ByLawyers News and Updates

Updates to Motor Vehicle Accidents NSW Guide

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Some helpful additions have been made to the commentary:

  • Effect of any settlement or award of damages on income protection policies;
  • Enhanced commentary on statutory benefits under the post-December 2017 scheme, including the critical definition of ‘minor injuries’, with further headings and content for improved readability;
  • Direct link to the ‘Apply for personal injury benefits’ page on the SIRA website, including SIRA’s simple ‘how-to’ video on claiming statutory benefits.

Family Law – Divorce publication review

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The By Lawyers Family Law author has reviewed the Divorce publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Application without marriage certificate – If the parties do not have a copy of the marriage certificate, an application should be made at the relevant state Births, Deaths and Marriages. In the case of an overseas marriage, if a copy of the marriage certificate cannot be obtained, the applicant may be able to file an affidavit pursuant to r 25.01(3) of the Federal Circuit Court Rules addressing the reasons for the failure to file the marriage certificate.
  2. Appealing a divorce order – In Price & Underwood (Divorce Appeal) [2009] FamCAFC 127, the Full Court addressed the issue of whether an appeal may be filed after a divorce order has taken effect. The court was split on the issue, with Boland and Ryan JJ finding that s 93 of the Family Law Act is clear and unambiguous – no appeal lies from a divorce order which has become final. Where a divorce order which has become final the only relief available is a declaration under s 113 that the divorce order is void. May J took the view that a divorce order could be subject to an appeal even if it is of effect, on the basis of a miscarriage of justice.

As there have not been any changes in terms of significant case law or legislative changes in the last 12 months, no changes were made to precedents or the matter plan.

Conveyancing – GST withholding – additional commentary, amendments to contracts and precedents

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The requirement for purchasers to withhold and remit GST on taxable supplies of certain real property under subdivision 14-E Schedule 1 Taxation Administration Act 1953 comes into force on 1 July 2018. This applies to all contracts that settle after 1 July. The transitional arrangements are that contracts entered into prior to 1 July 2018 and settle before 1 July 2020 are exempt from the withholding regime.

The sale and purchase commentaries in all states have been updated, the By Lawyers contracts in NSW and VIC have appropriate new provisions and precedent letters are being updated.

QLD – Online transmission applications – Updated forms, new Trust Details form and updated commentaries

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From May 2018 transfers recording a transferee  – that is, the executor – as trustee can be lodged electronically. To do this only details of the trust will be required – that is, as executor pursuant to grant of probate.

For consistency in paper the Titles Registry introduced the Trust Details form, on which the basis of the trustee transfer can be noted. Transmission applications that are supported by a grant from a foreign jurisdiction that is eligible for re-seal in Queensland under the British Probates Act 1898 (a Queensland recognised grant) that have not been resealed in Queensland are now made on a form 5.

While a form 1 Transfer is available through PEXA and eLodgement, transmission application forms 5 and 5A can only be lodged through eLodgement. See Electronic lodgement of title transactions (eLodgement) for details of what forms can be lodged and how to use eLodgement.

Transitional provisions for forms 5 and 5A are in place until 30 September.

Forms 5 and 5A have been updated to the latest version. The new Trust Details form has been added to the matter plan. Also our Probate and Letters of Administration commentaries have been updated to reflect these changes.

The importance of Matter Plans in By Lawyers Guides

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Each of our Legal Guides contains a Matter Plan which follows the typical flow of a matter, with precedents and commentary ordered sequentially, and less commonly used content appearing in ‘If required’ folders.

This structure not only allows members of your team to confidently conduct matters in areas they are perhaps unfamiliar with, but also allows for precise answers to be found quickly. Users have the freedom to access as much or as little guidance as is needed, with the ability to easily navigate to the commentary and precedents required.

Each Matter Plan typically starts with the folder ‘Getting the Matter Underway’. It contains everything you need to get a matter started. There are precedents such as a file cover sheet, retainer instructions, a ‘to do’ list and initial letters. There is also commentary detailing the first things you need to do and be aware of when getting the matter underway. Each Matter Plan proceeds through the logical sequence of a matter, concluding with a ‘Finalisation’ folder, which contains precedents such as a tax invoice and finalisation letters.

This clear structure is a very useful risk management tool and essential to daily practice.

Using the Matter Plan

  1. Open a matter.
  2. From the Details & Correspondence tab, click on the  button. If the Legal Guides tab is not your default view, select the Legal Guides tab to view the By Lawyers Guide for the selected matter type. The Legal Guides tab can be set as your default view from the hamburger menu at the top right of the Guides & Precedents screen.
  3. The Legal Guides tab displays the Matter Plan which proceeds through the logical sequence of the matter.
  4. Commentary is identified by green text and the  icon being C for commentary. Clicking the green commentary title will open the commentary in a browser.
  5. Precedents are identified by blue text and the  icon being W for Word Document. Click the precedent to open it. The precedent will merge information from the matter.

The Matter Plan is your road map for navigating through our Guides, allowing you to maximise the value of our detailed content and get the most from By Lawyers.

Family Law – Financial agreements publication review

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The By Lawyers Family Law author has reviewed the Financial Agreements publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Child support agreements and financial agreements: Whilst a financial agreement may also be a binding child support agreement if it complies with the requirements in the child support legislation, it is recommended that child support ought to be provided for in a Binding Child Support Agreement or a Limited Child Support Agreement; and
  2. Enforcement procedure when a case has not been on foot: i.e. to seek a declaration as to the enforceability of the binding financial agreement under 90KA or 90UN, an initiating application would need to be filed, seeking both a declaration and the orders in relation to enforcement. The practical reality is in most applications seeking enforcement of a binding financial agreement, an initiating application is filed seeking both the declaration and enforcement orders at once.

The new requirements for affidavits in the Family Court has led to a new Exhibit page to Affidavit form being created by LEAP. This has been linked where necessary in the matter plan.

Letter submitting financial agreement to other side acting for themselves has been amended by adding the following paragraph:

The agreement cannot be signed without you obtaining independent legal advice and the solicitor needs to sign where indicated on the document to confirm you have been provided with this advice.

Vendor statement – Honest and reasonable

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Section 32 Sale of Land Act requires a vendor to provide a purchaser with a Vendors Statement disclosing certain specified information in relation to the property. The purchaser may avoid the contract if there is a breach of s 32,
but the vendor has an ‘escape hatch’ in s 32K.

Last year McHutchison v Asli [2017] VSC 258 considered whether a vendor could rely on s 32K in circumstances where a planning permit for a septic sewerage system was not disclosed. Downing v Lau [2018] VCC 33 is a County Court decision considering s 32K in the context of non-disclosure of a planning permit relating to future development of the property.

Unlike in McHutchison, where the obligation to disclose the notices was contested by the vendor, Downing proceeded on the concession by the vendor that the planning permit was a ‘notice’ affecting the land within the meaning of s 32D(a). This is consistent with the decision in McHutchinson and must now be beyond doubt. The question in Downing therefore became – could the vendor rely on s 32K?

The two elements to s 32K are:

  • that the vendor acted honestly and reasonably and ought to be excused; and
  • that the purchaser is substantially in as good a position.

The vendor’s failure to disclose related to a current planning permit that had been obtained some time before the sale and which permitted the construction of four units on the land. Unlike the permit in McHutchinson, which imposed conditions on the use of the property and was therefore restrictive, the permit in Downing did not require construction of the units, it was simply a permissive notice. Nevertheless, it should have been disclosed. That it was not disclosed was a decision of the vendor’s conveyancer, who (mistakenly) was of the view that it did not need to be disclosed.

A vendor who has been personally negligent is not likely to qualify as ‘honest and reasonable’, so the question was whether the vendor would be vicariously liable for the vendor’s representative’s negligence. This had previously been considered by the Supreme Court in Paterson v Batrouney & Anor [2000] VSC 313 where elderly vendors were found not to be responsible for their representative’s negligence. Downing considered the question in the context of the law of agency and decided that the representative was retained by the vendor as an expert and was not the vendor’s agent, at least not for the purpose of preparing the Vendor Statement. Whilst the representative might be the vendor’s agent for other parts of the transaction, that agency did not extend to preparation of the Vendor’s Statement and the vendor was therefore not vicariously liable for the expert’s negligence.

Downing, in adopting Paterson v Batrouney, chose not to follow other authority and it may be that the matter will be reconsidered by the Supreme Court in the future.

Having found that the vendor satisfied the first leg of s 32K, the inquiry then turned to whether the ‘purchaser is in substantially as good a position’. The purchaser felt aggrieved because the purchaser had intended to seek a permit to construct eight (or perhaps seven) units and took the view that the existence of the permit for four units substantially affected the purchaser’s ability to get a permit for 7-8 units, notwithstanding that expiry of the four unit permit was imminent. Alternatively, the purchaser argued that a property with a disclosed four unit permit was worth less than a property without such a permit, as this property had been represented.

No valuation evidence was tendered to prove the second point and the court was not satisfied that the existence of the almost expired four unit permit meant that the purchaser could not achieve its desired outcome of a permit for 7-8 units. The court appeared to take the view that the purchaser regarded the property as ‘tainted’ by the four unit permit without being able to prove in any meaningful way that the purchaser was not substantially in as good a position.

The vendor was therefore held to have been entitled to accept the purchaser’s purported termination of the contract for breach of s 32 as a repudiation of the contract and thereby entitled to judgment for the amount of the unpaid deposit and interest at penalty rates.

Tip Box

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

  • s.32K allows a vendor to avoid termination for breach of s.32.
  • a vendor will not be responsible for the negligence of an expert.
  • purchaser cannot avoid if in as good a position.

NSW Criminal Local Court – Substantial changes to committal procedure

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Substantial changes to committal procedure in the Local Court.

Amendments to the Criminal Procedure Act 1986, pursuant to the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017, commenced on 30 April 2018, with consequent amendments to the applicable Regulations. These amendments substantially change the procedure for committals by mandating early charge negotiations and encouraging early pleas of guilty.

In summary, the new procedure is:

  • Following charge in indictable matters, the police will provide a simplified brief of evidence to the Office of the Director of Public Prosecutions (ODPP), which does not have to be in admissible form and is to include evidence relevant to the defence case.
  • Existing prosecution disclosure obligations are unchanged and unaffected by the amendments.
  • A senior prosecutor in the ODPP will review the brief and file a Charge Certificate with the Local Court confirming the charges which will proceed and certifying that evidence is held to support those charges.
  • The Charge Certificate must be filed within 6 months, or a magistrate may discharge the accused.
  • The prosecutor and defence lawyer must then have a case conference, in person or by audio visual link (not by phone), to determine if any pleas of guilty can be entered and to identify/attempt to resolve any issues.
  • Parties then complete and file a Case Conference Certificate at court.
  • Existing provisions for applications to have prosecution witnesses attend to give evidence at committal proceedings are unchanged, although now contained in different sections of the Act.
  • Magistrates are no longer required to assess the evidence and determine whether an accused should be committed; they are only required to confirm that the Charge Certificate and Case Conference Certificate have been filed, determine any application for witnesses to attend, if so take that evidence, then commit the accused for trial (if plea not guilty or no plea entered,) or for sentence (if plea guilty).
  • Both committal hearings and ‘paper’ committals are accordingly abolished.
  • There are some exceptions to the compulsory case conference – where the accused is unrepresented, or ‘fitness to be tried’ is in issue.
  • Magistrates can now also commit cases on the issue of ‘fitness to be tried’.

The Commentary and Precedents in the By Lawyers NSW Criminal Local Court Guide have been updated to cover the new procedure.

 

Queensland Civil and Administrative Tribunal (QCAT) – Jurisdiction – Interstate disputes

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The recent High Court decision in Burns v Corbett [2018] HCA 15 confirms that state tribunals do not have jurisdiction in interstate disputes, unless the tribunal is constituted as a state court. The decision only concerned the New South Wales Civil and Administrative Tribunal and confirms the NCAT does not have jurisdiction in interstate disputes. This may affect the Queensland Civil and Administrative Tribunal as there is doubt over whether or not QCAT is constituted as a state court.

Where claims involve interstate disputes, careful consideration of the appropriate forum is required.

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