ByLawyers News and Updates

Leases – New precedent – Deed of amendment – unregistered lease

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As a result of some helpful feedback from one of our subscribers in Queensland, By Lawyers has added a new precedent ‘Deed of amendment – Unregistered lease’ to all our Act for Lessor matter plans across the country. This deed can be used to record an agreed amendment to an unregistered lease. It includes the following key provisions:

  • Variation details – to be set out in either the operative provisions or in a schedule to the deed;
  • A clause to extend any guarantor covenants in the original lease to the amendments;
  • A clause confirming the terms of the original lease as amended.

At By Lawyers we value feedback from our subscribers and often enhance our publications as a result.

This new Deed is the latest addition to our library of over 6,500 precedents…and counting!

Trusts – New precedent – Deed of termination

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Following a subscriber request, we have added a new precedent to our Unit Trusts Guide, being a Deed of termination of trust.

There are many reasons a client may wish to terminate or dissolve a trust prior to the vesting date. There are also several methods of bringing a trust to an early end including:

  • complete distribution of the trust property by the trustee;
  • revocation by the settlor or trustee;
  • the beneficiaries or unit holders consent to end the trust; and
  • a Court ordered termination of trust.

When brining a trust to an end there are many important issues for the trustee to consider including:

  • the procedures prescribed by the original trust deed;
  • all possible creditors; and
  • all possible taxation consequences – particularly CGT arising from the sale of any trust assets or in specie distributions.

The need for a deed confirming the termination of the trust was suggested by one of our subscribers. Having considered the issue, By Lawyers have created a simple new precedent Deed poll, terminating the trust. This will allow practitioners to ensure that when their trustee clients terminate a trust it is evidenced and supported by proper documentation.

At By Lawyers we are always grateful for any feedback on our precedents and will happily accommodate subscriber requests for new documents where appropriate.

 

 

SMSFs – New precedents – Retainer instructions

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We have published two new Retainer Instructions precedents in our Self Managed Superannuation Funds Guide.

The Retainer Instructions – Self managed superannuation fund is designed to assist practitioners when taking instructions from clients who are establishing a new fund. It covers all of the essential information required for the superannuation trust deed, including trustee and member details.

The Retainer Instructions – Existing self managed superannuation fund is designed to be used when a client wishes to make changes to an existing self managed superannuation fund that has already been established. It can be used to record instructions for a variety of situations including:

  • changing the fund trustee;
  • amending the rules of the fund;
  • making a new death benefit nomination or reversionary pension nomination; and
  • establishing a limited recourse borrowing arrangement.

Retainer instructions, which appear in “Getting the matter underway’ on all By Lawyers matter plans, are not only a useful precedent for file opening and matter management, they are a critical risk-management tool ensuring that all necessary information is obtained from the client and recorded.

New podcast – Domestic Violence update

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An update on the national enforcement scheme and domestic violence leave

The last week of July marked White Ribbon Night, an important date for raising awareness of the issues faced by victims of domestic violence.

Join LEAP’s National Marketing Manager, Claire James and By Lawyers Senior Consultant and Editor Brad Watts for a discussion on domestic violence laws across Australia.

The podcast discusses the National Recognition Scheme for Domestic Violence Orders and the new entitlement to domestic violence leave under Modern Awards.

Recent updates to the By Lawyers Domestic Violence and Employment Law Guides are highlighted.

White Ribbon Australia is an organisation that promotes the prevention of violence against women in Australia by engaging men to make women’s safety a man’s issue too.

 

New publication – Traffic Offences – Magistrates Court WA

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We are very pleased to announce the release of another comprehensive step-by-step guide for Western Australian practitioners, being Traffic Offences WA.

This publication covers all aspects of practice and procedure when acting for the defendant in proceedings involving traffic offences in the Magistrates Court.

The guide assists practitioners with all aspects of representing clients in traffic matters, from providing advice in relation to infringement notices, to going to court.  The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.

Key content includes:

  • Law and procedure relating to licence offences and alcohol & drug offences with an appendix for each category summarising the fine and any disqualification period or gaol term for most common offences. Retainer instructions are included on the matter plan.
  • Extensive library of initial letters to client for all BAC and drug driving offences explaining in simple terms the offence, the fine amount and any likely disqualification period or gaol term.
  • Practical guidance in preparing for court, with detailed commentary on analysing the charge and conducting plea negotiations. An instruction sheet for guilty pleas is also included on the matter plan.
  • Rehabilitation and specific program options are discussed, including the alcohol interlock scheme.
  • Client mental health considerations, with a letter of instruction to a psychiatrist or psychologist.
  • Example written submissions on sentence.
  • Information on appeal rights and time limits.

This guide is an invaluable resource for all practitioners who conduct traffic offence matters in the Magistrates Court, including those with limited experience in this area, or those supervising younger lawyers.

Conveyancing – GST withholding – Letter to client

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GST withholding obligations for purchasers of new residential properties and some vacant land commenced on 1 July 2018.

The commentaries in all By Lawyers Conveyancing Guides – Sale and Purchase, for each state, have previously been amended to deal with the new GST withholding requirements. See the commentaries for details of when the new provisions apply.

Now included in the precedents for both Sale and Purchase is a new ‘Letter to client regarding GST withholding payment’ which explains to clients the new requirements and outlines for them the procedures involved in complying, whether they are a vendor or a purchaser.

This helpful precedent allows you to quickly and correctly advise the client on this important new development in conveyancing procedure, where applicable.

 

Formatting of By Lawyers deeds and agreements

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Over the next month or so you will notice a minor change to the formatting of the By Lawyers precedent deeds and agreements.

By Lawyers has received and responded to feedback that the line under headings in deeds and agreements can be troublesome when users are customising precedents. The line under headings is currently a ‘top border’ applied to the 1st paragraph of the clause. We are swapping that line to a ‘bottom boarder’ of the heading paragraph, which is a more intuitive – and hopefully a less troublesome – place for the line formatting to be applied.

We all know formatting can be tricky. If you are having trouble please see our Tips and tricks for working with By Lawyers precedents, found in every publication, at the end of folder A. ‘Getting the matter underway’ on the matter plan. If you are still stuck – don’t hesitate to call or email us; our team is here to help you!

 

Wills and powers of attorney – Costing & Storage

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Costing wills and powers can be difficult. It is often not clear at the outset the extent of work which will be required. While many wills are ‘simple’, the complexity of a client’s financial position or their family arrangements can mean hours of time spent taking and confirming instructions and sometimes reviewing documents such as their self managed superannuation fund deed, or a family trust deed. The intended uses for a power of attorney are many and varied and may involve detailed advice. Any issues of capacity may also add significant time and expense.

Is a flat fee for a ‘simple’ will or a ‘standard’ power appropriate, or should an hourly rate apply?

Are there any scale costs that can be used as a guide? What costs disclosures must be made to the client?

What arrangements should be made for the storage of original wills?

How should copies of documents be managed?

These practical questions are dealt with in new sections of commentary on Costs and Storage in our NSW, Vic, Qld, SA, ACT, Tas and WA wills and powers publications.

All of these publications include the By Lawyers wills and powers Costs Agreements and example invoices, which meet costs disclosure requirements and include disbursements, billing and payment arrangements, client rights notice and solicitor’s lien provisions, among others.

Superannuation and downsizing

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The By Lawyers Self Managed Superannuation Guide has been updated to provide greater detail about contributions to superannuation as a result of residential downsizing.

From 1 July 2018, superannuation fund members aged 65 and over who downsize by selling their principal place of residence are able to contribute up to $300,000 from the proceeds of sale into their superannuation fund as a non-concessional contribution. Both members of a couple can take advantage of the concession for the same family home, allowing up to $600,000 per couple to be paid into superannuation from the sale proceeds of the family home.

Downsizing contributions are exempt from inclusion in the $1.6 million total superannuation balance cap. Instead, the contribution is included when the total superannuation balance is recalculated at the start of the new financial year.

This measure is available to superannuation fund members who have held their principal place of residence for 10 years or more, for contracts that are exchanged after 1 July 2018. The contribution must be made to the fund within 90 days of settlement of the sale.

Importantly, despite the term ‘downsizing’, there is in fact no requirement to purchase another home.

For more information about superannuation contributions, see the By Lawyers Self Managed Superannuation Funds Guide.

Client Details and Verification of Identity certificate

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We have added a new Client Details and VOI precedent to every one of our publications. This handy document is designed to be used at the first point of contact with a client.

The front page is for the client’s general contact information and identification. The second page includes the formal Verification of Identity Certificate.

The Client Details page can be completed by the client while they are waiting to meet with the solicitor, saving time for the client and the practitioner in the process.

Having the Client Details and VOI as a separate document leaves the Retainer Instructions for collecting the matter-specific information.

We have placed the new precedent immediately before the Retainer Instructions on each matter plan.

We think this will simplify and improve the client engagement process. We would love to hear any feedback from firms as they use the new document.

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