ByLawyers News and Updates

Adjustments

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Recurring outgoings, such as rates and taxes, are adjusted between the parties as at the settlement date. This right/obligation has long been a part of the standard form contract of sale of land and its present incarnation is general condition 15. Whilst requiring apportionment of outgoings between the parties at settlement, the general condition does not specify the actual method of adjustment and logically there are two such methods.

If the vendor has paid the outgoings in advance then the adjustment is achieved by simply calculating the number of days after settlement that the vendor has prepaid and allowing an appropriate amount, calculated at a daily rate, by way of addition to the purchase price. If the vendor is in arrears as at settlement, it may appear simple to likewise calculate an amount on a daily basis and deduct that amount from the balance of purchase price paid to the vendor. The problem with this method is that the purchaser is then immediately in arrears in respect of the outgoings and the vendor may be entitled to argue that a debt issued in the name of the vendor remains outstanding.

It is therefore arguably ‘more correct’ to adjust on a ‘rates paid’ basis so that, even if the vendor has not paid the outgoings, the adjustments are prepared on the basis that outgoings are paid and the full amount (or balance outstanding) is deducted from the amount due to the vendor and remitted by the purchaser (after sighting by the vendor) to the rating authority. This complied with s 175 Local Government Act 1989 which (previously) required a purchaser to pay any outstanding rates in full after settlement.

The advent of quarterly charges for rates is a relatively recent consideration that may justify a review of past practices, at least in relation to rates or instalments of rates which are not presently due and payable. In this regard s 175, whilst still requiring payment of any arrears in full, now entitles a purchaser to the benefit of any instalment payment plan that was available to the vendor.

When rates were properly regarded as an annual charge it was appropriate that adjustment was made on an annual basis, calculated by reference to the number of days between the end of the rating period and the date of settlement. This accorded with s 53 Supreme Court Act 1986 which, whilst not applying directly to rate adjustments, indicates that apportionment is generally conducted on a daily basis. However such logic is equally applicable to a daily adjustment in respect of a period of time of less than a year, such as a quarter.

Water rates were also in past times assessed on an annual basis and therefore usually adjusted on that basis, but s 139 Water Industry Act 1994 now allows the Minister to authorise annual, half yearly or quarterly payments and it is fair to say that quarterly instalments are the rule. Most water authorities now issue separate assessments for service and related charges, which are adjustable; and usage, which is not adjustable as the authority accepts liability for recovery of the usage charges from the outgoing vendor. However, as of 1 July 2013 City West Water has reverted to treating existing usage charges as a charge on the land, thereby passing responsibility back to purchasers to allow such charges as an adjustment at settlement and remit payment to the authority after settlement. Other authorities may well follow suit.

The other common outgoing requiring adjustment is owners corporation fees. Section 28 Owners Corporations Act 2006 makes the owner for the time being responsible for payment of fees and therefore, whilst they are not a charge on the land as rates are, effectively the purchaser becomes liable for payment in the same way as rates. The Act does not specify how fees are to be levied and it is fair to say that, whilst annual and monthly fees are sometimes levied, the most common method is quarterly, including annual fees payable quarterly. It is also fair to say that it is normal to adjust owners corporation fees on a quarterly basis when they are levied on that basis.

It may now be time to step into the world of quarterly payments and adjust all rates and outgoings that are assessed on a quarterly basis, on that basis. This will add the complication that not all quarters are equal (most, but not all, are 92 days) but this additional calculation may be justified to achieve an adjustment process that accords with current assessment regimes.

Tips

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Deposit release – Tough decisions?

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

A Supreme Court ruling makes claiming a return of deposits difficult

The Supreme Court has made another decision that, from the point of view of purchasers at least, might be described as tough. Certainly vendors might view the result favourably, but it is suggested that, on balance, the decision places too high a duty on purchasers before they are entitled to claim a return of the deposit in a situation when finance approval has not been obtained.

Umbers v Kelson & Anor [2008] VSC 348 denied a purchaser a refund of deposit in a sale of business contract when the purchaser wrote to advise the vendor within the time prescribed by the finance condition that finance approval had not been obtained and sought an extension of time for approval, concluding that: ‘In the event that an extension is not agreed to, you may treat this letter as written notice ending the contract’.

Applying a strict interpretation of the condition, the court concluded that the word ‘may’ failed to sufficiently explicitly express the purchaser’s intention to end the contract if the extension was not granted and refused to order a return of the deposit. This outcome came as a shock to the vendor as much as the purchaser, as the vendor had not even made that argument and it was entirely a construct of the court. It may be explained by reference to the context of the dispute between the parties where the purchaser had adopted an ‘off handed, on again, off again’ approach over an extended period and justice appeared to favour the vendor, who had been substantially inconvenienced by the purchaser.

Putt & Anor v Perfect Builders Pty Ltd [2013] VSC 442 concerned a 10 per cent deposit of $59,500 paid pursuant to a contract relating to an ‘off the plan’ owner-occupier apartment valued at $595,000, with the purchaser contributing $155,000 and borrowing $475,000 (including acquisition costs) and appears to be the perfect consumer transaction involving John and Betty Citizen who had saved for years to buy their first home.

Some, probably unnecessary, controversy arose between the purchaser and the vendor in relation to relatively minor matters during the finance period with the vendor failing to respond to some requests made by the purchaser in relation to the property and documentation. This perhaps soured the relationship and affected the vendor’s response to the purchaser’s request for a refund of the deposit when the loan had not been approved within the approval period. That request was supported by a relatively informal, but unchallenged, advice that the lender had refused the loan on the basis that ‘valuation confirms the property is unacceptable’.

The vendor refused to refund the deposit on the basis that the purchaser had applied for a loan of $476,000 and therefore had failed to strictly comply with the finance condition, which called for a loan of $475,000. It should be noted that $476,000 is 80 per cent of the purchase price and it is entirely likely that this amount was applied for as a result of the broker describing the loan as an 80 per cent LVR (loan to valuation ratio).

The purchaser argued that ‘commercial reality’ predicated that a refusal for $476,000 meant that there would have been a refusal for $475,000, but Williams J stated that, even if that were the case, there was no evidence upon which the court could be satisfied that the purchaser had done ‘everything reasonably required to obtain approval’. There was no evidence of the requirements of the lender referred to in the correspondence between the parties and the valuation referred to in the refusal and this meant that the court was unable to be satisfied that the precondition for a refund had been satisfied.

This lack of evidence was a direct result of the judicial course that the purchaser chose to follow to force a refund. The application was made pursuant to s 49 of the Property Law Act (Vic), informally known as a Vendor-Purchaser Summons. The virtue of this procedure is speed (the hearing was within two months of the dispute arising) but the evil is the lack of evidence that the parties can put to the court, as only affidavit evidence is permitted. If a procedure in a lower court or tribunal had been adopted it may have been possible to adduce more evidence, but the ‘evil’ in that option was the inevitable time delay.

Section 49 does give the court discretion to ‘do justice between the parties’ and, with respect, it is suggested that ‘justice’ in this case required a refund of the deposit to the purchaser, rather than a windfall profit to the vendor. However the exercise of this discretion has previously been interpreted in a quite limited way and Williams J was not prepared to exercise the discretion in this case.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

GST – GST and mistake

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

GST needs to be at the forefront of every property lawyers mind when dealing with the sale (supply) of real estate.

If the transaction relates to ‘residential premises’ then GST does not apply, but it does apply if those ‘residential premises’ are ‘new residential premises’ or are not ‘premises’ – that is, vacant land. The guiding presumption in the residential environment is that GST does not apply unless the property falls into one of the specific categories.

Conversely, when dealing with commercial real estate sold during the course of an enterprise, GST ordinarily applies unless the transaction is the sale of a ‘going concern’ or a ‘farming business’. Thus the guiding presumption in the commercial environment is that GST does apply unless the property falls into one of the specific categories.

The final consideration is, if GST is a factor in the transaction, does the margin scheme apply and, if so, do the parties want to use the margin scheme?

More than a decade after the introduction of GST most practitioners have a fair understanding of GST and the introduction of the 2008 standard contract now requires the parties to address the GST issue at the start of the transaction by imposing a presumed GST outcome in default of use of the boxes to prescribe a different outcome. However, even if practitioners have a good understanding of GST, it is still possible for disputes to arise based on the faulty understanding of the parties to the transaction.

Booth v Cityrose Trading P/L (ACN 077934671) [2011] VCAT 278 arose because the vendor sold ‘new residential premises’ and sought to recover GST in addition to the price. The purchaser argued that the contract either did not provide for the addition of GST to the purchase price or, if it did so provide, that the contract should be rectified. The contract was pre-2008 and included, as was common at that time, a very poorly worded special condition that the tribunal concluded did mean that GST was to be added to the price. However the tribunal considered the surrounding circumstances of the transaction and concluded that at the time the contract was signed, which was the relevant time for determining the intention of the parties, the director of the vendor who signed the contract on behalf of the vendor did not intend that GST should be added, as his evidence was that he had not thought about GST. This is despite there being evidence that the vendor’s manager did intend the contract to be plus GST when he gave instructions for preparation of the auction contract. Presumably, if the manager had have signed the contract, then GST would have been payable and the decision appears to be limited to its facts. An alternative basis for the decision based on misleading and deceptive conduct also confirms the importance of all of the facts, not just the written word, and that courts will hold parties to their agreement even if the contract needs to be rectified to achieve that outcome.

Duoedge P/L v Leong & Anor [2013] VSC 36 also arose due to a misunderstanding by the parties as to the GST consequences of the contract. The property was existing ‘residential premises’ and therefore GST exempt. The purchaser intended to undertake a commercial redevelopment of the site and the parties incorrectly concluded that this meant that GST did apply. The undoubted intention of the parties was that the price was GST inclusive and the plus GST box was struck out. The vendor provided a tax invoice and it was intended that the vendor would account to the Australian Taxation Office for the GST and that a refund of the GST would be made by the ATO to the purchaser. However the vendor made annual GST returns and so when the purchaser sought a refund after three months the ATO had not received the GST from the vendor and inquired into the transaction, concluded that it related to existing residential property and denied the purchaser’s claim for a refund on the basis that it was not a taxable supply.

The purchaser sought a refund from the vendor and, despite success in the Magistrates’ Court, lost on appeal. The court interpreted the contract as allocating risk in respect of payment of GST and, in this case, allocating that risk to the vendor. It followed that, if no GST was payable, the vendor was entitled to keep the GST. Dixon J. suggested that the purchaser would be able to ‘recover’ the GST by the application of the margin scheme to any resale, as the ATO had concluded that the purchase was on a no-tax basis, thereby qualifying the purchaser to sell on the margin scheme.

The ‘winner’ here was the vendor who had an extra 10%. But the purchaser would get that money back on resale by applying the margin scheme, so the purchaser was no worse off.

The ‘loser’ was the ATO, which would ultimately get less money from the purchaser’s resale, but that was because the original sale was not taxable. The vendor’s gain simply arose from the false expectation of the parties that GST was payable on the original transaction. The ATO lost something it did not want.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Defects ­- Essential safety measures – Part 2

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

The issue of which party, landlord or tenant is responsible for the cost of essential safety measures and associated annual reports in relation to leased commercial premises is causing controversy.

Essential safety measures include such services as:

  • air conditioning;
  • fire protection; and
  • exits.

An article published in April 2012 86 (04) Law Institute Journal p. 28 by Mermelstein & Redfern (LIJ article) stated boldly that ‘These costs must be met by the landlord’ and a paper presented in October 2012 by Robert Hay, Barrister for Leo Cussens Property Law Conference, and available on Hay’s blogsite The Property Law Blog (Hay article) takes the opposite view.

The LIJ article bases its conclusion on the Building Act 1993 and the Building Regulations 2006. This regime imposes obligations on landlords (as ‘owners’) in respect of essential safety measures, both in relation to maintenance and reports. The article concludes that the owner is responsible for maintenance of essential safety measures pursuant to regulations 1205 and 1217 and for the preparation of annual reports pursuant to regulations 1208 and 1214. The article then refers to s 251 Building Act, which provides that, if the owner fails to carry out essential safety measures, then the occupier (tenant) may do so and is entitled to set-off the cost against rent without objection from the landlord.

The Hay article takes no objection to this analysis but rejects the proposition that any of the above supports the conclusion that the owner is not able to contractually pass on the cost of essential safety measures to the tenant, provided that the owner does in fact carry out the work. Hay’s point is that the Building Act regime is primarily directed at establishing responsibility for performance of the work, not payment. Section 251, which is concerned with payment, only operates when the owner fails to do the work and has no role to play when the owner does the work. Hay therefore concludes that an appropriately worded lease may allow the landlord to recover the cost incurred by the landlord in respect of essential safety measures, both as to maintenance and reports.

The LIJ article relies on Chen v Panmure Hotel P/L (Retail Tenancies) [2007] VCAT 2464 as support for the proposition that the owner is responsible for the cost of essential safety measures, however that was a case where the owner had not undertaken the work, so s 251 had a role to play. The owner sought an order that the tenant pay the essential safety measures compliance costs but VCAT refused to make such an order as the tenant would have been entitled to set-off those costs pursuant to s 251. The case is authority for the proposition that an owner who does not pay the cost of essential safety measures cannot require the tenant to do so. It is not authority for the proposition that an owner who does pay the cost of essential safety measures is unable to recover the cost from the tenant.

Subsequently, McIntyre & Anor v Kucminska Holdings P/L (Retail Tenancies) [2012] VCAT 1766 has considered the question, concluding that, whilst a lease may provide that a tenant is responsible for compliance with essential safety measure obligations, s 251 means that ‘the landlord must reimburse the tenant for the costs associated therewith’. Again, this was a case where the work had not been done.

Hay’s argument depends upon the landlord undertaking the work and then seeking reimbursement from the tenant but, as is pointed out in McIntyre, the tenant is entitled to possession of the premises and therefore in a better position to comply with essential safety measures. Any lease condition authorising the landlord to undertake essential safety measures will need to address the landlord’s right to access the premises for that purpose.

Retail Leases Act

The Retail Leases Act could include a prohibition against the landlord recovering the cost of essential safety measures from the tenant, as it does in respect of recovery of land tax, but it does not. Therefore, theoretically Hay’s argument may apply to a retail lease. However it does include an obligation on the landlord to maintain the premises: s 52. The LIJ article cites Café Dansk P/L v. Shiel & Ors (Retail Tenancies) [2009] VCAT 36 as authority for the proposition that the landlord is forbidden by s 51 Retail Leases Act from recovering from the tenant the cost of repairs required by s 52. Presuming that essential safety measures fall within the general obligation to maintain imposed by s 52, a landlord would appear to be responsible for essential safety measures and cannot recover the cost from the tenant.

Hay suggests that it may be possible to overcome Café Dansk by reference to the Explanatory Memorandum, which appears to suggest that the parties are free to negotiate allocation of cost in respect of s 52 repairs but, until challenged, the case stands as authority for the proposition that any essential safety measure that can be classified as ‘maintenance’ within the meaning of s 52 will be the responsibility of the landlord.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

To accept or not accept instructions in urgent will matters

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By Rosslyn F. Curnow Nolch, Principal

Rosslyn Nolch Solicitors

Publisher’s Note: The outcome in Howe v Fischer [2013] NSWSC 462, discussed in this article, was overturned on appeal in Howe v Fischer [2014] NSWCA 286. Following the decision on the appeal, unless the instructions for the will are concluded and unless there is reason to think the testator is at imminent risk of death, then it appears a solicitor is unlikely to be held negligent for failing to advise about, or to procure, an interim will. However each case will turn on its facts and solicitors should take utmost care.

Every case of course turns on its own facts, but two recent cases, and an ageing population, highlight the need for consideration of a number of issues when agreeing to take on a new wills matter.

  1. Fischer v Howe [2013] NSWSC 462

The lawyer was asked to act for a new client in relation to her will. The willmaker (W) had made a number of formal wills between 1982 and 2009 and wished to change certain dispositions in her then latest will made in 2009. In particular, W wished to leave the plaintiff in this matter a 50% share of her estate in lieu of the 25% left to him in the 2009 will.

W had lost faith in her previous lawyer and asked her doctor if she could recommend a lawyer. The doctor knew the defendant lawyer and contacted him, and in the course of the conversation noted that she believed W had testamentary capacity as she was of sound mind, although physically frail. Subsequently the lawyer spoke directly with W and then attended her home, where she resided with the assistance of a carer, two days later (25 March 2010).

At the time of the attendance, the lawyer took instructions during a lengthy conference. He was not provided with details of the 2009 will.

It is pertinent to note that during that conference, as well as stating her wishes in respect to the change in disposition to the plaintiff, W:

  1. did not reveal her age (94), other than by reference to the ages of her children;
  2. wanted her previous lawyer and accountant removed as executors and, when asked who she wanted as executor, ‘suggested that the defendant could be appointed. He (the defendant) advised her to think about whom she wanted and to let him know when he presented her with a draft of the will.’;
  3. did not appear to be suffering from ill-health or appear to be exhausted from the lengthy conference.

This conference was shortly prior to the 2010 Easter holiday. At the conclusion of the conference the lawyer told W that he would be away on leave over the Easter break and would not return to work until after Easter. It was proposed that the lawyer would prepare a draft will and attend W during the week after Easter, with which W agreed, also stating that she would like the plaintiff to be present at that meeting. The lawyer left with instructions, and was to contact W upon his return from leave.

Later that day W spoke to the plaintiff over the telephone and told him that she had seen a lawyer and wanted to ‘schedule’ him to attend after Easter when the plaintiff could be present.

Subsequently, over a very short period of time during which W refused to be admitted to hospital, W became ill. On 31 March 2010 the lawyer commenced leave (Good Friday was 2 April 2010). W died on 6 April 2010, without executing a new will, and her doctor was ‘shocked’ that she had passed away at that time.

Following objections on the basis of a lack of testamentary capacity by a family member left out of the 2009 will, that will was finally admitted to probate with some modifications (which did not affect the plaintiff’s entitlement of 25% under that will). Subsequently the plaintiff brought an action against the lawyer for his ‘lost’ 25%, being the difference between what he received under the 2009 will (25%) and what he would have received under the ‘new’ will had it been made (50%).

What appears to have told against the lawyer was that he was very experienced, had a short time previously attended a seminar on informal wills, and that ‘The defendant accepted that there was no practical impediment to his making an informal will at the conclusion of the conference since it would not have taken long and there was no indication that the deceased’s attention or energy was flagging. He admitted that he did not give any consideration to an informal will which the deceased could have signed that day or shortly thereafter’.

The court stated (at 97):

I consider that the defendant was negligent in failing to procure an informal will at the conference on 25 March 2010. He could have done so. His failure to do so was a breach of his duty to exercise reasonable care. Although the deceased may not have been at risk of imminent death as [the doctor] understood the term, being at risk of dying within hours or within a day, she was, by reason of her age, lack of mobility, need for care and infirmity, susceptible to a not insignificant risk of losing her testamentary capacity in the period of about a fortnight between the initial conference and the proposed conference. There was no reason for her, or her intended beneficiaries, to be subjected to that risk in light of her settled testamentary intentions, both as to dispositions and as to her desire to change her executors, and the circumstance that it was the solicitor who was responsible for the delay.

And (at 102):

The only thing that would have relieved the defendant of the obligation to procure an informal will would have been the deceased’s express instructions that she did not wish to take that course. No such instructions were forthcoming nor could they have been because the defendant did not raise the option with her. I do not accept that the preparation of an informal will was in any way inconsistent with the later execution of the formal will at the conference in April. To the contrary, the purpose of the making of an informal will was to safeguard the implementation of her testamentary intentions against the possibility that the deceased would lose her testamentary capacity either through death or stroke or other event to which her advancing age and frailty made her increasingly susceptible.

The plaintiff was awarded the difference between 25% and 50% of the estate against the lawyer.

  1. Maestrale v Aspite [2012] NSWSC 1420

On 8 July 2002 the lawyer met with the deceased, who was on a day release from hospital, and took instructions for a will – this had been arranged by the plaintiff. Subsequently, on 15 July 2002, the lawyer attended the hospital with the original will for the purposes of having it executed, but unfortunately the deceased died 10 minutes before he arrived.

The plaintiff’s contentions, many of which the court accepted, included that:

  • he had asked the lawyer on several occasions in the three weeks leading up to 8 July 2002 to attend his father for the purposes of making a new will (under which the plaintiff was to receive a greater share than provided in an earlier will);
  • the lawyer negligently failed to have the deceased sign his instructions at the meeting 8 July 2002 (as an informal will);
  • he had contacted the lawyer on 12 July 2002 and 13 July 2002 to say that his father’s health was deteriorating.

In response, the lawyer said that:

  • it was not until the morning of 8 July 2002 that any arrangement was made for him to meet with the deceased;
  • while he understood that the deceased had been diagnosed with cancer, the plaintiff had told him the doctors believed he had six months to live, and that the deceased gave him the same information on 8 July 2002, at which time the deceased appeared to be in a reasonably stable condition;
  • had the plaintiff informed him of the urgency, he would have attended the deceased without delay, but denied having been so informed;
  • he was aware of the applicable informal will provisions (section 18A Probate and Administration Act 1898 (NSW)) 2, but did not advise the deceased of the option of making an informal will because of his assessment of the deceased’s general state of health on 8 July 2002 together with the information the deceased gave him at that time that his doctors had given him some months to live.

The court considered the evidence of various experts and inter alia quoted from Hill v Van Erp [1997] HCA 9 where the solicitor was held liable to the intended beneficiary, the disposition being ineffective because the husband of the intended beneficiary was asked to attest the will:

Thus, when a solicitor accepts responsibility for carrying out a client’s testamentary intentions, he or she cannot, in my view, be regarded as being devoid of any responsibility to an intended beneficiary. The responsibility is not contractual but arises from the solicitor’s undertaking the duty of ensuring that the testator’s intention of conferring a benefit upon a beneficiary is realised. In a factual, if not a legal sense, that may be seen as assuming a responsibility not only to the testatrix but also to the intended beneficiary.

The court also quoted from Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 where a ‘disappointed beneficiary’ was unsuccessful:

It may be accepted that whenever a solicitor takes instructions to make a will, there is a potential for a duty to arise in favour of third parties who may be damaged if the solicitor fails to discharge the retainer with due care. Whether a duty actually arises in favour of a particular third party depends upon a variety of circumstances, and these have not by any means been clearly identified by the cases. … Hill v Van Erp, suggests a variety of potential matters including foreseeability of loss to the third party, control of the situation by the solicitor, proximity between the solicitor and the third party, general public reliance on satisfactory performance by solicitors, assumption of responsibility to discharge the retainer properly, the powerlessness of the third party to do anything to protect himself or herself, whether or not there is any conflict between the duty owed to the client and the alleged duty to the third party and perhaps other matters also.

There is as yet no consensus as to which matters are dominant or any formula which will guide a trial judge in formulating tests that will determine whether or not such a duty is owed. However … (i)t is up to the client to indicate when he or she is ready to make a particular will. Attempts by a solicitor to hurry up an undecided client or to seek to benefit particular beneficiaries are fraught with danger. Recognising this, Courts should be slow to inflict busybody functions or duties of this kind upon solicitors or other professional advisers.

In the circumstances of the present case, particularly in the absence of indication from the testatrix that she wanted to finalise the matter at least to the extent of executing a will that would secure a particular benefit to the art gallery, I do not consider that the stage was reached at which any duty of care arose on the solicitor’s part in favour of the art gallery.

The court then noted (at 106) that the situation in this case was distinguishable from the latter case, and that the deceased ‘had given clear and unambiguous instructions to (the lawyer) to prepare a will under which he intended that the plaintiff would benefit, to a material degree, differently from his other children. There is nothing to indicate that (the deceased) was uncertain as to his testamentary intentions at the conclusion of the (8/7/2002) meeting and everything to support the inference that he was thereafter awaiting the attendance of (the lawyer) to render those intentions final and enforceable.’

And (at 107):

By accepting those instructions, and in pursuance of carrying them out, … (the lawyer) had a coexistent duty to the plaintiff to ensure that in the event of any change in his father’s health or capacity he would make prompt arrangements to attend with a formal will or, if time did not permit, to attend with the file notes so that they might be signed and an informal will created. The breach of duty did not reside in an unduly dilatory approach to preparation of the will by allowing the passage of seven days before the will was prepared but in his failure to respond to the plaintiff’s urgent calls for advice and attention in the interim.

The court awarded damages against the lawyer based on the difference between what the plaintiff received under the ‘old’ will, and what he would have received under the ‘new’ will (with some adjustment for other factors pertaining to the deceased’s expressed wishes).

Other relevant points

Our professional rules, in respect to which the Australian Solicitors’ Conduct Rules (yet to be implemented) are very similar, highlight some areas where an ‘urgent’ will situation can put the lawyer in peril, for example (in addition to rule 10):

  • Agreeing to Act for a Client (Rule 2): consider what might be deemed diligently attending to the work required with ‘reasonable promptness’ in the circumstances;
  • Maintaining confidentiality (Rule 3): consider how to best effect ‘deathbed’ instructions when co-ordination with family members is required (particularly where they are existing clients, as is often the case);
  • Avoiding conflicts of interest between clients and between the client’s and the practitioner’s own interest (Rules 8 and 9) 3: consider how one ceases to act if a material conflict arises when the willmaker’s health is failing.

We also should consider one of the suggestions contained in the 2012 Victorian Law Reform Commission’s Review of Succession Laws that willmakers be obliged to obtain a medical certificate before giving instructions for making a will 4, and also the suggestion that a person authorised to take affidavits or a medical practitioner act as a witness5.

So the questions we might need to consider before accepting instructions for wills include:

  • Is it urgent, not only in time but in terms of the willmaker’s health?
  • Is it urgent from the willmaker’s point of view, or are there really issues of capacity with the urgency being from the point of view of the intended beneficiary?
  • Can one attend to the matter promptly (as in immediately, foregoing holidays, other emergencies etc.)?
  • Is one able to assess competency immediately, as opposed to a slightly longer but more considered approach; and/or is there a legislative requirement for a medical certificate before instructions can be taken, in which case whose responsibility is it to pursue this?
  • Is one prepared to write up an informal will ‘on the spot’ if the need arises, including adequate consideration of potentially difficult areas such as excluding immediate family members who would ordinarily expect to benefit?
  • Is an informal will recognised in the lawyer’s particular jurisdiction, at present 6, or in the future if additional legislative requirements are imposed?
  • What are the risks in errors being made in a hasty informal will, as opposed to one prepared in the serenity of one’s office with precedents and all necessary information to hand?

We also need to consider potential risks, some being obvious and some perhaps not, including:

  • The willmaker may not really want a (new) will, but in the perceived immediacy of the matter the lawyer is given little time in which to give this considered attention, particularly if s/he is being pressured by such statements as ‘If mum dies before this will is signed …’ (we all know how this goes).
  • If the (new) will is made, disappointed beneficiaries may allege all sorts of improprieties against the lawyer.
  • If the (new) will is not made, disappointed beneficiaries may allege their ‘disappointment loss’ is in direct proportion to the alleged negligence of the lawyer.
  • Indicators of diminished competency may be missed in the immediacy of the matter, particularly if the lawyer has not acted for that willmaker previously.
  • An informal will prepared in haste may not meet applicable jurisdictional requirements (see point 3).
  • Drafting errors may be made in the haste to prepare a will.
  • If the willmaker indicates they want the lawyer to act as executor the lawyer may be caught between refusing or asking the willmaker to consider further, leaving him/herself open to accusations of delay; or agreeing, and being accused later of coercing the willmaker to make the appointment and failure to comply with the professional rules.
  • There may be a higher risk of conflict between the interests of the willmaker, the interests of family members if they are existing clients, and also the interests of the lawyer in ensuring that all ethical duties are met as well as a personal interest in not being taken to task afterwards.

So whilst every person should be able to access legal assistance when and where required, there are evolving difficulties in regard to this area of law, and it may well be that in the future only specialist firms are willing to accept this type of work.

Note: Contributed by Rosslyn Nolch, Solicitors, for educational purposes only, and originally prepared for Wills, Powers of Attorney & Enduring Power of Guardianship (VIC) – Step-by-Step Legal Practice Guide and Precedents By Lawyers For Lawyers.

The interpretation is that of the author, and the reader should research all of the materials referred to for him or herself. Primary source of case information unless otherwise noted:

https://www.austlii.edu.au/.

This article does not constitute legal advice.

NOTE:

  1. See also In Check Issue No. 59 www.lplc.com.au.
  2. Section 18A Probate and Administration Act 1898 (NSW).
  3. See also the 2012 Victorian Law Reform Commission’s Review of Succession Laws, referred to below, Point 2.43 and Question W5.
  4. Point 2.43 and Question W4.
  5. Point 2.17 and Question W1.
  6. See for example: Fast v Rockman [2013] VSC 18 where an unexecuted Will was admitted to Probate as a document the deceased intended to be his Will, notwithstanding that he had not actually seen it (but had seen an earlier unexecuted Will to which he wanted minor changes); Re Will and Estate of Brian Bateman [2011] VSC 277 where an informal (draft) Will was admitted to Probate, and Estate of Peter Geoffrey Brock; Chambers v Dowker & Anor; Dowker & Anor v Chambers & Ors [2007] VSC 415; and Estate of Baier [2013] NZHC 504 where a Will approved by telephone by the deceased was admitted pursuant to section 14 Wills Act 2007 (details courtesy Envoy June 2013, NZILE); contrasted with the result in Prucha v Standing [2011] VSC 90 where the Court found the deceased had not intended the document to be his last Will.

Tip Box

Whilst written for Victoria practitioners this article has interest and relevance for practitioners in all states.

The risks of asking an employee to a little chat

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By Brad Petley

Acumen Lawyers Workplace relations and safety law specialists

The background

At the time of her dismissal, the employee (Ms Ward) had worked as an Advertising Sales Coordinator in her employer’s Agency Division. Each sales coordinator had a client list to sell advertising to and service.

The employer had an account management system on its computer network which provided a complete billing history of the advertising relationship with clients. Sales coordinators entered ‘notes’ about client-related matters into the account management system.

The employer decided to restructure. Clients previously serviced by the agency sales team (including by the employee) were internally allocated to other teams.

The employee didn’t take kindly to the restructure. ‘In a fit of pique’ she deleted notes that she had made about clients on the account management system to make it difficult for anyone who took over the employee’s client accounts.

Whilst voicing her unhappiness about the reallocation decision with her manager, the employee informed him of the deletion of her client notes from the account management system.

The investigation

The employer initiated a workplace investigation following the employee’s disclosure. An examination of the employer’s computer system confirmed that notes had been deleted by the employee.

Some three days after the employee’s disclosure, an 8 am meeting was held by management. The employer’s Sales Director, who had initiated the investigation, directed a human resources officer to arrange a meeting with the employee. At the time, the matter was considered ‘serious’ and the Sales Director was considering the employee’s dismissal.

Within two hours, the employee was summoned to a meeting with the human resources officer and management representatives.

Following the misconduct meeting, the employer decided to summarily dismiss the employee with four weeks pay in lieu of notice (due to her near 20 years of service) the next day.

The employee subsequently filed an unfair dismissal claim Sandra Ward v West Australian Newspaper Limited [2010] FWA 1785 (8 March 2010).

Unfair dismissal hearing – the important points

Fair Work Australia was critical of the employer’s workplace investigation.

FWA rejected the employer’s attempted characterisation of what was in reality a serious meeting about alleged misconduct as a merely a ‘conversation’ or ‘discussion’.

FWA observed that:

  • the employee’s ongoing employment was in jeopardy prior to her attending the meeting;
  • the employee was called to the meeting without any notice or knowledge of its purpose;
  • the employee had no idea of the meeting’s seriousness;
  • the meeting, whether deliberate or not, was set in the employer’s boardroom, which one of the manager’s present described as making him uncomfortable;
  • Ms Ward was interviewed by two senior members of management and the HR Officer;
  • the interview was not conducted with clarity, mainly due to the HR Officer leading the interview with less than 48 hours knowledge of the account management system; and
  • this lack of clarity and lack of notice led to the employee being confused, hesitant in her answers and the employer (incorrectly) forming the view that the employee lacked openness and she was untruthful.

FWA held that:

  • the employee was not treated fairly nor was there was a valid reason for her dismissal;
  • at the misconduct meeting, the particulars of the allegations and surrounding circumstances were not put to the employee in a fair and straightforward way enabling her to respond appropriately;
  • the meeting was arranged in such a way – in terms of location, timing and lack of knowledge of its purpose – that the employee could not access a support person;
  • the employee was not untruthful in her answers; and
  • the dismissal was unfair.

FWA overturned the dismissal and reinstated the employee to her original position.

Lessons for employers

When conducting a workplace investigation into workplace misconduct, employers need to be able to demonstrate a fair procedure was adopted. In particular:

  • avoid any actions which could be perceived as trickery;
  • be clear with an alleged wrongdoer about the purpose of a meeting – including the nature and seriousness of the allegations being investigated.
  • avoid using vague statements or descriptions which play down the seriousness of the meeting (e.g. ‘having a chat about something’);
  • provide sufficient notice of the meeting to enable the alleged wrongdoer to seek advice and/or arrange a support person; and
  • not have made any predetermination about the outcome of the investigation.

Contract – Guarantee

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Prior to the introduction of the 2008 copyright Contract of Sale of Real Estate it was common for a vendor to include a standard form guarantee in a proposed contract and to require directors of a corporate purchaser to personally guarantee the performance of the contract by signing that guarantee at the time that the contract was executed by the company.

However the copyright 2008 contract introduced a standard general condition (GC) that was designed to overcome the need for a guarantee to be included in the contract. GC 20 provides ‘The vendor may require one or more directors of the purchaser to guarantee the purchaser’s performance of this contract if the purchaser is a proprietary company’. thereby creating a right in favour of the vendor, at any time during the continuance of the contract, to require the director to sign a guarantee.

But what if, when subsequently required to enter into such a guarantee, the director refuses or fails to do so? The vendor’s rights pursuant to the contract are limited to the parties to that contract, essentially the purchaser. If the vendor is to enforce the right created by the contract, the vendor must establish a right against the directors of the company that exists outside of the contract, as the directors are not parties to the contract.

It is submitted that the vendor can successfully establish such a right based on the general principles of unconscionability, both at common law and in their statutory form. There can be no doubt that a corporate purchaser is engaging in trade and commerce when entering into a contract of sale of land and the directors, as the human force behind the company, are equally so engaged. Trade practices law has undergone considerable development in recent years with the states adopting the Australian Consumer Law, including a general duty to act in good faith.

It is submitted that a director of a company who causes the company to enter into a contract containing GC 20 will be found to be making a representation to the vendor that the director knows that the vendor is relying on the director signing a guarantee if called upon to do so and a refusal or failure to sign the guarantee will constitute unconscionable conduct and entitle the vendor to remedies directly against the director. This argument is strengthened by the High Court decision in Toll (FGCT) P/L v Alphapharm P/L [2004] HCA 52 to the effect that parties engaged in trade and commerce are taken to have read and understood the meaning and effect of contractual documents, specifically GC 20.

Corporations have no ‘life’ of their own. They are creatures of statute and are only capable of acting on the basis of the decisions made by their officers. Those decisions are to be made, in the case of multi-director companies, by the directors in formal or informal meetings of the directors. A vendor is therefore entitled to assume that a contract that, on the face of the document, is signed on behalf of a corporation has been read by the relevant officers of the corporation and that those officers are thereby aware of the terms of the contract. The directors will thereby be taken to be aware of the vendor’s entitlement to call for directors’ guarantees, and to thereafter refuse or fail to sign the guarantee when called upon to do so is unconscionable.

A disappointed vendor might also consider relying on the High Court case of Houghton v Arms [2006] HCA 59 where employees of an insolvent defendant were held liable for misrepresentations made by the corporation. It might be argued that by signing a contract including GC 20 the corporation is representing to the vendor that the directors will sign a guarantee when called upon to do so in the future and that the directors have accessorial liability for that representation such as to make the directors directly liable to the vendor. If the purchaser company fails to fulfil the contract the vendor may seek damages against the directors, not on the basis of a signed guarantee, but rather on the basis that the failure of the directors to sign the guarantee is a breach of the company’s representation to the vendor that the directors would sign and that the directors are personally responsible for that misrepresentation.

Alternatively, a disappointed vendor might appoint a liquidator to the insolvent company and pursue the directors who refused to sign the guarantee on the basis of the directors’ duties to the company. By authorising the company to enter into the contract the directors exposed the company to the possibility of loss. By not signing the guarantee when called upon to do so, and ultimately honouring the guarantee, the directors, in breach of their duty to the company, are responsible for the company’s loss, being the debt to the vendor arising out of the contract.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Contract – Australian Consumer Law – Impact on residential conveyancing

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

Australian property law in general, and conveyancing in particular, were dominated for two centuries by the common law principle of caveat emptor (let the buyer beware) which gave very little protection to a purchaser against misrepresentations by the vendor. The age of the consumer, which began with protection against encyclopedia salesmen jamming their foot in the door in the 1960s and became serious with the Commonwealth Trade Practices Act of 1974 (TPA), has been chipping away at caveat emptor for nearly 50 years and, somewhat reluctantly, the states jumped on the consumer protection bandwagon with their respective fair trading Acts.

The Australian Consumer Law (ACL) is, to some extent, the culmination of that process and seeks to provide an Australia –wide template and has been adopted by all jurisdictions to govern most of the issues that arise in a consumer protection environment. Whilst there is a nominal jurisdictional limitation of $40,000, the Australian Consumer Law applies if the transaction relates to personal, domestic or household use and there are specific provisions in the Australian Consumer Law concerned with real estate contracts.

Understanding the application of the Australian Consumer Law is not made any easier by the method used to adopt the former Trade Practices Act principles as universal legislation. The Australian Consumer Law is a Schedule of the Competition and Consumer Act 2010, an Act primarily designed to establish the Australian Competition and Consumer Commission and it is not until s 130 of that Act (Part XI) that reference is made to the Australian Consumer Law as being Schedule 2 of the Act. The Australian Consumer Law was adopted by Victoria as the Australian Consumer Law (Vic) by s 9 Fair Trading Act.

Whilst the Commonwealth’s jurisdiction was limited to corporations acting in trade or commerce, the Australian Consumer Law (Vic) applies to corporations and individuals ‘carrying on business within Victoria’ or ‘persons ordinarily resident’ in Victoria (s 13 Fair Trading Act).

Off the plan contracts

Such contracts have traditionally been subject to the Trade Practices Act as they invariably involve corporations engaged in ‘trade or commerce’ and the Fair Trading Act as, irrespective of the corporate character, the vendor is ‘carrying on a business’. The ACL has prohibitions relating to ‘misleading and deceptive conduct’ (Part 2-1 s 18), ‘unconscionable conduct’ (Part 2-2 s 20) and ‘false and misleading representations’ in relation to the sale of land (Part 3-1 s 30) and each of these apply if the vendor is engaged in trade or commerce, as would be the case in an off the plan contract.

The adoption of the Australian Consumer Law was not meant to be a law reform process, more in the nature of consolidation, but the opportunity was taken to expand the application of the concept of ‘unconscionable conduct’ in two respects (second reading speech). No longer is it necessary to prove a ‘special disadvantage’ and statutory unconscionability, whilst based on the ‘unwritten law’, is not limited to the existing state of the law and may be expanded by the courts.

Shortly prior to the adoption of the Australian Consumer Law, prohibitions were introduced against unfair contract terms and these were adopted by the Australian Consumer Law (Part 2-3 s 23). Whilst it is intended that these provisions will regulate the relationship between business and consumers and therefore undoubtedly apply to off the plan contracts, the section, unlike the other prohibitions, makes no mention of ‘trade or commerce’ as a precondition.

Domestic contracts

The requirement for ‘trade or commerce’ meant that the sale of a domestic residence did not create any Trade Practices Act obligations on a domestic vendor. However the unfair contract terms prohibitions in the Australian Consumer Law appear to operate whether the transaction is in trade or commerce or not, and so it may be that those prohibitions apply to contracts of sale of domestic properties.

As such sales invariably utilise a standard form contract, usually based on the 2008 prescribed contract, the general conditions of which may be saved from scrutiny by s 26(1)(c) as provisions permitted by law (the regulations), any special conditions may be subject to attack.

Conclusion

Special conditions may offend the unfair contract terms prohibitions such as giving the vendor the right not to proceed with a contract, to change the layout of the property sold or to accelerate the purchaser’s liability to pay land tax all of which may appear in various contracts, including off the plan contracts.

Additionally special conditions that specify high rates of penalty interest or potential loss in the case of default that are common in domestic contracts may offend the unfair contract terms prohibitions.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Caveats – Insufficient proceeds from settlement

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

The Torrens system (s 89 Transfer of Land Act 1958) allows third parties interested in land to record that interest on the title to the land by lodging a caveat. Unlike normal dealings that are registered on title, a caveat is ‘recorded’ on title. Consequently, the recording of a caveat in no way improves the status of the interest which is recorded, unlike the registration of a dealing which grants the registered interest indefeasibility.

A caveat entitles the caveator to be notified of any proposed dealing with the title and provides the caveator with the ability to establish the priority of the caveator’s interest over any competing interest by issuing proceedings within 30 days of receiving notice. But the real impact of a caveat in the world of conveyancing is the negative effect that the recording of the caveat on a title has on any transaction involving that title. Any prospective purchaser of the land, and particularly any prospective financier of a purchaser, will not proceed with the transaction if a caveat remains recorded over the title.

Thus a vendor who wants a proposed sale to proceed will be obliged by the purchaser to ‘free’ the land of the burden of the caveat by production of a withdrawal of caveat at settlement. In the normal course of events this is within the ability of a vendor, who arranges for a payment to the caveator from the settlement proceeds and a withdrawal is produced by the caveator in return. But what is the situation when the settlement proceeds are not sufficient to satisfy the caveator’s claim?

This situation often arises where the vendor is suffering mortgage stress and negotiates a sale in anticipation of receiving sufficient funds at settlement to discharge the mortgage and any other claims over the land, but finds that the effluxion of time between contract and settlement and increasing interest, costs, fees and charges result in a shortfall.

The registered mortgagee demands repayment in full, or at least the whole proceeds of sale if there is a shortfall, and there are no excess funds available to satisfy a caveator. Is the caveator obliged to nevertheless provide a withdrawal of caveat so that the settlement can proceed?

A caveator who refuses to withdraw in such a situation is entitled to argue that the caveator is merely insisting on its legal rights and should not be obliged to surrender those rights for no compensation. On the other hand, it could be argued that such a caveator is adopting a ‘dog in a manger’ attitude – if I am not going to get paid then no-one is. A party interested in having the matter proceed to settlement could issue proceedings pursuant to s 90(3) Transfer of Land Act 1958 for a declaration that a withdrawal be provided on the basis that there are no excess funds available for the caveator and the ‘balance of convenience’ favours the settlement proceeding.

There is some authority for this proposition in the New Zealand case of Pacific Homes Ltd (In Receivership) v Consolidated Joinery Ltd [1996] 2 NZLR 652 where a caveat was ordered to be removed because ‘there is no practical advantage in maintaining it’. However that was in the context of a mortgagee sale and s 91(2A) Transfer of Land Act 1958 now applies in a mortgagee sale environment to defeat caveats claiming money that were lodged subsequent to the mortgage. The analogy may however still apply in respect of caveats claiming something other than money, for example, a terms contract.

There may also be some support for the proposition that the caveator should withdraw provided by the case of Capital Finance Australia Limited v O’Bryan Group P/L [2003] VSC 355. That case concerned a warrant of sale and seizure that had been lodged by a creditor and was holding up settlement of a sale that was being supervised by the mortgagee. It was clear that the proceeds of the sale would not repay registered mortgages, let alone satisfy the claim of the judgment creditor who had lodged the writ. The mortgagee successfully sought the removal of the warrant to allow the sale to proceed on the basis that there was no realistic prospect of the warrant achieving anything for the creditor and that other parties were suffering detriment from the delay.

Legal proceedings involve expenditure of substantial amounts of money in an environment that is, by definition, money-poor. An alternative is to negotiate a compromise whereby the pain is shared. The party likely to receive the biggest benefit, usually the mortgagee, might recognise that the delay and cost associated with reverting to a mortgagee sale justifies agreeing to a part payment to the caveator and the caveator might recognise that a compromise is advisable as forcing a mortgagee sale will result in automatic removal of the caveat.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

Caveats – Forcible removal 1

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By Russell Cocks, Solicitor

First published in the Law Institute Journal

The Torrens system (s 89 Transfer of Land Act 1958) allows third parties interested in land to record that interest on the title to the land by lodging a caveat. Unlike normal dealings that are registered on title, a caveat is ‘recorded’ on title. Consequently, the recording of a caveat in no way improves the status of the interest which is recorded, unlike the registration of a dealing which grants the registered interest indefeasibility.

A caveat entitles the caveator to be notified of any proposed dealing with the title and provides the caveator with the ability to establish the priority of the caveator’s interest over any competing interest by issuing proceedings within 30 days of receiving notice. But the real impact of a caveat in the world of conveyancing is the negative effect that the recording of the caveat on a title has on any transaction involving that title. Any prospective purchaser of the land, and particularly any prospective financier of a purchaser, will not proceed with the transaction if a caveat remains recorded over the title.

Thus a vendor who wants a proposed sale to proceed will be obliged by the purchaser to ‘free’ the land of the burden of the caveat by production of a withdrawal of caveat at settlement. In the normal course of events this is within the ability of a vendor, who arranges for a payment to the caveator from the settlement proceeds and a withdrawal is produced by the caveator in return. But what is the situation when the settlement proceeds are not sufficient to satisfy the caveator’s claim?

This situation often arises where the vendor is suffering mortgage stress and negotiates a sale in anticipation of receiving sufficient funds at settlement to discharge the mortgage and any other claims over the land, but finds that the effluxion of time between contract and settlement and increasing interest, costs, fees and charges result in a shortfall. The registered mortgagee demands repayment in full, or at least the whole proceeds of sale if there is a shortfall, and there are no excess funds available to satisfy a caveator.

Is the caveator obliged to nevertheless provide a withdrawal of caveat so that the settlement can proceed?

A caveator who refuses to withdraw in such a situation is entitled to argue that the caveator is merely insisting on its legal rights and should not be obliged to surrender those rights for no compensation. On the other hand, it could be argued that such a caveator is adopting a ‘dog in a manger’ attitude – if I am not going to get paid then no-one is. A party interested in having the matter proceed to settlement could issue proceedings pursuant to s 90(3) Transfer of Land Act 1958 for a declaration that a withdrawal be provided on the basis that there are no excess funds available for the caveator and the ‘balance of convenience’ favours the settlement proceeding.

There is some authority for this proposition in the New Zealand case of Pacific Homes Ltd (In Receivership) v Consolidated Joinery Ltd [1996] 2 NZLR 652 where a caveat was ordered to be removed because ‘there is no practical advantage in maintaining it’. However that was in the context of a mortgagee sale and s 91(2A) Transfer of Land Act 1958 now applies in a mortgagee sale environment to defeat caveats claiming money that were lodged subsequent to the mortgage. The analogy may however still apply in respect of caveats claiming something other than money – for example, a terms contract.

There may also be some support for the proposition that the caveator should withdraw provided by the case of Capital Finance Australia Limited v O ’Bryan Group P/L [2003] VSC 355 . That case concerned a warrant of sale and seizure that had been lodged by a creditor and was holding up settlement of a sale that was being supervised by the mortgagee. It was clear that the proceeds of the sale would not repay registered mortgages, let alone satisfy the claim of the judgment creditor who had lodged the writ. The mortgagee successfully sought the removal of the warrant to allow the sale to proceed on the basis that there was no realistic prospect of the warrant achieving anything for the creditor and that other parties were suffering detriment from the delay.

Legal proceedings involve expenditure of substantial amounts of money in an environment that is, by definition, money-poor. An alternative is to negotiate a compromise whereby the pain is shared. The party likely to receive the biggest benefit, usually the mortgagee, might recognise that the delay and cost associated with reverting to a mortgagee sale justifies agreeing to a part payment to the caveator and the caveator might recognise that a compromise is advisable as forcing a mortgagee’s sale will result in automatic removal of the caveat.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

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