ByLawyers News and Updates

Costs agreements and client service agreements – enhancement for protection against fraud

by

All By Lawyers costs agreements and client service agreements have been enhanced within the Billing and payment arrangements section now including:

 

  •  Two-factor verification protocol: a suggestion that the client always telephone to notify the firm and confirm bank account details before making any electronic transfer of funds into the firm’s trust or office accounts. With recent incidents of fraud involving interception and hacking of lawyers’ emails and the fraudulent provision of incorrect bank account details to clients, this suggestion is in line with the advice of the various state regulatory bodies and, if followed, provides protection against such criminal activities; and,

 

  • Specific provision and authority for alternate payment options, including credit card, electronic funds transfer and instalment plans, confirming that clients are required to comply not only with the terms of the law firm’s costs agreement, but also with the terms of any third party agreement for payment, such as the agreement with their bank regarding the use of a credit card. This provides protection for the law firm against credit providers seeking to recover funds paid via unauthorised transactions.

A brief explanation of the move to e-conveyancing – PEXA settlements

by

Electronic conveyancing is coming

The conduct of a sale and purchase up to and including exchange can and will remain unchanged for some time as practitioners adapt to conducting matters electronically using emails and software that is currently being introduced into the market.

It is in fact possible today to prepare, submit, negotiate, sign and exchange contracts without the use of paper. Those practitioners interested in joining this move away from paper will find the means to do so within the By Lawyers conveyancing guides.

Electronic settlement has already arrived

However, the focus of this explanatory paper is the electronic settlement process – currently available via PEXA, but soon also via SYMPLI, a joint venture of Infotrack and the ASX.

So, how does PEXA work?

The PEXA process that follows exchange requires all participants in the transaction to have been identified, be registered and have a PEXA digital certification that entitles them to transact electronically in what is known as a ‘workspace’.

A workspace in the electronic conveyancing platform is opened by the vendor, or failing the vendor any other party, for each transaction and a date and time for settlement is entered. When the workspace is created the vendor ‘invites’ all other parties to the workspace via PEXA.

The workspace is where the transaction occurs. As the transaction progresses, each party can add, remove or amend their information in the workspace.

Whilst such matters as requisitions and settlement adjustments are completed outside the workspace, they can be uploaded to the workspace and made visible to a party of choice. For instance, a discharge authority might be made visible to the vendor’s discharging mortgagee only.

The vendor and purchaser sign a paper Client Authorisation allowing their practitioner to sign for them, as it is the practitioner who has the authority through their Digital Certificate to sign for clients. Therefore, the Client Authorisation is a critical document and must be retained for 7 years as they may be audited.

Outgoing and incoming mortgagees make their arrangements for settlement without input from practitioners. Payment directions are communicated by entry into a Financial Settlement Schedule which contains tabs for Source Funds and Disbursements.

Each party to the transaction completes their tasks prior to the nominated settlement time and for settlement to take place as planned, the Settlement Schedule must balance, the source funds must be available, and all documents must be signed.

How does settlement occur?

The workspace is locked automatically once everything is ready. This triggers title verification and movement of the source funds into a holding account. A final search is not required as the workspace will not lock if there are title impediments to registration.

Settlement occurs exactly as scheduled and title documents are lodged and registered, and the settlement funds disbursed in accordance with the Financial Settlement Schedule. The settlement process is automatic and completed in about 15 minutes which sees cleared funds transferred and title registered.

Note settlement can be cancelled at any time prior to the locking of the workspace.

The way of the future

 

The electronic settlement process is remarkably efficient and easy once you get used to it. As it seems inevitable that electronic settlements – and ultimately electronic conveyancing – will become standard practice, it is well worth becoming familiar with it and its really not so hard to do. By Lawyers conveyancing guides can assist you.

Wills – Special disability trusts

by

A special disability trust can be established to specifically provide for the care and accommodation of a family member with a severe disability. If compliant with the statutory requirements it will allow the disabled beneficiary of the trust to retain their full pension entitlement. There are also generous concessions for contributions to a compliant special disability trust.

Along with the recent addition of special disability trusts to By Lawyers Companies, Trusts and Partnerships guide, our Wills guide now also includes detailed commentary and precedents covering special disability trusts.

A special disability trust can either be established in the will, or a direction can be given in the will for the executor to establish a special disability trust from the estate as required. Which option is chosen will depend on the client’s wishes and family circumstances. The Library of discretionary trust and special disability trust clauses in the By Lawyers Wills matter plan contains appropriate clauses for insertion in the will.

It also includes the By Lawyers Special Disability Trust Deed, which fully complies with the legislative requirements.

The new 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;
  • the permitted use of special disability trust funds; and
  • three ways the testator can provide for a disabled beneficiary via a special disability trust:
    • establish the trust inter vivos by deed and provide in the will for a bequest to the trust;
    • establish the special disability trust in the will; or
    • direct the executor of the will to establish the special disability trust, either with or without separate testamentary discretionary trusts.

 

Electronic conveyancing – Are you ready?

by

As the timeline towards mandatory electronic conveyancing marches on, By Lawyers continues to make changes to our matter plans and precedents to make sure that you are ready and that completing your matters electronically is as easy as possible.

Our matter plans have been split after ‘Mid transaction’ into ‘Paper transaction – Through to settlement’ and ‘Electronic transaction – Through to settlement’.

Precedent letters have been updated and where necessary new precedents included to cover electronic transactions.

By Lawyers helps you make a seamless transition to the new regime.

Security of Payments NSW – commentary enhancement

by

The Security of Payments (NSW) commentary has been updated and enhanced. Some of the noteworthy and helpful additions include:

  • Overview: This area of law is still developing, with considerable impact on the way industry participants run their businesses. Many of the reported decisions from NSW courts are directly relevant to Queensland, Victoria, Western Australia and the Northern Territory. South Australia is now set to join the other states in introducing a legislative regime, with the South Australian parliament currently considering security of payment legislation.
  • Residential building work: It is important to note that, subject to some important exceptions, the Act does not apply to a construction contract for residential building work involving an owner builder: see the definition of “dwelling” in clause 3 of Schedule 1 of the Home Building Act 1999.
  • Preparing a payment claim: Principals must pay amounts due under a construction contract on or before the 15th business day after the payment claim is made. Principals, head contractors and subcontractors, as respondents, must now remain vigilant for any payment claim falling within the terms of the Act – the warning words no longer need be added to the claim and, as such, claims will more readily qualify as payment claims, bringing potentially serious consequences.
  • Service of payment claim:  Claimants should keep a record of the time, date and manner of service on the respondent. The time for the respondent to provide the payment schedule runs from the date of receipt of the payment claim. Claimants should keep a record of the time, date and manner of service on the respondent. The time for the respondent to provide the payment schedule runs from the date of receipt of the payment claim. The claimant must be able to evidence the date of service of the payment claim.
  • Adjudication: The Supreme Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2016] NSWSC 770 potentially expanded the grounds available to challenge adjudication determinations to include non-jurisdictional errors of law on the face of the record. However  the High Court in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 (14 February 2018) has now held that the Security of Payments Act ousted the jurisdiction of the Supreme Court to make an order in the nature of certiorari quashing an adjudicator’s determination for non-jurisdictional error of law on the face of the record. Although the Security of Payment Act did not contain an express statement providing that the jurisdiction was ousted, the scheme of the Act disclosed an intention that such review would not be available having regard to the fact that the Act creates an interim entitlement that is determined informally, summarily and quickly, and then summarily enforced without prejudice to parties’ common law rights.

Get on tip of this critical and developing area of law, relevant to clients who conduct businesses in various industries.

By Lawyers Security of Payments guide is a separate publication on our website, or for LEAP users is located in Other Areas of Law – Building and construction disputes.

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

by

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.

Wills – Testamentary discretionary trusts

by

The commentary on testamentary discretionary trusts in our Wills publications now has a more in depth discussion of:

  • the benefits of testamentary discretionary trusts;
  • when a testamentary discretionary trust is appropriate;
  • family trust elections.

There are several By Lawyers precedent wills which create testamentary discretionary trusts for individuals and spouses, as well as a library of testamentary discretionary trust clauses. These precedents can be used to establish a single testamentary discretionary trust for all assets and beneficiaries of the estate, or multiple testamentary discretionary trusts for specific beneficiaries. They can also be used to establish additional testamentary discretionary trusts to provide protection for specific assets such as quarantining a family business or to allow for the particular needs of an individual beneficiary due to say drug addiction.

New publication – NSW 101 Succession Answers, including Appointments of Enduring Guardian and Powers of Attorney

by

We are delighted to release the latest in our 101 Reference Series – a comprehensive reference guide for NSW dealing with:

  • appointments of enduring guardian;
  • powers of attorney;
  • wills;
  • estates  – probate and administration;
  • family provision.

101 Succession Answers is now included for new and existing subscribers to these NSW publications:

  • Wills, Powers of Attorney, Appointment of Enduring Guardian & Advance Care Planning;
  • Estates;
  • Family Provision Claims.

This is a must-have, easy-reference resource for all firms, providing detailed information in a quickly accessible and searchable format. Tricky questions can be answered quickly using the guide’s alphabetical headings and plain English format. The content can be cut and pasted into letters or emails to clients addressing their specific queries, either in response to an initial enquiry or during the course of the matter.

  • Who is not eligible to be appointed as an enduring guardian?
  • When is an attorney to consider that their principal is incommunicate?
  • Can a solicitor take a benefit under a will that the solicitor has witnessed?
  • Under what circumstances might a grant of probate be revoked?
  • Has the High Court considered the position of an adult child who brings a family provision claim on the basis that their estranged parent previously promised them an inheritance?

If you would like everyone in your firm to be able to readily answer questions such as these, then you will definitely benefit from 101 Succession Answers!

Connect with us