ByLawyers News and Updates

Investigation Notices – SA

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Investigation Notices have been introduced in South Australian courts as a new mechanism of enforcing debts.

From 18 September 2023, judgment creditors can serve Investigation Notices on judgment debtors prior to an Investigation Summons being issued.

Section 4 of the Enforcement of Judgments Act 1991 already allows the court to investigate a judgment debtor’s financial position with regard to their means of satisfying the debt.  This is usually the first step in enforcement proceedings. The court issues a summons which requires the judgment debtor to attend and produce documents at a hearing. The judgment creditor is entitled to cross-examine the judgment debtor on their evidence and documents. Failure to appear in response to a investigation summons can render a judgment debtor liable to be arrested.

The process of serving Investigation Notices under the new s 3A inserted into the Act by the Statutes Amendment (Civil Enforcement) Act 2023 is an informal preliminary step. It has the potential to save parties the time and cost involved in an adversarial hearing. The notice is issued by the judgment creditor and requires the judgment debtor to provide information including documents to evidence their ability to satisfy the judgment debt. This new preliminary step is not compulsory – the judgment creditor can elect to issue the notice, or proceed directly to an Investigation Summons and hearing. It is however expected that Investigation Notices will be widely utilised in an attempt to contain costs. Likewise, compliance by judgment debtors might be driven by the desire to avoid the costs of a hearing, which are added to the judgment debt under s 3 of the Act.

The amending Act also tweaks the existing provisions about garnishee orders to remove the requirement for the judgment debtor’s consent before wages or bank accounts can be garnisheed and to include term deposit accounts. Further amendments to 7 of the Act expand the powers of the Sheriff when enforcing judgments against land.

Subpoena forms and processes – VIC

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Amendments to subpoena forms and processes in the County Court of Victoria commenced on 14 August 2023.

Chapters I and III of the County Court Civil Procedure Rules 2018 are revised as to subpoena forms and processes. The County Court (Chapters I and III Subpoena Amendment) Rules 2023 amend the prescribed civil and criminal subpoena forms.

The Rules now require subpoena recipients to respond using the eCase electronic case management system. The Registrar or Court must grant leave for any physical production. The eCase platform is mandatory for production, inspection, and objections.

The amended civil subpoena forms are:

  • Form 42A Subpoena to attend to give evidence – minor amendment;
  • Form 42AA Subpoena for production to Registrar – substituted form;
  • Form 42B Subpoena to produce – substituted form; and
  • Form 42C Subpoena both to attend to give evidence and to produce – substituted form.

The County Court Criminal Procedure Rules 2019 have also been amended.

The amended criminal subpoena forms are:

  • Form 1D Subpoena to attend to give evidence – minor amendment;
  • Form 1E Subpoena to produce – substituted form;
  • Form 1EA Subpoena both to attend to give evidence and to produce – substituted form; and
  • Form 1I Short service order subpoena – minor amendment.

From 14 August 2023, the Registrar will not issue any subpoenas that are not in the correct form. The new subpoena forms are available from the Victorian County Court website.

The By Lawyers Victoria guides County Court Litigation – Plaintiff and County Court Litigation – Defendant have been updated for the new subpoena forms and processes, including links.

Duplicate certificates of title abolished – WA

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Duplicate certificates of title have no effect in Western Australia from 7 August 2023. Duplicate titles or duplicate certificates were also known as paper titles or title deeds.

Under the Transfer of Land Amendment Act 2022, duplicate or paper certificates of title were rendered invalid. They ceased to enjoy the status of a legal document from 7 August 2023. Paper certificates of title will no longer be issued or created by Landgate, nor required to register a dealing.

Verification of identity and establishing a right to deal with an interest in land are now the means of proving ownership. They replace possession or control of a paper certificate of title.

Full electronic conveyancing in Western Australia is one step closer thanks to these changes modernising land transactions.

If you do hold a paper or duplicate certificate of title, you do not need to return it to Landgate or destroy it. It will automatically be considered invalid from 7 August 2023. You can keep your duplicate certificate of title for display purposes.

One can obtain a record of your certificate of title through Landgate’s website through a title search. It will show you the most up to date information and any interests registered over the title.

The By Lawyers Western Australia Purchase of Real Property, Sale of Real Property, Lease, Mortgage, Probate, and Letters of Administration publications have been updated accordingly.

 

 

 

Offers to settle – QLD

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The Uniform Civil Procedure Rules 1999 (QLD) were amended from 23 June 2023 concerning the costs implications of rejected offers to settle made by both plaintiffs and defendants.

The Uniform Civil Procedure (Offers to Settle) Amendment Rule 2023 amends r 360 of the of the Uniform Civil Procedure Rules 1999 as to offers made by a plaintiff, and r 361 as to offers made by a defendant. It also introduces a new r 361A, which deals specifically with the implications of a plaintiff’s claim being dismissed after the plaintiff rejects a costs offer made by a defendant. There are also transitional provisions for offers already on foot before the amendments.

Offers to settle are relevant to the Court’s exercise of discretion concerning costs at the conclusion of any proceedings. The ordinary rule about costs is that they follow the event: r 681. Costs are awarded to the successful party, usually assessed on the standard basis, unless the rules or orders state otherwise: rr 702-704.

If an offer is made by one party and rejected by the other party, and the ultimate outcome of the case ends up being less favourable to the rejecting party than what was offered, the rules provide that the court can award indemnity costs against the rejecting party from the date of the offer. The amendments to the rules clarify when and how this applies.

The commentary on offers to settle has been amended, for both Acting for the plaintiff and Acting for the defendant, in all By Lawyers QLD Litigation guides:

 

First home buyers – NSW

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New caps and rules over first home buyers schemes in New South Wales come into force on 1 July 2023.

The newly elected New South Wales government has announced extensions to the First Home Buyer Assistance (FHBA) scheme. First home buyers purchasing a new or existing property valued at less than $800,000 will pay no transfer duty. The cap increases on 1 July 2023 from $650,000. First home buyers who buy a new or existing property valued between $800,000 and $1,000,000 can apply for a concessional transfer duty rate. The qualifying range increases on 1 July 2023 from the previous band of between $650,000 and $800,000.

Purchasers who exchange on or after 1 July 2023 will receive the benefit of these higher caps.

The Minns state government has honoured its pre-election commitment to reverse the annual property tax opt-in for first home buyers. The First Home Buyer Choice scheme does not apply to contracts exchanged after 30 June 2023. Full transfer duty is payable on all contacts exchanged on or after 1 July 2023. Purchasers who exchanged between 16 January 2023 and 30 June 2023 have until settlement to make an election between an annual property tax and full transfer duty.

The residence requirement has been extended – eligible first home buyers must now occupy their home for a continuous period of 12 months instead of six months, within 12 months of settlement. The residence requirement applies to the First Home Buyers Assistance scheme, the First Home Owner grant, and the deferral of transfer duty payment for off the plan transactions.

The  By Lawyers New South Wales conveyancing publications have been updated accordingly. The Purchase of Real Property (NSW) and 1001 Conveyancing Answers (NSW) guides contain detailed coverage of transfer duty concessions and government grants for the purchase of real property.

Employment Law – FED

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The By Lawyers Employment Law guide has been updated for the latest legislative amendments.

From 1 July 2023 the maximum amount that can be ordered under the civil remedy provisions of the Fair Work Act in small claims proceedings increased from $20,000 to $100,000.

Failure to pay wages and entitlements can give rise to civil remedies for contravention of statutory obligations. Chapter 4 – Part 4.1 of the Fair Work Act 2009 deals with civil remedies.

An offending employer can be ordered to pay a pecuniary penalty on top of the wages and contractual or statutory entitlements unpaid or underpaid, plus interest up to judgment.

Division 3 of Part 4.1 provides that applications for most contraventions of civil remedy provisions under the Fair Work Act, although not pecuniary penalty orders, may be dealt with as small claims proceedings in a state magistrates court or the Federal Circuit and Family Court of Australia (Division 2), with awards limited to $100,000 or any higher amount prescribed by the regulations.

The section on Underpaid and unpaid wages and entitlements in the By Lawyers Employment Law commentary has been updated accordingly.

These amendments are under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 which makes numerous changes to the Fair Work Act 2009. These amendments commence in phases over the course of several years and include:

  • expansion of the objects of the Fair Work Act;
  • equal pay provisions to address gender inequality;
  • prohibition of pay secrecy – designed to augment the equal pay provisions;
  • prohibition of sexual harassment in the workplace, including Stop Sexual Harassment Orders via the Fair Work Commission. These provisions commenced on 6 March 2023 – see our previous News & Updates post;
  • additional grounds for anti-discrimination in the workplace;
  • fixed-term contracts are generally no longer permitted;
  • expanded availability of flexible work arrangements.

See our previous News & Updates post for further details.

The By Lawyers Employment Law guide and 101 Employment Law Answers will be updated as these relevant provisions commence.

Unoccupied land – NSW

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The period for which unoccupied land in New South Wales may be treated as a person’s principal place of residence for land tax purposes has been extended.

The Revenue Legislation Amendment Act 2023 (NSW) commenced on 1 July 2023. The Act permits the Chief Commissioner of Taxation to extend from four tax years to six tax years the maximum period during which unoccupied land may deemed a person’s principal place of residence.

The Chief Commissioner’s discretion is enlivened if they are satisfied that delays in completing building or other work has rendered the land uninhabitable. Any such delays must also have been due to circumstances outside the control of the property owner that they could not have reasonably avoided.

The Act is intended to ensure that owners who faced building and construction delays due to the exceptional circumstances during the COVID-19 pandemic, or the recent bushfires and floods, will not be penalised by being required to pay land tax on their still unoccupied land. Any four-tax year period that ended on or after 31 December 2019 may be extended to six years, at the Chief Commissioner’s discretion. Any property owner granted an extension will have up to six tax years in total to complete their building or renovation work, and to occupy the property as a principal place of residence, before land tax is charged.

The By Lawyers New South Wales conveyancing publications have been updated accordingly. The Purchase of Real Property (NSW), Sale of Real Property (NSW), and 1001 Conveyancing Answers (NSW) guides include extensive sections of commentary on land tax and land tax exemptions.

Windfall gains tax – VIC

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A new tax on windfall gains arising from rezoned land applies in Victoria from 1 July 2023 under the Windfall Gains Tax Act 2021 (Vic).

Rezoning

This tax captures the increased value from a significant uplift in a property’s worth from government decisions to rezone land. Revenue raised is intended to fund the construction of infrastructure to complement development from a rezoning.

Land that is rezoned, resulting in an increase of more than $100,000, will have the tax applied: s 9 of the Windfall Gains Tax 2021. The owner of the rezoned land pays the tax, with liability arising when the rezoning occurs.

A tax assessment containing a due date for payment will issue to the owner.

Section 3 creates exclusions, including land zoned for public places or land subject to the Growth Areas Infrastructure Contribution. Residential land not exceeding 2 hectares is also exempt, as are rezonings underway before 15 May 2021.

Rate

If the increase in value is more than $100 000 but less than $500 000, the tax is applied at 62·5% of the part of the taxable value uplift that exceeds $100 000.

If the gain is $500 000 or more the tax is 50% of the taxable value uplift.

Deferral

Owners can defer some or all their liability until the earlier of:

  • a dutiable transaction occurring with the land, for instance a sale and purchase;
  • the landowner being the subject of a relevant acquisition;
  • 30 years after the rezoning event.

Interest accrues on deferred windfall gains tax liability at the 10-year Treasury Corporation of Victoria bond rate.

For a deferral not to cease when a dutiable transaction occurs, the purchaser or transferee must elect to assume the windfall gains tax liability including any accrued interest. If so, the deferral continues and the tax liability rolls over to the new owner.

Full payment is due within 30 days of a deferral ceasing. A form available from the State Revenue Office website needs to be completed to request a deferral. A part payment can be made at any time before the deferral period ends.

The relevant By Lawyers Victorian conveyancing publications have been updated accordingly. The Purchase of Real Property (VIC), Sale of Real Property (VIC), and 1001 Conveyancing Answers (VIC) guides contain extensive coverage of windfall gains tax.

Duty concessions – VIC

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The Victorian state budget contains provisions commencing on 1 July 2023 that affect transfer duty concessions and exemptions for special disability trusts and pensioners.

From 1 July 2023, pensioners purchasing real property for up to $600,000 are exempted from duty. These purchasers buying property valued between $600,001 and $750,000 pay a concessional rate of land transfer duty. The exemption and concession caps mirror the thresholds for first home buyers. Eligibility is assessed on the total value of the purchase.

From 1 July 2023, the special disability trust transfer duty deduction threshold will be increased from $500,000 to $1,500,000 for transfers of a principal place of residence. A new land transfer duty exemption will apply for the transfer of a home by an immediate family member to an individual eligible to be a beneficiary of a special disability trust. The property can be valued at up to $1,500,000. This new exemption is designed to complement the duty concessions and exemptions in s 38A of the Duties Act 2000. The exemption is intended to assist families who wish to provide a home for a severely disabled family member, but consider the process of creating and managing a special disability trust to be too expensive and complex.

The relevant By Lawyers Victorian conveyancing publications have been updated accordingly. The commentary in the Purchase of Real Property (VIC), Sale of Real Property (VIC), and 1001 Conveyancing Answers (VIC) guides contain extensive coverage of land transfer duty and land transfer duty exemptions.

Succession & Probate Lists – NSW

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The New South Wales Supreme Court has introduced combined Succession & Probate lists, for family provision claims and contested probate applications.

The new list replaces the Family Provisions Claims list previously managed by Justice Hallen, who is retiring. The court has never previously had a specialist list for contested probate matters.

Re-issued Practice Note SC EQ 07 – Succession & Probate Lists updates the procedures applicable to family provision and contested probate matters in the Court.

Key points include:

  • These types of matters will be managed and heard in the Succession & Probate List.
  • Directions and the hearing of interlocutory motions will be dealt with on Fridays, with Monday directions being phased out.
  • There will be two judges managing the list, initially Justices Meek and Lindsay.
  • There will be two judges available for the list on Fridays.
  • If possible, family provision applications whether combined with probate or not, will be dealt with by one judge and probate matters will be dealt with by the other judge.
  • Most interlocutory motions for matters in the list will require leave except urgent matters which can be listed by arrangement.
  • Subpoenas and Notices to produce for matters in the list will require leave.
  • Mediation for all matters in the list will be court annexed by default, unless the parties consent to private mediation or the Court otherwise orders.
  • Requirements for the content of the plaintiff’s affidavit in Family Provision matters updated.

The Court has indicated that the emphasis of the new list will be on strict case management and efficiency, in accordance with the overriding principal of just, quick and cheap disposal of the real issues in the proceedings under Section 56 Civil Procedure Act 2005 .

By Lawyers Family Provision Claims (NSW) and Supreme Court (NSW) – Equity Division guides have been updated accordingly, including the Retainer Instructions precedents which prompt practitioners to obtain the necessary instructions and documents required by the practice note.

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