ByLawyers News and Updates
  • Publication updates
    • Federal
    • New South Wales
    • Victoria
    • Queensland
    • South Australia
    • Western Australia
    • Northern Territory
    • Tasmania
    • Australian Capital Territory
  • By area of law
    • Bankruptcy and Liquidation
    • Business and Franchise
    • Companies, Trusts, Partnerships and Superannuation
    • Conveyancing and Property
    • Criminal Law
    • Defamation and Protecting Reputation
    • Employment Law
    • Family Law
    • Immigration
    • Litigation
    • Neighbourhood Disputes
    • Personal injury
    • Personal Property Securities
    • Practice Management
    • Security of Payments
    • Trade Marks
    • Wills and Estates
  • Legal alerts
  • Articles
  • By Lawyers

Casual employment – FED

13 April 2021 by By Lawyers

Recent amendments to the Fair Work Act

There is a new statutory definition of ‘casual employee’ from 27 March 2021. There is also an expanded statutory pathway for regular casual employees to convert their employment status to full time. Employers now have an obligation to offer permanent employment in certain circumstances.

Some relief has been granted to employers for underpayment claims from employees incorrectly classified as casual. This addresses instances of ‘double dipping’.

The Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 has introduced significant amendments to the Fair Work Act 2009 including:

Statutory definition

Section 15A provides that a person is a casual employee if they have been offered and have accepted employment on the basis that the employer gave ‘no firm advance commitment to continuing and indefinite work according to an agreed pattern…’.

Conversion to permanent employment

Additionally, for casual employees who fall outside the modern award framework there is a statutory obligation for employers to offer conversion to full or part-time employment, unless there are reasonable business grounds not to do so. This does not apply to small business employers.

Casual Employment Information Statement

Employers must provide casual employees with a Casual Employment Information Statement, before, or as soon as practicable after, they start their employment. This is additional to the Fair Work Information Statement.

Off-setting casual loading to prevent ‘double-dipping’

Employers are provided with relief for underpayment claims from employees incorrectly classified as casual.

Regular casual employee

The previous definition of ‘long term casual’ is replaced with ‘regular casual employee’. The definition relates to the element of employment on a regular and systematic basis, but without any specific time requirement.

By Lawyers keeps you up to date

For further details see the By Lawyers Employment Law publication which has been updated accordingly.

Filed Under: Employment Law, Federal, Legal Alerts, New South Wales, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: casual, employee, employer, employment, Employment law

Family law cases – FED

15 March 2021 by By Lawyers

A number of recent family law cases have been added to 101 Family Law Answers.

These new family law cases are located in the following sections of this helpful reference manual:

Costs orders

For a discussion of interim lump sum payments see Russo and Russo & Ors [2020] FCWA 182 at [61]-[66].

Settlement offers

In Paradin & Paradin [2020] FamCAFC 245 an order that the husband pay the wife’s costs was set aside. The husband had rejected the wife’s Calderbank offer because it was ambiguous and was not specific as to breakdown of payments. Strickland J stated at [57]:

… I am reminded … of what the Full Court said in Pennisi, namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.

Contributions – Conduct and family violence

Benson & Drury [2020] FamCAFC 303 saw the Full Court dismiss an appeal by the de facto husband against a 5% adjustment in the de facto wife’s favour. The adjustment had been made due to the impact of family violence upon her contributions, based on the arguments raised in Kennon. However, the Full Court stated that the primary judge was in error for not considering the Kennon argument in a holistic way. At [35] they stated:

…The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

101 Family Law Answers is available as a related guide and also in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant family law cases. It is separated into the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers general procedural issues and the enforcement of orders.

Filed Under: Australian Capital Territory, Family Law, Federal, Legal Alerts, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: costs orders, family law

Magistrates Court Civil- VIC

12 March 2021 by By Lawyers

The By Lawyers Magistrates Court Civil – Acting for the Plaintiff litigation commentary has been reviewed by our author.

The resulting consolidation and enhancements include:

  • The commentary on interrogatories has been enhanced including practical insights into the correct form that an interrogatory should take. Examples of defective interrogatories have been added to assist practitioners in drafting interrogatories.
  • The commentary on expert witnesses has been enhanced. The commentary now highlights the crucial point that reliance on an expert report will usually waive privilege over all materials or communications that may have influenced the expert in forming their opinion. This means practitioner communications with an expert witness will likely have to be disclosed to the other party and the court, so drafting communications requires care.

This review of the Magistrates Court Civil – Acting for the Plaintiff litigation commentary is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Filed Under: Litigation, Publication Updates, Victoria Tagged With: Author review, By Lawyers, Magistrates Court Civil - Acting for the Plaintiff

Invoice recitals – All states

1 March 2021 by By Lawyers

The precedent invoice recitals from the By Lawyers reference publication 101 Costs Answers have been added to various other matter plans. This makes an enormous amount of valuable, drafted By Lawyers content more readily available to all users.

The useful library of invoice recitals provides assistance to practitioners and support staff when preparing invoices in any matter. These recitals, which detail the work usually completed in a variety of matter types, are now available on each relevant matter plan. The appropriate recital appears directly below the invoice precedent.

Invoice recitals are provided for the following areas of law:

  • Conveyancing
  • Criminal
  • Employment
  • Enduring guardianship NSW
  • Estates
  • Family law
  • Injuries, works compensation, victims support
  • Insolvency
  • Leases
  • Mortgage
  • Power of attorney NSW
  • Retirement villages NSW
  • Sale and purchase of business
  • Security of payments NSW
  • Wills

101 Costs Answers is located in the Reference materials folder on every By Lawyers matter plan. It contains practical, detailed commentary on all aspects of legal costs and disbursements. It also contains fully compliant costs agreement precedents for all common areas of law.

Filed Under: Miscellaneous, New South Wales, Northern Territory, Practice Management, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: 101 Costs Answers, By Lawyers, costs and disbursements, Invoice recitals, Legal costs

Criminal Magistrates’ Court – VIC

15 January 2021 by By Lawyers

The By Lawyers Criminal Magistrates’ Court publication has been reviewed and enhanced. Improvements following from this review include:

  • The matter plan and commentary have been revised and re-ordered to better reflect the flow of the criminal Magistrates’ Court processes.
  • New and amended commentary headings for improved searchability.
  • The summary of the 2018 bail reforms has been incorporated into the general commentary as those provisions are now entrenched.
  • The commentary on taking instructions in criminal matters has been expanded.
  • The commentary on the preliminary issues which may require practitioners’ attention before the first court appearance, or before a plea is entered, has been enhanced.
  • Commencement of charges is now dealt with in more detail, including notices to appear and the consequently different process which applies compared to a charge and summons, or a warrant.
  • The importance of identifying whether the charge is summary or indictable has been highlighted and discussion of the different processes which apply to each stream has been enhanced.
  • Discussion of the process for charges in the indictable stream has been augmented with new headings added, including the Filing hearing, The hand-up brief, Committal mention, Applying for summary jurisdiction, Pleading guilty at the committal mention and Listing a committal hearing.

Practitioners are reminded that the Criminal Magistrates’ Court publication now also includes the By Lawyers guide to Commonwealth Offences, which covers all aspects of dealing with Commonwealth offences in state courts.

This review is part of the continuing commitment of By Lawyers to updating and enhancing our publications to help our subscribers enjoy practice more.

Filed Under: Criminal Law, Publication Updates, Victoria Tagged With: criminal law, criminal procedure, VIC magistrates court

Land transfer duty waiver – VIC

7 January 2021 by By Lawyers

The Victorian Government has announced a land transfer duty waiver for purchases of Victorian residential property with a dutiable value of up to $1 million.

For new residential properties, a 50% duty waiver applies. For existing residential properties and vacant residential land, a 25% duty waiver applies.

The applicable waiver is applied to the duty otherwise payable after all other eligible benefits, such as the first home buyer duty concession, the principal place of residence concession and the pensioner concession, have been taken into account.

The waiver can apply to the purchase of an investment property. There is no requirement to live in the property.

The waiver can be applied for more than once.

While a foreign person can obtain the waiver, it does not apply to foreign purchaser additional duty.

To be eligible for this waiver:

  • the purchase must be of residential property;
  • dutiable value must be $1 million or less;
  • the contract must be signed on or after 25 November 2020 and before 1 July 2021; and
  • the arrangement must be a bona fide purchase for adequate consideration i.e. not a gift.

The State Revenue Office will apply the waiver automatically if all eligibility criteria are met based on the information provided in the Digital Duties Form.

For further information, see the State Revenue Office page Land transfer duty waiver for residential property transactions of up to $1 million.

The By Lawyers Conveyancing – Purchase of real property (VIC) Guide has been updated accordingly.

Filed Under: Conveyancing and Property, Publication Updates, Victoria Tagged With: conveyancing, Land transfer duty waiver - Residential property up to $1 million

1 January updates – All states

7 January 2021 by By Lawyers

The By Lawyers has attended to the following 1 January updates required by legislation and practice in all relevant jurisdictions:

Land tax – Increases to threshold values – NSW

Land tax thresholds in NSW are indexed to rise on 1 January each year.

The 2021 threshold combined land value has increased to $755,000 for all liable land. Special trusts and non-concessional companies are excepted.

A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold plus $100 applies.

If the aggregate taxable value exceeds the premium rate threshold of $4,616,000 then $60,164 is payable plus a marginal tax rate of 2% over that amount.

All relevant commentary and precedents in the By Lawyers Conveyancing & Property and Trusts guides have been updated accordingly.

By Lawyers Contract for sale of land

The 2021 edition is now available on the Sale of real property matter plan in the Contract section.

Leases and subleases – NSW, VIC, QLD, SA and WA

The 2021 editions are now available on the Leases – Act for Lessor matter plan for each jurisdiction.

These additions form part of our continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Bankruptcy

In response to the COVID-19 pandemic temporary changes were made to bankruptcy law, increasing the debt threshold to $20,000 from $5,000 and increasing the time frame for a debtor to respond to a bankruptcy notice to 6 months from 21 days.

As of 1 January 2021 these changes have ceased and a new permanent bankruptcy threshold has been implemented.

The current debt requirement for bankruptcy is a minimum debt of $10,000 and the current time to respond to a bankruptcy notice is 21 days.

The By Lawyers Insolvency – Bankruptcy of individuals publication has been updated accordingly.

Always up to date

In addition to our annual 1 January updates, By Lawyers ensures our publications are updated for 1 June and any other statutory or regulated adjustments where necessary. We also promptly  update our content for all relevant legislative amendments and other legal developments throughout the year, in all jurisdictions.

The team at By Lawyers wishes everyone a prosperous and safe 2021.

Filed Under: Bankruptcy and Liquidation, Companies, Trusts, Partnerships and Superannuation, Conveyancing and Property, Legal Alerts, New South Wales, Publication Updates, Queensland, South Australia, Victoria, Western Australia Tagged With: By Lawyers contract, conveyancing, land tax, lease, property, sublease

Contract of sale of land – By Lawyers VIC 2021 version

6 January 2021 by By Lawyers

Conveyancing practitioners should be aware that the Contract of sale of land – By Lawyers VIC 2021 version has now been published.

The contract is available to LEAP users with the By Lawyers integration and to non-LEAP users by subscription to the Conveyancing (VIC) publication. The contract can be found in the Sale of Real Property (VIC) guide. The contract is also available for purchase through InfoTrack.

The contract was co-authored by Victorian property law guru and long-time By Lawyers author Russell Cocks. For more information about the By Lawyers contract listen to the podcast Seven reasons to use the By Lawyers Contract of sale of land.

The By Lawyers Contract of sale of land for Victoria was introduced on 1 March 2018 and its use has been increasing steadily among Victorian legal practitioners and conveyancers. The contract removes the need for special conditions other than those covering special circumstances and has a number of other advantages over the LIV contract which further simplify the conveyancing process.

Additions to the Contract of sale of land – Parts 1 and 2 – By Lawyers VIC 2021 version

  • GST provisions in the Particulars section of Part 1 have been amended for clarity.
  • An option of 14 OR 21 days has been added in relation to the loan approval period.
  • Clause 14 of the General Conditions has been amended to provide the purchaser with the ability to request an extension of time to obtain loan approval, sets out the corresponding options for the vendor, and provides for the outcome where the vendor fails to respond to the extension request in time.
  • Clause 15 has been amended to provide for the rectification of any error made in the calculation of adjustments that is discovered after completion.
  • Clause 22 clarifies that where the property is subject to the Retail Leases Act 2003, the vendor must provide the purchaser with a copy of the disclosure statement.

Rest assured that the By Lawyers contract is immediately brought up to date with any changes in law or practice.

Filed Under: Conveyancing and Property, Publication Updates, Victoria Tagged With: Contract of sale of land - By Lawyers VIC 2021 version, LIV contract

Rescission – Consequences of rescission 2

1 January 2021 by By Lawyers

By Russell Cocks, Solicitor
First published in the Law Institute Journal

A caveator’s arguments in support of the contract upon which his caveat was based were not well received by the court in the recent case of Damco Nominees P/L v Moxham [2012] VSC 79, with the result that the contract was found to have been terminated. Consequently the caveatable interest based on the contract no longer existed and the court ordered the caveat to be removed. It could reasonably be anticipated that final orders, when formulated, would have included a costs order against the purchaser, so the exercise would have been an expensive one.

The arguments made by the caveator are reasonably common and are discussed in 1001 Conveyancing Answers – indeed, they may have sourced from that publication – so the case serves as a guide as to how the court may regard those arguments in the future.

The facts

The caveator had entered into a contract to purchase the property for $1.9m. The property was a potential residential development site and the contract gave the purchaser nearly one year to complete, with a view to allowing the purchaser to seek planning approval et cetera, a reasonably common scenario. The contract was not in the standard form commonly in use but rather was in a form specifically created by the solicitor for the vendor. Whilst not all of the terms of the contract are recited in the judgment, it is possible to conclude that the contract adopted many of the standard conditions, some with subtle changes, and added further conditions. Thus the contract included ‘general condition 40’ whereas the standard contract only has 28 general conditions.

This issue formed the first point of contention between the parties in that the caveator claimed to have signed an earlier contract in standard form and that the ‘second’ contract had only been signed one month later for the purpose of ‘cleaning up’ the ‘first’ contract. The second contract was vaguely attacked on the grounds of ‘unconscionability’ but the court gave short shrift to this argument, partly because to have accepted those arguments would have entirely undermined the caveator’s defence of the caveat as that defence was entirely based on the rights said to arise from the second contract. Thus the dispute was limited to the second, non-standard contract.

Nomination

The first indication that the purchaser might be in ‘trouble’ came two months prior to the date for settlement. The purchaser asked the vendor to give a second mortgage for 10% of the purchase price, but the vendor declined. One month prior to settlement the purchaser notified the vendor that he intended to nominate an associated company. The contract included a general condition setting out a nomination procedure involving submission of a deed and payment of a fee. The purchaser did not submit a deed in accordance with the general condition and objected to payment of the fee. Here the purchaser adopted two arguments set out in 1001 Conveyancing Answers.

The purchaser claimed not to be bound by the nomination provisions of the contract as the purchaser was nominating pursuant to its ‘common law right’. The vendor argued that no such right existed in this case as ‘the contract contained a complete code for nomination’. The point does not appear to have been argued in detail and no cases supporting the common law right are cited in the judgment, however Mukhtar AsJ was inclined to accept the vendor’s argument. However this is not authority to support the proposition that the standard form contract contains such a code. This contract was not in standard form and general condition 31 setting out the nomination procedure specifically stated ‘Nomination only under this condition’, whereas the standard contract merely provides that ‘the purchaser may nominate’.

The second attack on the nomination process in the contract related to the fee. Section 42(3) Property Law Act prohibits the imposition by a vendor on a purchaser of ‘any costs and expenses’ other than those arising from a default. The standard form contract does not provide for a fee for nomination and an attempt by a vendor to impose such a fee on the purchaser as a precondition to a nomination could be met with this s 42(3) prohibition. However this particular contract included as part of the specified nomination process an obligation by the nominee to pay the fee. By this method the vendor sidestepped the prohibition as the fee was not imposed on the purchaser. Such a fee could not be enforced by the vendor against the nominee, who is not a party to the contract, but failure by the nominee to pay the fee would give the vendor the right, as against the purchaser, to refuse the nomination.

Nomination is a common event in Victorian conveyancing. The approach of the drafters of the standard contract was to keep it as simple as possible. Therefore s 42(3) applies to the standard contract. That does not prevent individual vendors imposing a different nomination regime, as was done in this case.

Default notice

The purchaser failed to settle and the vendor issued a notice. It is fair to say that the notice was more detailed than the standard one page notice usually employed and revealed that considerable care had been taken in drafting. In addition to interest, it claimed costs on default, which were specified in the contract as $385, and costs on rescission of $1,100, including a courier fee for personal service. The notice was unsuccessfully attacked on a number of fronts:

  1. that it had been served on the nominee as well as the purchaser;
  2. that it contained an incorrect arithmetic addition resulting in an error of $310;
  3. that the notice claimed ‘proper legal costs’ rather than ‘reasonable costs’ referred to in the contract;
  4. that the $1,100 costs claimed in respect of the notice were excessive. Extensive evidence was called on this point and Mukhtar AsJ was satisfied that, in this case, that amount was a reasonable reflection of the costs arising from the purchaser’s failure to settle;
  5. that the interest claimed was calculated on the balance of purchase price plus adjustments, GST and default interest agreed to be paid in return for an extension of time. This failed as the judge held that this was the amount, however constituted, that was owed by the purchaser to the vendor at the time the notice was issued and the vendor was entitled to interest on that amount;
  6. that the termination condition in the contract incorrectly referred to the ‘buyer’s’ costs. This was rejected as an obvious error. It should have said ‘seller’s’.

The court concluded by proclaiming ‘the caveator’s claim as baseless’, having previously described the attacks on the notice as designed to ‘expose compositional errors’ and one of the letters from the solicitor for the purchaser to the solicitor for the vendor as ‘bumptious’. All in all – NOT WELL RECEIVED.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

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

Court books – All states

14 December 2020 by By Lawyers

Court books are an indexed collection of all documents that the parties rely upon in proceedings, collated for convenience of use during a hearing. They are commonly used in all litigation matters and are compulsory in some courts, especially in specialist lists and on appeal.

A court book ordinarily includes all pleadings and evidence. It generally omits any irrelevant documents, even if they were disclosed in the proceedings. For example, a voluminous bundle of documents may have been produced under a subpoena issued by one of the parties in the lead-up to the hearing, but the party only seeks to rely on a few documents out of the bundle. The court book will contain the subpoena itself plus those relevant documents only.

A properly compiled and indexed court book allows solicitors, counsel and the bench to have a common reference point and easily navigate to relevant documents and issues as the hearing proceeds.

Two new precedents for creating court books have been added to every By Lawyers litigation guide in Australia.

The precedents Court book cover page and Court book index are customised for each court in each jurisdiction. They comply with each court’s requirements and will assist practitioners in compiling court books in all types of litigation.

 

Filed Under: Australian Capital Territory, Federal, Litigation, New South Wales, Northern Territory, Publication Updates, Queensland, South Australia, Tasmania, Victoria, Western Australia Tagged With: court, court books, federal, index, litigation

  • « Previous Page
  • 1
  • …
  • 12
  • 13
  • 14
  • 15
  • 16
  • …
  • 48
  • Next Page »

Subscribe to our mailing list

* indicates required
Preferred State

Connect with us

  • Email
  • LinkedIn
  • Twitter

Copyright © 2025 · Privacy Policy
Created and hosted by LEAP · Log in