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Title reform – Conveyancing – NSW

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Title reform – involving the cancellation of certificates of title and other changes to the NSW land titles system – commenced on 11 October 2021. Certificates of title are abolished and the Torrens Register is the single source of truth as to a person’s interest or estate in land. All documents to be registered on the Torrens Register must be lodged by a subscriber, who must verify the identity of the client and establish that they have the right to deal with the land.

These significant changes were introduced in part by the Real Property Amendment (Certificates of Title) Act 2021. The Act provides for the cancellation of certificates of title (CTs) and progression towards 100% electronic lodgment of land transactions.

Title reform  – Cancellation of certificates of title

From 11 October 2021:

  • All certificates of title have been cancelled and will no longer be issued.
  • Existing CTs cannot be required to be produced to have a dealing or plan lodged for registration.
  • Practitioners no longer need to obtain a copy of the CT from their client for a property dealing.
  • Banks are no longer issued with ‘control of the right to deal’ (CoRD) and all recordings relating to CoRD holders have been removed from the Register.
  • Banks can no longer be asked to provide CoRD holder consent in a workspace when a mortgagor wants to lodge a dealing for registration, including a subsequent mortgage.
  • Mortgagee consent still needs to be obtained for the registration of certain dealings.
  • Subscribers are no longer requested to enter the CAC (Certificate Authentication Code) details taken from a CT for consent purposes in the workspace. The concept of the CAC is redundant and is no longer required to be kept securely.
  • Where a subscriber has relied on a CT to establish a right to deal in a transaction conducted before 11 October 2021, the CT or a copy of it must be retained, in line with the requirements for retaining supporting evidence in the NSW Participation Rules.
  • Otherwise, firms holding CTs in safe custody after commencement of this title reform have the following options:
    • seek instructions from each client on what to do with their CT;
    • return all CTs to clients;
    • take a ‘do nothing’ approach.

It is not necessary for firms to stamp a CT as cancelled or mark it in any way if returning it to their client.

Information Notice

From 11 October 2021, in all instances of property ownership, an Information Notice will issue. Details on this notice will include the folio identifier, the dealings registered including registration numbers, the subscriber’s reference and the date of registration. As an Information Notice is not a definitive statement of the state of the Register, a title search will be necessary to acquire accurate title information.

All land dealings must be lodged electronically

From 11 October 2021:

  • Lodging land dealings in paper is no longer permitted. All land dealings are to be lodged with NSW Land Registry Services electronically by a subscriber to an Electronic Lodgment Network such as Sympli or PEXA.
  • The Lodgment Rules specify when out-of-scope electronic dealings can depart from the usual manner of preparing an electronic dealing.
  • Paper dealing prepared before 11 October 2021 can still be lodged with NSW Land Registry Services electronically. They are uploaded as a PDF attachment to the electronic dealing known as ‘Dealing with Exception’. Once lodged, NSW Land Registry Services will examine the paper dealing.

All By Lawyers NSW Conveyancing & Property publications have been updated to reflect these changes.

Expert evidence – Family law – FED

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A new precedent for use when obtaining expert evidence has been added to the Family Law guides.

When the Federal Circuit and Family Court of Australia (FCFCOA) commenced operation on 1 September 2021, it did so with a new set of rules: the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules 2021). The rules apply in all family law matters across both divisions of the court.

Part 7.1 of the Family Law Rules 2021 makes provision for expert evidence. Rule 7.13 provides that experts must be given a recent copy of Divisions 7.14, 7.15, and 7.16. These rules cover requirements for instructions to experts, information about disclosure by experts, their duties and obligations, as well as clarification of the requirements for a single expert report.

A new enclosure has been created which conveniently includes all of the rules in these divisions. The enclosure can be given to the expert witness when they are instructed, thereby making it easy for practitioners to comply with the requirements under the rules. This enclosure has been added to these Family Law matter plans – Property settlement, Children and Financial agreements, for use when obtaining expert evidence. There are corresponding precedent letters to experts on each matter plan.

For Property settlement matters, the new precedent enclosure is located in the Going to court folder under If required – Valuer. There is also a Letter to the valuer for single expert valuation.

For Children matters, the new precedent enclosure is located in the Going to court folder under If required – Single expert witness report. There is also a Letter to single expert witness.

For Financial agreements matters, the new precedent enclosure is located in the Enforcement folder under If required – Single expert witness report. There is also a Letter to single expert witness.

The By Lawyers Family law publication is up to date with all of the recent changes to the family law system after the merger of the two courts into the FCFCOA.

Affidavits and exhibits – Supreme Court – VIC

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The way affidavits and exhibits are prepared and filed in the Supreme Court’s Common Law Division and Commercial Court is changing.

From 1 October 2021 the Court will no longer accept affidavits for filing that include multiple exhibits, or which separate the affidavit and any exhibit. Affidavits must be in a single fully text-searchable PDF format file including any bundle exhibit.

Affidavits must be filed as a single, searchable PDF document, with all pages consecutively numbered. This includes the pages of any exhibit – see Exhibits to affidavits and Filing and service of affidavits in the By Lawyers Supreme Court (VIC) commentaries for more information.

There may only be one exhibit to an affidavit, except for confidential affidavits.

Where more than one document is exhibited to an affidavit, the documents must be combined into a single ‘bundle exhibit’, ordered in the sequence they are referred to in the affidavit. The exhibit must be part of the affidavit, in a single fully text-searchable PDF format file, with legible page numbers at the bottom right-hand corner of each page that correspond with the digital display page numbers of the PDF, that commence from the first page of the affidavit to the last page of the bundle exhibit.

See Affidavits and exhibits in the By Lawyers Supreme Court (VIC) publication for more information.

In a separate but related change to procedure, from 1 October 2021 all evidentiary documents filed in proceedings in the Common Law Division and Commercial Court may not be inspected by any non-party until the document has been read or relied upon in open court. This applies to affidavits, exhibits, witness statements, expert reports, written submissions, outlines of argument and chronologies.

See Practice Note SC Gen 20 Inspection of Civil Court Files by Non-Parties and Notice to the Profession (Changes to File Inspections and Affidavits) for more information.

Purchasing off the plan – All states

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To assist practitioners advising clients who are purchasing off the plan, new precedents have been added to the By Lawyers Purchase of Real Property guides in all states.

The two new precedents for practitioners advising potential purchasers are:

  • Initial letter to proposed off the plan purchaser; and
  • Enclosure – Considerations when purchasing off the plan.

The Enclosure is designed to be provided to clients who are considering buying off the plan. It provides plain language information about:

  • What ‘off the plan’ means.
  • The risks of purchasing off the plan.
  • The advantages of purchasing off the plan.

All the pertinent considerations for a client looking at entering into a contract to buy a property off the plan are covered. Importantly, the potential risks are clearly explained, including:

  • Being locked in until the sunset date.
  • Potential for loss if the market deteriorates between the day of sale and the settlement date.
  • Special conditions that operate in the developer’s favour.
  • Possible dissatisfaction with finished product.
  • Changes to the building.
  • Additional legal costs being involved.

Both new precedents can be found in folder A. Getting the matter underway, on each Purchase of Real Property matter plan.

These helpful new precedents were created in response to a request from a By Lawyers subscriber.

Purchasing off the plan – VIC

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To assist practitioners advising clients who are purchasing off the plan, a new precedent has been added to the By Lawyers Purchase of Real Property (Vic) guide.

The Enclosure – Considerations when purchasing off the plan provides a potential purchaser with plain language information about:

  • What ‘off the plan’ means.
  • The risks of purchasing off the plan.
  • The advantages of purchasing off the plan.

The enclosure covers all the pertinent considerations for a purchaser before entering into a contract to purchase an off the plan property. The potential risks are clearly stated, including:

  • Being locked in until the sunset date.
  • Potential for loss if the market deteriorates between the day of sale and the settlement date.
  • Special conditions that operate in the vendor’s favour.
  • Possible dissatisfaction with finished product.
  • Changes to the building.
  • Changes to the owners corporation.
  • Additional legal costs being involved.

A related new precedent ‘Initial letter to proposed off the plan purchaser’ has also been added.

Both new precedents can be found in folder A. Getting the matter underway on the Purchase of Real Property (Vic) matter plan.

This helpful new precedent has been created by our Victorian property author Russell Cocks. It was developed in response to a request from a By Lawyers subscriber.

Drink driving – QLD

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Amendments to drink driving legislation relating to interlock orders and driver education programs commence in Queensland on 10 September 2021.

Interlock program now applies to more drink driving offences

From 10 September 2021 mandatory interlock orders apply upon conviction for any drink driving offence with a BAC of 0.10 or greater. Previously interlock orders only applied to offences with BAC of 0.15 or more.

An interlock device is a breath testing instrument which is connected to the electrical system of a motor vehicle and prevents the engine being started unless the driver passes a breath test. These devices must be installed, by an approved installer at the driver’s expense, if a court order makes it a requirement of being able to obtain a driving licence.

Education programs for drink drivers

From 10 September 2021 conviction for any offence which attracts a mandatory interlock order renders the driver ineligible to obtain a licence for 5 years from the date of their conviction unless they have completed an approved drink driver education program.

First offenders must complete a brief intervention education program (BIEP). Repeat offenders must complete a repeat offender education program (ROEP). These programs are separate to the Queensland Traffic Offenders Program, which is generally completed prior to the offender being sentenced.

Exemptions from completing the required drink driver education programs are available. Applicants must show that requiring them to do the program would be unreasonable or cause severe hardship. However, applications for exemption cannot be made until the end of the applicable licence disqualification period.

Publication updates

The By Lawyers Magistrates Court (QLD) – Traffic Offences guide has been amended accordingly. See Alcohol Ignition Interlock Program in the commentary for more information. The precedent Letter to client finalising the matter and confirming outcome of plea has been amended to incorporate the new provisions.

Federal Circuit and Family Court of Australia – FED

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The Federal Circuit and Family Court of Australia (FCFCOA) commences operation on 1 September 2021.

The FCFCOA is an amalgamation of the former Family Court of Australia and Federal Circuit Court of Australia.

The new court has two divisions:

  • Division 1 is a superior court of record that includes the judges from the former Family Court. It deals with the most complex matters and exercises appellate jurisdiction.
  • Division 2 is a court of record that includes the judges from the former Federal Circuit Court, which is the single point of entry for all family law and child support matters.

There is a common set of forms and rules across the two divisions. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules 2021) apply in all family law matters, except in Western Australia where the Family Court Rules 2021 (WA) apply. Western Australia also has its own dedicated portal – the eCourts Portal of Western Australia.

They provide for the practice and procedure in both divisions of the FCFCOA except for a few matters such as transfer from Division 2 to Division 1 as set out in the Family Law Rules 2021.

The new court’s website is available: www.fcfcoa.gov.au.

A practice direction deals with Transitional arrangements.

Division 2 of the new court also has a general federal law jurisdiction, like the former Federal Circuit Court.

All By Lawyers Family law publications – Children, Divorce, Financial Agreements, and Property Settlement – are being updated for the commencement of the new court. This includes a full review of the:

  • commentaries, for the new terminology, procedures and hyperlinks to the new rules;
  • matter plans, with a single Going to court folder reflecting the new process; and
  • precedents, to incorporate all necessary changes.

There is a 90 day grace period for using the old forms in the new court. The new court forms will be added to the By Lawyers matter plans as they become available.

By Lawyers always keep our subscribers up to date!

COVID measures for companies – FED

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COVID measures for companies have been further extended. These temporary measures are currently set to expire on 31 March 2022.

Company execution

The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (‘the 2021 measures’) commenced on 13 August 2021. They extend and expand on the measures previously introduced in 2020.

A company can execute a document electronically under s 127 of the Corporations Act 2001. Signatories can sign separate counterpart copies.

The method used must:

  • be appropriate in the circumstances,
  • identify the person in the electronic communication, and
  • indicate the person’s intention in respect of the contents of the document.

The measures also allow for alternatives to execution normally requiring a common seal.

Company meetings

The 2021 measures also extend and expand on the previous COVID measures for companies holding meetings. They modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or allow a meeting to be held, or that regulate giving notice of a meeting, or the conduct of a meeting. The provisions include:

  • a meeting can be held using one or more platforms such as Zoom, Skype or Microsoft Teams;
  • all persons participating electronically are taken for all purposes, including quorum requirements, to be ‘present’ at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using technology to give each person entitled to vote the opportunity to participate in the vote in real time or in advance;
  • persons attending the meeting to speak, such as asking questions, can do so using technology;
  • a proxy may be appointed using technology specified in the notice of the meeting; and
  • notice of a meeting may be given by using technologies. For example, a company could send members an email attaching a notice of a meeting and other material, or provide a link to the notice and the other material for viewing or download.

The By Lawyers Dealing with COVID-19 legal issues – Some practical information publication has been updated accordingly. This helpful summary guide to COVID measures in all states is available at the top of all By Lawyers matter plans.

New rules for IVOs – VIC

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There are new rules for IVOs in the Magistrates’ Court. The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 commenced on 29 August 2021.

Intervention orders are made in the Magistrates’ Court under either the Family Violence Protection Act 2008 or the Personal Safety Intervention Orders Act 2010.

The Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 and the Magistrates’ Court (Family Violence Protection) Rules 2018 provide for the practice and procedure in all proceedings under the respective Acts, including service, orders, subpoenas, affidavits and hearings. The two sets of rules are largely uniform and therefore procedure under both Acts is essentially the same.

The new rules for IVOs revoke and replace these previous rules:

  • Magistrates’ Court (Family Violence Protection) Rules 2008;
  • Magistrates’ Court (Family Violence Protection Rules) (Amendment No. 1) Rules 2011;
  • Magistrates’ Court (Vexatious Proceedings Amendments) Rules 2014;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2017;
  • Magistrates’ Court (Family Violence Protection) Amendment Rules 2018.

The By Lawyers Intervention orders commentary has been updated with links to the new rules. The specialist Intervention orders guide is part of the Criminal – Magistrates Court publication.

Enforcement – VIC

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The By Lawyers Enforcement (VIC)  guide has been extensively reviewed. It provides practitioners with a wealth of practical information on the options available to recover judgment debts.

Three new precedents have been added to the matter plan and the commentary has been revised and updated.

New precedents

  • Example content – Affidavit in support of application for charging order summons. A judgment or order for the payment of a sum of money may be enforced by obtaining a charging order from the Supreme or County courts. This creates an equitable charge over stocks and shares, or any funds in court in which the judgment debtor has a beneficial interest.
  • Example content – Affidavit in support of application for garnishee summons.
  • Example content – Affidavit in support of application for warrant for seizure or sale or for possession of land.

Commentary enhancements

  • New commentary on stop orders, which prevent funds in court being paid out without notice being given to the person who applied for the order.
  • New commentary on the proper use of bankruptcy procedures, which should not be used for the purpose of putting pressure on a debtor to pay the debt.
  • Enhanced commentary on conduct money, the need for it to be sufficient and outlining some practical considerations.
  • Expanded commentary on post-examination procedures, including examination of the debtor on ‘the material questions’ in the  Supreme or County courts.
  • Further commentary on the instalment order process, including attachment of earnings, and the reluctance of the courts to make orders that will force the debtor into extreme hardship or to live a life of deprivation.
  • Expanded commentary on garnishee orders.
  • Expanded commentary on warrants of seizure and the sale of property – goods and land.
  • Enhanced commentary highlighting the difficulties and reality of enforcing judgment debts and managing client expectations, providing practical guidance on securing the best outcome for the client.

The Enforcement guide review, undertaken by our Victorian litigation author Nawaar Hassan, reflects the commitment of By Lawyers to updating and enhancing our publications.

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