ByLawyers News and Updates

Water access rights – SA

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New commentary on water access rights has been added to the By Lawyers Sale and Purchase Guides (SA).

The new content covers the right to take and use water in South Australia which is regulated under the Natural Resources Management Act 2004. Under the Act, rights in relation to the ability to take and use water include water licences, water access entitlements and stock and domestic rights.

Information in relation to water licences and water access can be found on the Department for Environment and Water website.

Ownership of water rights is recorded on the Water Register.

By Lawyers do not currently offer a full commentary on the increasingly complex and valuable rights attaching to the usage, allocation and trading of water, but the new content in the Sale and Purchase Guides assists as a starting point for SA practitioners who are called upon to advise clients in relation to the rights attaching to water in various circumstances, whether in the context of property transactions, property development, or stand-alone water trading transactions.

Helpful interactive links are also provided in the new content to allow users to quickly access the detailed information available on the Department for Environment and Water website and the WaterConnect website.

Mortgages – inaccurate certification – QLD, NSW, SA, VIC, WA

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Case law update – mortgages – inaccurate certification by ELNO subscriber

In the recent case of Perebo Pty Ltd v Wayville Residential Investments Pty Ltd & Ors [2019] SASC 35, the South Australian Supreme Court considered the effect of an inaccurate certification made by the mortgagee’s solicitor upon lodgment of a mortgage. The mortgage was held to be enforceable despite the solicitor for the mortgagee inaccurately certifying that the mortgagee held a copy of the mortgage granted by the mortgagor.

The Registrar General in each state is entitled to rely upon the certification of a subscriber to an Electronic Lodgement Network Operator (ELNO) that a mortgagee holds a mortgage granted by the mortgagor in the same terms as the instrument that is lodged. However where there is inaccurate certification, the instrument registered pursuant to the certification is not necessarily invalidated merely by that fact. The instrument will of course be invalidated if it is fraudulent, or falls within one of the other exceptions to indefeasibility.

However, while the mortgage might not be invalid, by giving an inaccurate certification, the mortgagee, or the mortgagee’s representative such as a solicitor, may face disciplinary action from the applicable regulator, or the risk of being suspended or terminated as a subscriber to the ELNO.

The By Lawyers Mortgages commentaries have been updated to include a summary of this case and a link to the full decision.

By Lawyers UK!

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By Lawyers is very proud to announce the successful launch of our Legal Guides and Precedents in the United Kingdom.

Practitioners in England and Wales are now able to access 20 comprehensive legal practice guides written by lawyers, for lawyers:

  • Practice management
  • Sale of land
  • Purchase of land
  • Mortgages
  • Commercial leases
  • Residential leases
  • Sale of business & franchise
  • Purchase of business & franchise
  • Partnerships
  • Joint ventures
  • Criminal law
  • Divorce
  • Financial settlement
  • Private children proceedings
  • Nuptial agreements
  • Domestic violence
  • Conducting a matter generally
  • Estates
  • Wills
  • Powers of attorney and advance decisions

The guides each include a detailed matter plan, practical commentary and over 1200 integrated precedents.

By Lawyers is excited to be taking our highly regarded Australian product to the world. We also wish to assure our Australian clients that it will be very much business as usual at home for our Australian editorial and publishing teams. Our Australian team will continue to ensure that our Australian publications expand and improve – and remain always up to date, of course.

For more information on By Lawyers in England and Wales visit bylawyers.co.uk
By Lawyers UK launch

By Lawyers UK launch 2 April 2019. From left: John Espley, Angus Dawson, Christina Grzasko, Bobbi Young, Craig Delaney, Julie Hulyer, Guy Dawson, Danni Larney, Maria Parker and Claudia Francois.

Costs disclosure – Increase of legal rates during a matter

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Increase of legal rates during a matter

All By Lawyers Costs Agreements and Client Service Agreements have been updated to include a clause notifying a client that legal rates may increase during the course of a matter requiring a revision of the costs estimate provided. This clause provides for 30 days written notice of any proposed changes to legal rates. While such a clause is not required by Legal Profession legislation concerning costs disclosure requirements, providing such notice on initial costs disclosure is considered best practice.

All of our Guides contain Costs Agreements (Client Service Agreements for QLD Guides) within the folder ‘A. Getting the mater underway’. All of our agreements are compliant with the relevant Legal Profession legislation and are reviewed and updated regularly to ensure compliance.

Leases – Exercising option to renew

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Leases – Exercising option to renew

The commentary within all By Lawyers Leases Publications and 1001 Conveyancing Answers Reference manuals have been updated to include reference to the New South Wales Supreme Court decision in Kegran Pty Ltd v Warrik Pty Ltd [2018] NSWSC 1357.

The court ordered the specific performance of an option to renew, after the lessor challenged the exercise of the option on the basis that the notice was not properly served by the lessee.

Notice of renewal was given by the lessee to the lessor by way of email, although the option to renew clause in the lease did not identify email as a valid method of service.

The court held that the language of the notice provisions was ‘facultative and not mandatory’, and that the lessee has validly exercised the option to renew by the email. The court stated that the notice provisions were not to be strictly applied to the exclusion of all other methods of service.

The decision in this case highlights that whether a lessee has validly exercised an option for renewal can depend on the interpretation of the terms of the lease when read as a whole.

Conveyancing – updated letters – QLD, NSW, VIC, SA, WA

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A number of the precedent letters in the By Lawyers guides for Conveyancing – Sale and Purchase have been updated to cater for developments in electronic conveyancing.

The content covered in these amendments include additional options for signing the transfer, payment of duty and registration of the transfer.

These updates occurred partly as a result of feedback received from our users. We always value and respond to feedback from practitioners using our content. We especially love to hear from property lawyers and conveyancers as to how we can make it a little easier for them to deal with the pace of change in electronic conveyancing.

Please don’t hesitate to contact us at askus@bylawyers.com.au if you have any feedback for us.

ARNECC Model Participation Rules Version 5

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The ARNECC Model Participation Rules Version 5 for e-conveyancing are in effect from 25 February 2019 in NSW, VIC, QLD, WA and SA.

Client Authorisation Forms

There are now two separate types of Client Authorisation Forms:

  • Client Authorisation Representative– authorises a solicitor or conveyancer to act for the client in a conveyancing transaction;
  • Client Authorisation Attorney– authorises a person acting under a power of attorney to act for the donor in a conveyancing transaction, the donor being the person giving the power.

The Client Authorisation Attorney form only applies to Subscribers signing as Attorneys and not any other Subscriber who may happen to be an Attorney e.g. a conveyancer or lawyer generally acting as their Client’s Attorney. A Representative Subscriber (conveyancers and lawyers) should continue to use the Client Authorisation – Representative form.

See rules 5.6 and 6.3 for requirements.

A new Guidance Note is currently being drafted by ARNECC that will provide further information regarding this new provision.

Practitioners must ensure they use the correct Client Authorisation Form for each conveyancing transaction.

These forms are available on all By Lawyers Conveyancing matter plans within Folder ‘A. Getting the matter underway > Verification of identity folder’.

Verification of Identity in mortgage transactions

Responsibilities for verifying the identity of mortgagors have been updated. Practitioners acting for a mortgagee, must take reasonable steps to verify the identity of mortgagors in accordance with r 6.5.1(b), even where the mortgagor is represented.

Additional identity documents

Australian Evidence of Immigration Status ‘ImmiCard’ and Australian Migration Status ‘ImmiCards’ are now acceptable types of identity documents and have been added to the table in Schedule 8 of the Model Participation Rules.

All relevant By Lawyers publications have been updated to reflect the ARNECC Model Participation Rules Version 5, including the detailed Verification of Identity commentary located in all conveyancing and property matter plans under Folder ‘A. Getting the matter underway’.

Personal Property Securities Act and leases

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Personal Property Securities Act and leases

All By Lawyers Lease Publications have been updated to include new commentary on the implications of the Personal Property Securities Act  2009 (PPSA) for landlords and tenants when entering into a new lease and on assignment. The Retainer instructions and To do list precedents have also been updated to ensure that these important considerations are not overlooked.

Leases often encompass personal property, such as fit-out owned by the landlord made available under the lease, or plant and equipment owned by the tenant left in the premises on abandonment.

In such situations, the PPSA can operate to deprive the true owner of their rights if not recorded on the Personal Property Securities Register (PPSR). For example, unless a landlord registers a security interest on the PPSR in relation to their personal property which is in the possession of a tenant, they may not be adequately protected against claims on the property by third parties including the tenant’s financier.

At the time of entering into a new lease or on assignment, a landlord should consider whether registration of a security interest is required in relation to any personal property. Consideration should also be given to the inclusion of a PPSA clause in the lease to allow the landlord to enforce security interests in personal property. Any such clause must be reasonable, should be confined only to the relevant personal property concerning the lease and should not affect the tenant’s ability to obtain finance or provide security to their financier.

For further information on Personal Property Securities Act and leases , see the By Lawyers Lease publications and the By Lawyers dedicated Personal Property Securities publication.

Domestic violence amendments – SA

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Some of the domestic violence amendments under the Statutes Amendment (Domestic Violence) Act 2018 have now commenced. The act makes a number of changes to domestic violence provisions, most of which commenced on 31 January 2019.

Amendments that commenced on 31 January 2019 include:

  • additions to the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to include forcing a person to marry another person, preventing a person from entering the person’s place of residence and taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of a person and threatening to distribute the image without the person’s consent;
  • increased penalties for breaching an intervention order, where a breach is a ‘second or subsequent’ offence, which generally means offences within 5 years of each other, AND the breach involves physical violence or the threat of it, then the maximum penalty is $20,000 and 4 years imprisonment (whereas the maximum penalty for a first offence is $1250 and 2 years imprisonment);
  • s 10A(d) of the Bail Act 1985 has been amended to classify certain domestic violence offences as ‘aggravated offences’ in  relation to which there is a presumption against bail;
  • new s 20A—Choking, suffocation or strangulation in a domestic setting has been added to the Criminal Law Consolidation Act 1935. This offence provides that a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence, the maximum penalty for which is imprisonment for 7 years.

Amendments yet to commence include:

  • where police are seeking to urgently vary an existing final order the court may now conduct a preliminary hearing in the absence of the defendant and may take evidence by telephone or such other means as the court determines appropriate and the rules of court allow;
  • where an Intervention order is sought by police, the applicant and anyone else for whose protection the order is sought, may give their evidence in the proceedings by recording and may only be cross-examined about that evidence if the court permits it.

These provisions are suspended until proclaimed, commencing on 6 December 2020 at the latest.

The commentaries in the By Lawyers Criminal SA and Intervention Orders SA guides have been updated accordingly.

Leases – Demolition and relocation clause – Commercial lease

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A new demolition and relocation clause for use in commercial leases has been added to the Library of clauses in all By Lawyers Leases publications. This clause was added as a result of a request from a By Lawyers user.

The new clause provides for termination by either the lessor or lessee in the event that the lessor proposes to demolish the building or a substantial portion of the building of which the premises form part, on the lessor providing 90 days written notice to the lessee. This clause also addresses the costs of relocation of the lessee’s business and requires the proposal for demolition to be genuine.

Please email us at askus@bylawyers.com.au or call 02 4858 0619 with any feedback or suggestions. We would love to hear from you!

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