ByLawyers News and Updates

Subpoenas – Legitimate forensic purpose – VIC

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Subpoenas and the considerations for setting them aside were considered recently in Walters v Perton [2019] VSC 356.

The court in its probate jurisdiction, was considering an application to set aside two subpoenas under r 42.04 Supreme Court (General Civil Procedure) Rules 2015, which provides that a court may set aside all or part of a subpoena which is an abuse of process. The applicant submitted that there was no legitimate forensic purpose for the subpoenas.

At [30] the court succinctly stated the principles which govern an application to set aside subpoenas in civil cases, with reference to the leading authorities on legitimate forensic purpose. This is a useful statement of the principles and summary of the cases. At [30] the court noted:

(a) the subpoena process under Order 42 should not be used as a substitute for discovery or non-party discovery;

(b) it is necessary for the party at whose request the subpoena was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;

(c) except in cases where the subpoena is plainly too broad and merits the description of a fishing expedition, the judge should normally inspect the documents for the purpose of making a final decision as to whether a legitimate forensic purpose exists;

(d) however, the Court will not require production of subpoenaed documents, and will not permit access to subpoenaed documents, if the subpoena is expressed so broadly that the applicant cannot demonstrate, having identified a forensic purpose, that it is ‘on the cards’ or that there is a ‘reasonable possibility’ that the documents will materially assist the case of the party.

(e) the subpoena must sufficiently describe the documents to be produced so as to not require the recipient to make a judgment about the documents being sought and must not be oppressive or fishing (a ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted);

(f) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her case. The test of relevance, however, may be a general one, particularly where the Court has only a general idea of the nature of the evidence which may be led as relevant to an issue or as to credit of an expected witness;

(g) A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in paragraph (c) must be satisfied; and

(h) Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.

The court also commented on legitimate forensic purpose in probate proceedings specifically. The court noted that legitimate forensic purpose in probate proceedings may be informed by the court’s inquisitorial role which requires a greater supervision and control of proceedings than adversarial common law proceedings.

This case has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

National Mortgage Form – All states

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New content added

New content on the National Mortgage Form has been added to the Mortgages Guides in each state.

The National Mortgage Form is an Australia-wide initiative. It standardises the content and presentation of mortgages lodged for registration via all lodgement channels with land registries in the various participating Australian states and territories.

Mortgagees and property practitioners across all participating jurisdictions must adopt the National Mortgage Form. The previous previous mortgage forms used in each Land Registry will no longer be accepted.

The National Mortgage Form allows for incorporation of any registered common provisions, or other registered dealings.

For further information, user guide and link to the current webform version of the National Mortgage Form, see the ARNECC website.

Compatibility with PEXA and Sympli

The Mortgage is created and registered within PEXA. For further information, see the PEXA Community user guides ‘How to create and register a mortgage in PEXA’ and ‘How to create and register a second mortgage in PEXA’. These are available on all By Lawyers Mortgages matter plans.

It is expected that the new Electronic Lodgement network Operator, Sympli, will have corresponding capability when it commences later this year. Details on Sympli will be added to by Lawyers guides as soon as Sympli becomes operational.

Transition to E-conveyancing – All states

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The By Lawyers commentary ‘A brief explanation to the transition to E-conveyancing‘ has been updated.

This very practical and topical commentary is available in all By Lawyers Conveyancing & Property Guides, including Sale, Purchase, Mortgages and Leases.  It helps all practitioners to get up to speed on the ever-accelerating transition to E-conveyancing.

The recent updates cover:

Important new industry mandated time frames

NSW – From 1 July 2019, mainstream property dealings including transfers, mortgages and discharges of mortgage, caveats, withdrawals of caveat and transmission applications must be lodged electronically.

VIC – Land Use Victoria has mandated that complex land transfer transactions must be lodged and managed online from 1 August 2019, bringing almost all transactions online. Duties Online enhancements are scheduled to take effect from 17 June 2019.

Details of the new Electronic Lodgement Network Operator, Sympli

The second ELNO, Sympli is coming soon to join PEXA in the e-settlement space. Sympli promises an intuitive and user-friendly platform.

Information regarding the new settlement agent network, SettleIT.

SettleIT, an InfoTrack initiative, is a shared network of specialist settlement agents that handle e-settlement processing on behalf of property practitioners. With one click, a SettleIT agent
can be booked to provide a personalised, fixed-price service to take a conveyancing matter through to settlement.

Keep up to date with By Lawyers

By Lawyers Conveyancing guides provide all the information required to conduct conveyancing, including electronic property transactions, confidently and efficiently.

New criminal precedents- All states

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By Lawyers have added over 50 new criminal precedents to the matter plans in our Criminal guides for all jurisdictions. These practical and helpful new precedents will save practitioners time and make matter management easier.

The new criminal precedents cover many of the tasks required when acting for a defendant in criminal proceedings, from arrest, attendance at the police station and bail, to court attendance, sentencing and appeals.

As part of this significant enhancement to our Criminal guides, we have introduced a new type of precedent which is particularly useful for criminal practitioners – Attendance notes.  Attendance note precedents are pre-drafted, detailed file notes which both record work usually performed on a matter and act as a reminder of the necessary components of various common tasks.

An extensive selection of new precedent letters have also been added to the appropriate folders in the Criminal matter plans. These letters are designed to assist practitioners:

  • arrange bail for their clients;
  • seek disclosure from the prosecution;
  • gather evidence from the client and their witnesses;
  • arrange for witnesses to attend court;
  • advise clients on their plea; and
  • inform clients of sentencing outcomes.

By Lawyers are always working to improve and expand our content. These new precedents increase the value of our criminal guides for practitioners who advise and represent clients in criminal matters in all states of Australia.

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Water usage rights – VIC

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

The new content covers the right to use water and the right to participate in water share schemes in Victoria, which is governed by the Water Act 1989.

Information in relation to water use licences and water shares can be found on the DELPW Water and Catchments page. Ownership of water shares is recorded on the Water Share Register.

Note that the Registrar of Titles is also the Registrar of Water Shares.

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

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

Library of initial letters – Traffic Offences – VIC

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By Lawyers Victorian Traffic Offences guide has been expanded with the addition of 13 new initial letters to the client. These helpful precedents make initial client communication easier for solicitors advising clients in traffic matters.

The new letters contain details of the applicable penalties for some of the most common traffic offences. They enable practitioners to quickly and accurately advise clients on the available sentencing options for their offence immediately after the first conference and in advance of the first court attendance.

These new precedents are conveniently located within a folder called Library of initial letters to client in Folder A. Getting the matter underway.

The new letters cover drink and drug driving offences including all Blood Alcohol Content offences, driving while impaired and failing a roadside test. There are separate letters for both permit and full licence holders.

Because each letter has been drafted to correspond to a particular drink or drug driving offence and provides all details of the applicable penalty, they help practitioners prepare the client for court faster by eliminating the need to research the specific penalties which apply for a driving offence every time. The letters set out any applicable term of imprisonment, the number of penalty units for any fine, the licence suspension or disqualification period, the Interlock order requirements, the Behaviour Change Program requirements and other licence conditions.

To see the library of new initial letters just Click on the Guides and Precedents button from criminal or traffic matter  in LEAP, or select the Victorian Traffic Offences Guide on the By Lawyers website.

Complex transactions – Conveyancing – VIC

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Land Use Victoria has mandated that complex transactions for land transfers, currently managed via paper settlement, must be lodged and managed online from 1 August 2019. To meet this requirement, enhancements are being made to Duties Online. These enhancements are scheduled to take effect from 17 June 2019.

This new mandatory requirement applies to solicitors and licensed conveyancers acting for a party or for themselves, as well as PEXA subscribers. Examples include a case comprising withdrawal of a caveat, discharge of a mortgage and transfer and mortgage.

This move to require complex transactions to be managed exclusively via electronic conveyancing means:

  • The Digital Duties Form is mandatory for all transactions.
  • Duties Online (DOL) transaction types listed on the SRO website must be processed electronically using an electronic lodgement network operator.

As a result of this requirement, almost 100 per cent of transactions will now be managed online.

For further information, see the SRO Duties Online page.

See the By Lawyers Conveyancing & Property (VIC) publications for further information about electronic conveyancing and duties requirements.

Nomination and the Australian Consumer Law

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By Russell Cocks, Solicitor

First published in the Law Institute Journal
Is the Australian Consumer Law (ACL) relevant to the contractual right to nominate?

This column has considered the purchaser’s right to nominate an additional or substitute transferee on a number of occasions in the past and has also considered the impact of the ACL on residential conveyancing, which is essentially a consumer transaction. This month’s column specifically considers the application of the ACL to the purchaser’s right to nominate.

Nomination

Conventionally, contracts for the sale of land in Victoria include a condition giving the purchaser the right to nominate. General Condition 18 of the Law Institute contract expresses that right in very general terms, without limitation in relation to the form of nomination or time for nomination. Parties are free to negotiate the terms of their agreement and so the parties may, by Special Condition, ‘agree’ to a more limited right to nominate, including limitations as to the nominee, time for nomination and form of nomination.

A nomination by the purchaser creates a second contract, between the purchaser and nominee, but this is NOT a contract for the sale of land, rather it is an assignment of the purchaser’s rights under the contract of sale of land to the nominee. Traditionally, this is a doc-lite contract in that the rights and obligations of the parties are succinctly recorded with no written agreement as to what is to happen if either party does not wish to proceed with the nomination. It is essentially an assignment of the purchaser’s rights to the nominee, a legal relationship recognised by s.134 Property Law Act. Consideration for this contract may be found in the release of the purchaser from obligations under the contract of sale of land and the assumption by the nominee of rights under that contract. Importantly, the vendor is NOT a party to such a nomination or assignment and the vendor remains entitled to enforce the contract against the named purchaser. The nomination acts as the purchaser’s authority to the vendor to transfer the property to the nominee in fulfillment of the vendor’s duties under the contract.

The contractual right to nominate is an important ‘escape hatch’ for a purchaser who finds that, due to changed circumstances, the purchaser is not able to complete the contract. This is particularly so in an off-the-plan environment where the contract contemplates an extended contract period during which time the purchaser is exposed to changing circumstances.

Australian Consumer Law

The ACL is designed to protect consumers. A purchaser in a residential contract of sale of land is a consumer for this purpose.

Section 20 proscribes “unconscionable conduct” which is an equitable concept developed by the Courts in cases commencing with Amadio in 1983 and which continues to develop to changing circumstances. Conduct will be unconscionable if one party to a contract is at a “special disadvantage” and the other party “takes advantage” of that situation. Some purchaser in residential contracts may satisfy this test but inequality of bargaining power alone may not be sufficient to establish unconscionable conduct.

Section 23 proscribes “unfair contract terms” in standard form consumer contracts. Factors to be considered in determining whether terms are unfair are:

  • inequality of bargaining power;
  • whether the contract is prepared in anticipation of the transaction, rather than in response to the transaction; and
  • whether the other party had a real ability to negotiate the terms.

Contracts for the sale of land are created as “standard form contracts”. Certainly, the parties are free to negotiate amendment to the terms of such contracts but, in practice, this does not happen. The vendor or vendor’s agent presents the standard form contract to the consumer and it is signed, without negotiation. Various factors: such as trust, lack of knowledge and unequal bargaining power contribute to this outcome but the result is a standard form contract in the vast majority of cases. The removal of the right to nominate, or the imposition of onerous conditions in relation to nomination, are likely to be unfair terms in these circumstances and liable to be unenforceable against the purchaser.

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

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Case law update – mortgages – inaccurate certification by ELNO subscriber

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

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

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

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

Wills commentary – VIC

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The By Lawyers Wills commentary in our Victorian Wills publication  has been updated with the following recent cases:

The discussion of costs in the commentary has also been updated in line with The Practitioner Remuneration Order, revised as at 1 January 2019.

The Land Tax section in the commentary has also been updated with regard to:-

  • Administration may be deemed by SRO to have been completed in many circumstances even where the land has not been distributed/transferred to beneficiaries – LTX Trust Form 18 Deceased estate – which relates to both commencement and completion of administration
  • All transferees of residential property in Victoria must complete a Digital Duties Online form purchaser statement.

We are grateful for the assistance of Roz Curnow, our learned Victorian Wills & Estates author, with these commentary updates.

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