ByLawyers News and Updates
  • Publication updates
    • Federal
    • New South Wales
    • Victoria
    • Queensland
    • South Australia
    • Western Australia
    • Northern Territory
    • Tasmania
    • Australian Capital Territory
  • By area of law
    • Bankruptcy and Liquidation
    • Business and Franchise
    • Companies, Trusts, Partnerships and Superannuation
    • Conveyancing and Property
    • Criminal Law
    • Defamation and Protecting Reputation
    • Employment Law
    • Family Law
    • Immigration
    • Litigation
    • Neighbourhood Disputes
    • Personal injury
    • Personal Property Securities
    • Practice Management
    • Security of Payments
    • Trade Marks
    • Wills and Estates
  • Legal alerts
  • Articles
  • Question of the week
  • By Lawyers

Material Facts

27 May 2022 by By Lawyers

English and Australian common law is historically based on promoting the needs of the wealthy in preference to the poor. Consider the traditional preference to the lender over the borrower, the landlord over the tenant and the vendor over the purchaser. Hence the principle, caveat emptor – let the buyer beware.

But, the Golden Age of the consumer has been the greatest force for change in Australian law over the last 50 years and initially the courts, but more recently, Parliament have made changes to the law in all of these areas designed to promote the interests of the consumer over the wicked lender, landlord or vendor. The Consumer Credit Code in respect of lending, the Residential and Retail leasing legislation in relation to tenancy and the Vendor Statement requirements in relation to sales are three standout examples. We are getting much closer to crossing the Rubicon from caveat emptor to caveat vendor and recent changes, somewhat surreptitiously introduced, take us further down that path.

Sale of Land Act 1962 was indeed a very early example of consumer protection. The post-World War 2 rush of migration to Australia produced a vast number of people willing to work hard and make a new life. The first thing they needed was a job, of which there were plenty, and then somewhere to call home. Owning a little piece of big Australia was the migrant dream and the best way to do that was a hundred pounds down and five pounds a week. Contracts for the sale of land, or house and land, could be structured to meet the needs of this new class of property owner who, by and large, were not welcome at the door of traditional lenders. Rather than buying the property outright, by what is referred to as a ‘cash contract’, these transactions were based on payment over time, known as a ‘terms contract’. A small deposit at the beginning and small regular payments over a longer period of time, traditionally 5 years.

There was no shortage of supply for this demand. Small inner-city houses and new greenfield subdivisions serviced the need and the economy developed quickly. But there was a fundamental flaw with the application of this model on such a wide scale – no-one ever became the new owner. The title to the land remained in the name of the owner who started the chain and successive purchasers on-sold, usually taking a small profit out to apply to a ‘better’ property. By this method a chain of owners was created, with the original owner still on title and the rights of each successive owner dependent upon the due performance of the chain of contracts. As soon as one link in the chain failed, the chain broke, often with drastic consequences for the last person in the chain who, having paid their money, might lose it all.

The initial objective of the Sale of Land Act was to prevent this situation harming those at the end of the chain by outlawing successive terms contract. Thus, a purchaser on a terms contract may enter into a contract to sell the land, but only pursuant to a cash contract, not another terms contract. By this means, the title is transferred to the subsequent purchaser at the same time as the original terms purchaser completes their terms contract. This overcame the terms contract problem, but created a new problem of needing to invent a new financing model to provide a capital amount to complete the purchase contemporaneously with the contract, rather than over a number of years. Initially, this funding came by way of the second mortgage, a device designed to allow the purchaser to make up a shortfall in borrowing power by paying the vendor a part of the sale price over an extended period and eventually led to an easing of borrowing requirements and, ultimately, to the rise of Building Societies that were prepared to support borrowing for this purpose.

In the 1980s the Sale of Land Act was again the vehicle for the introduction of significant consumer protection provisions. Rarely, but occasionally, a purchaser would lose their deposit when a vendor sold a property that was subject to a substantial mortgage and the vendor took the deposit and decamped, leaving the purchaser with the vendor’s mortgage that could not be discharged for the balance due under the contract. Stakeholding of the deposit pending settlement was the solution, an admirable outcome but clumsily introduced. The more significant changes were aimed directly at the caveat emptor principle and, for the first time, introduced a vendor obligation to disclose certain information about the property prior to contract. Until this time, the vendor ranged wide and free across the property landscape. The hapless purchaser was invited to sign a contract (or even more dubious, a Contract Note or Sale Note) and then commence inquiries about the property that the purchaser was by that stage legally bound to buy. The farce of Requisitions on Title was meant to be the shield for the purchaser, but was in fact made of papier mache and the purchaser was effectively obliged to accept the property warts and all.

The vendor’s obligation to provide certain information in relation to the property prior to the purchaser entering into the contract was based on the consumer protection adage that information is knowledge and that an informed consumer is better able to make a judgment about the transaction. By and large, this has proven correct, with prospective purchasers now able to seek advice about the information provided in the Vendor Statement prior to committing to the transaction. The removal of the dubious Contract Note means that the purchaser is also more than likely now advised about the full terms of the contract, as well as the matters disclosed by the Vendor Statement.

But the vendor disclosure obligations are not a tell-all obligation. The vendor is only obliged to comply with the requirements of s 32 and, provided the vendor does that, no further disclosure is required. Austlii is littered with cases testing the extent of those obligations and various legislative fine-tuning exercises have taken place over the years. For every obligation specified in s 32, there is a question of degree or uncertainty. For instance:

  • building permits must be disclosed, but what if no building permit was obtained?
  • notices affecting the land must be disclosed, but what about notices affecting adjoining land?
  • do defects such as contamination, asbestos or structural defects need to be disclosed?

As the law stands, s 32 probably does not require the disclosure of such matters but here is the tension between caveat emptor and caveat vendor, with the above questions being answered in the negative on the basis of caveat emptor but potentially requiring disclosure if a caveat vendor principle is applied.

An amendment to s 12 Sale of Land Act that came into effect on 1 March 2020 moves this tension further in favour of a caveat vendor approach. Importantly, the new section does not create vendor disclosure obligations that directly affect the vendor-purchaser relationship, as the section creates an offence rather than directly giving rights to the purchaser, but arguably the purchaser can rely on a breach of s 12 to challenge the vendor for non-disclosure. It may have been preferrable to keep all vendor disclosure obligations within s 32, with any expansion of those obligations structured to complement the existing obligations, rather than a supplementary regime established by s 12.

Previously, s 12 created an offence for a vendor or vendor’s agent to fraudulently make a false representation in relation to the sale of land. The section had been something of a ‘lame duck’, as establishing fraud in such circumstances carried a high onus of proof. Changing ‘fraudulently’ to ‘knowingly’ arguably covers a much more expansive category of representation and GUIDELINES have been issued to illustrate the matters that may require disclosure.

Whilst breach of s 12 is an offence and does not purport to create any legal rights in favour of the purchaser, s 48A of the Act may, indirectly, do so. It has been held in Wagner v Usatov [2014] VCAT 1198 that:

Section 217 of the Australian Consumer Law and Fair Trading Act 2012 (‘the 2012 Act’) creates a right of action for a person who suffers loss because of a contravention of that Act and confers upon VCAT a jurisdiction to determine any proceeding brought to pursue that right of action. So far as is presently relevant, s 217 provides:

(1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

(3) A proceeding under this section may be brought before VCAT or in any court of competent jurisdiction.

Section 48A of the Sale of Land Act is headed ‘Application of Australian Consumer Law and Fair Trading Act 2012’. Section 48A (1) provides:

(1) Sections 125, 195 and 196 and Part 8.2 (except section 213) of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act.

Section 217 of the Australian Consumer Law and Fair Trading Act is within Part 8.2.

The combined effect of those two sections is that a person who claims to have suffered loss as a result of a contravention of a provision of the Sale of Land Act 1962 may bring a proceeding at VCAT, under s 217 of the 2012 Act, to recover the amount of the loss against any person who contravened the provision of the Sale of Land Act. In other words, it is as if the words ‘this Act’ in s 217 were ‘the Sale of Land Act 1962’ instead.

This view was adopted in Han v Pirrie [2019] VCAT 1966.

In Wagner v Usatov the vendor was found to have breached s 32(2)(e) by not disclosing particulars of a planning permit and the purchaser was successful in a claim for losses said to have arisen from this breach.

Importantly, whilst Australian Consumer Law and Fair Trading Act 2012 requires the alleged breach to have arisen in the context of a supply of an interest in real estate in trade or commerce, not such limitation applies when the vendor has breached a provision of the Sale of Land Act 1962. A ‘private’ vendor who breaches s 12 Sale of Land Act 1962 will be liable to the purchaser for any loss suffered by the purchaser because of that contravention.

Potentially, this sounds the death knell of caveat emptor in respect of the sale of real estate and crowns caveat vendor as the ruling principle. Whether that revolution should have been via a palace coup, rather than an election where the competing arguments were considered, is a matter for debate. Indeed, given the lack of fanfare, perhaps this was an accidental coup. Fine tuning and expanding the fundamental disclosure section (s 32) would have been a preferrable course of action to the introduction of an entirely new and uncertain category of material facts.

Perhaps the final nail in the coffin of caveat emptor will be the imposition of a compulsory building inspection report in relation to any property (or perhaps just residential properties) that must be obtained by the vendor prior to sale and included in the Vendor Statement. This would probably add $1,000 to the cost of every proposed sale and might have the unintended effect of hosing down the property market. People would suddenly find themselves bidding for properties on a ‘warts-exposed’ basis, rather than through rose-coloured glasses.

Material Fact Guidelines

Sale of Land Act 1962

Section 12(d)

The Sale of Land Amendment Act 2019 (Amendment Act) was passed by the Victorian Parliament on 28 May 2019 and received the Royal Assent on 4 June 2019. The Amendment Act makes a number of amendments to the Sale of Land Act 1962 (the Act), including an amendment to section 12(d) of the Act.

Purpose

Section 12A of the Act (as amended) says:

The Director of Consumer Affairs Victoria may make guidelines to assist vendors of land and their agents to understand what a material fact is likely to be for the purposes of section 12(d).

A court may have regard to any guidelines made under subsection (1).

The purpose of these guidelines is to assist vendors of land and their agents (including estate agents) to understand what a material fact is likely to be under section 12(d) of the Act.

Context

Section 12(d) of the Act (as amended) provides:

Any person who, with the intention of inducing any person to buy any land—

(d) makes or publishes any statement promise or forecast which he knows to be misleading or deceptive or knowingly conceals any material facts or recklessly makes any statement or forecast which is misleading or deceptive shall be guilty of an offence against this Act…

The penalty for breaching section 12(d) of the Act is 120 penalty units or up to 12 months imprisonment.

The Amendment Act replaces the word ‘fraudulently’ with ‘knowingly’. The previous wording of section 12(d) of the Act reflected the common law tort of deceit where, although a vendor or agent is generally not required to advise a potential purchaser of any serious defects in the property of which they are aware, they cannot fraudulently (meaning, knowingly with intent to deceive) actively conceal defects. In addition, a vendor may commit the tort of deceit if they fail to answer any question about the structural soundness or quality of the property honestly and completely.

The change to section 12(d) means that it is an offence if a vendor or agent knowingly conceals a material fact about land for sale, with the intention of inducing a potential purchaser to buy the land. It is not necessary to show that anything active was done to conceal the material fact, although doing so knowingly will still be an offence. It is sufficient if a vendor or agent withholds a material fact which the vendor or agent knows to be material, with the intention of inducing a potential purchaser to buy the land.

As amended, section 12(d) of the Act supports a purchaser to make a fully informed decision before they buy land.

Commonly, some information about a property for sale may only be known to the person who has owned and/or occupied that property, and may not be known to potential purchasers even if they have personally inspected the property.

This information imbalance makes it essential for the vendor or their agent to be obliged to disclose material facts known to them to a potential purchaser of the land.

What is a material fact?

A material fact is a fact that would be important to a potential purchaser in deciding whether or not to buy any land. In the context of a proposed sale of land, a material fact is one that influences a purchaser in deciding whether or not to buy any land at all, or to buy land only at a certain price.

A fact is not inuendo, gossip or mere speculation. However, an opinion may be a ‘material fact’, if it is an expert opinion that is honestly held on reasonable grounds, and the vendor or agent have knowledge of that expert opinion.

Failure to disclose a fact alone is not sufficient to establish an offence under s 12(d). The fact must be material. A fact can be ‘material’ in two ways:

  1. Generally: a fact that an average, reasonably informed purchaser with a fair-minded understanding of the property market, including the role of an estate agent, would generally regard as material in their decision to buy land (examples are provided below).
  2. Specifically: if a fact about land is known by the vendor (or the vendor’s agent, including an estate agent) to be important to a specific purchaser, it can be material, even if other agents and consumers would not generally consider that fact to be important or of significance to them. This knowledge could arise if (for example) a particular purchaser:
  3. asks a specific question about the land of the vendor or the vendor’s agent (including their estate agent), and/or
  4. where a purchaser informs the vendor/agent of their intended use of the land.

Further indications which would be relevant to determining whether something is a material fact include:

  • whether the fact is only known by the vendor
  • the reaction of other potential purchasers to the fact, including whether knowledge of the fact may impact a potential purchaser’s willingness to buy land, and
  • whether the fact results in the property being in a rare or unusual category or position.

Vendors or agents who have knowledge of material facts cannot rely on purchasers becoming aware of them through making ‘usual inquiries’ or following the Due Diligence Checklist to avoid disclosure. General examples of material facts about land which are known to the vendor or agent but which may not be obvious to a potential purchaser include (but are not limited to) circumstances where:

  • prior tests or investigations have revealed (or the vendor or agent otherwise knows of) a defect in the structure of the building, a termite infestation, combustible cladding, asbestos (including loose-fill asbestos insulation) or contamination through prior uses of the land,
  • the underlying cause of an obvious physical defect is not readily apparent upon inspection (for example, whilst a large uncovered crack in a wall would be obvious to a purchaser upon inspection, the underlying reason for the crack, such as defective stumping, may not);
  • there has been a significant event at the property, including a flood, or a bushfire,
  • there is a history of pesticide use in the event the property had been used for horticulture or other agricultural purposes,
  • there are restrictions on vehicular access to a property that are not obvious during a property inspection (such as truck curfews or where access is via an easement that is not apparent on the Certificate of Title or plans),
  • facts about the neighbourhood surrounding the property which may not be immediately apparent upon inspection (such as sinkholes, surface subsidence, development proposals) that would likely affect the use and enjoyment of the property to a greater extent than the usual disturbances and inconveniences of occupying land of the kind and in the local area of the land being sold,
  • building work or other work done without a required building permit, planning permit or that is otherwise illegal,
  • the property during the current or previous occupation has been the scene of a serious crime or an event which may create long-term potential risks to the health and safety of occupiers of the land, such as:
    • extreme violence such as a homicide
    • use for the manufacture of substances such as methylamphetamine, or
    • a defence or fire brigade training site involving the use of hazardous materials.

There is a community expectation that homicides that have occurred at a property be disclosed to potential purchasers. Other known acts of extreme violence should be disclosed if a potential purchaser makes a specific enquiry. While these circumstances may not be a physical barrier to the use of the property, they may materially affect a purchaser’s decision to buy the land.

Defects and damage arising from prior significant events of the kind specified above, and contamination from prior uses of the land will not be considered material if they have been fully remediated, and no further repairs or other works (including ongoing work) will need to be carried out in the future. However, if a potential purchaser asks a specific question relating to defects and damage arising from prior significant events, or from contamination arising from prior uses of the land, those questions must still be answered by the vendor fully and frankly and to the best of the vendor’s knowledge.

Positive enhancements or improvements made to a property such as renovations are likely to be disclosed in the course of marketing land for sale. Positive information about land for sale, if withheld, is not of its nature the kind of information which is likely to ‘induce’ a sale.

When to disclose material facts

Estate agents (or vendors where they are not using an estate agent) should disclose all known material facts to potential purchasers as soon as they indicate that they are considering purchasing the property. They must also make continuing disclosure if further material facts become known until the property is sold.

Generally, material facts will not be concealed from purchasers if they are disclosed:

  • in marketing material or information statements; or
  • in a section 32 statement or contract of sale; or
  • on a physical inspection of the property where they are clearly visible; or
  • by specific disclosures made to particular purchasers in the course of negotiations; or
  • before the start of a public auction.

However, specific disclosure of a material fact to a particular purchaser will be required where the vendor or agent knows that the material fact has not come to the attention of the purchaser by other means.

Vendors are not required or expected to carry out tests and investigations of the property to determine if there are any unknown problems that ought to be disclosed, other than as may be required to prepare a section 32 statement.

However, if a potential purchaser asks a vendor or a vendor’s agent a question about a property, before that property is sold, the vendor or the vendor’s agent must answer that question fully and frankly and to the best of their knowledge.

If the vendor or a vendor’s agent has no knowledge of the matters raised by the potential purchaser, they can advise that potential purchaser that they do not know.

What should vendors do?

Vendors should prepare the property for inspection by potential purchasers without taking any steps to hide defects or any other important feature which would otherwise come to the attention of someone doing an inspection. They should carefully consider all information known to them or disclosed to them by their solicitor or conveyancer after having conducted the usual searches and inquiries for a section 32 statement and disclose any known material facts to their estate agent prior to the marketing of the property. Vendors should answer all inquiries about the property put to the vendor by purchasers through their agent as fully and frankly as possible.

If vendors disclose material facts to their estate agent for the purpose of answering questions asked by potential purchasers, acting reasonably and diligently, they have discharged their obligation to not knowingly conceal material facts, and the burden of disclosure of those material facts falls upon the estate agent.

If the vendor is selling the property without an estate agent, the vendor should answer all questions about the property put to them by purchasers as fully or frankly as possible in the circumstances.

What should estate agents do?

Estate agents should discuss with vendors any material facts that are likely to be the subject of statements or representations by the estate agent in the course of marketing the property. During this process, it is important for the estate agent to inspect the property, read the section 32 statement and contract and gather information from the vendor and their solicitor or conveyancer on aspects of the property which are material to the market to assist them in accurately and honestly representing the property.

The estate agent should answer all inquiries by purchasers as fully and frankly as possible in the circumstances, including by referring those inquiries back to the vendor or the vendor’s solicitor or conveyancer as necessary and diligently following up those responses.

These pro-active steps are also required of estate agents under the Estate Agent (Professional Conduct) Regulations 2018 which require an estate agent to act fairly, honestly, in good faith and in the vendor’s best interests. It is also best practice if the estate agent provides potential purchasers with a copy of the section 32 statement and contract of sale at open for inspections and via email as early as possible in the marketing campaign.

Filed Under: Articles, Conveyancing and Property, Victoria Tagged With: conveyancing, Conveyancing & Property

Adverse action – FED

26 May 2022 by By Lawyers

The recent employment law case of Qantas Airways Ltd v Transport Workers’ Union of Australia [2022] FCAFC 71 considered adverse action under the Fair Work Act 2009 and the obligation on an employer to establish that a decision affecting a worker is not contrary to the prohibitions in the Act.

Adverse action is covered in the By Lawyers Employment Law guide.

Sections 340 to 345 of the Fair Work Act prevent an employer from taking adverse action, as defined in s 342, against an employee who exercises a workplace right, defined in s 341.

For example, if an employee is dismissed, which constitutes adverse action being taken against them, because they made a complaint against their employer, which constitutes their exercise of a workplace right, then the employee may be able to bring a general protections claim against the employer.

In the recent case Qantas made a decision, while its fleet was grounded for the pandemic, to outsource ground handling operations at Australian airports. That resulted in Qantas employees losing their jobs to external providers. The union sought reinstatement of the employees on the basis that Qantas’ decision constituted adverse action on a number of bases. Qantas denied this and argued that the decision was made for operational business reasons.

The court found for the employees on one of the adverse action grounds, namely that the real reason for Qantas’ action in standing down employees was to prevent the exercise of a workplace right, being their right to negotiate a new Enterprise Bargaining Agreement which fell due shortly afterwards. Interestingly, that meant the court upheld the adverse action claim on the basis of a workplace right that did not exist at the time of the decision, but may exist at some future point in time.

The court looked in detail at how the decision was made, what the company took into account, and its knowledge of the future workplace right. The court found that Qantas knew it was circumventing the future right, whereas if it had no such knowledge the outcome may have been different.

The case may go on appeal, but it serves to remind workers of the robust nature of their rights under the Act and employers of the extent of their obligations.

This case will be added to the By Lawyers 101 Employment Law Answers publication and any developments on any appeal will be monitored.

Filed Under: Employment Law, Federal, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: adverse action, employees, employers, Employment law

Estate agent – Agent’s commission – Money for nothing

25 May 2022 by By Lawyers

By Russell Cocks, Solicitor

First published in the Law Institute Journal

Victorian estate agents might be contemplating adopting this famous Dire Straits song as their new anthem after the recent Court of Appeal decision of Icon Property P/L v Wood [2008] VSCA 123, a decision handed down on 26 June 2008.

Wood engaged Icon to sell an apartment. A purchaser signed a contract and paid a deposit by a cheque which was subsequently dishonoured. The vendor rescinded the contract and sued the purchaser for losses, but the purchaser was the typical ‘man of straw’ and the vendor recovered nothing.

In the meantime the agent sold the property to a second purchaser and that transaction settled in due course. When the agent accounted to the vendor, commission was deducted in respect of both the first (failed) sale and the second sale. The vendor issued proceedings in VCAT claiming a refund. The vendor gave evidence that the agent had agreed prior to the second sale that only one commission would be charged and the vendor appears to have been fairly convinced that that was the case as an attempt by the vendor to ‘discuss’ the question of commission with the agent resulted in an intervention order against the vendor. Nevertheless VCAT did not accept that evidence and found that the agent was entitled to commission on the first sale. However VCAT held that the agent did not hold an authority pursuant to s 49 Estate Agents Act to charge commission on the second sale and ordered a refund in respect of that commission.

Perhaps there was some justice in this result as the vendor made the sale and the agent made a commission. But when considered in the context of the first sale alone, the agent made the commission even though the vendor did not make the sale. Whilst this was the outcome, perhaps it was not the decision. Judge Bowman stated that ‘ultimately it was basically agreed between the parties’ that the agent was entitled to the first commission and although he said ‘in my view, that approach is correct’ there does not appear to have been any argument on the point, much less reference to authority.

Victorian estate agents have long been a protected species. The general common law principle of agent’s entitlement to commission requires the sale to be completed before the agent is entitled to a commission and this is the law in other States of Australia. But a long line of Victorian authority has established an agent’s entitlement to commission at an earlier point in time, generally referred to as ‘when a purchaser signs a document capable of becoming an enforceable contract’ if that document is subsequently signed by the vendor. This recognises that it is the agent’s function to find the purchaser and it is then for the vendor to complete the transaction. On this basis an agent will be entitled to commission if the vendor ‘lets a purchaser out of a contract’ or the contract falls over as a result of the action, or inaction, of the vendor, such as a defective Vendor’s Statement, resulting in the purchaser avoiding the contract. But this is not an absolute right and an agent will not be entitled to commission if the sale ‘goes off’ because a special condition (such as a loan condition) is not satisfied.

No Victorian case has considered an agent’s right to commission where effectively no deposit has been paid because the cheque bounced, but it has been considered in New Zealand where it was decided that an agent who failed to collect the deposit (or accepted a dishonoured cheque for the deposit) was not entitled to commission. This seems to be an eminently sensible result, as expecting a vendor to pay a commission when no deposit is paid seems ludicrous, and no less so if the deposit is constituted by a rubber cheque. Agent’s authorities in the past included reference to a 10% deposit. The fact that that requirement seems to have ‘fallen off’ the current authority does not reduce the implied expectation of a vendor that a purchaser will have shown an intention to be bound to the contract by paying the universally accepted deposit of 10%. In specific circumstances a vendor might agree to a lesser deposit, but the normal expectation, and an implied term of the retainer, would be payment of 10% (and not by a rubber cheque!).

The agent unsuccessfully appealed to the Court of Appeal, which confirmed the lack of authority in respect of the second commission. As such, the issue of the first commission was not a subject of the appeal, although none of the judges seemed to have a problem with the first commission and Redlich JA in brief reasons accepted the agent’s entitlement to the first commission. Virtually none of the authorities were discussed (other than in footnotes) and the case, despite first appearances, should not be regarded as authority that a rubber cheque will justify commission. The Fat Lady has not begun to sing the anthem.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Filed Under: Articles, Conveyancing and Property Tagged With: conveyancing, Conveyancing & Property, property, purchase, sale

Excluded beneficiary – NSW

17 May 2022 by By Lawyers

A recent Supreme Court case regarding an excluded beneficiary will be of interest to wills and estates practitioners. The court considered the effect of statements under s 100 of the Succession Act 2006 (NSW).

Nikolaos Tsiokanis died in 2019, aged 86. His will appointed two of his children as the executors of his estate. He made only $100  provision for his other daughter. The deceased made a lengthy statement in the will as to his reasons for effectively excluding his daughter.

The daughter brought a family provision claim. The estate was not a large one.

The court held that the relationship the deceased had with the executors was a stable one and they played an important role in caring for the deceased. The court said the deceased was entitled to, and did, take the plaintiff’s behaviour into account and was satisfied that it justified the reduction of the plaintiff’s share in the estate to nominal provision.

The court also held that the deceased was entitled, when considering any claim by an excluded beneficiary, to consider the nature and value of his estate and to consider, and give priority to, the competing claim of each of the executors with whom he had a close, loving, and supportive relationship.

The court noted that statements made by the deceased are admissible pursuant to s 100(2) of the Succession Act, however the court is not required to accept, unquestioningly, the truth, or accuracy, of the statements. This is particularly so if the content is denied by the applicant, or where there is other evidence that casts doubt upon their accuracy. The court needs to consider that the deceased may have made untrue, or inaccurate, statements, either deliberately, or unintentionally, or it may be that their view is misconceived.

Where evidence of a statement of a deceased is admitted under s 100(9), for the purpose of destroying, or supporting, the credibility of the deceased, s 100(10) permits evidence to be given for the purpose of showing that the deceased’s statement is inconsistent with another statement made, at any time, by the deceased.

Georgopoulos v Tsiokanis & Anor [2022] NSWSC 563 (11 May 2022) will be added to the By Lawyers 101 Succession Answers publication.

Filed Under: Legal Alerts, New South Wales, Wills and Estates Tagged With: estate disputes, family provision claims, wills and estates

Domestic and family violence – QLD

3 May 2022 by By Lawyers

Some temporary procedural arrangements for initiating and hearing domestic and family violence applications in the Magistrates Court of Queensland have become permanent from 30 April 2022.

These arrangements were originally put in place as a response to the COVID-19 pandemic, but the resulting efficiencies have seen the parliament entrench arrangements that allow parties and practitioners to interact with the court remotely.

Amendments under the Justice and Other Legislation Amendment Act 2021 impact various Acts and procedures. Those relating to domestic and family violence matters include:

Audio visual link

A new section 142A of the Domestic and Family Violence Protection Act 2012 provides that the Magistrates Court may conduct all or part of the proceeding by the use of audio visual links, or audio links. This includes:

  • appearances;
  • giving evidence;
  • making submissions;
  • taking an oath or affirmation.

Electronic filing

A private application for a Temporary Protection Order (TPO), or an application to vary a TPO, can be filed electronically in any Queensland Magistrates Court if the court is closed on a normal business day, or if the applicant is required to isolate under a public health order.

Listing before verification

In circumstances of urgency, where a private applicant is unable to verify their application for a Temporary Protection Order before a Justice of the Peace or solicitor, they can obtain a hearing date, and then serve the application on the respondent, without verification. The application can be subsequently verified in front of the magistrate who hears the matter.

The commentary in the By Lawyers Protection orders guide has been updated accordingly. An alert has been added to draw practitioners’ attention to the likelihood that proceedings will involve audio visual appearances and evidence.

Filed Under: Criminal Law, Domestic Violence Orders, Legal Alerts, Miscellaneous, Publication Updates, Queensland Tagged With: domestic violence, protection orders, Queensland Magistrates Court

Removal of an executor – VIC

1 May 2022 by By Lawyers

New precedents for the removal of an executor have been added to the Probate and Letters of Administration matter plans.

In Victoria, an application can be made to the Supreme Court for the removal of an executor under s 34(1)(c) of the Administration and Probate Act 1958.

The court can remove the executor if, following an examination of the facts including a significant weighting to the testator’s intention to appoint the executor, the court is satisfied there is:

  • undue delay in the administration of the estate; or
  • a conflict of interest; or
  • an unworkable relationship between co-executors;

that would lead to significant mischief or harm to the beneficiaries’ interests.

In Connock v Connock (in His Capacity as Executor of the Estate of Connock) [2021] VSC 64 the plaintiff was the widow of the deceased. Both had previously been married and had children from these marriages. The plaintiff’s interest in the estate was limited to the assets of the deceased’s superannuation fund and proceeds from various bank accounts. The deceased’s will made no provision for the widow to take an interest in the residue of the estate.

The executor, the deceased’s child of the first marriage, commenced estoppel proceedings seeking a declaration that the plaintiff held the estate assets for her benefit and maintenance during her lifetime, but, on her death, for the benefit equally of the deceased’s children – one of whom was the executor.

The plaintiff claimed and the court accepted that the executor had a conflict of interest between the executor’s duties and his personal interest in the outcome of the estoppel proceeding, but that this conflict did not warrant the removal of the executor. The court held that, although the executor is in a position of conflict, in the circumstances the welfare of the beneficiaries of the estate did not warrant his removal.

The new form content precedents added to the Probate and Letters of Administration publications are:

  • Originating motion to remove and replace executor;
  • Originating motion to remove and replace trustee;
  • Originating motion to remove and replace executor and trustee.

Filed Under: Legal Alerts, Litigation, Publication Updates, Victoria, Wills and Estates Tagged With: estates, executors, probate and administration

Remote witnessing – QLD

1 May 2022 by By Lawyers

From 30 April, 2022 certain temporary remote witnessing measures under the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 (QLD) which allowed parties to make and sign legal documents remotely using digital technology will become permanent. This continues a trend that has seen many COVID-related changes being permanently retained.

The Oaths Act 1867, Powers of Attorney Act 1998, and Property Law Act 1974 have been amended to allow remote witnessing of

  • affidavits,
  • statutory declarations,
  • general powers of attorney for businesses,
  • deeds, and
  • mortgages over an electronic lodgement network.

These documents can all be made remotely, via an audio-visual link, and signed and witnessed electronically.

Nurse practitioners, in addition to doctors, can continue to certify that a person has the capacity to make an advance health directive.

These changes do not limit the ability to make, sign and witness these documents on paper and in person, with respect to which the usual legislative requirements continue to apply.

All relevant By Lawyers guides and precedents have been updated where necessary to reflect these newly permanent arrangements.

However, not all temporary COVID arrangements for remote witnessing have been entrenched permanently.  The temporary laws allowing wills, enduring powers of attorney, and advance health directives to be witnessed over video conference expired on 1 July 2021. This means that these instruments must again be signed and witnessed in person. Similarly, unless given by an individual as part of a commercial transaction, a general power of attorney for an individual must be a physical document that is signed in the presence of a witness.

Filed Under: Queensland, Wills and Estates

Amendment of the PIC rules – NSW

1 May 2022 by By Lawyers

Recent amendment of the PIC rules impacts procedure for motor accident claims and workers compensation claims in the Personal Injury Commission.

The Personal Injury Commission Rules 2021 govern proceedings in both of the Commission’s divisions. The rules have received their first review since the PIC commenced operations. The review has resulted in a number of relatively minor tweaks and additions, and one substantial change.

The minor amendments include:

  • provision for consistency across the divisions as to the material that is lodged in applications;
  • provision for compliance with notices for production across divisions;
  • procedure for lodgment and admission of surveillance recordings;
  • provision for SIRA to intervene in Merit Review Panel proceedings;
  • clarification that an application to refer a medical dispute for assessment can be may be made at any time.

Amendment to time limits for appeals

The substantial amendment relates to time limits. An anomaly in the legislation that established the PIC meant that there has until now been no discretion for the Commission to extend the time for an application or appeal beyond the 28-day period provided in the Act. The legislation has now amended to alleviate that situation, and a new Rule 133A is included in this amendment of the PIC rules to enable the time for applications and appeals to be extended where necessary.

The criteria for extension of time under the new rule is that, for the applicant to lose the right to lodge would result in demonstrable and substantial injustice.

The commentaries in By Lawyers Motor Accident Claims – from 1 December 2017 and Workers Compensation publications have been amended accordingly.

Filed Under: Legal Alerts, Litigation, Motor Vehicle Accidents, New South Wales, Publication Updates, Workers Compensation Tagged With: Motor Accident Injuries Act 2017, Motor vehicle accident, NSW Workers Compensation, personal injury commission

Work health and safety – WA

27 April 2022 by By Lawyers

Work, health and safety laws in WA have changed. The Occupational Health and Safety Act 1984 (WA) has been repealed from 31 March, 2022.

The repealed Act has been replaced with the Work Health and Safety Act 2020. The provisions of the old Act have been consolidated and recast in the new Act, which is substantially based on the national model Work Health and Safety Bill.

The national model Bill was developed under the Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety to underpin a harmonised WHS framework in Australia.

This means WA has now harmonised its legislation with the majority of other Australian jurisdictions.

The key elements of the new Act include:

  • a primary duty of care requiring persons conducting a business or undertaking to ensure the health and safety of workers and others who may be affected by their activities;
  • duties of care for persons who influence the way work is carried out, as well as the integrity of products used for work and persons who conduct training in workplaces;
  • a requirement that officers exercise due diligence to ensure compliance;
  • a framework to establish a general scheme for authorisations such as licences, permits and registrations;
  • protection against discrimination for those who exercise or perform or seek to exercise or perform powers, functions or rights under the Act;
  • continuation of Western Australia’s peak consultative bodies, re-established as the Work Health and Safety Commission (WHSC) and the Mining and Petroleum Advisory Committee (MAPAC).

The commentary in the By Lawyers Employment Law publication has been updated accordingly.

Filed Under: Employment Law, Federal, Legal Alerts, Publication Updates, Western Australia Tagged With: Employment law, work health and safety

Family provision cases – VIC

22 April 2022 by By Lawyers

Changes have been made to the way family provision cases are managed in the Supreme Court of Victoria.

The latest version of Practice Note SC CL 7 (Second revision) provides guidance on how proceedings in the Testators Family Maintenance List are managed by the court.

Family provision claims made under Part IV of the Administration and Probate Act 1958 are commenced in the Testator’s Family Maintenance List, in accordance with Order 16 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018.

The main procedural changes for management of family provision cases from the previous version of the practice note are:

  • an increase in the threshold above which a provision statement, rather than an affidavit, is required to be filed – this will now apply to estates with a valuation of less than $1,00,000 rather than $750,000;
  • introduction of a requirement for the parties to attend at the first directions hearing unless they are otherwise advised by the court;
  • in some circumstances, where position statements or affidavits result in the judge hearing oral evidence, the costs of preparing and responding to position statements and affidavits may be ordered separately to the costs of the overall proceedings;
  • an increase in the threshold below which the court may refer the proceeding to mediation before a judge or a Specified Court Officer, from estates under $750,000 to estates under $1,000,000;
  • communication about proceedings in the list can now be made to the Testator’s Family Maintenance Coordinator via email: tfm@supcourt.vic.gov.au.

Links in the commentary in the By Lawyers Family Provision Claims (VIC) publication have been updated to the new version of the practice note.

Filed Under: Legal Alerts, Litigation, Publication Updates, Victoria Tagged With: deceased estate, family provision claims

  • 1
  • 2
  • 3
  • …
  • 79
  • Next Page »

Subscribe to our mailing list

* indicates required
Preferred State

Connect with us

  • Email
  • LinkedIn
  • Twitter

Copyright © 2022 · Privacy Policy
Created and hosted by LEAP · Log in