News & Updates | By Lawyers

Victims Rights and Support Act – amendments – NSW

11 March 2019 by By Lawyers

The By Lawyers Victims Rights and Support NSW publication has been updated to reflect the recent amendments to the Victims Rights and Support Act 2013 and the Victims Rights and Support Regulation 2013, by the Victims Rights and Support Amendment (Statutory Review) Act 2018.

Notable changes include:

an increase in the initial limit of approved counselling services for family victims from 20 to 22 hours; and
an increase in the maximum amount payable as financial assistance to family victims for funeral expenses from $8,000 to $9,500.

The Commentary and Retainer Instructions in the By Lawyers guide have been updated accordingly.

By Lawyers Contract for the Sale of Land now in Infotrack

5 March 2019 by By Lawyers

The By Lawyers Contract of Sale of Land – incorporating the s 32 Vendor Statement is now available to order through InfoTrack.

The contract, co-authored by Guy Dawson, Editor in Chief of By Lawyers and Russell Cocks, highly experienced and practical Victorian property lawyer, is particularly useful for busy practitioners as it incorporates an automated and functional section 32 statement as well as placing the relevant transaction details all together in Part 1 of the document.

This contract makes extensive use of InfoTrack’s innovative technology enabling it to be ordered, compiled, edited and signed electronically, quickly and easily wherever you may be.

To order the contract through InfoTrack, select the ‘By Lawyers Contract of Sale of Land’ from the Property Enquiries Menu.

The contract is also available to LEAP users who take the By Lawyers companion product, as well as to website subscribers through www.bylawyers.com.au

Further information about the contract itself is available here: Seven reasons to use the By Lawyers contract.

Sunset clause – Vendor ending a contract – Purchaser’s consent or court order required

1 March 2019 by By Lawyers

By Russell Cocks, Solicitor

First published in the Law Institute Journal

Retrospective amendments to the Sale of Land Act will substantially limit a vendor’s ability to end a residential off-the-plan contract.

The Sale of Land Amendment Bill 2018 was expected to pass Parliament in late 2018 but was delayed by the Victorian State election. It is expected to be passed early in 2019 and will require vendors who wish to end residential off-the-plan contracts pursuant to sunset clauses to either obtain the purchasers consent, or an order from the Supreme Court.

The changes do not affect the purchaser’s current statutory right to end the contract if the plan of subdivision is not approved by the sunset date. This purchaser right is created by s.9AF (2) Sale of Land Act and allows the purchaser to end what is currently known as a “prescribed contract” (but which will be known as a residential off-the-plan contract when the amending Act is passed) if the plan of subdivision is not approved within 18 months of the contract date. The contract may specify another period, but if no other period is specified, the default period is 18 months.

It is common for vendors to also include a contractual right for the vendor to terminate the contract if approval is not obtained by the sunset date. There has been a perception that vendors were seeking to use this contractual right to unfairly end contracts in a rising market and these changes are designed to prevent such outcomes.

Rescission in accordance with the Act

By s.12(1) of the Amendment Act, new s.10A Sale of Land Act 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 and s.10C overcomes any inconsistent contractual provision. Section 2(1) of the Amendment Act provides that s.12(1) is taken to have come into effect on 23 August 2018.

Purchaser’s consent

Section 12(1) also introduces s.10B Sale of Land Act which prohibits a vendor from relying on a sunset clause unless the vendor obtains the purchaser’s written consent to any such rescission. By virtue of new s.54(1), s.10B applies to all residential off-the-plan contracts entered into and in force before commencement of s.12(1) (23 August 2018) unless proceedings concerning the sunset clause had been commenced before that date.

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 advice that the purchaser is not obliged to consent to the proposed rescission.

Court order

By s.12(2) of the Amending Act, new s.10D 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. By s.2(2) of the Amending Act, s.12(2) comes into operation on the day after the day on which the Amending Act receives Royal Assent. By virtue of new s.54(3), s.10D applies to all residential off-the-plan contracts entered into and in force on the day after the day that the Act receives Royal Assent, unless proceedings concerning the sunset clause had been commenced before that date.

The Court must consider a wide variety of matters relating to the contract and the property, including increase in value and, if an Order is made, may include compensation to the purchaser. The vendor is liable for the purchaser’s costs.

Notice

New s.10E requires residential off-the-plan contracts that include a sunset clause to include a Notice setting out that the:

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

This requirement applies to all contracts entered into after the day that the Act receives Royal Assent.

Tip Box

•Sunset clauses must be exercised in accordance with the Act.

•Purchaser’s consent or a court order is required.

•Residential off-the-plan contracts need additional disclosure.

ARNECC Model Participation Rules Version 5

28 February 2019 by By Lawyers

The ARNECC Model Participation Rules Version 5 for e-conveyancing are in effect from 25 February 2019 in NSW, VIC, QLD, WA and SA.

Client Authorisation Forms

There are now two separate types of Client Authorisation Forms:

Client Authorisation Representative– authorises a solicitor or conveyancer to act for the client in a conveyancing transaction;
Client Authorisation Attorney– authorises a person acting under a power of attorney to act for the donor in a conveyancing transaction, the donor being the person giving the power.

The Client Authorisation Attorney form only applies to Subscribers signing as Attorneys and not any other Subscriber who may happen to be an Attorney e.g. a conveyancer or lawyer generally acting as their Client’s Attorney. A Representative Subscriber (conveyancers and lawyers) should continue to use the Client Authorisation – Representative form.

See rules 5.6 and 6.3 for requirements.

A new Guidance Note is currently being drafted by ARNECC that will provide further information regarding this new provision.

Practitioners must ensure they use the correct Client Authorisation Form for each conveyancing transaction.

These forms are available on all By Lawyers Conveyancing matter plans within Folder ‘A. Getting the matter underway > Verification of identity folder’.

Verification of Identity in mortgage transactions

Responsibilities for verifying the identity of mortgagors have been updated. Practitioners acting for a mortgagee, must take reasonable steps to verify the identity of mortgagors in accordance with r 6.5.1(b), even where the mortgagor is represented.

Additional identity documents

Australian Evidence of Immigration Status ‘ImmiCard’ and Australian Migration Status ‘ImmiCards’ are now acceptable types of identity documents and have been added to the table in Schedule 8 of the Model Participation Rules.

All relevant By Lawyers publications have been updated to reflect the ARNECC Model Participation Rules Version 5, including the detailed Verification of Identity commentary located in all conveyancing and property matter plans under Folder ‘A. Getting the matter underway’.

Personal Property Securities Act and leases

28 February 2019 by By Lawyers

Personal Property Securities Act and leases

All By Lawyers Lease Publications have been updated to include new commentary on the implications of the Personal Property Securities Act 2009 (PPSA) for landlords and tenants when entering into a new lease and on assignment. The Retainer instructions and To do list precedents have also been updated to ensure that these important considerations are not overlooked.

Leases often encompass personal property, such as fit-out owned by the landlord made available under the lease, or plant and equipment owned by the tenant left in the premises on abandonment.

In such situations, the PPSA can operate to deprive the true owner of their rights if not recorded on the Personal Property Securities Register (PPSR). For example, unless a landlord registers a security interest on the PPSR in relation to their personal property which is in the possession of a tenant, they may not be adequately protected against claims on the property by third parties including the tenant’s financier.

At the time of entering into a new lease or on assignment, a landlord should consider whether registration of a security interest is required in relation to any personal property. Consideration should also be given to the inclusion of a PPSA clause in the lease to allow the landlord to enforce security interests in personal property. Any such clause must be reasonable, should be confined only to the relevant personal property concerning the lease and should not affect the tenant’s ability to obtain finance or provide security to their financier.

For further information on Personal Property Securities Act and leases , see the By Lawyers Lease publications and the By Lawyers dedicated Personal Property Securities publication.

Jurisdiction of Small Claims Division increased – NSW

27 February 2019 by By Lawyers

An amendment to section 29(1)(b) of the Local Court Act sees the jurisdiction of the Small Claims Division increased from 28 February 2019.

The jurisdictional limit of the Local Court when sitting in its Small Claims Division will now be $20,000 as of 28 February.

Previously the jurisdictional limit was $10,000. The amendment does not apply to proceedings instituted in the Court before 28 February 2019.

This increase was legislated under the Justice Legislation Amendment Act (No 3) 2018 No 87 with commencement upon proclamation. The Governor of NSW made the proclamation on 13 February 2019.

The By Lawyers Local Court Civil publication has been updated accordingly.

Attend the 2019 Small Law Industry Summit hosted by LEAP

13 February 2019 by By Lawyers

On the 14th of March, LEAP Legal Software will be hosting the inaugural Small Law Industry Summit in Sydney. The summit will be the first event of its kind, with a sole focus on the future of the small law industry.

The summit presents a valuable opportunity to discover the latest innovations in legal practice, equip your firm with the necessary tools to succeed in a rapidly evolving industry and make connections with like-minded innovators in other small law firms.

The summit will feature a number of essential presentations from industry leaders including:

Keynote Speaker – Dr Alana Maurushat – Professor of Cyber Security and Behaviour at Western Sydney University – speaking on the role of cyber security in mitigating risk.
Christian Beck – Founder of LEAP Legal Software – presenting on getting the best out of human capital, a firm’s most valuable asset.
Rose Dravitzki – Head of Chambers at Clarence Chambers – will discuss methods of innovation through strategic business sourcing and structuring.
Therese Linton – Founder and Principal Consultant of The BASALT Group – examining ways that small law firms can transform the way that they work to significantly increase productivity.
Donna Cooper – Ethics Consultant at Ethics4Lawyers and By Lawyers contributing author – presenting on how firms can manage their ethical responsibilities in a technology-based world.

The event will be fully catered and 50% of each ticket sold will go towards supporting cyber security education through a scholarship at Western Sydney University.

Register HERE, claim 6 CPD points and automatically enter the draw to win a private harbour cruise adventure for you and up to 10 guests of your choosing.

By Lawyers will be attending the Summit – please make yourself known to our team on the day; we love to meet our clients and we value your feedback on our content.

Retirement Villages Amendment Act 2018 NSW – Schedule 1 [10], [17]-[20] commenced

11 February 2019 by By Lawyers

Commencing 11 February 2019, the Retirement Villages Amendment Act 2018 introduces rules of conduct for operators (Schedule 1 [10]), provides for the sharing of village information and allows for mediation of disputes (Schedule 1[17]-[20]).

Yet to commence are provisions implementing village contract information meetings, asset management plans, the annual auditing of village accounts and the provision of quarterly accounts to the Residents Committee. The commentary will be updated when the main provisions commence.

Domestic violence amendments – SA

1 February 2019 by By Lawyers

Some of the domestic violence amendments under the Statutes Amendment (Domestic Violence) Act 2018 have now commenced. The act makes a number of changes to domestic violence provisions, most of which commenced on 31 January 2019.

Amendments that commenced on 31 January 2019 include:

additions to the definition of ‘abuse’ in s 8 of the Intervention Orders (Prevention of Abuse) Act 2009 to include forcing a person to marry another person, preventing a person from entering the person’s place of residence and taking an invasive image (within the meaning of Part 5A of the Summary Offences Act 1953) of a person and threatening to distribute the image without the person’s consent;
increased penalties for breaching an intervention order, where a breach is a ‘second or subsequent’ offence, which generally means offences within 5 years of each other, AND the breach involves physical violence or the threat of it, then the maximum penalty is $20,000 and 4 years imprisonment (whereas the maximum penalty for a first offence is $1250 and 2 years imprisonment);
s 10A(d) of the Bail Act 1985 has been amended to classify certain domestic violence offences as ‘aggravated offences’ in relation to which there is a presumption against bail;
new s 20A—Choking, suffocation or strangulation in a domestic setting has been added to the Criminal Law Consolidation Act 1935. This offence provides that a person who is, or has been, in a relationship with another person and chokes, suffocates or strangles that other person, without that other person’s consent, is guilty of an offence, the maximum penalty for which is imprisonment for 7 years.

Amendments yet to commence include:

where police are seeking to urgently vary an existing final order the court may now conduct a preliminary hearing in the absence of the defendant and may take evidence by telephone or such other means as the court determines appropriate and the rules of court allow;
where an Intervention order is sought by police, the applicant and anyone else for whose protection the order is sought, may give their evidence in the proceedings by recording and may only be cross-examined about that evidence if the court permits it.

These provisions are suspended until proclaimed, commencing on 6 December 2020 at the latest.

The commentaries in the By Lawyers Criminal SA and Intervention Orders SA guides have been updated accordingly.