ByLawyers News and Updates

Family provision claims VIC

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New precedents have been added to the By Lawyers Family Provision Claims VIC publication.

Following an author review of the guides, there is new content on the matter plans for both Acting for the Estate and Acting for the Plaintiff.

The new content to assist practitioners acting for clients in relation to claims on a deceased estate under Part IV of the Administration and Probate Act 1958 includes:

Acting for the Estate – new family provision precedents

  • Letter to beneficiary affected by settlement of claim
  • Letter to client after first directions hearing
  • Letter to client enclosing affidavits for signing
  • Letter to client enclosing draft affidavits
  • Letter to witness enclosing affidavit for signing

Acting for the Plaintiff – new family provision precedents

  • Letter to potential claimant
  • Authority to settle and receive
  • Direction to pay and authority to receive
  • Letter to client enclosing settlement deed
  • Letter to client after filing claim
  • Letter to client enclosing draft affidavit
  • Letter to client enclosing affidavit for signing
  • Letter to client after first directions hearing
  • Letter to client enclosing estate affidavits
  • Letter to witness enclosing affidavit for signing
  • Letter to client finalising the matter – Payment
  • Letter to client finalising the matter – No payment

This review of the Family Provision Claims VIC publication and the addition of these new family provision precedents is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Family provision claims SA

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New precedents have been added to the By Lawyers Family Provision Claims SA publication.

Following an author review of the guides, there is new content on the matter plans for both Acting for the Respondent and Acting for the Applicant.

The new content to assist practitioners acting for clients in relation to claims on a deceased estate under the Inheritance (Family Provision) Act 1972, includes:

Acting for the Respondent – new family provision precedents

  • Letter to beneficiary affected by settlement of claim
  • Letter to client after first directions hearing
  • Letter to client enclosing affidavits for signing
  • Letter to client enclosing draft affidavits
  • Letter to witness enclosing affidavit for signing

Acting for the Applicant – new family provision precedents

  • Authority to settle and receive
  • Direction to pay and authority to receive
  • Letter to client enclosing settlement deed
  • Letter to client after filing claim
  • Letter to client enclosing draft affidavit
  • Letter to client enclosing affidavit for signing
  • Letter to client after first directions hearing
  • Letter to witness enclosing affidavit for signing
  • Letter to client finalising the matter – Payment
  • Letter to client finalising the matter – No payment

The review of the Family Provision Claims SA publication and the addition of these new family provision precedents is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Non-disclosure – All states

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Non-disclosure agreements and clauses have been added to all By Lawyers guides. These precedents augment the existing Confidentiality Deed and clauses in the Folder of Blank Deeds, Agreements and Statutory Declarations in Folder A. Getting the matter underway on every By Lawyers matter plan.

In general, non-disclosure is passive and unilateral, whereas confidentiality is active and bipartite. The former generally requires a party simply not to reveal or release confidential information, whereas the latter requires a party to take positive steps to keep information secret and safe.

There are also other distinctions to be drawn when dealing with confidential information. Sometimes only one party is to provide confidential information to the other. In other cases, two or more parties propose to exchange it. Sometimes the parties wish only to protect the contents of their agreement, whereas sometimes they wish to protect other specific information relevant to their decision to enter into the agreement, or relevant to the subject matter of the agreement.

The various By Lawyers deeds and agreements and precedent clauses have been revised and enhanced to encompass these distinctions.

The commentary on Deeds and agreements in the Folder of Blank Deeds, Agreements and Statutory Declarations has also been enhanced to cover these points.

Apart from the precedents available in the Folder of Blank Deeds, Agreements and Statutory Declarations, relevant precedents relating to non-disclosure and confidentiality are also located in various guides as required.

Adding these non-disclosure agreements and clauses, and revising the existing confidentiality deeds and clauses, is part of By Lawyers continual commitment to the expansion and enhancement of our content.

Amended precedents:

Deed for general use

Agreement for general use

Confidentiality deed

Confidentiality clause for defined information – All parties

Confidentiality clause for defined information – One party

New precedents:

Non-disclosure agreements – Informal

Non-disclosure agreement – Formal

Confidentiality clause for terms of agreement – All parties

Confidentiality clause for terms of agreement – One party

Motor Vehicle Accidents – NSW

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The Costs section in the By Lawyers Motor Vehicle Accidents From 1 December 2017  guide has been reviewed and enhanced.

The By Lawyers NSW Motor Vehicle Accident publication contains two separate guides – one for motor vehicle accidents which occurred before 1 December 2017, another for motor vehicle accidents which occurred from that date. This reflects the two separate statutory schemes which apply.

The Costs section of the matter plan and commentary has been re-organised with new sub-headings for improved searchability and additional content. Enhancements include:

  • Restrictions on costs generally clarified and emphasised, given their significance to practitioners for claims under the Motor Accident Injuries Act 2017;
  • Costs in statutory benefits claims – maximum allowances for work relating to each of the three types of disputes in statutory benefits claims – merit, medical and miscellaneous;
  • Costs in common law claims – the allowable costs for common law claims divided into stages of the matter now listed in the commentary;
  • Contracting out of the maximum costs provisions, with commentary on the restrictions that apply;
  • Addition of the recent case AAI Limited trading as GIO v Moon [2020] NSWSC 714 on the ability of the Dispute Resolution Service to award costs above the maximum in certain cases;
  • Payment – how a practitioner submits a tax invoice to the insurer; and
  • Costs disclosure to SIRA – lawyers representing claimants are required to provide SIRA with a breakdown of the costs charged to the client at the end of the matter.

This review is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Supreme Court – urgent applications – VIC

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The By Lawyers Victorian Supreme Court litigation publication has been reviewed by our author, resulting in consolidation and enhancement of the commentary, especially relating to urgent applications.

Both the Acting for the Plaintiff and Acting for the Defendant guides in the Supreme Court publication have been reviewed.  The matter plans and related commentary have been re-ordered, with additional subheadings for improved searchability. The commentary on Urgent cases and applications has been expanded. Direct links have been added to the relevant Supreme Court webpages with contact details and specific procedures for making urgent applications.

See the subfolder If required – Urgent applications and injunctions, in folder C. Going to court and folder D. Interlocutory steps on both matter plans, for the relevant commentary, links and precedents. Folder D also contains commentary and precedents covering all types of interlocutory applications, urgent and otherwise.

The Victorian Supreme Court publication also includes an Enforcement Guide, which provides practitioners with comprehensive practical assistance on enforcing judgments for their clients.

Also included in the publication is the popular reference manual 101 Subpoena Answers. This valuable resource substantially augments the commentary in the Supreme Court guide regarding the law and practice on issuing and responding to subpoenas.

This author review is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Magistrates Court – Civil – VIC

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The By Lawyers Magistrates Court – Civil litigation publication has been reviewed by our author, resulting in consolidation and enhancement.

Both the Acting for the Plaintiff and Acting for the Defendant guides in the Magistrates Court – Civil publication have been reviewed. Precedents on the matter plan have been consolidated, with some updates and amendments. This includes a number of bespoke By Lawyers precedents in the nature of ‘court forms’ drafted for use where there is no prescribed court form for certain actions required under the rules of court.

Amended precedents include:

  • Notice of discontinuance
  • Notice of ceasing to act
  • Notice of change of solicitor
  • Notice of change of solicitor’s address
  • Offer of compromise
  • Acceptance of offer of compromise under order 26
  • Application for administrative transfer to the County Court
  • Answers to interrogatories

The precedent Notice of Defence to Counterclaim has been deleted. This is because when a counterclaim is served the rules apply as if the defendant were the plaintiff and the plaintiff were the defendant. Accordingly, the usual Defence – Form 8A is used to defend a counterclaim which is on the matter plan.

Commentary on administratively transferring matters to the County Court, pursuant to s 17 of the Courts (Case Transfer) Act 1991, and appropriately responding to counterclaims has also been added.

This review is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Insolvency – FED

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The temporary changes to insolvency laws under schedule 12 of the Coronavirus Economic Response Package Omnibus Act 2020 have been extended to end on 31 December 2020.

The temporary measure were originally set to end on 25 September 2020.

A recap of the changes are as follows:

Bankruptcy

The time for a debtor to comply with a bankruptcy was extended from 21 days to six months. The threshold for initiating bankruptcy proceedings increased from $5,000 to $20,000.

The same six month time extension applies to the time within which a debtor is protected from enforcement action by a creditor, following their presentation of a declaration of intention to present a debtor’s petition, under s 54A Bankruptcy Act.

Liquidation

The time for a debtor company to comply with a statutory demand was extended from 21 days to six months. The threshold to issue a statutory demand increased from $2,000 to $20,000.

Safe harbour

The temporary s 588GAAA ‘Safe harbour—temporary relief in response to the coronavirus’, of the Corporations Act 2001 provides that the existing civil penalties for directors failing to prevent insolvent trading under ss 588G(2) do not apply in relation to a debt incurred by a company if the debt is incurred in the ordinary course of the company’s business and until 31 December 2020.

The By Lawyers Dealing with COVID-19 legal issues commentary has been updated to reflect the revised end date of 31 December 2020 for the Commonwealth government’s insolvency measures.

Elder abuse orders – SA

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Elder abuse orders are now available in the Magistrates Court.

From 1 October 2020 the criminal division of the Magistrates Court has jurisdiction under Part 4 Division 6 of the Ageing and Adult Safeguarding Act 1995 (‘AASA’) in respect to applications by the Director of the Office for Ageing Well for orders preventing elder abuse, as specified in s 33. This extends to varying such an order, as well as proceedings for alleged contraventions of elder abuse orders.

Section 31 of the AASA provides that if the director reasonably suspects that a vulnerable adult is at risk of abuse and that orders are necessary and appropriate to either protect them or allow further investigation, then the director may apply to the Magistrates Court for an interim or final order.

The procedure for such applications is set out in r 79 Magistrates Court Rules 1992.

Anyone affected by an order may be joined to the proceedings and must be given a reasonable opportunity to be heard. Any other interested party as defined under s 36, may apply to be heard in the proceedings; this includes family members and carers.

Contravention of an order under the AASA is a criminal offence, punishable by heavy fines under s 37.

Commentary on elder abuse applications has been added to the By Lawyers SA Criminal and Intervention Orders commentaries.

District Court litigation – NSW

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The By Lawyers District Court Litigation publication has been revised following the Court’s re-issue of Practice Note DC (Civil) No. 1. The revised practice note commenced on 31 August 2020.

The revision of this critical practice note also provided the opportunity for an author review of the District Court litigation publication, with resulting enhancement.

Both the Acting for the Defendant – District Court Civil (NSW) and Acting for the Plaintiff – District Court Civil (NSW) Guides have been reviewed. The matter plan is re-ordered and the procedural requirements of the practice note are further emphasised.

In addition, a new precedent Letter to client enclosing Practice Note DC (Civil) No. 1, has been added to each guide. The new precedent assists practitioners in complying with the court’s disclosure requirements. 

This review and the addition of the new precedent is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

JobKeeper extension – FED

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The Federal Government has announced another Jobkeeper extension. The payment scheme will continue until 28 March 2021.

Options for flexibility for managing workforce costs, such as reducing working hours continue. Employers are no longer allowed to require employees to take annual leave.

The amendments change the eligibility requirements for employers. Two broad categories of employers have been created: those who qualify for the new scheme after 28 September 2020, referred to as ‘qualifying employers’ and those who previously received at least one payment but no longer qualify, referred to as ‘legacy’ employers.

Qualifying employers

The minimum requirements under this JobKeeper extension remain the same regarding notification and consultation. The By Lawyers example content letters remain available from within the commentary and have been updated where necessary.

Any JobKeeper enabling directions or agreements existing on 27 September 2020 remain valid if the employer continues to qualify for the scheme.

Legacy employers

Legacy employers must have received one or more JobKeeper payments in the period prior to 28 September 2020, but have ceased to qualify. They now need to show a 10% decline in current GST turnover for the previous quarter. They must obtain a ‘10% decline in turnover certificate’ from a financial service provider.

Small business employers may choose to make a statutory declaration instead.

Legacy employers have been given access to modified directions and agreements and have extra notice and consultation requirements. Any existing on 27 September 2020 will need to be reissued or new arrangements made. They may not request an employee to work less than 2 hours per day or less than 60% of their ordinary hours as at 1 March 2020.

The By Lawyers example content letters provide for legacy employers.

The Fair Work Commission has the power to deal with disputes relating to legacy employers and satisfaction of the 10% decline in turnover test.

More information on Jobkeeper extension

The JobKeeper section of the By Lawyers Dealing with COVID-19 Legal Issues – Some practical information commentary has been updated. A link to this helpful resource is available at the top of the matter plan in every By Lawyers guide.

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