Tyndall & Co., Lawyers, Blog

The objective of this blog is to help people access legal services, including those who are unable to pay for legal help in the usual way and need legal assistance as "pro bono publico" or free.

Picture: Paralegals Madelaine and Sapphire in action at Surfers Paradise Pro Bono conference, with lawyer Jonathan de Vere Tyndall

In the post GFC fallout, some borrowers or mortgagors strongly believe that they can avoid a claim for “possession” under a mortgage, and consequential liability, in Australia because the mortgagee does not have the “original wet ink” signature document. The concept is attributed to “foreclosure” cases in the USA, (Ibanez Case and others) in which some successful borrowers have won against bank mortgagees. However, in most states in the USA they have a different title system to Australia (“registration of title” rather than “title by registration” under the Torrens system). The practice of banks there has been to assign and sell mortgages on to investors, which leads to a “chain of title”. This belief is fallacious in Australia and it is also not constructive to successful resolution of a problem with a mortgagee, following default by the borrower. Bank mortgagees generally have the protection of an “indemnity clause” in the mortgage, so if a borrower takes such a matter on, they risk having to pay the bank’s full legal costs for running such a spurious claim and the bank having to defend it. An “all monies clause” will contractually allow a mortgagee to appropriate all balances, not just the mortgage account, so the borrower will also risk loss of any accounts in credit. There are more constructive approaches to take. See Article here "Dry pen trumps wet ink".

A big thank you to Lucy Adhern of the The Gold Coast Bulletin for covering the pro bono conferences and to Bumbles Cafe who have great coffee:

YOU may have already heard of tea and sympathy, but a lawyer has put a new spin on the concept and instead is offering coffee and free legal advice on the Gold Coast. Jonathan De Vere Tyndall will turn up at Bumbles Cafe in Surfers Paradise n September 6 and 13 to dish up pro bono legal assistance to those who need it. Mr Tyndall operates on the Gold Coast and in Byron Bay and has already rolled out the concept across the border. The qualified solicitor and barrister has experience in a wide range of areas, including family law, crime, immigration and bankruptcy ."

These Pro Bono (free) Law Conferences will run for the first 2 Tuesdays in September 2011.

• For 2 Tuesdays only • At Bumbles Café, Surfers Paradise from 10 am

• All legal issues dealt with including: personal bankruptcy and company insolvency, family law and shared parenting or property disputes, loss of job or unpaid entitlements or unpaid superannuation, potential loss of home and mortgage problems, Wills and unpaid provision, crime including drink or drug driving and Australian immigration law and visas.

• Be there at 10 am, first come first served (unless there is a disability or urgency), no appointments necessary

• We encourage you to come on the first Tuesday so you can return on the following Tuesday for follow up work on your legal issue. We look forward to being of service to you.

August 2011- The 3rd Annual Pro Bono Conferences finish with a smashing success!

Picture: Left to right: Paralegals Gloria, Candice and Madelaine, with lawyer Jonathan de Vere Tyndall

This year more than 18 individual pro bono legal conferences were conducted at the café and at our offices. Clients overall reported positive benefits, and we were able to help with many pressing matters and increase client happiness. It was a smashing success!

Many thanks are given to paralegals Gloria, Candice and Madeleine for their outstanding efforts and also the staff at Harvest Café Byron Bay for their great service.

The ‘Bankruptcy Act’ in Part IX allows for an insolvent person to make a “debt agreement proposal” to the Official Receiver for the creditors if the total unsecured creditors are less than the prescribed amount of $92,037. This will stop bankruptcy if the more than 50% in the value and number of the creditors will vote for the proposal, which will include a discount on the total amount owed to all creditors proportionally and time to pay the debt over a number of years. It is a less demanding process than a Part X “personal insolvency agreement” which requires a special resolution with more than 50% in number of creditors, plus at least 75% in value to approve the proposal.

With a “parenting order” made under S65D of the ‘Family Law Act’ the Court must consider the best interests of the child as paramount in determining whether the child should spend ‘equal time’ with each of the parents, or ‘substantial and significant time”. The Court must have regard to what is reasonably practicable, including how far the parents live from each other, and the parents’ current and future capacity to implement an arrangement. If the child goes missing, then a parent can seek a “location order” for the Court, or a “recovery order” (S67Q) seeking the return of the child. A parent must not refuse or fail to deliver a child or interfere with the performance of any duties that person has under the order (S65M); and not hinder the child from communicating with the other parent under the order. (S65NA) The Court has the power to issue a warrant for arrest of an “alleged offender” to bring them before the Court. If a parent is being unreasonably hindered in telephone access or being refused time with the child under a parenting order, these matters can be enforced and are not trivial. It is important for the evidence to keep notes of dates and times of specific breaches.

A child who has been expressly disinherited in a Will because of an alleged failure as a less than dutiful child, may have recourse under the ‘Succession Act’ (NSW) as an “eligible person” [S59 (1) (c)] for adequate provision for “maintenance, education and advancement in life”. A claim for provision must be made within 12 months from death. Such a clause in a Will may have the opposite effect to that which the testator intended. Instead of striking out the child and discrediting him, it may instead pave the way for the claim. The Court puts itself in the position of the wise and just testator.

If a child loses the right to claim family provision under the ‘Succession Act’ 1981 (QLD) (S44: claim must be made within 9 months of death) due to the length of time since the death, there may be promises made by the deceased to the effect that she would leave certain property to the child. In such as case, the Court could impose a “constructive trust” over the deceased’s property where it would be unconscionable to deny the trust. Whilst statutory rights might be lost, equitable rights can survive.

An employer, who pays a “contractor” for services -even with an ABN- is required to pay the “superannuation contributions” for the contractor, if the services are predominantly personal. [Superannuation Guarantee (Administration) Act 1992, S 12 - Contractors providing predominately personal services are “deemed employees” for the purposes of superannuation] If a contractor is really a worker (as found by the Court), a claim can be made out under the Fair Work Act in the “general protections” provision for other Award based entitlements, including annual holiday leave and unpaid overtime.

A skilled worker from overseas who meets certain criteria can obtain a “Subclass 457 sponsored visa”, which is a temporary business visa, if the employer nominates as a “sponsor” and they also meet certain criteria. The worker can then later apply for a “permanent” visa within 12 months to 2 years after taking the post. The worker’s family can also enter or stay on that visa. The worker and the sponsor can apply onshore, and don’t have to leave Australia to apply for the visa, if the worker is lawfully present on another visa subclass. This fast track to residence pathway increases an Australian employer’s access to overseas skilled labour markets, which may provide the skill sets needed for the survival of the business in Australia but at the same time giving a fair go to Australian workers. It is attractive to overseas skilled workers because they can obtain a pathway to “permanent residence” if they meet the DIAC criteria.

The (3rd) Annual Pro Bono (free) Law Conferences at Byron Bay are starting again this month, and the details are as follows:

• Clients should be there at 10 am, first come first served (unless there is a disability)

• Recommended to come on the first Monday in case the client needs to return on later Mondays to follow up necessary work

• All legal issues dealt with including: loss of home, loss of job, breakdown in relationship, children and shared parenting disputes, wills, personal bankruptcy, company insolvency, crime including drink or drug driving and immigration law.

Jonathan de Vere Tyndall will be conducting the free conferences. He is a Solicitor and also a registered Migration Agent. Past conferences have been heavily attended. Last year (2010) was very successful and we were able to resolve the majority of the clients’ legal issues at the conferences and most clients reported a high degree of satisfaction with the service.

Jonathan delivered a paper as a guest speaker at the University of the Third Age (U3A) Brunswick Heads on 22 February 2011 on "Why should lawyers give more of their time for free?"

He also gave a free talk to seniors about Elder Law issues, Wills, Intestacy and Family Provision. The group were very appreciative and said:

"Thanks to you they now have a better understanding of many legal matters that could have worried them...Many problems of older people you helped put to rest as well as family involvement issues."

The lecture was scheduled for about 1 hour and lasted 2 hours or so! The group were very responsive and quick to pick up on issues and Jonathan looks forward to his return.

Jonathan conducted a repeat of the annual pro bono law conferences he sponsors on two consecutive Mondays at the Harvest Cafe in December just before Christmas 2010. They were well attended by clients, who reported positive benefits.

One client said: "“I recently attended a session with Jonathan Tyndall at Harvest Café. During the session I got complete attention from Jonathan and his two very competent assistants, information, suggestions, encouragement, practical advice and compassion. With my improved morale after the meeting I was able to take some long-delayed action, that very same day, gaining much clarity and empowerment in my situation. I am very grateful to have had the opportunity to talk with a professional and to know that an excellent mind is zooming in on my predicament, with no other motive than to help. Thank you.” LC.

Many thanks to my two work experience readers Lucinda from Griffith University Law School and Iris from Bond University Law School, who both worked diligently over the 2 weeks including between conference days on follow up research and the staff at Harvest Cafe who were most supportive of all attending and welcoming.

We have another paid position available for a part-time Law Clerk-Paralegal. The job specification is 2-4 mornings a week.The job will suit a law student who wants legal experience in working on actual client cases, who has advanced research skills and is familiar with electronic case law data bases. There are excellent prospects for improvement and with getting involved in building cases and proofing up evidence in a small but "flat" adversarial organisation. You don't have to be an HD student but compassion, a keen sense of justice for the client's rights and positive belief in the "pro bono law" system for disadvantaged people, are essential requirements for the position. We pay top rates. Please apply with CV and references, quoting Law Student Wanted

Jonathan de Vere Tyndall was invited to lecture to law students at the Bond University Law School about the benefits of doing “pro bono publico” legal work.

His thesis is that the genuine act of giving is also receiving, but by giving what you are receiving is multiplied. Others will also benefit in the process. There is a net benefit to the individual who gives and the community which receives. By giving free legal help, you will become more successful as a lawyer.

Jonathan de Vere Tyndall concluded a series of 8 weekly pro bono legal conferences at the Harvest Café, on consecutive Mondays. He conducted in excess of 50 “one on one” pro bono law conferences.

The overwhelming response from clients was that it: 1. Was a definite benefit to people attending with legal problems 2. Gave them a better idea of how they could resolve their legal issues 3. Was a great idea.

Most clients surveyed found that their happiness was enhanced. Many legal issues were able to be resolved. Jonathan also tutored law students South Cross University and Griffith University, who needed practical experience during the conferences.

Since concluding the series, we have received many further enquiries for another pro bono conference series and are considering dates for the next series in 2010.

The pro bono conferences continued with strong attendances both at the venue and also at Eureka Chambers during normal office hours.

Jonathan de Vere Tyndall commenced Pro Bono (free) legal conferences at Byron Bay on Mondays for 8 weeks, at 10.00 am for people facing a serious legal problem, including bankruptcy or loss of home, at the Harvest Café, Newrybar.

Jonathan de Vere Tyndall started doing pro bono legal work after he commenced practicing law as a Barrister in 1992.

In 1997 he successfully appeared in the Family Court of Australia (for a substantially reduced fee) and won the case for his client who was vindicated but also obtained a costs order against the other side, which is unusual in that jurisdiction.