solicitors for the customers of ANZ sought leave to appeal to the High Court of Australia.

In 2015, Mr Watson, solicitor for the ANZ customers, stated that the decision to reverse the finding that the bank’s charges were illegal,

“runs the risk of turning the doctrine of penalties and the statutory provisions on which we rely into empty vessels devoid of any practical or meaningful content, and significantly reducing the protection for all consumers in Australia.”

Today, the High Court of Australia handed down its decision over the matter.

It was ruled that the proceedings brought by the 43,500 ANZ customers were to be dismissed and that ANZ are able to charge customers fees, as well as interest, for the late payment of credit cards. It was found that the charges were not established to be “penalties” and that the bank was entitled to recover losses that they sustained due to late payments.

Other big banks including Commonwealth Bank, Westpac and St George also faced similar proceedings as ANZ. Perhaps unfortunately for NAB, a settlement worth $6.6 million in compensation for customers was reached before today’s decision.

In light of the decision today, banks can be comforted in charging their customers who are late in the payment of their fees.

This decision is also likely to be seen as a big win for telecommunication and energy companies in dealing with customers who are late in their payments.
G&B Lawyers
Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000
Mail: GPO Box 1849, Sydney, NSW 2001
M: 0481 287 528
W: www.gandblawyers.com.au



Monday, 25 July 2016

Compulsory Acquisitions – Have you been put on notice?

Government authorities, such as Local Council or the NSW State Government, are able to acquire privately owned land for public purposes.
Recent public examples in NSW include compulsory acquisitions of both residential commercial properties for the construction of WestConnex and the Sydney Metro.

If current headlines are true, the Sydney Motorway Corporation Pty Limited, the body responsible for delivering the WestConnex motorway is on the verge of announcing that further homes and businesses will need to be acquired for the project as it expands.

Homeowners who may have been just on the brink of having their homes acquired, may now find themselves issued with a Proposed Acquisition Notice.

Aside from acquisitions due to major government projects, there are other examples that may hit more closely to home when a Local Council acquires a property for the purposes of performing its functions such as upgrading the sewerage and stormwater drainage facilities in an area. These acquisitions can be equally as surprising and distressing.

What’s the process?

Once an authority has decided to acquire a property, the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) provides the mechanism for determining the amount of compensation to be paid to a landholder.

This Act must be complied with.

Usually, an agreement is sort to be reached between the Landholder and the Acquiring Authority first.

Where this is not possible, the acquiring authority has the power to compulsorily acquire the land for a public purpose.

Where land is to be compulsorily acquired, the Valuer General is responsible for independently determining the amount of compensation payable by the Acquiring Authority.

To assist the Valuer General, both parties generally obtain independent valuations by experts to support their side. Depending on the type and location of the property, the number of experts may range from one real estate valuation to numerous opinions from experts such as accountants, engineers and environmental scientists.

Getting the right advice

Obtaining advice from an experienced lawyer is essential for maximising ones claim.

An experienced lawyer will be able to provide guidance to ensure that an experienced valuer is retained. It critically important that you use a valuer who is capable of preparing a robust valuation that will be difficult for the acquiring authority to refute.

An additional benefit is that reasonable legal costs and expert costs are likely to be paid by the Acquiring Authority.

You can then use the services of seasoned professionals with the peace of mind that you will be obtaining more than the initial offer made by the Acquiring Authority without professionals taking a large cut.

If you have been issued with a Proposed Acquisition Notice or want to know more about the process, please contact Kim Glassborow, Partner at G&B Lawyers on M: 0481 287 528 or kglassborow@gandblawyers.com.au for professional and experienced advice.


G&B Lawyers


Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528

W: www.gandblawyers.com.au


Sunday, 24 July 2016

Create a will - a small price to pay to give your family certainty

Do you have a will?

Or perhaps the better question is, do you have a will that articulates exactly how you want your estate to be distributed should you pass away?

An article published by news.com.au on 18 July 2016 describes the story of a mother who lost her son whilst he was at work. During the family’s grieving period, it was found that the son did not have a will and that the immediate family had no entitlement to the deceased’s workers’ compensation.

However, there was someone else who did have a claim.

The ACT Magistrates Court awarded the workers compensation in the amount of $200,000 to a lady who proved to the Court that she was a dependent of the deceased.

Whilst the deceased’s family had never heard of the existence of the lady, evidence compelled the Court that she was financially dependent on the deceased. Evidence included that the pair had plans to spend their lives together, they were domestic partners and had been in a relationship for eight months. Contrary evidence was given by the deceased’s landlord and a friend of the deceased to the effect that neither had met or seen the lady before. However, the compensation was solely awarded to the lady.

The family of the deceased will never have any certainty as to how the deceased would have wanted his estate to be distributed. It had probably never crossed any of their minds that they needed to prepare for something so tragic.

Whether you are at the beginning of your working life or in the process of winding down, giving a small amount of time to formalising your intentions is a small price to pay for giving your family certainty as to what your final intentions may be.

In our experience at G&B Lawyers, wills are generally not hard to prepare and can take as little as a few hours when you have clear intentions in your mind.

Should you wish to either create or update your will, contact Nathan Buckley, Partner at G&B Lawyers on 0411 067 367 or by email at nbuckley@gandblawyers.com.au.






Thursday, 7 July 2016

NSW EPA’s compliance tools

Sydney Water Corporation (SWC) is wholly owned by the NSW Government.

However, this does not make SWC immune from environmental consequences of management oversights and the inevitable knock on the door from the NSW Environment Protection Authority (EPA).

Recently SWC entered into an enforceable undertaking with the EPA to pay $200,000 to the Parramatta River Catchment Group for the purpose of improving the health of the Parramatta River catchment which was polluted due to SWC’s failure to properly maintain its plant and equipment.

An enforceable undertaking is one approach that the EPA may use when there has been a serious breach of legislation.

Refer to Section 253A of the Protection of the Environment Operations Act 1997 (NSW). In essence, an enforceable undertaking is a written undertaking by a company or an individual to take action to deal with an actual or potential breach of environmental protection legislation.

Should the person or company who entered into the enforceable undertaking breach any of its terms, the EPA has the power to apply to the Court for a number of orders.  Some of the orders that the EPA can apply for include:

-          An order directing the person to comply with the undertaking;

-          An order directing the person to pay to the State an amount not exceeding the amount of any financial benefit that the person has obtained (directly or indirectly) and that is reasonably attributable to the breach; and

-          Any order that the Court considers appropriate.

However, an enforceable undertaking is just one tool in the box that the EPA can use to address actual or potential breach of environmental protection legislation.

Other tools that may be used by the EPA include:

-          Show cause letter;

-          Formal warning;

-          Official caution;

-          Vary, suspend or revoke an Environment Protection Licence;

-          Clean-up notice;

-          Pollution reduction program;

-          Mandatory environmental audit;

-          Penalty notice; and

-          Prosecution.

Most people would want to avoid a situation where they are prosecuted by the EPA for breach of environmental protection legislation.

If this is not possible, mitigating one’s loss is the next best option.

To obtain legal assistance for dealing with and responding to EPA notices, contact Kim Glassborow, Partner at G&B Lawyers.

Kim can be contacted on M: 0481 287 528 or E: kglassborow@gandblawyers.com.au
G&B Lawyers
Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000
Mail: GPO Box 1849, Sydney, NSW 2001
M: 0481 287 528
W: www.gandblawyers.com.au


Tuesday, 5 July 2016

The G&B Lawyers Team - www.gandblawyers.com.au

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au

Monday, 4 July 2016

EPA update - Monetary Benefit Orders from the Court

Increasing the courts power to impose higher financial penalties on environmental offenders

Under section 249 of the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) the court has the power to

“order the offender to pay, as part of the penalty for committing the offence, an additional penalty of an amount the court is satisfied, on the balance of probabilities, represents the amount of any monetary benefits acquired by the offender, or accrued or accruing to the offender, as a result of the commission of the offence.”

Monetary benefits means monetary, financial or economic benefits.

The amount that the court may order an offender to pay is not subject to any maximum amount. However, the regulations may prescribe a protocol to be used in determining the amount that represents the monetary benefit acquired by the offender.

Currently there is no protocol identified in the regulations that deals with monetary benefits.

However, this may be about to change.

The NSW Environment Protection Authority (EPA) is looking to develop a protocol, through consultation with industry in the near future. This will include the creation of a calculator for determining the quantity of the monetary benefit.

This could mean that courts may be able to impose much higher penalties on offenders depending on the circumstances of the offence.

Recent example that may have been caught

In 2015 the NSW Land and Environment Court found that a former waste operator and two of his companies were guilty of offences for the unlawful transportation of waste and for using a property as an unlawful waste facility.

See Environment Protection Authority (Prosecutor); Foxman Environmental Development Services (Defendant); Botany Building Recyclers Pty Ltd (Defendant); Phillip Foxman (Defendant) [2015] NSWLEC 105 at

The commission of these offences caused the Defendants substantial financial gain.

The introduction of a protocol within the regulations may, if drafted appropriately, increase the courts power to impose higher financial penalties on environmental offenders who benefit from the commission of an offence.

At this early stage, there still remains the next important question of what will happen with any money that is obtained through the potential protocol.
If you would like to discuss any aspect of this, please contact Kim Glassborow (Partner) G&B Lawyers on M: 0481 287 528.

G&B Lawyers

Office: Suite 1, Level 1, 229 Macquarie Street, Sydney, NSW 2000

Mail: GPO Box 1849, Sydney, NSW 2001

M: 0481 287 528

E: info@gandblawyers.com.au

W: www.gandblawyers.com.au