ByLawyers News and Updates

Off the plan amendments – NSW

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Off the plan amendments

Off the plan amendments for residential properties are being introduced by the Conveyancing Legislation (Amendment) Act 2018 and the Conveyancing (Sale of Land) Amendment Regulation 2019. The bulk of the amendments will commence on 1 December 2019, however, the provisions affecting statutory cooling off commenced on 25 October 2019, introducing a transition period until 30 November 2019.

The cooling off period for off-the-plan contracts has been extended from 5 to 10 business days. The cooling off warning notice form, prescribed by Schedule 5 of the Conveyancing (Sale of Land) Regulation 2017, has also been amended to reflect this change. A contract for the sale of residential property entered into during the transitional period may include the new cooling off warning notice form or the old form in force immediately before the amendment. There is no obligation for a contract to include the new form of notice until 1 December 2019. 

A summary of the amendments that will commence 1 December 2019 include:

  • Increased vendor disclosure requirements including a Disclosure Statement and draft documents to be attached to the contract. Purchasers can rescind the contract within 14 days of exchange if the Disclosure Statement or relevant prescribed documents are not attached to an off-the-plan contract before it is signed. These new requirements are additional to the existing disclosure regime imposed by Part 2 of the Conveyancing (Sale of Land) Regulation 2017. There is no need to attach more than one copy of the same document to the contract and the Disclosure Statement;
  • Vendors to notify changes to ‘material particulars’. Purchasers can rescind or claim compensation for some changes to material particulars. Notification of changes must be made on an approved form which will be available on the By Lawyers Sale matter plan soon;
  • 10-Business-Day cooling-off period. All contracts for sale of land may use either the old form or new form of warning notice until 30 November 2019. Contracts for established properties may use the old form or new form of warning notice for 6 months after commencement. From 2 June 2020, all contracts for sale, whether for off-the-plan or established properties, will need to use the new form of cooling off warning notice;
  • Purchasers to be given registered plans 21 days before settlement;
  • Deposit to be held in trust. Any money paid by the purchaser by way of deposit or installment under the contract must be retained by the stakeholder in a trust or controlled money account during the contract period. This money cannot be released to the vendor before settlement. This measure will ensure deposit and instalment monies are protected in the event of the developer’s insolvency;
  • Stronger sunset clause protections. The amendments extend the definition of a sunset clause to capture other events which trigger termination of the contract, like the issue of an occupation certificate. Changes also confirm that the Court can award damages if the vendor is permitted to end the contract under a sunset clause. These changes are contained in new Section 66ZS introduced by the Conveyancing Legislation (Amendment) Act 2018. New sunset clause provisions will apply to all off-the-plan contracts, irrespective of whether they were signed before or after commencement.

The By Lawyers Conveyancing (NSW) Publication will be updated accordingly. This will include new provisions in the By Lawyers Contract for the sale of land 2019, precedents and commentary.

Workers Compensation – NSW

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The By Lawyers Workers Compensation – NSW publication has been updated.

The final provisions of the Workers Compensation Legislation Amendment Act 2018 commenced on 21 October 2019.

The amendments include the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings.

The new Schedule 3 to the Workers Compensation Act 1987 provides the method for determining pre-injury average weekly earnings. Insurers and workers may now agree on a figure.

The relevant section of the By Lawyers Workers Compensation – NSW commentary has been updated accordingly.

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.

Online applications for intervention orders – VIC

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Online applications for intervention orders are now available for family violence related matters, via the Magistrates’ Court website.

Amendments to the Family Violence Protection Act 2008 which commenced on 31 July 2019 allow an applicant to apply online, instead of attending in person at a police station or magistrates  court. Online applications for intervention orders take about 15 minutes to complete. They can be saved, amended and lodged at any time within 4 weeks of being started.

Police can also make the online application on someone’s behalf.

There is no requirement for the application to be sworn or witnessed. Rather, when completing the online application the applicant must make a declaration of truth as to the contents of the application. Making a deliberately false declaration of truth is an offence carrying serious penalties – up to 600 penalty units and 5 years imprisonment. The applicant must also acknowledge their understanding of that offence and those penalties when completing the application.

When deciding whether to make an interim order based on an online application, the Magistrates’ Court can waive the requirement that the application be supported by oral evidence or an affidavit. Before waiving the requirement the court must consider whether it is practicable to obtain oral evidence or an affidavit before the order is made.

The By Lawyers guide Intervention Orders (VIC) has been updated to cover online applications for intervention orders. This publication is located in the By Lawyers Criminal – Magistrates’ Court guide.

Assistance for potential applicants and background information on the new process is available from the Neighbourhood Justice Centre via the Magistrates’ Court website.

E-conveyancing from 1 July 2019 – NSW

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In a continuation of the transition to E-conveyancing version 5 of the Conveyancing Rules replace version 4 from 1 July 2019.

Version 5 of the rules provide that all mainstream dealings including transfers, mortgages, discharges of mortgage, caveats, withdrawals of caveat and transmission applications, or combinations thereof, must be lodged electronically when signed on or after 1 July 2019, except where a waiver applies.

Waivers

Waivers apply to certain transactions that are not able to be lodged electronically.

The following waivers which operate from 1 July 2019 in conjunction with Conveyancing Rules version 5 have now been published:

If eligible for a waiver, a Conveyancing Rules Exception form will need to be complete at the point of lodgement. This form is available in the sale and purchase matter plans.

An Alert has been added to the by Lawyers Conveyancing Sale and Purchase matter plans regarding the 1 July 2019 mandate.

Keep up to date with By Lawyers

By Lawyers keep you up to date with E-conveyancing. A brief explanation of the transition to E-conveyancing in the By Lawyers Conveyancing Sale and Purchase matter plans can provide further assistance.

Off the plan – sunset clauses – VIC

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Vendors face new restrictions when seeking to activate sunset clauses to end off the plan contracts in Victoria.

Amendments for off the plan contracts

The Sale of Land Amendment Act 2019 commenced on 4 June 2019. It amends the Sale of Land Act 1962. The amendments require vendors wishing to end residential off the plan contracts pursuant to a sunset clause to either obtain the purchaser’s consent, or an order from the Supreme Court.

New notice requirements created by section 13 of the amending Act for off-the-plan contracts for residential land including a sunset clause, have yet to commence.

The changes do not affect the existing statutory rights of purchasers to end a contract if the plan of subdivision is not approved by the sunset date.

Rescission

Section 10A of the Sale of Land Act 1962 provides that if a sunset clause in a contract allows the vendor to rescind the contract, then rescission must be in accordance with the Act. Section 10C overcomes any inconsistent contractual provision.

Purchaser’s consent

Section 10B of the Sale of Land Act prohibits a vendor from relying on a sunset clause unless the vendor obtains the purchaser’s written consent to any such rescission.

A vendor seeking to obtain the purchaser’s consent must give the purchaser 28 days notice setting out the reason that the vendor proposes to rescind, the reason for the delay in registration of the plan and that the purchaser is not obliged to consent to the proposed rescission.

A precedent ‘Notice of rescission of off the plan contract’ in accordance with s 10B(3) can be found on the By Lawyers matter plan.

Court order

Section 10D of the Sale of Land Act provides that the vendor may apply to the Supreme Court for an order permitting the vendor to rescind a contract pursuant to a sunset clause. The Court must consider a wide variety of matters relating to the contract and the property, including increase in value. If an order is made it may include compensation to the purchaser and the vendor will be liable for the purchaser’s costs.

Notice

Section 10F, created by section 13 of the Amendment Act, has yet to commence. This new section will require residential off-the-plan contracts that include a sunset clause to include a notice informing the purchaser that:

  • the vendor may give a notice proposing to rescind the contract;
  • the purchaser may consent to rescission, but is not obliged to consent;
  • the vendor may apply to the court for an order permitting rescission;
  • the court may make such an order.

A precedent notice in compliance with s 10F will be included in General Condition 9 of the By Lawyers contract on commencement of s 10F.

By Lawyers contract

The general conditions and particulars of sale in the By Lawyers Contract satisfy all of the statutory requirements when selling prior to registration, relying on the default sunset period of 18 months.

Subpoenas – Legitimate forensic purpose – VIC

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Subpoenas and the considerations for setting them aside were considered recently in Walters v Perton [2019] VSC 356.

The court in its probate jurisdiction, was considering an application to set aside two subpoenas under r 42.04 Supreme Court (General Civil Procedure) Rules 2015, which provides that a court may set aside all or part of a subpoena which is an abuse of process. The applicant submitted that there was no legitimate forensic purpose for the subpoenas.

At [30] the court succinctly stated the principles which govern an application to set aside subpoenas in civil cases, with reference to the leading authorities on legitimate forensic purpose. This is a useful statement of the principles and summary of the cases. At [30] the court noted:

(a) the subpoena process under Order 42 should not be used as a substitute for discovery or non-party discovery;

(b) it is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(c) except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;

(d) however, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable possibility’ that the documents will materially assist the case of the party.

(e) the subpoena must sufficiently describe the documents to be produced so as to not require the recipient to make a judgment about the documents being sought and must not be oppressive or fishing (a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted);

(f) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case. The test of relevance, however, may be a general one, particularly where the Court has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness;

(g) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in paragraph (c) must be satisfied; and

(h) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.

The court also commented on legitimate forensic purpose in probate proceedings specifically. The court noted that legitimate forensic purpose in probate proceedings may be informed by the court’s inquisitorial role which requires a greater supervision and control of proceedings than adversarial common law proceedings.

This case has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

Family Provision – Widows claims – NSW

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New commentary, including an entry specific to Widows claims, has been added to the Family Provision section of the By Lawyers Reference Guide 101 Succession Answers.

Case note

These enhancements reflect the recent Court of Appeal decision in Steinmetz v Shannon 2019 NSWCA 114. In that case, the Court of Appeal overturned the decision of a single judge where the court had refused to make further provision for the widow of a testator. The deceased left the bulk of his $6,650,000 estate to the adult children of his first marriage. The will gave the widow only an annuity of $52,000. The couple had been together for 28 years.

The Court of Appeal found that leaving a 65-year-old widow, who is capable of managing her own affairs, reliant for the rest of her life on quarterly payments by the children of her deceased husband’s first marriage, with one of whom there had been historical tensions, rather than placing her in control of her own resources, was not an appropriate form of provision. Instead, the Court of Appeal ordered that the widow receive a legacy of $1,750,000, in addition to the annuity.

The judgment includes a detailed analysis of the leading cases on widows claims. Additionally, it considers how the court should balance the competing imperatives of the deceased’s testamentary freedom and the legislative requirements for provision to be made for eligible persons. In considering the applicant’s need for maintenance, education and advancement, the Court of Appeal also acknowledged the relevance of the non-financial needs of the applicant, such as her desire to relocate to a bigger town for better access to medical care.

Publication update

The new section in 101 Succession Answers discusses this Court of Appeal decision and widows claims generally. There have also been related and incidental enhancements made to other sections of the publication. The interactive alphabetical contents list has been updated accordingly to maintain the easy access to content which is the hallmark of all By Lawyers reference guides.

Reference materials

101 Succession Answers covers Powers of Attorney, Appointments of Enduring Guardian, Wills, Estates and Family Provision. This valuable By Lawyers reference guide is located in the Reference Materials folder on the matter plan in each of those publications.

Domestic Violence Evidence In Chief – NSW

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A recorded video or audio statement of a domestic violence complainant, known as Domestic Violence Evidence in Chief, or DVEC, is admissible as evidence in chief in criminal proceedings for domestic violence offences and in concurrent or related proceedings for applications for apprehended domestic violence orders under the Crimes (Domestic and Personal Violence) Act 2007. This is pursuant to the provisions of Chapter 6, Part 4B of the Criminal Procedure Act 1986.

In the recent Supreme Court case of Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363  the court determined that a DVEC may be admitted to evidence even where the complainant is not present at the hearing of the matter – although whether or not it actually will be admitted depends on the provisions of the Evidence Act, as for any other piece of evidence.

The  considerations under the Evidence Act of the complainant’s reliability and the prejudice to the defendant of not being able to cross-examine the complainant still have to be overcome. A defendant’s solicitor should still be prepared to argue strongly against the DVEC being admitted in those circumstances.

The commentaries in the By Lawyers Criminal and Apprehended Violence Orders publications have been amended accordingly.

Complex transactions – Conveyancing – VIC

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Land Use Victoria has mandated that complex transactions for land transfers, currently managed via paper settlement, must be lodged and managed online from 1 August 2019. To meet this requirement, enhancements are being made to Duties Online. These enhancements are scheduled to take effect from 17 June 2019.

This new mandatory requirement applies to solicitors and licensed conveyancers acting for a party or for themselves, as well as PEXA subscribers. Examples include a case comprising withdrawal of a caveat, discharge of a mortgage and transfer and mortgage.

This move to require complex transactions to be managed exclusively via electronic conveyancing means:

  • The Digital Duties Form is mandatory for all transactions.
  • Duties Online (DOL) transaction types listed on the SRO website must be processed electronically using an electronic lodgement network operator.

As a result of this requirement, almost 100 per cent of transactions will now be managed online.

For further information, see the SRO Duties Online page.

See the By Lawyers Conveyancing & Property (VIC) publications for further information about electronic conveyancing and duties requirements.

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