ByLawyers News and Updates

County Court costs – VIC

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New rules provide for County Court costs to be taxed in the Costs Court under the Supreme Court Scale of Costs that operates by reference to hourly rates from 1 January 2025.

Costs in the County Court are dealt with under Order 63 of the County Court Civil Procedure Rules 2018, which now adopts the Scale of Costs in Schedule 1 of Appendix A to the Supreme Court (General Civil Procedure) Rules 2015.

In most cases, the parties will agree on the amount of costs to be paid. If they do not agree, the dispute is referred to the Costs Court.

The scale is based principally on time costing. If a client has been charged on the basis of hourly rates for work done, Section 1 of the Scale applies and provides that the costs payable to the entitled party are to be allowed on the basis of reasonable hourly rates, up to the maximum hourly rate set out in the scale. There are 3 tiers of maximum rates according to a practitioner’s years of post-admission experience. There are no minimum rates.

Section 1 also sets out maximum hourly rates for work done by employees of a law practice who are not legal practitioners. The maximum rates for those employees depend on whether their work required legal skill or knowledge.

All claims must be reasonable. In setting rates to be charged to clients, and in making costs claims, practitioners must observe their overarching obligation to ensure that costs are reasonable and proportionate under s 24 of the Civil Procedure Act 2010.

The time-based model does not mean that a law practice must charge their clients on an hourly basis. The scale also provides for assessment of costs where the entitled party has not been charged on the basis of hourly rates. In such a case, the Costs Court will allow a reasonable amount for the work.

See the By Lawyers County Court (VIC) and Supreme Court (VIC) publications for more information.

Family violence visas – FED

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New eligibility criteria for visas under family violence provisions of the Migration Act commenced on 17 December 2024.

The provisions are intended to prevent secondary visa applicants from feeling compelled to remain in a violent relationship with the primary applicant for fear of an adverse visa outcome.

Violent behaviour can include physical abuse, sexual abuse, verbal or emotional abuse, social abuse, and financial abuse.

Eligibility for family violence visas

A secondary applicant must satisfy the primary criteria of being a member of a family unit at the time of being granted a visa.

A member of a family unit is a spouse or de facto partner, or a child or step-child of the primary visa applicant. A person over the age of 18 is deemed to be a child if they have not turned 23, and are dependent on the family head or the spouse or de facto partner of the family head. If they are over 23, they are still a member of the family unit if they are dependent due to a disability. A dependent grandchild or step-grandchild of the primary applicant is also a member of a family unit. 

Without the family violence provisions, a secondary visa applicant whose relationship with the primary visa applicant has broken down would no longer be a member of a family unit and would not satisfy the primary criteria to be granted a visa.

However, a secondary visa applicant who ceases to be a member of a family unit as a result of family violence perpetrated against them by the primary visa applicant can still apply for a visa under the family violence provisions. 

See the Types of domestic and family violence page of the Department of Home Affairs for further details. 

Evidence

A secondary visa applicant who claims family violence must provide evidence to the Department of Home Affairs about the primary applicant’s violent conduct towards them, and their prior relationship status. Evidence of family violence can include medical reports, police statements, court orders, convictions and a statutory declaration for a family violence claim.  See the Family violence provisions – Secondary applicants page of the Department of Home Affairs for further information. 

The family violence provisions have been expanded to include several new visa subclasses previously not covered:

  • Parent (Subclass 103);
  • Remaining Relative (Subclass 115);
  • Carer (Subclass 116);
  • Business Talent (Subclass 132);
  • Contributory Parent (Subclass 143);
  • Pacific Engagement (Subclass 192);
  • Aged Parent (Subclass 804);
  • Remaining Relative (Subclass 835);
  • Carer (Subclass 836);
  • Contributory Aged Parent (Subclass 864); and
  • Business Innovation and Investment (Subclass 888).

Publication updates

The By Lawyers Immigration publication has been updated to include the new visa types. 

Costs Court – VIC

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Changes to the way costs are calculated in the Costs Court have effect from 1 January 2025 following amendments to Order 63 of the Supreme Court Rules, and the Appendix that deals with costs.

The new scale of costs is based principally on time costing, whereas the previous scale was based principally on items of legal work or particular services.

If a client has been charged on the basis of hourly rates for work done, Section 1 of the scale applies and provides that the costs payable to the entitled party are to be allowed on the basis of reasonable hourly rates, up to the maximum hourly rate set out in the scale. There are three tiers of maximum rates according to a practitioner’s years of post-admission experience. There are no minimum rates.

The scale also sets out maximum hourly rates for work done by employees of a law practice who are not legal practitioners. The maximum rates for those employees depend on whether their work required legal skill or knowledge.

The maximum hourly rates are not an endorsement by the Court that those rates are reasonable in every case, or even in most cases, nor an invitation for practitioners to charge clients the maximum hourly rate and then claim that rate as between the parties.

All claims in the Costs Court must be reasonable. In setting rates to be charged to clients, and in making costs claims, practitioners must bear in mind their overarching obligation to ensure that costs are reasonable and proportionate: s 24 of the Civil Procedure Act 2010.

In assessing costs, the Costs Court will determine whether the amount claimed relative to the work performed is reasonable on an item-by-item basis. This means that the same hourly rate will not necessarily be allowed for all time spent or work done by the same individual.  The hourly rate allowed for a lawyer drafting a letter requiring legal skill may be higher than the rate for the same lawyer collating court books.

An application can be made for the Court to allow an increase to the maximum rates if there are special grounds arising out of the nature and importance, difficulty, or urgency of the case. If the matter runs to trial, then the trial judge will usually be best placed to determine such an application.

The time-based model does not mean that a law practice must charge their clients on an hourly basis. The scale provides for the assessment of costs where the entitled party has not been charged on the basis of hourly rates. In such a case, the Costs Court will allow a reasonable amount for the work.

The scale sets out what the court can consider in determining reasonableness for both time-based costing and alternative costing. These include the actual hourly rates charged to the client, the complexity of the matter, the time required, and the difficulty or novelty of the questions involved.

The By Lawyers Supreme Court – Acting for the Plaintiff (VIC) and Supreme Court – Acting for the Defendant publications have been updated accordingly.

Foreign resident capital gains withholding – FED

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The foreign resident capital gains withholding tax regime is changing.

With effect from 1 January 2025:

  • the withholding rate increases from 12.5% to 15%; and
  • the $750,000 threshold is removed.

The foreign resident capital gains withholding regime applies to sales of taxable Australian property, including vacant land, residential property, and commercial property.

Until 1 January 2025, the regime applied only to properties valued at $750,000 or more. From 1 January it applies to all properties.

Buyers must withhold a percentage of the purchase price and pay it to the Australian Taxation Office (ATO) instead of to the seller unless the seller is an Australian resident and provides evidence of that fact by way of a clearance certificate from the ATO. Sellers who are foreign residents can apply to the ATO for a variation notice and potentially reduce the amount required to be withheld.

Without a clearance certificate or a variation notice, all buyers must withhold the required percentage of the purchase price, even if the seller is an Australian resident.

For sales of taxable real property before 1 January 2025, the foreign resident capital gains withholding amount was 12.5%. From 1 January 2025 it is 15%.

The effect of these amendments is that ALL sellers of real property in all states and territories, whether Australian residents or foreign residents, need to apply for a clearance certificate from the ATO and provide it to the buyer before the completion of the sale. If they do not, then the buyer must pay 15% of the purchase price to the Australian Taxation Office on settlement. For those jurisdictions with electronic conveyancing, this may be able to be done via the settlement platform.

All By Lawyers publications that cover foreign resident capital gains withholding have been updated to reflect this change. This includes the Conveyancing and Property and Estates guides in each state and territory, Retirement Villages (NSW), and 1001 Conveyancing Answers (VIC), (NSW), and (QLD).

Family Law Act – FED

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The Family Law Amendment Act 2024 received assent on 10 December 2024. It makes significant changes to the Family Law Act, some of which have already commenced.

Amendments that commenced on 11 December 2024

The following amendments have commenced.

Commonwealth Information Orders

If a child’s whereabouts are unknown the court can issue an order requiring any person or a government department to provide the court with information about the child’s location. Such orders are known as location orders, as defined in s 67J. They include Commonwealth information orders (CIOs) which are directed to government departments or Commonwealth authorities.

A person with rights under a parenting order or otherwise concerned with the child’s care, welfare, and development is entitled to apply to the court for a location order : s 67K of the Family Law Act.

The requirements for, and content of, CIOs have been changed by the amending Act.

A CIO can require one-off or periodic searches for information for a period of up to 12 months.

In addition to location information, orders can require production of information about any violence to children and persons related to or having a connection with a child.

A new s 67NA defines persons related to a child for the purpose of a CIO to include anyone biologically related, and anyone involved with the child under a fostering arrangement.

CIOs override any provision of a Commonwealth or state law that prohibits the communication, disclosure, or publication of information or documents.

As with all orders, the child’s best interests are the court’s paramount consideration: s 67L.

Separation declaration requirements

Section 90XP of the Family Law Act has been amended in relation to the wording that must be included in a separation declaration under that section. These declarations are required to be made by at least one party to a marriage or de facto relationship, where the parties have entered into a superannuation agreement on separation.

There is no longer a requirement for these statements to mention that the parties have lived separately and apart for a continuous period of at least 12 months, and that there is no reasonable likelihood of cohabitation being resumed. The declaration under this section is now only required to state that the parties are married, or have lived in a de facto relationship, but are separated at the time of the declaration. Or, if a spouse is deceased, that they were separated at the date of death.

The sections of the Act referencing the low-rate cap for superannuation balances have been repealed.

Publication updates 

The full commentaries in the By Lawyers Family Law Children and Financial Agreements publications have been updated.

The Children matter plan now includes the following precedents:

  • Commonwealth Information Order – One-off location search;
  • Commonwealth Information Order – One-off location search plus violence information;
  • Commonwealth Information Order – Periodic location search;
  • Commonwealth Information Order – Periodic location search plus violence information.

The following precedents have been amended in the Financial Agreements matter plan:

  • Separation declaration pursuant to s90XP (superannuation split);
  • Superannuation agreement SMSF – After separation; and
  • Superannuation agreement – After separation.

Amendments that commence on 10 June 2025

Most of the changes under the amending Act concern the framework for property orders, the principles for conducting property and other proceedings, and the parties’ duty of disclosure. Those amendments commence 6 months after assent, being 10 June 2025. See Looking to the Future in the Reference Materials folder of all By Lawyers matter plans for more information about those changes.

By Lawyers Family Law publications will be updated when the further amendments commence.

AI Use Policy – All states

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An AI Use policy has been added to the By Lawyers 101 Staff Handbook.

The policy provides for the responsible use of artificial intelligence within a firm to enhance efficiency and productivity while safeguarding confidentiality, legal integrity, and professional standards.

The AI use policy requires adherence to strict quality assurance measures.

The 101 Staff Handbook is found in the Practice Management guide. This helpful publication provides policies for all aspects of managing a legal practice that firms can either adopt or amend as required.

Trusts – FED

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Update to the definition of foreign person in discretionary trust deeds

The By Lawyers discretionary trust deeds and associated precedents have been updated to clarify the definition of foreign person.

The definition operates in the clauses that prohibit a foreign person from being a beneficiary, to avoid the imposition of surcharge duty and land tax.

See the discretionary trust deeds in the By Lawyers Trusts guide.

Probate fees – VIC

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Probate fees for applications in the Supreme Court of Victoria have increased with effect from 18 November 2024.

Changes under the Supreme Court (Fees) Amendment Regulations 2024 have the effect of dramatically increasing, in many cases, the fees payable to file an application for probate or letters of administration at the Probate Office.

The changes to include:

  • new estate value brackets and corresponding fees;
  • changes to the advertising and small estate fees;
  • a new fee for re-advertising an application; and
  • a new fee for filing an amended originating motion.

The new estate value brackets and corresponding application fees are:

Gross value of estate for commencement of an application for a grant of representation Filing fee
$0 – $249,999.99 NIL
$250,000 – $499,999.99 $514.40
$500,000 – $999,999.99 $1,028.80
$1,000,000 – $1,999,999.99 $2,400.50
$2,000,000 – $2,999,999.99 $4,801.00
$3,000,000 – $4,999,999.99 $7,185.20
$5,000,000 – $6,999,999.99 $12,002.60
$7,000,000 and over $16,803.60

The full list of fees is available on the Supreme Court’s Probate Office fees webpage.

The By Lawyers Estates (VIC) publication has been updated, including the Retainer Instructions and Costs Agreements precedents, on the Probate and Letters of Administration matter plans.

These amendments come hot on the heels of a change to the way applications for probate, letters of administration, and reseal are advertised. See our recent News and Updates post concerning probate advertising for more information.

Probate advertising – VIC

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There is a new procedure for Probate advertising in Victoria from 11 November 2024.

Applications for probate and letters of administration from that date will be advertised via RedCrest-Probate instead of the Probate Online Advertising System (POAS). The intention of the change is to streamline the process and remove the need for information to be entered twice. Practitioners will only need to use one system to search, advertise, and apply for grants of representation in Victoria.

The POAS ceases to operate on 7 November, and no probate advertising will be possible from that date until Monday, 11 November, when the new system commences.

RedCrest-Probate is the Supreme Court’s existing online filing system for all applications for grants and all documents in relation to grants.

The first step in any application is a Notice of Intention to Apply. This is now lodged and advertised via RedCrest-Probate.

All advertisements previously published on POAS remain valid for three years from their date of publication. POAS advertisements will be searchable on RedCrest-Probate once the new system commences.

The Supreme Court (Administration and Probate) Rules 2023 set out the information that must be included in the Notice of Intention to apply. There are different requirements under the rules depending on whether the application is for probate, letters of administration on intestacy, letters of administration with the will attached, or resealing a grant from another jurisdiction.

The By Lawyers Probate (VIC) and Letters of Administration (VIC) will be updated accordingly for the commencement of the new probate advertising procedure.

Costs – All states

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By Lawyers 101 Costs Answers reference manual has been extensively reviewed and enhanced.

This comprehensive reference manual is available in the Reference materials folder on all By Lawyers matters plans. The 101 Costs Answers guide is also as part of the By Lawyers Practice Management publication.

Commentary enhancement

An important new section of commentary has been included dealing with disclosure before settlement in litigation matters. Barrister Philippe Doyle Gray, who we are delighted to welcome to the ranks of our authors, covers in detail the requirement under the Legal Profession Uniform Law for clients to receive advice about the cost implications of settlement. Philippe has also made his helpful Settlement Computer available via a link in the By Lawyers commentaries. This automated spreadsheet assists practitioners with the sometimes complicated calculations required to properly give disclosure before settlement, taking into account the various possibilities for the resolution of a matter.

The new section of commentary has been added to the By Lawyers litigation and injuries guides in those states where the Legal Profession Uniform Law applies, namely New South Wales, Victoria and Western Australia.

New precedents

Two new precedent letters to the client have been added to provide clients with the necessary disclosure before settlement:

  • Letter to client – Costs disclosure before settlement – NSW, VIC and WA;
  • Letter to client – Costs disclosure before settlement – QLD, SA, TAS, ACT and NT.

There is one precedent letter for Legal Profession Uniform Law states and one for the other jurisdictions where costs disclosure before settlement is not mandatory but is nonetheless best practice.

These new letters are available in the If required – Updating costs disclosure and security for costs folder on all By Lawyers matter plans. They are also available on the relevant litigation and injuries matter plans under Going to court.

Costs agreements

By Lawyers extensive suite of costs agreements that comply with the regulatory requirements in each state are currently under review. Keep an eye out for a future News & Updates post when the revised versions are published.

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