ByLawyers News and Updates

Sale of land – QLD

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The Real Estate Institute of Queensland and Queensland Law Society have released updated versions of their standard contracts for the sale of land.

The updated sale of land contracts are:

  • Contract for Houses and Residential Land (18th edition),
  • Contract for Residential Lots in a Community Titles Scheme (14th edition),
  • Contract for Commercial Land and Buildings (10th edition), and
  • Contract for Commercial Lots in a Community Titles Scheme (9th edition).

The sale of land contracts are now fully aligned with the Queensland electronic conveyancing mandate which came into effect on 20 February 2023 under the Land Title Regulation 2022. It requires all property transactions in Queensland to be conducted electronically.

To comply with the new mandate, the updated contracts feature significant changes to clause 11, the electronic settlements clause. This is now more detailed and comprehensive, ensuring all parties involved in a property transaction are aware of their obligations when it comes to electronic settlements.

Specifically:

  • The requirement for electronic settlements is compulsory under the Land Title Regulation 2022, which defines transfers as a necessary instrument, with exemptions. The first exemption is for transfers dated before 20 February 2023, but does not extend to the contract itself. The second exemption applies where one of the parties involved in the required instrument is neither a subscriber to an Electronic Lodgment Network nor represented by a legal practitioner.
  • Clause 11 outlines the process for nominating an Electronic Lodgment Network system by the seller.
  • The option for parties to switch from electronic settlement to a manual paper settlement has been removed, and unless an exemption applies the parties are obliged to settle electronically.
  • The definition of Qualifying Conveyancing Transaction that was included in previous versions of the contract has been omitted.
  • Clause 10.4(9) in the Contract for Houses and Residential Land (18th edition) has been added to clarify that a message sent using an Electronic Lodgment Network in an electronic conveyancing environment does not constitute a notice for the purposes of the contract. The sole exception being the nomination of an Electronic Lodgment Network by accepting or issuing an invitation through an Electronic Lodgment Network system: clause 11.2(2) in the Contract for Houses and Residential Land (18th edition).
  • Certain definitions relating to electronic settlement have been relocated from clause 11 to the definitions clause, being clause 1.

The By Lawyers publications Purchase of Real Property (QLD), Sale of Real Property (QLD), and 1001 Conveyancing Answers (QLD) have been updated accordingly.

Sexual harassment – FED

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From 6 March 2023 sexual harassment in connection with work is prohibited by the Fair Work Act 2009. Aggrieved persons have rights to apply to the Fair Work Commission and, with some limitations, the Federal Courts.

Part 3-5A of the Fair Work Act 2009 prohibits sexual harassment of workers, persons seeking to become workers, and persons conducting businesses or undertakings, and provides for the granting of remedies when that happens.

An employer may be vicariously liable for sexual harassment of their employee or agent unless the employer can show that they took all reasonable steps to prevent it.

An aggrieved person who alleges they have been sexually harassed in connection with work, or an industrial association entitled to represent the industrial interests of an aggrieved person, may apply to either:

  1. the Fair Work Commission under s 527J of the Act to either make a Stop Sexual Harassment Order (SSHO) , or to otherwise deal with the dispute, or both;
  2. a Federal Court for orders for contravention of civil remedy provisions, under Division 2 of Part 4-1.

However, a court application can only be made if the parties have first attempted to resolve the matter through the Fair Work Commission, and the Commission has issued a certificate to that effect, unless the application seeks an interim injunction.

These provisions of the Act are in addition to, and do not exclude or limit, any rights a person may have under any state or territory law in connection with sexual harassment.

If the application is not solely for a SSHO, the Commission must deal with the dispute according to its powers under s 595 (2), other than by arbitration – namely via mediation or conciliation, or making a recommendation or expressing an opinion.

Stop Sexual Harassment Order

Where an application seeks a SSHO, if the Commission is satisfied that the aggrieved person has been sexually harassed and there is a risk of the harassment continuing, the Commission may make any orders it considers appropriate to prevent the harassment, except for a pecuniary order: s 527J(i).

In considering the terms of its orders, the Commission must take into account the outcomes of any investigation into the matter, any other procedures available to the aggrieved person and the outcomes if any, and anything else the Commission considers relevant.

Time limits

Any application to the Fair Work Commission under Part 3-5A of the Fair Work Act 2009 may be dismissed if it is made more than 24 months after the alleged contravention, or after the last of a series of contraventions is alleged to have occurred: s 527G of the Act, or such longer time as the Commission allows upon application.

A sexual harassment court application must be brought within 60 days of the s 527R(3)(a) certificate being issued by the Fair Work Commission, or such longer time as the court may allow upon application.

These amendments are under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022. The By Lawyers Employment Law guide has been updated accordingly.

CTP claims costs – NSW

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Reporting of CTP claims costs by legal practitioners in NSW is now lodged via an online portal.

The State Insurance Regulatory Authority (SIRA) has launched a new Claims Costs Disclosure (CCD) portal to capture settlement costs data relating to Compulsory Third Party (CTP) damages claims made under the Motor Accident Injuries Act 2017 (MAIA).

Legal practitioners representing a CTP claimant must provide SIRA with a breakdown of costs related to the settlement of the claim, including:

  • the total amount for which the claim was resolved;
  • all deductions, including all legal costs and disbursements;
  • the total amount paid to the claimant.

CTP claims costs for damages claims settled on or after 1 March 2023 need to be lodged via the new portal. Retrospective disclosure prior to 1 March 2023 is not required. Registration for the portal has been available since 8 February 2023.

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

Surcharge purchaser duty – NSW

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From 21 February 2023 some foreign purchasers are no longer required to pay surcharge purchaser duty, or surcharge land tax, on residential property in New South Wales.

Citizens of New Zealand, Finland, Germany, and South Africa are exempt for purchases of residential related property or land. International tax treaties exist between Australia and each of  these countries that have the force of federal law and override inconsistent state-based revenue provisions.

Current purchasers and existing landowners from these countries may seek a refund of any surcharge purchaser duty and surcharge land tax paid in NSW on or after 1 July 2021. See the Revenue NSW website for the eligibility criteria for refunds, and a list of common questions and scenarios stemming from international tax treaties.

The exemptions relate only to natural persons. Where a trust relationship exists, or a non-individual entity such as a corporation or partnership is involved, and the entity or trustee is associated with these nations, the international tax treaties and the exemption may also be enlivened but is not automatic.

The relevant By Lawyers New South Wales conveyancing publications have been updated accordingly. The Purchase of Real Property (NSW), Sale of Real Property (NSW), and 1001 Conveyancing Answers (NSW) guides already contain extensive sections of commentary on surcharge purchaser duty and surcharge land tax regimes.

Electronic lodgment – QLD

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Mandatory electronic lodgment applies for conveyancing in Queensland from 20 February 2023.

Section 4 of the Land Title Regulation 2022 requires legal practitioners and licensed conveyancers to draft and lodge the following required instruments via an Electronic Lodgment Network (ELN):

  • transfer;
  • mortgage;
  • release of mortgage;
  • caveat;
  • request to withdraw a caveat;
  • priority notice;
  • request to extend a priority notice;
  • request to withdraw a priority notice; and
  • application to be registered as a personal representative for a deceased owner.

There are some exceptions to the electronic lodgment of these required instruments, including where:

  • the ELN does not have the functionality to draft and lodge the instrument;
  • a required instrument, such as a transfer or mortgage, for example, was executed in a hard copy form before 20 February 2023: s 6;
  • the required instrument needs to be lodged with another instrument that cannot be lodged using an ELN; or
  • a party to the instrument is a self-represented natural person who is not subscribed to an ELN.

Section 5(2) of the Land Title Regulation 2022 provides the full list of exemptions to electronic lodgment.

Electronic conveyancing is already the preferred method for the lodgment of title instruments by lawyers and licensed conveyancers, having been introduced in Queensland in 2013. The two Electronic Lodgment Network Operators (ELNOs), Property Exchange Australia Limited (PEXA), and Sympli Australia Pty Ltd (Sympli).

The By Lawyers Queensland Conveyancing publications have been updated to reflect this change. For more information see:

  • E-Conveyancing – Required instruments in the Purchase of Real Estate (QLD), Sale of Real Estate (QLD), and Mortgage (QLD) guides;
  • A brief explanation of the transition to E-conveyancing,  on the matter plan in all By Lawyers Conveyancing Guides, which includes information on how to get connected and the full timeline for implementation.

Recent property cases – VIC

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Recent property cases have been added to the By Lawyers reference manual 1001 Conveyancing Answers (VIC).

This publication has been extensively reviewed and updated by our esteemed author Russell Cocks.

Helpful recent property cases added to the publication in this review include:

1001 Conveyancing Answers (VIC) is available in all By Lawyers Victorian property law guides – Sale of real property, Purchase of real property, Leases, and Mortgages.

This comprehensive publication assists property practitioners to understand deeper issues in conveyancing and solve problems for clients when they arise.

Family and domestic violence leave – FED

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Family and domestic violence leave entitlements change for many employees from 1 February 2023, with paid leave replacing the previous entitlement to unpaid leave.

Full-time, part-time, and casual employees of non-small business employers, being those with 15 or more employees on 1 February 2023, are entitled to 10 days of paid family and domestic violence leave in every 12-month period of employment. It is not calculated on a pro-rata basis for casual employees and is all available up-front, which means a new employee has an immediate entitlement to the full ten days. The leave does not accumulate if not taken.

The same entitlement will apply to employees of small business employers, being those with less than 15 employees on 1 February 2023, from 1 August 2023. Until then, employees of small businesses remain eligible for the existing entitlement of 5 days of unpaid family and domestic violence leave.

The leave can be taken for any purpose relating to the impact of family and domestic violence, which might include relocating, attending court, or attending medical, legal, counselling, and financial advice appointments.

Employers cannot include information in an employee’s pay slip identifying they type of leave paid.

Family and domestic violence is defined as violent, threatening, or other abusive behaviour by an employee’s close relative, current or former intimate partner, or a member of their household that both seeks to coerce or control them and causes them harm or fear.

The leave can be taken during a period of personal or carer’s leave, or annual leave.

The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply, including the requirement for the employer to maintain confidentiality: s 106C.

See the Fair Work Ombudsman website for more information.

The By Lawyers Employment Law commentary has been updated accordingly. Further updates will be applied when the entitlement extends to all employees in August.

Commercial List – QLD

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Supreme Court Practice Direction 1 of 2023 introduces new procedures for the Court’s Commercial List from 30 January 2023.

The Court has also issued supporting Notes that provide guidance about some practical aspects of the Commercial List, including parties, practitioners, directions, expert evidence, electronic filing and document management.

The key point of the new arrangements is that cases will be managed by a specific judge from start to finish. This includes interlocutory applications. Where the allocated judge is not available another Commercial List judge will step in.

The Practice Direction applies to existing and future commercial matters commenced in, or transferred to, the Brisbane registry. Commercial matter filed in another region will be subject to case management as appropriate in that region.

Matters can be put on the list by a party, or assigned by the court. The criteria is that the real issues involved in the matter are of a general commercial character, or arise out of trade and commerce, including e-commerce. The Practice Direction provides a non-exhaustive list of such issues:

  • the construction of a business contract, smart contract or other commercial
    instrument;
  •  insurance and reinsurance;
  • banking and financial services, including dealings in cryptocurrency;
  • the provision and enforcement of securities of any kind;
  • the conduct of business and commercial agents;
  • rights in, to, or concerning technology, including blockchain technology;
  • intellectual property;
  • partnership and joint venture relationships;
  • the export or import of goods or services;
  • the provision of goods or services by land, sea, air, cable, pipeline or through use
    of the internet for commercial purposes;
  • arbitral proceedings under the Commercial Arbitration Act 2013 (Qld);
  • the exploitation of natural resources;
  • conduct in and/or the operation of financial markets and exchanges;
  • data ownership, storage and security;
  • an appeal or judicial review relating to a tax, levy or royalty; and
  • directors’ duties, shareholder rights, capital raising, takeovers, compulsory
    acquisitions, buy-outs and windings up under part 5.4A of the Corporations Act
    2001 (Cth).

The By Lawyers Supreme Court (QLD) publications have been updated accordingly.

Shared equity scheme – NSW

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The NSW Government Shared Equity Home Buyer Helper scheme launched on 23 January 2023. It allows eligible applicants to purchase a home with as little as a 2% deposit.

The scheme applies to residential property only and is currently only available through one lender, Bendigo Bank. Other lenders will have the opportunity to join later in the year.

Under the scheme the government can contribute equity up to 30% of the price of an existing home, or up to 40% of a new build, lowering both the loan amounts and repayments of eligible applicants.

The Shared Equity Scheme is limited to 3,000 purchasers per financial year. Applications will be accepted during the 2022 – 2023 and 2023 – 2024 financial years. Eligible applicants for the scheme are:

  • single parents with dependent children
  • single people who are 50 years or older
  • first home buyers employed as key workers: nurses, midwives, paramedics, teachers, early childhood educators, and police officers.

Applicants must be Australian citizens or permanent residents over the age of 18 and have at least a 2% deposit. They cannot own any other land or property in Australia or overseas at the time of application.

Purchase prices for homes under the scheme are capped at $950,000 for Sydney and major regional areas, and at $600,000 for other areas.

Gross annual income tests of $90,000 for singles and $120,000 for couples apply, as well as asset tests.

Shared equity means the Government has a percentage share of the home, equivalent to what the applicant has contributed, secured by a registered second mortgage. There is no interest or rental payment required, but the expectation is that the government’s equity share is repaid over time or, when the property is sold.

The By Lawyers Conveyancing (NSW) guides have been updated to reflect the detailed eligibility criteria for the Shared Equity scheme and links to the Revenue NSW online assessment tool.

1 January updates – All states

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1 January updates are always a big focus for By Lawyers. While the profession takes a well-earned break By Lawyers remains hard at work ensuring our publications are updated for legislative and regulatory changes that take effect from the new year.

This year’s 1 January updates for relevant jurisdictions include:

Land tax

In New South Wales and Victoria, land tax is calculated for the calendar year. Threshold values increase annually.

In New South Wales, the 2022 threshold combined land value has increased to $969,000 for all liable land. Special trusts and non-concessional companies are excepted. A marginal tax rate of 1.6% of the aggregate taxable value above the tax-free threshold, plus $100 applies from 1 January. If the aggregate taxable value exceeds the premium rate threshold of $5,925,000 then $79,396 is payable, plus a marginal tax rate of 2% over that amount.

In Victoria, the tax-free threshold for general land tax remains at $300,000. The trust surcharge threshold remains at $25,000.

All relevant commentary and precedents in the By Lawyers Conveyancing and Property and Trusts guides for each relevant state will be updated for these new threshold amounts from 1 January.

By Lawyers Contract of sale of land

The 2023 edition of the By Lawyers contract will be available 1 January in the Sale of real property publications for Victoria and New South Wales. The contract is located in the Contract folder on the matter plan.

Leases and subleases

In New South Wales, Victoria, Queensland, South Australia and Western Australia the 2023 editions of our lease and sub-lease precedents are available from 1 January. These are found in the Leases – Act for Lessor section of each Leases publication.

Keeping up to date

In addition to our 1 January updates, By Lawyers updates our publications for 1 June and other regulated adjustments when necessary.

Of course, we also update our content for relevant legislative amendments and other legal developments throughout the year, in all jurisdictions, as required.

Keeping up to date is one of the ways By Lawyers help our subscribers enjoy practice – and holidays – more!

The team at By Lawyers wishes everyone a prosperous and safe 2023.

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