obiter | ByLawyers News and Updates

Criminal Magistrates’ Court – VIC

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The By Lawyers Criminal Magistrates’ Court publication has been reviewed and enhanced. Improvements following from this review include:

  • The matter plan and commentary have been revised and re-ordered to better reflect the flow of the criminal Magistrates’ Court processes.
  • New and amended commentary headings for improved searchability.
  • The summary of the 2018 bail reforms has been incorporated into the general commentary as those provisions are now entrenched.
  • The commentary on taking instructions in criminal matters has been expanded.
  • The commentary on the preliminary issues which may require practitioners’ attention before the first court appearance, or before a plea is entered, has been enhanced.
  • Commencement of charges is now dealt with in more detail, including notices to appear and the consequently different process which applies compared to a charge and summons, or a warrant.
  • The importance of identifying whether the charge is summary or indictable has been highlighted and discussion of the different processes which apply to each stream has been enhanced.
  • Discussion of the process for charges in the indictable stream has been augmented with new headings added, including the Filing hearing, The hand-up brief, Committal mention, Applying for summary jurisdiction, Pleading guilty at the committal mention and Listing a committal hearing.

Practitioners are reminded that the Criminal Magistrates’ Court publication now also includes the By Lawyers guide to Commonwealth Offences, which covers all aspects of dealing with Commonwealth offences in state courts.

This review is part of the continuing commitment of By Lawyers to updating and enhancing our publications to help our subscribers enjoy practice more.

Land transfer duty waiver – VIC

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The Victorian Government has announced a land transfer duty waiver for purchases of Victorian residential property with a dutiable value of up to $1 million.

For new residential properties, a 50% duty waiver applies. For existing residential properties and vacant residential land, a 25% duty waiver applies.

The applicable waiver is applied to the duty otherwise payable after all other eligible benefits, such as the first home buyer duty concession, the principal place of residence concession and the pensioner concession, have been taken into account.

The waiver can apply to the purchase of an investment property. There is no requirement to live in the property.

The waiver can be applied for more than once.

While a foreign person can obtain the waiver, it does not apply to foreign purchaser additional duty.

To be eligible for this waiver:

  • the purchase must be of residential property;
  • dutiable value must be $1 million or less;
  • the contract must be signed on or after 25 November 2020 and before 1 July 2021; and
  • the arrangement must be a bona fide purchase for adequate consideration i.e. not a gift.

The State Revenue Office will apply the waiver automatically if all eligibility criteria are met based on the information provided in the Digital Duties Form.

For further information, see the State Revenue Office page Land transfer duty waiver for residential property transactions of up to $1 million.

The By Lawyers Conveyancing – Purchase of real property (VIC) Guide has been updated accordingly.

Insolvency – FED

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Insolvency practitioners and lawyers acting for small business clients are advised that the Corporations Amendment (Corporate Insolvency Reforms) Act 2020 and Corporations Amendment (Corporate Insolvency Reforms) Regulations 2020 commenced on 1 January 2021.

These instruments amend the Corporations Act 2001 and Corporations Regulations 2001 to introduce two new insolvency processes: small business restructuring and the simplified liquidation process.

Small business restructuring

Under Part 5.3B of the Corporations Act 2001 an eligible company may have a small business restructuring practitioner appointed. This enables small companies that are financially stressed to restructure debt to continue to trade. The process is supervised by a small business restructuring practitioner, who must be a registered liquidator. Directors play a large role and retain control of the business under supervision. This reduces the costs of external administration and may see the company survive the financial stress experienced.

Simplified liquidation process

Eligible companies may access a simplified and faster liquidation process under Part 5.5 of the Corporations Act 2001, which reduces the costs and time of the process to ensure creditors are paid. In this process liquidators are able to adopt a simplified liquidation process with reduced compliance requirements.

The two new processes are aimed at supporting small businesses in financial stress.

The By Lawyers Insolvency – Company Liquidation commentary has been updated accordingly.

Wills guide reviewed – SA

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The continuing commitment of By Lawyers to updating and enhancing our publications has seen the South Australian Wills guide reviewed.

Subscribers using this popular publication will find a re-ordered and extended matter plan, revised and updated commentary and a number of new precedents. Execution is now a top-level heading on the matter plan, with dedicated commentary on issues such as blind witnesses, gifts to witnesses and solicitors as witnesses. The revisions also include:

  • First steps and taking instructions for wills
  • Testamentary capacity and the test in Banks v Goodfellow
  • The formal requirements for a valid will
  • Informal wills
  • Intestacy
  • Executors
  • Execution
  • Challenges to the validity of a will

New and amended precedents

  • Initial letter to client enclosing costs agreement
  • Letter to client to confirming instructions
  • To do list
  • Instructions for signing
  • Letter reminding client that will is ready for signing

Other resources in the Wills guide reviewed

Links have been added to the By Lawyers reference materials Other trusted and useful resources. This resource can be found in the Reference materials folder on the matter plan.

1 January updates – All states

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The By Lawyers has attended to the following 1 January updates required by legislation and practice in all relevant jurisdictions:

Land tax – Increases to threshold values – NSW

Land tax thresholds in NSW are indexed to rise on 1 January each year.

The 2021 threshold combined land value has increased to $755,000 for all liable land. Special trusts and non-concessional companies are excepted.

A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold plus $100 applies.

If the aggregate taxable value exceeds the premium rate threshold of $4,616,000 then $60,164 is payable plus a marginal tax rate of 2% over that amount.

All relevant commentary and precedents in the By Lawyers Conveyancing & Property and Trusts guides have been updated accordingly.

By Lawyers Contract for sale of land

The 2021 edition is now available on the Sale of real property matter plan in the Contract section.

Leases and subleases – NSW, VIC, QLD, SA and WA

The 2021 editions are now available on the Leases – Act for Lessor matter plan for each jurisdiction.

These additions form part of our continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Bankruptcy

In response to the COVID-19 pandemic temporary changes were made to bankruptcy law, increasing the debt threshold to $20,000 from $5,000 and increasing the time frame for a debtor to respond to a bankruptcy notice to 6 months from 21 days.

As of 1 January 2021 these changes have ceased and a new permanent bankruptcy threshold has been implemented.

The current debt requirement for bankruptcy is a minimum debt of $10,000 and the current time to respond to a bankruptcy notice is 21 days.

The By Lawyers Insolvency – Bankruptcy of individuals publication has been updated accordingly.

Always up to date

In addition to our annual 1 January updates, By Lawyers ensures our publications are updated for 1 June and any other statutory or regulated adjustments where necessary. We also promptly  update our content for all relevant legislative amendments and other legal developments throughout the year, in all jurisdictions.

The team at By Lawyers wishes everyone a prosperous and safe 2021.

Retirement Villages (NSW) – Amendments

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Retirement Villages Amendment Act 2020

The Retirement Villages Amendment Act 2020 has introduced significant changes to exit entitlements, recurrent charges and has enhanced the rights and safeguards of registered interest holders.

Recognising that more than 60% of retirement village residents directly transition into aged care accommodation and that the average age of a person entering a retirement village is 75 and the average age of residents is 81 and more people will be moving into aged care accommodation, the Retirement Villages Amendment Act 2020 address the easing of the financing of the transition.

Most notably, the Act has amended the Retirement Villages Act 1999:

  • to enable the Secretary of the Department of Customer Services to make an order requiring an operator to pay a resident the amount the resident will be entitled to once their residential premises are sold – the exit entitlement – in circumstances where the resident has moved out or intends to move out, and the premises have not yet been sold.
  • To require an operator to pay part of the resident’s exit entitlement directly to an aged care facility in which the resident resides or proposes to reside as payment for accommodation in the facility, instead of paying the exit entitlement to the resident, in circumstances where the premises in the retirement village have not yet been sold.
  • To provide that a former resident of residential premises in a retirement village is not required to pay recurrent charges to the operator of the retirement village once 42 days have passed since the former resident permanently vacated the premises.

The By Lawyers Retirement Villages (NSW) Guide has been updated accordingly. This guide is available within the Conveyancing (NSW) publication.

Contract of sale of land – By Lawyers VIC 2021 version

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Conveyancing practitioners should be aware that the Contract of sale of land – By Lawyers VIC 2021 version has now been published.

The contract is available to LEAP users with the By Lawyers integration and to non-LEAP users by subscription to the Conveyancing (VIC) publication. The contract can be found in the Sale of Real Property (VIC) guide. The contract is also available for purchase through InfoTrack.

The contract was co-authored by Victorian property law guru and long-time By Lawyers author Russell Cocks. For more information about the By Lawyers contract listen to the podcast Seven reasons to use the By Lawyers Contract of sale of land.

The By Lawyers Contract of sale of land for Victoria was introduced on 1 March 2018 and its use has been increasing steadily among Victorian legal practitioners and conveyancers. The contract removes the need for special conditions other than those covering special circumstances and has a number of other advantages over the LIV contract which further simplify the conveyancing process.

Additions to the Contract of sale of land – Parts 1 and 2 – By Lawyers VIC 2021 version

  • GST provisions in the Particulars section of Part 1 have been amended for clarity.
  • An option of 14 OR 21 days has been added in relation to the loan approval period.
  • Clause 14 of the General Conditions has been amended to provide the purchaser with the ability to request an extension of time to obtain loan approval, sets out the corresponding options for the vendor, and provides for the outcome where the vendor fails to respond to the extension request in time.
  • Clause 15 has been amended to provide for the rectification of any error made in the calculation of adjustments that is discovered after completion.
  • Clause 22 clarifies that where the property is subject to the Retail Leases Act 2003, the vendor must provide the purchaser with a copy of the disclosure statement.

Rest assured that the By Lawyers contract is immediately brought up to date with any changes in law or practice.

Serial family violence – WA

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From 1 January 2021 new provisions regarding serial family violence commence in WA. These are the final provisions of the Family Violence Legislation Reform Act 2020. Various sections of this amending Act have commenced over the course of the year. The amendments affect the Criminal Code, Sentencing Act 1995, Bail Act 1982 and Restraining Orders Act 1997, among others.

Serial family violence

From 1 January 2021 there is a presumption against bail for a person charged with a ‘family violence offence’ who has been declared a ‘serial family violence offender’. These terms are defined in s 3 of the Bail Act.

The presumption may be rebutted if there are exceptional reasons why the accused should not be kept in custody and the bail authority is satisfied bail may properly be granted.

Previous amendments

Practitioners will recall that the previously commenced provisions of the amending Act include:

Family violence – Bail considerations

The court may defer consideration of bail for 30 days for an accused charged with an offence where the accused is in a ‘family relationship’ with the victim, as defined in s 3 of the Bail Act. The purpose of the deferral is to allow the court to determine what, if any, bail conditions should be imposed to enhance the protection of the victim of the alleged offence.

There are additional provisions relating to the interaction of bail conditions and restraining orders.

Family violence – Restraining orders

Sections 3 to 6A of the Restraining Orders Act 1997 define all relevant terms used in the Act, including what constitutes ‘family violence’.

Some of the amendments deal with the conduct of family violence proceedings.

The court must enquire as to whether any family law orders are in place for the parties to a restraining order application before the court makes a restraining order. If family law orders are in place, the court must take reasonable steps to obtain a copy or information about the orders and take their terms into account.

At any defended hearing the court is not bound by the rules of evidence and may inform itself on any matter in such a manner as it sees fit: s 44A. This section also specifically makes hearsay evidence admissible.

Victims of family violence may have one or more support person with them when they give evidence.

The court, either on its own motion or at the request of a party, may use CCTV or other screening arrangements for the giving of evidence by any party or witness in restraining order proceedings, subject to consideration of a number of factors set out in s 44E.

More information

The By Lawyers Criminal and Restraining orders guides have been updated accordingly. The changes to these publications will be live from 1 January 2021.

Court books – All states

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Court books are an indexed collection of all documents that the parties rely upon in proceedings, collated for convenience of use during a hearing. They are commonly used in all litigation matters and are compulsory in some courts, especially in specialist lists and on appeal.

A court book ordinarily includes all pleadings and evidence. It generally omits any irrelevant documents, even if they were disclosed in the proceedings. For example, a voluminous bundle of documents may have been produced under a subpoena issued by one of the parties in the lead-up to the hearing, but the party only seeks to rely on a few documents out of the bundle. The court book will contain the subpoena itself plus those relevant documents only.

A properly compiled and indexed court book allows solicitors, counsel and the bench to have a common reference point and easily navigate to relevant documents and issues as the hearing proceeds.

Two new precedents for creating court books have been added to every By Lawyers litigation guide in Australia.

The precedents Court book cover page and Court book index are customised for each court in each jurisdiction. They comply with each court’s requirements and will assist practitioners in compiling court books in all types of litigation.

 

HomeBuilder – FED

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The Federal Government has announced an extension to the HomeBuilder scheme to 31 March 2021, however the grant amount has been reduced to $15,000. The $25,000 grant is still available, with amended eligibility criteria, for building contracts signed on or before 31 December 2020.

HomeBuilder $25,000 grant

For building contracts signed between 4 June 2020 and 31 December 2020, a $25,000 grant is available to certain individuals who build a new home or buy an off the plan home, or substantially renovate an existing home. The grant cannot be used to buy an existing house and is limited to Australian citizens earning less than $125,000 or couples earning less than $200,000.

The value of new builds is capped at $750,000. For renovations, the home must be worth less than $1.5 million before the renovation, and projects must cost between $150,000 and $750,000.

The building contract must be signed between 4 June 2020 and 31 December 2020, and work must commence within six months of the contract date.

Applications must be submitted by 14 April 2021.

HomeBuilder $15,000 grant

For building contracts signed between 1 January 2021 to 31 March 2021, a $15,000 grant is available to certain individuals who build a new home or buy an off the plan home, or substantially renovate an existing home. The grant cannot be used to buy an existing house and is limited to Australian citizens earning less than $125,000 or couples earning less than $200,000.

The value of new builds is capped at $950,000 for NSW, $850,000 for VIC and $750,000 for all other States and Territories. For renovations, the home must be worth less than $1.5 million before the renovation, and projects must cost between $150,000 and $750,000.

The building contract must be signed between 1 January 2021 and 31 March 2021, and work must commence within six months of the contract date.

Applications must be submitted by 14 April 2021.

State-based grants

On top of the HomeBuilder scheme, some states are offering related payments in addition to the Federal grant. See the relevant By Lawyers Conveyancing – Purchase Guide for further information and relevant application forms or links where applications are made online.

All By Lawyers Conveyancing – Purchase Retainer instructions precedents now also include these grant details.

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