ByLawyers News and Updates

Retail leases – NSW

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Certain COVID-19 related arrangements for retail leases have been made permanent.

The COVID-19 and Other Legislation Amendment (Regulatory Reforms) Act 2022 No 5 preserves temporary protections for certain lessees impacted by COVID-19. This is achieved by inserting a savings provision, s 88(1A), into the Retail Leases Act 1994. This has the effect of retaining the relevant provisions of the Retail and Other Commercial Leases (COVID-19) Regulation 2022 even though it is to be otherwise automatically repealed on 14 July 2022.

The COVID-19 protections in question include:

  • Landlords cannot act against an impacted lessee failing to pay rent, failing to pay outgoings, or not being open for business during the hours required under the lease;
  • Rents cannot be increased, except for parts of rents that are calculated based on turnover;
  • Any breaches of a lease which are caused by the tenants’ compliance with Commonwealth or State COVID-19 laws are excused;
  • An obligation on both parties to retail leases to renegotiate in good faith the rent payable under the lease, based on the economic impacts of COVID-19.

The protections reflect those of the National Code of Conduct’s leasing principles. Impacted lessees are generally those who have received government assistance during COVID-19.

The amending Act also creates a new s 89, generally empowering creation of savings or transitional regulations on leases in response to COVID-19.

The commentary in the By Lawyers Leases guide and the relevant section of the 1001 Conveyancing Answers (NSW) publication has been amended to reflect these arrangements, including links to these new sections.

Disclosure certificates – VIC

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A requirement for prosecution Disclosure certificates has been introduced for criminal matters.

The new s 41A of the Criminal Procedure Act 2009 requires the informant, or any other officer who prepared a full brief, to complete a Disclosure certificate and file it with the registry within 7 days of the brief being served. This certificate must be provided to the DPP, if they are conducting the matter, and served on the defence.

Disclosure certificates are required to set out anything that is not included in the full brief because it is subject to a claim for privilege, public interest immunity or other statutory immunity or restriction, and the nature of any such claim.

Sections 41-48 of the Criminal Procedure Act set out the ongoing disclosure requirements on the prosecution. The informant, usually a police officer, also has a general and ongoing duty of disclosure to the Director of Public Prosecutions where that office is conducting the prosecution. The informant must provide to the DPP any information, document or thing that is in the possession of, or known by, the informant that is relevant to the alleged offence, subject to any claims for statutory privilege or public interest immunity: s 415A Criminal Procedure Act 2009.

Disclosure certificates apply also to matters in the indictable stream that proceed by way of a hand-up brief.

The commentary in the By Lawyers Criminal – Magistrates’ Court (VIC) publication has been updated accordingly.

See the By Lawyers  101 Subpoena Answers publication for information about public interest immunity, statutory immunity, and other statutory restrictions.

Meetings and documents – FED

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COVID-related changes which affected the way companies deal with meetings and documents have been made permanent.

Companies and registered management investment schemes are now permanently able to use technology to hold meetings and execute documents under the Corporations Act 2001.

The Corporations Amendment (Meeting and Documents) Act 2022 makes permanent the previous COVID-related changes in the Treasury Laws Amendment (2021 Measures No. 1) Act 2021.

Meetings

A company can choose to hold a meeting:

  • in one or more physical locations;
  • as a hybrid at one or more physical locations and using technology;
  • virtually, if expressly permitted by the company’s constitution.

Members are to be provided with a reasonable opportunity to participate in meetings s 249S. Appropriate notice and provision of sufficient technology for members to participate and vote is required.

Documents

At least once each financial year members may elect to receive documents either electronically or in paper form. A member can request not to be sent any document prescribed in the regulations. The company is required to make notices available on a website and take reasonable steps to provide the member with any requested documents.

The following documents may be provided by the company in electronic or physical form:

  • notices of meetings;
  • resolutions;
  • matters to be considered at a meeting; and
  • minute books.

Execution

Corporate documents can be signed and executed electronically, with company signatories no longer required to sign the document in the presence of a witness physically.

A copy or counterpart of the document can be signed instead of the original therefore split execution is permitted.

Where there is a sole director, but no company secretary, a document is validly executed if:

  • the sole director signs the document; or
  • the sole director witnesses the fixing of the seal.

Where the new rules are followed people dealing with companies are entitled to assume that a document is validly executed.

The permanent changes apply to documents sent and meetings held on or after 1 April 2022.

The By Lawyers Companies guide has been updated to reflect these changes in the way companies may deal with meetings and documents.

Retirement village meetings – NSW

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New arrangements for retirement village meetings and voting procedures have been legislated as part of the ongoing process of COVID-19 provisions being made permanent in various areas of law.

The Retirement Villages Act 1999 has been amended to allow operators to hold meetings of residents and annual management meetings using electronic means.

The amendments also expand the existing voting procedures under the Act to allow for ballot voting by residents to be conducted by electronic means in addition to voting in person.

For all retirement village meetings and voting ballots the operator or the convener of the meeting is required to take reasonable steps to ensure each and every resident is able to participate and vote at the meeting using electronic means.

The commentary in the By Lawyers Retirement Villages (NSW) publication has been updated accordingly. It summarises the meeting and voting procedures and contains links to the new legislative provisions.

The By Lawyers Retirement Villages guide is part of the NSW Conveyancing publication. The matter plan contains many helpful precedents, including the standard retirement village contract, general inquiry document, disclosure statement, lease agreement, and the Model Rules. The full commentary assists practitioners to understand, and to advise their clients about, the standard contract, the mandatory documents, and the legislative requirements.

Statutory legacy – WA

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The statutory legacy for intestacy in Western Australia has increased significantly.

Intestacy occurs when a will does not distribute a deceased estate effectively. The statutory legacy is the amount the deceased’s surviving relatives are entitled to on intestacy under the Administration Act 1903. However, since it was last amended in 1982, Western Australia had the lowest statutory legacy in Australia with the deceased’s surviving partner entitled to:

  • the deceased’s household chattels;
  • the first $50,000 of the intestate estate; and
  • an additional one-third of the balance of the intestate estate.

Where the deceased had children, they were entitled to an equal share of the remaining two-thirds of the balance of the intestate estate.

Where the deceased left a surviving partner but no children, the partner was entitled to $75,000.

If real property was not transferred to the deceased’s partner via survivorship, the statutory legacy could be insufficient for their maintenance.  This often led to a negotiated financial arrangement with their children or proceedings under the Family Provision Act 1972.

From 29 March 2022, with the commencement of the Administration Amendment Bill 2021 (WA), the surviving partner is entitled to:

  • the deceased’s household chattels;
  • the first $435,000 of the intestate estate; and
  • an additional one-third of the balance of the intestate estate.

The deceased’s children are still entitled to an equal share of the remaining two-thirds of the balance of the intestate estate.

Where the deceased left a surviving partner but no children, the partner is now entitled to $705,000

Under the existing scheme, the parental statutory legacy where the deceased is survived by parents, siblings, and nieces and nephews but is not survived by a partner or children, was $6,000. It has been increased to $56,500.

A formula has been added to the Act requiring the amount of these statutory legacies be reviewed every two years.

The commentary in the By Lawyers WA Letters of administration publication has been updated accordingly.

Property law updates – QLD

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Various property law updates have been incorporated in the comprehensive By Lawyers reference manual 1001 Conveyancing Answers (QLD)

Recent judgments which have been added include:

• Contempree v BS Investments Pty Ltd & Anor [2020] QCA 255 – A long term lease that is not registered can still be enforced.
• Legal Services Commissioner v Sheehy [2018] 1 QCA 151 – Solicitors acting on behalf of two people, such as a married couple, require authority from both clients.
• Woolford v Oliver [2017] QMC 14 – Instalment contracts carry additional obligations and duties.
• K7 Developments Pty Ltd v Abbotsford Estates Pty Ltd [2021] VSC 422 – Judicial consideration of the consequences of a contract ceasing to be a Going Concern for GST purposes after contract and before settlement.
• Re Tucker; Nunan v Aylward [2019] VSC 210 – affirming that the younger joint tenant is presumed to have survived the older joint tenant, if time of death cannot be ascertained.

1001 Conveyancing Answers (QLD) is available in all By Lawyers Queensland conveyancing and property law guides. It assists property lawyers and conveyancers to understand the conveyancing process and to solve problems for their clients. The publication receives regular property law updates.

Online probate notifications – ACT

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Online probate notifications have commenced in the ACT.

A named executor or administrator, as the legal personal representative of the deceased estate, has the responsibility to account for the assets and liabilities of the estate before distributing them by the terms of the Will.

In some cases, the estate assets may be released to the named legal personal representative of the estate, however to release certain assets a grant of probate must be obtained.

The legal personal representative commences an application in the probate list of the ACT Supreme Court. Until recently this required publication of a Notice of Intention to Apply in a daily newspaper circulating generally in the ACT. The notice is required to list the identity of the deceased, the date of death, and the date of the will. An application for probate is filed with the Court at least 14 days after this notice is published.

The ACT Supreme Court has amended the Court Procedures Rules 2006 (ACT), to introduce online probate notifications for:

  • a grant of probate;
  • a grant of letters of administration, on intestacy or with a will attached;
  • a reseal of a foreign grant.

Notices of Intention to Apply for a grant must now be published by completing the online form on the ACT Supreme Court website, not less than 14 days and not more than 3 months before the day the application is filed in Court.

The fee for publishing a notice is set out on the ACT Supreme Court website. A unique reference code is generated in the receipt from the online advertisement.

The By Lawyers ACT Probate and Letters of Administration commentaries have been updated accordingly.

COVID Recovery – VIC

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Practice Direction No. 3 of 2022 – COVID recovery currently applies to all types of matters in the Magistrates’ Court of Victoria. It overrides any other directions to the extent of any inconsistency.

In general, remote appearances by clients and practitioners are available, encouraged, and in some cases required. However, physical appearances are also possible, mainly by request, and in some cases required.

The practice direction sets out detailed special arrangements for all types of appearances, including:

  • accused on bail or summons;
  • bail applications and other hearings with the accused in custody;
  • criminal mentions and applications;
  • Specialist courts and programs;
  • intervention orders – applications and hearings;
  • civil hearings including oral examinations;
  • counter services.

In some instances it is necessary for practitioners to email the court and request permission to make a physical appearance in a matter.

The By Lawyers commentaries in all publications involving the Magistrates’ Court have been updated with a link to the practice direction.

  • Magistrates’ Court – Criminal
  • Intervention Orders
  • Traffic Offences
  • Magistrates’ Court Civil – Act for the plaintiff
  • Magistrates’ Court Civil – Act for the defendant
  • Enforcement

These COVID recovery arrangements under the practice direction continue indefinitely at this stage.

Employee or independent contractor – FED

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A new section Employee or independent contractor has been added to 101 Employment Law Answers summarising and providing links to these important recent cases:

Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; and

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

These appeals from the full Court of the Federal Court both turned on the question of determining the workers’ status as employee or independent contractor and were heard together. The High Court held that where parties have comprehensively committed the terms of their relationship to a written contract, which is not challenged as a sham or otherwise ineffective under general law, the characterisation of the relationship as one of employment, or otherwise must proceed by reference to the rights and obligations of the parties under that contract.

Only where there is no written agreement, or the agreement is ineffective, will the traditional multi-factorial test be required to determine the nature and conditions of the parties relationship.

Whether a worker is an employee or independent contractor is important for a number reasons including:

  • vicarious liability – which generally extends to employees but not independent contractors;
  • workers compensation insurance – who is covered and who is responsible for obtaining it;
  • superannuation guarantee payments – whether they apply;
  • unfair dismissal claims – whether a worker has recourse;
  • taxation responsibilities – including whether PAYG tax is required to be deducted from worker payments;
  • long service leave and other leave entitlements – whether they apply;
  • availability of remedies for workers; and
  • the jurisdiction of tribunals.

See 101 Employment Law Answers in the Reference materials folder on the Employment Law matter plan, and the Employment Law commentary for more information.

County Court lists – VIC

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New County Court lists commence in the Commercial Division from 1 March 2022.

The County Court (Chapter I Miscellaneous Amendments) Rules 2021 provide for the Expedited Cases List to become the Complex Cases List from that date. The amending rules provide that the Complex Cases List shall consist of any proceeding that is appropriate for more intensive case management. Transitional provisions in the amending rules provide that proceedings in the Expedited Cases List immediately before 1 March 2022 are, on that day, taken to be entered in the Complex Cases List.

There is also a newly established Arbitration List, for all matters under the Commercial Arbitration Act 2011.

The commentaries in the By Lawyers County Court – Act for the Plaintiff and County Court – Act for the Defendant publications have been updated to include these new County Court lists.

This is the final tranche of changes under these rules amendments. Other changes that have already commenced relate to the preparation and filing of affidavits and exhibits in the County Court, and mediation by the registrar. See our previous News & Updates posts in that regard.

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