DICTIONARY

Acquit To discharge a person from prosecution at a criminal trial through a “not guilty” verdict.

Administrator A person appointed to deal with a person’s estate when there is no will or an executor has not been appointed.

Annul To declare a legal relationship to be void and of no legal effect eg a marriage that had no legal effect in the first place.

Appeal To seek a review of a decision of a court or tribunal by a higher court of tribunal on the grounds of some kind of error.

Arraign To call a person before a court to answer a charge as either “guilty” or “not guilty”.

Arrest To lawfully detain a person who has committed, or is suspected of having committed, an offence.

Bail 1. The release of a person from custody upon certain conditions including that they will appear at court when required; that they or someone else will agree to forfeit a sum of money either promised or deposited if they breach the conditions.  2. The amount of money promised or deposited.

Bailiff A court officer, also called a sheriff’s officer, who serves court documents and executes court orders.

Bailment Delivery of goods to another for a particular purpose on the condition that they will be returned upon the purpose being fulfilled.

Bankruptcy When a court declares a person unable to pay their debts and appoints a trustee to use the bankrupts assets to pay the creditors and then discharge the bankrupt from all outstanding liabilities.

Beneficiary 1. A person who receives a benefit held in trust by executors or trustees.  2. A person who has an entitlement under a will.

Bequeath To give personal property to a beneficiary through a will.

Bond 1. A legally enforceable promise ordered by a court for a person to be of good behaviour and comply with any conditions over a period of time instead of receiving a criminal sentence. 2. An instrument by which companies and governments secure payment for monies borrowed. 3. Monies lodged by a tenant with the Department of Fair Trading to cover damage to property, outstanding rent or any other breach of the tenancy agreement.

Caveat 1. A warning notice recorded at a court or registry that no step be taken until the person who lodges the caveat is allowed to make representations as to their interest. 2. A statutory injunction recorded on the tile of real property to protect an unregistered interest by preventing any dealing with the property until the caveat is removed or lapses.

Certificate of Title (CT) A certificate issued by the land titles registry (Land and Property Information) showing or recording current information about a parcel of land.

Charge 1. A formal accusation setting out an alleged criminal offence. 2. A form of security for the payment of a debt held over property or a fund.

Codicil An alteration or amendment to a will by way of a separate document, signed by the testator (will-maker).

Committal Criminal proceedings in which a Local Court determines whether or not the accused stands trial.

Common law 1. Legal system based on precedent and the rule of law originating in the United Kingdom and adopted by many countries that are former colonies of the British Empire. 2. Rules, principles, doctrines and precedents derived from past court decisions as opposed to statutes of parliament.

Complainant The initiator of a Local Court prosecution.

Conciliation A process for resolving disputes by way of an independent third party who encourages the parties to negotiate a settlement.

Consent orders Agreement between the parties of a court case which is approved by the court and becomes an order of the court.

Consideration Something of value which is promised or given to another in exchange for something else thereby creating an binding contractual agreement.

Contact Time a child spends with or communicates with a parent with whom they do not live.

Contempt of court Failure to comply with a court order or resistance or insult to the court or judge.

Contract A legally enforceable agreement with essential features including capacity to contract, intention to contract, consensus ad idem, offer and acceptance of a promise, valuable consideration, legality of purpose, certainty of terms and the intention of the parties as the source of the legal obligations.

Contributory negligence A partial defence seeking a finding that an injured party’s own negligence caused or contributed to the harm they suffered thereby allowing an apportionment (under Australian state legislation) reducing as a percentage the amount of damages awarded. Before the introduction of the apportionment legislation, was a complete common law defence to an action in tort or contract.

Corporation A legal entity formed and governed by statute whose rights and liabilities are separate and distinct from that of it’s owners.

Costs Monies payable to a lawyer for fees and disbursements.  Payable under either a solicitor/client agreement or party/party costs order of the court.

Costs order An order of a court making one party pay another party’s costs and disbursements as agreed or assessed.  Ordinary costs orders allow a party to recover their reasonable costs and disbursements, usually 2/3 of the costs they have paid or are liable to pay their lawyer.  Indemnity costs orders allow a party to recover their full costs and disbursments.

Counter claim A claim made back at a person bringing a claim, offsetting the claim.

Court Attendance Notice (CAN) A Summons to appear in court in NSW.

Cross claim A claim made back at a person bringing a claim or to another party alleging partial or total responsibility.

Covenant An agreement to do or refrain from doing something.

Creditor A person who is owed money.

Creditor’s Petition A bankruptcy application by a creditor.

Custody Control and possession of a thing or person.

Damages An amount of money awarded by a court in a civil claim for loss or injury suffered by a person.

Debtor A person who owes money to someone.

Debtor’s petition A bankruptcy application by a debtor.

Decree absolute The final order dissolving a marriage in Australia.

Decree nisi A Family Court provisionally made to dissolve a marriage.  The divorce then becomes final a month later upon the making of a decree absolute.

Deed A written document used as evidence of an agreement between the parties as to the things contained in the deed. The document is a legal instrument which was traditionally “signed, sealed and delivered”, though seals are no longer required.

De facto In fact, not law eg a spouse not legally married.

Defamation The publication of a false and derogatory statement regarding another person without lawful justification.

Defendant The party against whom legal action is taken.

Disbursement Money paid out on behalf of someone else.

Discovery A process by which the parties to civil litigation are ordered to exchange documents relevant to the issues to be determined later when the matter goes to hearing.

Dissolution of marriage Divorce.

Double jeopardy When a person is prosecuted twice for the same offence.

Duress Unlawful pressure used to coerce a person into acting against their will.

Duty of care A legal obligation to act or refrain from acting in a manner which could cause reasonably foreseeable harm.

Encumbrance An interest claimed over land eg a mortgage.

Equity 1. A branch of the law consisting of rules and principles of fairness to supplement the common law. 2. The size or share of a person’s interest in property.

Estate 1. A deceased’s property. 2. An interest in land.

Eviction The use of legal proceedings to recover possession of property.

Exclusion clause A condition of a written contract which attempts to exclude a party to a liability that might otherwise exist.

Executor The person nominated to execute or carry out the provisions of a will.

Ex gratia An act done as a favour when there is no obligation to do so.

Ex nuptial Outside of a marriage.

Ex parte 1. Court proceedings brought by an interested person who is not a party.  2. Court proceedings brought by a party in the absence of the other party or parties.

Ex officio By virtue of one’s office.

Extradition Proceedings to transfer a person accused of a crime from one jurisdiction to the jurisdiction in which the crime is alleged to have taken place.

Felony A term previously used for a serious crime.  See indictable offence.

Fiduciary duty A duty to act in good faith in the interests of another inherent to certain types of relationships.

Fiduciary relationship A relationship in which one inherently owes a duty to act in good faith in the interest of another eg trustee, company director, solicitor, accountant.

Foreclosure The court ordered taking of possession and sale of land by a lender (mortgagee) when a landowner borrower (mortgagor) is in default under a loan secured by property (mortgage).

Garnish When a person who owes money to someone is forced to pay the money to that someone’s unpaid creditor eg an employee being ordered to pay part of an employee’s wages to the employee’s creditor.

Guarantee A promise for payment or performance of another person’s debt or obligation in circumstances where there becomes a default by the person primarily responsible.

Guardian One who is granted the right and duty to protect the person, property or rights of one who has a legal incapacity or is incapable of managing their own affairs.

Habeas corpus An ancient writ directing a person holding someone in custody to produce or “have the body” before a court.

Hearsay Evidence of a fact that is not directly seen or heard by a witness, not normally admissible in court unless it falls into a category of exception.

Indemnity 1. A collateral contract or security creating an obligation to make good a liability for injury, loss or damage that has been suffered or might be suffered by an act or default of another. 2. A court order to compensate a party for a liability for injury, loss or damage incurred by another party.

Indictable offence An offence for a serious crime which the accused has the right to have a trial before a judge and jury following a committal hearing before a magistrate to determine whether or not there is a case to answer. Distinct from a summary offence which is adjudicated by a magistrate sitting alone.

Injunction An court order requiring a person to do, or to refrain from doing, something specific.

Insolvent When a person is unable to pay their debts.

Interrogatories Written questions relevant to disputed issues between the parties to a civil action that a court allows a party to ask of another party before the matter goes to hearing.

Intestate When a person dies without leaving a will so that the distribution of the estate comes under the statutory rules of intestacy.

Joint tenants When land is owned by more than one person with undivided shares so that the interest of an owner passes to the surviving owner(s) upon the death of the deceased.

Judgment 1. The decision or sentence of a court. 2. The reported reasons for a decision which may be cited as authority or treated as precedent.

Jurisdiction 1. The power of a court to decide a matter. 2. The geographical location over which a court has power.

Lease An agreement in which a property owner allows another person to have exclusive possession of the property over a fixed period in return for rent.

Legacy A gift of personal property under a will.

Letters of administration A grant of authority by a court allowing a person to act as the administrator of an estate when there is no will.

Liability Legal responsibility or obligation.

Libel The publication of defamatory in writing, print or some other permanent form.

Lien To hold another’s property as security for the performance of an obligation.

Liquidation The process by which a company is wound up, dissolved or brought to an end by the sale of assets, payment of debts and redistribution of any surplus to the members.

Litigation The process of taking a case to court.

Locus standi The right to be heard in court.

Mediation The process of resolving a dispute by way of a negotiation with the assistance of an independent third party who does not have the power to adjudicate or make any rulings.

Mens rea A guilty mind.  Intention of wrongdoing.

Mention When a case is listed briefly before a court to deal with a preliminary procedural matter as opposed to the hearing itself, such as a bail application or to set a hearing date.

Mortgage The temporary pledge of title to property to a creditor as security for a loan until the loan is repaid.

Negligence 1. Failure to take proper care that one is obliged to take by some act or omission. 2. A cause of action in tort in which a person has caused harm to another or their property by failing to take reasonable care to avoid such harm that is foreseeable and there is a duty of care to do so.

Nuisance 1. An inconvenience interfering with ones physical enjoyment or comfort. 2. Public or common nuisance: an act which interferes with the enjoyment of a right that all members of the community are entitled to eg fresh air. 3. Private nuisance: a cause of action in tort consisting of a wrongful act that interferes with an occupier’s use or enjoyment of land.

Oath An undertaking or promise to tell the truth, sworn before on the bible or other religious text. If a person lies under oath they have committed perjury.

Ombudsman A person appointed by the government to investigate complaints against the government’s administrative agencies.

Onus of proof The obligation of a party who makes an assertion to prove the assertion with sufficient evidence to satisfy the standard of proof.

Parenting orders Orders under the Family Law Act 1975 about children.

Parole The probationary release of a prisoner before the end of their sentence.

Perjury Lying under oath in court proceedings, a criminal offence which carries the penalty of imprisonment.

Plaintiff The person who brings civil proceedings.

Pleadings Written statements that are filed and served by the parties to an action notifying the parties and the court of the questions of fact and law to be adjudicated.

Power of attorney A formal legal document executed by a person authorising another person to act in their place for certain purposes.

Precedent A judgment or decision of a superior court which is used as an authority or principle for deciding subsequent cases.

Prerogative writ An order of a superior court directing a lower court to exercise their functions in accordance with the law or refrain from exceeding the limits of their power. The writs include (1) Habeas Corpus (2) Certiorari (3) Prohibition (4) Mandamus (5) Quo Warranto (6) Ne Exeat Regno (7) Procedeno.

Prima facie On the face of it.  Evidence that will prove a fact or allegation if no contrary evidence is adduced to displace the fact or allegation.

Privilege 1. An exceptional or extraordinary right, immunity or exemption held by a person due to their office or status. 2. The protection of information or documents from disclosure in court proceedings where there are grounds to do so eg communications between a client and their lawyer. 3. Statements made in certain situations which would otherwise be defamatory eg parliamentary privilege, judicial proceedings and qualified privilege.

Privity of contract When contractual rights and obligations are limited to the parties to the contract.

Probate 1. The proving of a will 2. An order from the court that a will is valid and that the administration of the will is granted to the executor.

Procedural fairness Principles or rules of fair and proper procedure to be followed when a decision maker makes a decision affecting another’s rights or interests.

Process Court documents that are filed with the court and then served on another eg Statement of Claim, Subpoena or Summons.

Recognisance An bond before a court which obliges a person to perform some act (or not) eg appear before court, be of good behaviour, keep the peace etc.

Release An agreement to give up, discharge, or renounce any rights or claims against another.

Repeal To abrogate or discontinue a law of the parliament.

Rescind To abrogate, revoke or cancel a contract.

Security Property or a fund, the possession of which is temporarily offered by a debtor to a creditor to guarantee a debt until the debt is paid.

Sequestration order An order that property be seized in satisfaction of a debt.

Slander The publication of defamatory material in non-permanent (eg verbal) form.

Standard of proof The degree to which something must be proved eg “beyond reasonable doubt” in a criminal matter and “on the balance of probabilities” in a civil matter.

Statute A law made by the parliament, also called legislation, which includes an Act and its Regulations.

Statutory Declaration A written statement signed and declared to be true in the presence of an authorised witness.

Strict liability Liability for an act or omission without wrongful intent or negligence.

Subpoena An order of the court requiring a person to attend court to give evidence, or produce documents, or both.

Sue To bring civil court proceedings against another.

Summary offence A minor offence heard in NSW in a Local Court before a Magistrate without a jury.

Summons An order to appear in Court (see also Court Attendance Notice).

Surety A person who undertakes to satisfy the obligation of another in the event that other person defaults or fails to meet its obligation.

Tenants in common When land is owned by more than one owner in specified shares so that the particular interest of a co-owner may be transferred to another party and upon the death of a co-owner the interest is transferred to a person nominated under their will rather than to the surviving owners.

Testamentary capacity A person’s legal and mental capacity to make or alter a valid will.

Testator A person who makes a will.

Tort [L tortus = twisted or crooked]. An injury caused by a civil wrong, other than a breach of contract.

Trespass [To pass beyond] A tort of direct and unlawful interference with a person or property.

Trust The holding of property by a trustee on behalf of and for the benefit of others.

Trustee A person authorised to hold assets on behalf of and for the benefit of others.

Tutor A person appointed by a court to conduct court proceedings on behalf of a person who lacks the capacity to do so.

Ultra vires Beyond the scope of ones legal power or authority and therefore invalid.

Undertake To promise to do or refrain from doing something.  Undertakings made during court proceedings may be enforced by way of injunction.

Voir dire When a judge is required to make a ruling before continuing with a trial by way of a preliminary examination of a witness and hearing of argument. 

Waive To give up a claim to any legal right, entitlement or interest.

Warrant An court order authorising a law enforcement officer to take such action that would otherwise be unlawful, eg search a person, enter premises, seize property, intercept communications or arrest a person and bring them before the court.

Warranty A binding assurance or guarantee regarding goods or services supplied to another, arising either under contract or statute.

 

 

 

 

 

Mosman Lawyer

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