ByLawyers News and Updates

Matter type changes

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There has been a technical change to the structure of our Defamation & Protecting Reputation and Neighbourhood Disputes publications. They have been changed from federal matter types to state-based matter types.

Subscribers may notice that the title of the Defamation publication now includes a state name. This is nominative only. The content of the Defamation publication is unchanged and remains the same across all states.

For state-based guides and precedents to be visible from existing matters, LEAP Desktop users will need to change their matter type from Other areas of law > Miscellaneous > Disputes to Other areas of law > Disputes.

By Lawyers is presenting at the Small Law Industry Summit

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We are proud to be presenting as summit partners at the inaugural Small Law Industry Summit hosted by LEAP on 14 March 2019.

Tickets are selling fast – Secure your place at the Small Law Industry Summit here and be a part of the conversation on the future of the legal industry.

Our Managing Director Brad Watts will be presenting on law firm innovation through the four pillars of improved practice management.

The summit will also feature a number of not to be missed presentations from industry leaders on a range of key issues including leadership, risk mitigation, high-performance culture and the fundamental role of technology in shaping the future of the legal profession.

Get your early bird pass for a special rate of $95 and Claim 6 CPD points.

50% of each ticket sold will go towards supporting cyber security education – through a scholarship at Western Sydney University (WSU).

We hope to see you there!

 

Electronic lodgement of leases – NSW

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From 10 December 2018 electronic lodgement of leases commences via PEXA.

Summary of the procedure for electronic lodgement of leases

The annexures to the Real Property Act lease form are prepared in the usual way outside PEXA and then uploaded for attachment to the RPA lease form in PEXA .

The RPA lease form is created in PEXA, the annexures attached and the lease document is then signed and lodged electronically.

A lease may be lodged electronically:

  • as a stand-alone registration;
  • in combination with a transfer of land; and
  • in a series with other leases.

Sub-leases, surrenders of lease and variations of lease are not yet available in PEXA. This functionality is expected mid-2019.

The Office of the Registrar General has granted a partial waiver of a subscriber’s obligations to comply with rule 1 of Schedule 3 – Certification Rules of the Model Participation Rules relating to verification of identity for lessors and lessees, in that there is no requirement to take reasonable steps to verify the identity of the parties. The waiver will continue until either the Model Participation Rules are amended or the partial waiver is revoked.

By Lawyers Leases (NSW) guide updated for electronic lodgement of leases

The relevant sections of the By Lawyers Leases (NSW) commentary, as well as the following applicable precedents, has now been updated for the electronic lodgement of leases:

  • To do list; and
  • Retainer instructions.

A new folder E. If required – Electronic lodgement has been added to both the Act for lessor and Act for lessee matter plans and includes:

  • A brief explanation of the transition to E-conveyancing;
  • Letter to lessor/lessee enclosing lease to be registered and client authorisation; and
  • Client Authorisation forms.

Enjoy practice more with By Lawyers!

Apprehended violence orders amendments- NSW

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On 1 December 2018 a number of provisions strengthening apprehended violence orders in NSW commenced:

  1. a new ‘without consent’ version of the s 37 Crimes Act 1900 offence of choking, suffocation and strangulation, created specifically for the domestic violence context by the Crimes Legislation Amendment Act 2018;
  2. provisions in the Crimes (Domestic and Personal Violence) Amendment Act 2018 making it clear that stalking and intimidation can be by internet or other such electronic means;
  3. new Crimes Legislation Amendment (Victims) Act 2018 provisions providing that proceedings for apprehended violence orders will be held in a closed court if they involve any person under the age of 18 years, with such persons entitled to have a support person present.

The By Lawyers Apprehended Violence Orders (NSW) guide has been updated accordingly.

Further, commencing 17 December, certain provisions of the Justice Legislation Amendment Act (No 3) 2018 mean that an apprehended domestic violence order can be made against a paid carer for the protection of a dependant, but not against a dependant for the protection of the paid carer.

There are also amendments pending proclamation in the Crimes Legislation Amendment Act 2018 which change the default duration of apprehended domestic violence orders.

The By Lawyers Apprehended Violence Orders (NSW) guide will be updated when these further amending provisions commence.

Conveyancing – signing electronic mortgage documents – NSW

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Procedure for signing electronic mortgage documents for mortgages over real property has been clarified in NSW with amendments to the Real Property Act 1900 made by the Conveyancing Legislation Amendment Act 2018 which commenced on 22 November 2018.

The amendments provide:

  • That where a mortgage is lodged for registration, any other document supporting that instrument, such as a caveator’s consent, may also be signed electronically: s 36 (1F) Real Property Act 1900; and
  • That a mortgage is acceptable for registration in NSW where it is signed by the mortgagee alone (that is, not also signed by the borrower and witnessed), provided that the mortgagee certifies that it holds a mortgage granted by the borrower on the same terms as that which is lodged for registration: s 56 (1A) Real Property Act,

The amendments reflect practice which has developed following the introduction of the National Mortgage Form.

The Commentary in the By Lawyers Mortgages (NSW) Guide has been updated accordingly.

Conveyancing – amendments in support of eConveyancing – NSW

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Amendments to the Conveyancing Act 1919 and the Real Property Act 1900 by the Conveyancing Legislation Amendment Act 2018, in support of eConveyancing, commenced on 22 November 2018. These amendments address the following key issues concerning electronic conveyancing:

  • Clarifications regarding the application of the Conveyancing Act 1919 and the Real Property Act 1900 to electronic form contracts and electronic signatures – s 6C, 23C (2) and 54A (4);
  • If a sale of land contract is in electronic form then those documents which must be attached to satisfy vendor disclosure obligations may also be in electronic form.
  • Where a registry instrument (dealing, memorandum, caveat or priority notice) is lodged for registration, any other document supporting that instrument may be signed electronically: s 36 (1F) Real Property Act 1900;
  • A client authorisation produced in electronic form may also be electronically signed: s 107 (1A) Real Property Act 1900; and
  • Deeds are now able to be electronically signed and attested – Section 38A of the Conveyancing Act 1919 states that a deed may be created in electronic form and electronically signed and attested in accordance with Part 3. Notably, this includes leases.

The Sale and Purchase Commentaries as well as 1001 Conveyancing Answers within the By Lawyers Conveyancing Guide (NSW), which already cover eConveyancing in detail, have been updated to reflect these changes in support of eConveyancing.

The Commentary within the By Lawyers Leases (NSW) Guide has also been updated.

Keeping up to date – Podcast

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The law never stands still! Keeping up to date with changes in the law and practice is an ever present challenge faced by law firms.

Legislation and regulations change all the time, new cases are decided which impact the law, new practice directions are released by courts and changes in document lodgement processes are made by various authorities. All these and more need to be continually noted and understood, as they can affect the way a law firm conducts client matters and does business.

Just keeping the firm’s precedents current with changes in the law is a major task – which is not billable! Using precedents which are out of date exposes the firm to risk.

Using By Lawyers commentaries and precedents eases the burden upon firms and reduces their risk.

By Lawyers have a team dedicated to tracking changes in the law in each Australian jurisdiction and ensuring that all of our content is updated as those changes happen. Firms using the By Lawyers guides can be confident that they are using commentaries and precedents which are up to date with current legislation.

In our latest podcast our Managing Director Brad Watts and LEAP’s National Marketing Manager Claire James discuss the issues around keeping up to date with the law and how By Lawyers can help firms to stay on top of changes.

 

Attempts to expressly disinherit eligible persons – 101 Succession Answers NSW

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The recent case of Re Estate McNamara [2018] NSWSC 1661 reinforces the position that attempts by testators to expressly disinherit eligible persons in wills do not prevent the eligible person from either bringing a Family Provision claim, or from succeeding in an application for provision, or additional provision, from the testator’s estate. At 55 Lindsay J comments:

Upon an examination of the facts of the case from that perspective, and viewing the totality of the relationships between the deceased and her sons and their respective families, the deceased’s testamentary disclaimer of an intention to benefit the plaintiff is not an absolute bar to the making of a family provision order in his favour. 

The deceased provided an extensive and clear direction in her will that her adult son not receive provision out of her estate. Notwithstanding this express intention, the adult child was awarded $75,000 out of the estate, although that sum was severely limited given the circumstances – see at 66:

Had the plaintiff had a consistent, supportive and loving relationship with his parents, (more particularly, his mother) throughout his life he would have a greater claim to his mother’s bounty than he has now.

The court’s discussion in McNamara should be considered by practitioners when drafting wills for clients who are seeking to disinherit eligible persons. Clients should be advised that any such attempt may not be effective and by providing instructions to draft such a will they may only serve to burden their estate with the costs of Family Provision litigation.

The By Lawyers 101 Succession Answers (NSW) reference guide has been updated to include this case.

Criminal procedure NSW

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Mandatory pre-trial disclosure has been introduced into Division 3 of Part 3 of the Criminal Procedure Act 1986, which now requires mandatory pre-trial disclosure for both the prosecution and the accused. The provisions are set out at ss 142 – 144 of the Act.

These provisions only apply after an indictment has been presented or filed in proceedings: s 141. As this only occurs after the matter is transferred from the Local Court to the District or
Supreme courts, mandatory pre-trial disclosure does not apply to summary matters, or to indictable matters which proceed summarily – that is, matters that remain in the Local Court.

If the matter is committed to a higher court on the basis of a plea of not guilty, the mandatory pre-trial disclosure provisions will need to be considered and complied with. The accused’s obligation is to provide:

(a)  the name of any Australian legal practitioner proposed to appear on behalf of the accused person at the trial,

(b)  the nature of the accused person’s defence, including particular defences to be relied on,

(c)  the facts, matters or circumstances on which the prosecution intends to rely to prove guilt (as indicated in the prosecution’s notice under section 142) and with which the accused person intends to take issue,

(d)  points of law which the accused person intends to raise,

(e)  notice of any consent that the accused person proposes to give at the trial under section 190 of the Evidence Act 1995 in relation to each of the following:

(i)  a statement of a witness that the prosecutor proposes to adduce at the trial,

(ii)  a summary of evidence that the prosecutor proposes to adduce at the trial,

(f)  a statement as to whether or not the accused person intends to give any notice under section 150 (Notice of alibi) or, if the accused person has already given such a notice, a statement that the notice has been given,

(g)  a statement as to whether or not the accused person intends to give any notice under section 151 (Notice of intention to adduce evidence of substantial mental impairment),

(h)  if any expert witness is proposed to be called at the trial by the accused person, a copy of each report by that witness that is relevant to the case and on which the accused person intends to rely,

(i)  notice as to whether the accused person proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,

(j)  notice of any significant issue that the accused person proposes to raise regarding the form of the indictment, severability of the charges or separate trials for the charges,

(k)  if the prosecutor disclosed an intention to adduce at the trial any audio or visual recording or the transcript of any audio or visual recording:

(i)  any request that the accused person has that the recording or transcript be edited (other than in circumstances to which subsection (2) (d) relates), and

(ii)  particulars sufficient to clearly identify the edits that the accused person requests.

As pre-trial disclosure relates only to trial matters in the superior courts, it is substantively outside of the scope of the By Lawyers Criminal Local Court guide. However because the provisions may be relevant to the overall strategic approach for a successful defence of indictable charges, a note has been added to the commentary alerting practitioners to these requirements.

Workers Compensation and Motor Accident changes – NSW

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The Workers Compensation Legislation Amendment Act 2018 amends both the Workers Compensation Act 1987 and the Motor Accident Injuries Act 2017.

Some provisions of the amending Act have now commenced, namely those removing limitations on workers injured in motor vehicle accidents obtaining statutory benefits for treatment and care under that Act where their entitlement to workers compensation has ceased, or where they recover damages from the employer in respect of the injury.

Schedules 1, 2 and 3 of the amending Act, which are yet to commence, provide for:

  • the abolition of the administrative system of dispute resolution and reinstatement of the jurisdiction of the Workers Compensation Commission to determine disputes and make determinations of permanent impairment;
  • the introduction of a simplified process to determine an injured worker’s pre-injury average weekly earnings, with a new Schedule 3 to the Workers Compensation Act 1987 providing the method for determining PIAWE and allowing insurers and workers to agree on the figure for PIAWE.

The By Lawyers NSW Workers Compensation and Motor Vehicle Accident publications have been updated to deal with these amendments.

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