ByLawyers News and Updates

Family law cases – FED

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A number of recent family law cases have been added to 101 Family Law Answers.

These new family law cases are located in the following sections of this helpful reference manual:

Costs orders

For a discussion of interim lump sum payments see Russo and Russo & Ors [2020] FCWA 182 at [61]-[66].

Settlement offers

In Paradin & Paradin [2020] FamCAFC 245 an order that the husband pay the wife’s costs was set aside. The husband had rejected the wife’s Calderbank offer because it was ambiguous and was not specific as to breakdown of payments. Strickland J stated at [57]:

… I am reminded … of what the Full Court said in Pennisi, namely, it is critical to consider the context in which an offer is made … And, as was said by the Full Court in Cross & Beaumont [2008] FamCAFC 68 … at [51] that context can be that ‘[i]f the recipient of the offer is demonstrably unable to comply with his or her obligations under the proposed settlement, it is difficult to see how the offer could be relied upon in support of an application for costs’.

Contributions – Conduct and family violence

Benson & Drury [2020] FamCAFC 303 saw the Full Court dismiss an appeal by the de facto husband against a 5% adjustment in the de facto wife’s favour. The adjustment had been made due to the impact of family violence upon her contributions, based on the arguments raised in Kennon. However, the Full Court stated that the primary judge was in error for not considering the Kennon argument in a holistic way. At [35] they stated:

…The contributions which have been made significantly more arduous have to be weighed along with all other contributions by each of the parties, whether financial or non-financial, direct or indirect to the acquisition, conservation and improvement of property and in the role of homemaker and parent. All contributions must be weighed collectively and so it is an error to segment or compartmentalise the various contributions and weigh one against the remainder.

101 Family Law Answers is available as a related guide and also in the reference materials folder in all By Lawyers Family Law publications. It provides more detailed information and relevant family law cases. It is separated into the various Family Law matter types – Property Settlement, Children, Financial Agreements and Divorce. It also covers general procedural issues and the enforcement of orders.

Magistrates Court Civil- VIC

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The By Lawyers Magistrates Court Civil – Acting for the Plaintiff litigation commentary has been reviewed by our author.

The resulting consolidation and enhancements include:

  • The commentary on interrogatories has been enhanced including practical insights into the correct form that an interrogatory should take. Examples of defective interrogatories have been added to assist practitioners in drafting interrogatories.
  • The commentary on expert witnesses has been enhanced. The commentary now highlights the crucial point that reliance on an expert report will usually waive privilege over all materials or communications that may have influenced the expert in forming their opinion. This means practitioner communications with an expert witness will likely have to be disclosed to the other party and the court, so drafting communications requires care.

This review of the Magistrates Court Civil – Acting for the Plaintiff litigation commentary is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Apprehended violence – NSW

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Apprehended violence legislation in NSW has been amended.

Amending legislation

The Stronger Communities Legislation Amendment (Domestic Violence) Act 2020 commenced on 5 March 2021. The amendments affect a number of legislative provisions relating to apprehended violence orders, applications and proceedings.

Amendments

The By Lawyers Apprehended Violence Orders guide has been updated accordingly with all relevant amendments. These include:

  • the definition of ‘intimidation’ in the Crimes (Domestic and Personal Violence) Act 2007 now includes, in certain circumstances, actual or threatened harm to an animal;
  • a police officer may now issue a provisional AVO where there is a comparable interim or final order already in place and any such provisional order automatically becomes an application for a final order;
  • an apprehended violence order imposed by the court on offenders who are also sentenced to imprisonment for domestic violence offences continues for two years after the term of imprisonment is completed, unless another period is specified by the court;
  • a court may grant leave to make an application to vary or revoke an apprehended violence order which has an indefinite duration, if it is in the interests of justice to do so;
  • certain parts of AVO proceedings in which a complainant gives evidence must be held in closed court, unless a court otherwise directs;
  • domestic violence complainants now have the entitlement to give evidence using alternative arrangements to personal attendance, such as audiovisual link, in certain proceedings.

New standard order

There is also a consequential amendment arising from the Crimes (Domestic and Personal Violence) Amendment (Standard Orders) Regulation 2021 which commences on 27 March 2021. This amends the Crimes (Domestic and Personal Violence) Regulation 2019 to include in the standard orders a prohibition on harming any animals owned by, or in the possession of, the person in need of protection under an apprehended violence order.

Publication updates

In the course of making these amendments the AVO publication has also been reviewed by our author, with some minor enhancements made to the matter plan and commentary.

By Lawyers keeps you up to date!

Retirement villages – NSW

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Following recent changes to the Act, the Retirement Villages Amendment (Asset Management Plans) Regulation 2021 and the Retirement Villages Amendment (Exit Entitlement) Regulation 2021 have now commenced.

Asset management plans

The regulations require operators to maintain an asset management plan for each village they manage or operate. They must have a copy available for inspection at all reasonable times by a resident, prospective resident or a person acting on their behalf.

Operators must also prepare a 3-year report for capital maintenance, extracted from the asset management plan, to inform expenditure for major items of capital in the annual budget.

Exit entitlements, recurrent charges and right of entry

The regulations also affect exit entitlements and recurrent charges. They provide that an operator may enter premises in certain circumstances to facilitate the sale of the premises.

By Lawyers keeps you up to date

The By Lawyers Retirement Villages (NSW) guide has been updated accordingly. The effect of the new regulations is detailed in the commentary. There is also a new precedent ‘Letter to client providing advice on village contract’ which has been added to Folder B on the matter plan. The Retirement Villages (NSW) guide is included in our Conveyancing (NSW) publication.

See our related Obiter post Retirement Villages (NSW) – Amendments concerning the recent amendments to the Act.

Invoice recitals – All states

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The precedent invoice recitals from the By Lawyers reference publication 101 Costs Answers have been added to various other matter plans. This makes an enormous amount of valuable, drafted By Lawyers content more readily available to all users.

The useful library of invoice recitals provides assistance to practitioners and support staff when preparing invoices in any matter. These recitals, which detail the work usually completed in a variety of matter types, are now available on each relevant matter plan. The appropriate recital appears directly below the invoice precedent.

Invoice recitals are provided for the following areas of law:

  • Conveyancing
  • Criminal
  • Employment
  • Enduring guardianship NSW
  • Estates
  • Family law
  • Injuries, works compensation, victims support
  • Insolvency
  • Leases
  • Mortgage
  • Power of attorney NSW
  • Retirement villages NSW
  • Sale and purchase of business
  • Security of payments NSW
  • Wills

101 Costs Answers is located in the Reference materials folder on every By Lawyers matter plan. It contains practical, detailed commentary on all aspects of legal costs and disbursements. It also contains fully compliant costs agreement precedents for all common areas of law.

Personal Injury Commission – NSW

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Overview

From 1 March 2021 the Personal Injury Commission (PIC) became the ‘one-stop shop’ for dispute resolution for workers compensation and motor accident claims in NSW.

The PIC has two divisions with a single point of entry via an online portal. The PIC takes over from the Workers Compensation Commission, which has been abolished. The PIC also takes over most of the dispute resolution functions from the State Insurance Regulatory Authority (SIRA) regarding motor accident claims.

The idea of the consolidation is to gain efficiencies via a single entity, especially with medical assessments and medical dispute determination. Medical assessors for both workers compensation and motor accidents claims, along with merit reviewers for motor accident matters and mediators for workers compensation matters, are appointed by the President of the PIC and operate under the PIC legislation.

The substantive law does not change.

The By Lawyers Workers Compensation and Motor Accidents publications – both Prior to 1 December 2017 and From 1 December 2017 – have all been be amended.

Legislation

Personal Injury Commission Act 2020;

Personal Injury Commission Regulation 2020; and

Personal Injury Commission Rules 2021.

What the PIC does

The PIC is not a court but is headed by a President, who is a judge of a court of record. The PIC will publish its decisions.

The two divisions, Motor Accidents and Workers Compensation, have a common registry, and common practice and procedure wherever possible.

The PIC replaces the Workers Compensation Commission and determines all disputes under the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Act 1987.

Disputes in relation to claims under the Motor Accidents Injuries Act 2017 (MAIA) and the Motor Accidents Compensation Act 1999 (MACA) previously managed and resolved by SIRA are now dealt with by the Personal Injury Commission. The PIC also takes over from the Motor Accidents Claims Assessment and Resolution Service (CARS) and the Medical Assessment Service (MAS).

The Act requires the PIC to deal with proceedings justly, quickly, cost-effectively and with as little formality as possible.

The rules of evidence do not apply and proceedings must be as informal as possible, including telephone conferences instead of formal hearings.

What the PIC does not do

Disputed common law damages claims still go to the District or Supreme Court. However, the PIC must mediate the dispute first and/or provide a certificate before proceedings can be commenced.

As it is not a court, the PIC cannot determine matters that involve federal jurisdiction. The PIC Act provides a mechanism to send proceedings that involve federal jurisdiction to the District Court.

The Workers Compensation Independent Review Office (WIRO) is now known as the Independent Review Office (IRO). It continues to manage disputes regarding insurers previously managed by WIRO, with the addition of CTP insurers for motor accident claims. IRO also continues WIRO’s previous responsibility for the funding of workers compensation claims via the existing ILARS grants.

No change to the substantive law

The establishment of the PIC and the transfer to it of dispute resolution functions does not affect the underlying substantive law.

There is no change to the entitlements of injured persons to damages, benefits and entitlements under either workers compensation or motor accidents legislation.

Transitional provisions

Transitional provisions are set out in the Personal Injury Commission Regulation 2020.

For existing matters – that is, claims lodged before the commencement of the PIC on 1 March 2021 – the PIC deals with disputes and medical assessments. However it does so under the previous legislative framework – so the Workers Compensation Commission Rules 2011 and the existing provisions of the motor accidents legislation. That includes appeals, so for any arbitrated decision that was heard before 1 March 2021, but which is appealed after 1 March 2021, the appeal proceeds on the basis of the pre-existing legislation.

By Lawyers keeps you up to date!

All relevant By Lawyers publications have been updated in line with the commencement of the Personal Injury Commission. Commentary and precedents have been amended, replaced or added wherever required in our Workers Compensation, Motor Accidents and District Court publications.

Build-to-rent – NSW

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The New South Wales Government has introduced tax concessions for new build-to-rent housing projects. These potentially valuable concessions will remain applicable until 2040.

The term build-to-rent applies to large-scale residential unit developments constructed with the intent of being kept long-term and rented out to lower-income families at affordable prices. The build-to-rent model has been successful overseas and is now being encouraged in New South Wales.

Eligible developments will receive:

  • a 50 per cent reduction in land value for land tax purposes; and
  • an exemption from foreign investor duty and land tax surcharges – or a refund of any surcharges already paid.

The concessions are expected to encourage and support the supply of large-scale rental housing that is professionally owned and managed. The rationale is that such accommodation provides tenants with security of tenure and quality rental services. For a developer to qualify for the scheme, each tenant must be provided with a range of lease term choices, including the option of entering into a fixed term lease of at least 3 years.

These concessions only apply to housing developments that contain at least 50 self-contained dwellings, where construction commenced after 1 July 2020. The dwellings must be used specifically for the purpose of build-to-rent.

See the Treasurer’s guidelines for further information including full eligibility requirements.

The By Lawyers 1001 Conveyancing Answers (NSW) guide has been updated accordingly. This  comprehensive resource is located in the Reference materials folder at the top of the matter plan in every By Lawyers New South Wales conveyancing publication.

Special grants of probate – NSW

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A recent Supreme Court case on special grants of probate has been added to 101 Succession Answers NSW. Application of Penhall and Dutton; Estate of the late Kylie Anne Dutton [2021] NSWSC 79 relates to an application for special administration ad colligenda bona defuncti, whereby a grant is obtained to protect the estate.

In this case the deceased’s home was unoccupied for 6 months with no insurance cover, which presented a real risk of diminishing the value of the estate. The Court granted the application to allow the property to be sold and the proceeds placed in an interest bearing account. The Court noted this was an interim measure and a full grant was still required to distribute the estate.

The By Lawyers Probate and Letters and Administration commentaries and 101 Succession Answers all deal with special grants. These apply when there is no one able to seek a grant and there are special needs for the estate. The special grants include:

  • Administration de bonis non administrates cum testamento annexo – administrator dies before completing the administration of will;
  • Administration de bonis non administrates – administrator dies before completing the administration of intestacy;
  • Administration for the purposes of the family provisions claim under s 91 of the Succession Act 2006 – also covered in the By Lawyers Family provision claims guide;
  • Administration pendente lite – s 73 Administration during litigation;
  • Administration ad litem to commence or defend proceedings;
  • Administration by a manager appointed by the Guardianship Division of the NSW Civil and Administrative Tribunal for a person lacking mental capacity;
  • Administration during minority;
  • Application by a guardian;
  • Administration durante absentia – executor or administrator outside NSW grant to an attorney – s 72;
  • Application under s 76 if executor or administrator out of jurisdiction special administrator may be appointed;
  • Administration when the sole beneficiary/executor/administrator suffers from a disability, he can nominate another; and
  • Grant to a creditor.

The 101 Succession Answers publication can be found in the Reference materials folder at the top of the matter plans in all By Lawyers succession-related guides – Wills, Powers of Attorney, Appointments of enduring guardian and Family provision claims.

Certificates of title – NSW

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The NSW Government has approved the cancellation of all remaining paper certificates of title as part of the implementation of electronic conveyancing. All remaining paper certificates of title are expected to be cancelled in April 2021. Certificates of title will then no longer be evidence of indefeasible title. The By Lawyers Conveyancing and Property guides will be amended accordingly at that point.

Implications

  • For solicitors and conveyancers any lien held over a certificate of title as a form of security for payment of costs will become ineffective.
  • Equitable mortgagees holding certificates of title as security will need to make alternative security arrangements.

Alternative security for professional costs 

  • A solicitor’s lien over all client documents created or obtained in the matter.
  • Creating a charge for the repayment of costs over the client’s real property which entitles the firm to lodge a caveat on title until all costs are paid.
  • Authority to pay professional fees and disbursements from client funds held in the trust account.
  • Guarantee clause for the performance of the agreement by a guarantor, and creating a charge over the guarantor’s real property.

All By Lawyers Costs Agreements provide for these methods of security.

Alternative protection for lenders 

  • Lien over other documents or assets held by the borrower to secure the repayment of the loan.
  • Ensuring that loan agreements contain a right to register a mortgage.
  • Lodging a caveat.

The By Lawyers Mortgages (NSW) Guide contain a ‘Mortgage Linked Loan Agreement’ that is linked to the mortgage and incorporates the provisions found in the By Lawyers ‘Registered Memorandum AJ843928’. A copy of the memorandum of common provisions is recorded at NSW Land Registry Services and can be used at no additional cost by our users.

The By Lawyers Mortgages (NSW) Guide also covers caveats and contains an ‘Acknowledgement of debt – Caveatable Interest’ that creates an interest in the borrower’s real property entitling the lender to register a caveat on the property to secure repayments.

Cancellation of ALL certificates of title

Keep an eye out for the upcoming cancellation of ALL certificates of title, paper and electronic, in NSW. This will see the removal of the requirement to lodge consents and changes to the requirements relating to verification of identity, right to deal and retention of proper evidence.

There will be another Obiter post from By Lawyers when our guides are updated for these developments.

Purchase of real property – TAS

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The By Lawyers Purchase of real property guide for Tasmania has been reviewed and enhanced.

Enhancements resulting from this extensive review, which will assist Tasmanian property practitioners, include:

  • Various sections of commentary have been revised and re-ordered, to better reflect the usual flow of the purchase process.
  • The Matter plan now includes a separate section for Property Transfer Duty.
  • There are new and amended commentary headings, for improved searchability.
  • The commentary under the Property heading has been expanded to include a discussion of the various types of title.
  • Commentary under the Price and Taxes headings has been re-organised and expanded.
  • The coverage of Disclosure and Property Transfer Duty has been enhanced with references to the standard contract and common practice.
  • There is new commentary on the Submission of Transfer and Notice of Sale.
  • New commentary has been added on the specific stages of the settlement process for purchase of property.
  • All precedents have been reviewed and enhanced where necessary to reflect current practice.

Practitioners are also reminded of the Library of special conditions located on both the Sale of real property and Purchase of real property matter plans. These useful precedent clauses are located in Folder C. Contract and Folder D. Negotiations and exchange, respectively. This extensive library contains eighty drafted special conditions which can be cut and paste into the contract, either directly or with bespoke amendments, to suit the specific requirements of almost any transactions and circumstances.

This review is part of the continuing commitment of By Lawyers to updating and enhancing our publications to help our subscribers enjoy practice more.

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