ByLawyers News and Updates

Client Details and Verification of Identity certificate

by

We have added a new Client Details and VOI precedent to every one of our publications. This handy document is designed to be used at the first point of contact with a client.

The front page is for the client’s general contact information and identification. The second page includes the formal Verification of Identity Certificate.

The Client Details page can be completed by the client while they are waiting to meet with the solicitor, saving time for the client and the practitioner in the process.

Having the Client Details and VOI as a separate document leaves the Retainer Instructions for collecting the matter-specific information.

We have placed the new precedent immediately before the Retainer Instructions on each matter plan.

We think this will simplify and improve the client engagement process. We would love to hear any feedback from firms as they use the new document.

By Lawyers Alerts – reducing stress

by

To reinforce the currency of our publications, we have extended our Alerts system.

At By Lawyers we are committed to reducing stress for small law firms and ensuring practitioners have what they need, when they need it. Our matter plans provide you with the precedents you are looking for and our commentaries give you as much  – or as little – support as required.

Most importantly, our publications always include the latest in legislative and procedural changes.

Alerts have always been posted in our publications as a way of letting you know, at a glance, of any recent updates to the law and advising you when our precedents and commentaries have been updated. However, sometimes there simply aren’t any changes that you need to know about – and we think you need to know that, too.

From now on, where there are no changes current, our publications will display the reassuring flag ‘Alerts – Nil’.

‘Alerts – Nil’ at the top of a matter plan indicates that there have not been any recent changes in that area of law.

At By Lawyers all members of our editorial team have dedicated areas of law to follow, with state-based cross-checks, ensuring no legislative changes escape our attention. Notifications from legislative, courts and law society sources, to name only a few, are checked and cross-checked daily. When we need to update anything, the digital nature of our publications means that we can post updates – and issue an alert – immediately.

We will always inform you when there is something you need to know. Otherwise, you have no need to worry!

Conveyancing – GST withholding – Supplier notification

by

Where a purchaser is required to make a GST withholding payment, the vendor (supplier) is required to provide the purchaser with a written notice, called a Supplier notification, containing information to help the purchaser comply with their GST withholding obligations.

The notice must be provided to the purchaser on or before the supply. This notice can be incorporated into the contract for sale, or provided separately.

To make compliance easy, we have added a Supplier notification precedent in all of the By Lawyers Conveyancing Sale Guides, under the heading ‘The contract’.

Further information on the new GST withholding requirements for residential properties – and related precedents – can be found in all By Lawyers Sale and Purchase Guides.

Don’t worry, By Lawyers always keep you up to date!

QLD Magistrates Court – Domestic Violence – Interpreters

by

The By Lawyers Domestic Violence commentary has been updated to include a section on the Magistrates Court’s power to engage an accredited interpreter where required.

For private domestic and family violence proceedings, where the application indicates that either party requires an interpreter, the registrar will locate and retain an interpreter.

At the first mention, if the Court is satisfied that the interests of justice require an interpreter to be appointed to assist with the comprehension of the proceeding, the Court will order the appointment of an interpreter for further mentions.

In these circumstances, Queensland Courts will bear the cost of the interpreter’s engagement. See Practice Direction No. 6 of 2017.

Courts and tribunals – 1 July fee increases and legislation updates

by

1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

Conveyancing – 1 July fee increases and legislative updates

by

1 July always sees legislative changes, including increases to many government charges related to conveyancing and property transactions. Happy New (financial) Year!

The following are some of the more important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

CONVEYANCING

All states 

GST withholding provisions of the Taxation Administration Act commence.

Fee increases apply to all land registry services.

NSW

Mandatory electronic lodgement of all standalone transfers and caveats applies.

QLD

Additional Foreign Acquirer duty rate increased to 7%.

TAS

First Home Owner Grant scheme extended (to 30 June 2019).

SA

Stamp duty no longer charged on transfer of non-residential or non-primary production land: “Qualifying Land”.

 

Criminal – sentencing – QLD – Commentary added on drug and alcohol treatment orders

by

Queensland has introduced special drug and alcohol sentencing options where the Court determines the offender and the community would benefit more from the offender participating in a rehabilitation and treatment program than from imprisonment.

Commentary explaining the availability and operation of drug and alcohol treatment orders has been added to the By Lawyers Criminal Magistrates’ Court Guide and the By Lawyers Traffic Offences Guide.

These specific drug and alcohol treatment orders are provided for under Part 8A of the Penalties and Sentences Act 1992 and are available for certain offenders whose criminal behaviour is linked to their severe drug or alcohol use.  A treatment order is comprised of two parts – a custodial part with a term of imprisonment of up to four years which is wholly suspended and a rehabilitation part of at least two years that requires compliance with core conditions and completion of a treatment program.

At this stage the new provisions are only available in Brisbane, but it is intended that the program is developed and spreads to other areas.

These amendments bring Queensland in to line with other states, making supervised rehabilitation a formal part of the sentencing regime.

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.

 

Connect with us