ByLawyers News and Updates

Conveyancing – GST withholding – additional commentary, amendments to contracts and precedents

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The requirement for purchasers to withhold and remit GST on taxable supplies of certain real property under subdivision 14-E Schedule 1 Taxation Administration Act 1953 comes into force on 1 July 2018. This applies to all contracts that settle after 1 July. The transitional arrangements are that contracts entered into prior to 1 July 2018 and settle before 1 July 2020 are exempt from the withholding regime.

The sale and purchase commentaries in all states have been updated, the By Lawyers contracts in NSW and VIC have appropriate new provisions and precedent letters are being updated.

NSW Criminal Local Court – Substantial changes to committal procedure

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Substantial changes to committal procedure in the Local Court.

Amendments to the Criminal Procedure Act 1986, pursuant to the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017, commenced on 30 April 2018, with consequent amendments to the applicable Regulations. These amendments substantially change the procedure for committals by mandating early charge negotiations and encouraging early pleas of guilty.

In summary, the new procedure is:

  • Following charge in indictable matters, the police will provide a simplified brief of evidence to the Office of the Director of Public Prosecutions (ODPP), which does not have to be in admissible form and is to include evidence relevant to the defence case.
  • Existing prosecution disclosure obligations are unchanged and unaffected by the amendments.
  • A senior prosecutor in the ODPP will review the brief and file a Charge Certificate with the Local Court confirming the charges which will proceed and certifying that evidence is held to support those charges.
  • The Charge Certificate must be filed within 6 months, or a magistrate may discharge the accused.
  • The prosecutor and defence lawyer must then have a case conference, in person or by audio visual link (not by phone), to determine if any pleas of guilty can be entered and to identify/attempt to resolve any issues.
  • Parties then complete and file a Case Conference Certificate at court.
  • Existing provisions for applications to have prosecution witnesses attend to give evidence at committal proceedings are unchanged, although now contained in different sections of the Act.
  • Magistrates are no longer required to assess the evidence and determine whether an accused should be committed; they are only required to confirm that the Charge Certificate and Case Conference Certificate have been filed, determine any application for witnesses to attend, if so take that evidence, then commit the accused for trial (if plea not guilty or no plea entered,) or for sentence (if plea guilty).
  • Both committal hearings and ‘paper’ committals are accordingly abolished.
  • There are some exceptions to the compulsory case conference – where the accused is unrepresented, or ‘fitness to be tried’ is in issue.
  • Magistrates can now also commit cases on the issue of ‘fitness to be tried’.

The Commentary and Precedents in the By Lawyers NSW Criminal Local Court Guide have been updated to cover the new procedure.

 

Wills retainer instructions – All states – Burial, cremation and medical research details

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Retainer instructions in all states – for individuals and couples – have been enhanced with the addition of burial, cremation and medical research client details.

For instance, does the client wish to:

  • detail funeral service arrangements;
  • detail wishes regarding burial or cremation of their remains; or
  • make provision for ongoing cemetery or crematorium fees?

Estate planning – An exciting opportunity for small law firms – By Brad Watts

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Wills have traditionally been seen as valuable because they eventually bring the firm estate work, rather than valued for the fees associated with the wills themselves. However, estate planning is a different thing and many firms are now taking a far more comprehensive approach, with a far more profitable result.

Brad Watts has written an article outlining some of the opportunities for law firms in estate planning: Estate planning – An exciting opportunity for small law firms. We take this opportunity to introduce Brad to those who do not know him.

Brad has contributed to By Lawyers publications for over 10 years, and has this year joined By Lawyers as a Senior Consultant and Editor. Admitted as a solicitor of the Supreme Court of NSW in 1994, Brad worked in general practice for 21 years, before moving to the NSW Crown Solicitors Office as a Solicitor Advocate and then A/Director. Having owned and managed small law firms, with substantial experience in all aspects of general practice and extensive experience in criminal and civil litigation, Brad offers a wealth of knowledge and practical assistance to our subscribers.

 

Costs – All costs agreements now able to be signed electronically

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All of the By Lawyers costs agreements now have electronic signature fields allowing them to be signed electronically via DocuSign, which is available to LEAP in the cloud users. The fee disclosure for this service has also been added into the disbursement section of the costs agreements, should the client choose to take advantage of this service.

 

Motor Vehicle Accidents NSW – Post 1 December 2017 amendments

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The Motor Vehicle Accidents NSW Publication has been amended in relation to the new regime brought in by the the Motor Accident Injuries Act 2017 which commenced in full on 1 December 2017 and applies to all motor vehicle accidents occurring after that date. The Motor Accidents Compensation Act 1999 continues to apply to accidents prior to that date and there are accordingly two separate regimes operating for at least three years.

This comprehensive and easy to follow publication helps practitioners to navigate the convoluted and restrictive legislation which applies to motor accident claims in NSW. There are two separate Guides – one for accidents which occurred prior to 1 December 2017 and another for accidents occurring on or after 1 December 2017. Each Guide contains commentary, precedents and forms specific to the relevant statutory regime.

The new Guide is available to all LEAP cloud users and via subscription to the ByLawyers website.

Estates NSW – Transfer of dutiable property

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The commentary now deals with the duty payable on the transfer of dutiable property from the executor/administrator to a beneficiary:

  • in accordance with the will or rules of intestacy; and
  • where there is an agreement  to vary the trusts in the will of a deceased or arising on intestacy.

A NSW Revenue example has been added to the commentary to illustrate when property is dutiable where there has been a variation of entitlement under a will.

NSW – Supreme Court – Equity Division and Common Law Division – Appeals – Practice Note SC CA 1

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Information has been added to the Act for Plaintiff and Act for Defendant commentaries in both the Supreme Court Common Law and Equity Guides to incorporate the requirements of Practice Note No. SC CA 1  which was issued on 13 December 2017 and which commenced on 1 January 2018.

All parties to proceedings in the Court of Appeal are required to comply with the requirements contained in  Part 51 UCPR (appeals) and Part 59 UCPR ( judicial review).  The Practice Note makes additional  provision for the  preparation and conduct of proceedings in the Court of Appeal.

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