ByLawyers News and Updates

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!

Retirement Villages – NSW

by

From 1 July 2019 the Retirement Villages Amendment Act 2018 amends the legislation relating to retirement villages in NSW.

The amendments provide further protections for current and prospective residents. These amendments are intended to increase transparency, improve dispute resolution, provide more certainty around costs and strengthen villages’ safety and emergency planning and procedures.

The reforms include:

  • annual contract ‘check-up’ meetings;
  • enhanced sharing and publication of information;
  • binding Rules of Conduct for Operators of Retirement Villages with which operators must comply. These supplement the provisions in the Act and the regulations, with certain rules to commence 1 January 2020;
  • provisions for mediation of disputes;
  • new requirements for emergency plans, annual evacuation exercises and display of key safety information;
  • new auditor appointment processes.

Yet to commence are provisions requiring village operators to prepare and maintain an asset management plan for items of capital at the village for which the operator is responsible.

See the By Lawyers Retirement Villages (NSW) publication for further details.

Working order condition

by

By Russell Cocks

First published in the Law Institute Journal
A purchaser pursuant to a contract of sale of land may sometimes request that a ‘working order’ condition be added to the contract

Parties to a contract of sale of land are free to negotiate the terms of their contract and include whatever conditions they agree to. In the context of the standard contract of sale of land, such an agreement will be recorded by way of a Special Condition added to the 28 General Conditions. Such Special Conditions usually provide that all fittings, fixtures and chattels included in the sale are to be in working order as at the date of settlement. The focus of the purchaser is usually on such items as heating and cooling equipment, hot water services, swimming pool equipment and even stoves and lighting.

Because there is no General Condition applicable to this situation, the wording used often varies between contracts and the first difficulty is to determine the exact meaning and application of the Special Condition. No Court has had cause to interpret such a Special Condition, so no assistance can be gained from decided cases and as Working Order conditions are often drafted by estate agents on an ad hoc basis, interpretation is often a difficult task.

Such Special Conditions effectively seek to amend General Condition 24 of the standard contract, which provides that the vendor is obliged to deliver the property (which includes fittings & fixtures and arguably includes the chattels listed in the contract) to the purchaser at settlement in the same condition that it was in on the day of sale, fair wear and tear excepted. A Working Order Special Condition seeks to amend this general condition in two ways:

  1. General Condition 24 does NOT require the vendor to improve the property after contract, merely maintain it. Something that was not working on the day of sale does not have to be working at settlement, as it complies with General Condition 24 by being in the same condition at settlement as it was upon sale.

A Working Order Special Condition will require the vendor to improve an item that was not working on the day of sale, unless the vendor specifically excludes that item. Thus, an air conditioning unit that was not working on the day of sale must be repaired (or replaced) by the vendor prior to settlement, unless the vendor specifically excludes that unit from the Working Order Special Condition.

  1. The ‘fair wear & tear’ exception in General Condition 24 will be overridden by a Working Order Special Condition, such that the vendor will have an absolute obligation to have all aspects of the property in working order at settlement, irrespective of the cause of the deterioration. An air conditioning unit that was working at contract but stops working before settlement is an example of fair wear and tear, but under a Working Order Special Condition there is usually no provision for fair wear and tear and the vendor would be obliged to repair or replace the air conditioning unit prior to settlement.

Consequences of Breach

General Condition 24(a) provides a limited right to compensation for breach, but that right relates to a breach flowing from a failure to deliver the property in a significant sense, not the breach of a relatively insignificant provision such as a Working Order condition. (see April 2019 Property column) Therefore, the purchaser’s remedy for a breach of a Working Order condition is to rely on common law rights flowing from the breach and to sue the vendor AFTER settlement for consequential loss. There is certainly nothing in the standard contract that will allow the purchaser to refuse to settle for breach of a Working Order condition, or to claim a reduction in the purchase price. Even if the Working Order condition is framed as a warranty by the vendor, the common law remedy for breach of warranty is by way of damages to be pursued after settlement.

In those circumstances, a Working Order condition may be more trouble than it is worth. It reflects an unrealistic purchaser expectation that a second-hand property will be in an as-new condition at settlement and it simply creates disputation at the time-poor end of the transaction. Given that the purchaser’s right is limited to proceedings after settlement, the prospect of a pyrrhic victory looms large.

Conveyancing needs to be a smooth process, for both the clients and their representatives. Adding additional speedbumps to that process is not in the interest of either the clients or their representatives.

Tip Box

•Working Order conditions may be added to contracts

•Vendor may need to improve the property

•Purchaser can only sue after settlement

Retail Lease Summary – VIC

by

By Lawyers Leases guide in Victoria now includes a summary precedent for the By Lawyers Retail Lease.

This helpful document is similar to the LIV Schedule, however this precedent is not intended to form part of the lease – it is strictly a summary of the central terms.

Amendments and additions are to be made in Item 24 of the Disclosure Statement.

This Retail lease Summary is particularly useful when explaining the lease to the client.

The corresponding item number from the disclosure statement and/or relevant clause of the terms and conditions is displayed on the left.

This precedent was created as a result of a user request. By Lawyers loves to respond to feedback from our users.

 

Insolvency To Do lists – FED

by

The By Lawyers Bankruptcy and Liquidation guides have been updated with the inclusion of four Insolvency To do lists.

These new precedents provide practical guidance for practitioners as they progress through a matter.

The To Do lists provide helpful prompts for each important step to be taken in a matter when acting for either the creditor or the debtor in both personal and corporate insolvency matters, including:

  • Liquidation;
  • Winding up;
  • Deeds of company arrangement;
  • Debt agreements;
  • Personal insolvency agreements; and
  • Bankruptcy proceedings.

The new To Do lists can be found in folder A. Getting the Matter Underway in the By Lawyers Bankruptcy and Insolvency guides and will assist practitioners in safely and efficiently managing their matters.

E-conveyancing from 1 July 2019 – NSW

by

In a continuation of the transition to E-conveyancing version 5 of the Conveyancing Rules replace version 4 from 1 July 2019.

Version 5 of the rules provide that all mainstream dealings including transfers, mortgages, discharges of mortgage, caveats, withdrawals of caveat and transmission applications, or combinations thereof, must be lodged electronically when signed on or after 1 July 2019, except where a waiver applies.

Waivers

Waivers apply to certain transactions that are not able to be lodged electronically.

The following waivers which operate from 1 July 2019 in conjunction with Conveyancing Rules version 5 have now been published:

If eligible for a waiver, a Conveyancing Rules Exception form will need to be complete at the point of lodgement. This form is available in the sale and purchase matter plans.

An Alert has been added to the by Lawyers Conveyancing Sale and Purchase matter plans regarding the 1 July 2019 mandate.

Keep up to date with By Lawyers

By Lawyers keep you up to date with E-conveyancing. A brief explanation of the transition to E-conveyancing in the By Lawyers Conveyancing Sale and Purchase matter plans can provide further assistance.

Improving written submissions – All states

by

A new article ‘Improving Written Submissions’ by Judge Alan Troy of the District Court of Western Australia has been added to the Reference Materials folder on the matter plan in all By Lawyers Litigation guides.

His Honour’s article, first published in Brief, the Journal of the Law Society of Western Australia, is full of valuable tips for improving written submissions. It will greatly assist practitioners when they are preparing submissions for all types of matters, in all courts.

The article emphasises the need to use clear and plain English, to be brief and succinct, to persuade the court via credible legal argument and to logically structure the submissions. His Honour recommends stating the main point of the argument at the outset and introducing each topic with a brief summary of the real substance of the issue to which it relates.

Drawing on his substantial experience both as an advocate and on the bench, Judge Troy gives specific and very practical guidance on how practitioners can best construct written submissions with these tenets in mind. His Honour’s tips include the use of a chronology, ways to structure both the text and the arguments and the importance of ruthless final editing.

By Lawyers are very pleased to make this helpful article available to our subscribers across Australia.

Off the plan – sunset clauses – VIC

by

Vendors face new restrictions when seeking to activate sunset clauses to end off the plan contracts in Victoria.

Amendments for off the plan contracts

The Sale of Land Amendment Act 2019 commenced on 4 June 2019. It amends the Sale of Land Act 1962. The amendments require vendors wishing to end residential off the plan contracts pursuant to a sunset clause to either obtain the purchaser’s consent, or an order from the Supreme Court.

New notice requirements created by section 13 of the amending Act for off-the-plan contracts for residential land including a sunset clause, have yet to commence.

The changes do not affect the existing statutory rights of purchasers to end a contract if the plan of subdivision is not approved by the sunset date.

Rescission

Section 10A of the Sale of Land Act 1962 provides that if a sunset clause in a contract allows the vendor to rescind the contract, then rescission must be in accordance with the Act. Section 10C overcomes any inconsistent contractual provision.

Purchaser’s consent

Section 10B of the Sale of Land Act prohibits a vendor from relying on a sunset clause unless the vendor obtains the purchaser’s written consent to any such rescission.

A vendor seeking to obtain the purchaser’s consent must give the purchaser 28 days notice setting out the reason that the vendor proposes to rescind, the reason for the delay in registration of the plan and that the purchaser is not obliged to consent to the proposed rescission.

A precedent ‘Notice of rescission of off the plan contract’ in accordance with s 10B(3) can be found on the By Lawyers matter plan.

Court order

Section 10D of the Sale of Land Act provides that the vendor may apply to the Supreme Court for an order permitting the vendor to rescind a contract pursuant to a sunset clause. The Court must consider a wide variety of matters relating to the contract and the property, including increase in value. If an order is made it may include compensation to the purchaser and the vendor will be liable for the purchaser’s costs.

Notice

Section 10F, created by section 13 of the Amendment Act, has yet to commence. This new section will require residential off-the-plan contracts that include a sunset clause to include a notice informing the purchaser that:

  • the vendor may give a notice proposing to rescind the contract;
  • the purchaser may consent to rescission, but is not obliged to consent;
  • the vendor may apply to the court for an order permitting rescission;
  • the court may make such an order.

A precedent notice in compliance with s 10F will be included in General Condition 9 of the By Lawyers contract on commencement of s 10F.

By Lawyers contract

The general conditions and particulars of sale in the By Lawyers Contract satisfy all of the statutory requirements when selling prior to registration, relying on the default sunset period of 18 months.

Privacy Act notifications – FED

by

Two helpful new precedents have been added to the By Lawyers Practice Management guide to assist law firms required to make Privacy Act notifications to the Office of the Australian Information Commissioner.

The Office of the Australian Information Commissioner has indicated that it considers law firms are subject to the mandatory disclosure provisions.

Privacy Act notifications are required where data breaches are likely to result in ‘serious harm’ to clients. These must be promptly reported to the OAIC and to the affected clients.

Notification is mandatory if the firm is aware of reasonable grounds to believe an eligible data breach has occurred. Firms becoming aware of a breach must make a rapid assessment, remediate if possible, then notify if required, without delay.

There is no specified form of notification to the affected individuals. A precedent is now provided on the matter plan – see Letter to client re Privacy Act data breach notification.

Notification to the Office of the Australian Information Commissioner should be done via the online Notifiable Data Breach form on the OAIC’s website, also linked to from the matter plan. However, sometimes the very data breach which requires the notification to be made can also make reporting online impossible. To assist in such circumstances, a precedent letter is now provided on the matter plan where the online form cannot be accessed – see Letter to OAIC re Privacy Act data breach notification.

Traffic offence penalties – NSW

by

Traffic offence penalties in NSW have changed. The By Lawyers Traffic Offences – Local Court NSW Guide has been updated in relation to recent penalty increases for various drug and alcohol offences. This applies to the commentary for alcohol and drug offences, the appendix of penalties and the retainer instructions.

The appendix to the Traffic Offences NSW commentary ‘Traffic offences and penalties – Drugs and alcohol‘ is a very handy resource that provides a summary of current key information relevant to sentencing for specific common offences, with links to applicable sections of the Act and any relevant programs.

The ‘Retainer Instructions – Traffic offences‘ precedent, also found in the Traffic Offences Guide, contains an ‘Offences and Penalties’ table which sets out the current fine, any applicable custodial penalties and the disqualification periods for most common alcohol, speeding and vehicle use offences. These useful details are readily available when needed – at the point of taking instructions from the client, who will want to know the applicable traffic offence penalties immediately.

All By Lawyers Guides contain practical and up to date commentary and precedents designed to help practitioners work faster and smarter. A team of over 45 legal professionals keep our content updated to reflect legislative changes, so our users can be confident that they’re working with the latest forms, precedents and commentary.

Connect with us