ByLawyers News and Updates

Joint venture agreements – Property development projects

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There are many different property development projects for which a joint venture structure may be suitable. Some common examples include:

  • A project where a property owner and builder agree to build a duplex on the basis that the builder and the owner each receive a unit by partition on completion;
  • Joint property owners who develop the property using a third party builder;
  • A developer and a property owner who develop a property by engaging a third party builder.

To help you structure these projects, By Lawyers have added a new precedent: Joint Venture Agreement – Townhouses development project.

This document is located in our Joint Ventures Guide and may be used in any of the situations listed above.

Our Joint Ventures commentary has also been updated to discuss use of the new agreement and the accompanying documentation necessary.

The By Lawyers Joint Ventures Guide ensures that practitioners can feel confident drafting agreements that capture the full complexity of their clients’ property development projects.

Companies, Trusts and Partnerships – Special disability trusts

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By Lawyers has expanded our comprehensive Companies, Trusts and Partnerships guide to include commentary and precedents covering special disability trusts.

A special disability trust can be established to provide for the care and accommodation of a disabled family member and if compliant will allow the disabled beneficiary of the trust to retain their full entitlement to a Centrelink pension. There are also generous concessions for contributions to a compliant special disability trust.

The commentary covers everything a practitioner needs to know about establishing a special disability trust for their clients, including:

  • beneficiary eligibility requirements;
  • contribution and concession guidelines; and
  • the permitted use of special disability trust funds.

The By Lawyers Special Disability Trust Deed is provided and includes all of the mandatory clauses from the model trust deed for special disability trusts published by the Department of Social Services, as required to comply with the Social Security Act 1991 and the Social Security (Special Disability Trust) Guidelines 2011.

 

Criminal Guides – Calculating penalty units

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Helpful new commentary on calculating penalty units has been added to the By Lawyers Criminal Guides in NSW, VIC, QLD and WA, and also to our Practice Management Guide.

Information is provided about what a penalty unit is and how to calculate the monetary penalty for various breaches of laws. There is a useful summary of the current value of a penalty unit in each state and territory, as well as the Commonwealth. The By Lawyers team will ensure that these values are updated when required, across the jurisdictions.

 

Wills – Additional clause – direction to executor regarding disposal of body

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All By Lawyers wills precedents have been updated to include a clause that directs the executor on the testator’s wishes for their remains. This clause is automated  for LEAP users.

Where the instructions are more detailed, the Burial, Cremation, Medical Research Provisions clauses from the Library of Clauses, Deeds, Contracts and Codicils are also available.

Our Retainer Instructions already include a section for burial, cremation and medical research, so that the testator’s wishes can be discussed and recorded.

Practice Management — Enhanced reference material — 101 Policy and Procedures

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Our reference guide — 101 Policy and Procedures has been enhanced.

This guide forms part of our Practice Management publication and provides a ready reference for all team members in a law firm about all aspects of the practice. A few excerpts:

Client service and communication standards

The firm strives to deliver the highest level of service and value to its clients. This means that team members are expected to be well mannered, engaged and responsive to phone calls, emails and other correspondence….

Cost disclosure and billing practices

In all matters, use the Retainer Instructions provided in the matter plan under Getting the Matter Underway and disclose costs in writing. Costs disclosure must be by way of a formal Costs Agreement where costs are likely to exceed $3000, or otherwise disclosed in the initial correspondence, as done for example in the precedent letters in the matter plan for conveyancing matters….

Supervision of practice and staff

The system adopted by the practice, if followed, will ensure that the practice is run efficiently and safely to the satisfaction of all participants. This simply involves adherence to all policies and procedures. …

Other topics covered include Asset register, Closing files, Email policy, Petty cash, Sexual harassment and Trust accounting.

Practice Management — New reference material — 101 Trusted and useful sites by area of law

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Here at By Lawyers we spend a lot of time researching and fact-checking, in all of the areas of law that our publications cover. Over time we have compiled a list of credible and helpful websites which we regularly use – and that list is now available to you, with the publication of our new reference tool — 101 Trusted and useful sites by area of law.

This handy resource brings together in one place hyperlinks to some of the most trusted and useful websites you might need, organised according to areas of law.

The new reference tool is located as a separate guide in the By Lawyers Practice Management publication.

By way of example, these are the Federal websites we have included for the Business & Franchise area of law:

FEDERAL

Business & Franchise
GST and Taxes – Australian Taxation Office (ATO)
Franchises

There are also sites under that subject heading for each state. There are subject headings for all of the areas of law covered by our publications.

As with all of our publications this resource will be regularly updated.

This ready reference tool is a convenient starting place for everyone in the firm seeking trusted information to assist clients in any area of on any practice.

Reference manual – 101 Family Law Answers – commentary added

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Commentary has been added to the By Lawyers 101 Family Law Answers reference manual in the Children chapter:

Orders – Variation and the rule in Rice & Asplund
To set aside or vary final parenting orders, parties must meet the threshold test set out in Rice v Asplund (1979) FLC 90-725. This case provides that where final parenting orders have been made, the court must establish a significant change in circumstances before it sets aside or varies final orders. The rationale is founded on the ‘best interests principle’ and the public interest for parties to not continuously re-litigate parenting matters. …

There is no specific timeframe in which a significant change of circumstance must or must not be shown. It depends on the individual case. There was consideration of the rule in SPS & PLS [2008] FamCAFC 16. In that case the court said at [48] … At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle” … The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order. …

Other useful cases include:

 

Immigration work to become easier for lawyers

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With the impending removal of dual regulation, immigration practice becomes more accessible for legal practitioners.

Currently, lawyers practising in immigration law are subject to dual regulation: the regulation already applicable to Australian legal practitioners, plus the requirement to be registered as migration agents and subject to the Migration Agents Regulatory Authority (MARA).

Under the proposed Migration Amendment (Regulation of Migration Agents) Bill 2017 (Cth), currently before the senate, this barrier to lawyers conducting immigration matters will be removed. Lawyers will no longer have to register as migration agents and will not be subject to regulation by MARA.

This means lawyers will be able to conduct immigration matters as part of their usual practice, with no additional registration or regulatory requirements.

The proposed commencement date, for lawyers holding practising certificates without a supervised legal practice condition, is 19 November 2018.

Further information about the Bill, including proposed consumer education on the changes, is available on the MARA website.

By Lawyers Immigration guide allows lawyers to take advantage of these changes

By Lawyers continually reviews and updates all publications in line with legislative and procedural changes, ensuring publications are current for every matter undertaken.

Whether acting for an employer who wants to sponsor a temporary overseas worker or a family seeking to bring an older relative from another country, the By Lawyers Immigration publication assists practitioners from start to finish.

Reference Manual – 101 Family Law Answers – additions

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Additions have been made to the 101 Family Law Answers reference manual.

The following commentary was added to Admissibility of settlement negotiations:

A without prejudice offer to settle parenting matters was admitted in the Western Australia case S and K [2007] FCWA 17. In this case the court said:

There is no doubt that it is important to preserve confidentiality and to foster an environment that allows parties to negotiate without fear they will be compromised in an endeavour to settle matters. However, offers can be made for a number of reasons and the overarching principle is always the best interests of the child. It is not the sole consideration but it is the paramount one.

The Court should not be precluded from obtaining information to ensure that the principle is met…

Note: This is a single judge decision and hasn’t been followed in subsequent cases since it was handed down in 2007.

The following useful case references were added to Relocation:

Carne & Feldt [2013] FCCA 1851: the court permitted an interim relocation 100 km (1 hour) away. The child was 6 years old and the mother was relocating to live with her new partner, the father of her unborn child.

Cavanagh & Kennedy [2013] FCCA 345: the mother unilaterally relocated with the parties’ 7 year old daughter to a place an ‘hour and a half away’ despite an earlier final order providing for equal shared parental responsibility and that each ‘parent is restrained from relocating outside the … district unless agreed in writing between the parties’. The court ordered she return.

Morgan & Miles [2007] FamCA 1230: dealt with a move of 144 km and whether this constitutes ‘a relocation’.

Self managed superannuation funds – Updated commentary and new precedents

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Our very popular Self Managed Superannuation Funds Guide has been updated to include some new commentary and precedents dealing with death benefits and reversionary pensions.

New or enhanced precedents include:

  • a detailed new Pension Payment Agreement between the trustee and the member setting out the terms upon which pensions are to be paid from the fund;
  • an updated Product Disclosure Statement, from the fund to its members, explaining the basis for establishing a pension and the procedure involved in paying pensions from the fund;
  • a letter to the client – i.e.: the trustee of the self managed superannuation fund – enclosing and explaining the documentation; and
  • comprehensive Nomination forms, for death benefits and reversionary pensions, giving the member maximum permissible choice and flexibility as to how their superannuation is handled after their death.

These changes clarify and streamline the process of setting up pensions in a self managed superannuation fund, making a death benefit nomination or reversionary beneficiary nomination, in accordance with legislative requirements and allow users to give their clients the best advice and assistance.

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