ByLawyers News and Updates

Retail lease disclosure – NSW

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The By Lawyers To do list precedent has been updated in the By Lawyers Leases (NSW) Guide to include a section on retail lease disclosure requirements of both the lessor and lessee.

New leases

At least seven days before a retail shop lease is entered into, a lessee must have been given a disclosure statement by the lessor. The maximum penalty for failing to comply is 50 penalty units.

If the disclosure statement is not given, is incomplete, or contains information that is materially false or misleading, the lessee may terminate the lease by notice in writing at any time within six months.

The lessor’s disclosure statement includes a lessee’s disclosure statement, allowing the lessee to set out representations made to the lessee. The Act requires the lessee to complete and give to the lessor this statement within seven days of receipt of the lessor’s disclosure statement. There is a penalty of 50 penalty units if this is not done, but there is no right for the lessor to rescind the lease.

Renewal

On renewal of a retail lease the lessor may provide an update together with a copy of the earlier disclosure statement, or a fresh one.

Assignment

If a lessee assigns a retail shop lease it is relieved from liability to pay money under the lease if it serves upon both the lessor and the assignee a copy of an assignor’s disclosure. This must be done at least seven days before the assignment.

Precedent update

The new section of the To Do list covers the time limits for retail lease disclosure in relation to:

  • new leases;
  • assignment; and
  • renewal of existing leases.

Thanks

This enhancement was the result of user feedback. At By Lawyers, we pride ourselves on the cooperative and collegiate relationship we have with the firms using our commentary and precedents daily. We value the feedback that we receive as it helps us to continually improve our publications.

Testamentary capacity

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Testamentary capacity was considered in a recent Victorian Supreme Court case.

The court found In the Matter of the Will and Estate of Joyce Helen Greer, deceased [2019] VSC 592 that the then 95-year-old testator had capacity. Her will in which she made no provision for one of her two adult sons was admitted to probate.

Of importance in the court’s decision was evidence from the lawyer who took the instructions and drew the will. This was not the testator’s usual solicitor. Her long-term solicitor, one of the executors of the will, had referred the testator to another solicitor, a specialist in wills. He had taken comprehensive instructions and made appropriate notes. He also sought a medical report from the testator’s usual doctor.

The evidence of the testator’s doctor impressed the court and it was preferred to evidence from expert medical practitioners led by both parties. The experts gave opinions based on records, but had not seen the testator.

One of the experts noted a ‘…general consensus amongst experts that capacity is task specific and that individuals with cognitive impairment may retain capacity to do many tasks. Even if [the testator] had been suffering from a degree of executive impairment affecting, for example, her ability to regulate her behavior in a social setting, it did not necessarily follow that she lacked testamentary capacity‘. That is an important point for solicitors taking instructions from will makers to bear in mind.

The case includes, at [126] – [133], an analysis of the cases on proof of testamentary capacity. The court noted that ‘The proof required to establish testamentary capacity does not need to eliminate all doubt and a residual ‘doubt’ does not necessarily exclude the existence of testamentary capacity‘.

The statement of Kirby P in Re Griffith (1995) 217 ALR 284, 294 that the freedom of testation includes the freedom to be ‘unfair, unwise or harsh with one’s own property’ was also cited with approval.

This useful case on testamentary capacity has been added to the By Lawyers 101 Succession Answers (NSW) publication. This valuable resource is found in the Reference Materials folder in the Wills, Estates, Family Provision Claims, and Powers of Attorney, Appointment of Enduring Guardian and Advance Care Planning guides.

Mine subsidence certificates – NSW

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Mine subsidence certificates have been abolished in NSW.

From 30 September 2019, certificates of compliance for properties under Section 15 of the former Mine Subsidence Compensation Act 1961 are no longer available from Subsidence Advisory NSW.

Subsidence Advisory NSW’s records indicate the vast majority of developments in mine subsidence districts are approved structures. In the last ten years, only four claims for homes have been refused due to the structure being non-compliant. Due to the extremely low likelihood of a claim being made for a non-compliant property, the significant cost increase to adequately undertake compliance checks prior to issuing certificates was deemed unwarranted.

As a result, the certificates were not carried over to the Coal Mine Subsidence Compensation Act 2017. Property owners are afforded the following alternative protections under the Act:

  • Subsidence Advisory NSW has discretion to pay a claim for subsidence damage to a contravening development in circumstances where the failure to obtain the relevant approvals was not the fault of the property owner or where exceptional circumstances exist.
  • Under Section 23(a) of the Act, buyers have the right to withdraw from a contract of sale for a structure that does not comply with Subsidence Advisory NSW’s development requirements.

Prospective purchasers who wish to ascertain whether a structure is eligible for compensation can do so by obtaining confirmation of development approval through the vendor or council.

Precedent update – Conveyancing – VIC

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A precedent update has followed recent user feedback. Significant amendments have been made to the ‘Letter to purchaser after exchange‘ in the Purchase of Real Property Guide.

This useful precedent letter now includes headings and reflects the process of payment of transfer duty where settlement is to occur electronically.

The areas covered, now organised under the new headings, are as follows:

  • GST
  • Investigation of title
  • Transfer duty
  • Insurance
  • Pre-settlement

The ‘Letter to purchaser after exchange when no initial letter done’ has also been amended to reflect these changes.

At By Lawyers we love to receive feedback from our users and they are often the reason that we conduct a precedent update.

Precedent update – Conveyancing – NSW

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A precedent update has followed recent user feedback. Significant amendments have been made to the ‘Letter to purchaser after exchange’ in the Purchase of Real Property Guide.

This useful precedent letter now includes headings and reflects the process of payment of transfer duty where settlement is to occur electronically.

The areas covered, now organised under the new headings are as follows:

  • GST
  • Investigation of title
  • Transfer duty
  • Insurance
  • Pre-settlement

The ‘Letter to purchaser after exchange when no initial letter done’ has also been amended to reflect these changes.

At By Lawyers we love to receive feedback from our users and they are often the reason that we conduct a precedent update.

Legal professional privilege – FED

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Legal professional privilege can be a complex area. But it can also be a very important area for practitioners and their clients. Fast, accurate answers to difficult questions about legal professional privilege can be extremely valuable. By Lawyers provides substantial commentary, cases and legislation on legal professional privilege in both Practice Management and 101 Subpoena Answers publications.

Evidence Act or common law?

A critical consideration when dealing with legal professional privilege is whether the uniform evidence law or the common law applies. Generally, in state courts the applicable state Evidence Act applies in all situations. However in federal jurisdictions, the Commonwealth Evidence Act applies at trial, but the common law applies in interlocutory proceedings.

The recent case of Dr Michael Van Thanh Quach v MLC Life Limited (No 2) [2019] FCA 1322 dealt with legal professional privilege in a federal jurisdiction. The matter involved an objection taken to the production of documents under subpoena. The objection was on the basis of legal professional privilege, and specifically litigation privilege.

Being an interlocutory application Griffiths J applied (at [12]) the common law test where ‘litigation privilege attaches to confidential communications between a legal advisor or client and a third party if made for the dominant purpose of use in, or in relation to, litigation which is then on foot or is reasonably anticipated’.

Evidence

The court held that whomever claims privilege bears the onus of establishing the basis for the claim. That party is required to adduce admissible direct evidence to demonstrate that the claim is properly made. This means revealing the relevant characteristics of each document that will allow the court to uphold a claim for privilege. Simply tendering the relevant document and asking the court to test for privilege will not be sufficient. This affirms Brereton J’s decision in Hancock v Rinehart (Privilege) [2016] NSWSC 12 that the court’s power to inspect a document is not to facilitate the requisite proof, but to scrutinise and test the claim.

This is an important point for practitioners instructed to make such a claim. Detailed evidence must be filed as to the reason for and circumstances of the creation of the documents, including how confidentiality was maintained. The deponent of the affidavit may be cross-examined. For this reason the solicitor with carriage of the matter should think very hard before being the one to swear such an affidavit.

‘Reasonably anticipated’

Griffiths J also affirmed that, for the privilege to apply, the litigation must be reasonably anticipated, not simply a mere possibility. This does not mean more likely than not. It is to be determined objectively.

More information

See the By Lawyers Practice Management guide, or the 101 Subpoena Answers publication in the Reference materials folder of every By Lawyers litigation guide, for more detail about this case and more information on legal professional privilege generally.

New guide – Family Provision Claims – SA

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South Australian subscribers are invited to explore By Lawyers new publication, Family Provision Claims (SA).

This practical guide contains matter plans, commentaries and precedents for Acting for the Plaintiff and Acting for the Defendant.

Precedents in Acting for the Plaintiff guide include:

  • Retainer instructions;
  • Letter to client with initial advice;
  • Initial letter to estate or their solicitor;
  • Deed of settlement;
  • Deeds of family arrangement;
  • Brief to counsel;
  • Initiating application;
  • Affidavit in support;
  • Outline of submissions;
  • Example court book index;
  • Letter to plaintiff finalising the matter.

Precedents in Acting for the Defendant guide include:

  • Retainer instructions;
  • Letter to estate with initial advice;
  • Letter to claimant’s solicitor in response to their initial letter;
  • Letter reporting to estate on settlement;
  • Rule 315 affidavit of executor or administrator;
  • Defendant’s position paper for mediation;
  • Example formal offer;
  • Letter to defendant finalising the matter.

The commentaries in both Acting for the Plaintiff and Acting for the Defendant include:

  • Overview and time limits;
  • Managing the lawyer-client relationship and client identification;
  • Time and costs estimates;
  • Taking instructions and advising on the claim;
  • Assessing the merits of a claim;
  • When the court can make an order;
  • Assessing and calculating adequate provision;
  • Considering competing interests;
  • When to negotiate and tips for effective negotiation;
  • Mediation;
  • Commencing the claim
  • The first directions hearing date;
  • Costs and the supervisory approach taken by the court to costs;
  • The procedure following an order.

The By Lawyers South Australian Family Provision Claims publication is a comprehensive and practical resource for practitioners who are advising and representing either claimants or estates.

Suspicious circumstances – Wills – All states

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Suspicious circumstances surrounding the drafting and execution of a will were considered in a recent NSW Court of Appeal case.

The validity of a will can be challenged by those who have standing. These include the people who are affected by it or a previous will. They may suspect the testator lacked the capacity to make the will, or that it was executed under duress, or other suspicious circumstances.

Where a will is executed under apparently suspicious circumstances the onus of proving that nothing untoward occurred is borne by the person propounding the will. Probate will not be granted unless the propounder allays those suspicions.

In Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 at [147] the Court of Appeal considered the onus had not been discharged, despite the primary judge having granted probate of the will.

The suspicious circumstances in that case included the instructions for the will and a power of attorney having not come from the testator/principal, an unexplained variation of the instructions, the description of the executor/beneficiary as the testator’s ‘daughter’ when they were in fact unrelated, the unwarranted urgency and the subsequent transfer of the testator/principal’s residential property to the attorney for nominal consideration. The case was also complicated by the attending solicitor’s decision to destroy an original file note and create a more detailed version some months later, after having also acted for the attorney regarding the transfer of the property.

The mechanical treatment of the suspicious circumstances doctrine by the first instance judge in this case led the Court of Appeal to suggest ‘a preferred approach’ at [164]-[173], although the court observed that the limits of the doctrine ‘can scarcely be regarded as settled’.

Practitioners should take care to observe and inquire about any apparently suspicious circumstances surrounding the instructions for and the execution of wills and other personal documents. Properly identifying the client is a basic precaution, but enquiring about relationships and motivations may also be warranted. Confirming instructions with the client in the absence of those who might benefit from the documents is also prudent. Clear, accurate, detailed and contemporaneous file notes are always advisable.

This interesting case has been added to the By Lawyers 101 Succession Answers (NSW) publication.

Initial letters – Conveyancing – TAS

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The Initial letters to vendor and purchaser precedents have been updated in the By Lawyers Conveyancing (TAS) Guide.

These letters have been enhanced for improved readability and now also include provisions for both sale by agent and private sale procedures.

The initial letters to client are a key step in the conveyancing process, as they address the important issues to be dealt with on commencement of the matter including:

  • Costs
  • Authority to inspect council records (sale)
  • Mortgage discharge authority (sale)
  • Contract considerations – including deposit (purchase)
  • Finance requirements (Purchase)
  • Pest and building reports (Purchase)
  • Stamp duty and any applicable grants and concessions (Purchase)
  • Foreign resident capital gains withholding
  • GST withholding

All By Lawyers publications are updated in relation to changes to legislation, developments in case law and when subscribers ask us for new content. We also routinely enhance and develop our publications as part of our commitment to continual improvement.

Condition and finding – All states

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A new precedent with example content has been added to all By Lawyers Estates guides. The example content is for an affidavit regarding the condition and finding of a will.

Such an affidavit may be required to satisfy the court as to any issues surrounding the condition an original will is in, or the circumstances by which it was found. This affidavit may be lodged either with an application or in response to a requisition when applying for a grant of probate, or a grant of letters with the will annexed.

This new precedent provides extensive example wording addressing the issues of the will’s condition and finding. The content encompasses evidence to be given by an employee of the firm, the executor, a subscribing witness, or another person who has knowledge of how, for example, marks upon the will are not an indication of revocation.

As with all By Lawyers ‘example content’ precedents, the relevant form can be found immediately above the new precedent on the matter plan. The example content can be modified as required and pasted into the appropriate place in the form.

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