ByLawyers News and Updates

Foreign surcharge – NSW

by

Foreign surcharge applies to land tax and purchaser duty on any residential land in New South Wales owned by foreign persons. A foreign person is defined in the Foreign Acquisitions and Takeovers Act 1975 of the Commonwealth, as modified by s 104J of the Duties Act 1997 (NSW).

The requirement to pay the foreign surcharge is subject to exceptions for the citizens of some countries. This arises due to New South Wales’ obligations under the foreign surcharge provisions within certain international tax treaties.

On 21 February 2023, Revenue NSW announced that citizens of New Zealand, Finland, Germany, and South Africa were no longer required to pay surcharge purchaser duty or surcharge land tax.

On 29 May 2023, Revenue NSW added India, Japan, Norway, and Switzerland as countries whose citizens are exempt from paying surcharge purchaser duty and surcharge land tax.

The exemption applies only to residential property in New South Wales, and only to natural persons. If a trust relationship exists, or a partnership or corporate entity is involved, the exemption may still apply but is not automatic.

There is a refund period for purchasers and landowners from the eight exempt nations who have already paid the surcharge purchaser duty or surcharge land tax. Transactions on or after 1 January 2021 are eligible for a refund, extending the previous refund period by six months from 1 July 2021.

The Purchase of Real Property (NSW), Sale of Real Property (NSW), and 1001 Conveyancing Answers (NSW) guides, which contain detailed commentary on surcharge purchaser duty and surcharge land tax regimes, have been updated accordingly.

Motor accident claims portal – NSW

by

The Personal Injury Commission has introduced an online motor accident claims portal for electronic lodgement and document management.

The Commission’s Pathway portal went live on 20 June. All new matters are now lodged using the new portal and existing matters have been migrated.

Division 4.3 of the Personal Injury Commission Rules 2021 deals with lodgement of documents into the Commission’s Electronic Case Management (ECM) system, now called Pathway.

See the Commission website for information on how to access Pathway. Practitioners must register and obtain login access.

The new motor accident claims portal is intended to allow for the creation and management of documents and related information in a matter. The parties and the Commission can also communicate through the platform.

The Commission’s website provides extensive information for practitioners, including a detailed online course that steps practitioners through how to:

  • Lodge an application in Pathway Portal
  • Complete a reply request
  • View a reply
  • Send and receive messages
  • View allocation details
  • View outcome documents

The By Lawyers Motor Vehicle Accident – From 1 Dec 2017 guide has been updated accordingly.

Trade Marks – FED

by

The By Lawyers Trade Marks publication has been reviewed.

Helpful new headings on the matter plan include:

  • Pre-application searches; and
  • Use, assignment, licensing, and enforcement.

Commentary amendments include:

  • A simplified Overview section, focusing on the importance of registration;
  • Updated hyperlinks to legislation and useful online government resources;
  • New and enhanced coverage of the pre-application procedure available through IP Australia, including Headstart applications;
  • New and enhanced coverage of availability searches, including TM Tracker and international searching via the World Intellectual Property Organisation;
  • More detailed commentary on filing the application, considering examination reports, and dealing with opposition;
  • Enhanced commentary on amending or withdrawing an application, and cancelling a registration; and
  • Enhanced coverage of international applications for both Madrid Protocol and Non-Madrid Protocol countries.

New and enhanced precedents on the matter plan include:

  • To do list;
  • Letter to client with search results and advice;
  • Letter to client advising application lodged;
  • Letter to client advising application accepted for publication;
  • Letter to client advising notice of early acceptance;
  • Letter to client advising problems with application;
  • Final letter to client advising trade mark registered; and
  • Final letter to client advising trade mark not registered.

This review by our authors has focused on the application process. Further review of the commentary on enforcement of trade marks, and intellectual property rights generally, is ongoing.

Intervention orders – VIC

by

Appeals against intervention orders made by magistrates are no longer considered de novo hearings, following a recent Supreme Court case.

Previously, appeals to the County Court under both the Personal Safety Intervention Orders Act 2010 and the Family Violence Protection Act 2008 were conducted as hearings de novo.  That is, the County Court conducted the trial of the application for an intervention order afresh and gave a decision based on the evidence before it. This meant the parties had to give their evidence and be cross-examined again.

In AAA v County Court of Victoria [2023] VSC 13 the Supreme Court held that an appeal to the County Court against an intervention order, or a refusal to make an order, is not an appeal de novo. It is a broad appeal by rehearing that allows for new evidence. It is not a hearing in which the applicant begins again with the magistrate’s decision being disregarded. The parties may adduce new evidence on appeal, but are not required to.  The County Court determines the appeal based on both the evidence at first instance and any new evidence before it.  The court’s task on appeal is to identify factual, legal, or discretionary error in light of all of the evidence before the court, including any new evidence.

Whilst the focus is on the identification of error, the error may be a factual one. As the County Court reconsiders the application, the error may be that the magistrate made erroneous findings of fact on the evidence available, or reached an erroneous conclusion on the ultimate question of whether the statutory criteria for making the order are satisfied.  Further, as the County Court determines the appeal at the time of the appeal, and new evidence may be adduced, it is not necessary to establish that the magistrate made an error based on the evidence before them at the time. It is open to the County Court to find error even if, had it been limited to the evidence before the magistrate, it would have reached the same conclusion as the magistrate.

The decision suggests that the conduct of final hearings in intervention order matters in the Magistrates’ Court will now be open to close examination and scrutiny on appeal.

The commentary in the By Lawyers Intervention Order (VIC) guide has been updated accordingly.

Supreme Court – QLD

by

From 1 May 2023 Practice Direction 9 of 2023 Caseflow Management – Civil Jurisdiction governs caseflow management in civil proceedings in the Supreme Court.

The new Practice Direction is to be read with Practice Direction 11 of 2023 Consent Orders of the Registrar.

Practice Direction 18 of 2018 Efficient Conduct of Civil Litigation also applies under the new practice direction.

These practice directions are all intended to facilitate compliance with the overriding obligations under r 5 of the Uniform Civil Procedure Rules 1999 that the parties and the court resolve the real issues in the proceedings in a procedurally fair, efficient, timely, and cost effective way.

The new practice direction is based on the Supreme Court having the expectation that cases will either be resolved or ready for trial within 180 days of the defence, or the last of multiple defences, being filed. If not, the Supreme Court registry will issue an Intervention Notice to which the plaintiff must respond within 28 days by filing one of the following documents:

  • Notice of Discontinuance; or
  • Notice that the matter has settled; or
  • Request for Trial Date.

If the matter is neither resolved nor ready for trial, the plaintiff must file proposed orders, either by consent or otherwise, and the matter will be listed in the Caseflow Management List where the registrar will make the proposed orders, or refer the matter to a caseflow management conference, or list it before a judge for review.

Failure to comply with the practice direction may result in sanctions including adverse costs orders and immediately listing the proceedings for trial.

When cases are settled, they are placed in the Caseflow Settlement List and remain there until a Notice of Discontinuance is filed, or the court makes an order disposing of the matter.

The commentaries in the By Lawyers Supreme Court Acting for the Plaintiff and Acting for the Defendant guides have been updated accordingly.

Retail Leases – VIC

by

The Retail Leases Regulations 2023 (Vic) came into operation on 15 April 2023. They are made under s 99 of the Retail Leases Act 2003 (Vic) and prescribe certain matters that are required to be prescribed under the Act. They repeal the Retail Leases Regulations 2013 (Vic) and the Retail Leases Amendment Regulations 2022 (Vic).

The provisions of the new regulations largely replicate those of the previous regulations, while:

  • making updated provisions for the monetary amounts of occupancy costs for the purpose of excluding certain retail premises from the disclosure obligations under the Act;
  • prescribing the outgoings payable by a tenant, by reference to a percentage of the rent; and
  • updating the forms for the disclosure statements that must be issued under the Act. Disclosure obligations apply to new leases, renewals of leases, and assignments of leases.

The prescribed forms are now contained in Schedules 1 to 4 of the 2023 regulations.

From 15 April landlords and their agents need to be aware of the changes to the prescribed forms and only issue disclosure statements in the new form for leases that fall under the provisions of the Act.

The By Lawyers Lease (VIC) and 1001 Conveyancing Answers (VIC) publications have been updated accordingly. They include the prescribed forms of disclosure statement for all retail leasing scenarios, as well as commentary about time frames for landlords issuing disclosure statements to tenants, and the consequences of non-compliance.

Employment Law – FED

by

The By Lawyers Employment Law guide has been extensively reviewed, with enhanced content including:

  • A new section on employment disputes, covering employee conduct and performance, unfair dismissal claims, general protections claims, unlawful termination, underpayment of wages, and disputes about contracts and employment status.
  • Expanded coverage of employment relationships, especially casual work and the complicated interplay between the common law position and the casual conversion provisions under the Federal employment legislation.
  • A new section on Paid Parental Leave, following legislative amendments that make payments more accessible, flexible, and gender-neutral for Federal system employees – see our previous News & Updates post for further details.

This review has been conducted in the context of significant and ongoing legislative changes. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 passed Federal parliament in December 2022, making many changes to the Fair Work Act 2009.

These amendments commence in phases over the course of several years and include:

  • Expansion of the objects of the Fair Work Act;
  • Equal pay provisions to address gender inequality;
  • Prohibition of pay secrecy – designed to augment the equal pay provisions;
  • Prohibition of sexual harassment in the workplace, including Stop Sexual Harassment Orders via the Fair Work Commission. These provisions commenced on 6 March 2023 – see our previous News & Updates post;
  • Additional grounds for anti-discrimination in the workplace;
  • Fixed-term contracts are generally no longer permitted;
  • Expanded availability of flexible work arrangements;
  • A new small claims process for unpaid entitlement recovery.

The By Lawyers Employment Law guide and 101 Employment Law Answers will be updated as these relevant provisions commence.

Paid parental leave – FED

by

Recent amendments to the Paid Parental Leave Act 2010 (Cth) make payments more accessible, flexible, and gender-neutral for Federal system employees.

Under the current scheme, either parent and other eligible carers can claim up to a total of 18 weeks of paid parental leave. This increases to 20 weeks from 1 July 2023. Payments can only be claimed in the first two years after the child’s birth or adoption. The scheme is funded by the Commonwealth, so a claim for payments is made to Centrelink, not the employer. The entitlement extends to employees who are full-time, part-time, casual, seasonal, contractors, or self-employed.

The amendments:

  • Enable families to decide which parent will claim first and how they will share the entitlement and are not limited to a small class of claimants. Allowing households to decide how best to care for a child.
  • Provide greater flexibility, with claimants allowed to take the available leave in multiple blocks of as little as a day at a time with no requirement to return to work to be eligible.
  • Impose a new $350,000 family income limit for eligibility, under which families can be assessed if an individual applicant does not meet the individual income test.
  • Expand the eligibility requirements to allow a father or partner to receive paid parental leave, regardless of whether the birth parent meets the income test or residency requirements, or is serving a newly arrived resident’s waiting period.

Payments are at the rate of the national minimum wage. Employers are not obliged to make superannuation contributions during the leave period. Paid parental leave does not count as paid leave for the purposes of the National Employment Standards (NES) and, therefore, does not count as service for the purposes of other entitlements.

The By Lawyers Employment Law publication has been updated accordingly.

Motor vehicle accident – NSW

by

Entitlements for people injured in motor vehicle accident claims under the Motor Accident Injuries Act 2017 have become easier to access.

From 1 April 2023, weekly statutory benefits can be obtained from the date of a motor vehicle accident, even if sought more than 28 days after the date of the accident. The 28 day timeframe was previously a strict requirement.

Now, the claim for weekly benefits can be lodged within three months of the motor vehicle accident, if accompanied by a full and satisfactory explanation for the delay in making the claim.

Whether the claimant has a full and satisfactory explanation for the delay is determined by reference to the factors set out in the regulations, namely whether the claimant was aware of the right to make the claim, was under a legal incapacity, or was prevented from making the claim before the expiry of the 28 day period because of illness or injury.

The insurer has 14 days to reject the claimant’s explanation, otherwise it is taken to be a full and satisfactory explanation.

See cl 8A of the Motor Accident Injuries Regulation 2017 and s 6.13 of the Motor Accident Injuries Act 2017.

The following updates to the Motor Accident Guidelines MAG 9.1 also take effect from 1 April 2023:

  • the defined term Minor injury is replaced by Threshold injury; and
  • eligibility for statutory benefits is extended from 26 weeks to 52 weeks for injured persons with a threshold injury who are wholly or partly at fault for the accident.

These changes arise from the commencement of provisions under the Motor Accident Injuries Amendment Act 2022. Refer to our previous News and Updates post from 5 December 2022 for the other amendments under that Act.

The By Lawyers Motor Vehicle Accidents (NSW) – Accidents from 1 December 2017 guide has been updated accordingly.

Sale of business – QLD

by

The new, fourth edition of the Real Estate Institute of Queensland sale of business contract was released on 9 February 2023.

The changes in the new edition incorporate electronic execution and businesses having a digital presence on social media.

The changes to the sale of business contract include:

  • Item J in the Schedule has a new section to insert the details of the business’s social media and electronic media accounts to be transferred at settlement;
  • A new optional special condition annexure requiring the seller to allow an adjustment to the buyer for any prepaid coupons or gift cards that have not expired at settlement. The buyer must accept any prepaid coupons or gift cards that were issued before completion, provided they have not expired.
  • A new optional due diligence special condition annexure, allowing the buyer to terminate the contract if not satisfied with due diligence investigations by a specified date. The seller is obliged to provide access to and copies of any information reasonably required by the buyer.
  • The restraint of trade clause has been bolstered to protect the goodwill the buyer is paying for. The new restraint clause expands what a seller is prohibited from doing during the restraint period and within the restraint area. The prohibited actions now include having an interest in or being concerned with a competing business, dealing with a customer of the business being sold, interfering or disrupting the relationship between the business and its customers or prospective customers, and soliciting any person who was an employee, contractor, or agent of the business.
  • Clause 18 has been amended to require the buyer to notify the seller of the employees it intends to employ five business days before settlement. The buyer must offer employment to those employees at least two business days before settlement. This leaves the seller responsible for employees who do not receive an offer of employment from the buyer, or do not accept its offer of employment within one business day before settlement.
  • A new sub-clause has been inserted through which the buyer indemnifies the seller against any claims under the lease until the date of the lessor’s consent, should they elect to settle before obtaining the lessor’s approval to an assignment of lease.
  • A buyer may terminate the contract if any disclosure required under the Retail Shop Leases Act has not been given.
  • Clause 32 is a new warranty that the buyer has conducted its own searches and satisfied itself of the type of business and the permissible use.
  • Clause 40 now contains an electronic counterparts clause, allowing the contract to be signed electronically under the Electronic Transactions (Queensland) Act.

The By Lawyers Purchase of Business and Franchise (QLD) and Sale of Business and Franchise (QLD) guides have been updated accordingly.

Connect with us