ByLawyers News and Updates

WA Estates – Subscriber feedback prompts enhanced precedents and commentary

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At By Lawyers we love hearing from our subscribers about content that might improve our publications. A recent subscriber query brought to our attention that, while our WA Estates publication included precedents for notice and consent forms where an application is not made by all executors for probate, it is also sometimes necessary to have the equivalent for letters of administration.

This query prompted a review of the WA Estates Guide by our editorial team, after which By Lawyers have now published the following new or enhanced precedents:

  • Notice and consent forms for persons entitled to apply for Letters of Administration;
  • Consent form where there is no guarantee;
  • Letters to accompany such forms;
  • Letter to beneficiary re executor’s claim for commission;
  • Motion to dispense with the requirement for guarantees;
  • Motion for revocation of grant of probate or administration.

We have also enhanced our WA Estates commentaries with new content including:

  • Who is a beneficiary?
  • Solicitors dealing with beneficiaries when acting for the estate;
  • Challenge to the will by a beneficiary;
  • Vesting of a beneficiary’s interest in an estate;
  • Right to a copy of a will and inventory of assets.

By Lawyers always endeavour to be responsive to our subscribers’ needs. We hope that these improvements will assist not only the firm which prompted them, but all users of our WA Estates Guide.

Supreme Court NSW – commentary updated for new Practice Notes

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Practice Notes

The By Lawyers Supreme Court (NSW) commentaries have been updated following the introduction of new practice notes issued by the Court.

The Court’s practice notes provide practitioners with detailed guidance on how the Court manages its cases, complementing legislative and regulatory provisions. Practice notes specifically set out the steps practitioners are expected to take when conducting a matter and failure to comply can have serious consequences for the client and practitioner.

By Lawyers litigation Guides assist practitioners with all aspects of practice and procedure, with focused commentary, precedents and matter plans to guide you through the conduct of proceedings, from start to finish.

Courts and tribunals – 1 July fee increases and legislation updates

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1 July always sees legislative changes, including increases to court fees. Happy New (financial) Year!

The following are some of the important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

LITIGATION, CRIMINAL LAW, FAMILY LAW & DECEASED ESTATES

All States

Fee increases apply in all courts and tribunals.

Injury claims – where damages for permanent impairment and/or non-economic loss are subject to statutory caps (e.g. motor accidents and workers compensation legislation) these maximum amounts have been updated.

Defamation – the maximum amount of damages for non-economic loss available under the Uniform Defamation Law is now $398,500.

VIC Supreme Court

All documents for Supreme Court Common Law, Commercial Court and Costs Court matters must now be electronically filed using the RedCrest electronic filing platform. Court users will need to register. See the Supreme Court page ‘Electronic filing and case management’ and the commentary in the By Lawyers Victorian Supreme Court Guide

 

Conveyancing – 1 July fee increases and legislative updates

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1 July always sees legislative changes, including increases to many government charges related to conveyancing and property transactions. Happy New (financial) Year!

The following are some of the more important changes commencing 1 July 2018. By Lawyers publications in each state have been updated as appropriate.

CONVEYANCING

All states 

GST withholding provisions of the Taxation Administration Act commence.

Fee increases apply to all land registry services.

NSW

Mandatory electronic lodgement of all standalone transfers and caveats applies.

QLD

Additional Foreign Acquirer duty rate increased to 7%.

TAS

First Home Owner Grant scheme extended (to 30 June 2019).

SA

Stamp duty no longer charged on transfer of non-residential or non-primary production land: “Qualifying Land”.

 

Subdivision – Off the plan sales – Sunset conditions

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Off-the-plan sales are a common feature of Victorian conveyancing. The fact that the contract cannot be settled until the plan of subdivision is registered at Land Victoria means that the settlement date is uncertain. Sunset conditions in off-the-plan contracts are meant to bring some certainty to the settlement date.

Section 9AE(2) Sale of Land Act allows a purchaser to end an off-the-plan contract if the plan of subdivision is not registered within 18 months of the date of the contract. This is consumer protection legislation designed to allow a purchaser to end a contract which may have, objectively, gone too long. A purchaser may not, 18 months after signing a contract, still wish to proceed with the purchase. However, it is important to recognise that this is a right, not an obligation so the purchaser may choose to continue with the contract, and that the statutory right is limited to the purchaser and does not extend to the vendor.

The Act recognises that the 18-month sunset period is a statutory default period and allows the parties to agree to a different period, however it has been held that the vendor cannot unilaterally alter that sunset period (Solid Investments Aust. P/L v. Clifford [2010] VSCA 59). Contracts often provide a longer sunset period, sometimes up to 60 months, and regularly give to the vendor the contractual right to end the contract, in addition to the purchaser’s statutory right, which cannot be removed.

The purchaser has very little control over the plan approval process and must adopt a largely passive role, awaiting the happy news (hopefully) from the vendor that the plan has been approved and that settlement is due 7,10, 14 or 21 days after approval, depending upon the formula adopted in the contract. On the other hand, responsibility for obtaining approval of the plan falls almost entirely upon the vendor and this, by default, means that the vendor is able to influence the timing of registration and hence the time for settlement. If only the purchaser had the right to terminate if the plan is not registered within the sunset period, then the conduct of the vendor would be less likely to be particularly significant, but the practice of granting the vendor the contractual right to terminate if the sunset date passes opens up the possibility that the vendor can affect the outcome of the contract by action, or more particularly, inaction.

By definition, there will be a delay between contract and settlement, sometimes a considerable delay. As a consequence, market forces may have had an effect on the value of the property and in a rising market, as we have enjoyed for two decades or more, this means that the property is likely to be worth more, sometimes remarkedly more, when the sunset period expires. The temptation for the vendor to allow the sunset date to pass and then terminate the contract may in such circumstances be strong as the vendor will then remain the owner of a property which is much more valuable than the contract price. The flip side is that the purchaser misses out on a property that they have long waited for.

New South Wales has recently responded to a number of examples of vendors ending contracts in these circumstances by requiring the vendor to seek consent, either from the purchaser or the Court, before ending such a contract. Victoria, on the other hand, has relied on a firmly recognised obligation of “best endeavours” on the part of the vendor to ensure that vendors are not able to unscrupulously take advantage of the unexpected delay in obtaining approval of the plan of subdivision beyond the sunset date. This obligation was firmly established in Etna v. Arif [1999] VSCA 99 where, upon it being proven that the vendor had effectively stopped trying to get the plan approved during the sunset period, the Court order specific performance of the contract notwithstanding that the sunset period had expired when the vendor finally did obtain approval.

This view was confirmed in Jessup v. Fremder [2001] VSC 100 where a purchaser was able to obtain an order for specific performance even where no particular sunset date was referred to in the contract, the Court finding that a ‘reasonable period’ was to be implied. Joseph Street P/L v. Tan [2012] VSCA 113 held that a vendor might even be required to enter into a s.173 Agreement to secure registration of the plan so that the sunset period could be satisfied, notwithstanding that construction (if applicable) had not been completed. In an unreported interlocutory judgment in April 2018 the Supreme Court imposed an injunction on a vendor who sought to terminate upon the expiration of the sunset period where the purchaser alleged that the vendor had failed to use best endeavours to obtain approval of the plan.

These decisions do not mean that a vendor will never be able to rely on the expiration of the sunset period to terminate, but they do indicate that the vendor bears a heavy burden to prove to the Court that the vendor has used best endeavours and that the sunset period has expired notwithstanding those best endeavours.

Tip Box

•purchasers have a statutory right to avoid if the sunset period expires

•vendors may have a contractual right to avoid, but must use best endeavours to achieve registration

Criminal – sentencing – QLD – Commentary added on drug and alcohol treatment orders

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Queensland has introduced special drug and alcohol sentencing options where the Court determines the offender and the community would benefit more from the offender participating in a rehabilitation and treatment program than from imprisonment.

Commentary explaining the availability and operation of drug and alcohol treatment orders has been added to the By Lawyers Criminal Magistrates’ Court Guide and the By Lawyers Traffic Offences Guide.

These specific drug and alcohol treatment orders are provided for under Part 8A of the Penalties and Sentences Act 1992 and are available for certain offenders whose criminal behaviour is linked to their severe drug or alcohol use.  A treatment order is comprised of two parts – a custodial part with a term of imprisonment of up to four years which is wholly suspended and a rehabilitation part of at least two years that requires compliance with core conditions and completion of a treatment program.

At this stage the new provisions are only available in Brisbane, but it is intended that the program is developed and spreads to other areas.

These amendments bring Queensland in to line with other states, making supervised rehabilitation a formal part of the sentencing regime.

Costs agreements and client service agreements – enhancement for protection against fraud

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All By Lawyers costs agreements and client service agreements have been enhanced within the Billing and payment arrangements section now including:

 

  •  Two-factor verification protocol: a suggestion that the client always telephone to notify the firm and confirm bank account details before making any electronic transfer of funds into the firm’s trust or office accounts. With recent incidents of fraud involving interception and hacking of lawyers’ emails and the fraudulent provision of incorrect bank account details to clients, this suggestion is in line with the advice of the various state regulatory bodies and, if followed, provides protection against such criminal activities; and,

 

  • Specific provision and authority for alternate payment options, including credit card, electronic funds transfer and instalment plans, confirming that clients are required to comply not only with the terms of the law firm’s costs agreement, but also with the terms of any third party agreement for payment, such as the agreement with their bank regarding the use of a credit card. This provides protection for the law firm against credit providers seeking to recover funds paid via unauthorised transactions.

Family Law Courts fees increase 1 July 2018

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The fees payable in the Family Court and Federal Circuit Court are changing from 1 July 2018. These increases will impact on Children and Property Settlement matters as well as Divorce/Nullity.

The By Lawyers Family Law guide will be updated where applicable to reflect these amended fees.

Conveyancing Victoria – Seven reasons to use the By Lawyers Contract of Sale of Land

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The By Lawyers Contract of Sale of Land for Victoria is gaining more fans among Victorian lawyers and conveyancers all the time, as it simplifies the conveyancing process.

For those still wondering what all the fuss is about, you can read below Seven reasons to use the By Lawyers contract – or you can listen to this lively and informative podcast:

 

Seven reason to use the By Lawyers Contract of Sale of Land:

  1. The contract and the vendor’s statement are combined into ONE document, with the vendor’s statement, logically, coming FIRST. The vendor’s statement is formatted to deal with the obligatory disclosures first, then to group the optional fields in a way that makes removal of those fields simple if they are not required. Part 2 general conditions in PDF form removes the need for ‘standard’ special conditions. Any genuinely special conditions can be added.
  2. Clear new approach – all pertinent details are set out in Part 1 to enable anyone to quickly understand the deal by referring to this Part.
  3. Particulars of sale include a “sunset date” for off the plan approvals. No more searching through mountains of special conditions to work out this crucial date.
  4. Non-derogation warranty. The general conditions can be amended by any special conditions BUT not so as to reduce the rights created by the general conditions. No more contracts that say one thing on page 1 and reverse that on page 15! This contract is fair to both parties.
  5. General Condition 12 – deposit release – establishes a clear protocol for early release, by requiring timely objection to title. Title objections actually have very limited relevance to the Torrens system, as title is part of the disclosure in the contract. General Condition 12 allows 28 days to object to title. This offers protection to purchasers, while allowing the vendor to have use of the deposit. Again, this process is fair to both parties.
  6. General Condition 14 – loan condition – extends the time for approval to 21 days and allows for extension, subject to vendor’s ability to end the extension by notice.
  7. General Condition 25 – losses – removes any disputes relating to default losses from the settlement process and allows the parties to resolve these issues after settlement. Unless there is a legitimate objection to title, the matter is settle and disputes relating to quality and inclusions etc, follow after settlement. This removes unnecessary settlement delays.

The By Lawyers Contract of sale of Land is available to LEAP users and By Lawyers subscribers via the Conveyancing & Property – Sale matter plans, or for purchase on the By Lawyers website.

New Publication – Criminal Magistrates Court SA

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We are very pleased to announce the release of another comprehensive step-by-step guide for South Australian practitioners, being Criminal Magistrates Court SA

This publication covers all aspects of criminal practice and procedure, for both summary and indictable offences, when acting for the defendant in criminal proceedings in the Magistrates Court.

The guide assists practitioners with all aspects of conducting a criminal matter from arrest and bail, or a first appointment in the office, through to hearing and/or sentencing, including avenues of appeal and possible costs applications. The commentary is practical and easy to understand, with numerous helpful precedents and all current Magistrates Court forms included.

Key content includes:

  • Law and procedures relating to arrest and bail, including the right to silence, the record of interview and practical tips for lawyers attending at the police station. Retainer instructions, including for a bail application, are included on the matter plan.
  • Practical guidance in preparing for court, with detailed commentary on analysing the charge and conducting plea negotiations. Precedent letters to the Crown are included on the matter plan for this purpose, as well as an instruction sheet for a plea and mitigation.
  • Procedures involved when attending court for both summary and indictable matters, obtaining pre-sentence reports and conducting the plea.
  • Preparing for hearing when a plea of not guilty has been entered.
  • Sentencing options in the Magistrates Court.
  • Client mental health considerations, with a letter of instruction to a psychiatrist or psychologist.
  • Example written submissions on sentence are included on the matter plan.
  • Information on appeal rights and time limits.

This guide is a valuable resource for all practitioners who conduct criminal matters in the Magistrates Court, especially those with limited experience in criminal work, or those supervising younger lawyers.

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