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Automated wills – All states

22 June 2021 by By Lawyers

As part of By Lawyers continual commitment to enhancement, the By Lawyers Wills publications in each state now feature more automated wills, particularly for LEAP users. There is improved automation in all wills precedents – Individual wills, Wills for couples and Wills creating testamentary discretionary trusts.

The wills precedents are available in folder ‘C. The Will’ on the matter plans in By Lawyers Wills publications in each state.

Fields have been added to the bequest clauses in all wills. This allows users to populate the precedents with any information they have  completed in the ‘Bequest’ table type in a LEAP wills matter. This applies for each beneficiary added to a LEAP matter:

The bequest clause in all automated wills now provides for up to four beneficiaries. The clauses will now automatically include information based on whether a sum, a gift, or a sum AND a gift, have been completed in the table type for the LEAP matter:

LEAP users can select ‘Is primary beneficiary’, which will add the beneficiary to the residue clause:

Introduction of the LEAP for Word add-in allows LEAP users to also complete additional information in a will. This functionality prompts the will-drafter for such input as the person to whom the testator wishes to bequeath their residuary estate:

For further information on using the LEAP for Word add-in, see the helpful article ‘Working with By Lawyers precedents’ available in Folder A. Getting the matter underway, on the matter plans in all By Lawyers publications.

Please do not hesitate to contact By Lawyers with any questions of feedback on these enhancements: askus@bylawyers.com.au

Filed Under: New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia, Wills and Estates Tagged With: automation, By Lawyers wills, LEAP for Word

Family Property List – VIC

22 June 2021 by By Lawyers

New commentary and a link to the VIC County Court Family Property List practice note has been added to the By Lawyers Family Provision Claims guides for Victoria. This applies to both Acting for the plaintiff and Acting for the estate.

The commentary focuses mainly on the Supreme Court where most applications are filed, but the new section suggests that consideration should always be given to whether the plaintiff’s claim is more appropriately filed in the County Court. There is no monetary limit on the County Court’s jurisdiction.

Paragraph 1.3 of the County Court’s Family Property List practice note sets out the factors which make a case suitable for the County Court.

The decision as to which court any proceedings should be commenced in may involve consideration of the obligations upon parties and their legal representatives under Chapter 2 of the Civil Procedure Act 2010 – the ‘overarching obligations’.

If the plaintiff’s decision to file in the Supreme Court is based on a reasonable assessment that the factors in paragraph 1.3 of the Family Property List practice note do not apply it would be very hard to argue that a party, or their lawyer, was in breach of their obligations under Chapter 2 of the Civil Procedure Act 2010 by filing there. However, conversely, a decision by the plaintiff to file in the Supreme Court where those factors do apply might enliven the exercise of the court’s discretionary powers under Part 2.4 of the Act, including as to costs.

These important considerations are now covered in the commentary to assist practitioners, whether acting for a claimant or an estate.

Additionally, the Retainer Instructions have been amended to prompt for this consideration and a new precedent letter has been added to the Acting for the Defendant matter plan. This letter can be used to put the plaintiff’s solicitor on notice when the defendant considers the proceedings have been inappropriately filed in the Supreme Court rather than the County Court.

Filed Under: Publication Updates, Victoria, Wills and Estates Tagged With: Family Property List, family provision claims, VIC County Court, VIC Supreme Court

Material facts

1 June 2021 by By Lawyers

By Russell Cocks, Solicitor

English and Australian common law is historically based on promoting the needs of the wealthy in preference to the poor. Consider the traditional preference to the lender over the borrower, the landlord over the tenant and the vendor over the purchaser. Hence the principle, caveat emptor – let the buyer beware.

But, the Golden Age of the consumer has been the greatest force for change in Australian law over the last 50 years and initially the courts, but more recently, Parliament have made changes to the law in all of these areas designed to promote the interests of the consumer over the wicked lender, landlord or vendor. The Consumer Credit Code in respect of lending, the Residential and Retail leasing legislation in relation to tenancy and the Vendor Statement requirements in relation to sales are three standout examples. We are getting much closer to crossing the Rubicon from caveat emptor to caveat vendor and recent changes, somewhat surreptitiously introduced, take us further down that path.

Sale of Land Act 1962 was indeed a very early example of consumer protection. The post-World War 2 rush of migration to Australia produced a vast number of people willing to work hard and make a new life. The first thing they needed was a job, of which there were plenty, and then somewhere to call home. Owning a little piece of big Australia was the migrant dream and the best way to do that was a hundred pounds down and five pounds a week. Contracts for the sale of land, or house and land, could be structured to meet the needs of this new class of property owner who, by and large, were not welcome at the door of traditional lenders. Rather than buying the property outright, by what is referred to as a ‘cash contract’, these transactions were based on payment over time, known as a ‘terms contract’. A small deposit at the beginning and small regular payments over a longer period of time, traditionally 5 years.

There was no shortage of supply for this demand. Small inner-city houses and new greenfield subdivisions serviced the need and the economy developed quickly. But there was a fundamental flaw with the application of this model on such a wide scale – no-one ever became the new owner. The title to the land remained in the name of the owner who started the chain and successive purchasers on-sold, usually taking a small profit out to apply to a ‘better’ property. By this method a chain of owners was created, with the original owner still on title and the rights of each successive owner dependent upon the due performance of the chain of contracts. As soon as one link in the chain failed, the chain broke, often with drastic consequences for the last person in the chain who, having paid their money, might lose it all.

The initial objective of the Sale of Land Act was to prevent this situation harming those at the end of the chain by outlawing successive terms contract. Thus, a purchaser on a terms contract may enter into a contract to sell the land, but only pursuant to a cash contract, not another terms contract. By this means, the title is transferred to the subsequent purchaser at the same time as the original terms purchaser completes their terms contract. This overcame the terms contract problem, but created a new problem of needing to invent a new financing model to provide a capital amount to complete the purchase contemporaneously with the contract, rather than over a number of years. Initially, this funding came by way of the second mortgage, a device designed to allow the purchaser to make up a shortfall in borrowing power by paying the vendor a part of the sale price over an extended period and eventually led to an easing of borrowing requirements and, ultimately, to the rise of Building Societies that were prepared to support borrowing for this purpose.

In the 1980s the Sale of Land Act was again the vehicle for the introduction of significant consumer protection provisions. Rarely, but occasionally, a purchaser would lose their deposit when a vendor sold a property that was subject to a substantial mortgage and the vendor took the deposit and decamped, leaving the purchaser with the vendor’s mortgage that could not be discharged for the balance due under the contract. Stakeholding of the deposit pending settlement was the solution, an admirable outcome but clumsily introduced. The more significant changes were aimed directly at the caveat emptor principle and, for the first time, introduced a vendor obligation to disclose certain information about the property prior to contract. Until this time, the vendor ranged wide and free across the property landscape. The hapless purchaser was invited to sign a contract (or even more dubious, a Contract Note or Sale Note) and then commence inquiries about the property that the purchaser was by that stage legally bound to buy. The farce of Requisitions on Title was meant to be the shield for the purchaser, but was in fact made of papier mache and the purchaser was effectively obliged to accept the property warts and all.

The vendor’s obligation to provide certain information in relation to the property prior to the purchaser entering into the contract was based on the consumer protection adage that information is knowledge and that an informed consumer is better able to make a judgment about the transaction. By and large, this has proven correct, with prospective purchasers now able to seek advice about the information provided in the Vendor Statement prior to committing to the transaction. The removal of the dubious Contract Note means that the purchaser is also more than likely now advised about the full terms of the contract, as well as the matters disclosed by the Vendor Statement.

But the vendor disclosure obligations are not a tell-all obligation. The vendor is only obliged to comply with the requirements of s 32 and, provided the vendor does that, no further disclosure is required. Austlii is littered with cases testing the extent of those obligations and various legislative fine-tuning exercises have taken place over the years. For every obligation specified in s 32, there is a question of degree or uncertainty. For instance:

  • building permits must be disclosed, but what if no building permit was obtained?
  • notices affecting the land must be disclosed, but what about notices affecting adjoining land?
  • do defects such as contamination, asbestos or structural defects need to be disclosed?

As the law stands, s 32 probably does not require the disclosure of such matters but here is the tension between caveat emptor and caveat vendor, with the above questions being answered in the negative on the basis of caveat emptor but potentially requiring disclosure if a caveat vendor principle is applied.

An amendment to s 12 Sale of Land Act that came into effect on 1 March 2020 moves this tension further in favour of a caveat vendor approach. Importantly, the new section does not create vendor disclosure obligations that directly affect the vendor-purchaser relationship, as the section creates an offence rather than directly giving rights to the purchaser, but arguably the purchaser can rely on a breach of s 12 to challenge the vendor for non-disclosure. It may have been preferrable to keep all vendor disclosure obligations within s 32, with any expansion of those obligations structured to complement the existing obligations, rather than a supplementary regime established by s 12.

Previously, s 12 created an offence for a vendor or vendor’s agent to fraudulently make a false representation in relation to the sale of land. The section had been something of a ‘lame duck’, as establishing fraud in such circumstances carried a high onus of proof. Changing ‘fraudulently’ to ‘knowingly’ arguably covers a much more expansive category of representation and GUIDELINES have been issued to illustrate the matters that may require disclosure.

Whilst breach of s 12 is an offence and does not purport to create any legal rights in favour of the purchaser, s 48A of the Act may, indirectly, do so. It has been held in Wagner v Usatov [2014] VCAT 1198 that:

Section 217 of the Australian Consumer Law and Fair Trading Act 2012 (‘the 2012 Act’) creates a right of action for a person who suffers loss because of a contravention of that Act and confers upon VCAT a jurisdiction to determine any proceeding brought to pursue that right of action. So far as is presently relevant, s 217 provides:

(1) A person who suffers loss, injury or damage because of a contravention of a provision of this Act may recover the amount of the loss or damage or damages in respect of the injury by proceeding against any person who contravened the provision or was involved in the contravention.

(3) A proceeding under this section may be brought before VCAT or in any court of competent jurisdiction.

Section 48A of the Sale of Land Act is headed ‘Application of Australian Consumer Law and Fair Trading Act 2012’. Section 48A (1) provides:

(1) Sections 125, 195 and 196 and Part 8.2 (except section 213) of the Australian Consumer Law and Fair Trading Act 2012 extend and apply (with any necessary modifications) to this Act as if any reference in those provisions to the Australian Consumer Law and Fair Trading Act 2012 were a reference to this Act.

Section 217 of the Australian Consumer Law and Fair Trading Act is within Part 8.2.

The combined effect of those two sections is that a person who claims to have suffered loss as a result of a contravention of a provision of the Sale of Land Act 1962 may bring a proceeding at VCAT, under s 217 of the 2012 Act, to recover the amount of the loss against any person who contravened the provision of the Sale of Land Act. In other words, it is as if the words ‘this Act’ in s 217 were ‘the Sale of Land Act 1962’ instead.

This view was adopted in Han v Pirrie [2019] VCAT 1966.

In Wagner v Usatov the vendor was found to have breached s 32(2)(e) by not disclosing particulars of a planning permit and the purchaser was successful in a claim for losses said to have arisen from this breach.

Importantly, whilst Australian Consumer Law and Fair Trading Act 2012 requires the alleged breach to have arisen in the context of a supply of an interest in real estate in trade or commerce, not such limitation applies when the vendor has breached a provision of the Sale of Land Act 1962. A ‘private’ vendor who breaches s 12 Sale of Land Act 1962 will be liable to the purchaser for any loss suffered by the purchaser because of that contravention.

Potentially, this sounds the death knell of caveat emptor in respect of the sale of real estate and crowns caveat vendor as the ruling principle. Whether that revolution should have been via a palace coup, rather than an election where the competing arguments were considered, is a matter for debate. Indeed, given the lack of fanfare, perhaps this was an accidental coup. Fine tuning and expanding the fundamental disclosure section (s 32) would have been a preferable course of action to the introduction of an entirely new and uncertain category of material facts.

Perhaps the final nail in the coffin of caveat emptor will be the imposition of a compulsory building inspection report in relation to any property (or perhaps just residential properties) that must be obtained by the vendor prior to sale and included in the Vendor Statement. This would probably add $1,000 to the cost of every proposed sale and might have the unintended effect of hosing down the property market. People would suddenly find themselves bidding for properties on a ‘warts-exposed’ basis, rather than through rose-coloured glasses.

Material Fact Guidelines

Sale of Land Act 1962

Section 12(d)

The Sale of Land Amendment Act 2019 (Amendment Act) was passed by the Victorian Parliament on 28 May 2019 and received the Royal Assent on 4 June 2019. The Amendment Act makes a number of amendments to the Sale of Land Act 1962 (the Act), including an amendment to section 12(d) of the Act.

Purpose

Section 12A of the Act (as amended) says:

The Director of Consumer Affairs Victoria may make guidelines to assist vendors of land and their agents to understand what a material fact is likely to be for the purposes of section 12(d).

A court may have regard to any guidelines made under subsection (1).

The purpose of these guidelines is to assist vendors of land and their agents (including estate agents) to understand what a material fact is likely to be under section 12(d) of the Act.

Context

Section 12(d) of the Act (as amended) provides:

Any person who, with the intention of inducing any person to buy any land—

(d) makes or publishes any statement promise or forecast which he knows to be misleading or deceptive or knowingly conceals any material facts or recklessly makes any statement or forecast which is misleading or deceptive shall be guilty of an offence against this Act…

The penalty for breaching section 12(d) of the Act is 120 penalty units or up to 12 months imprisonment.

The Amendment Act replaces the word ‘fraudulently’ with ‘knowingly’. The previous wording of section 12(d) of the Act reflected the common law tort of deceit where, although a vendor or agent is generally not required to advise a potential purchaser of any serious defects in the property of which they are aware, they cannot fraudulently (meaning, knowingly with intent to deceive) actively conceal defects. In addition, a vendor may commit the tort of deceit if they fail to answer any question about the structural soundness or quality of the property honestly and completely.

The change to section 12(d) means that it is an offence if a vendor or agent knowingly conceals a material fact about land for sale, with the intention of inducing a potential purchaser to buy the land. It is not necessary to show that anything active was done to conceal the material fact, although doing so knowingly will still be an offence. It is sufficient if a vendor or agent withholds a material fact which the vendor or agent knows to be material, with the intention of inducing a potential purchaser to buy the land.

As amended, section 12(d) of the Act supports a purchaser to make a fully informed decision before they buy land.

Commonly, some information about a property for sale may only be known to the person who has owned and/or occupied that property, and may not be known to potential purchasers even if they have personally inspected the property.

This information imbalance makes it essential for the vendor or their agent to be obliged to disclose material facts known to them to a potential purchaser of the land.

What is a material fact?

A material fact is a fact that would be important to a potential purchaser in deciding whether or not to buy any land. In the context of a proposed sale of land, a material fact is one that influences a purchaser in deciding whether or not to buy any land at all, or to buy land only at a certain price.

A fact is not innuendo, gossip or mere speculation. However, an opinion may be a ‘material fact’, if it is an expert opinion that is honestly held on reasonable grounds, and the vendor or agent have knowledge of that expert opinion.

Failure to disclose a fact alone is not sufficient to establish an offence under s 12(d). The fact must be material. A fact can be ‘material’ in two ways:

  1. Generally: a fact that an average, reasonably informed purchaser with a fair-minded understanding of the property market, including the role of an estate agent, would generally regard as material in their decision to buy land (examples are provided below).
  2. Specifically: if a fact about land is known by the vendor (or the vendor’s agent, including an estate agent) to be important to a specific purchaser, it can be material, even if other agents and consumers would not generally consider that fact to be important or of significance to them. This knowledge could arise if (for example) a particular purchaser:
  3. asks a specific question about the land of the vendor or the vendor’s agent (including their estate agent), and/or
  4. where a purchaser informs the vendor/agent of their intended use of the land.

Further indications which would be relevant to determining whether something is a material fact include:

  • whether the fact is only known by the vendor
  • the reaction of other potential purchasers to the fact, including whether knowledge of the fact may impact a potential purchaser’s willingness to buy land, and
  • whether the fact results in the property being in a rare or unusual category or position.

Vendors or agents who have knowledge of material facts cannot rely on purchasers becoming aware of them through making ‘usual inquiries’ or following the Due Diligence Checklist to avoid disclosure. General examples of material facts about land which are known to the vendor or agent but which may not be obvious to a potential purchaser include (but are not limited to) circumstances where:

  • prior tests or investigations have revealed (or the vendor or agent otherwise knows of) a defect in the structure of the building, a termite infestation, combustible cladding, asbestos (including loose-fill asbestos insulation) or contamination through prior uses of the land,
  • the underlying cause of an obvious physical defect is not readily apparent upon inspection (for example, whilst a large uncovered crack in a wall would be obvious to a purchaser upon inspection, the underlying reason for the crack, such as defective stumping, may not);
  • there has been a significant event at the property, including a flood, or a bushfire,
  • there is a history of pesticide use in the event the property had been used for horticulture or other agricultural purposes,
  • there are restrictions on vehicular access to a property that are not obvious during a property inspection (such as truck curfews or where access is via an easement that is not apparent on the Certificate of Title or plans),
  • facts about the neighbourhood surrounding the property which may not be immediately apparent upon inspection (such as sinkholes, surface subsidence, development proposals) that would likely affect the use and enjoyment of the property to a greater extent than the usual disturbances and inconveniences of occupying land of the kind and in the local area of the land being sold,
  • building work or other work done without a required building permit, planning permit or that is otherwise illegal,
  • the property during the current or previous occupation has been the scene of a serious crime or an event which may create long-term potential risks to the health and safety of occupiers of the land, such as:
    • extreme violence such as a homicide
    • use for the manufacture of substances such as methylamphetamine, or
    • a defence or fire brigade training site involving the use of hazardous materials.

There is a community expectation that homicides that have occurred at a property be disclosed to potential purchasers. Other known acts of extreme violence should be disclosed if a potential purchaser makes a specific enquiry. While these circumstances may not be a physical barrier to the use of the property, they may materially affect a purchaser’s decision to buy the land.

Defects and damage arising from prior significant events of the kind specified above, and contamination from prior uses of the land will not be considered material if they have been fully remediated, and no further repairs or other works (including ongoing work) will need to be carried out in the future. However, if a potential purchaser asks a specific question relating to defects and damage arising from prior significant events, or from contamination arising from prior uses of the land, those questions must still be answered by the vendor fully and frankly and to the best of the vendor’s knowledge.

Positive enhancements or improvements made to a property such as renovations are likely to be disclosed in the course of marketing land for sale. Positive information about land for sale, if withheld, is not of its nature the kind of information which is likely to ‘induce’ a sale.

When to disclose material facts

Estate agents (or vendors where they are not using an estate agent) should disclose all known material facts to potential purchasers as soon as they indicate that they are considering purchasing the property. They must also make continuing disclosure if further material facts become known until the property is sold.

Generally, material facts will not be concealed from purchasers if they are disclosed:

  • in marketing material or information statements; or
  • in a section 32 statement or contract of sale; or
  • on a physical inspection of the property where they are clearly visible; or
  • by specific disclosures made to particular purchasers in the course of negotiations; or
  • before the start of a public auction.

However, specific disclosure of a material fact to a particular purchaser will be required where the vendor or agent knows that the material fact has not come to the attention of the purchaser by other means.

Vendors are not required or expected to carry out tests and investigations of the property to determine if there are any unknown problems that ought to be disclosed, other than as may be required to prepare a section 32 statement.

However, if a potential purchaser asks a vendor or a vendor’s agent a question about a property, before that property is sold, the vendor or the vendor’s agent must answer that question fully and frankly and to the best of their knowledge.

If the vendor or a vendor’s agent has no knowledge of the matters raised by the potential purchaser, they can advise that potential purchaser that they do not know.

What should vendors do?

Vendors should prepare the property for inspection by potential purchasers without taking any steps to hide defects or any other important feature which would otherwise come to the attention of someone doing an inspection. They should carefully consider all information known to them or disclosed to them by their solicitor or conveyancer after having conducted the usual searches and inquiries for a section 32 statement and disclose any known material facts to their estate agent prior to the marketing of the property. Vendors should answer all inquiries about the property put to the vendor by purchasers through their agent as fully and frankly as possible.

If vendors disclose material facts to their estate agent for the purpose of answering questions asked by potential purchasers, acting reasonably and diligently, they have discharged their obligation to not knowingly conceal material facts, and the burden of disclosure of those material facts falls upon the estate agent.

If the vendor is selling the property without an estate agent, the vendor should answer all questions about the property put to them by purchasers as fully or frankly as possible in the circumstances.

What should estate agents do?

Estate agents should discuss with vendors any material facts that are likely to be the subject of statements or representations by the estate agent in the course of marketing the property. During this process, it is important for the estate agent to inspect the property, read the section 32 statement and contract and gather information from the vendor and their solicitor or conveyancer on aspects of the property which are material to the market to assist them in accurately and honestly representing the property.

The estate agent should answer all inquiries by purchasers as fully and frankly as possible in the circumstances, including by referring those inquiries back to the vendor or the vendor’s solicitor or conveyancer as necessary and diligently following up those responses.

These pro-active steps are also required of estate agents under the Estate Agent (Professional Conduct) Regulations 2018 which require an estate agent to act fairly, honestly, in good faith and in the vendor’s best interests. It is also best practice if the estate agent provides potential purchasers with a copy of the section 32 statement and contract of sale at open for inspections and via email as early as possible in the marketing campaign.

Filed Under: Articles, Conveyancing and Property, Victoria Tagged With: conveyancing, Conveyancing & Property

County Court Civil – VIC

31 May 2021 by By Lawyers

The By Lawyers County Court Civil (VIC) publication has been updated.

This update reflects recent amendments to the Court’s practice notes in the Common Law Division issued by Her Honour Judge Tsalamandris, the Head of the Common Law Division. The links to the practice notes within the Acting for the plaintiff and the Acting for the defendant commentaries have now been updated.

Practice notes provide practitioners with information and direction on the court’s practice and procedures. They particularly explain how matters are conducted in the court’s specialist lists. As all By Lawyers litigation guides emphasise, it is important that practitioners have a sound understanding of the practice notes relevant to any proceedings they propose to commence for a client, or which are already on foot.

The Common Law Division Practice Note applies to all proceedings in the Common Law Division.

  • Common Law Division (PNCLD 1–2021)

In addition, there are practice notes giving instruction on the conduct of cases in specific lists, such as the following which are the subject of the recent updates:

  • Family Property List (PNCLD 3-2021)
  • Medical List (PNCLD 1-2021)
  • WorkCover list (PNCLD 4–2020)
  • Confiscation List (PNCLD 7–2020)

Procedures vary between courts, divisions and specialist lists. Compliance with practice notes is important for timely and efficient case management and will prevent unnecessary applications, save time and avoid the risk of adverse costs orders. The ‘Case management and direction’ sections of the commentaries in all By Lawyers litigation guides provides a valuable resource.

This update to the County Court Civil guides is part of By Lawyers continuing commitment to keeping our content current and helping  our subscribers enjoy practice more.

Filed Under: Legal Alerts, Litigation, Publication Updates, Victoria Tagged With: By Lawyers, Common Law Division, practice note updates

Anti-money laundering – All states

17 May 2021 by By Lawyers

Anti-money laundering policy

Commentary on the importance of law firms having an anti-money laundering policy has been added to the By Lawyers Practice Management guide. This new section of commentary assists firms to deal with the risk of money laundering and suggests procedures that can be adopted to reduce those risks.

This new commentary contains links to the Anti-Money Laundering Guide for Legal Practitioners published by the Law Council of Australia. There are also links to helpful guidance materials published by the various state Law Societies.

By Lawyers Practice Management guide

The Practice Management guide provides assistance for all firms, whether start-up, breakaway, or well established. It covers the following main areas:

  • How to perform a Legal Practice Health Diagnostic Check – a very useful tool for identifying existing strengths and areas where the firm can improve, or as a check-list for start ups.
  • Business planning for a law firm – including a SWOT analysis and environmental scan.
  • Ethics and professional responsibility – crucial to establishing and maintaining reputation and managing risk.
  • The solicitor/client relationship – how to value and manage client relationships.
  • The essentials of managing the work performed by law firms including, matter and data management, financial management and trust accounting.

The publication also contains many helpful precedents, such as:

  • Example costs disclosures.
  • Example invoices.
  • An example mission statement for a law firm.
  • A risk management plan.
  • Employment forms – including an application for employment and a new employee check-list.
  • An example asset register.
  • Forms for conducting file reviews.
  • Document safe custody records.
  • An example law firm client satisfaction survey.

Filed Under: New South Wales, Northern Territory, Practice Management, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: Anit-Money Laundering Guide for Legal Practitioners, Anti-money laundering, policy, practice management

Conveyancing To do lists – All states

10 May 2021 by By Lawyers

The By Lawyers Conveyancing To do lists have been enhanced. As a result of recent feedback from a subscriber, space has been added next to the checkboxes in the Sale of Real Property and Purchase of Real Property guides. This extra space can be used to enter the date that a task has been completed, or any other note relevant to that particular aspect of the matter’s progression.

This small but important enhancement to the utility of these popular precedents will be extended to other guides in due course.

To do lists precedents are available in most By Lawyers guides. They reside within Folder A. Getting the matter underway on the matter plans and are an essential matter and risk management tool.

The Conveyancing To do lists chronologically set out the usual steps to be completed in a sale or purchase matter and allow team members working on the file to tick off each step as the matter progresses. This ensures that nothing important is missed. It also assists with seamless continuity when multiple people are working on a matter. These documents can be of particular assistance to team members who are unfamiliar with a particular area of law, or when assigning a task to more junior staff and assessing their progress or providing training.

To do lists can be printed out and attached to the file for manual completion, or ‘pinned’ to the top of the LEAP matter and competed electronically.

In order to pin a To do list to the top of the correspondence window in a LEAP matter, simply right-click on the precedent after it has been saved into the matter and select ‘Pin to top’. It will then stay at the very top of all correspondence in the matter as a handy reminder and reference tool.

By Lawyers love feedback from subscribers! If you have a suggestion or request, please don’t hesitate to get in contact: askus@bylawyers.com.au.

Filed Under: Conveyancing and Property, New South Wales, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: By Lawyers, conveyancing, Purchase of Real Property, Sale of Real property, to do lists

Costs agreements – All states

3 May 2021 by By Lawyers

Enhanced automation of Costs agreements for LEAP users

As part of By Lawyers ongoing objective to provide seamless and intuitive entry of information in our precedents, the automation of all Costs agreements has been enhanced.

With the use of the ‘LEAP for Word’ add-in and the creation of new LEAP fields, the By Lawyers Costs agreements precedents now offer LEAP users the following features:

New Questions – LEAP for Word add-in

Intuitive questions for inserting applicable fee scale, fixed fee and initial amount to be held in trust. The questions appear in the LEAP for Word panel:

 

Simply complete the required information and click the ‘Update Document’ button for this information to populate in the correct location:

 

For further information on using the LEAP for Word add-in, see the document ‘Working with By Lawyers precedents’ available in Folder A on all By Lawyers Guides.

Hourly rates – New LEAP fields

When charging professional fees on an hourly rate, the rates for relevant staff members now populates automatically from the ‘Rates’ information completed for each staff member in the ‘Staff Members’ section of your firm setting:

Disbursements – New LEAP fields

The ‘Disbursements’ section now populates from the information completed in the ‘Disbursements’ tab within ‘Firm Details’:

 

Estimate of total professional fees and disbursements – New LEAP fields

The ‘Estimate of total professional fees and disbursements’ section now populates from the information completed in the ‘Accounting’ tab within ‘Matter details’ in each matter:

Please do not hesitate to get in touch if you have any questions: askus@bylawyers.com.au.

Filed Under: Australian Capital Territory, LEAP User, Litigation, New South Wales, Northern Territory, Practice Management, Publication Updates, Queensland, South Australia, Tasmania, Tips & Tricks, Victoria, Western Australia Tagged With: costs agreements, Enhanced automation

Remote execution of powers – VIC

30 April 2021 by By Lawyers

Victoria has introduced a permanent procedure for remote execution of powers of attorney, revocations and supportive attorney appointments.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The procedure requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The principal to sign – or direct someone to sign the instrument on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness;
  5. The document to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the document is the same document they witnessed the principal sign;
    • certify that they witnessed the document by audio visual link in accordance with the procedure;
    • sign the document, with the principal and other witnesses seeing them to do via audio visual link; and
    • in the case of the special witness, certify the document was signed and witnessed in accordance with the procedure, certify that they are a special witness and the type of special witness they are and note whether there is a recording of the process.

The By Lawyers Powers and advance care directives (Vic) guide has been updated accordingly for the new procedures on remote execution of powers. For LEAP users Power of Attorney forms have been updated as noted in the LEAP forms blog.

Filed Under: Legal Alerts, Victoria, Wills and Estates Tagged With: Audio visual, electronic signature, powers of attorney, remote witnessing procedure, special witness

Remote execution of wills – VIC

30 April 2021 by By Lawyers

Victoria has introduced a permanent procedure for remote execution of wills.

The procedure arises from the temporary COVID-19 related remote execution and witnessing laws, that are now repealed.

The remote execution of wills requires:

  1. A special witness, who can be an Australian legal practitioner or justice of the peace;
  2. All steps of the procedure to be completed on the same day and within Victoria;
  3. The testator to sign the will – or to direct someone to sign the will on their behalf, with that direction being heard by the witnesses – with all witnesses seeing the signature by audio visual link, or a combination of physical presence and audio visual link;
  4. The special witness to be the last person to witness the will;
  5. The will to be emailed to any witness attending by audio visual link, who must:
    • be reasonably satisfied that the will is the same document they witnessed the testator sign;
    • ensure that there is a statement on the will noting that the witness witnessed the will being signed by audio visual link in accordance with the procedure;
    • sign the will, with the testator clearly seeing them do so by audio visual link; and
    • in the case of the special witness, check to ensure the will complies with the remote execution procedure and also ensure there is a statement on the will noting that the will was witnessed in accordance with the procedure and that they are a special witness and note whether there is a recording of the remote execution process.

The procedure for remote execution of wills also applies to revoking or altering an existing will.

The By Lawyers Wills (Vic) guide has been updated accordingly. This includes the addition of two new jurat clause precedents to the matter plan: Remote execution procedure – Witness and Remote execution procedure – Special witness.

Filed Under: Legal Alerts, Publication Updates, Victoria, Wills and Estates Tagged With: Audio visual, electronic signing, remote execution procedure, special witness, Wills

Small business clients – FED

22 April 2021 by By Lawyers

A folder of new precedents for clients who are commencing or operating small businesses has been added to all Purchase of Business, Companies and Partnerships guides.

The new library of precedents provides a suite of documents which practitioners can provide to their clients who own and operate small businesses, to assist them with the day-to-day running of their businesses. These documents can be provided to clients both when they are setting up or purchasing a new business and when required for existing businesses. The documents are general in nature so they can be customised and amended as required for the needs of different clients. The precedents are designed to apply across various sectors, whether traditional storefront retail or online and whether supplying products or services.

The helpful new precedents available in the folder include:

  • Website terms of use – multiple precedents catering for different types of small business;
  • Example tax invoice;
  • Credit application form;
  • Liability waiver and consent form; and
  • Returns and refunds policy.

Subscribers will find the new ‘If Required – Library of precedents for small business clients’ folder located in:

  • Purchase of Business matter plan for each state – in the Reference materials folder;
  • Companies matter plan – in folder D. Running a company; and
  • Partnerships matter plan – in folder B. Establishing a partnership.

This practical material was added to these existing By Lawyers publications in response to requests and suggestions from By Lawyers subscribers. The precedents provide practitioners with additional tools so they can better assist their clients with all aspects of their businesses.

Filed Under: Australian Capital Territory, Business and Franchise, Companies, Trusts, Partnerships and Superannuation, Federal, Miscellaneous, New South Wales, Northern Territory, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: Library of precedents, precedents, running a business, running a company, Small business, suite of documents, suite of precedents

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