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Foreign resident capital gains withholding clearance certificates

11 December 2017 by By Lawyers

Clearance certificates will not be issued during the ATO’s Christmas closure – 22/12/17 to 2/1/18.

Filed Under: Australian Capital Territory, Conveyancing and Property, Legal Alerts, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: ATO, Australian Taxation Office, Capital gains tax, CGT, Clearance certificate, conveyancing, Conveyancing & Property, Foreign Resident Capital Gains Withholding Payment, FRCGWP

Power of attorney

1 December 2017 by By Lawyers

By Russell Cocks, Solicitor

First published in the Law Institute Journal

Property lawyers often come across a Power of Attorney in practice and understanding the obligations of an Attorney is important.

The ability of a person (the donor) to delegate power to another (the attorney) has been recognised by the law for centuries. A common law form of Power of Attorney would be in the form of a deed and would recite the appointment by the donor of the attorney and confer power on the attorney. Traditionally such documents would run for many pages and would enumerate extensive powers that the attorney was authorised to exercise on behalf of the donor. Alternatively, the document could be limited in scope, authorising the attorney to exercise specific powers for a specific purpose.

The significance of the power conferred on the attorney was recognised as a reason for government supervision and a system of registration of powers was established. But the cost of this supervisory role was deemed excessive and the registration of powers ceased in the late 20th. century, although a limited registration process is available at the Land Titles Office for ‘heavy users’. The wheel turns in such matters and there are presently calls for law reform to again invoke a registration process.

The form of a power of attorney was governed by the Instruments Act 1958 until the Powers of Attorney Act 2014. This Act sets out in detail the requirements relating to the creation, use and revocation of powers of attorney and recognises various types of powers, the most important of which is the Enduring Power of Attorney. This is so as the common law took the view that the attorney loses power if the donor loses legal capacity and, given the importance of powers for the management of the affairs of the elderly who are susceptible to losing capacity, such a restriction undermines the effectiveness of the power. The Act therefore perpetuates the Enduring power beyond loss of capacity of the donor.

FIDUCIARY DUTY

Perhaps the most important aspect of a power of attorney is the fiduciary duty owed by the attorney to the donor. This is a common law concept and is not mentioned in the Act, although the Act does have a prohibition on the attorney entering into any transaction that may create a conflict between the interests of the donor and the interests of the attorney (s 64) and specifically prohibits the attorney from using the position to make a profit (s 63). These are the two fundamental elements of the common law fiduciary duty and to that extent the Act confirms that duty.

A recent case that considered a breach of the common law duty is Ash v Ash [2017] VSC 577. The donor appointed his daughter (who was a solicitor) as attorney in 2012. By 2014 the donor had lost capacity and the attorney made a number of transfers of the donor’s assets, including superannuation, that resulted in the donor’s assets being substantially diminished. These transfers were to entities associated with the attorney and the attorney directly benefited from these transactions.

The attorney sought to explain the transactions as flowing from previous instructions given by the donor and as a result of the attorney using her ‘signing authority’ at the donor’s bank but the court dismissed these suggestions as a ‘fiction’ and to accept that argument would be to ‘undermine the protective role inherent in the appointment of an attorney’.

The court did not suggest that an attorney can never enter into a transaction creating conflict between the interests of the donor and the attorney and recognised that ‘fully informed consent’ of the donor would justify an attorney entering into such a ‘conflict’ transaction, however the attorney failed to discharge the onus of proving that such consent had been given by the donor.

The donor was represented by a VCAT appointed administrator who successfully sought judgment against the attorney for all losses suffered as a result of the attorney’s breach of fiduciary duty and also judgment against entities associated with the attorney who had been ‘knowing assistants’ in this breach.

Had these actions taken place after 2015 the attorney may well have also been charged under s 135(3) Power of Attorney Act with committing an offence of using a power of attorney to gain financial advantage for the attorney or another person, with a possible penalty of 5 years imprisonment.

Tip Box

•Powers of Attorney create fiduciary obligations that the attorney must honour

•These obligations include a duty to avoid conflicts of interest

•Criminal penalties may apply to breach of these obligations

•Whilst written for Victoria this article has interest and relevance for practitioners in all states

Filed Under: Articles, Conveyancing and Property, Victoria Tagged With: conveyancing, Conveyancing & Property, power of attorney

NSW – Land and Property Information (LPI) name change

20 November 2017 by By Lawyers

From 1 December 2017 Land and Property Information (LPI) will be renamed Land Registry Services (LRS). Their logo, website domains and email address are changing. Full details available in this announcement from LPI.

Filed Under: Conveyancing and Property, Legal Alerts, New South Wales, Publication Updates Tagged With: conveyancing, Conveyancing & Property, Land and Property Information, LPI, LRS Land Registry Services, titles office

VIC – Vacant residential land tax

14 November 2017 by By Lawyers

Vacant residential land tax applies from 1 January 2018 to homes in inner and middle Melbourne that are vacant for more than six months in the preceding calendar year. See the Vacant residential land tax commentary in our sale and purchase guides.

Filed Under: Conveyancing and Property, Legal Alerts, Publication Updates, Victoria Tagged With: conveyancing, Conveyancing & Property, land tax, tax, vacant residential land tax

NSW – Retirement Villages – Legal fees recoverable by operator

9 November 2017 by By Lawyers

The Retirement Villages commentary has been updated to reflect the current cap for legal fees recoverable by the operator from a resident for preparation of a village contract.

Filed Under: Conveyancing and Property, New South Wales, Publication Updates Tagged With: conveyancing, Conveyancing & Property, retirement villages

WA – Electronic lodgement for all eligible documents

9 November 2017 by By Lawyers

From 1 December 2017 – Any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats must be lodged electronically. Are you E-Conveyancing ready? See our paper E-Conveyancing – Get Connected for information and implementation timelines

Filed Under: Conveyancing and Property, Legal Alerts, Publication Updates, Western Australia Tagged With: conveyancing, Conveyancing & Property, e-conveyancing, electronic conveyancing, electronic lodgement, PEXA, property, timeline

VIC – New conveyancing articles

3 November 2017 by By Lawyers

Two new articles about conveyancing in Victoria have been published.

E-Conveyancing – Getting Connected

This is a timely and practical paper about adopting and utilising electronic conveyancing. It includes  information about how to improve the process and where you can find further information and support.

Release of deposit – 2017

There has only been one reported decision on deposit release (McEwan v. Theologedis [2004] VSC 244) and that case did not consider the “condition enuring” argument.  Aurumstone P/L v Yarra Bank Developments P/L [2017] VSC 503 has now considered that argument.

 

Filed Under: Conveyancing and Property, Publication Updates, Victoria Tagged With: aurumstoner, e-conveyancing, electronic conveyancing, release of deposit, section 27, yarra

NSW – Conveyancing

24 October 2017 by By Lawyers

Sale & Purchase of Real Property commentary has been updated top include a table that allows users to easily discern the differences between the By Lawyers Sale of Land contract and the Law Society contract 2017.

1001 Conveyancing Answers has been updated to include reference to the By Lawyers contract and highlight the differences between it and the Law Society contract.

Key differences: The inclusion of warranties which remove the need for standard requisitions and special conditions, the facility for all communications including exchange to be electronic, and replaces claims with a right for the purchaser to either accept the detriment or rescind if the detriment, of whatever value, materially and adversely affects the property and the vendor is unwilling to rectify it.

Filed Under: Conveyancing and Property, New South Wales, Publication Updates

Property – NSW

6 October 2017 by By Lawyers

Updated references  to 2017 version of Regulations.

Add the Fair Trading calculator for Retirement Villages.

VOI and client authorisation have been added to the To Do Lists.

New precedents have been added to the property publications including:

  • Conveyancing Rules exception;
  • Law Society – Commercial 2017;
  • Law Society – Strata commercial – 2017

Filed Under: Conveyancing and Property, New South Wales, Publication Updates

Leases – new sublease precedents

1 September 2017 by By Lawyers

Three new sublease precedents have been added to the Leases publication:

  • Sublease – retail
  • Sublease – commercial industrial
  • Sublease – rural

Filed Under: Conveyancing and Property, New South Wales, Publication Updates, Queensland, South Australia, Victoria, Western Australia Tagged With: industrial, lease, retail. commercial, rural, sublease

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