ByLawyers News and Updates

Gratuitous attendant care – Personal injury update – NSW

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Section 15 of the Civil Liability Act 2002 allows an injured plaintiff to obtain damages for gratuitous attendant care services, being services of a domestic nature, services relating to nursing and services that aim to alleviate the consequences of an injury, which are provided by another person to the claimant, for which the claimant is not liable to pay. Such services are most often provided by a family member of the plaintiff, who has voluntarily assisted the plaintiff either with domestic tasks like cooking, washing and cleaning or with rehabilitation efforts such as physical exercises or speech therapy, without payment.

Section 15B of the Act extends this head of damage to loss of the plaintiff’s capacity to provide gratuitous domestic services to the claimant’s dependants, in certain circumstances.

The Court of Appeal decision in Amaca Pty Ltd (under NSW administered winding up) v Raines; Seltsam Pty Ltd v Raines [2018] NSWCA 216 considered s 15B in detail. In that case an appeal was dismissed against an award of damages for loss of the capacity to provide gratuitous domestic services in the nature of ‘passive’ around-the-clock care by parents of their severely disabled adult son who had been injured in a work accident. The award was upheld notwithstanding that the dependent son’s own workers compensation insurer was also responsible for funding his care.

The By Lawyers Personal Injury (NSW) guide has been updated following this Court of Appeal decision.

The LEAP Small Law Industry Summit – March 2019

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By Lawyers is excited to announce that we will be presenting at the Small Law Industry Summit hosted by LEAP on 14 March 2019.

The Small Law Industry Summit is the first of its kind and will showcase some of the legal community’s most prominent thought leaders. Key issues which will be addressed include leadership, risk mitigation, practice management and innovation, high-performance cultures and the fundamental role of technology in shaping the future of the legal profession.

Our Managing Director Brad Watts will discuss the four pillars of improved practice management including:

  • the importance of client focus in a modern legal practice;
  • implementing systems and processes that naturally support success;
  • training and supervision to empower your staff and ensure quality; and
  • refocusing your efforts to find joy in practising law.

While it is often overlooked, effective practice management is the cornerstone of building a successful legal practice. Brad has more than 20 years experience in legal practice, including as a partner, director and consultant. His presentation will provide valuable insights for all small firms, whether new or well-established.

Register now to see presentations from By Lawyers and other industry leaders including the founder of LEAP Legal Software, AFR Rich-Lister and EY Australian Entrepreneur of the Year 2017, Christian Beck.

Attendees will be able to claim 6 CPD points.

About By Lawyers

By Lawyers is dedicated to helping lawyers enjoy practice more.

We have over 7,000 precedents and 140 end-to-end legal practice guides. We specialise in offering  practical and professional guidance for all major areas of law. Every piece of By Lawyers content is written or reviewed by a solicitor or barrister practising in the applicable state or federal jurisdiction.

About LEAP

For over 25 years, LEAP has been at the forefront of delivering innovative technologies designed to advance and protect the efficiency, flexibility and growth of the small law industry.

Secure your place at the Small Law Industry Summit here.

50% of each ticket sold will go towards supporting cyber security education – through a scholarship at Western Sydney University (WSU).

Apprehended violence orders amendments- NSW

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On 1 December 2018 a number of provisions strengthening apprehended violence orders in NSW commenced:

  1. a new ‘without consent’ version of the s 37 Crimes Act 1900 offence of choking, suffocation and strangulation, created specifically for the domestic violence context by the Crimes Legislation Amendment Act 2018;
  2. provisions in the Crimes (Domestic and Personal Violence) Amendment Act 2018 making it clear that stalking and intimidation can be by internet or other such electronic means;
  3. new Crimes Legislation Amendment (Victims) Act 2018 provisions providing that proceedings for apprehended violence orders will be held in a closed court if they involve any person under the age of 18 years, with such persons entitled to have a support person present.

The By Lawyers Apprehended Violence Orders (NSW) guide has been updated accordingly.

Further, commencing 17 December, certain provisions of the Justice Legislation Amendment Act (No 3) 2018 mean that an apprehended domestic violence order can be made against a paid carer for the protection of a dependant, but not against a dependant for the protection of the paid carer.

There are also amendments pending proclamation in the Crimes Legislation Amendment Act 2018 which change the default duration of apprehended domestic violence orders.

The By Lawyers Apprehended Violence Orders (NSW) guide will be updated when these further amending provisions commence.

Mandatory electronic lodgement from 1 December – WA

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Are you ready for mandatory electronic lodgement?

From 1 December 2018, all new eligible stand-alone transfers, caveats and withdrawal of caveats, and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats must be lodged electronically.

Electronic lodgement is mandatory from this date and paper lodgement will not be accepted for the above scenarios, unless an instrument cannot be lodged using an Electronic Lodgement Network and a completed Request to accept paper lodgement form is attached. The form must be completed by the party requesting paper lodgement, and that party must also ensure that they hold evidence that supports their request. The form does not need to be used in a lodgement case that includes an additional document not listed above e.g. transmission, survivorship application.

The By Lawyers Conveyancing (WA) Publication has been updated accordingly to assist WA solicitors and conveyancers with the transition to electronic conveyancing.

For further details, see the ‘E-Conveyancing’ section of the By Lawyers conveyancing commentaries and our related article ‘A brief explanation of the transition to E-conveyancing’, which includes information on how to get connected, both accessible from the Matter Plan in our Conveyancing Guides.

 

QR codes on File Cover Sheets

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qr codes_file cover sheetsQR codes are now included on all By Lawyers File Cover Sheets, in place of a bar-code.

A QR, or Quick Reference, code is a matrix form of a machine readable optical label. The QR codes on By Lawyers File Cover Sheets store the firm’s identification number, along with a separate identification number unique to each file.

If your firm is a Fileman client, the new QR code is used identify your firm’s files that are kept in long-term storage.

 

 

 

Cladding rectification agreements – Sale and Purchase – VIC

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Amendments to the Local Government Act 1989 mean that solicitors acting for buyers and sellers of real estate now need to take into account any charges recorded against the property relating to funding for cladding rectification.

Concern about defective cladding used in the construction of high-rise residential buildings has resulted in the government adopting a legislative solution intended to provide some solace to unit owners who are faced with rectification costs, but it also has an impact on third-party purchasers of such properties.

Responsibility for administration of the solution has been allocated to municipal Councils, with a new Part 8B inserted into the Local Government Act 1989, which came into operation on 30 October 2018. This authorises Councils to enter into a ‘cladding rectification agreement’ with the owner of rateable land, or an Owners Corporation, and a lending body – presumably a conventional financier. Council may also be the lending body, but it is difficult to imagine, in the short term at least, that Councils will assume this role. Thus, the standard agreement will be tripartite, between the owner or Owners Corporation, the Council and a lender.

These agreements provide that the lender will advance the funds to pay the rectification works and Council will levy a charge on the land to recover the loan advance, interest and fees associated with the levy by instalments over a period of not less than 10 years.

Adjustment on purchase

In relation to the effect on departing and incoming owners, s 185L treats the cladding rectification levy as a ‘service charge’. Section 162 authorises the imposition of a service charge and s 185L (6) requires a cladding rectification charge to be paid by instalments. A vendor is obliged to disclose statutory charges pursuant to s 32A (b) of the Sale of Land Act 1962 and also charges ‘for which the purchaser will become liable in consequence of the sale’ pursuant to s 32A (c). Disclosure of current charges and any arrears may be achieved by annexing a rate notice, a land information certificate or giving an estimate, but the vendor is also obliged to disclose future liabilities due under the cladding rectification charge and information provided by Council will be crucial in this regard.

Any arrears under the levy will be the vendor’s responsibility, the current instalment will be adjusted between the parties at settlement and the outstanding levy will become the responsibility of the purchaser as a charge on the land: s 156 (6).

Section 175 allows a purchaser to continue to pay charges by instalments. A purchaser will therefore need to adjust the price to take account of the outstanding cladding rectification levy that the purchaser will become liable for and full disclosure in this regard is essential so as to allow the purchaser to set its price.

The Sale and Purchase commentary within the By Lawyers Conveyancing (VIC) Guide has been updated accordingly.

Circumstances of aggravation – Traffic offences – WA

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Amendments to s 49AB of the Road Traffic Act 1974 (WA) have commenced, providing for new circumstances of aggravation which have the effect of doubling the maximum penalty for the offence of dangerous driving causing death from 10 years to 20 years imprisonment.

The new circumstances of aggravation now in s 49AB(1) of the Act include:

  • Excessive speed
    Circumstances of aggravation include driving more than 30 kph over the applicable speed limit. Previously, the section provided for 45 kph over, but the threshold has been lowered by the amendments.
  • No authority to drive
    Circumstances of aggravation include the driver having ‘no authority to drive’. This includes the driver having never held a licence, having an expired licence, having been refused a licence, or being at the time of the offence disqualified from holding or obtaining a licence. The provision extends to any Australian licence, not just WA.
  • Failure to comply with conditions of an extraordinary licence
    Circumstances of aggravation include where the driver holds an extraordinary licence but at the time of the offence is driving in contravention of the requirements or conditions of the extraordinary licence, for example, where the driver is authorised to drive a car but at the time of the offence is riding a motorcycle.
  • Failure to comply with alcohol interlock scheme
    Circumstances of aggravation include the driver being required to drive a vehicle fitted with an alcohol interlock device but at the time of the offence driving a vehicle without such a device, not having the required authorisation to drive, or driving in breach of the alcohol interlock condition of an authorisation to drive.

The By Lawyers Traffic Offences – Magistrates Court (WA) guide has been updated accordingly.

Conveyancing – signing electronic mortgage documents – NSW

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Procedure for signing electronic mortgage documents for mortgages over real property has been clarified in NSW with amendments to the Real Property Act 1900 made by the Conveyancing Legislation Amendment Act 2018 which commenced on 22 November 2018.

The amendments provide:

  • That where a mortgage is lodged for registration, any other document supporting that instrument, such as a caveator’s consent, may also be signed electronically: s 36 (1F) Real Property Act 1900; and
  • That a mortgage is acceptable for registration in NSW where it is signed by the mortgagee alone (that is, not also signed by the borrower and witnessed), provided that the mortgagee certifies that it holds a mortgage granted by the borrower on the same terms as that which is lodged for registration: s 56 (1A) Real Property Act,

The amendments reflect practice which has developed following the introduction of the National Mortgage Form.

The Commentary in the By Lawyers Mortgages (NSW) Guide has been updated accordingly.

Conveyancing – amendments in support of eConveyancing – NSW

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Amendments to the Conveyancing Act 1919 and the Real Property Act 1900 by the Conveyancing Legislation Amendment Act 2018, in support of eConveyancing, commenced on 22 November 2018. These amendments address the following key issues concerning electronic conveyancing:

  • Clarifications regarding the application of the Conveyancing Act 1919 and the Real Property Act 1900 to electronic form contracts and electronic signatures – s 6C, 23C (2) and 54A (4);
  • If a sale of land contract is in electronic form then those documents which must be attached to satisfy vendor disclosure obligations may also be in electronic form.
  • Where a registry instrument (dealing, memorandum, caveat or priority notice) is lodged for registration, any other document supporting that instrument may be signed electronically: s 36 (1F) Real Property Act 1900;
  • A client authorisation produced in electronic form may also be electronically signed: s 107 (1A) Real Property Act 1900; and
  • Deeds are now able to be electronically signed and attested – Section 38A of the Conveyancing Act 1919 states that a deed may be created in electronic form and electronically signed and attested in accordance with Part 3. Notably, this includes leases.

The Sale and Purchase Commentaries as well as 1001 Conveyancing Answers within the By Lawyers Conveyancing Guide (NSW), which already cover eConveyancing in detail, have been updated to reflect these changes in support of eConveyancing.

The Commentary within the By Lawyers Leases (NSW) Guide has also been updated.

Author review – Conveyancing – Sale and Purchase – SA

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The By Lawyers Conveyancing SA Guide has been reviewed and updated to ensure that the commentaries and precedents are in line with current law and conveyancing practice, including electronic conveyancing.

The extensive review was performed by our author Jess Caire. As with all our authors, Jess takes a practical approach, drawing on her considerable experience to cover all aspects of procedure, with a focus on practical tips that will help solicitors and conveyancers confidently run a sale or purchase matter to completion. The sale and purchase matter plans cater for both ‘sale by agent’ and ‘private sale’ engagements.

We invite you to explore this updated publication and to consider the wealth of assistance the guide offers for solicitors and conveyancers acting in the sale and purchase of residential property in South Australia.

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