ByLawyers News and Updates

Magistrates’ Court – Review

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The By Lawyers Magistrates’ Court Civil (VIC) Publication has been reviewed and updated to ensure that the content is in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a pragmatic approach to practice and procedure, drawing on her considerable litigation experience to provide information that will help lawyers confidently represent their clients.

Some of the enhancements to the By Lawyers Magistrates’ Court Civil (VIC) Publication as a result of this review include:

Expanded commentary on –

  • Limitation periods.
  • Costs disclosure and ensuring costs are fair and reasonable.
  • Calderbank offers.
  • Terms of settlement.
  • Civil Procedure Act obligations.
  • Pre-hearing conference.

New commentary on –

  • Electronic filing.
  • Small claims procedure.
  • Case management.
  • Use of audio-visual evidence.
  • Bringing and defending counterclaims.
  • Appeals to the Supreme Court.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers lawyers appearing for clients in civil matters in the Magistrates’ Court.

County Court – VIC

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The By Lawyers County Court Civil (VIC) Publication has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a pragmatic approach to practice and procedure in the County Court, drawing on her considerable litigation experience to provide information that will help lawyers confidently represent their clients.

Some of the enhancements to the By Lawyers County Court Civil (VIC) Publication as a result of this review include:

Expanded commentary on –

  • Limitation periods.
  • Costs disclosure and ensuring costs are fair and reasonable.
  • Alternative dispute resolution and settlement.
  • Civil Procedure Act obligations.
  • Preparing and filing a defence.

New commentary on –

  • Electronic filing.
  • Calculating time limits.
  • Effectively communicating with the court.
  • Case management procedure including practice notes and directions.
  • Practical tips when briefing counsel.

New precedent

A new precedent Example content – Consent orders – Discontinuance of proceedings has been added to both plaintiff and defendant guides. All of the existing precedents in the guides have also been reviewed to ensure they reflect current law and practice.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers for lawyers appearing for clients in civil matters in the County Court.

Supreme Court – VIC

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The By Lawyers Supreme Court Civil (VIC) Publication has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

Publication review

The extensive review was performed by our author Nawaar Hassan, barrister at Isaacs Chambers. Like all By Lawyers authors, Nawaar takes a practical approach to practice and procedure in the Supreme Court, drawing on her considerable experience to focus on information that will help lawyers confidently represent their clients and successfully run their matters.

Some of the enhancements to the By Lawyers Supreme Court Civil (VIC) Publication as a result of this review include:

  • Expanded commentary on costs disclosure and ensuring costs are fair and reasonable.
  • Rationalised commentary on case management procedure including practice notes and directions.
  • Expanded commentary on Alternative Dispute Resolution and settlement.
  • Practical tips when briefing counsel added.
  • Expansion of commentary on Civil Procedure Act obligations.
  • New commentary on effectively communicating with the court.
  • New commentary on urgent applications.
  • Expanded commentary on service, including service overseas.
  • Expanded commentary on preparing and filing a defence.

New precedent

A new precedent ‘Example content – Consent orders – Discontinuance of proceedings’ has been added to both plaintiff and defendant guides. All of the existing precedents in the guides have also been reviewed to ensure they reflect current law and practice.

We invite subscribers to explore this publication and to consider the wealth of assistance it offers for lawyers appearing for clients in civil matters in the Supreme Court.

Retail premises lease disclosure – VIC

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The By Lawyers To do list precedent has been updated in the By Lawyers Leases (VIC) Guide to include a section on retail premises lease disclosure requirements.

New retail premises leases

At least seven days before a retail premises lease is entered into, a lessee must have been given a disclosure statement and copy of the proposed lease by the lessor. The maximum penalty for failing to comply is 50 penalty units.

Renewal of retail premises leases

On renewal of a retail lease the lessor must provide a disclosure statement to the tenant at least 21 days before the end of the current term of the lease where option to renew applies, or no later than 14 days after the entering into an agreement to renew.

Assignment of retail premises leases

If a lessee assigns a retail shop lease it is relieved from liability to pay money under the lease if it serves upon both the lessor and the assignee a copy of a disclosure statement.

Precedent update

The new section of the To Do list covers the time limits for retail lease disclosure in relation to:

  • new leases;
  • assignment; and
  • renewal of existing leases.

Thanks

This enhancement was the result of user feedback. At By Lawyers, we pride ourselves on the cooperative and collegiate relationship we have with the firms using our commentary and precedents daily. We value the feedback that we receive as it helps us to continually improve our publications.

Contract of sale of land – VIC

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The Law Institute of Victoria has recently released a new version of their contract of sale of land. The By Lawyers Conveyancing Guide has been updated to include references to the current clauses of the 2019 LIV contract.

While no form of contract is prescribed by law any longer, various requirements are prescribed before a contract can be enforced.

The 2019 By Lawyers Contract of Sale of Land also meets these requirements and has a number of advantages over the LIV contract. The sale and purchase commentaries in the By Lawyers Conveyancing Guide include a detailed comparison between the LIV contract and the By Lawyers contract on a clause-by-clause basis, to assist in comparing them.

The By Lawyers Contract of Sale of Land, co-authored by conveyancing guru and By Lawyers author Russell Cocks, provides a vendor’s statement and contract in one document. The By Lawyers  contract is specifically designed for residential conveyancing transactions and seeks to overcome some of the traditional road blocks that arise.

The By Lawyers 2019 Contract of Sale of Land is located in the Contract folder in the Sale of Real Property Guide and is also available to purchase through InfoTrack.

For further information, see the article Seven reasons to use the By Lawyers contract or listen to an informative podcast explaining the features of the By Lawyers contract.

Testamentary capacity

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Testamentary capacity was considered in a recent Victorian Supreme Court case.

The court found In the Matter of the Will and Estate of Joyce Helen Greer, deceased [2019] VSC 592 that the then 95-year-old testator had capacity. Her will in which she made no provision for one of her two adult sons was admitted to probate.

Of importance in the court’s decision was evidence from the lawyer who took the instructions and drew the will. This was not the testator’s usual solicitor. Her long-term solicitor, one of the executors of the will, had referred the testator to another solicitor, a specialist in wills. He had taken comprehensive instructions and made appropriate notes. He also sought a medical report from the testator’s usual doctor.

The evidence of the testator’s doctor impressed the court and it was preferred to evidence from expert medical practitioners led by both parties. The experts gave opinions based on records, but had not seen the testator.

One of the experts noted a ‘…general consensus amongst experts that capacity is task specific and that individuals with cognitive impairment may retain capacity to do many tasks. Even if [the testator] had been suffering from a degree of executive impairment affecting, for example, her ability to regulate her behavior in a social setting, it did not necessarily follow that she lacked testamentary capacity‘. That is an important point for solicitors taking instructions from will makers to bear in mind.

The case includes, at [126] – [133], an analysis of the cases on proof of testamentary capacity. The court noted that ‘The proof required to establish testamentary capacity does not need to eliminate all doubt and a residual ‘doubt’ does not necessarily exclude the existence of testamentary capacity‘.

The statement of Kirby P in Re Griffith (1995) 217 ALR 284, 294 that the freedom of testation includes the freedom to be ‘unfair, unwise or harsh with one’s own property’ was also cited with approval.

This useful case on testamentary capacity has been added to the By Lawyers 101 Succession Answers (NSW) publication. This valuable resource is found in the Reference Materials folder in the Wills, Estates, Family Provision Claims, and Powers of Attorney, Appointment of Enduring Guardian and Advance Care Planning guides.

Precedent update – Conveyancing – VIC

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A precedent update has followed recent user feedback. Significant amendments have been made to the ‘Letter to purchaser after exchange‘ in the Purchase of Real Property Guide.

This useful precedent letter now includes headings and reflects the process of payment of transfer duty where settlement is to occur electronically.

The areas covered, now organised under the new headings, are as follows:

  • GST
  • Investigation of title
  • Transfer duty
  • Insurance
  • Pre-settlement

The ‘Letter to purchaser after exchange when no initial letter done’ has also been amended to reflect these changes.

At By Lawyers we love to receive feedback from our users and they are often the reason that we conduct a precedent update.

Suspicious circumstances – Wills – All states

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Suspicious circumstances surrounding the drafting and execution of a will were considered in a recent NSW Court of Appeal case.

The validity of a will can be challenged by those who have standing. These include the people who are affected by it or a previous will. They may suspect the testator lacked the capacity to make the will, or that it was executed under duress, or other suspicious circumstances.

Where a will is executed under apparently suspicious circumstances the onus of proving that nothing untoward occurred is borne by the person propounding the will. Probate will not be granted unless the propounder allays those suspicions.

In Mekhail v Hana; Mekhail v Hana [2019] NSWCA 197 at [147] the Court of Appeal considered the onus had not been discharged, despite the primary judge having granted probate of the will.

The suspicious circumstances in that case included the instructions for the will and a power of attorney having not come from the testator/principal, an unexplained variation of the instructions, the description of the executor/beneficiary as the testator’s ‘daughter’ when they were in fact unrelated, the unwarranted urgency and the subsequent transfer of the testator/principal’s residential property to the attorney for nominal consideration. The case was also complicated by the attending solicitor’s decision to destroy an original file note and create a more detailed version some months later, after having also acted for the attorney regarding the transfer of the property.

The mechanical treatment of the suspicious circumstances doctrine by the first instance judge in this case led the Court of Appeal to suggest ‘a preferred approach’ at [164]-[173], although the court observed that the limits of the doctrine ‘can scarcely be regarded as settled’.

Practitioners should take care to observe and inquire about any apparently suspicious circumstances surrounding the instructions for and the execution of wills and other personal documents. Properly identifying the client is a basic precaution, but enquiring about relationships and motivations may also be warranted. Confirming instructions with the client in the absence of those who might benefit from the documents is also prudent. Clear, accurate, detailed and contemporaneous file notes are always advisable.

This interesting case has been added to the By Lawyers 101 Succession Answers (NSW) publication.

Condition and finding – All states

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A new precedent with example content has been added to all By Lawyers Estates guides. The example content is for an affidavit regarding the condition and finding of a will.

Such an affidavit may be required to satisfy the court as to any issues surrounding the condition an original will is in, or the circumstances by which it was found. This affidavit may be lodged either with an application or in response to a requisition when applying for a grant of probate, or a grant of letters with the will annexed.

This new precedent provides extensive example wording addressing the issues of the will’s condition and finding. The content encompasses evidence to be given by an employee of the firm, the executor, a subscribing witness, or another person who has knowledge of how, for example, marks upon the will are not an indication of revocation.

As with all By Lawyers ‘example content’ precedents, the relevant form can be found immediately above the new precedent on the matter plan. The example content can be modified as required and pasted into the appropriate place in the form.

Conveyancing – supplier notification – All states

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Supplier notification obligations for GST withholding

By Lawyers frequently receive questions from subscribers about supplier notification and GST withholding obligations for residential conveyancing. Commentary on GST withholding requirements for residential properties can be found in all By Lawyers Sale and Purchase Guides.

A vendor/supplier will have a notification obligation if supplying, by way of sale or long-term lease, either existing or new residential premises or potential residential land where the purchaser is not a registered entity acquiring the land for a creditable purpose. There is no requirement that the supply be a taxable supply.

Where a notification obligation exists, the vendor/supplier is required to provide the purchaser with a written notice, called a Supplier notification, containing information to help the purchaser comply with their GST withholding obligations.

The notice must state whether or not the purchaser has a withholding obligation. If the purchaser does not have a withholding obligation, the notice must make it clear that ‘no withholding is required‘.

If the purchaser does have a withholding obligation then the notice must include additional information. The requirements are set out in Schedule 1 of the Taxation Administration Act 1953 – section 14-255.

The By Lawyers Contract for the sale of land includes a clause satisfying supplier notification obligations.

A Supplier notification precedent is available in all By Lawyers Conveyancing – Sale matter plans, in ‘The contract’ folder.

 

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