obiter | The ByLawyers Blog

ARNECC Model Participation Rules Version 5

By

The ARNECC Model Participation Rules Version 5 for e-conveyancing are in effect from 25 February 2019 in NSW, VIC, QLD, WA and SA.

Client Authorisation Forms

There are now two separate types of Client Authorisation Forms:

  • Client Authorisation Representative– authorises a solicitor or conveyancer to act for the client in a conveyancing transaction;
  • Client Authorisation Attorney– authorises a person acting under a power of attorney to act for the donor in a conveyancing transaction, the donor being the person giving the power.

See rules 5.6 and 6.3 for requirements.

Practitioners must ensure they use the correct Client Authorisation Form for each conveyancing transaction.

These forms are available on all By Lawyers Conveyancing matter plans within Folder ‘A. Getting the matter underway > Verification of identity folder’.

Verification of Identity in mortgage transactions

Responsibilities for verifying the identity of mortgagors have been updated. Practitioners acting for a mortgagee, must take reasonable steps to verify the identity of mortgagors in accordance with r 6.5.1(b), even where the mortgagor is represented.

Additional identity documents

Australian Evidence of Immigration Status ‘ImmiCard’ and Australian Migration Status ‘ImmiCards’ are now acceptable types of identity documents and have been added to the table in Schedule 8 of the Model Participation Rules.

All relevant By Lawyers publications have been updated to reflect the ARNECC Model Participation Rules Version 5, including the detailed Verification of Identity commentary located in all conveyancing and property matter plans under Folder ‘A. Getting the matter underway’.

Personal Property Securities Act and leases

By

Personal Property Securities Act and leases

All By Lawyers Lease Publications have been updated to include new commentary on the implications of the Personal Property Securities Act  2009 (PPSA) for landlords and tenants when entering into a new lease and on assignment. The Retainer instructions and To do list precedents have also been updated to ensure that these important considerations are not overlooked.

Leases often encompass personal property, such as fit-out owned by the landlord made available under the lease, or plant and equipment owned by the tenant left in the premises on abandonment.

In such situations, the PPSA can operate to deprive the true owner of their rights if not recorded on the Personal Property Securities Register (PPSR). For example, unless a landlord registers a security interest on the PPSR in relation to their personal property which is in the possession of a tenant, they may not be adequately protected against claims on the property by third parties including the tenant’s financier.

At the time of entering into a new lease or on assignment, a landlord should consider whether registration of a security interest is required in relation to any personal property. Consideration should also be given to the inclusion of a PPSA clause in the lease to allow the landlord to enforce security interests in personal property. Any such clause must be reasonable, should be confined only to the relevant personal property concerning the lease and should not affect the tenant’s ability to obtain finance or provide security to their financier.

For further information on Personal Property Securities Act and leases , see the By Lawyers Lease publications and the By Lawyers dedicated Personal Property Securities publication.

Leases – Demolition and relocation clause – Commercial lease

By

A new demolition and relocation clause for use in commercial leases has been added to the Library of clauses in all By Lawyers Leases publications. This clause was added as a result of a request from a By Lawyers user.

The new clause provides for termination by either the lessor or lessee in the event that the lessor proposes to demolish the building or a substantial portion of the building of which the premises form part, on the lessor providing 90 days written notice to the lessee. This clause also addresses the costs of relocation of the lessee’s business and requires the proposal for demolition to be genuine.

Please email us at askus@bylawyers.com.au or call 02 4858 0619 with any feedback or suggestions. We would love to hear from you!

Amendment to wills creating discretionary trust

By

Amendments have been made to the following By Lawyers precedent wills creating discretionary trusts:

  1. Individual will creating testamentary discretionary trust;
  2. Client 1 will creating testamentary discretionary trust with client 2 as executor; and
  3. Client 2 will creating testamentary discretionary trust with client 1 as executor.

The precedents have been amended as follows:

Clause 7 has been amended to improve readability. The amendments do not change the effect of the wills.

Clause 9 has been enhanced to better protect the testator’s spouse. The amendments delete sub-clauses (b) and (c). These clauses gifted the residue of the estate to the spouse and provided for gifts to particular beneficiaries, respectively.

Clause (b) has not been replaced, as the spouse has been included as a beneficiary of the trust in clause (g). Previously the trust would only be established if the spouse did not survive the testator. Now the residue will always be gifted to a trust, within which the spouse is a beneficiary.

Clause (c) has been replaced with new clauses (b), (c) and (d) which provide for specific gifts to beneficiaries.

The wills can be found in the By Lawyers Wills publications.

Standardised bail conditions – Criminal QLD

By

The Queensland Supreme Court has developed and made available standardised bail conditions, through its Streamlining Criminal Justice Committee and Rules Committee.

The document is not a practice direction or court form and has no formal application; it is simply an attempt by the court to provide examples of clearer proposed bail conditions so that clients granted bail can better understand their obligations. The document is a useful aid in the drafting of proposed orders when bail is sought and might assist practitioners and their clients in seeking and obtaining bail before the Magistrates Court.

See the By Lawyers Criminal Magistrates Court matter plan for a copy of the Standardised Bail Conditions – and helpful commentary on bail applications generally.

Matter type changes

By

There has been a technical change to the structure of our Defamation & Protecting Reputation and Neighbourhood Disputes publications. They have been changed from federal matter types to state-based matter types.

Subscribers may notice that the title of the Defamation publication now includes a state name. This is nominative only. The content of the Defamation publication is unchanged and remains the same across all states.

For state-based guides and precedents to be visible from existing matters, LEAP Desktop users will need to change their matter type from Other areas of law > Miscellaneous > Disputes to Other areas of law > Disputes.

Keeping up to date – Podcast

By

The law never stands still! Keeping up to date with changes in the law and practice is an ever present challenge faced by law firms.

Legislation and regulations change all the time, new cases are decided which impact the law, new practice directions are released by courts and changes in document lodgement processes are made by various authorities. All these and more need to be continually noted and understood, as they can affect the way a law firm conducts client matters and does business.

Just keeping the firm’s precedents current with changes in the law is a major task – which is not billable! Using precedents which are out of date exposes the firm to risk.

Using By Lawyers commentaries and precedents eases the burden upon firms and reduces their risk.

By Lawyers have a team dedicated to tracking changes in the law in each Australian jurisdiction and ensuring that all of our content is updated as those changes happen. Firms using the By Lawyers guides can be confident that they are using commentaries and precedents which are up to date with current legislation.

In our latest podcast our Managing Director Brad Watts and LEAP’s National Marketing Manager Claire James discuss the issues around keeping up to date with the law and how By Lawyers can help firms to stay on top of changes.

 

Electronic filing in the Magistrates Court – QLD

By

The By Lawyers Magistrates Court QLD commentaries have been updated to reflect the recent changes which introduce electronic filing in the Magistrates Court, as a result of amendments to the Uniform Civil Procedure Rules 1999 by the Uniform Civil Procedure and Other Legislation Amendment and Repeal Regulation (No. 1) 2018 and the subsequent repeal of 49 Practice Directions by Practice Direction No. 4 of 2018.

New Division 4, Part 1, Chapter 22 of the Uniform Civil Procedure Rules 1999 now sets out the rules for electronic filing. For court users to access eLodgement, it is necessary to contact CITEC Confirm to obtain a login.

The following documents are approved by the Principal Register for electronic filing in the Magistrates Court where the proceedings were commenced by a claim that was electronically filed:

  • Claim (Form 2)
  • Application (Form 9)
  • Statement of Claim (Form 16)
  • Request for default judgement (Form 25)
  • Default judgement (Form 26)
  • Affidavit (Form 46)
  • Enforcement Hearing Summons (Form 70)

By Lawyers Guides provide practitioners and support staff with up to date information to help make the practice of law easier.

By Lawyers is going global!

By

BY LAWYERS IS GOING GLOBAL

By Lawyers is excited to announce that in February 2019 we will be launching our online guides and precedents in the United Kingdom. Our UK team is already on the ground working on content with our UK authors – practising lawyers in the various UK jurisdictions.

In the UK, we will duplicate the successful Australian By Lawyers system to give UK lawyers the same real time access to law, matter plans and precedents that are an integral part of practice for their Australian colleagues.

We also wish to assure our Australian clients that it will be very much business as usual at home for our Australian editorial and publishing teams. We have appointed a new management team for By Lawyers Australia to ensure that our Australian publications continue to expand and improve – and remain always up to date, of course.

We have pleasure introducing Brad Watts as the new Managing Director of By Lawyers Australia.

Many of you know Brad already a contributing author and more recently our senior consultant. Brad will take the reigns of By Lawyers Australia from today, reporting to our Chief Executive Officer, Bobbi Young, Chief Operating Officer Danni Larney and the Global Editor in Chief Guy Dawson. Brad will be ably assisted by our new General Manager Paul Maher, previously Legal Editor, and the rest of our wonderful in-house team – plus the 45 practising lawyers across Australia who are our external authors and who help us keep our content relevant, practical and up to date.

We sincerely thank our Australian subscribers for their support over the last decade and we look forward to continuing to assist them to enjoy practice more.

By Lawyers is very proud to be taking our great Australian product to the world.

Combustible cladding – Conveyancing – QLD

By

New regulations for combustible cladding

From 1 October 2018, amendments by the Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) (the Regulation) to the Building Regulation 2006 (QLD) require owners of private buildings to undertake a three-stage process, managed through an online system, to identify whether a building is affected by combustible cladding.

Buildings covered by the Regulation are class 2-9 buildings of Type A or Type B construction for which building approval was given after 1 January 1994 and before 1 October 2018.

The Queensland Building and Construction Commission (QBCC) is the regulator responsible for the online checklist and register.

For further information on the three-stage rollout, see the QBCC website.

Duties of an owner on sale of affected property

A change of building ownership attracts statutory duties for building owners. If one or more of the relevant stages has been completed, an owner must give the new owner:

  • notice, in the approved form, about the extent to which the original owner has complied with Part 4A; and
  • copies of each document given by the original owner to the QBCC under Part 4A.

They must also give the QBCC a copy of the notice given to the new owner. Failure to do so may attract a maximum penalty of up to 20 penalty units.

The By Lawyers Conveyancing (QLD) publication has been updated accordingly.

Connect with us