obiter | ByLawyers News and Updates

Letter to client after exchange – All states

By

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.

Retail shop lease disclosure – QLD

By

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.

Suspicious circumstances – Wills – All states

By

Suspicious circumstances surrounding the drafting and execution of a will were considered in a recent NSW Court of Appeal case.

The validity of a will can be challenged by those who have standing. These include the people who are affected by it or a previous will. They may suspect the testator lacked the capacity to make the will, or that it was executed under duress, or other suspicious circumstances.

Where a will is executed under apparently suspicious circumstances the onus of proving that nothing untoward occurred is borne by the person propounding the will. Probate will not be granted unless the propounder allays those suspicions.

In Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 at [147] the Court of Appeal considered the onus had not been discharged, despite the primary judge having granted probate of the will.

The suspicious circumstances in that case included the instructions for the will and a power of attorney having not come from the testator/principal, an unexplained variation of the instructions, the description of the executor/beneficiary as the testator’s ‘daughter’ when they were in fact unrelated, the unwarranted urgency and the subsequent transfer of the testator/principal’s residential property to the attorney for nominal consideration. The case was also complicated by the attending solicitor’s decision to destroy an original file note and create a more detailed version some months later, after having also acted for the attorney regarding the transfer of the property.

The mechanical treatment of the suspicious circumstances doctrine by the first instance judge in this case led the Court of Appeal to suggest ‘a preferred approach’ at [164]-[173], although the court observed that the limits of the doctrine ‘can scarcely be regarded as settled’.

Practitioners should take care to observe and inquire about any apparently suspicious circumstances surrounding the instructions for and the execution of wills and other personal documents. Properly identifying the client is a basic precaution, but enquiring about relationships and motivations may also be warranted. Confirming instructions with the client in the absence of those who might benefit from the documents is also prudent. Clear, accurate, detailed and contemporaneous file notes are always advisable.

This interesting case has been added to the By Lawyers 101 Succession Answers (NSW) publication.

Condition and finding – All states

By

A new precedent with example content has been added to all By Lawyers Estates guides. The example content is for an affidavit regarding the condition and finding of a will.

Such an affidavit may be required to satisfy the court as to any issues surrounding the condition an original will is in, or the circumstances by which it was found. This affidavit may be lodged either with an application or in response to a requisition when applying for a grant of probate, or a grant of letters with the will annexed.

This new precedent provides extensive example wording addressing the issues of the will’s condition and finding. The content encompasses evidence to be given by an employee of the firm, the executor, a subscribing witness, or another person who has knowledge of how, for example, marks upon the will are not an indication of revocation.

As with all By Lawyers ‘example content’ precedents, the relevant form can be found immediately above the new precedent on the matter plan. The example content can be modified as required and pasted into the appropriate place in the form.

Conveyancing – supplier notification – All states

By

Supplier notification obligations for GST withholding

By Lawyers frequently receive questions from subscribers about supplier notification and GST withholding obligations for residential conveyancing. Commentary on GST withholding requirements for residential properties can be found in all By Lawyers Sale and Purchase Guides.

A vendor/supplier will have a notification obligation if supplying, by way of sale or long-term lease, either existing or new residential premises or potential residential land where the purchaser is not a registered entity acquiring the land for a creditable purpose. There is no requirement that the supply be a taxable supply.

Where a notification obligation exists, the vendor/supplier is required to provide the purchaser with a written notice, called a Supplier notification, containing information to help the purchaser comply with their GST withholding obligations.

The notice must state whether or not the purchaser has a withholding obligation. If the purchaser does not have a withholding obligation, the notice must make it clear that ‘no withholding is required‘.

If the purchaser does have a withholding obligation then the notice must include additional information. The requirements are set out in Schedule 1 of the Taxation Administration Act 1953 – section 14-255.

The By Lawyers Contract for the sale of land includes a clause satisfying supplier notification obligations.

A Supplier notification precedent is available in all By Lawyers Conveyancing – Sale matter plans, in ‘The contract’ folder.

 

Subpoena objections – FED and All states

By

A new case on subpoena objections has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

In Weeks v Nationwide News Pty Ltd [2019] WASC 268, the court considered whether a subpoena in a defamation case should be set aside for lack of  a legitimate forensic purpose (LFP).

The court succinctly stated the law on LFP, to the effect that The issuing party must identify expressly and with precision the legitimate forensic purpose for which they seek access to the documents. The issuing party must then satisfy the court that it is ‘on the cards’ that the documents would materially assist the issuing party in their defence‘.

In this regard the Court followed the leading LFP cases of R v Saleam (1989) 16 NSWLR 14 and Alister v R (1984) 154 CLR 404, 414. The Court also followed the earlier Western Australian full court decision of Stanley v Layne Christensen Co [2004] WASCA 50 regarding legitimate forensic purpose. The subpoena in this case was set aside.

This Western Australian decision has been added to 101 Subpoena Answers under the section on Legitimate forensic purpose in civil cases. This publication is an excellent resource for practitioners conducting litigation and dealing with subpoenas in all courts, whether issuing or responding, and including subpoena objections.

101 Subpoena Answers is available in all By Lawyers state court Litigation publications, as well as our Family Law, Family Provision, Injuries, Employment Law and Defamation guides.

 

Training and supervision – Podcast

By

Training and supervision of junior professional staff is a critical area for law firms. It impacts directly on many key areas of the practice: quality and consistency of output, productivity, team harmony and staff retention – and perhaps most importantly of all client satisfaction.

Our Managing Director Brad Watts recently shared some thoughts, as part of a LEAP global podcast series, about how By Lawyers practical legal guides can assist with training and supervising junior lawyers. Brad has 25 years of legal practice experience and is one of the contributors to the By Lawyers Practice Management guide.

Listen to the podcast to hear how By Lawyers guides can assist firms and individual solicitors with their training and supervision requirements.

By Lawyers guides include detailed commentaries and reference materials which are powerful tools to help ensure junior lawyers  have the guidance and support they need, improving productivity and retention of staff, while easing the pressure on principals and more senior lawyers.

Enjoy practice more, with By Lawyers.

 

 

Special Hardship Order – Traffic law – QLD

By

Following recent amendments, Queensland drivers who are subject to a Special Hardship Order can no longer accumulate any demerit points. If they do, their licence will be suspended for double their original suspension period.

A Special Hardship Order is available under the Transport Operations (Road Use Management–Driver Licensing) Regulation 2010. An application can be made by a driver whose licence has been suspended. The driver must present the court with affidavit evidence that they meet certain criteria and establishing hardship as a result of the licence suspension. If the order is granted the driver will be able to resume driving but will be subject to the conditions of the order for a period equating to the original suspension period.

Breaching the conditions of a Special Hardship Order attracts a fine of 20 penalty units and automatic disqualification for the remainder of the original suspension period, plus 3 months.

Effective from 1 July 2019, drivers who are subject to a Special Hardship Order will also be unable to accumulate any demerit points.

See the By Lawyers Traffic Law guide for more information.

1 July updates – FED and All states

By

1 July updates are a big focus for By Lawyers. This is because many commonwealth and state legislative instruments provide for scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

Insolvency To Do lists – FED

By

The By Lawyers Bankruptcy and Liquidation guides have been updated with the inclusion of four Insolvency To do lists.

These new precedents provide practical guidance for practitioners as they progress through a matter.

The To Do lists provide helpful prompts for each important step to be taken in a matter when acting for either the creditor or the debtor in both personal and corporate insolvency matters, including:

  • Liquidation;
  • Winding up;
  • Deeds of company arrangement;
  • Debt agreements;
  • Personal insolvency agreements; and
  • Bankruptcy proceedings.

The new To Do lists can be found in folder A. Getting the Matter Underway in the By Lawyers Bankruptcy and Insolvency guides and will assist practitioners in safely and efficiently managing their matters.

Connect with us