ByLawyers News and Updates

Sale by agent – Conveyancing – TAS

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A new precedent letter for the circumstances of a sale by agent has been added to the Purchase matter plan in the By Lawyers Conveyancing (TAS) publication.

The ‘Initial letter to purchaser – Sale by agent’ is intended to be used in circumstances where, by the time the lawyer is instructed, the contract has already been exchanged by the estate agent and is binding on the parties.

The letter covers pertinent details such as finance, insurance, transfer duty and the settlement process.

This new letter was added as a result of a request from a subscriber in Hobart.

We value and encourage user feedback, so don’t hesitate to get in touch. We love to hear suggestions from our subscribers about how to enhance our content.

Library of initial letters – Traffic Offences – VIC

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By Lawyers Victorian Traffic Offences guide has been expanded with the addition of 13 new initial letters to the client. These helpful precedents make initial client communication easier for solicitors advising clients in traffic matters.

The new letters contain details of the applicable penalties for some of the most common traffic offences. They enable practitioners to quickly and accurately advise clients on the available sentencing options for their offence immediately after the first conference and in advance of the first court attendance.

These new precedents are conveniently located within a folder called Library of initial letters to client in Folder A. Getting the matter underway.

The new letters cover drink and drug driving offences including all Blood Alcohol Content offences, driving while impaired and failing a roadside test. There are separate letters for both permit and full licence holders.

Because each letter has been drafted to correspond to a particular drink or drug driving offence and provides all details of the applicable penalty, they help practitioners prepare the client for court faster by eliminating the need to research the specific penalties which apply for a driving offence every time. The letters set out any applicable term of imprisonment, the number of penalty units for any fine, the licence suspension or disqualification period, the Interlock order requirements, the Behaviour Change Program requirements and other licence conditions.

To see the library of new initial letters just Click on the Guides and Precedents button from criminal or traffic matter  in LEAP, or select the Victorian Traffic Offences Guide on the By Lawyers website.

Complex transactions – Conveyancing – VIC

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Land Use Victoria has mandated that complex transactions for land transfers, currently managed via paper settlement, must be lodged and managed online from 1 August 2019. To meet this requirement, enhancements are being made to Duties Online. These enhancements are scheduled to take effect from 17 June 2019.

This new mandatory requirement applies to solicitors and licensed conveyancers acting for a party or for themselves, as well as PEXA subscribers. Examples include a case comprising withdrawal of a caveat, discharge of a mortgage and transfer and mortgage.

This move to require complex transactions to be managed exclusively via electronic conveyancing means:

  • The Digital Duties Form is mandatory for all transactions.
  • Duties Online (DOL) transaction types listed on the SRO website must be processed electronically using an electronic lodgement network operator.

As a result of this requirement, almost 100 per cent of transactions will now be managed online.

For further information, see the SRO Duties Online page.

See the By Lawyers Conveyancing & Property (VIC) publications for further information about electronic conveyancing and duties requirements.

New sponsored parent visa – Immigration – FED

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A new Sponsored Parent (Temporary) visa (subclass 870)has been created.

Applications for the new visa will open on 1 July 2019.

This visa allows biological parents, adoptive parents, step-parents or parents-in-law of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen to visit Australia for periods of 3 or 5 years at a time, but with a maximum combined period of 10 years.

Applications for the new visa can only be made outside Australia and online through ImmiAccount.

An applicant must be sponsored by an ‘approved parent sponsor’.

The application must be lodged within 6 months of approval of the applicant’s sponsor as an approved parent sponsor. The criteria for an approved parent sponsor is set out in Division 2.13A – Criteria for approval of family sponsor, of the Migration Regulations 1994.

The sponsored parent visa will only be granted to maximum of 15,000 applicants each year.

Because of the advance warning regarding the commencement date for the new visa, practitioners might expect to commence receiving enquiries about it now, so the commentary in the By Lawyers Immigration guide has been updated accordingly. The expected average processing times for the new sponsored parent visa are currently unknown.

Nomination and the Australian Consumer Law

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By Russell Cocks, Solicitor

First published in the Law Institute Journal
Is the Australian Consumer Law (ACL) relevant to the contractual right to nominate?

This column has considered the purchaser’s right to nominate an additional or substitute transferee on a number of occasions in the past and has also considered the impact of the ACL on residential conveyancing, which is essentially a consumer transaction. This month’s column specifically considers the application of the ACL to the purchaser’s right to nominate.

Nomination

Conventionally, contracts for the sale of land in Victoria include a condition giving the purchaser the right to nominate. General Condition 18 of the Law Institute contract expresses that right in very general terms, without limitation in relation to the form of nomination or time for nomination. Parties are free to negotiate the terms of their agreement and so the parties may, by Special Condition, ‘agree’ to a more limited right to nominate, including limitations as to the nominee, time for nomination and form of nomination.

A nomination by the purchaser creates a second contract, between the purchaser and nominee, but this is NOT a contract for the sale of land, rather it is an assignment of the purchaser’s rights under the contract of sale of land to the nominee. Traditionally, this is a doc-lite contract in that the rights and obligations of the parties are succinctly recorded with no written agreement as to what is to happen if either party does not wish to proceed with the nomination. It is essentially an assignment of the purchaser’s rights to the nominee, a legal relationship recognised by s.134 Property Law Act. Consideration for this contract may be found in the release of the purchaser from obligations under the contract of sale of land and the assumption by the nominee of rights under that contract. Importantly, the vendor is NOT a party to such a nomination or assignment and the vendor remains entitled to enforce the contract against the named purchaser. The nomination acts as the purchaser’s authority to the vendor to transfer the property to the nominee in fulfillment of the vendor’s duties under the contract.

The contractual right to nominate is an important ‘escape hatch’ for a purchaser who finds that, due to changed circumstances, the purchaser is not able to complete the contract. This is particularly so in an off-the-plan environment where the contract contemplates an extended contract period during which time the purchaser is exposed to changing circumstances.

Australian Consumer Law

The ACL is designed to protect consumers. A purchaser in a residential contract of sale of land is a consumer for this purpose.

Section 20 proscribes “unconscionable conduct” which is an equitable concept developed by the Courts in cases commencing with Amadio in 1983 and which continues to develop to changing circumstances. Conduct will be unconscionable if one party to a contract is at a “special disadvantage” and the other party “takes advantage” of that situation. Some purchaser in residential contracts may satisfy this test but inequality of bargaining power alone may not be sufficient to establish unconscionable conduct.

Section 23 proscribes “unfair contract terms” in standard form consumer contracts. Factors to be considered in determining whether terms are unfair are:

  • inequality of bargaining power;
  • whether the contract is prepared in anticipation of the transaction, rather than in response to the transaction; and
  • whether the other party had a real ability to negotiate the terms.

Contracts for the sale of land are created as “standard form contracts”. Certainly, the parties are free to negotiate amendment to the terms of such contracts but, in practice, this does not happen. The vendor or vendor’s agent presents the standard form contract to the consumer and it is signed, without negotiation. Various factors: such as trust, lack of knowledge and unequal bargaining power contribute to this outcome but the result is a standard form contract in the vast majority of cases. The removal of the right to nominate, or the imposition of onerous conditions in relation to nomination, are likely to be unfair terms in these circumstances and liable to be unenforceable against the purchaser.

Electronic Duties – Conveyancing NSW

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Electronic Duties Return (EDR) is a service that allows an approved person to electronically assess and endorse a range of duties transactions in NSW.

Revenue NSW has released a new Electronic Duties Return, effective from 15 April 2019. This release has introduced four new transaction types:

A new digital service called eDuties to replace paper lodgements with Revenue NSW is now available in a beta version.

The OSR Ref ID has changed its name to the Duties Assessment Number (DAN).

For further information, see the NSW Revenue EDR Update newsletter.

The By Lawyers conveyancing publications deal with online duties.

Service of documents outside Australia – QLD

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The rules in Queensland courts relating to service of documents outside Australia have been amended.

The Uniform Civil Procedure (Service Outside Australia) Amendment Rule 2019 (Qld) has inserted a new Chapter 4, Part 7, Division 1 into the Uniform Civil Procedure Rules 1999 (Qld). The new Division 1 of Part 7 consists of two subdivisions, dealing with the Supreme Court and the District and Magistrates courts respectively.

The amendments are to incorporate the harmonised rules for service of documents outside Australia originating from the Council of Chief Justices’ Rules Harmonisation Committee. The amendments are minimal, relating mainly to terminology and consistency between jurisdictions.

The rules provide for the service of documents outside Australia, not including New Zealand, which is already covered by the provisions of the Trans-Tasman Proceedings Act 2010 (Cth).

The commentaries in the following By Lawyers litigation guides have been amended accordingly:

Retaining children overseas – Family Law – FED

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Retaining children overseas is now an offence under the Family Law Act 1975 (Cth).

Existing offences

Subdivision E of Division 6 of Part VII of the Act provides for the ‘Obligations under parenting orders relating to taking or sending children from Australia’. Sections 65Y and 65Z already provide that it is an offence to take or send a child overseas if there is a parenting order in force, or sought in a live application, unless there is written and authenticated consent of each person in whose favour the order was made or sought, or it was done in accordance with a court order. The penalty for contravention is imprisonment for three years.

As part of the Civil Law and Justice Legislation Amendment Act 2018 subdivision E has been amended, with new sections added that deal with retention of children overseas. These amendments have effect from 26 April 2019. Sections 65Y and 65Z have been renamed and re-organised in the Act, but essentially remain the same. The only addition is an exception described below.

New offences

Under the amendments, any person retaining children overseas now commits an offence pursuant to the new sections 65YA and 65ZAA, unless they are doing so in accordance with authenticated consent in writing, or a court order. This applies whether or not the person originally took or sent the child outside Australia. The penalty for contravention is imprisonment for three years.

Statutory exception

There is one legislative exception to the offences created under subsections 65Y(1), 65Z(1), 65YA(1) and 65ZAA(1). The subsections do not apply if the person who takes, sends, or retains the child outside Australia believes the conduct is necessary to prevent family violence and the conduct is reasonable in the circumstances as the person perceives them. This applies regardless of whether or not the person who takes, sends, or retains the child is or was the party to the proceedings.

Commentary updated

The Children commentary in the By Lawyers Family Law guide has been updated accordingly.

 

Commercial arbitration – UCPR – QLD

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Recent amendments to the Uniform Civil Procedure Rules 1999 (UCPR) provide for processes when Queensland courts become involved in commercial arbitration matters.

The Uniform Civil Procedure (Commercial Arbitration) Amendment Rule 2019 (QLD) introduces a new Chapter 9A into the UCPR which deals with all aspects of arbitrations under the Commercial Arbitration Act 2013 (Qld) and the International Arbitration Act 1974 (Cth).

The Queensland Act is harmonised with commercial arbitration acts in other Australian jurisdictions and largely reflects the provisions of the UNCITRAL Model Law on International Commercial Arbitration as adopted by the United Nations Commission on International Trade Law on 21 June 1985, with amendments as adopted by that Commission in 2006 (‘Model Law’).

The new rules relate to applications under the Acts, or the Model Law, including applications:

  • for a stay and referral to arbitration in existing proceedings before the court;
  • to enforce a foreign arbitration award;
  • to issue subpoenas in arbitration matters;
  • relating to evidence for arbitrations;
  • relating to disclosure of confidential information in relation to arbitrations;
  • to set aside an arbitrator’s award;
  • to enforcement an arbitrator’s award;
  • for leave to apply to the court for the determination of a question of law arising in the course of an arbitration;
  • for leave to appeal on a question of law arising out of an award.

The commentaries in the By Lawyers litigation guides for QLD Supreme Court Civil and District Court Civil have been amended accordingly.

Employment law updates – FED

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The By Lawyers Employment Law publication has been reviewed by our author, experienced solicitor Brad Petley, an accredited specialist in workplace relations, so you can be confident our content is up to date.

Important employment law updates and enhancements have been made to the commentary, including:

Offsetting rules for casual loading payments

The WorkPac Pty Ltd v Skene [2018] FCAFC 131 decision concerning casual loading led to the Commonwealth government amending the Fair Work Regulations. Regulation 2.03A of the Fair Work Regulations 2009 (Cth) provides that, in certain circumstances, employers may offset an employee’s casual loading payments against the employee’s entitlements under the National Employment Standards (NES).

Casual conversion

Casual conversion generally refers to the right of an employee who has been employed on a regular and systematic basis for a period of 6 months or 12 months, depending on the modern award that applies, to convert their employment from a casual basis to permanent full time or part time. This right is not currently in all modern awards and therefore does not apply to all casual workers. That position may change after the federal election, so By Lawyers will continue to monitor the position and update the commentary again if required.

Flexible working arrangements

All modern awards include a model term that facilitates flexible working arrangements. The model term imposes additional obligations on employers, in addition to those in the NES, in relation to managing and responding to flexible working requests.

Annual leave

Under the NES, annual leave is calculated at the employee’s base rate of pay for their ordinary hours of work. Unless an applicable award, enterprise agreement or contract of employment provides otherwise, annual leave does not include any overtime rates, penalties or other allowances that an employee would have been paid if they had worked during that period.

Unpaid family and domestic violence leave

All full-time, part-time and casual employees are entitled to five days unpaid family and domestic violence leave. This applies for each 12-month period of service. The leave does not accumulate.  The notice and evidence requirements of s 107 of the Fair Work Act 2009 apply. The commentary discusses these requirements.

Workplace bullying

Reasonable management action carried out in a reasonable manner is not considered workplace bullying. The commentary provides a relevant link to s 789FD(2) of the Fair Work Act.

Modern slavery laws

Modern slavery describes human trafficking, slavery and slavery-like practices, like forced labour and forced marriage.

The Modern Slavery Act 2018 (Cth) requires Australian entities and foreign entities carrying on business within Australia with consolidated revenue of $100M, to submit Modern Slavery Statements every 12 months. This needs to include an entity’s structure, operations and supply chains as well as the potential modern slavery risks, plus actions taken to address those risks including due diligence and remediation processes.

By Lawyers keeps you up to date

Because we are committed to keeping our content up to date, employment law updates are provided at least annually and whenever there are significant developments in the area. Our authors and editorial team constantly monitor all of our publications.

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