ByLawyers News and Updates

Local Court Rules – NSW

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A recent amendment to the Local Court Rules provides for transfers of civil proceedings from the Court’s General Division to the Court’s Small Claims Division.

Rule 2.3 of the Local Court Rules 2009 already provides for proceedings to be transferred from the Small Claims Division to the General Division if the Court considers that sufficiently complex, difficult, or important issues are involved. The same rule also allows such proceedings to be transferred back to the Small Claims Division again if the Court considers it appropriate to do so.

The new sub-rule, 2.3 (1A) allows the Court to transfer any proceedings from the General Division to the Small Claims Division if the Court is of the opinion that any complex, difficult, or important issues have been resolved, or that it is otherwise appropriate.

In either case, the transfer can be made on the application of a party or by the Court’s own motion.

A corresponding amendment to r 2.10 provides that an application by a party for transfer either way is to be made by a motion in accordance with Part 18 of the Uniform Civil Procedure Rules 2005.

The commentaries in the By Lawyers Local Court (NSW) – Acting for the Plaintiff and Local Court (NSW) – Acting for the Defendant publications have been updated accordingly.

Common seals – NSW

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Some common seals are not only back, they are here to stay!

From 30 September 2022, owners corporations and community associations can no longer execute documents by signing. Instead, owners corporations and community associations can now only execute documents using either a physical or an electronic form of their common seal.

These new requirements allowing execution via electronic seals replace the previous temporary COVID-19 measures which have applied to both strata and community schemes since June 2020.

Documents that now need to be executed under the entity’s common seals include NSW Land Registry Services instruments and dealings.

There are also new requirements relating to electronic voting at meetings for strata and community schemes. Voting can be done by electronic means and physical attendance is no longer required. However, this only applies if the notice of the meeting specifies an alternate means of voting. If votes can be cast other than in person, then the secretary of the owners corporation, the secretary of the association, or the managing agent must take reasonable steps to ensure each person entitled to vote can in fact vote and participate in the meeting.

The By Lawyers Conveyancing and Property publications, including 1001 Conveyancing Answers (NSW), have been updated accordingly.

Compensation indexation – NSW

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Various amendments for compensation indexation have been applied to the By Lawyers Injuries publications in New South Wales.

Each year on 1 October the various statutory compensation schemes and legislative caps have indexation applied to the maximum amounts recoverable by injured persons.  For 2022 these changes are contained in the following pieces of subordinate legislation:

  • Civil Liability (Non-economic Loss) Amendment Order 2022
  • Motor Accident Injuries (Indexation) Amendment Order (No 2) 2022
  • Motor Accidents (Determination of Non-Economic Loss) Amendment Order 2022
  • Motor Accidents Compensation (Determination of Loss) Order 2022
  • Workers Compensation (Indexation) Amendment Order (No 3) 2022

Wherever applicable, the commentary and precedents – particularly the Retainer instructions precedents – have been updated for these changes in the following By Lawyers publications:

By Lawyers always update our publications for statutory indexing. This typically occurs in most jurisdictions on 1 January, 1 July, and, as in the case of NSW injuries legislation, 1 October each year.

Conveyancing regulation – NSW

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The new Conveyancing (Sale of Land) Regulation 2022 commenced on 1 September 2022. It replaces the Conveyancing (Sale of Land) Regulation 2017. No new disclosure requirements arise from the 2022 regulations. Generally the 2022 regulations adopt simple and modern language, removing outdated legislative references.

The 2022 regulations maintain the objectives of the 2017 regulations. Small amendments clarify the disclosure requirements for contracts arising from options. Other minor insertions confirm that cooling off periods do not apply to put options. Part 5 of the regulations consolidates the circumstances entitling a purchaser to rescind a contract or option deed.

Off the plan contract disclosure requirements

Schedule 1 contains a new Part 2 listing additional disclosure requirements for off the plan contracts. Regulation 13(1) states that the documents listed in Part 2 of Schedule 1 are prescribed, and must be included in a disclosure statement for an off the plan contract. These prescribed documents relate to the land to be subdivided, and the development of the land. Examples include:

  • a proposed schedule of finishes;
  • draft by-laws for a strata scheme;
  • draft section 88B instrument;
  • draft building management statement;
  • draft strata management statement.

Cooling off periods for options

Regulation 17(3) confirms that cooling off periods do not apply to contracts arising from a put option. Call options have always been exempt from cooling off periods under section 66T of the Conveyancing Act 1919. In BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265, a purchaser resisted the exercise of a put option against them. Section 66T gave no cooling off rights to options able to be taken to purchase certain property. The court found a put option to be an option to compel the purchase of land, and not in the same character as an option exempted under section 66T. Regulation 17(3) now extends the section 66T exemption to both put and call options.

When purchasers may rescind

Part 5 sets out when a purchaser may rescind a contract or option, and the conditions required for a valid rescission in certain circumstances.

Transition period

Under regulation 26, the transition period runs from 1 September 2022 to 1 March 2023. Anything done in compliance with the 2017 regulations before 28 February 2023 will be taken to comply with the 2022 regulations.

The By Lawyers Purchase of Real Property, Sale of Real Property, and 1001 Conveyancing Answers (NSW) guides have been updated to reflect the new regulations.

1 July updates – All states

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1 July updates are always a big focus for By Lawyers. Many Commonwealth and state legislative instruments provide for the scheduled indexing of relevant monetary amounts and adjustments – usually increases – in government fees and charges. These regular updates occur at the start of every financial year impacting many different areas of law, and therefore numerous By Lawyers publications.

These updates include court filing fees, lodgment fees for property dealings, land tax thresholds, minimum weekly compensation amounts for Workers Compensation, and penalty units for fines for various criminal offences and civil penalty provisions.

By Lawyers always monitor and apply these changes for our subscribers. Each year we ensure our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for similar legislative indexing and increases which occur regularly at other times of the year. These include 1 January changes and other specific dates for various areas of law as prescribed by some statutes.

The 1 July updates have been applied this year, or are in the process of being applied as they get released, to the following By Lawyers publications:

  • Conveyancing and Property;
  • Business and Franchise;
  • Criminal;
  • Litigation;
  • Estates;
  • Injuries; and
  • Employment.

Quite separately, there is also usually a raft of new and amending legislation from both Commonwealth and state parliaments which is set to commence on 1 July. This year is no different in that regard. By Lawyers have made various substantive amendments to a number of publications to account for the commencement of such legislation. Please see the various other By Lawyers News and Updates posts dealing with those updates.

By Lawyers always keep our content – and our subscribers – up to date!

Bail after conviction – NSW

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Bail after conviction must now be refused for offences where the accused will receive full time imprisonment, unless special or exceptional circumstances exist.

The Bail Amendment Act 2022 (NSW) commenced on 27 June. It adds a new s 22B to the Bail Act 2013.

The new section provides that on an application for bail after conviction of an accused person, before they are sentenced for an offence for which they will receive full-time custody, the court must refuse bail unless the accused can establish special or exceptional circumstances exist to justify the decision to grant or dispense with bail.

The same applies to a detention application brought by the prosecution in the Supreme Court under Section 40 of the Bail Act.

However, if the offence of which the accused person has been convicted is a show cause offence, the requirement for the accused person to establish special or exceptional circumstances to justify a decision to grant bail or dispense with bail applies instead of the requirement that the accused person show cause why their detention is not justified.

The Bail section of the By Lawyers Criminal – Local Court NSW commentary has been updated accordingly.

Motor accidents – NSW

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There have been a number of small but important amendments to NSW motor accidents legislation.

Relevant provisions of the Motor Accidents and Workers Compensation Legislation Amendment Act 2021 commenced on 16 June 2022.

The amendments include:

  • The definition of pre-accident weekly earnings in the Motor Accident Injuries Act 2017 has been amended to include consideration of any increased earnings to which the claimant would have been entitled had the injury not occurred. Circumstances such as a change of job, a planned move from part-time to full-time hours or a previously negotiated pay increase within 12 months before the accident can be taken into account when determining the amount of statutory benefits payable for lost income.
  • The calculation of weekly statutory benefits for lost earnings now takes into account any increase in the claimant’s actual post-accident earnings.
  • Clarification that anyone injured in a no fault motor vehicle accident, and who has more than a minor injury, is entitled to receive statutory benefits past the 26 week cut-off period. This amendment addresses an anomaly identified by the Supreme Court in AAI Limited v Singh [2019] NSWSC 1300, when the court noted: Notwithstanding that a path through the labyrinth of Pts 3 and 5 of the Motor Accidents Injuries Act has been found for the purposes of resolving this proceeding, it is apparent that these provisions, Pt 5 in particular, require careful and detailed reconsideration. Amendment will be necessary if a spate of litigation generated by the obscurities of these provisions is to be avoided.

The commentary in the By Lawyers Motor Vehicle Accidents – Accidents from 1 December 2017 guide has been updated accordingly. The link to AAI Limited v Singh which was added after that case was decided in 2019 has been removed.

Workers compensation legislation – NSW

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There have been a number of small but important amendments to New South Wales workers compensation legislation.

Relevant provisions of the Motor Accidents and Workers Compensation Legislation Amendment Act 2021 commenced on 16 June 2022.

The amendments include:

  • Changes to the Workers Compensation Act 1987 with regard to deemed diseases. These are certain specified diseases and medical conditions which are deemed to be caused by certain employment, such as asbestosis. The Act has been amended so that minimum periods of service in specified employment and minimum exposure requirements can now be included on the list of deemed diseases in the regulations.
  • Additional entitlements for volunteer firefighters, emergency and rescue workers under the Workers Compensation (Bush Fire, Emergency and Rescue Service) Act 1987. This amendment brings the compensation entitlements of these volunteer workers into line with those of paid workers. The new entitlements for volunteers include funeral expenses and funds management fees for dependent children of deceased volunteer workers.

The By Lawyers Workers Compensation publication has been amended accordingly.

A further provision of the amending Act awaits proclamation. This relates to an additional entitlement to compensation for any dependent children of a deceased worker. The fees charged by the NSW Trustee and Guardian to manage the dependent child’s lump sum entitlement will be a separate benefit claimable and paid by the insurer, so that a lump sum compensation amount paid to a dependent child of a deceased worker will not be eroded by fees. This amendment will be incorporated in the By Lawyers publication when it commences.

Revenue – NSW

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Recent duty and other revenue amendments impacting conveyancing, trusts, and family law have been incorporated as applicable into the relevant By Lawyers publications.

Legislation

The State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022 (NSW) amended various revenue Acts with effect from 19 May 2022, including:

These revenue amendments touch on various areas of practice.

Conveyancing

Options

Ad valorem stamp duty is payable on option fees under put and call option deeds. New section 8 (1)(b)(ix) of the Duties Act 1997 provides that duty is payable by the grantee within three months of an option being granted. This changes the previous position where duty was only payable on an option fee if the option was exercised.

Duty is assessed on the option fee, not including security deposits, performance payments, and legal costs.

The grantee is not entitled to claim a refund for any stamp duty paid, regardless of whether the call option is exercised. Also duty paid on the option fee is not credited toward the duty payable on the property when the option is exercised and the contract completed.

The changes do not apply to option agreements entered into before 19 May 2022.

Off the plan

A new section 49A (1D) of the Duties Act 1997 provides that to qualify for a 12-month deferral of stamp duty on off-the-plan purchases, a residence requirement must be met. At least one of the purchasers must use and occupy the property as their principal place of residence for at least 6 months, within 12 months of completion. Australian Defence Force personnel are exempted from the residency requirement. A new version of the Revenue NSW purchaser declaration form is available. Part 6 of the form relates to off-the-plan purchases and provides for the nomination of ADF personnel.

Surcharge duty

A new s 104ZJA(1) (c) of the Duties Act 1997 provides that an Australian-based developer which pays surcharge purchaser duty on a transfer of residential land may have it refunded they later change the use of the land to wholly or predominantly commercial or industrial.

The application for a refund must be lodged online using the application type Australian Based Developer Application for Exemption & Reassessment.

First home owners

Section 13A (3) of the First Home Owner Grant (New Homes) Act 2000 has been amended to include a new definition of the eligibility cap, including how to calculate the total value of the transaction based on the type of transaction and when it occurs.

Land tax

New sections 5B(2A) and 5B(2B) of the Land Tax Act 1956 provide for a discretionary exemption allowing those who do not occupy their principal place of residence for 200 days continuously in a year to remain exempt from land tax. This allows owners to, for example, live and work overseas for a period without losing the exemption.

The By Lawyers Sale of real property (NSW), Purchase of real property (NSW) and 1001 Conveyancing Answers (NSW) publications have been updated accordingly.

Trusts

The amending Act broadens the scope of dutiable transactions under s 8(1)(b)(ix) of the Duties Act 1997 by introducing duty on transactions that result in a change in beneficial ownership and acknowledgement of trust. 

Under s 8(3), the definition of change in beneficial ownership has been extended to include the creation and extinguishment of dutiable property, a change in equitable interests in dutiable property, and dutiable property becoming and ceasing to be subject to a trust.

This amendment directly arises from the case of Benidorm Pty Ltd v Chief Commissioner of Revenue [2020] NSWSC 471 where the Supreme Court held that the definition of declaration of trust in s 8(3) of the Duties Act 1997  as it then was must have a legal consequence, or consequences, beyond merely acknowledging that which already exists. The taxpayer in that case held real property and shares on trust for a beneficiary. When the beneficiary died his sole beneficiary and executor made a declaration of trust substantially the same as the original trust. On appeal the taxpayer was successful and was able to avoid paying duty on the second declaration, which acknowledged and evidenced a trust that was already in place. Such an acknowledgment of trust will now be caught by the Act.

The By Lawyers Trusts publication has been updated accordingly.

Family Law

A new s 68 (1A)(b)(iia) of the Duties Act 1997 means that for de facto relationships transfers of property effected by an agreement made to divide relationship property due to the breakdown of a relationship will be exempt from duty. Previously, to be exempt from duty the transfer had to be effected by a binding financial agreement, court order, or purchase at a public auction. This brings the exemption for de facto couples into line with that for married couples. These exemptions are discretionary and depend on sufficient evidence being supplied in support of the application.

A new version of the form Revenue NSW ODA 069 – Application for Exemption or Refund – Break up of marriage or De facto Relationship is available and needs to be completed.

The By Lawyers 101 Family Law Answers publication has been updated accordingly.

Comparative CPD requirements

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In all states and territories of Australia legal practitioners are required, as a condition of their practising certificates, to participate in compulsory professional development and training. Although the requirements are reasonably uniform, the terminology differs. In some states the requirement is known as Continuing Legal Education (CLE), or Mandatory Continuing Legal Education (MCLE). In others it is known as Compulsory Professional Development (CPD). There are also different requirements for barristers and solicitors.

For consistency, Continuing Professional Development (CPD) is used in this guide.

In each jurisdiction, the relevant one-year period begins on 1 April and ends on 31 March.

The CPD requirements in each state and territory are summarised below:

AUSTRALIAN CAPITAL TERRITORY

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Core Areas

A minimum of one CPD unit from each of the following areas:

  • Legal ethics and professional responsibility;
  • Practice management and business skills;
  • Professional skills; and
  • Substantive law and procedural law.

Section 47 of the Legal Profession Act 2006 (ACT) and the Law Society of the ACT CPD Guidelines.

NEW SOUTH WALES

Annual Mandatory Continuing Professional Development = 10 units

Compulsory Fields

A minimum of one unit per year from each of the following fields:

  • Ethics and Professional Responsibility;
  • Practice Management and Business Skills;
  • Professional Skills; and
  • Substantive Law.

Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 and s 52 of the Legal Profession Uniform Law (NSW).

NORTHERN TERRITORY

Annual Mandatory Continuing Professional Development (CPD) = 10 points

Core Competencies

A minimum of one point per year from each of the following mandatory competency areas:

  • Ethics and professional responsibility;
  • Practice management and business skills; and
  • Professional Skills in legal practice.

Schedule 2 of the Legal Profession Regulations 2007.

QUEENSLAND

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Mandatory Core areas

A minimum of one unit per year in each of the following mandatory core areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills.

Part 6 of the Queensland Law Society Administration Rule 2005.

SOUTH AUSTRALIA

Annual Mandatory Continuing Professional Development (MCPD) = 10 units

Required Areas

A minimum of one unit per year from each of the following required areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills.

Legal Practitioners Education and Admission Council Rules 2018.

TASMANIA

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Mandatory Core Competency Areas

A minimum of one unit per year from each of the following mandatory competency areas:

  • Practical legal ethics;
  • Practice management and business skills; and
  • Professional skills; and
  • Substantive law.

Law Society of Tasmania’s Practice Guideline 4 – Continuing Professional Development Scheme and s 56 of the Legal Profession Act 2007.

VICTORIA

Annual Mandatory Continuing Professional Development (CPD) = 10 units

Compulsory Fields

A minimum of one unit per year from each of the following compulsory fields:

  • Ethics and Professional Responsibility;
  • Professional Skills;
  • Substantive Law; and
  • Practice Management and Business Skills.

Legal Profession Uniform Continuing Professional Development (Solicitors) Rules 2015 and s 52 Legal Profession Uniform Law.

WESTERN AUSTRALIA

Annual Mandatory Continuing Professional Development (CPD) = 10 points

Mandatory Competency Areas

A minimum of one point per year from each of the following mandatory competency areas:

  • Practice management;
  • Professional skills;
  • Ethics and professional responsibility; and
  • Substantive law.

Legal Profession Act 2008, Legal Profession Rules 2009 and Legal Profession Regulations 2009.

Summary of continuing professional development activities

CPD Activity Activity format Formula
Max CPD Maximum number of CPD units that can be completed in a day.

  • TAS maximum = 6.
 N/A
Attendance Course, seminar, workshop, lecture, conference, discussion group, multimedia or web-based program.

  • TAS maximum = 3
  • WA maximum = 6
  • All other Jurisdictions = No limit.
 1 Hour = 1 CPD
Study Private study of audio/visual material recording of an event that occurred in the CPD year.

  • NT maximum = 5
  • QLD, VIC, ACT = No limit.
 1 Hour = 1 CPD
View View or listen multimedia or web-based program.

  • ACT – No limit
  • NT maximum =5
  • SA maximum = 5
  • TAS maximum = 5
  • WA maximum = 4.
 1 Hour = 1 CPD
Private Private study of audio/visual material update solicitor’s knowledge and skills.

  • ACT – No limit
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • VIC maximum = 5.
 1 Hour = 1 CPD
Research Research, preparation or editing of a legal article.

  • ACT maximum = 5
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =5
  • TAS maximum = 3
  • VIC maximum = 5
  • WA maximum = 5.
 1,000 words = 1 CPD
Activity preparation Preparation of CPD activities.

  • ACT maximum = 5
  • NSW maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =4
  • TAS maximum = 4
  • VIC maximum = 5.
 1 Hour = 1 CPD
Presenting. Presentation of a CPD activity.

  • ACT maximum = 5
  • NT maximum =5
  • QLD maximum = 5
  • SA maximum =4
  • VIC maximum = 5.
 1 Hour = 1 CPD
Present WA Presentation of a CPD activity and commentator.

  • WA maximum = 6.
 1 hour – 2 CPD
Membership actives Membership of legal committee, taskforce or practice section of a law association or similar body.

  • ACT maximum = 3
  • NSW maximum = 3
  • NT maximum =3
  • QLD maximum = 3
  • SA maximum =5
  • TAS maximum = 3
  • VIC maximum = 3.
 2 hours = 1 CPD
Graduate study Post graduate study.

  • NT maximum = 5
  • TAS maximum =5.
 1 Hour = 1 CPD
Specialist Completion of a specialist accreditation program. 10 points incl compulsory
Practice Management Completion of practice management course. 10 points incl compulsory

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