By Lawyers has launched a new set of precedents that can be used to establish an account based pension for members of a self-managed superannuation fund.
For more information check out the By Lawyers self-managed superannuation guide online or in LEAP.
Disruptive innovation is a term used to describe new products in an existing market that create a new market and a new value network and eventually displace established market leaders. Whilst it is a term of recent invention used to describe elements in the modern economy, the T Model Ford created disruptive innovation in the transport market over a century ago, eventually displacing the horse and cart.
Regulation of Uber, a disruptive innovation in the passenger transport market, is occupying the attention of government and the media at the moment and Airbnb is a fellow traveller, disrupting the holiday accommodation market. Whilst recent inventions of the modern economy, it is reassuring to know that these disrupters are, in the final analysis, bound by black letter property law.
Swan v. Uecker [2016] VSC 313 is a decision by Croft J. in the Victorian Supreme Court by way of an appeal from VCAT. The landlord had applied to VCAT for an order terminating the lease on the basis that the tenant had breached the lease by entering into a contract with Airbnb and subsequently accepting ‘guests’ at the property. The landlord argued that by doing so the tenant had subleased the premises in breach of the terms of the lease, thereby entitling the landlord to terminate the lease However VCAT dismissed the application on the basis that the tenant had retained the right to access the premises during the period of the guest’s stay and therefore had given the guest a license to occupy the premises, rather than a sub-lease, and that the licence did not amount to a parting with possession such as to constitute a breach of the lease.
Indeed, the contract between the tenant and Airbnb described the guest’s right as a licence but Croft J., adopting a substance over form approach, confirmed that merely describing an agreement as a licence did not save it from being a lease if the ‘touchstone’ of a leasing relationship, exclusive possession, passed to the guest. The tenant argued that the short nature of the typical guest stay of 3 to 5 days made that possession akin to the rights of a hotel guest but Croft J. rejected the analogy and held that the length of time associated with exclusive possession was irrelevant, concluding that exclusive possession for one day may be sufficient to establish a lease.
Croft J. was careful to caveat that this decision should not be seen as authority for the proposition that an Airbnb guest will always be held to be a tenant, rather than a licensee. If the rights of the guest fall short of exclusive possession of the leased property then it is safe to say that the guest will have a licence, rather than a lease, both as to form and substance. This would have been the case in Swan if the guest had have adopted the option of occupying one room in the property, rather than taking possession of the entire property. It might also have been the case if the Airbnb contract and advertising had have reserved to the tenant the right to access the property at any time during the occupancy of the guest, although the market acceptability of such an arrangement is problematic.
The importance of the decision is to confirm that disruptive or not, these innovations remain subject to established legal principles.
Whilst written for Victoria this article has interest and relevance for practitioners in all states.
Airbnb rental arrangements are subject to normal common law leasing principles.
Exclusive possession will generally mean that the arrangement is a lease rather than a licence.
Issues of contamination remain an area of uncertainty for property lawyers.
The sale of real estate occasionally raises the issue of contamination affecting the land and there have been few cases to guide practitioners in dealing with such matters.
Examples of common contaminates in a domestic or commercial environment are asbestos, in homes and outbuildings or commercial premises, and petroleum products in land previously used for commercial purposes but now perhaps desired to be used for residential purposes.
The concept of ‘affecting the land’ calls attention to the vendor disclosure obligations set out in s 32 Sale of Land Act but a careful consideration of those provisions fails to reveal any statutory obligation, in the absence of a formal notice relating to the contamination, to disclose the existence of contamination. Whilst the relatively recently introduced s 48A Sale of Land Act may have extended remedies for breach of the Act, establishing a breach may itself prove difficult.
Contamination may therefore be described as a defect, perhaps a latent defect, but certainly a defect as to quality and not as to title. The underlying principle in relation to quality defects remains caveat emptor and a purchaser who discovers contamination after entering into the contract or, indeed, after settlement may have limited recourse against the vendor.
One exception to caveat emptor is misrepresentation, either fraudulent, negligent or innocent, but fraudulent misrepresentation is notoriously difficult to prove and the other varieties each have their own problems of proof. Statutory misrepresentation, in the form of a breach of the Australian Consumer law may well hold more fertile grounds but the average purchaser of a domestic or small commercial site will often find the costs of such proceedings forbidding.
Metropolitan Fire and Emergency Services Board v. Yarra City Council [2015] VSC 773 involved combatants which were anything but the ‘average citizen’. These parties were able to fund a hearing that occupied 22 sitting days, 2 Senior Council and 6 Junior Counsel to determine whether Yarra Council was responsible for contamination on land that had been occupied by the former Richmond City Council and came into the hands of the Board after 100 years of use as a municipal tar pit and subsequently a quarry and an abattoir. The Environment Protection Authority had issued a Clean Up Notice and the Board sought damages for the cost of the clean up from the Council on the basis that the Council had caused or permitted the pollution. Whilst the Board advanced many arguments to support its claim, only an argument based on Council’s liability under s 62A Environment Protection Act was successful.
It is the other, unsuccessful, arguments that are of more interest to property lawyers. These were, in summary:
Statutory Duty – the Board was not entitled to rely on the Council’s breach of s 45 Environment Protection Act as that was the province of the EPA;
Planning Duty – despite the Council being the responsible authority for planning, this did not create any additional duty to the Board;
Non-Pollution Duty – this was couched in terms of a tortious duty and rejected on the basis that the loss was not foreseeable, but reference was made to the underlying principle of caveat emptor, the touchstone of property lawyers;
Demolition Duty – again, based on the Council’s various statutory duties;
Disclosure Duty – which sounds like a property law argument but was also couched in tortious terms and relied on the case of Noor Al Houda Islamic College v. Bankstown Airport Ltd [2005] NSWSC 20 involving non-disclosure of asbestos. This argument was rejected largely because the Court was satisfied that the Board had been aware of many reports relating to the contamination and had given release and indemnities to its vendor, the State of Victoria.
The ratepayers of the City of Yarra may well feel hard done by as they have been fixed with responsibility for a very expensive clean up of pollution caused by the City of Richmond and the City did not even receive the proceeds of sale as the State Government had revoked the Crown Grant and sold the land to the Board, wisely including releases and indemnities in that contract.
Whilst written for Victoria this article has interest and relevance for practitioners in all states.
A vendor’s duty of disclosure in relation to contamination is based on the Environment Protection Act.
The ATO is concerned that foreign residents are not paying capital gains tax and has introduced a ‘withholding payment’ regime obliging purchasers to withhold and pay to the ATO 10% of the purchase price on account of the vendor’s CGT liability. To better understand this measure, I attended an ATO Information session.
I was greeted in the foyer by Person ONE who directed me to a line where, eventually, Person TWO checked my photo ID and then directed me to an adjoining line where, eventually, Person THREE asked me to sign in. He then directed me to Person FOUR who invited me to take a seat in the foyer. Eventually, Person FIVE invited me to join a group being escorted to the lift and we were shown into a lift, only to find that that lift did not stop at the right floor, so we returned to ground, changed lifts and, eventually, found ourselves on the eighth floor where we were met by person SIX, who escorted us to the seminar room. We were advised that sanitary and sustenance facilities were available but that we would need to be escorted to those facilities by one (or perhaps more) of the large cast of escorts standing at the back of the room. As the level of participation of the escorts in those sanitary and sustenance activities was not disclosed, I spent a very uncomfortable 2.5 hours not willing to find out.
Despite the need for prior registration and this rigorous security campaign, there were not enough copies of the papers available for the 100 odd people in attendance – that does not bode well for all of these $200,000+ payments that are going to be pouring into the ATO from 1 July.
The most important aspect of the withholding regime is for vendors and purchasers to understand that ALL $2m+ transactions are subject to the tax UNLESS the vendor obtains, and provides to the purchaser, a Clearance Certificate. In the absence of a Clearance Certificate, the purchaser must deduct 10% of the purchase price and remit it to the ATO immediately after settlement. Failure to do so will make the PURCHASER liable to the ATO for the amount.
The key to the vendor obtaining a Clearance Certificate will be the vendor’s current registration with the ATO as an Australian resident taxpayer. This places a premium on early consideration of the consistency between the name of the registered proprietor and the registered taxpayer. If the vendor has tax records that PRECISELY match the title registration then a Clearance Certificate will issue online. This is expected to be 80% of the time. However, if there is a discrepancy between the name on the title and the name of the taxpayer, the application goes off-line and delay will be inevitable while the vendor provides the ATO with additional documentation to align the registered proprietor with a registered Australian resident taxpayer.
Clearance Certificates will be available on-line from 27 June 2016, are valid for 12 months and may be used in respect of more than one property. Authentication is problematic.
If the purchaser does not receive a Clearance Certificate then the purchaser is obliged to remit the withholding payment and does so by completing a Purchaser Payment Notification on-line and receiving a Payment Reference Number allowing for payment on-line, at a Post Office or by mail. The ATO will issue payment confirmation to both the purchaser and the vendor.
Of enormous practical importance is the question whether the 10% withholding is to be 10% of ‘the price’, a relatively simple calculation, or is GST to increase the withholding and will adjustments effect the withholding? As presently advised, it appears that a flat 10% of the contract price will be acceptable but hopefully a Ruling will be available before 1 July.
The Law Institute will be publishing a Special Condition to be added to the contract of sale to take account of these new obligations.
Whilst written for Victoria this article has interest and relevance for practitioners in all states.
Check consistency between ownership and tax records. Apply for Clearance Certificate on-line.
Unless the vendor provides a Clearance Certificate you must withhold 10%.
The precedents have been designed to be used within the LEAP legal software environment, with matter details automatically filling fields in precedents.
Without the automation this can mean a precedent will sometimes look a little odd, with spaces replacing matter details.
We strongly recommend that users consider the first two items in the index which are:
Note: All instructions are based on Word 2007 unless otherwise noted. Click on any image to view better.
Alt+F9 shows any fields within a precedent.Show fields in the precedent
Assuming field shading has been turned on:
Without Alt + F9
With Alt+F9
By way of background, here is the same letter as it would appear when opened in LEAP, with matter details automatically populating the precedent:
And the same letter in LEAP with the LEAP field codes that populate the letter visible (Alt+F9):
Form field shading shows a user where to insert information by shading the form text fields – for instance, {FORMTEXT}.
Field shading reveals additional field information to assist the user to insert relevant information – see the highlighted text below:
Below is a precedent with no field shading or field codes displayed:
To easily access form field shading, add it to the Quick Access Toolbar (top left corner of Word). Select More Commands on the Customise Quick Access Toolbar drop down menu:
From the Choose commands from dropdown box, select All Commands. Select Show Field Shading and Add to the right panel.
This method can be used to add any of the Word functions to the Quick Access Toolbar.
To inset a heading line under a new heading, create the new heading with the desired list formatting applied and place the curser directly underneath the heading. Use the border button on the Home ribbon to select the top border by clicking on it once.
To insert a clause select and copy the clause above, along with its heading, and paste it into the white space between existing clauses. This will bring with it the style applied to the clause and any associated numbering or bullets. Then simply change the heading and the content of the clause.
If pasting content from an external source such as another word document or an internet page, select ‘paste special’ from the home ribbon or menu (or Alt+Ctrl+V) and then ‘unformatted text’.
Do not attempt to insert a new paragraph by placing the cursor at the beginning of a heading and entering down. This will apply the formatting belonging to the heading (line, spacing and bold) to the text in the clause.
If there are unwanted lines appearing above or below a paragraph, place the cursor above or below the affected lines and use the border button on the Home ribbon to unselect any applied borders by clicking on them once. It may be necessary to repeat this step more than once depending on the number of border lines appearing.
Formatting marks – The pilcrow – SHOW/HIDE
The pilcrow – found on the Home ribbon – shows paragraphs and other hidden formatting symbols such as spaces, tab marks, page and section breaks.
To control what formatting marks are shown:
To control what formatting marks are shown:
Accessed from the Insert ribbon:
What you do with headers and footers depends on your preference. You can:
Double-click in the top or bottom margin to instantly access headers and footers
and the Design ribbon.
The obvious choices are visible.
To control placement of page breaks:
Note: If either Keep with next or Keep lines together is checked, a black square will appear in the left margin.
Lawyers use many forms in the day to day running of their matters. It is useful to understand how to easily navigate through them.
Most forms which have fields embedded within them can be navigated electronically using the F11 key or the Tab key – virtually ‘hopping’ from one field to the next. The reverse direction is achieved by using the Shift key: Shift+F11
If you want to hard text a field’s entry in a form or precedent you select the field and press Ctrl+Shift+F9 altogether.
There are some forms which are ‘locked’ by the issuer eg the NSW real property lease form. The issuer locks these forms so that the layout and form wording is maintained.
To navigate through these forms use the Tab key.
The reverse direction is achieved by using the Shift key: Shift+Tab.
To check a box with your keyboard use the Spacebar.
Table of contents – update
If any headings have been added or removed, the table of contents will need to be updated:
Never amend the name of headings within the table of contents page. Make the change to the heading where it appears within the document and then update the table of contents as per above.
To celebrate National Law Week we thought it might be interesting to take a look at some of the more interesting, absurd and very real laws in existence around the world. While many of the so-called ‘crazy’ laws that are commonly published in books and on internet sites are actually fictional products of myths and urban legends, there are many fascinating examples of real cases and laws that are worth hunting out. As Nathan Belofsky, author of ‘The Book of Strange and Curious Legal Oddities’ skilfully argues, these laws offer unique insights into human history, behaviour and culture. Strange laws also offer an interesting perspective on the legal proceedings that gave rise to them.
And the best for last:
An estate agent is not an agent for the purpose of receiving a cooling off notice.
Tan v Russell [2016] VSC 93 will come as a surprise to most property lawyers. It concluded that the vendor’s estate agent is NOT an agent for the purposes of receiving a cooling off notice pursuant to s 31 Sale of Land Act.
The right to cool off from a residential contract is a statutory right created in 1982. It is reflective of the Age of the Consumer that has prevailed since the Trade Practices Act of the 1970s and is a watershed in the transition from caveat emptor and caveat vendor. It says to a purchaser ‘beware, or at least think about your decision quickly’. Consumer protection legislation is generally interpreted in such a way as to protect the consumer, but this case has taken what might be described as a literal view and has relied on authority, certainly High authority, but authority that is from a different age – the white picket fence view of the 1950s.
Section 31 Sale of Land Act permits service of the cooling off notice on ‘the vendor or his agent’. The purchaser served the notice by email on the vendor’s estate agent named in the contract, being the estate agent who had been negotiating with the purchaser on behalf of the vendor. The vendor argued that the estate agent was not an ‘agent’ within the meaning of s 31.
Peterson v Maloney [1951] HCA 57 was cited as authority for the proposition that an estate agent’s authority is limited to finding a buyer and, in the absence of specific authority, does not extend to an ability to bind the vendor. In short; an estate agent is NOT an agent in the common law sense of agency. This, and similar cases were concerned with the actions of the estate agent and whether the vendor was bound by those actions. However the role of the estate agent in the cooling off scenario is not to take action that might bind the vendor but rather to be a recipient of a notice, a conduit to the vendor. Hence it is possible to distinguish such cases as there is no need to find that the vendor’s estate agent in the cooling off scenario needs to do anything on behalf of the vendor, it just needs to receive the notice and, presumably, bring that notice to the attention of the vendor.
Even if the estate agent is not an agent in the strict common law sense, the purchaser argued that s 31 established a statutory agency whereby the vendor’s estate agent was authorised to receive delivery of the cooling off notice. This argument was rejected on the basis that the Act referred to estate agents in other sections and so could have, but did not, refer to the estate agent in this provision. To do so would have required s 31 to read ‘the vendor, his agent or his estate agent’ which, with respect, would appear to most readers to be a tautology. Again, rejection of this argument appeared to focus on the potential for action by the estate agent affecting the rights of the vendor, whereas it is the action of the purchaser in serving the cooling off notice which affects the vendor, not the passive receipt of that notice by the agent.
The purchaser had three days to act. There was no address for the vendor in the contract. There was a conveyancer listed but perhaps the same argument would apply to the conveyancer. This makes a nonsense of the section. With respect, the decision is wrong.
The REIV authority is being amended. The LIV contract will be amended. In the meantime, exercise care when cooling off.
By Lawyers introduced a new contract for the sale of land for New South Wales earlier this year and have hosted a number of informational webinars about it for solicitors and conveyancers. Those webinars raised a number of questions which we have published here.
If you have any questions not covered here, please email us at askus@bylawyers.com.au.
2016 edition of the contract was released in May.
General FAQs
Q: Can this contract be used in practice now?
Yes, and its use continues to grow as practitioners become aware of its existence and benefits.
Q: Given it is alternative to Law Society Contract for Sale, what if the purchaser’s solicitor/conveyancer refuses to use this version?
There is no prescribed contract for the sale of land.
It is for the vendor to decide the contract not the purchaser and it is not for the practitioner acting for the purchaser to jeopardise the transaction due to his personal preferences.
The Law Society contract is not the only one used. Several major firms use their own contract. The Barangaroo contract is an example which we understand has also adopted electronic execution to cater for the Chinese market.
Q: Is this contract available in LEAP Documents if we haven’t changed to LEAP Conveyancer yet?
Yes.
Q: Will LEAP take away access to the Law Society contract at any time?
Most unlikely. This is a matter for LEAP.
Q: Is there a time frame suggested that all parties should move to use the 2015 contract or Law Society contract rather than 2005?
We understand that the Law Society will cease providing 2005 contracts in January. You will need to confirm with them. The By Lawyers contract is immediately available.
Q: Does the contract include the standard conditions from the law society as well (blue pages)?
No. This contract is a new contract quite separate from the Law Society contract.
Q: Can this contract be used for sale/purchase of properties in Queensland?
No.
FAQ – Email and exchange questions
Q: Even if you do the exchange via email, can’t you still just mail out the contracts to the other side to “formally” complete the exchange and so you are holding the original signed Contracts…
This is a misunderstanding of the process. The exchange takes place when the vendor’s signed contract is emailed back to the purchaser. That emailed contract is the original and the one actually signed and retained in the office is a copy of the electronic original.
Q: If the contracts are exchanged via email do you still send the original paper contract to the other side?
No. The original is the electronic contract.
Q: If part of an exchange is ensuring that the contracts are identical, how is that carried out if they are emailed as part of the exchange and not physically checked in-house?
The purchaser’s electronic contract is checked against the vendor’s before returning the counterpart which can also readily be checked by the purchaser if they wish.
Q: When sending a contract by email on behalf of the purchaser, do you date it before sending and the vendor’s representative dates it when returned?
If the contract is to be exchanged the day that you send it then date it before you scan and send it. The vendor will do likewise. If the exchange may be on another unknown day then send it undated and the vendors copy returned to you will be dated that day and that is the date of exchange. The vendor may print and date the purchaser’s print version if he so chooses.
Q: Further to question about what date to list on contact for electronic exchange, do we list the cooling off date from date vendor send back signed copy?
Exchange is effected on email delivery to the purchaser’s solicitor which is the start of the cooling off period.
Q: What about when the agent does the exchange and it is incorrect, i.e. things which have been agreed between the parties have not been changed in the contract prior to exchange. Do we email a subsequent amended contract? Normally after exchange there are no changes.
The usual rules apply that any changes must be agreed and included in writing in the contract or in a separate document referred to in and supplemental to the contract.
Q: Is there a facility to electronically amend the document to add the date of exchange to the contract signed by the purchaser?
If that was considered necessary then it is printed dated and scanned in.
FAQ – Deposits
Q: Normally a deposit is released only if the vendor is purchasing a property; however it appears this contract allows it for any reason, what is the background for this?
Because it can be difficult to recover the deposit paid in a second transaction to which the purchaser is not a party it is not uncommon for such a request to be met by the response – get a deposit bond.
Sometimes the vendor is in need of cash urgently and the deposit is released to secure a price reduction.
As there are many reasons for release it is considered best left to the parties to negotiate.
The important part of the condition is the creation of a charge on the property securing repayment if it is released.
It is worth noting that the deposit release clause, like some other clauses in the terms and conditions, is activated by checking a box in the summary.
Q: With reduced deposits, are you suggesting or recommending that if the vendor will accept a 5% deposit, you just show that as the amount on the front page, rather than 10% and have a special condition dealing with a claw back in the event of default?
Yes. We doubt that a court will see a payment made after the exchange as an earnest for the transaction. There are a number of cases on this issue.
Q: If the release of deposit is ticked, can the deposit be released for any reason? Normally it’s only released for the purchase of another property.
Once the release of the deposit has been negotiated then all that is required is to tick the box which triggers condition 3 (c) in part 2 of the contract. If you wish to add any other conditions to the release then it would be necessary to draft a condition for inclusion as a special condition on page 4 of part 1.
FAQ – stamping questions
Q: Can you tell us again what the Office of State Revenue attitude will be to PDF documents.
OSR are well acquainted with stamping documents signed electronically. When sending it to them simply state that it is an original electronic contract.
Q: If you have a provider who stamps can they stamp a PDF?
Yes.
Q: You say the PDF exchanged copy becomes the original. For the purpose of stamping, can this be printed and the stamp applied to the printed version?
Yes.
Q: To stamp contract in house under EDR do we just need to print the PDF original and stamp it?
There is little point in doing so as long as the electronically stored contract is available if required by OSR.
Q: You mentioned the OSR requiring the original document for stamping. So how do we deal with that when contracts are exchanged electronically?
The OSR stamps a print version of the original electronic contract.
FAQ – Warranties, inclusions, and conditions
Q: What happens if you do not have a survey and have no way of knowing if there is encroachments on the property? One of the warranties appeared to warrant that there was no encroachments, from memory.
This is normally the subject of a special condition which is now included as a warranty in the contract. If the vendor knows of an encroachment and discloses it then the purchaser must accept it. If the purchaser does not get a survey then caveat emptor. If the purchase gets a survey after exchange showing an encroachment other than fencing then the purchaser may rescind the contract provided it is a material breach not known to the purchaser and the purchaser would not have purchased the property had he known of the encroachment and the vendor fails to remedy the encroachment.
Q: There is not much room for additional inclusions, I suppose we would have to have an annexure?
The space expands as words are added.
Q: If we want to amend some of these conditions for example insert a specific interest rate, how do we do that?
Type in the special condition or annex one. See page 5 of the summary.
Q: What about swimming pool clause regarding non-compliance SPA 1992 and Local Government Act and Regulations disclosure and purchaser taking as is and P not entitled to requisitions, objection, etc.?
See the warranties both statutory (reproduced in the summary) and contractual (clause 6). See clause 19(f) for taking as is.
Q: Off Plan Contracts form large part of our work and yet there is no section in LEAP conveyancing precedents or 2015 contract deals with off plan. What our options in this regard?
Within the library of special conditions are precedents for real property subdivision and strata development.
Can I copy the contract?
Q: Are we able to copy the contract without affecting the copyright provisions?
The contract is available as one of our precedents to those that use LEAP Conveyancer or subscribe to our Conveyancing Guide through our website.
Q: You said anyone can use the contract and that there is no breach of copyright. Does this apply whether or not you are a LEAP subscriber?
No. you must be using LEAP or have subscribed to our publication. Apologies for any misunderstanding.
button.You can create new Precedents or modify the ones already in LEAP.
Need help modifying a precedent? LEAP Certified Consultants specialise in making advanced changes to precedents. Click here to find a consultant.
Note : All precedents are based on Document Types. If you wish to modify any information on a precedent such as an address, letterhead, signature refer to the section on “Document Types”.
To create your own precedents:
Fields can be inserted into your precedent to make it automated.
The precedent will now be available in all matters of the same matter type.
To modify an existing precedent:
Your precedent will open in Microsoft Word allowing you to make any necessary amendments within the letter.
You can also import precedents into LEAP that are saved on your computer. Make sure you open a matter that corresponds with the matter type that the precedent is for, then click the ‘Guides & Precedents’ button at the top of the matter. Simply right click on the screen and select ‘Import Precedent’.
You will be presented with a navigation screen. Navigate to where your precedent is saved on your computer and double click the precedent. This will import it to the location that you have opened in LEAP. You can then modify the precedent to add in fields.
Move Precedents
There are two ways to move a precedent. Either right click on the precedent to cut and paste or follow the drag and drop method described below.
Precedent folders can also be dragged and dropped into other precedent folders.
If a precedent has been moved and needs to be returned to it original location, right click on the precedent and select ‘Reset Precedent’s Location to Original’.
Shortcut Precedents
A shortcut creates a link to an original precedent. Shortcuts are useful when the same precedent is required in two different locations.
Using a shortcut instead of duplicating a precedent means that only one precedent needs to be updated and maintained.
To shortcut the precedent:
The shortcut to the precedent will appear. A shortcut can be identified as it contains the 
icon. If required, the shortcut can then be moved to a new location.
Shortcuts can also be created from a precedent folder. Removing a precedent from the original folder will also remove the precedent from the shortcut folder and vise versa.
To locate the original precedent or precedent folder from a shortcut, right click on the shortcut and select ‘Find Target Precedent/Folder’.
Duplicate Precedents
Duplicating creates an exact copy of the precedent, but does not contain a link back to the original document. This is useful when you want to create a new precedent based on an existing document.
Once a precedent is duplicated, any changes to the original document will not flow through to the duplicated version.
There are two ways to duplicate a precedent. Either right click on the precedent to copy and paste, or follow the method described below.
To duplicate a precedent:
Another version of the precedent will appear and if required, can be moved to a new location.
Folders can be added to the ‘Guides & Precedents’ window. This allows users to customise the Guides & Precedents interface. It also allows user Precedents to be separated from LEAP Precedents.
Folders can also be created within other folders:
The history of a precedent is recorded to allow you to monitor what version of the precedent you are using and to revert back to a previous version if required.
From this window, you will be able to see how many changes have been made to the precedent and when they were made. You can also use the buttons at the top to preview a certain version of the document, compare two versions or set a particular version as the current one.
This article demonstrates how to add a Christmas message to your correspondence.
Before modifying the document types you need to have your firms Christmas Message ready. An example is shown below:
To edit the document types in LEAP:
When the Christmas period is over and the New Year has started, we will need to remove the Christmas message from the document types. Please do the following:
The ‘External Precedents Folder’ functionality allows your firm to maintain and keep your precedents locally on your machine or a networked location outside of LEAP. The selected folder will appear in the ‘Guides & Precedents’ window under the ‘External Precedents Folder’ tab. This eliminates the need to manually import your precedents into LEAP every time.
To set an ‘External Precedents Folder’:
Select the folder you want to display your local or networked precedents from. All folders and documents from within the selected folder will appear in the ‘Guides & Precedents’ window under the folder tree structure on the ‘External Precedents Folder’ tab.
If documents are added to the file structure, the ‘External Precedents Folder’ can be refreshed via the right-click menus ‘Refresh List’ option. You can also open the target location of any file via the right-click menus ‘Show in File Explorer’ option.
An external folder can be deselected by choosing ‘Deselect Current Folder’ from the options menu.
Custom precedents can be viewed from a single tab in the ‘Guides & Precedents’ window. This can be enabled by selecting ‘Show Custom Precedents Tab’ from the options menu.
The ‘Custom Precedents’ tab will appear after the Search tab, listing every custom precedent created by the firm.
Fields can be inserted into your precedent to make it automated.
The precedent will now be available in all matters of the same matter type.
When generating a document in LEAP, all of your client information is merged onto that document using ‘Field Codes’.
The advantage of this is that when you make a change to your matter in LEAP, those changes will carry over to the document, either when it is re-generated or when you click the ‘Update’ button at the top of Microsoft Word.
If you want to make a change to a particular document without that field being updated when a change takes place, you can convert that field to text and enter the desired information directly into the document.
To do this:
The converted field will no longer update when information is changed in LEAP for this document only. If you create a new document, it will still pull the relevant information from the Matter.
You can add custom ‘Ask’, ‘Fillin’ and ‘If Then Else’ fields into your documents that will appear when you open it.
An ‘Ask’ field will ask one question upon opening the document that can be filled into multiple locations. For example, if you want your name to appear at three different points on the document, it will ask ‘What is your name’ upon opening and the answer will be filled into all three locations.
To do this:
A ‘Fillin Field’ works similarly to an ‘Ask’ field but is only useful when the answer is to be displayed at one point in the document.
To do this:
An ‘If Then Else’ statement will display information on a conditional basis.
To do this:
In this example, if the matter field ‘Person Responsible Initials’ is equal to ‘MH’, it will display ‘True. If it is anything else, it will display ‘False’.
It’s a familiar situation – an employee who pushes their manager’s buttons.
Challenging and questioning rather than simply getting on with things – ‘like the others do’. Disgruntled employees with unresolved workplace issues can be difficult to manage. Some employers adopt a ‘put up with it or there’s the door’ position. Yet, managing a disgruntled employee is not as easy as that.
Traps abound for the unwary – as today’s article, in Part 1 of our series, shows.
Luckman v HP Bowral Pty Ltd T/A Highlands Property [2016] FWC 1250 (3 March 2016)
Ms Luckman worked in a permanent part time capacity for a property management company.
Her role involved managing a portfolio of properties, including sales and leasing.
Two disputes arose during Ms Luckman’s employment.
The first dispute arose when Ms Luckman considered that she had a full-time workload although she was working in a part-time capacity, based on the amount of properties she was expected to manage.
The dispute was resolved after Ms Luckman raised issue with her manager.
The second dispute arose over a management decision that Ms Luckman would be managing two new properties in addition to her normal duties.
Ms Luckman was advised of the decision on 13 August 2015.
Ms Luckman objected to management’s decision on the basis that although she would be burdened with the responsibility for managing the properties, she would be effectively denied the associated sales commissions because each sale would occur during hours when she was not at work.
Later that day, Ms Luckman was invited to a meeting with the employer’s General Manager, Mr Walker.
During the meeting Mr Walker explained the reasons for the decision and advised that he did not consider the transfer of work to her as unusual or uncommon.
Ms Luckman disagreed with Mr Walker’s explanation and at the conclusion of the meeting made comments along the lines of “I’m done, I’m over it, I’m out of here.”
After returning to her desk, Ms Luckman sent Mr Walker an email which included the following:
“Further to our meeting today as I feel there is nothing more to discuss it would be appreciated if the files could now be handed over so I can continue the management of those properties.”
Mr Walker responded by email which included the following:
“You may feel there is nothing more to discuss, but there is. It’s nothing to lose sleep over but I will make time for us to meet again.”
On 20 August 2015 Ms Luckman was invited to a further meeting with Mr Walker.
At the start of the meeting Mr Walker read out a letter terminating Ms Luckman’s employment.
The letter advised ‘misconduct’ as the reason for Ms Luckman’s dismissal.
Ms Luckman challenged the termination of her employment by way of an unfair dismissal application to the Fair Work Commission.
The FWC ultimately found the dismissal to have been harsh and unreasonable and thus – unfair.
The FWC considered that the conduct of Ms Luckman in the meeting did not amount to a valid reason for her dismissal.
Although observing that Ms Luckman had been angry and hostile during the meeting of 13 August, the FWC recognised that there had been no use of inappropriate or foul language, or threatening or abusive behaviour, by either party.
The FWC also recognised that Ms Luckman’s email to Mr Walker immediately after their meeting demonstrated that she was ready to follow the instruction about the management of the two properties in question.
In particular the FWC commented:
‘The meeting on 13 August 2015 was a robust discussion where an employee had the courage to voice her disapproval over the way that she perceived that she had been victimised over the last four years.
The mere fact that there was no swearing or threatening language used solidifies the view that Mr Walker’s decision to terminate Ms Luckman’s employment was a monumental over reaction.’
Importantly for employers, the FWC made the following observation about robust discussions between employers and employees:
‘Robust discussions between employees and employers are a part of the Australian industrial landscape.
The notion of master/servant where an employee was not allowed to question the decision of the employer disappeared with the industrial revolution.’
Ultimately, the FWC handed down a decision of unfair dismissal.
As to the question of whether Ms Luckman could be reinstated, the FWC rejected a claim by the employer that there had been a breakdown of trust in the employment relationship.