ByLawyers News and Updates

Nomination

by

By Russell Cocks, Solicitor

First published in the Law Institute Journal
It is common for a named purchaser under a contract of sale of land to nominate an additional or substitute purchaser. What if disputes arise between the parties to the nomination?

Such a nomination, in its simplest form, is a two-party agreement between the named purchaser and the nominated purchaser. It is a contract that exists primarily in a written form, but it may be that there are also implied conditions arising from verbal agreements between the parties or the surrounding circumstances. It is possible to make a nomination a tripartite agreement, involving the vendor as the third party, but this is unusual and a conventional nomination binds the named purchaser and the nominated purchaser but does not bind the vendor, who stands aloof from such agreements.

There is no specified form of nomination. A form in common use simply recites the parties and records that the named purchaser nominates the nominated purchaser to take a transfer of the property in the place of the named purchaser. It is important to realise that the effect of such a nomination is NOT to replace the named purchaser with the nominated purchaser in the contract. Such a substitution of the named purchaser with the nominated purchaser can only be achieved with the consent of the other party to the contract, the vendor, and would result in the named purchaser exiting the contract and the nominated purchaser becoming a party to the contract and assuming all the rights and obligation of the purchaser pursuant to the contract. In a conventional nomination environment, the named purchaser remains as a party to the contract and the nominated purchaser assumes no rights or obligations under the contract, other than being nominated to take a transfer in the place of the named purchaser.

The nominated purchaser is therefore entirely dependent upon the named purchaser for enforcement of the contract and it is unwise for the nominated purchaser to allow any reimbursement of the named purchaser’s deposit to be released to the named purchaser prior to completion of the contract. If the named purchaser receives the reimbursement of deposit prior to completion, the named purchaser may be reluctant to enforce the contract at a later stage, leaving the nominated purchaser without any ability to require the vendor to complete the contract. This is a matter that should be, but rarely is, dealt with in the written nomination agreement.

The abbreviated form of standard nomination agreements means that if a dispute arises between the parties to the nomination, a Court may be required to look behind the written agreement to determine the full extent of the rights and obligations of the parties to the nomination. Ran Bi and Sortop P/L v Yingde Investments P/L [2019] VSC 324 is a case involving just such a dispute.

The named purchaser nominated the nominated purchaser to take transfers in relation to a number of properties that the named purchaser had entered into terms contracts to acquire for land development purposes. Substantial amounts by way of deposits were due under the contracts and the named purchaser was unable to fund those deposits, thus the nominated purchaser was introduced to the project to provide funding and proceed with a development via a land holding company owned by the named purchaser and the nominated purchaser. Disputes arose between the named purchaser and the nominated purchaser after the nominations had been signed, but before final settlement. The named purchaser argued that the nomination had been terminated by the parties and was no longer effective, leaving the named purchaser as the party entitled to take the transfers.

The Court was not satisfied that the nomination had in fact been terminated and held that the nominated purchaser was entitled to be the transferee when those contracts came to settlement. The Court had no problem with the concept of the nomination being retracted, it simply found that such an outcome could only be achieved by the agreement of the two parties to the nomination and that there was no such agreement in this case.

If the parties can agree to retract a nomination, could the named purchaser make another nomination? There appears to be no reason in principle why a second nomination cannot occur. Subject to the vendor being informed of the retraction and second nomination, the vendor has no role in the process other than to comply with the purchaser’s written direction in relation to the transferee.

Some vendors insert complex nomination conditions into contracts that impose specific notification requirements and/or require payment of a fee to the vendor. Section 42(3) Property Law Act prohibits the imposition of such a fee on the purchaser, but a requirement that the nominee pays a fee is enforceable.

Tip Box

•The right to nominate is regulated by the contract

•The nominee does not become a party to the contract

•A nomination may be withdrawn and a fresh nomination made.

Online applications for intervention orders – VIC

by

Online applications for intervention orders are now available for family violence related matters, via the Magistrates’ Court website.

Amendments to the Family Violence Protection Act 2008 which commenced on 31 July 2019 allow an applicant to apply online, instead of attending in person at a police station or magistrates  court. Online applications for intervention orders take about 15 minutes to complete. They can be saved, amended and lodged at any time within 4 weeks of being started.

Police can also make the online application on someone’s behalf.

There is no requirement for the application to be sworn or witnessed. Rather, when completing the online application the applicant must make a declaration of truth as to the contents of the application. Making a deliberately false declaration of truth is an offence carrying serious penalties – up to 600 penalty units and 5 years imprisonment. The applicant must also acknowledge their understanding of that offence and those penalties when completing the application.

When deciding whether to make an interim order based on an online application, the Magistrates’ Court can waive the requirement that the application be supported by oral evidence or an affidavit. Before waiving the requirement the court must consider whether it is practicable to obtain oral evidence or an affidavit before the order is made.

The By Lawyers guide Intervention Orders (VIC) has been updated to cover online applications for intervention orders. This publication is located in the By Lawyers Criminal – Magistrates’ Court guide.

Assistance for potential applicants and background information on the new process is available from the Neighbourhood Justice Centre via the Magistrates’ Court website.

Subpoena objections – FED and All states

by

A new case on subpoena objections has been added to the By Lawyers Reference Guide 101 Subpoena Answers.

In Weeks v Nationwide News Pty Ltd [2019] WASC 268, the court considered whether a subpoena in a defamation case should be set aside for lack of  a legitimate forensic purpose (LFP).

The court succinctly stated the law on LFP, to the effect that The issuing party must identify expressly and with precision the legitimate forensic purpose for which they seek access to the documents. The issuing party must then satisfy the court that it is ‘on the cards’ that the documents would materially assist the issuing party in their defence‘.

In this regard the Court followed the leading LFP cases of R v Saleam (1989) 16 NSWLR 14 and Alister v R (1984) 154 CLR 404, 414. The Court also followed the earlier Western Australian full court decision of Stanley v Layne Christensen Co [2004] WASCA 50 regarding legitimate forensic purpose. The subpoena in this case was set aside.

This Western Australian decision has been added to 101 Subpoena Answers under the section on Legitimate forensic purpose in civil cases. This publication is an excellent resource for practitioners conducting litigation and dealing with subpoenas in all courts, whether issuing or responding, and including subpoena objections.

101 Subpoena Answers is available in all By Lawyers state court Litigation publications, as well as our Family Law, Family Provision, Injuries, Employment Law and Defamation guides.

 

Homemade wills – NSW

by

The Supreme Court of NSW recently considered homemade wills in Jones v Robinson & Ors [2019] NSWSC 932.

Particularly in question was the appropriate interpretation where ambiguity existed in the document.

The Court affirmed the ‘well accepted’ principles from Justice Isaacs in Fell v Fell (1922) 31 CLR 268 on the construction of wills and further noted that:

‘With any homemade will the language used will often be informal, but the plain meaning of words should not be ignored. Moreover the instrument has to be viewed as a whole. Inaccuracies or inconsistencies should be looked at so as to best preserve a testator’s intention and that approach should be a predominant consideration in the construction of the instrument’.

In determining that the testator’s failure to deal with the residuary of her estate did not create an intestacy, the Court stated that ‘The mere fact that the creator of a homemade will did not contemplate every legal contingency or the potential of residue does no more than highlight that the maker is not a lawyer’.

Of course the mere fact that ambiguity existed and an expensive court case was required to resolve it, tends to support the value of wills drafted by lawyers over homemade wills. The By Lawyers Wills publication contains carefully drafted wills precedents, a library of additional clauses and practical commentary written by experienced lawyers, to assist practitioners who are preparing wills for their clients. The By Lawyers Wills publication also includes the By Lawyers Reference Guide 101 Succession Answers – to which Jones v Robinson has now been added.

Litigation guardian – solicitor’s certificate – VIC

by

A new precedent ‘Solicitor’s certificate – Appointment of litigation guardian’ – has been added to By Lawyers Victorian civil litigation publications.

This precedent meets the requirement of reg 15.03(6)(a) of the Supreme Court (General Civil Procedure) Rules 2015. This regulation requires that, when seeking appointment of a litigation guardian in civil proceedings in the Supreme Court and the County Court, a certificate is to be completed by the solicitor for the person under disability certifying that the solicitor knows or believes that—

  1. the person to whom the certificate relates is a person under disability, including the grounds of the solicitor’s knowledge or belief; and
  2. the litigation guardian of the person under disability has signed the written consent and has no interest in the proceeding adverse to that person.

This certificate must be filed in the office of the Prothonotary before a person can be named as a litigation guardian in proceedings.

This helpful new precedent has been added to the By Lawyers Supreme Court, County Court and Family Provision claims publications. The precedent was created by our author as a result of feedback from a subscriber.

Setting aside financial agreements – FED

by

A recent case on setting aside financial agreements has been added to the By Lawyers 101 Family Law Answers publication.

Section 90K(1) of the Family Law Act 1975 provides for the limited circumstances in which a court will consider setting aside financial agreements entered into by married couples. The equivalent section for de facto couples is s 90UM.

In Frederick & Frederick [2019] FamCAFC 87, the Full Bench of the Family Court set aside a financial agreement on the grounds that there had been a material change in the circumstances relating to the care, welfare and development of a child of the marriage and the applicant would suffer hardship if the agreement were not set aside – s 90K(1)(d).

See 101 Family Law Answers and the By Lawyers Family Law commentary for more information.

Training and supervision – Podcast

by

Training and supervision of junior professional staff is a critical area for law firms. It impacts directly on many key areas of the practice: quality and consistency of output, productivity, team harmony and staff retention – and perhaps most importantly of all client satisfaction.

Our Managing Director Brad Watts recently shared some thoughts, as part of a LEAP global podcast series, about how By Lawyers practical legal guides can assist with training and supervising junior lawyers. Brad has 25 years of legal practice experience and is one of the contributors to the By Lawyers Practice Management guide.

Listen to the podcast to hear how By Lawyers guides can assist firms and individual solicitors with their training and supervision requirements.

By Lawyers guides include detailed commentaries and reference materials which are powerful tools to help ensure junior lawyers  have the guidance and support they need, improving productivity and retention of staff, while easing the pressure on principals and more senior lawyers.

Enjoy practice more, with By Lawyers.

 

 

Special Hardship Order – Traffic law – QLD

by

Following recent amendments, Queensland drivers who are subject to a Special Hardship Order can no longer accumulate any demerit points. If they do, their licence will be suspended for double their original suspension period.

A Special Hardship Order is available under the Transport Operations (Road Use Management–Driver Licensing) Regulation 2010. An application can be made by a driver whose licence has been suspended. The driver must present the court with affidavit evidence that they meet certain criteria and establishing hardship as a result of the licence suspension. If the order is granted the driver will be able to resume driving but will be subject to the conditions of the order for a period equating to the original suspension period.

Breaching the conditions of a Special Hardship Order attracts a fine of 20 penalty units and automatic disqualification for the remainder of the original suspension period, plus 3 months.

Effective from 1 July 2019, drivers who are subject to a Special Hardship Order will also be unable to accumulate any demerit points.

See the By Lawyers Traffic Law guide for more information.

1 July updates – FED and All states

by

1 July updates are a big focus for By Lawyers. This is because many commonwealth and state legislative instruments provide for scheduled indexing of relevant monetary amounts and increases in government fees and charges.

These updates can include court filing fees, lodgement fees for property dealings, minimum weekly compensation amounts for Workers Compensation and various fines.

By Lawyers always monitor these changes for our subscribers. Each year we ensure that our publications are amended where necessary to reflect 1 July updates.

We also monitor and update for legislative indexing and increases which occur regularly at other times. These include 1 January changes and also other specific dates prescribed by some statutes.

The 1 July updates have been applied to the following By Lawyers publications:

  • Conveyancing and Property;
  • Criminal;
  • Litigation;
  • Family;
  • Estates;
  • Injuries; and
  • Employment.

Stay updated with By Lawyers guides and precedents. Happy new financial year!

Connect with us