ByLawyers News and Updates

Workers Compensation guide – NSW

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The By Lawyers Workers Compensation guide has received an extensive author review. The matter plan has been amended in accordance with the commentary updates. This reflects recent amendments to the Workers Compensation Act 1987. New precedents have also been added.

The following are excerpts from the updated commentary in our NSW Workers Compensation guide:

Interaction with the Motor Accident Injuries Act 2017

For clients who have suffered injuries which require significant ongoing treatment into the future, or who have an established entitlement to payment of ongoing weekly income benefits, the value of ongoing and future benefits must be considered and explained to the client so that instructions to finalise the MAIA claim and therefore finalise all future workers compensation benefits are given on a fully informed basis. The advice given and the instructions received must be fully recorded in a file note and the client required to sign a written authority to settle on that basis.

There is a precedent Authority to settle available on the matter plan.

Entitlement to weekly benefits

The extent of any entitlement to weekly benefits is assessed with regard to the capacity of the injured worker to undertake some form of employment and is reviewed by a twenty-eight-day cycle. This entitlement to weekly benefits cannot be regarded as fixed and final until retirement age even where the worker has suffered a serious injury.

An injured worker is required to provide to the insurer a Certificate of Capacity from the treating doctor. This certificate is required to contain the opinion of the doctor about work capacity even where work which is stated to be within the capacity of the injured worker is not available.

The insurer is not required to accept the treating doctor’s opinion and may adopt the opinion of its own doctor.

The insurer is required to make a Work Capacity Decision based upon available, proper information.

Precedent letters to the client’s treating and specialist doctors, requesting the doctor’s opinion about work capacity, are available on the matter plan.

Costs disclosure – Increase of legal rates during a matter

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Increase of legal rates during a matter

All By Lawyers Costs Agreements and Client Service Agreements have been updated to include a clause notifying a client that legal rates may increase during the course of a matter requiring a revision of the costs estimate provided. This clause provides for 30 days written notice of any proposed changes to legal rates. While such a clause is not required by Legal Profession legislation concerning costs disclosure requirements, providing such notice on initial costs disclosure is considered best practice.

All of our Guides contain Costs Agreements (Client Service Agreements for QLD Guides) within the folder ‘A. Getting the mater underway’. All of our agreements are compliant with the relevant Legal Profession legislation and are reviewed and updated regularly to ensure compliance.

Leases – Exercising option to renew

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Leases – Exercising option to renew

The commentary within all By Lawyers Leases Publications and 1001 Conveyancing Answers Reference manuals have been updated to include reference to the New South Wales Supreme Court decision in Kegran Pty Ltd v Warrik Pty Ltd [2018] NSWSC 1357.

The court ordered the specific performance of an option to renew, after the lessor challenged the exercise of the option on the basis that the notice was not properly served by the lessee.

Notice of renewal was given by the lessee to the lessor by way of email, although the option to renew clause in the lease did not identify email as a valid method of service.

The court held that the language of the notice provisions was ‘facultative and not mandatory’, and that the lessee has validly exercised the option to renew by the email. The court stated that the notice provisions were not to be strictly applied to the exclusion of all other methods of service.

The decision in this case highlights that whether a lessee has validly exercised an option for renewal can depend on the interpretation of the terms of the lease when read as a whole.

Judicial registrars in the Magistrates’ Court – VIC

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Some recent legislative amendments have expanded the categories of criminal offences which can be dealt with by judicial registrars in the Magistrates’ Court of Victoria.

The offence of Improper Use of a Motor Vehicle has now been added to the list of offences which can be dealt with by a judicial registrar rather than a magistrate.

All traffic offences commence in the Magistrates Court and most traffic offences remain there, as only a relatively few traffic offences such as culpable driving and dangerous driving causing death are serious enough to be dealt with on indictment.

Some criminal offences, including some traffic offences can be dealt with in the Magistrates’ Court by a judicial registrar – see Rule 6(ea) of the Magistrates’ Court (Judicial Registrars) Rules 2015 for a full list of these. This now includes Improper Use of a Motor Vehicle. One of the ways in which that offence can be committed is to drive a motor vehicle in a manner which causes the motor vehicle to undergo loss of traction by one or more of the motor vehicle’s wheels. The maximum penalty for the offence is 5 penalty units.

The Full Commentary in the By Lawyers Victorian Magistrates’ Court – Criminal publication has been updated accordingly.

The commentary also includes, in the Overview, an explanation of the nature and value of ‘penalty units’.

Family Violence Protection amendments – VIC

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Further provisions of the Justice Legislation Amendment (Family Violence Protection and Other Matters) Act 2018 commenced on 29 March 2019.

Relevant amendments include:

  • Examples have been added to the definition of Family Violence in s 5 (10) (b) of the Family Violence Protection Act 2008;
  • Interim or final protection orders for children at the court’s own initiative have been added to s 53AB (2) and s 77B (3) of the Family Violence Protection Act 2008 where an interim or final order has not been made for  affected family member of the child;
  • A new Specialist Family Violence Court Division has been established under the Magistrates’ Court Act 1989 which has jurisdiction to deal with proceedings in respect to the Family Violence Protection Act 2008 and other relevant acts.

Corresponding updates to the By Lawyers Intervention Orders guide, found in the Magistrates’ Court Criminal and Magistrates’ Court Civil publications for Victoria, have occurred or are  underway.

Remaining provisions of the amending act commence on 1 September 2020 if not proclaimed before.

Compensation for loss

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

What are the consequences of a breach of a contract of sale of land? Is it compensation or damages? Is there a difference?

This is a significant question in the context of the standard contract of sale of land when dealing with the consequences of a breach of that contract by one of the parties to the contract. General Condition 25(a) provides that a party in breach must pay to the other party “compensation for any reasonably foreseeable loss”. This article is not concerned with calculating the quantum of any such claim, but rather determining when such a payment must be made. Specifically, can the innocent party seek to adjust the balance payable at settlement on the basis of an entitlement to “compensation”?

It is common for a vendor to claim that the purchaser’s breach has caused the vendor to suffer significant “loss”. Putting aside for the moment whether the loss is reasonably foreseeable and, indeed, was reasonably foreseeable as at the date of the contract, can the vendor demand that the purchaser pay those losses at settlement? Likewise, can a purchaser who establishes loss flowing from the vendor’s breach, difficult though that may be, demand that the vendor compensates the purchaser by way of a reduction in the amount payable at settlement?

It is fair to say that many vendors, and some purchasers, do seek to adjust the amount payable at settlement by a party in breach, however the suggestion that one party may unilaterally adjust the amount payable pursuant to the contract at settlement to recover alleged loss is not supported by the contract. The contract allows the innocent party to claim “compensation”; it does not support a claim for “damages” which is a common law remedy for breach of contract that may be pursued AFTER completion of the contract.

A right to compensation has traditionally been distinguished from a right to damages – King v Poggioli [1923] HCA 11. Compensation is a remedy that entitles a purchaser to abate the purchase price where the vendor breaches the contract by failing to deliver the whole of the property contracted to be sold, either as a result of a defect in the physical attributes of the property or the vendor’s interest in, or title to, the property. (Voumard: The Sale of Land [7320])

General Condition 25(a) therefore creates a very limited contractual remedy for breach of contract. It is a remedy limited to a claim by the purchaser seeking to abate the purchase price consequent upon a significant physical or legal defect in the property. It does not justify a claim for consequential loss, although the purchaser might pursue such a claim for damages for consequential loss after settlement. General Condition 25(a) does not support a contractual claim for “compensation” by the vendor at all, although the vendor, like the purchaser, might pursue a claim for damages for consequential loss flowing from the purchaser’s breach of contract after settlement.

General Condition 25(b) gives the vendor a contractual right to claim interest as a result of a breach of the contract and General Condition 26 sets out how that interest is to be calculated. As interest is payable “on any money owing under this contract” this contractual right to claim interest is limited to the vendor, as only the vendor is owed money under the contract.

In summary, the purchaser’s contractual right following a breach by the vendor is to compensation pursuant to GC.25(a) and the vendor contractual right following a breach by the purchaser is to interest pursuant to GC. 25(b). Both parties have additional common law rights for consequential losses flowing from a breach of contract, but those common law rights must be pursued after settlement and do not justify an adjustment of the amount payable at settlement.

The contractual right of the parties to a contract for the sale of land that adopts the standard General Conditions to claim an adjustment of the amount due at settlement consequent on a breach of the contract by the other party is limited as set out above. However, a party in default faces the possibility of proceedings after settlement to recover damages for breach of contract and therefore it is sensible for the parties to seek to compromise any such claim at settlement. Whether the breach is by the vendor or the purchaser, the innocent party should provide details of losses suffered by the innocent party as a result of the breach and which were reasonably foreseeable to the parties as at the date of the contract. The party in default might then agree to compromise the claim on the basis that a claim for consequential loss after settlement will involve both parties in significant additional expenditure and ought to be avoided. However, the innocent party cannot seek an adjustment of the amount payable at settlement or seek to delay settlement until the dispute is resolved. The show must go on.

Conveyancing – updated letters – QLD, NSW, VIC, SA, WA

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A number of the precedent letters in the By Lawyers guides for Conveyancing – Sale and Purchase have been updated to cater for developments in electronic conveyancing.

The content covered in these amendments include additional options for signing the transfer, payment of duty and registration of the transfer.

These updates occurred partly as a result of feedback received from our users. We always value and respond to feedback from practitioners using our content. We especially love to hear from property lawyers and conveyancers as to how we can make it a little easier for them to deal with the pace of change in electronic conveyancing.

Please don’t hesitate to contact us at askus@bylawyers.com.au if you have any feedback for us.

Informal wills – VIC

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The threshold allowing the Registrar to deal with informal wills pursuant to the powers under s 9 Wills Act 1997 has been increased from $150,000 to $1,000,000.

Rule 2.09(b) of the Supreme Court (Administration and Probate) Rules 2014 has been amended by the Supreme Court (Chapters II and III Miscellaneous Amendments) Rules 2019.

The Registrar may exercise the powers of the Court under s 9 if satisfied by affidavit that all persons who would be affected consent to those powers being exercised by the Registrar, or, if consent is not given, the deceased person died leaving property not exceeding $1,000,000 in value.

The amendment comes into effect on 25 March 2019.

The commentaries in the By Lawyers Victorian Estates publication for both Probate and Letters of Administration can provide assistance with informal wills.

Default judgment in the Supreme Court Commercial List – VIC

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An order of a Commercial List Judge is now required before a plaintiff can obtain a default judgment in the Supreme Court Commercial List, where a matter is being managed by a Commercial List judge.

A new r 2.07 has been inserted into the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018, pursuant to the Supreme Court (Chapters II and III Miscellaneous Amendments) Rules 2019.

The new rule is effective from 25 March 2019.

The Default judgment commentary in the By Lawyers Victorian Supreme Court – Acting for the plaintiff guide has been updated accordingly.

The amendment does not prevent a plaintiff making an application for default judgment under Order 22 or 23 of Chapter I or Part 4.4 of Chapter 4 of the Civil Procedure
Act 2010.

Amendments to Family Law Act – FED

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Amendments to the Family Law Act commenced 10 March 2019 relating to family violence and cross-examination of parties.

They will apply to cross-examinations occurring on 10 September 2019 and thereafter, regardless of when proceedings were instituted.

The following sections have been added to the Family Law Act 1975:

  • 102NA Mandatory protections for parties in certain cases; and
  • 102NB Court‑ordered protections in other cases.

Section 102NA provides greater protection for parties in circumstances of family violence where there are self-represented parties.

If a party intends to cross-examine the other party, in certain circumstances, they may not do so personally and cross-examination may only be conducted by a legal representative. Those circumstances are:

  1. there is an allegation of family violence between the examining party and the witness party; and
  2. any of the following are satisfied:
    • either party has been convicted of, or is charged with, an offence involving violence, or a threat of violence, to the other party;
    • a family violence order, other than an interim order, applies to both parties;
    • an injunction under s 68B or s 114 for the personal protection of either party is directed against the other party;
    • the court makes an order that the requirements of legal representation for cross-examination are to apply.

If a party intends to cross-examine the other party personally and there are allegations of family violence, the court must ensure that during the cross-examination there are appropriate protections for the party who is the alleged victim of the family violence.

The By Lawyers Children and Property Settlement commentaries have been updated accordingly.

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