ByLawyers News and Updates

Companies, Trusts and Partnerships – Special disability trusts

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By Lawyers has expanded our comprehensive Companies, Trusts and Partnerships guide to include commentary and precedents covering special disability trusts.

A special disability trust can be established to provide for the care and accommodation of a disabled family member and if compliant will allow the disabled beneficiary of the trust to retain their full entitlement to a Centrelink pension. There are also generous concessions for contributions to a compliant special disability trust.

The commentary covers everything a practitioner needs to know about establishing a special disability trust for their clients, including:

  • beneficiary eligibility requirements;
  • contribution and concession guidelines; and
  • the permitted use of special disability trust funds.

The By Lawyers Special Disability Trust Deed is provided and includes all of the mandatory clauses from the model trust deed for special disability trusts published by the Department of Social Services, as required to comply with the Social Security Act 1991 and the Social Security (Special Disability Trust) Guidelines 2011.

 

Criminal Guides – Calculating penalty units

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Helpful new commentary on calculating penalty units has been added to the By Lawyers Criminal Guides in NSW, VIC, QLD and WA, and also to our Practice Management Guide.

Information is provided about what a penalty unit is and how to calculate the monetary penalty for various breaches of laws. There is a useful summary of the current value of a penalty unit in each state and territory, as well as the Commonwealth. The By Lawyers team will ensure that these values are updated when required, across the jurisdictions.

 

Wills – Additional clause – direction to executor regarding disposal of body

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All By Lawyers wills precedents have been updated to include a clause that directs the executor on the testator’s wishes for their remains. This clause is automated  for LEAP users.

Where the instructions are more detailed, the Burial, Cremation, Medical Research Provisions clauses from the Library of Clauses, Deeds, Contracts and Codicils are also available.

Our Retainer Instructions already include a section for burial, cremation and medical research, so that the testator’s wishes can be discussed and recorded.

Practice Management — Enhanced reference material — 101 Policy and Procedures

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Our reference guide — 101 Policy and Procedures has been enhanced.

This guide forms part of our Practice Management publication and provides a ready reference for all team members in a law firm about all aspects of the practice. A few excerpts:

Client service and communication standards

The firm strives to deliver the highest level of service and value to its clients. This means that team members are expected to be well mannered, engaged and responsive to phone calls, emails and other correspondence….

Cost disclosure and billing practices

In all matters, use the Retainer Instructions provided in the matter plan under Getting the Matter Underway and disclose costs in writing. Costs disclosure must be by way of a formal Costs Agreement where costs are likely to exceed $3000, or otherwise disclosed in the initial correspondence, as done for example in the precedent letters in the matter plan for conveyancing matters….

Supervision of practice and staff

The system adopted by the practice, if followed, will ensure that the practice is run efficiently and safely to the satisfaction of all participants. This simply involves adherence to all policies and procedures. …

Other topics covered include Asset register, Closing files, Email policy, Petty cash, Sexual harassment and Trust accounting.

Practice Management — New reference material — 101 Trusted and useful sites by area of law

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Here at By Lawyers we spend a lot of time researching and fact-checking, in all of the areas of law that our publications cover. Over time we have compiled a list of credible and helpful websites which we regularly use – and that list is now available to you, with the publication of our new reference tool — 101 Trusted and useful sites by area of law.

This handy resource brings together in one place hyperlinks to some of the most trusted and useful websites you might need, organised according to areas of law.

The new reference tool is located as a separate guide in the By Lawyers Practice Management publication.

By way of example, these are the Federal websites we have included for the Business & Franchise area of law:

FEDERAL

Business & Franchise
GST and Taxes – Australian Taxation Office (ATO)
Franchises

There are also sites under that subject heading for each state. There are subject headings for all of the areas of law covered by our publications.

As with all of our publications this resource will be regularly updated.

This ready reference tool is a convenient starting place for everyone in the firm seeking trusted information to assist clients in any area of on any practice.

VIC – Magistrates’ Court Civil – New commentary on Substituted service

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Some practical commentary on substituted service has been added to the By Lawyers Acting for the Plaintiff – Magistrates’ Court Guide.

To accompany this new commentary, we have also added the following precedents to the Acting for the Plaintiff matter plan:

  • Example content – Summons – Substituted Service;
  • Example content – Affidavit by solicitor in support of an application for substituted service.

VIC – Intervention orders – Relationship with bail conditions

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The By Lawyers commentaries have been updated to deal with recent amendments to the Family Violence Protection Act 2008 by the Bail Amendment (Stage One) Bill 2017.

These changes, regarding the relationship between bail conditions, safety notices and intervention orders, are now covered in the VIC Criminal Magistrates’ Court Commentary and the Intervention Orders Commentary.

 

VIC – County Court – Author Review

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The By Lawyers author of Victorian Civil Litigation and Injuries, Nawaar Hassan, Barrister, has reviewed the County Court publication including commentary, matter plans and precedents. Various enhancements have been made, including expansion and clarification of commentary relating to:

  • Directions hearings, administrative mentions and the civil directions group;
  • Offers of compromise and Calderbank offers;
  • Dealing with self-represented litigants;
  • New efiling procedures and requirements;
  • Commencing proceedings and claiming interest;
  • Counterclaims by the defendant and claims for contribution or indemnity;
  • Subpoenas and notices to produce;
  • Retaining an expert.

Precedent letters instructing expert witnesses have also been updated.

Planning certificates – Accuracy

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Can this be right?

By Russell Cocks, Solicitor

First published in the Law Institute Journal

Can lawyers rely on certificates provided by authorities?

Property lawyers rely on certificates from authorities, such as local councils, all the time. Acting for a vendor, our clients have an obligation to disclose, prior to contract, certain information to prospective purchasers about the property to be sold and often rely upon certificates to reveal that information. Indeed, s.32J Sale of Land Act envisages that such certificates may be attached to the Vendor Statement. When acting for a purchaser, it is common practice to rely on certificates attached to the Vendor Statement as proof of the information contained therein.

This is particularly relevant to the town planning status of the property, a consideration that can have a huge impact on the value of the property. It is fair to say that the average lawyer would unconditionally accept that if a planning certificate was annexed to a Vendor Statement, the zoning of the property would comply with that certificate and that the purchaser can rely on that information. It is therefore likely to come as somewhat of a shock that the Court of Appeal in Queensland appears to have thrown doubt on this expectation and, if that decision were to be followed in Victoria, lawyers would become liable to their purchaser clients if the information in the certificate proved to be incorrect.

Central Highlands Regional Council v Geju P/L [2018] QCA 38 was an appeal by the Council against the decision in Geju P/L v Central Highlands Regional Council [2016] QSC 279. At first instance McMeekin J held the Council responsible for an incorrect town planning certificate that described land as zoned ‘industrial’ when it was in fact zoned ‘rural’ and found in favour of a purchaser who, relying on the certificate, had paid too much for the land. The purchaser’s claim had been based on the negligence of Council in providing the incorrect certificate to the vendor, who in turn provided it to the purchaser, and the Court was satisfied that the Council owed a duty of care to the purchaser, had breached that duty and the purchaser had suffered loss as a result. Most lawyers would agree with that decision and take comfort in the knowledge that an authority is responsible not only to the party who obtains the certificate, but third parties who might be expected to rely on the certificate.

But that decision was overturned on appeal. The Court of Appeal followed a similar line of analysis to McMeekin J but diverted, dramatically, at the question of duty of care. McMeekin J was satisfied that the Council owed a general duty of care in respect of the provision of certificates and described the purchaser as being a member of a class of people who might reasonably be expected to rely on the certificate – a potential purchaser of the property. However, the Court of Appeal rejected this view and concluded that “there was no rational way to define a class of which (the purchaser) was a member other than in very broad terms” and went on to suggest that tenants, lenders or investors might also be interested in the information contained in the certificate and that the Council’s liability should not extend to such a wide class of people. Thus, the Council owed no duty of care to the prospective purchaser.

Can this be right?

Since Mid Density Developments P/L v Rockdale Municipal Council [1993] FCA 408 there has been a widely held belief that municipal Councils are responsible for the accuracy of certificates provided to applicants for certificates AND third parties who deal with the applicant and might be reasonably expected to rely on such certificates. Prospective purchasers certainly fall within such a class, particularly when the certificate is relied upon by the applicant vendor to satisfy the vendor’s statutory disclosure obligation to prospective purchasers. That other classes of people might also interact with the applicant for the certificate hardly seems a valid reason to exclude that smaller class of people who interact as prospective purchasers.

The law relating to negligence causing pure economic loss is arcane. The High Court has had cause to consider the issue on a number of occasions and Central Highlands might provide the opportunity for it to do so again. In the meantime it is hoped that the previously understood liability imposed on council charged with the responsibility of administering planning schemes to provide correct certificates in respect of those schemes will continue, in Victoria at least.

Tip Box

•authorities provide certificates relating to properties

•the applicant for the certificate can rely on it

•there is now some doubt as to whether a third party can rely

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