ByLawyers News and Updates

Improving written submissions – All states

by

A new article ‘Improving Written Submissions’ by Judge Alan Troy of the District Court of Western Australia has been added to the Reference Materials folder on the matter plan in all By Lawyers Litigation guides.

His Honour’s article, first published in Brief, the Journal of the Law Society of Western Australia, is full of valuable tips for improving written submissions. It will greatly assist practitioners when they are preparing submissions for all types of matters, in all courts.

The article emphasises the need to use clear and plain English, to be brief and succinct, to persuade the court via credible legal argument and to logically structure the submissions. His Honour recommends stating the main point of the argument at the outset and introducing each topic with a brief summary of the real substance of the issue to which it relates.

Drawing on his substantial experience both as an advocate and on the bench, Judge Troy gives specific and very practical guidance on how practitioners can best construct written submissions with these tenets in mind. His Honour’s tips include the use of a chronology, ways to structure both the text and the arguments and the importance of ruthless final editing.

By Lawyers are very pleased to make this helpful article available to our subscribers across Australia.

Privacy Act notifications – FED

by

Two helpful new precedents have been added to the By Lawyers Practice Management guide to assist law firms required to make Privacy Act notifications to the Office of the Australian Information Commissioner.

The Office of the Australian Information Commissioner has indicated that it considers law firms are subject to the mandatory disclosure provisions.

Privacy Act notifications are required where data breaches are likely to result in ‘serious harm’ to clients. These must be promptly reported to the OAIC and to the affected clients.

Notification is mandatory if the firm is aware of reasonable grounds to believe an eligible data breach has occurred. Firms becoming aware of a breach must make a rapid assessment, remediate if possible, then notify if required, without delay.

There is no specified form of notification to the affected individuals. A precedent is now provided on the matter plan – see Letter to client re Privacy Act data breach notification.

Notification to the Office of the Australian Information Commissioner should be done via the online Notifiable Data Breach form on the OAIC’s website, also linked to from the matter plan. However, sometimes the very data breach which requires the notification to be made can also make reporting online impossible. To assist in such circumstances, a precedent letter is now provided on the matter plan where the online form cannot be accessed – see Letter to OAIC re Privacy Act data breach notification.

National Mortgage Form – All states

by

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

by

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

by

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.

new_criminal_precedents

 

 

 

 

 

Restraining orders – New publication – WA

by

By Lawyers are delighted to announce the release of our newest publication, Restraining orders in Western Australia.

Our new guide covers all types of restraining orders available under the Restraining Orders Act 1997 including:

  • family violence restraining orders (FVRO);
  • violence restraining orders (VRO) – when an act of abuse has been, or is feared will be, committed; or
  • misconduct restraining orders (MRO) – when a person behaves in an intimidating or offensive manner, which may lead to a breach of the peace or damage to property.

With detailed commentary and precedents, the new publication provides everything a practitioner will need to represent either a respondent or a person seeking to be protected in proceedings for restraining orders in the Magistrate’s Court or Children’s Court.

The commentary sets out important factors which influence an application, including the presence of a family relationship and other important eligibility criteria, the service and duration of orders as well as the types of restraints that a magistrate may place on the person bound.

The commentary also provides valuable guidance on how to negotiate restraining orders at court, as well as other valuable strategies such as a conduct order on a without admissions basis and the use of undertakings. Appeals and costs orders are also covered.

The commentary also assists with advising a client that is bound by a restraining order on the offences and penalties which may apply.

Other issues discussed in the commentary include:

  • interim orders;
  • telephone applications;
  • the role of police and welfare officers in making a restraining order applications;
  • restraining orders in bail applications and family law proceedings;
  • interstate applications and the National Domestic Violence Orders Scheme.

Key precedents include:

  •  The application forms as well as example content precedents to use for the application;
  • Undertakings; and
  • Instructions to oppose or consent to an order.

By Lawyers is always working to increase our content for subscribers. Our new guide for WA Restraining orders is available in the WA Criminal guide from a LEAP matter via the Guides & Precedents tab, or on the By Lawyers website.

 

 

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

by

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.

By Lawyers UK!

by

By Lawyers is very proud to announce the successful launch of our Legal Guides and Precedents in the United Kingdom.

Practitioners in England and Wales are now able to access 20 comprehensive legal practice guides written by lawyers, for lawyers:

  • Practice management
  • Sale of land
  • Purchase of land
  • Mortgages
  • Commercial leases
  • Residential leases
  • Sale of business & franchise
  • Purchase of business & franchise
  • Partnerships
  • Joint ventures
  • Criminal law
  • Divorce
  • Financial settlement
  • Private children proceedings
  • Nuptial agreements
  • Domestic violence
  • Conducting a matter generally
  • Estates
  • Wills
  • Powers of attorney and advance decisions

The guides each include a detailed matter plan, practical commentary and over 1200 integrated precedents.

By Lawyers is excited to be taking our highly regarded Australian product to the world. We also wish to assure our Australian clients that it will be very much business as usual at home for our Australian editorial and publishing teams. Our Australian team will continue to ensure that our Australian publications expand and improve – and remain always up to date, of course.

For more information on By Lawyers in England and Wales visit bylawyers.co.uk
By Lawyers UK launch

By Lawyers UK launch 2 April 2019. From left: John Espley, Angus Dawson, Christina Grzasko, Bobbi Young, Craig Delaney, Julie Hulyer, Guy Dawson, Danni Larney, Maria Parker and Claudia Francois.

Costs disclosure – Increase of legal rates during a matter

by

Increase of legal rates during a matter

All By Lawyers Costs Agreements and Client Service Agreements have been updated to include a clause notifying a client that legal rates may increase during the course of a matter requiring a revision of the costs estimate provided. This clause provides for 30 days written notice of any proposed changes to legal rates. While such a clause is not required by Legal Profession legislation concerning costs disclosure requirements, providing such notice on initial costs disclosure is considered best practice.

All of our Guides contain Costs Agreements (Client Service Agreements for QLD Guides) within the folder ‘A. Getting the mater underway’. All of our agreements are compliant with the relevant Legal Profession legislation and are reviewed and updated regularly to ensure compliance.

Leases – Exercising option to renew

by

Leases – Exercising option to renew

The commentary within all By Lawyers Leases Publications and 1001 Conveyancing Answers Reference manuals have been updated to include reference to the New South Wales Supreme Court decision in Kegran Pty Ltd v Warrik Pty Ltd [2018] NSWSC 1357.

The court ordered the specific performance of an option to renew, after the lessor challenged the exercise of the option on the basis that the notice was not properly served by the lessee.

Notice of renewal was given by the lessee to the lessor by way of email, although the option to renew clause in the lease did not identify email as a valid method of service.

The court held that the language of the notice provisions was ‘facultative and not mandatory’, and that the lessee has validly exercised the option to renew by the email. The court stated that the notice provisions were not to be strictly applied to the exclusion of all other methods of service.

The decision in this case highlights that whether a lessee has validly exercised an option for renewal can depend on the interpretation of the terms of the lease when read as a whole.

Connect with us