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Amendments to domestic violence law – SA

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Recent amendments to domestic violence law have commenced in South Australia. They are contained within the Statutes Amendment (Domestic Violence) Act 2018.

Variation of interim orders

The new s 26A of the Intervention Orders (Prevention of Abuse) Act 2009 enables an applicant to apply to the court to vary an interim order issued by police.

Where such an application is made the court must hold a preliminary hearing as soon as practicable and without summoning the respondent to appear. An application can be made by telephone or other electronic means, and the preliminary hearing may occur by oral questioning of the applicant and any other available witness, or by other means contemplated by the rules including affidavit evidence. If the court thinks it appropriate, it may adjourn the hearing so the applicant can attend for questioning.

At the preliminary hearing, the court may:

  • issue an interim variation of the intervention order if it appears to the court that there are grounds for issuing the variation; or
  • determine that the application should be dealt with under s 26 without the issuing of any interim variation order; or
  • dismiss the application on any ground considered sufficient by the court.

Any interim variation issued by the court must require the defendant to appear before the court within eight days.

An interim variation of an intervention order issued by the court comes into force against the defendant when:

  • the order is served on the defendant personally; or
  • the order is served on the defendant in some other manner authorised by the court;
  • the defendant is present in the court when the order is made.

Admissibility of recorded evidence

Pursuant to the new s 13BB of the Evidence Act 1929 and the new s 28A of the Intervention Orders (Prevention of Abuse) Act 2009, the applicant, or someone else for whose protection an intervention order is sought, may give evidence via a recording. Section 28A applies in addition to, and does not derogate from, any other power of the court to receive evidence or to determine the form in which evidence may be received, including evidence in the form of a recording.

Domestic violence strangulation offence

The new s 20A of the Criminal Law Consolidation Act 1935 introduces a specific domestic violence strangulation offence—namely, choking, suffocating or strangling a person without consent with whom the offender is, or was, in a relationship. The maximum penalty for the offence is seven years imprisonment.

Amendment to publications

These amendments to domestic violence law have been incorporated into the commentary in the By Lawyers Intervention Orders guide for South Australia.

Off the plan contracts – NSW

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Significant changes to off the plan contracts commenced 1 December 2019.

The changes arise from the Conveyancing Legislation Amendment Act 2018 (NSW) and the Conveyancing (Sale of Land) Amendment Regulation 2019 (NSW). They place further disclosure obligations on vendors. They also create new remedies and stronger protections for purchasers when entering into residential off the plan contracts.

Changes to off the plan contracts – summary:

  • Certain prescribed documents must be attached to residential off the plan contracts. These include a prescribed Disclosure Statement, a draft plan prepared by a registered surveyor and other draft documents, as set out in clause 4A of the Conveyancing (Sale of Land) Regulation 2017.
  • A purchaser can rescind the contract within 14 days if the Disclosure Statement, draft plan or relevant prescribed documents are not attached to off the plan contracts exchanged on or after 1 December 2019.
  • There is an ongoing obligation on the vendor to notify purchasers of changes to material particulars using the prescribed Notice of Changes form. Purchasers may be able to rescind or claim compensation if there is a change to a material particular.
  • The cooling-off period for residential off the plan contracts is extended to 10 business days.
  • The final registered plan must be provided to the purchaser at least 21 days before settlement.
  • Deposits must be retained by the stakeholder in a trust or controlled monies account.

An off the plan contract is defined in the amending act to mean a contract for the sale of a residential lot that does not exist at the time the contract is entered into.

The following are not caught by the amendments:

  • The sale of a commercial property off the plan.
  • The sale of a residential lot off the plan if it is sold at the point when the title is registered but an occupation certificate has not been issued.
  • Contracts arising out of the exercise of an option that was entered into before 1 December 2019.

Updates to By Lawyers publications

  • The By Lawyers Conveyancing Publication, including Sale and Purchase Guides and 1001 Conveyancing Answers, all contain dedicated commentary regarding off the plan contracts. These commentaries now cover the new requirements in detail.
  • The By Lawyers Contract for Sale of Land has been amended as follows:
    • Statutory cooling off notice – 10 business days;
    • Statutory attachments table includes Disclosure Statement;
    • Price and deposit clause addresses the requirement for deposit and instalment payments to be held as trust or controlled money;
    • New clause 16(d) ‘Residential off the plan contracts’; and
    • Off the plan settlement changed to 21 days after notice of registration of plan.
  • All precedents making reference to cooling off periods have been updated to accord with the new period.
  • Disclosure Statement and Notice of Changes forms are available on the Sale matter plan.
  • New notices for rescission and compensation claims have been added to the ‘Claims, disputes and notices’ folder. Precedent letters serving these notices on the relevant parties have also been added.

By Lawyers are proud to assist subscribers to understand and comply with these amendments. Like all By Lawyers publications, our Conveyancing Guides provide all the necessary commentary and precedents in one place. Enjoy practice more!

 

 

Revocation of Power of Attorney – NSW

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Revocation of Power of Attorney

Unlike a will, a power of attorney does not revoke a previous appointment of an attorney by the principal. Powers of attorney which are not intended to continue must be revoked.

The By Lawyers Powers of Attorney, Appointment of Enduring Guardian and Advance Care Planning Guide for NSW includes commentary on revoking a power of attorney, as well as a Revocation of Power of Attorney precedent.

Following some helpful feedback from our subscribers, the Revocation of Power of Attorney precedent has been amended for enhanced functioning.

Amended precedent

The following amendments have been made:

  • Guidance notes have been added to the precedent;
  • For LEAP users, the precedent has been coded for matters with multiple clients so that an ‘ASK’ will run when the precedent is opened asking which client is revoking and the address of all attorneys now populates.

This precedent can be found in the Revocation of Powers of Attorney sub-folder under Folder B. Powers of Attorney in the By Lawyers Powers of Attorney, Appointment of Enduring Guardian and Advance Care Planning Guide.

 

Interpreters – NSW

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The rules concerning the engagement or appointment of interpreters for civil litigation in NSW courts have been amended.

The Uniform Civil Procedure (Amendment No 92) Rule 2019 provides for new rules. These are based on the Model Rules in Recommended National Standards for Working with Interpreters in Courts and Tribunals prepared by the Judicial Council on Cultural Diversity.

The amendments that commenced on 8 November add Division 3 of Part 31 and Schedule 7A to the Uniform Civil Procedure Rules 2005 (NSW). The new division sets out rules which cover:

  • When an interpreter may be engaged;
  • Who may act as an interpreter; and
  • Functions of interpreters.

Importantly, an interpreter must now adhere to the Court Interpreters’ Code of Conduct, which is set out in Schedule 7A of the UCPR. A copy needs to be given to the interpreter as soon as possible after they have been engaged or appointed.

The By Lawyers Litigation publications for Local, District and Supreme Courts have been updated accordingly. A link to the Code of Conduct is included.

Transfer by direction – SA

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Requirements for a transfer by direction have been relaxed in SA.

A recent Revenue Ruling SDA009[V2] states that, unless additional consideration is being paid by the transferee, a Deed of Assignment or Nomination is no longer necessary for any purchaser to direct the vendor to transfer the property to any other person or entity – whether related or not.

The Ruling states that Revenue SA:

  • acknowledges that a purchaser named in a contract has a common law right to direct the vendor to transfer the land to any party the purchaser chooses. This common law right to a transfer by direction exists whether or not the purchaser executes the contract with “and/or nominee”; and
  • no longer requires a letter of agency/nomination, nor any formal assignment, where a purchaser named in a contract and the person named in the transfer pursuant to that contract are not the same.

However, stamp duty will still be payable where an assignment document is prepared and executed, or when Section 68 of the Stamp Duties Act 1923 applies.

The ruling contains an example direction to the vendor.

The Sale and Purchase commentaries in the by Lawyers SA Conveyancing publication have been updated accordingly.

Immigration – FED

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Two important changes to Australian immigration law commence on 16 November 2019.

  • The Skilled Employer Sponsored Regional (Provisional) visa 494 is replacing the Regional Sponsored Migration Scheme visa 187.
  • The Skilled Work Regional (Provisional) visa 491 is replacing the Skilled Regional (Provisional) visa 489.

The new visas allow skilled workers to work in regional Australia. They can be a pathway to permanent residency, via the Permanent Residence (Skilled Regional) visa 191, which commences in November 2022.

Applicants for the Skilled Employer Sponsored (Regional) visa 494 must be under the age of 45 at the time of application, have competent English and at least three years full-time relevant work experience in the nominated occupation, or a related field, at the same level of skill. The visa is for a five-year period.

Applicants for the Skilled Work Regional (Provisional) visa 491 must be under the age of 45 at the time of application, complete a positive skills assessment, be nominated by an Australian state or territory government agency, or be sponsored by an eligible family member residing in the regional area and be invited to apply for the visa after the submission of an expression of interest through SkillSelect. The visa is also for a five-year period.

The By Lawyers Immigration publication will be updated accordingly.

Testamentary capacity – NSW

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A recent Court of Appeal decision on testamentary capacity has been added to the By Lawyers publication 101 Succession Answers (NSW).

In Drivas v Jakopovic [2019] NSWCA 218 the Court of Appeal upheld a first instance decision which had given substantial weight to the evidence of the attending solicitor over the retrospective evidence of medical experts based on the deceased’s medical records.

The case is notable because the solicitor had no specific recollection, nor any notes, of the interaction with the client. However the will was time-stamped to show it had been prepared over the course of 1.5 hours spent with the client. The solicitor was very experienced in preparing wills and dealing with elderly clients, including assessing their testamentary capacity. The solicitor gave evidence as to his usual practice when taking instructions, including his understanding of the legal tests for capacity laid down in Banks v Goodfellow (1870) LR 5 QB 549.

The Court of Appeal agreed with the fist instance judge that the evidence of the solicitor – which suggested there was no issue with the will maker’s capacity – was preferable to the evidence of doctors who had considered the deceased’s medical records and made a retrospective assessment that she lacked capacity.

This case highlights the importance of the role of the attending solicitor in assessing testamentary capacity. However it is specific to its facts and reliance upon ‘usual practice’ as evidence of capacity is not ideal. The prudent course, as noted both under Capacity in 101 Succession Answers and in the commentary in the By Lawyers Wills guide, is for the attending lawyer to ensure that comprehensive notes are taken. The notes should include specific reference to the legal tests in Banks v Goodfellow. Where capacity may be in issue, a statement from the testator’s GP or treating doctor as to their capacity, addressing the tests in Banks v Goodfellow, is also likely to be valuable evidence to protect against any later challenge to the will maker’s capacity.

101 Succession Answers (NSW) is available in the reference materials folder in the NSW Wills, Estates, Powers of Attorney, Appointment of Enduring Guardian and Family Provision guides.

Off the plan amendments – NSW

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Off the plan amendments

Off the plan amendments for residential properties are being introduced by the Conveyancing Legislation (Amendment) Act 2018 and the Conveyancing (Sale of Land) Amendment Regulation 2019. The bulk of the amendments will commence on 1 December 2019, however, the provisions affecting statutory cooling off commenced on 25 October 2019, introducing a transition period until 30 November 2019.

The cooling off period for off-the-plan contracts has been extended from 5 to 10 business days. The cooling off warning notice form, prescribed by Schedule 5 of the Conveyancing (Sale of Land) Regulation 2017, has also been amended to reflect this change. A contract for the sale of residential property entered into during the transitional period may include the new cooling off warning notice form or the old form in force immediately before the amendment. There is no obligation for a contract to include the new form of notice until 1 December 2019. 

A summary of the amendments that will commence 1 December 2019 include:

  • Increased vendor disclosure requirements including a Disclosure Statement and draft documents to be attached to the contract. Purchasers can rescind the contract within 14 days of exchange if the Disclosure Statement or relevant prescribed documents are not attached to an off-the-plan contract before it is signed. These new requirements are additional to the existing disclosure regime imposed by Part 2 of the Conveyancing (Sale of Land) Regulation 2017. There is no need to attach more than one copy of the same document to the contract and the Disclosure Statement;
  • Vendors to notify changes to ‘material particulars’. Purchasers can rescind or claim compensation for some changes to material particulars. Notification of changes must be made on an approved form which will be available on the By Lawyers Sale matter plan soon;
  • 10-Business-Day cooling-off period. All contracts for sale of land may use either the old form or new form of warning notice until 30 November 2019. Contracts for established properties may use the old form or new form of warning notice for 6 months after commencement. From 2 June 2020, all contracts for sale, whether for off-the-plan or established properties, will need to use the new form of cooling off warning notice;
  • Purchasers to be given registered plans 21 days before settlement;
  • Deposit to be held in trust. Any money paid by the purchaser by way of deposit or installment under the contract must be retained by the stakeholder in a trust or controlled money account during the contract period. This money cannot be released to the vendor before settlement. This measure will ensure deposit and instalment monies are protected in the event of the developer’s insolvency;
  • Stronger sunset clause protections. The amendments extend the definition of a sunset clause to capture other events which trigger termination of the contract, like the issue of an occupation certificate. Changes also confirm that the Court can award damages if the vendor is permitted to end the contract under a sunset clause. These changes are contained in new Section 66ZS introduced by the Conveyancing Legislation (Amendment) Act 2018. New sunset clause provisions will apply to all off-the-plan contracts, irrespective of whether they were signed before or after commencement.

The By Lawyers Conveyancing (NSW) Publication will be updated accordingly. This will include new provisions in the By Lawyers Contract for the sale of land 2019, precedents and commentary.

Companies – FED

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Following an extensive author review, the By Lawyers Companies guide has been substantially enhanced. Users will find new commentary and a number of helpful new precedents.

The commentary now includes sections on Running a company and Company disputes.

With trademark By Lawyers practicality, the new sections of commentary assist practitioners to advise clients about most of the common issues which arise in the operation of small private companies, from managing company business, conducting meetings, issuing new shares and dealing with various types of company disputes, to negotiating share sales, handling insolvency events and participating in voluntarily winding up. Some aspects of the existing commentary on Setting up a company have also been enhanced and new precedents added.

Users will find the following new precedents have been added to the By Lawyers Companies Guide:

  • Retainer instructions – Company disputes;
  • Initial letter to company which has received a statutory demand;
  • Letter to the client  to make an appointment to sign documentation required for incorporation;
  • Letter to the client advising that the company has been incorporated;
  • Letter to the client with draft shareholder’s agreement;
  • New letters gathering information relevant to company disputes:
    • Letter to client requesting relevant documents;
    • Letter to director requesting inspection of company minutes;
    • Letter to director requesting company records; and
    • Letter to director advising of intention to seek a s 247A order to inspect company records;
  • New option precedents:
    • Notice of exercise of call option;
    • Notice of exercise of option to purchase
    • Notice of exercise of put option;
    • Notice of appointment of nominee;
    • Letter to seller’s solicitor exercising option; and
    • Letter to buyer’s solicitor exercising option;
  • Company resolution; and
  • Minutes of meeting – Directors.

These substantial enhancements to this already popular publication are part of By Lawyers commitment to constantly add value for our users and keep our content updated.

We invite you to peruse the new commentary and precedents in the Companies Guide, located in the Companies, Trusts, Partnerships and Superannuation publication. Also available in the Reference materials folder on each of these matter plans is the helpful reference manual Business structures and comparative table, which compares and contrasts the different types of business structures and considers their advantages and disadvantages, including from a taxation point of view.

 

 

 

Workers Compensation – NSW

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The By Lawyers Workers Compensation – NSW publication has been updated.

The final provisions of the Workers Compensation Legislation Amendment Act 2018 commenced on 21 October 2019.

The amendments include the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings.

The new Schedule 3 to the Workers Compensation Act 1987 provides the method for determining pre-injury average weekly earnings. Insurers and workers may now agree on a figure.

The relevant section of the By Lawyers Workers Compensation – NSW commentary has been updated accordingly.

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