ByLawyers News and Updates

Probate fees – VIC

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Probate fees for applications in the Supreme Court of Victoria have increased with effect from 18 November 2024.

Changes under the Supreme Court (Fees) Amendment Regulations 2024 have the effect of dramatically increasing, in many cases, the fees payable to file an application for probate or letters of administration at the Probate Office.

The changes to include:

  • new estate value brackets and corresponding fees;
  • changes to the advertising and small estate fees;
  • a new fee for re-advertising an application; and
  • a new fee for filing an amended originating motion.

The new estate value brackets and corresponding application fees are:

Gross value of estate for commencement of an application for a grant of representation Filing fee
$0 – $249,999.99 NIL
$250,000 – $499,999.99 $514.40
$500,000 – $999,999.99 $1,028.80
$1,000,000 – $1,999,999.99 $2,400.50
$2,000,000 – $2,999,999.99 $4,801.00
$3,000,000 – $4,999,999.99 $7,185.20
$5,000,000 – $6,999,999.99 $12,002.60
$7,000,000 and over $16,803.60

The full list of fees is available on the Supreme Court’s Probate Office fees webpage.

The By Lawyers Estates (VIC) publication has been updated, including the Retainer Instructions and Costs Agreements precedents, on the Probate and Letters of Administration matter plans.

These amendments come hot on the heels of a change to the way applications for probate, letters of administration, and reseal are advertised. See our recent News and Updates post concerning probate advertising for more information.

Family violence – WA

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Changes under Part 7 of the Family Violence Legislation Reform Act 2024 (WA) (the Reform Act) commenced on 14 November 2024.

These provisions amend critical definitions in the Restraining Orders Act 1997 (the Act). The Act provides for family violence restraining orders.

Sections 3 to 6A of the Act define all relevant terms used in the Act, including what constitutes family violence. The amendments introduce the concept that a pattern of behaviour can constitute family violence, as well as a single act of violence or a series of such acts.

Section 5A(1) of the Act, as amended by the Reform Act, now defines family violence as:

(a) violence, or a threat of violence, by a person towards a family member of the person; or

(b) any other behaviour or pattern of behaviour by the person that coerces or controls the family member or causes the member to be fearful.

The Act now makes it clear that relevant behaviour, or a pattern of behaviour, can occur over a period of time, may be more than one act or a series of acts that cumulatively coerce or control a family member or causes them to be fearful, and is to be considered in the context of the parties relationship as a whole: s 5A(1A).

Section 5A(2) of the Act provides a non-exhaustive list of examples of behaviour, or patterns of behaviour, that may constitute family violence.

The By Lawyers Restraining Orders (WA) publication has been updated accordingly.

Other amendments under the Reform Act that affect bail and the way the criminal justice system deals with mentally impaired accused are yet to commence. The By Lawyers Magistrates Court Criminal (WA) guide will be updated when those further changes are proclaimed to commence.

Defaulters List – FED/NSW

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Family Law Defaulters List – Sydney Registry pilot

The Sydney Registry of the Federal Circuit and Family Court of Australia (FCFCOA) is operating a Defaulters’ List, as a pilot project, from October 2024.

The purpose of the list is to ensure compliance with the relevant Family Law Rules, and with any case management orders and directions made by the court in family law or child support proceedings.

The list is governed by the FCFCOA’s Family Law Practice Direction: Defaulters’ List, which:

  • sets out when a party is deemed to be in default;
  • provides that the onus is on the defaulting party to show cause why a sanction or penalty should not be applied; and
  • notes the powers of the court to sanction and penalise parties, including as to costs.

In considering a show cause application the court can consider:

  • the interests of the parties in the proceedings and the administration of justice by the court more generally;
  • whether the application for relief has been made promptly;
  • whether the failure to comply was intentional;
  • whether there is a good explanation for the failure;
  • the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
  • whether the failure to comply was caused by the party or their legal representative;
  • whether the trial date or the likely trial date can still be met if relief is granted;
  • the effect which the failure to comply had on each party; and the effect which the granting of relief would have on each party;
  • whether all parties consent to the step being taken after the specified time;
  • any other matter that the court consider relevant.

See the By Lawyers Family Law – Children and Family Law – Property Settlement commentaries for more information about dealing with breaches of orders.

Probate advertising – VIC

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There is a new procedure for Probate advertising in Victoria from 11 November 2024.

Applications for probate and letters of administration from that date will be advertised via RedCrest-Probate instead of the Probate Online Advertising System (POAS). The intention of the change is to streamline the process and remove the need for information to be entered twice. Practitioners will only need to use one system to search, advertise, and apply for grants of representation in Victoria.

The POAS ceases to operate on 7 November, and no probate advertising will be possible from that date until Monday, 11 November, when the new system commences.

RedCrest-Probate is the Supreme Court’s existing online filing system for all applications for grants and all documents in relation to grants.

The first step in any application is a Notice of Intention to Apply. This is now lodged and advertised via RedCrest-Probate.

All advertisements previously published on POAS remain valid for three years from their date of publication. POAS advertisements will be searchable on RedCrest-Probate once the new system commences.

The Supreme Court (Administration and Probate) Rules 2023 set out the information that must be included in the Notice of Intention to apply. There are different requirements under the rules depending on whether the application is for probate, letters of administration on intestacy, letters of administration with the will attached, or resealing a grant from another jurisdiction.

The By Lawyers Probate (VIC) and Letters of Administration (VIC) will be updated accordingly for the commencement of the new probate advertising procedure.

Super Call Overs – NSW

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The Local Court of NSW is currently holding Super Call Overs of pending criminal matters with the intention of reducing delays.

Matters more than 12 months old that currently have a hearing date after 1 February 2025 in the participating courts will be listed in the Super Call Overs.

The participating Local Courts are:

  • Burwood;
  • Campbelltown;
  • Downing Centre;
  • Gosford;
  • Liverpool;
  • Newtown;
  • Penrith;
  • Parramatta;
  • Waverley; and
  • Wyong.

The court’s expectations at these listings are that:

  • parties have had discussions and provided a Notice of Readiness to the relevant court registry at least 21 days prior to the Super Call Over listing;
  • legal representatives in attendance will have sufficient authority so that matters can be effectively dealt with, including to finality; and
  • the court will be unambiguously told about the matter’s state of readiness.

Matters will be dealt with in the following order of priority:

  1. Defendant in custody, matter pending for over two years, DV (domestic violence);
  2. Defendant in custody, matter pending for over two years, non-DV;
  3. Defendant in community, matter pending for over two years, DV;
  4. Defendant in community, matter pending for over two years, non-DV;
  5. Defendant in custody, matter pending for 1-2 years, DV;
  6. Defendant in custody, matter pending for 1-2 years, non-DV;
  7. Defendant in community, matter pending for 1-2 years, DV;
  8. Defendant in community, matter pending for 1-2 years, non-DV;

Defendants who plead guilty at the Super Call Over will proceed to sentence on the day. Otherwise, the matter will be given a new hearing date after 1 February 2025.

Practitioners with a qualifying matter can contact the relevant court registry for inclusion in the Super Call Over list.

For more information about criminal procedure and domestic violence offences, see By Lawyers Local Court – Criminal (NSW) and Apprehended Violence Order (NSW) publications.

Costs – All states

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By Lawyers 101 Costs Answers reference manual has been extensively reviewed and enhanced.

This comprehensive reference manual is available in the Reference materials folder on all By Lawyers matters plans. The 101 Costs Answers guide is also as part of the By Lawyers Practice Management publication.

Commentary enhancement

An important new section of commentary has been included dealing with disclosure before settlement in litigation matters. Barrister Philippe Doyle Gray, who we are delighted to welcome to the ranks of our authors, covers in detail the requirement under the Legal Profession Uniform Law for clients to receive advice about the cost implications of settlement. Philippe has also made his helpful Settlement Computer available via a link in the By Lawyers commentaries. This automated spreadsheet assists practitioners with the sometimes complicated calculations required to properly give disclosure before settlement, taking into account the various possibilities for the resolution of a matter.

The new section of commentary has been added to the By Lawyers litigation and injuries guides in those states where the Legal Profession Uniform Law applies, namely New South Wales, Victoria and Western Australia.

New precedents

Two new precedent letters to the client have been added to provide clients with the necessary disclosure before settlement:

  • Letter to client – Costs disclosure before settlement – NSW, VIC and WA;
  • Letter to client – Costs disclosure before settlement – QLD, SA, TAS, ACT and NT.

There is one precedent letter for Legal Profession Uniform Law states and one for the other jurisdictions where costs disclosure before settlement is not mandatory but is nonetheless best practice.

These new letters are available in the If required – Updating costs disclosure and security for costs folder on all By Lawyers matter plans. They are also available on the relevant litigation and injuries matter plans under Going to court.

Costs agreements

By Lawyers extensive suite of costs agreements that comply with the regulatory requirements in each state are currently under review. Keep an eye out for a future News & Updates post when the revised versions are published.

Transfer duty concession – VIC

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A new and temporary off the plan land transfer duty concession is available in Victoria.

The concession applies to the purchase of strata dwellings off the plan.

Contracts for apartments and townhouses purchased off the plan that are entered into from 21 October 2024 attract the concession, which is available for 12 months.

The new transfer duty concession will significantly reduce duty payable by eligible purchasers. For example, the duty payable on a $620,000 apartment will be reduced from $32,000 to $4,000.

Eligible purchasers will be able to deduct the construction costs incurred on or after the contract date from the dutiable value of the property. Land transfer duty will then be calculated on this reduced amount. Other concessions may also apply based on this reduced amount.

Eligibility

The concession is available to all purchasers, whether owner occupiers or investors, individuals, companies, and trusts. The purchaser is not required to also be eligible for either the principal place of residence duty concession, or the first home buyer duty exemption or concession.

Eligibility for the new transfer duty concession is assessed at the date the contract of sale is entered into, irrespective of whether settlement occurs before or after the end of the 12-month window during which the concession applies.

Contracts signed before the concession’s commencement date but settled during the 12-month window are not eligible.

How to apply

Applications are made through Duties Online by completing the Digital Duties Form.

For further information, including some useful examples of how the concession is calculated, see the Temporary off-the-plan duty concession page published by the State Revenue Office Victoria.

By Lawyers – Always up to date

The By Lawyers Purchase of Real Property (VIC) guide, including the Full Commentary and the Retainer Instructions precedent, has been updated.

Administrative Review Tribunal – FED

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The Administrative Review Tribunal (ART) commenced on 14 October 2024. It replaced the Administrative Appeals Tribunal (AAT) and the Immigration Assessment Authority (IAA) which are both abolished.

The new tribunal was set up with the stated objective of providing an independent mechanism for review that:

  • is fair and just;
  • ensures that applications to the tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the tribunal permits;
  • is accessible and responsive to the diverse needs of parties to proceedings;
  • improves the transparency and quality of government decision‑making; and
  • promotes public trust and confidence in the tribunal.

The ART consists of a President and a Deputy President, both of whom must be judges, as well as senior members and general members.

The tribunal’s governing legislation is the Administrative Review Tribunal Act 2024 (the Act) and the Administrative Review Tribunal Regulations 2024 (the Regulations).

Provisions of other legislation can apply in addition to or instead of the Act. The Migration Act 1958 contains several such provisions.

The Minister has rule-making power under the Act, and the President of the ART can make practice directions.

Publication updates – Immigration

The Administrative Review Tribunal deals with matters including reviewable migration decisions and reviewable protection decisions. The By Lawyers Immigration guide has been updated accordingly.

Changes concerning how reviews of visa decisions are dealt with include:

  • The divisions of the previous tribunal have been replaced with eight jurisdictional areas, one of which is migration. Lists within each jurisdictional area led by a Deputy President or Senior Member will focus expertise on particular types of applications.
  • The procedures of the tribunal are harmonised and contained in the Regulations, the Rules and Practice Directions.
  • Fast-track reviews under the provisions of Part 7AA of the Migration Act 1958 in relation to protection visa decisions, previously dealt with by the IAA, are no longer available and the provisions have been repealed.
  • Reviews under Parts 5 and 7 of the Migration Act 1958 are now heard by the Administrative Review Tribunal.
  • Appeals and reference of questions of law can be made from the ART to the Federal Court under Part 7 of the Act.
  • A guidance and appeals panel has been established consisting of senior tribunal members to review tribunal decisions if there is an issue of significance to administrative decision-making, or an error of fact or law materially affecting the tribunal’s decision.
  • The ART is subject to monitoring by the newly established Administrative Review Council with regard to the overall administration of justice, not individual decisions.

Commencement and transitional provisions

The new law applies to all new and existing cases from 14 October 2024. Proceedings commenced in the AAT of IAA under the old statutory regime will automatically be transferred to the ART and dealt with under the new law.

Proceedings for review of a reviewable protection decision previously fast-tracked by the IAA will be continued and finalised by the ART.

New forms will be created, but the old forms can continue to be used for review applications after 14 October 2024.

AML/CTF – All states

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A Bill currently before Federal parliament expands the existing AML/CTF regime under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (the Act) to real estate professionals, dealers in precious metals and precious stones, and professional service providers, including lawyers, conveyancers, accountants, and trust and company service providers. These are all known as reporting entities.

The Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024 (Cth) will have a substantial impact on law firms and some preparation will be required before its commencement.

Commencement

The Bill’s main provisions commence in March 2026.

Customer due diligence

Requirements for a reporting entity to identify their customer through initial Customer Due Diligence (CDD) include:

  • if the customer is an individual, taking reasonable steps to establish they are who they claim to be, including if they are a politically exposed person;
  • identifying the customer’s ML/TF risk;
  • collecting information about the customer appropriate to ML/TF risk; and
  • verifying the customer information using independent and reliable data that is appropriate to ML/TF risk.

Ongoing CDD requirements require reporting entities to monitor their customers to appropriately identify, assess, manage, and mitigate the ML/TF risks they may reasonably face in providing services. This includes reviewing and updating customer information and monitoring for unusual transactions and behaviours that may give rise to a suspicious matter reporting (SMR) obligation.

Reporting entities may apply simplified CDD, and must apply enhanced CDD, as part of initial and ongoing CDD in certain prescribed circumstances.

Simplified CDD gives reporting entities more discretion, provided the customer’s ML/TF risk is low and other requirements are met, to apply simplified initial and ongoing CDD.

Reporting entities must apply enhanced CDD appropriate to customer risk in certain specified circumstances, or if the customer is high ML/TF risk. In these cases, reporting entities are required to collect and/or verify additional information relevant to mitigating the identified higher risk, and must be reasonably satisfied that they know and understand the identity of their customer.

In enhanced CDD scenarios, ongoing CDD must also be adjusted to ensure it is appropriate to the ML/TF risk of the customer and meets specific requirements to be set out in the AML/CTF Rules.

Policies

Reporting entities must have internal policies for AML/CTF that meet the requirements of the Rules that need to cover:

  • how the reporting entity will inform its governing body of the money laundering, terrorism financing, and proliferation financing risks faced by the reporting entity in its provision of designated services;
  • designating an AML/CTF compliance officer;
  • designating a senior manager responsible for approving any changes to the ML/TF risk assessment or AML/CTF policies;
  • how the reporting entity will undertake due diligence on staff engaged by the reporting entity whose role in the reporting entity may allow them to facilitate serious financial crimes or whose role is relevant to AML/CTF compliance;
  • how a reporting entity will provide risk awareness and management training to staff engaged by the reporting entity;
  • how, and when, to conduct an independent review of its AML/CTF program; and
  • any other matters provided for in the AML/CTF Rules.

Privilege

Section 242 of the Act already provides that it does not affect the law relating to legal professional privilege. The Bill provides stronger protections for the disclosure of information or documents that are subject to legal professional privilege to reflect the fact that lawyers are to be included in the regime.

Offence

The Bill creates a new offence intended to prevent the reporting entity disclosing information to their clients, such as the fact they have made a suspicious matter report, if it could reasonably prejudice an investigation.

Act repealed

The Bill also repeals the Financial Transaction Reports Act 1988 (FTR Act).

Guidance

The Law Council of Australia has issued Guidance for the profession on these changes.

Publication updates

By Lawyers publications will be amended as required to account for these changes. Specific amendments are likely to include First steps in all commentaries, the Conveyancing and Property guides in each jurisdiction, and the Practice Management guide.

In the interim, this overview of the Bill’s impact is being added to the Looking to the Future summary of forthcoming significant amendments in the Reference Materials folder of all By Lawyers publications.

Trusts guide – All States

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The By Lawyers Trusts guide has been extensively reviewed, resulting in:

  • enhancements to the commentary for readability and ease of navigation; and
  • additional precedents and a new hyperlink on the matter plan including:
    • Initial letter to client enclosing costs agreement – Discretionary trust;
    • Initial letter to client enclosing costs agreement – Unit trust;
    • Scope of work – Trusts;
    • Deed of retirement of trustee;
    • Invoice recital – Trusts; and
    • A hyperlink to assist with applying for charity registration for a charitable trust.

Practitioners are also reminded that a new precedent Trust Deed Review Checklist was added to the Trusts guide recently in response to a request from a practitioner.

The checklist is a useful tool for lawyers when:

  • preparing a new trust deed on a client’s instructions;
  • reviewing an existing trust deed in the course of trust administration;
  • reviewing an existing trust deed when acting for the trustees in a transaction involving trust property;
  • acting for a client in a transaction where the other party is a trustee, or
  • acting for parties in a dispute over a trust, or trust property.

The new Trust Deed Review Checklist is found in folder B. Trusts generally in the By Lawyers Trusts guide.

Trusts is an extensive publication. The commentary deals with all aspects of discretionary trusts, unit trusts, charitable trusts, and special disability trusts. The array of precedents includes deeds and clauses for various iterations of all of those trusts.

At By Lawyers, we love receiving feedback from the law firms using our content, and we are always ready to add helpful new precedents that practitioners need. It’s part of our commitment to practicality and helping lawyers enjoy practice more.

If using our Trusts guide, please don’t hesitate to let us know what you think of the enhancements and additions; you can email us any time at askus@bylawyers.com.au.

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