ByLawyers News and Updates

Family Provision – 101 Succession Answers (NSW)

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Two new cases on Family Provision claims have been added to the By Lawyers Reference manual 101 Succession Answers (NSW).

Affidavits and Disclosure

In Megerditchian v Khatchadourian [2019] NSWSC 1870 the court considered a number of important procedural issues, including the requirement that the plaintiff file an affidavit at the time of filing their summons and the issues relating to the form and evidentiary status of that affidavit. At [159]  the court stated:

… the purpose of the affidavit prescribed by the Practice Note is to identify, in broad terms, the plaintiff’s evidence concerning the factors enumerated in s 60(2) which may bear on the application. It will not necessarily be exhaustive, or all in admissible form, and it may be supplemented by further evidence as the case moves towards hearing.

The court also considered the plaintiff’s duty of disclosure. At [145] the court noted that:

It is well established that, in some circumstances, where a plaintiff in a family provision application fails to make full and proper disclosure of his or her financial position, the Court will refuse the application.

This case has been added to the Affidavits and Disclosure sections under Family Provision claims in 101 Succession Answers (NSW).

Disabled adult child claimant

In Cowap v Cowap [2020] NSWCA 19 the Court of Appeal considered the competing claims on an estate of a disabled adult son, the applicant/respondent, and an elderly widow, the respondent/appellant. The son was in fact a child of the widow’s previous marriage but had been adopted by the deceased.

The court at first instance granted the son provision of $600,000. This meant the widow had to sell the former matrimonial home where she had long resided with the deceased and to which she had significant emotional attachment. The son had ‘severe and permanent disability, including cognitive impairment’ because of which there was strong evidence in support of his need for provision. The widow, to whom the entire estate had been left, also had a strong claim on the estate as it was a long marriage.

The sale of the property allowed the widow to purchase another smaller property and maintain her existing income. The judge at first instance, in granting provision to the son, decided that was an appropriate outcome given the 91-year-old widow would inevitably leave the property in due course in any event.

The Court of Appeal held that the first instance judge had made no error and dismissed the appeal.

Of further interest in this case is that the Court of Appeal refused to admit on the appeal any new evidence of valuation of the property. [35].

This case has been added to the Adult Children section under Family Provision claims in 101 Succession Answers (NSW).

Insolvency – Company liquidation – FED

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A full review of the By Lawyers Insolvency – Company Liquidation guide has been conducted by our highly experienced author, Michael Murray.

The review ensures that all content is in line with current law and practice.

Updates and enhancements include:

  • New commentary on the statutory demand process, including applications to set aside statutory demands; and
  • Updates to a number of precedents to improve the Insolvency – Company Liquidation matter plan.

Keep up to date with By Lawyers

These updates to our Insolvency – Company Liquidation guide are part of By Lawyers commitment to the continual enhancement of our publications. By Lawyers subscribers can be confident that their guides and precedents are always kept up to date so they can enjoy practice more.

Insolvency – Bankruptcy of individuals – FED

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Author review

A full review of the By Lawyers Insolvency – Bankruptcy of Individuals guide has been conducted. The review ensures that all content is in line with current law and practice.

This review was conducted by our highly experienced author, Michael Murray.

Updates and enhancements include:

  • New commentary on recent law changes to debt agreements;
  • New commentary on the Federal Court and Federal Circuit Court processes for creditor’s petitions, applications to set aside bankruptcy notices and examinations; and
  • New commentary and matter plan additions because of new online processes for voluntary bankruptcy.

Keep up to date with By Lawyers

This review of our Insolvency – Bankruptcy of Individuals guide is part of By Lawyers commitment to regular updating and enhancement of our publications. By Lawyers always keeps you up to date so you can enjoy practice more.

Personal Injury – New list – VIC

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Personal injury lawyers should be aware that the Supreme Court of Victoria has a new case management list. The Institutional Liability List in the Common Law division manages institutional child abuse matters.

Proceedings suitable for inclusion in the list are those involving:

  • Claims against an organisation founded on the death or personal injury of a person as a result of alleged physical or sexual abuse of a minor.
  • Claims for breach of the duty of care imposed by s 91 of the Wrongs Act 1958 (Vic).
  • Applications to set aside a previous judgment or settlement agreement pursuant to sections 27QB or 27QD of the Limitation of Actions Act 1958 prior to the commencement of a proceeding on an action referred to in s 27QA of that Act.
  • Claims against an educational organisation arising out of the death or personal injury of a student of that organisation as a result of physical, sexual or psychological abuse by a fellow student or individual employed or associated with that organisation.

The management of proceedings in the Institutional Liability List is in accordance with Practice Note SC CL3 – Personal Injuries List.

The By Lawyers Personal Injury (VIC) Publication and the Supreme Court Civil (VIC) Publication have been updated accordingly.

Inspection – Right to inspect

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By Russell Cocks

First published in the Law Institute Journal

Contracts for the sale of land are known as executory contracts, as there is a time delay between entering into the contract and final performance. Consequently, the condition of the property may change between contract and settlement and the contract will usually give the purchaser the right to inspect the property as settlement approaches.

The right to inspect the property prior to settlement has been General Condition 22 of the LIV. contract of sale since 2008 but is General Condition 29 of the 2019 version of that contract and provides:

The purchaser and/or another person authorised by the purchaser may inspect the property at any reasonable time during the 7 days preceding and including the settlement day.

This General Condition was the subject of close examination in the case of Mediratta v Clark [2019] VSC 685. The purchaser failed to settle and the vendor rescinded. The purchaser claimed that the vendor was not entitled to rescind as the vendor:

  • was in breach of GC 22 by refusing to permit the purchaser and/or a nominee of the purchaser to inspect the property; and
  • was in breach of an implied term by refusing to permit a valuer authorised by the purchaser to inspect the property.

The contract provided for an extended settlement period of 14 months but the purchaser, who had paid a 5% deposit, had not accepted the vendor’s invitation to complete the Duties Online form, had not submitted a Transfer (paper settlement), nor a statement of adjustments. Days from settlement the purchaser requested an extension, which was denied. In those circumstances, the vendor refused to provide the agent with keys to allow the purchaser to inspect the property.

On the day that settlement was due the agent requested keys to allow a valuer to inspect the property. The vendor refused and issued a Default & Rescission Notice alleging failure to deliver the Transfer at least 10 days before settlement (GC 6) and failure to settle (GC 28). The vendor allowed the valuer to inspect within the 14-day default period but settlement did not take place prior to the expiration of the default period and the vendor regarded the contract as terminated. The purchaser requested an inspection after the expiration of the default period, but the vendor refused on the basis that the contract had been terminated and refused subsequent attempts to arrange a settlement.

The court considered the meaning of GC 22. The purchaser argued that the condition was wide enough to allow the purchaser to nominate a valuer to inspect the property for the purpose of obtaining finance. The vendor argued that the purpose of the condition was to allow the purchaser to establish whether the property was in ‘the state commensurate with the Vendor’s contractual obligation’. Derham AsJ traced the history of GC 22 and concluded that its purpose GC 22 is to allow a purchaser who is ready, willing and able to complete the contract to inspect the property for the purpose of being satisfied as to the condition of the property. It is not available to a purchaser who is not in a position to settle on the settlement day, nor for the purpose of valuation, particularly when the contract is not subject to finance.

The purchaser’s alternative argument was that, because it was a fundamental obligation of the purchaser to pay the balance due at settlement, the contract was subject to an implied condition that the vendor would co-operate with the purchaser to allow inspection of the property by a valuer. So much had been held in earlier cases but, as Derham AsJ pointed out, those contracts were subject to finance. Whilst acknowledging that a court might imply a general duty on the vendor to co-operate with the purchaser for the purpose of allowing the purchaser to satisfy the purchaser’s obligations pursuant to the contract, such an implied condition would not be ‘open-ended’. Citing a quote from Simcevski v Dixon [2017] VSC 197 His Honour confirmed that there ‘cannot be a duty to co-operate in bringing about something which a contract does not require to happen’. This contract required the purchaser to settle, it did not require the purchaser to obtain finance. Even if a duty to co-operate by making the property available for valuation were to be implied, it ‘would be limited in time and would not enable inspection at the 12th Hour’.

The purchaser’s final argument was that the vendor’s conduct was unconscientious. This was dismissed on the basis that the vendor was entitled to refuse inspection as the purchaser was in breach of GC 6 and had failed to sign the Duties Online form.

Tip Box

•GC 22 (now 29) entitles the purchaser to a pre-settlement inspection.

•If the contract is subject to finance, the vendor must co operate.

•If not subject to finance, the vendor’s duty is limited.

Family Law guides – FED

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Author review

A full review of the By Lawyers Family Law guides has been conducted to ensure that all content is in line with current law and practice.

This review was conducted by our experienced author Keleigh Robinson, a Family Law Accredited Specialist.

Resulting updates and enhancements to our Family Law guides include:

Children

  • New commentary on Watch list order applications.
  • New tables summarising:
    • Family violence legislation; and
    • Appeals from the Federal Circuit Court and the Family Court.
  • Amendments to the matter plan to cover potential issues, interim and urgent applications in the one section.
  • New example content precedents:
    • Application in a case for substituted service;
    • Affidavit in support of the application in a case for substituted service; and
    • Changing parenting orders by consent.

Property settlement

  • Expanded commentary on Conciliation conferences in the Federal Circuit Court.
  • A new table summarising appeals from the Federal Circuit Court and the Family Court.
  • ‘Going to Court’ sections on the matter plan updated in line with current practice.
  • New example content precedents:
    • Application in a case for substituted service; and
    • Affidavit in support of the application in a case for substituted service.

Financial agreements

  • Expanded commentary on the Court’s power to set aside a financial or termination agreement and Death of a party to a financial agreement.
  • Expanded table comparing financial agreement legislation for marriages and de facto relationships, including de facto relationships in Western Australia.
  • New precedent letters for drafts of the different types of financial agreements.
  • Improved accessibility on the matter plan to real property transfer forms for the different jurisdictions.

Divorce

  • Expanded commentary on:
    • The filing process for same-sex couples;
    • The application and service;
    • Marriage certificates;
    • Separation under the one roof;
    • Reduction of court fees;
    • Substituted service and dispensation of service; and
    • Finalising the divorce.
  • A new table and accompanying notes on property division.
  • A new same sex couples section on the matter plan.
  • Revised service section to reflect current practice.

101 Family Law Answers

  • New cases and commentary on:
    • Urgent and interim spousal maintenance;
    • Interim costs orders;
    • Amending applications, responses and other documents; and
    • Private mediation and lawyer attendance.

Keep up to date with By Lawyers

This review of our Family Law guides is part of By Lawyers commitment to regular updating and enhancement of our publications. With By Lawyers always keeping you up to date you can enjoy practice more.

101 Succession Answers – NSW

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Following an author review new cases have been added and other enhancements made to the By Lawyers Reference Manual 101 Succession Answers (NSW).

Nobarani v Mariconte [2018] HCA 36

This case supports the requirement of an ‘interested’ party wishing to challenge the validity of a will to show that they have rights which will be affected by the disputed grant of probate or administration.

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

Considerations regarding disclosure of documents and information in contested probate proceedings were extensively discussed. This case analysed the applicable law, practice and procedure in the context of applications to set aside subpoenas and notices to produce which called for documents relating to the making of the disputed wills. This included solicitors’ notes and files. The interplay between subpoenas, the court’s Practice Note SC Eq 11 and case management orders was examined in detail.

The court addressed the determination of ‘legitimate forensic purpose’ in such cases, especially where pleadings had not closed and the issues in dispute were uncertain. This decision has therefore been added to the By Lawyers Reference Manual 101 Subpoena Answers too.

The court also commented on the practice of sending ‘Larke v Nugus’ letters to ‘…a person involved in the preparation or execution of a will…[seeking] disclosures about the circumstances in which a will was prepared or executed’.

Application of NSW Trustee & Guardian; Estate of Dudley Keith Vaughn [2019] NSWSC 850 and In the Estate of Hansie Hart [2019] ACTSC 317

These two recent cases each dealt with issues relating to the presumption of death.

Gregory Joseph Mills as trustee v Julie Elizabeth Mills and Ors [2018] NSWSC 363

This case is instructive as to the considerations the court applies when giving judicial advice and determining construction issues on testamentary trusts.

Finnegan & Anor v Garner & Ors [2019] QSC 100

Here the estate faced claims which, if they were resolved by litigation would result in the estate being consumed by legal costs. The court noted, at [10], that:

It is the duty of trustees of the estate not to embark upon expensive litigation which will have the effect of depleting the estate. In Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of The Macedonian Orthodox Diocese of Australia and New Zealand Gummow ACJ, Kirby, Hayne and Heydon JJ said that: “a trustee who is sued should take no step in defence of the suit without first obtaining judicial advice about whether it is proper to defend the proceedings.”

Koellner v Spicer [2019] NSWSC 1571

On a family provision claim, an adult child with a medical condition and meagre financial resources was awarded a 35% legacy from the reasonably small estate even though the deceased had expressly excluded him on the basis they had no relationship.

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

The court emphasised, including by reference to the ‘overriding principles’ of the Civil Procedure Act, the duty on parties to contain costs in family provision litigation. The court heavily criticised disproportionate costs being incurred.

 

Like all By Lawyers Reference Materials, 101 Succession Answers (NSW) is updated regularly to cover developments in case law and procedure.

Presumption against bail – WA

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A presumption against bail has been created via recent amendments to the Bail Act 1982 (WA). There is now a presumption against bail for those charged with terrorism offences. This brings WA into line with other states.

The Bail Amendment (Persons Linked to Terrorism) Act 2019 (WA) amends the Bail Act 1982. Its purpose is the implementation of the 2017 Council of Australian Governments agreement for a presumption against bail to apply to persons with links to terrorism. A presumption against bail now applies in WA in relation to certain ‘terrorism offences’ and for ‘persons linked to terrorism’, as newly defined in s 3 of the Bail Act.

A person has links to terrorism for the purposes of the Bail Act if:

  • they are charged with, or have been convicted of, a terrorism offence; or
  • they are subject to an interim control order or confirmed control order made under the Criminal Code Act 1995 (Cth); or
  • they have been the subject of a confirmed control order within the last 10 years.

It is not necessary for these links to terrorism to have any connection to the charge currently before the court for which bail is being considered.

The amendments commenced on 1 January 2020.

The full commentary in the By Lawyers Criminal Magistrates Court guide for Western Australia has been updated accordingly.

Contract of Sale of Land – VIC

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With the LIV contract not currently available through LEAP, the By Lawyers Contract of Sale of Land is available to all LEAP users until 1 March 2020. Beyond that date it will remain available to LEAP users who have By Lawyers as a companion product to their LEAP subscription. It can also be accessed by non-LEAP users through the By Lawyers website by subscribing to our Victorian Conveyancing Guide, which has many associated benefits such as full access to 1001 Conveyancing Answers.

Adapting to the use of the Russell Cocks authored By Lawyers contract should present few problems as Russell was the principal author of the LIV contracts, including the 2008 version which effectively overhauled the previous contract and established the current format, making the terms of the By Lawyers contract familiar and making numerous improvements.

The By Lawyers Contract of Sale of Land for Victoria was introduced on 1 March 2018 and its use has been increasing steadily among Victorian legal practitioners and conveyancers. The By Lawyers contract removes the need for special conditions other than those covering special circumstances. It has a number of other advances over the LIV contract which further simplify the conveyancing process.

The By Lawyers legal and editorial teams ensure that the contract is immediately brought up to date with any changes in law or practice.

Recent amendments to the By Lawyers Contract of Sale of Land – Parts 1 and 2.

  • The ‘Payments’ section in Part 1 of the By Lawyers Contract of Sale of Land (VIC) has been amended for clarity regarding payment of GST;
  • A new clause has been added to Special Condition 14(f) of Part 2 which attaches a Flight v Booth type test to the purchaser’s ability to end the contract for unsatisfactory pest or building report;
  • The time for settlement has been moved from 3 pm to 4 pm to reflect current practice.

For further information see our previous post Seven reasons to use the By Lawyers contract.

Retail lease outgoings

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Phillips v Abel is significant as it continues the march of the Retail Leases Act in terms of the application of the Act to premises that might not, in the past, have been thought to have been retail premises. The April 2017 column considered CB Cold Storage Pty Ltd v IMCC Group (Australia) Pty Ltd [2017] VSC 23, which was subsequently confirmed on appeal, and since that case there has been a general understanding that the Act applies to many more premises than retail shops servicing the public. Phillips v Abel concluded that the Act applies to a quarry that supplied sand and other soil products in bulk. VCAT concluded that, as the buyers of the sand products basically used that sand “for their own purposes” as opposed to being “passed on by the purchaser in an unaltered state”, the buyers were the “ultimate consumer” of the goods and the Act applied.

Having satisfied the jurisdictional question, VCAT then moved on to consider the ability of the landlord to recover outgoings. This question is going to be of considerable significance in the current situation of many leases that may previously been thought not to be retail, now being held to be retail.

A landlord of a non-retail lease that has a right to recover outgoings may seek to exercise that right in a number of ways:

  1. by giving rate notices and other outgoings documents to the tenant for payment during the rating year;
  2. by paying the outgoings as they fall due and seeking reimbursement from the tenant;
  3. by calculating the anticipated outgoings and adding a fixed amount to the recurring rental figure; or
  4. by estimating the annual outgoings and seeking payment in advance from the tenant.

The method is not particularly significant, the important point is that the landlord has the freedom to adopt any of these, or other, methods of recovery of outgoings. However, the unexpected application of the Act means that recovery of outgoings is subject to a far more prescriptive statutory regime.

Section 46 requires a retail landlord to give particulars of outgoings to the tenant prior to entry into the lease, which will be by way of the Disclosure Statement, and again in respect of each of the landlord’s accounting periods during the lease, at least one month BEFORE the start of that period. Assuming that the landlord adopts the financial year as the relevant accounting period, the landlord must give an estimate of outgoings at least one month BEFORE the commencement of each financial year. Failure to provide the estimate means that the tenant is not obliged to contribute to outgoings.

An unexpected retail landlord will now find that a tenant may refuse to contribute to outgoings if, as will be the case, a Disclosure Statement has not been given. This refusal will be extended to each subsequent year unless the landlord has given the prescribed estimates prior to the commencement of the accounting year, which will not have been given as the landlord was of the view that the Act did not apply. Exacerbating the problem for the landlord is the decision in Phillips v Abel that subsequently giving details of prior outgoings does not satisfy the requirement to give estimates in advance. The tenant had not paid land tax or outgoings and the landlord could not recover either, because recovery of land tax is prohibited and the landlord had not complied with s 46 in relation to outgoings.

Australian Asset Consulting P/L v Staples Super P/L [2016] VCAT 1726 held that subsequent provision of a s 46 estimate DID enliven the tenant’s obligation to pay previous outgoings but this case was distinguished, perhaps tenuously, on the basis that the tenant had in fact mistakenly paid the outgoings and was seeking recovery.

Richmond Football Club Ltd v Verraty [2011] VCAT 2104 held that a retail tenant who mistakenly pays land tax is entitled to a refund as recovery of land tax is prohibited, but that a landlord who fails to comply with s.46 is not obliged to refund the outgoings, as the landlord had given good consideration for those payments.

Disputes relating to land tax and outgoings are likely to be a feature of the ever-widening retail leasing landscape.

Tip Box

•retail landlords must provide estimates of outgoings in advance

•if a timely estimate is not given the tenant is not obliged to pay

•a tenant who has paid is not entitled to a refund

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