by By Lawyers
The By Lawyers discretionary trust deeds and associated precedents have been updated to clarify the definition of foreign person.
The definition operates in the clauses that prohibit a foreign person from being a beneficiary, to avoid the imposition of surcharge duty and land tax.
See the discretionary trust deeds in the By Lawyers Trusts guide.
by By Lawyers
The By Lawyers Trusts guide has been extensively reviewed, resulting in:
Practitioners are also reminded that a new precedent Trust Deed Review Checklist was added to the Trusts guide recently in response to a request from a practitioner.
The checklist is a useful tool for lawyers when:
The new Trust Deed Review Checklist is found in folder B. Trusts generally in the By Lawyers Trusts guide.
Trusts is an extensive publication. The commentary deals with all aspects of discretionary trusts, unit trusts, charitable trusts, and special disability trusts. The array of precedents includes deeds and clauses for various iterations of all of those trusts.
At By Lawyers, we love receiving feedback from the law firms using our content, and we are always ready to add helpful new precedents that practitioners need. It’s part of our commitment to practicality and helping lawyers enjoy practice more.
If using our Trusts guide, please don’t hesitate to let us know what you think of the enhancements and additions; you can email us any time at askus@bylawyers.com.au.
by By Lawyers
For the assistance of practitioners acting in trusts matters, a new precedent Trust Deed Review Checklist has been added to the matter plan in the By Lawyers Trusts publication. The new precedent was developed in response to a request from a practitioner.
The checklist is a useful tool for lawyers when:
The new Trust Deed Review Checklist is found in folder B. Trusts generally in the By Lawyers Trusts guide.
At By Lawyers we love feedback from the firms using our content and are always ready to add new precedents that practitioners need. It’s part of our commitment to practicality and helping lawyers enjoy practice more.
by By Lawyers
A new guide to Electronic Signing and Witnessing has been added to the Reference Materials folder on all By Lawyers matter plans.
This helpful resource summarises the various legislation across all Australian jurisdictions for electronic transactions.
In Australia under federal, state, and territory legislation many transactions can be completed electronically.
Electronic signing and witnessing are available for many, but not all, transactions and documents encountered in every day practice. However, the availability of electronic signing and witnessing is considerably different in each jurisdiction.
The new guide summarises the applicable legislation in each jurisdiction, to assist practitioners understand when electronic signing and witnessing is permitted and how it can be done.
The Commonwealth took the lead on legislation to enable electronic transactions at the turn of the millennium, and sought the cooperation of the states in enacting consistent laws across all jurisdictions, resulting in the following legislation:
Electronic Transactions Act 2001 (ACT)
Electronic Transactions Act 1999 (CTH)
Electronic Transactions Regulations 2020 (CTH)
Electronic Transactions Act 2000 (NSW)
Electronic Transactions Regulation 2017 (NSW)
Electronic Transactions (Queensland) Act 2001 (QLD)
Electronic Transactions (Northern Territory) Act 2000 (NT)
Electronic Transactions (Northern Territory) Regulations 2001 (NT)
Electronic Communications Act 2000 (SA)
Electronic Communications Regulations 2017 (SA)
Electronic Transactions Act 2000 (TAS)
Electronic Transactions Regulations 2021 (TAS)
Electronic Transactions (Victoria) Act 2000 (VIC)
Electronic Transactions (Victoria) Regulations 2020 (VIC)
Electronic Transactions Act 2011 (WA)
Electronic Transactions Regulations 2012 (WA)
Unfortunately, the approach taken by each state and territory to implementing this legislation differs to various degrees from both the Commonwealth’s and each other’s. Each jurisdiction has exempted certain statutes, transactions, and documents from the operation of their Act or some of its provisions.
This means that, while all jurisdictions have laws providing for electronic transactions and electronic signing, and some have laws for audio visual witnessing, the documents that can be electronically signed and the requirements for execution vary between the jurisdictions.
The new guide brings all of this information together for practitioners to easily reference in any matter they are working on.
by By Lawyers
1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.
These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.
By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.
We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.
The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:
Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News and Updates posts dealing with those updates.
By Lawyers always keep our content – and our subscribers – up to date!
by By Lawyers
Recent duty and other revenue amendments impacting conveyancing, trusts, and family law have been incorporated as applicable into the relevant By Lawyers publications.
The State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022 (NSW) amended various revenue Acts with effect from 19 May 2022, including:
These revenue amendments touch on various areas of practice.
Ad valorem stamp duty is payable on option fees under put and call option deeds. New section 8 (1)(b)(ix) of the Duties Act 1997 provides that duty is payable by the grantee within three months of an option being granted. This changes the previous position where duty was only payable on an option fee if the option was exercised.
Duty is assessed on the option fee, not including security deposits, performance payments, and legal costs.
The grantee is not entitled to claim a refund for any stamp duty paid, regardless of whether the call option is exercised. Also duty paid on the option fee is not credited toward the duty payable on the property when the option is exercised and the contract completed.
The changes do not apply to option agreements entered into before 19 May 2022.
A new section 49A (1D) of the Duties Act 1997 provides that to qualify for a 12-month deferral of stamp duty on off-the-plan purchases, a residence requirement must be met. At least one of the purchasers must use and occupy the property as their principal place of residence for at least 6 months, within 12 months of completion. Australian Defence Force personnel are exempted from the residency requirement. A new version of the Revenue NSW purchaser declaration form is available. Part 6 of the form relates to off-the-plan purchases and provides for the nomination of ADF personnel.
A new s 104ZJA(1) (c) of the Duties Act 1997 provides that an Australian-based developer which pays surcharge purchaser duty on a transfer of residential land may have it refunded they later change the use of the land to wholly or predominantly commercial or industrial.
The application for a refund must be lodged online using the application type Australian Based Developer Application for Exemption & Reassessment.
Section 13A (3) of the First Home Owner Grant (New Homes) Act 2000 has been amended to include a new definition of the eligibility cap, including how to calculate the total value of the transaction based on the type of transaction and when it occurs.
New sections 5B(2A) and 5B(2B) of the Land Tax Act 1956 provide for a discretionary exemption allowing those who do not occupy their principal place of residence for 200 days continuously in a year to remain exempt from land tax. This allows owners to, for example, live and work overseas for a period without losing the exemption.
The By Lawyers Sale of real property (NSW), Purchase of real property (NSW) and 1001 Conveyancing Answers (NSW) publications have been updated accordingly.
The amending Act broadens the scope of dutiable transactions under s 8(1)(b)(ix) of the Duties Act 1997 by introducing duty on transactions that result in a change in beneficial ownership and acknowledgement of trust.
Under s 8(3), the definition of change in beneficial ownership has been extended to include the creation and extinguishment of dutiable property, a change in equitable interests in dutiable property, and dutiable property becoming and ceasing to be subject to a trust.
This amendment directly arises from the case of Benidorm Pty Ltd v Chief Commissioner of Revenue [2020] NSWSC 471 where the Supreme Court held that the definition of declaration of trust in s 8(3) of the Duties Act 1997 as it then was must have a legal consequence, or consequences, beyond merely acknowledging that which already exists. The taxpayer in that case held real property and shares on trust for a beneficiary. When the beneficiary died his sole beneficiary and executor made a declaration of trust substantially the same as the original trust. On appeal the taxpayer was successful and was able to avoid paying duty on the second declaration, which acknowledged and evidenced a trust that was already in place. Such an acknowledgment of trust will now be caught by the Act.
The By Lawyers Trusts publication has been updated accordingly.
A new s 68 (1A)(b)(iia) of the Duties Act 1997 means that for de facto relationships transfers of property effected by an agreement made to divide relationship property due to the breakdown of a relationship will be exempt from duty. Previously, to be exempt from duty the transfer had to be effected by a binding financial agreement, court order, or purchase at a public auction. This brings the exemption for de facto couples into line with that for married couples. These exemptions are discretionary and depend on sufficient evidence being supplied in support of the application.
A new version of the form Revenue NSW ODA 069 – Application for Exemption or Refund – Break up of marriage or De facto Relationship is available and needs to be completed.
The By Lawyers 101 Family Law Answers publication has been updated accordingly.
by By Lawyers
COVID-related changes which affected the way companies deal with meetings and documents have been made permanent.
Companies and registered management investment schemes are now permanently able to use technology to hold meetings and execute documents under the Corporations Act 2001.
The Corporations Amendment (Meeting and Documents) Act 2022 makes permanent the previous COVID-related changes in the Treasury Laws Amendment (2021 Measures No. 1) Act 2021.
A company can choose to hold a meeting:
Members are to be provided with a reasonable opportunity to participate in meetings s 249S. Appropriate notice and provision of sufficient technology for members to participate and vote is required.
At least once each financial year members may elect to receive documents either electronically or in paper form. A member can request not to be sent any document prescribed in the regulations. The company is required to make notices available on a website and take reasonable steps to provide the member with any requested documents.
The following documents may be provided by the company in electronic or physical form:
Corporate documents can be signed and executed electronically, with company signatories no longer required to sign the document in the presence of a witness physically.
A copy or counterpart of the document can be signed instead of the original therefore split execution is permitted.
Where there is a sole director, but no company secretary, a document is validly executed if:
Where the new rules are followed people dealing with companies are entitled to assume that a document is validly executed.
The permanent changes apply to documents sent and meetings held on or after 1 April 2022.
The By Lawyers Companies guide has been updated to reflect these changes in the way companies may deal with meetings and documents.
by By Lawyers
Many temporary COVID measures introduced across Australia during the pandemic are here to stay.
New South Wales and Queensland have now proposed legislation permanently retaining some COVID measures, such as remote witnessing. Victoria have already legislated to retain some COVID measures. The Commonwealth has extended temporary measures for companies.
With other states and territories expected to follow suit, the long-term legal legacy of COVID-19 looks like being significant.
The Electronic Transactions Amendment (Remote Witnessing) Bill 2021 will permanently allow certain documents to be witnessed in real time over an audio-visual link.
Further, for an additional 12 months from the date of assent, the list of people who can witness NSW statutory declarations will be extended to the expanded list of witnesses set out in Schedule 2 of the Statutory Declarations Regulations 2018.
The Justice and Other Legislation Amendment Bill 2021 will make permanent some of Queensland’s temporary COVID measures including:
The Oaths (Miscellaneous) Amendment Act 2021 commencing on 1 December 2021 amends the Oaths Act 1936 (SA) to:
All relevant By Lawyers guides, including the dedicated guide Dealing with COVID-19 legal issues – Some practical information which appears at the top of all By Lawyers matter plans, have been or will be updated to reflect these changes as and when they take effect.
by By Lawyers
Director identification numbers have been introduced in Australia following the commencement of long-awaited amendments to the Corporations Act 2001 (Cth).
Director identification numbers, or Director IDs, are a unique number which attaches to an individual company director for their life. They retain the director identification number even if they cease to be a director or move from the jurisdiction. It allows directors to be easily identified across multiple companies. It is intended that this identification will assist with compliance and insolvencies.
The 15 digit numbers will start with 036, which is the three-digit country code for Australia under International Standard ISO 3166.
Directors appointed prior to 31 October 2021 must apply for a director identification number between 1 November 2021 and 30 November 2022.
Directors appointed between 1 November 2021 and 4 April 2022 must apply within 28 days of appointment.
Directors appointed after 5 April 2022 must apply prior to being recorded on the ASIC register.
An application for a director identification number is made to Australian Business Registry Services. To make the application directors will need to provide:
Failure to apply as required, or any misrepresentation as to a director’s number or being the holder of a number, can expose current or prospective company directors to civil and criminal penalties.
The By Lawyers Companies and Joint Ventures guides have been updated accordingly. Commentaries discuss the need to obtain a Director ID. Retainer instructions now prompt for the Director ID.
by By Lawyers
COVID measures for companies have been further extended. These temporary measures are currently set to expire on 31 March 2022.
The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (‘the 2021 measures’) commenced on 13 August 2021. They extend and expand on the measures previously introduced in 2020.
A company can execute a document electronically under s 127 of the Corporations Act 2001. Signatories can sign separate counterpart copies.
The method used must:
The measures also allow for alternatives to execution normally requiring a common seal.
The 2021 measures also extend and expand on the previous COVID measures for companies holding meetings. They modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or allow a meeting to be held, or that regulate giving notice of a meeting, or the conduct of a meeting. The provisions include:
The By Lawyers Dealing with COVID-19 legal issues – Some practical information publication has been updated accordingly. This helpful summary guide to COVID measures in all states is available at the top of all By Lawyers matter plans.