ByLawyers News and Updates

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.

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.

VIC Criminal – Proposed bail reform

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A summary of the proposed amendments to the Bail Act 1977 has been added to the Commentary in the Criminal Magistrates’ Court (VIC) Guide.

The cumulative effect of these amendments is a significant overhaul of bail procedure in Victoria. They may or may not achieve their objectives, but regardless the impact is potentially significant.

The commentary will be updated when the legislation commences.

The first stage of these amendments is expected to commence 1 July 2018 with the second stage likely to commence later in the year.

Immigration – 457 visa replaced with with Temporary Skill Shortage visa and associated reforms to permanent skilled migration programs

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From 18 March 2018 the Temporary Work (Skilled) visa (subclass 457 visa) is abolished and replaced with the Temporary Skill Shortage (TSS) visa. Associated reforms to permanent skilled migration programs are also made from this time (sub classes 186, 187, 189, 190, and 489). These amendments are reflected in our Immigration Publication.

VIC – Powers and Advance Care Directives – Medical Treatment Planning and Decisions Act 2016

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The Medical Treatment Planning and Decisions Act 2016 commenced 12 March 2018. It gives statutory recognition to advance care directives and simplifies and contemporises laws relating to medical treatment decision making for people without decision making capacity. The By Lawyers VIC Powers and Advance Care Directives matter plan, precedents and commentary have been updated accordingly.

By Lawyers Contract of Sale of Land – Victoria

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A new form of contract, co-authored by Russell Cocks, providing a vendor’s statement and contract in one document.

The contract is specifically designed for residential conveyancing transactions and seeks to smooth some of the traditional road blocks that arise in these transactions.

The By Lawyers Contract of Sale of Land is located in the Contract folder in the Sale of Real Property Guide.

Seven reasons to use the By Lawyers contract

  1. The Contract and Vendor’s Statement are combined into ONE document, with the Vendor’s Statement, logically, coming FIRST. The Vendor’s Statement is formatted in such a way as to deal with the obligatory fields first and then group the optional fields in way that makes removal of those fields simple if they are not required.
  2. Particulars of Sale in the Contract includes a “sunset date” for off the plan approval. No more searching through mountains of Special Conditions.
  3. Non-derogation warranty. General Conditions can be amended by Special Conditions BUT not such as to reduce the rights created by the General Conditions. No more contracts that say one thing on page 1 and reverse that on page 15. This Contract is fair to both parties; if someone wants to create an unfair contract they cannot hide it within this contract.
  4. General Condition 12 – deposit release. Establishes a clear protocol for release by requiring timely objection to title.
  5. General Condition 14 – loan condition. Extends time for approval to 21 days and allows for automatic extension, subject to vendor’s ability to end the extension by notice.
  6. General Condition 25 – losses. Removes disputes relating to default losses from the settlement process and allows the parties to resolve these issues after settlement.
  7. General Conditions 27 & 28 – default and rescission notices. Divides the process into two steps with specified legal cost in respect of notices.

There are also other improvements, such as simple off the plan and electronic conveyancing conditions, a requirement that a vendor produce a copy lease at settlement and a clause passing ownership of abandoned goods to the purchaser. This Contract continues the quest commenced by the 2008 Contract (remember Requisitions?) to simplify conveyancing by ironing out the speedhumps.

VIC – Estates – Electronic lodgement of all survivorship applications, transmission applications and standalone transfers

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From 1 March 2018 all survivorship applications, transmission applications and standalone transfers must be lodged electronically.

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