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ARNECC Model Participation Rules Version 5

28 February 2019 by By Lawyers

The ARNECC Model Participation Rules Version 5 for e-conveyancing are in effect from 25 February 2019 in NSW, VIC, QLD, WA and SA.

Client Authorisation Forms

There are now two separate types of Client Authorisation Forms:

  • Client Authorisation Representative– authorises a solicitor or conveyancer to act for the client in a conveyancing transaction;
  • Client Authorisation Attorney– authorises a person acting under a power of attorney to act for the donor in a conveyancing transaction, the donor being the person giving the power.

The Client Authorisation Attorney form only applies to Subscribers signing as Attorneys and not any other Subscriber who may happen to be an Attorney e.g. a conveyancer or lawyer generally acting as their Client’s Attorney. A Representative Subscriber (conveyancers and lawyers) should continue to use the Client Authorisation – Representative form.

See rules 5.6 and 6.3 for requirements.

A new Guidance Note is currently being drafted by ARNECC that will provide further information regarding this new provision.

Practitioners must ensure they use the correct Client Authorisation Form for each conveyancing transaction.

These forms are available on all By Lawyers Conveyancing matter plans within Folder ‘A. Getting the matter underway > Verification of identity folder’.

Verification of Identity in mortgage transactions

Responsibilities for verifying the identity of mortgagors have been updated. Practitioners acting for a mortgagee, must take reasonable steps to verify the identity of mortgagors in accordance with r 6.5.1(b), even where the mortgagor is represented.

Additional identity documents

Australian Evidence of Immigration Status ‘ImmiCard’ and Australian Migration Status ‘ImmiCards’ are now acceptable types of identity documents and have been added to the table in Schedule 8 of the Model Participation Rules.

All relevant By Lawyers publications have been updated to reflect the ARNECC Model Participation Rules Version 5, including the detailed Verification of Identity commentary located in all conveyancing and property matter plans under Folder ‘A. Getting the matter underway’.

Filed Under: Conveyancing and Property, Legal Alerts, New South Wales, Publication Updates, Queensland, South Australia, Victoria, Western Australia Tagged With: 25 February 2019, Additional identity documents, ARNECC, Client Authorisation Attorney, Client Authorisation Forms, Client Authorisation Representative, e-conveyancing, ImmiCard, Model Participation Rules and Operating Requirements, Verification of Identity in mortgage transactions

Jurisdiction of Small Claims Division increased – NSW

27 February 2019 by By Lawyers

An amendment to section 29(1)(b) of the Local Court Act sees the jurisdiction of the Small Claims Division increased from 28 February 2019.

The jurisdictional limit of the Local Court when sitting in its Small Claims Division will now be $20,000 as of 28 February.

Previously the jurisdictional limit was $10,000. The amendment does not apply to proceedings instituted in the Court before 28 February 2019.

This increase was legislated under the Justice Legislation Amendment Act (No 3) 2018 No 87 with commencement upon proclamation. The Governor of NSW made the proclamation on 13 February 2019.

The By Lawyers Local Court Civil publication has been updated accordingly.

Filed Under: Legal Alerts, Litigation, New South Wales, Publication Updates Tagged With: jurisdiction, Local Court, small claims

Changes to Family Court Consent Orders kit and eFiling

19 February 2019 by By Lawyers

Changes to Family Court Consent Orders Kit and eFiling procedures have now taken effect, arising out of the Civil Law and Justice Legislation Amendment Act 2018. These include:

  • Updated information pages in the Application for Consent Orders Kit;
  • References to ‘husband’ and ‘wife’ replaced with ‘party to a marriage’ and/or ‘party to a de facto relationship’; and
  • Updated sectional references in the Family Law Act for superannuation in the Application for Consent Orders form.

The updated kit and form are now available in the By Lawyers Family Law publications.

eFiling

The Court recommends that practitioners use the ‘unguided’ process for uploading Application for Consent Orders forms. This process was introduced as part of the Digital Court Program and makes it easier to upload forms without having to input information twice. The ‘guided’ eFiling process will only remain available until 31 March 2019.

For more information about eFiling and the ‘unguided’ process see the By Lawyers Family Law guide, or visit the Digital Court Program on the Family Court website.

Filed Under: Family Law, Federal, Legal Alerts, Publication Updates Tagged With: consent orders, family, family court, family law

Domestic violence amendments – SA

1 February 2019 by By Lawyers

Some of the domestic violence amendments under the Statutes Amendment (Domestic Violence) Act 2018 have now commenced. The act makes a number of changes to domestic violence provisions, most of which commenced on 31 January 2019.

Amendments that commenced on 31 January 2019 include:

  • additions to the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to include forcing a person to marry another person, preventing a person from entering the person’s place of residence and taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of a person and threatening to distribute the image without the person’s consent;
  • increased penalties for breaching an intervention order, where a breach is a ‘second or subsequent’ offence, which generally means offences within 5 years of each other, AND the breach involves physical violence or the threat of it, then the maximum penalty is $20,000 and 4 years imprisonment (whereas the maximum penalty for a first offence is $1250 and 2 years imprisonment);
  • s 10A(d) of the Bail Act 1985 has been amended to classify certain domestic violence offences as ‘aggravated offences’ in  relation to which there is a presumption against bail;
  • new s 20A—Choking, suffocation or strangulation in a domestic setting has been added to the Criminal Law Consolidation Act 1935. This offence provides that a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence, the maximum penalty for which is imprisonment for 7 years.

Amendments yet to commence include:

  • where police are seeking to urgently vary an existing final order the court may now conduct a preliminary hearing in the absence of the defendant and may take evidence by telephone or such other means as the court determines appropriate and the rules of court allow;
  • where an Intervention order is sought by police, the applicant and anyone else for whose protection the order is sought, may give their evidence in the proceedings by recording and may only be cross-examined about that evidence if the court permits it.

These provisions are suspended until proclaimed, commencing on 6 December 2020 at the latest.

The commentaries in the By Lawyers Criminal SA and Intervention Orders SA guides have been updated accordingly.

Filed Under: Criminal Law, Domestic Violence Orders, Legal Alerts, South Australia Tagged With: criminal law, domestic violence, SA Magistrates Court

Updated Motor Accidents Guidelines – NSW

22 January 2019 by By Lawyers

The Motor Accidents Guidelines which apply to motor accidents in New South Wales after 1 December 2017 under the Motor Accidents Injuries Act 2017 have been updated.

The Motor Accidents Guidelines are available on the SIRA website. The new Guidelines apply from 15 January 2019.

Links and applicable commentary references in the By Lawyers Motor Vehicle Accidents (NSW) guide have been updated accordingly.

Filed Under: Legal Alerts, New South Wales, Personal injury Tagged With: Motor Accident Guidelines, Motor Accident Injuries Act 2017, Motor Vehicle Accidents

Personal Property Securities – Expiry of default registration period

10 January 2019 by By Lawyers

On 30 January 2019 over 120,000 Personal Property Securities Register registrations will expire.

The first security interests were registered on 30 January 2012, and the default registration period for a security interest in consumer property or property described by a serial number is seven years.

It is important that anyone who has a security interest registered in 2012 reviews that registration to check its expiry date. The Australian Financial Security Authority provides a useful expiry report service.

If a registration expires it will no longer be perfected for the purposes of the Personal Property Securities Act 2009. In order to protect the secured parties’ interests, the security interest will need to be renewed before the registration expiry date.

The By Lawyers Personal Property Securities publication details how to renew or amend a registration and will assist in all Personal Property Securities Register matters.

Filed Under: Articles, Federal, Legal Alerts, Personal Property Securities

Workers Compensation amendments – NSW

19 December 2018 by By Lawyers

The next tranche of workers compensation amendments under Schedules 1 and 2 of the Workers Compensation Legislation Amendment Act 2018 commence 1 January 2019, providing for the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment.

There is no commencement date yet for Schedule 3 of the amending Act, which provides for the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

Provisions removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury, have already commenced.

The By Lawyers Workers Compensation (NSW) publication has been updated to deal with these amendments.

Filed Under: Legal Alerts, Miscellaneous, New South Wales, Personal injury, Publication Updates Tagged With: 1 January 2019 changes, dispute resolution, workers compensation, Workers Compensation Commission

Foreign Buyers Duty – Western Australia

19 December 2018 by By Lawyers

From 1 January 2019 Foreign Buyers Duty applies, being additional duty imposed on certain transactions and acquisitions involving foreign persons or entities acquiring residential property in Western Australia. An additional duty of 7% is imposed on direct acquisitions (foreign transfer duty) and indirect acquisitions (foreign landholder duty) of residential property by foreign persons.

Foreign Buyers Duty will not apply to purchases of commercial, industrial or mixed used properties used primarily for commercial purposes.

An exemption from foreign transfer duty and foreign landholder duty for residential developments applies where certain conditions are met.

A Foreign Transfer Duty Declaration form is used to declare whether each purchaser or transferee is a foreign person. This form must be completed by each person acquiring an interest in any land in Western Australia.

The By Lawyers Purchase of Real Property (WA) guide has been updated as follows:

  • Comprehensive commentary has been added on Foreign Buyers Duty.
  • New forms added to the matter plan include Foreign Transfer Duty Declaration, Foreign Landholder Duty – Developer Exemptions and Foreign Transfer Duty – Developer Exemptions.
  • The To Do List – Purchase of Real Property now includes an item on the obligation to complete a foreign transfer duty declaration form.

By Lawyers keep on top of changes in the law so you can focus on getting the job done.

Filed Under: Conveyancing and Property, Legal Alerts, Publication Updates, Western Australia Tagged With: additional duty, By Lawyers, foreign landholder duty, foreign transfer duty, foreign transfer duty declaration form, purchase

Interest on unpaid legal costs – TAS

14 December 2018 by By Lawyers

Under new regulations, the maximum rate of interest on unpaid legal costs that can be charged by Tasmanian lawyers has increased significantly. The Legal Profession Regulations 2018 came into force on 28 November 2018 and replaced the Legal Profession Regulations 2008.

Rule 66 now provides that the applicable rate for interest on unpaid legal costs is that prescribed by the Rules of Court for the purposes of section 165 of the Supreme Court Civil Procedure Act 1932. The current rate is 7.5%. The previous rate was 3.5% and was tied to the Reserve Bank of Australia Cash Rate Target.

All By Lawyers Tasmanian costs agreements have been updated accordingly.

Filed Under: Legal Alerts, Miscellaneous, Practice Management, Publication Updates, Tasmania Tagged With: 7.5%, By Lawyers, costs agreements, Legal Profession Regulations 2018, maximum rate of interest, Rule 66, section 165 of the Supreme Court Civil Procedure Act 1932, unpaid legal costs

Electronic lodgement of leases – NSW

10 December 2018 by By Lawyers

From 10 December 2018 electronic lodgement of leases commences via PEXA.

Summary of the procedure for electronic lodgement of leases

The annexures to the Real Property Act lease form are prepared in the usual way outside PEXA and then uploaded for attachment to the RPA lease form in PEXA .

The RPA lease form is created in PEXA, the annexures attached and the lease document is then signed and lodged electronically.

A lease may be lodged electronically:

  • as a stand-alone registration;
  • in combination with a transfer of land; and
  • in a series with other leases.

Sub-leases, surrenders of lease and variations of lease are not yet available in PEXA. This functionality is expected mid-2019.

The Office of the Registrar General has granted a partial waiver of a subscriber’s obligations to comply with rule 1 of Schedule 3 – Certification Rules of the Model Participation Rules relating to verification of identity for lessors and lessees, in that there is no requirement to take reasonable steps to verify the identity of the parties. The waiver will continue until either the Model Participation Rules are amended or the partial waiver is revoked.

By Lawyers Leases (NSW) guide updated for electronic lodgement of leases

The relevant sections of the By Lawyers Leases (NSW) commentary, as well as the following applicable precedents, has now been updated for the electronic lodgement of leases:

  • To do list; and
  • Retainer instructions.

A new folder E. If required – Electronic lodgement has been added to both the Act for lessor and Act for lessee matter plans and includes:

  • A brief explanation of the transition to E-conveyancing;
  • Letter to lessor/lessee enclosing lease to be registered and client authorisation; and
  • Client Authorisation forms.

Enjoy practice more with By Lawyers!

Filed Under: Conveyancing and Property, Legal Alerts, New South Wales, Publication Updates Tagged With: By Lawyers Leases NSW, Electronic leases, electronically, leases, PEXA

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