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Supreme Court – VIC

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The By Lawyers Supreme Court Civil (VIC) Publication has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a practical approach to practice and procedure in the Supreme Court, drawing on her considerable experience to focus on information that will help lawyers confidently represent their clients and successfully run their matters.

Some of the enhancements to the By Lawyers Supreme Court Civil (VIC) Publication as a result of this review include:

  • Expanded commentary on costs disclosure and ensuring costs are fair and reasonable.
  • Rationalised commentary on case management procedure including practice notes and directions.
  • Expanded commentary on Alternative Dispute Resolution and settlement.
  • Practical tips when briefing counsel added.
  • Expansion of commentary on Civil Procedure Act obligations.
  • New commentary on effectively communicating with the court.
  • New commentary on urgent applications.
  • Expanded commentary on service, including service overseas.
  • Expanded commentary on preparing and filing a defence.

New precedent

A new precedent ‘Example content – Consent orders – Discontinuance of proceedings’ has been added to both plaintiff and defendant guides. All of the existing precedents in the guides have also been reviewed to ensure they reflect current law and practice.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers for lawyers appearing for clients in civil matters in the Supreme Court.

Statutory benefits – MAIA – NSW

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A recent case on statutory benefits under the Motor Accident Injuries Act 2017 has been added to the By Lawyers Motor Accidents From 1 December 2017 (NSW) Guide.

The Act provides that benefits for treatment and loss of income are payable to those injured in motor vehicle accidents, regardless of fault. Where the accident is wholly or mostly caused by the claimant, those benefits cease after 26 weeks.

In AAI Limited v Singh [2019] NSWSC 1300 the Supreme Court considered the potentially complicated question of when the claimant is, or might be deemed to be, at fault and therefore whether statutory benefits should cease after 26 weeks. The court identified an anomaly in the legislation, being an inconsistency between s 5.1 and s 5.6 and opined that ‘Amendment will be necessary if a spate of litigation generated by the obscurities of these provisions is to be avoided’.

The court in this instance determined that the statutory benefits payable to a driver of a single vehicle accident, who was not at fault, should not cease after 26 weeks.

This case has been added to the By Lawyers Commentary under the sections titled No-fault accidents and When do statutory benefits cease, as valuable guidance for subscribers acting for claimants in receipt of statutory benefits.

 

Family provision claims – SA

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The new By Lawyers Family Provision claims – SA Guide has received its first update. A recent Supreme Court case on joinder has been added.

A solicitor might receive instructions from a potential claimant after the client receives notice, as a person with an interest in the estate, from another claimant who has already commenced proceedings. Plaintiffs in Family Provision claims are required under the Inheritance (Family Provision) Act 1972 to serve other potential claimants with the proceedings.

Those potential claimants may then make an interlocutory application within 28 days of service, seeking to be joined as a plaintiff under s 8(7) of the Act. That section provides that the court may, ‘if satisfied that it is just and expedient to do so’, permit joinder of further claimants at any time prior to the final determination of the proceedings.

The recent Supreme Court case of Columbus v Efstathis & Ors [2019] SASC 149 makes it clear that in considering such an application, the court will in effect need to be satisfied that the applicant has reasonable prospects of success.

In that case the court found there was no reasonable prospect of the applicant, a grandchild of the deceased, establishing any moral obligation on the part of the deceased to have made provision for the applicant out of the estate. Leave for the applicant to be joined as a claimant was therefore refused.

In the course of its determination, the court reviewed the case law on the status of grandchildren with Family Provision claims, affirming the NSW Supreme Court decision of Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 in finding that ‘as a general rule a grandparent does not have a responsibility to make provision for a grandchild in his or her testamentary disposition’.

This useful case has been added to the Family Provision claims – SA Commentary on page 25 under Acting for a potential claimant.

Letter to client after exchange – All states

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A precedent update has followed recent user feedback. Significant amendments have been made to the Letter to client after exchange in the Purchase of Real Property Guide, for all states.

This useful precedent letter now includes headings and better reflects the process of payment of duty.

The areas covered, now organised under the new headings, are as follows:

  • GST
  • Investigation of title
  • Duty and concessions
  • Insurance
  • Pre-settlement

At By Lawyers we love to receive feedback from our users and they are often the reason that we update our precedents.

Letter to strata manager – NSW

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The By Lawyers conveyancing precedent Letter to strata manager requesting Section 184 certificate has been amended to include a settlement date and contact details for the purchaser’s representative.

It is the experience of practitioners that with electronic settlements, sending the section 22 notice to strata managers can often be overlooked. For this reason, the letter requesting the s 184 certificate now includes a settlement date, contact details for the purchaser’s representative and a reminder that if there is a problem after settlement the strata manager should contact the purchaser’s representative in the first instance.

This improvement was the result of user feedback. At By Lawyers, we pride ourselves on the cooperative and collegiate relationship we have with the firms using our commentary and precedents daily. We value the feedback that we receive as it helps us to continually improve our publications.

This enhanced precedent letter is available on the matter plan in the Conveyancing – Sale of real property Guide (NSW).

Retail shop lease disclosure – QLD

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The By Lawyers To do list precedent has been updated in the By Lawyers Leases (QLD) Guide to include a section on retail shop lease disclosure requirements of both the lessor and lessee.

New leases

At least seven days before a retail shop lease is entered into, a lessee must have been given a disclosure statement and a copy of the lease by the lessor.

If the disclosure statement is not given, is incomplete, or contains information that is materially false or misleading, the lessee may terminate the lease by notice in writing at any time within six months.

The lessor’s disclosure statement includes a lessee’s disclosure statement, allowing the lessee to set out representations made to the lessee. The Act requires the lessee to complete and give to the lessor this statement at least seven days before entering into the lease.

Sublease

Where a sublessor has requested a head lessor disclosure statement, the lessor must provide it within 28 days.

Renewal

On renewal of a retail lease the lessor must provide a copy of a current disclosure statement to the lessee within 7 days of receiving a renewal notice.

Precedent update

The new section of the To Do list covers the time limits for retail lease disclosure in relation to:

  • new leases;
  • sublease; and
  • renewal of existing leases.

Thanks

This enhancement was the result of user feedback. At By Lawyers, we pride ourselves on the cooperative and collegiate relationship we have with the firms using our commentary and precedents daily. We value the feedback that we receive as it helps us to continually improve our publications.

Retail premises lease disclosure – VIC

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The By Lawyers To do list precedent has been updated in the By Lawyers Leases (VIC) Guide to include a section on retail premises lease disclosure requirements.

New retail premises leases

At least seven days before a retail premises lease is entered into, a lessee must have been given a disclosure statement and copy of the proposed lease by the lessor. The maximum penalty for failing to comply is 50 penalty units.

Renewal of retail premises leases

On renewal of a retail lease the lessor must provide a disclosure statement to the tenant at least 21 days before the end of the current term of the lease where option to renew applies, or no later than 14 days after the entering into an agreement to renew.

Assignment of retail premises leases

If a lessee assigns a retail shop lease it is relieved from liability to pay money under the lease if it serves upon both the lessor and the assignee a copy of a disclosure statement.

Precedent update

The new section of the To Do list covers the time limits for retail lease disclosure in relation to:

  • new leases;
  • assignment; and
  • renewal of existing leases.

Thanks

This enhancement was the result of user feedback. At By Lawyers, we pride ourselves on the cooperative and collegiate relationship we have with the firms using our commentary and precedents daily. We value the feedback that we receive as it helps us to continually improve our publications.

Contract of sale of land – VIC

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The Law Institute of Victoria has recently released a new version of their contract of sale of land. The By Lawyers Conveyancing Guide has been updated to include references to the current clauses of the 2019 LIV contract.

While no form of contract is prescribed by law any longer, various requirements are prescribed before a contract can be enforced.

The 2019 By Lawyers Contract of Sale of Land also meets these requirements and has a number of advantages over the LIV contract. The sale and purchase commentaries in the By Lawyers Conveyancing Guide include a detailed comparison between the LIV contract and the By Lawyers contract on a clause-by-clause basis, to assist in comparing them.

The By Lawyers Contract of Sale of Land, co-authored by conveyancing guru and By Lawyers author Russell Cocks, provides a vendor’s statement and contract in one document. The By Lawyers  contract is specifically designed for residential conveyancing transactions and seeks to overcome some of the traditional road blocks that arise.

The By Lawyers 2019 Contract of Sale of Land is located in the Contract folder in the Sale of Real Property Guide and is also available to purchase through InfoTrack.

For further information, see the article Seven reasons to use the By Lawyers contract or listen to an informative podcast explaining the features of the By Lawyers contract.

Retail lease disclosure – NSW

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The By Lawyers To do list precedent has been updated in the By Lawyers Leases (NSW) Guide to include a section on retail lease disclosure requirements of both the lessor and lessee.

New leases

At least seven days before a retail shop lease is entered into, a lessee must have been given a disclosure statement by the lessor. The maximum penalty for failing to comply is 50 penalty units.

If the disclosure statement is not given, is incomplete, or contains information that is materially false or misleading, the lessee may terminate the lease by notice in writing at any time within six months.

The lessor’s disclosure statement includes a lessee’s disclosure statement, allowing the lessee to set out representations made to the lessee. The Act requires the lessee to complete and give to the lessor this statement within seven days of receipt of the lessor’s disclosure statement. There is a penalty of 50 penalty units if this is not done, but there is no right for the lessor to rescind the lease.

Renewal

On renewal of a retail lease the lessor may provide an update together with a copy of the earlier disclosure statement, or a fresh one.

Assignment

If a lessee assigns a retail shop lease it is relieved from liability to pay money under the lease if it serves upon both the lessor and the assignee a copy of an assignor’s disclosure. This must be done at least seven days before the assignment.

Precedent update

The new section of the To Do list covers the time limits for retail lease disclosure in relation to:

  • new leases;
  • assignment; and
  • renewal of existing leases.

Thanks

This enhancement was the result of user feedback. At By Lawyers, we pride ourselves on the cooperative and collegiate relationship we have with the firms using our commentary and precedents daily. We value the feedback that we receive as it helps us to continually improve our publications.

Testamentary capacity

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Testamentary capacity was considered in a recent Victorian Supreme Court case.

The court found In the Matter of the Will and Estate of Joyce Helen Greer, deceased [2019] VSC 592 that the then 95-year-old testator had capacity. Her will in which she made no provision for one of her two adult sons was admitted to probate.

Of importance in the court’s decision was evidence from the lawyer who took the instructions and drew the will. This was not the testator’s usual solicitor. Her long-term solicitor, one of the executors of the will, had referred the testator to another solicitor, a specialist in wills. He had taken comprehensive instructions and made appropriate notes. He also sought a medical report from the testator’s usual doctor.

The evidence of the testator’s doctor impressed the court and it was preferred to evidence from expert medical practitioners led by both parties. The experts gave opinions based on records, but had not seen the testator.

One of the experts noted a ‘…general consensus amongst experts that capacity is task specific and that individuals with cognitive impairment may retain capacity to do many tasks. Even if [the testator] had been suffering from a degree of executive impairment affecting, for example, her ability to regulate her behavior in a social setting, it did not necessarily follow that she lacked testamentary capacity‘. That is an important point for solicitors taking instructions from will makers to bear in mind.

The case includes, at [126] – [133], an analysis of the cases on proof of testamentary capacity. The court noted that ‘The proof required to establish testamentary capacity does not need to eliminate all doubt and a residual ‘doubt’ does not necessarily exclude the existence of testamentary capacity‘.

The statement of Kirby P in Re Griffith (1995) 217 ALR 284, 294 that the freedom of testation includes the freedom to be ‘unfair, unwise or harsh with one’s own property’ was also cited with approval.

This useful case on testamentary capacity has been added to the By Lawyers 101 Succession Answers (NSW) publication. This valuable resource is found in the Reference Materials folder in the Wills, Estates, Family Provision Claims, and Powers of Attorney, Appointment of Enduring Guardian and Advance Care Planning guides.

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