ByLawyers News and Updates

Recent property cases – VIC

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Recent property cases have been added to By Lawyers reference manual 1001 Conveyancing Answers (VIC).

The publication has been extensively reviewed and updated by our author Russell Cocks.

Useful recent property cases added to the publication in the course of this review include:

1001 Conveyancing Answers (VIC) is available in all By Lawyers Victorian property law guides – Purchase, Sale, Leases, and Mortgages.

This comprehensive publication assists property practitioners to understand deeper issues in conveyancing and solve problems for clients when they arise.

New By Lawyers platform coming soon!

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New By Lawyers platform

The By Lawyers website and LEAP Companion Product is about to undergo several significant new improvements! We are excited to announce a new major release of our By Lawyers platform.

The new platform will be rolling out in February.

Apart from a bright new look with refreshed branding, the functionality of our content will improve dramatically. Our practical publications will be faster to access and easier to use, including a super-powered new search!

Using By Lawyers, over 4,000 Australian law firms already enjoy practice more with practical Matter Plans, Commentary, Precedents and Reference Materials, which contain active hyperlinks to relevant legislation and cases. By Lawyers publications assist every member of the firm to conduct matters and create value for the client.

Offline for a short while

To enable this upgrade there may be a short period during which you will not be able to access your By Lawyers subscription. We appreciate your patience. The upgrade will be done over a weekend to minimise any operational impacts.

Feedback is welcome

You know we love to hear from our subscribers about our content! Well that applies to our platform too. Once it is up and running, please let us know what you think of the new website and the LEAP Companion Product. As always, By Lawyers will listen and respond to all feedback from our users and strive for constant improvement. Its one of the ways we help you enjoy practice more.

 

COVID measures are here to stay – All states

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Many temporary COVID measures introduced across Australia during the pandemic are here to stay.

New South Wales and Queensland have now proposed legislation permanently retaining some COVID measures, such as remote witnessing. Victoria have already legislated to retain some COVID measures. The Commonwealth has extended temporary measures for companies.

With other states and territories expected to follow suit, the long-term legal legacy of COVID-19 looks like being significant.

New South Wales

The Electronic Transactions Amendment (Remote Witnessing) Bill 2021 will permanently allow certain documents to be witnessed in real time over an audio-visual link.

Further, for an additional 12 months from the date of assent, the list of people who can witness NSW statutory declarations will be extended to the expanded list of witnesses set out in Schedule 2 of the Statutory Declarations Regulations 2018.

Queensland

The Justice and Other Legislation Amendment Bill 2021 will make permanent some of Queensland’s  temporary COVID measures including:

  • Remote witnessing and electronic signing of affidavits, statutory declarations and some oaths; however electronic signatures on statutory declarations can only be used for a land or water dealing where electronic conveyancing is used.
  • Powers of attorney for corporations, partnerships and unincorporated associations, but not sole traders, can be signed electronically, in counterpart, by split execution and without a witness; however, if a general power of attorney is used for a land or water dealing it must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Advance health directives can be certified as to capacity by nurses, in addition to doctors.
  • Deeds can be made in the form of an electronic document, electronically signed, made in counterpart and by split execution, generally without a witness. The Bill also removes the requirement for deeds to be sealed, requiring the deed to contain a clear statement that it is executed as a deed. However, deeds lodged or deposited in relation to land and water dealings must continue to be executed in accordance with the Land Title Act 1994 and Land Act 1994.
  • Private applications for temporary protection orders in domestic and family violence matters may be filed electronically, with a hearing date allocated and the application served before the application is verified. Verification can occur later, when the magistrate hears the application. The Magistrates Court may hear any part of family and domestic violence proceedings by audio visual link.

South Australia

The Oaths (Miscellaneous) Amendment Act 2021 commencing on 1 December 2021 amends the Oaths Act 1936 (SA) to:

  • Provide continuity following the expiration of the COVID-19 Emergency Response Act 2020 and its associated regulations through the Oaths Regulations 2021.
  • Introduce a Code of Practice – Affidavits to be followed by deponents and witnesses in the making of affidavits.
  • Introduce a Code of Practice – Statutory Declarations to be followed by declarants, and witnesses to ensure statutory declarations are taken in accordance with the Oaths Act 1936.
  • Expand the persons before whom a statutory declaration may be made as stated in the new Schedule 1 to the Oaths Act 1936.
  • Include additional offences for those falsely representing themselves as authorised witnesses to a statutory declaration or affidavit.

By Lawyers keeps you up to date

All relevant By Lawyers guides, including the dedicated guide Dealing with COVID-19 legal issues – Some practical information which appears at the top of all By Lawyers matter plans, have been or will be updated to reflect these changes as and when they take effect.

COVID 19 legal issues

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Dealing with COVID 19 legal issues has been a major challenge for legal practitioners. A great deal of emergency legislation has now been passed in response to the pandemic, both temporary and permanent. While we are beginning to see some of the temporary arrangements introduced by courts, land registries and other authorities ease, there are still many measures in place that continue to affect daily practice.

The By Lawyers publication Dealing with COVID-19 legal issues brings together in one place a collection of up-to-date practical information which is a valuable resource for lawyers. It is available by clicking on the link at the top of the matter plan in every By Lawyers Guide.

The Dealing with COVID-19 legal issues publication continues to be updated and enhanced as the response to the pandemic develops. For instance, the Family Law section of the publication has been recently updated to include information on the updated COVID-19 Hearing Protocol from the Federal Circuit and Family Court of Australia (FCFCOA) to reflect easing restrictions in the ACT, NSW, and VIC.

All By Lawyers publications are updated to reflect permanent changes. By Lawyers will keep practitioners informed of ongoing changes and provide our trademark practical assistance to guide the profession in these difficult times.

Title reform – Conveyancing – NSW

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Title reform – involving the cancellation of certificates of title and other changes to the NSW land titles system – commenced on 11 October 2021. Certificates of title are abolished and the Torrens Register is the single source of truth as to a person’s interest or estate in land. All documents to be registered on the Torrens Register must be lodged by a subscriber, who must verify the identity of the client and establish that they have the right to deal with the land.

These significant changes were introduced in part by the Real Property Amendment (Certificates of Title) Act 2021. The Act provides for the cancellation of certificates of title (CTs) and progression towards 100% electronic lodgment of land transactions.

Title reform  – Cancellation of certificates of title

From 11 October 2021:

  • All certificates of title have been cancelled and will no longer be issued.
  • Existing CTs cannot be required to be produced to have a dealing or plan lodged for registration.
  • Practitioners no longer need to obtain a copy of the CT from their client for a property dealing.
  • Banks are no longer issued with ‘control of the right to deal’ (CoRD) and all recordings relating to CoRD holders have been removed from the Register.
  • Banks can no longer be asked to provide CoRD holder consent in a workspace when a mortgagor wants to lodge a dealing for registration, including a subsequent mortgage.
  • Mortgagee consent still needs to be obtained for the registration of certain dealings.
  • Subscribers are no longer requested to enter the CAC (Certificate Authentication Code) details taken from a CT for consent purposes in the workspace. The concept of the CAC is redundant and is no longer required to be kept securely.
  • Where a subscriber has relied on a CT to establish a right to deal in a transaction conducted before 11 October 2021, the CT or a copy of it must be retained, in line with the requirements for retaining supporting evidence in the NSW Participation Rules.
  • Otherwise, firms holding CTs in safe custody after commencement of this title reform have the following options:
    • seek instructions from each client on what to do with their CT;
    • return all CTs to clients;
    • take a ‘do nothing’ approach.

It is not necessary for firms to stamp a CT as cancelled or mark it in any way if returning it to their client.

Information Notice

From 11 October 2021, in all instances of property ownership, an Information Notice will issue. Details on this notice will include the folio identifier, the dealings registered including registration numbers, the subscriber’s reference and the date of registration. As an Information Notice is not a definitive statement of the state of the Register, a title search will be necessary to acquire accurate title information.

All land dealings must be lodged electronically

From 11 October 2021:

  • Lodging land dealings in paper is no longer permitted. All land dealings are to be lodged with NSW Land Registry Services electronically by a subscriber to an Electronic Lodgment Network such as Sympli or PEXA.
  • The Lodgment Rules specify when out-of-scope electronic dealings can depart from the usual manner of preparing an electronic dealing.
  • Paper dealing prepared before 11 October 2021 can still be lodged with NSW Land Registry Services electronically. They are uploaded as a PDF attachment to the electronic dealing known as ‘Dealing with Exception’. Once lodged, NSW Land Registry Services will examine the paper dealing.

All By Lawyers NSW Conveyancing & Property publications have been updated to reflect these changes.

Purchasing off the plan – All states

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To assist practitioners advising clients who are purchasing off the plan, new precedents have been added to the By Lawyers Purchase of Real Property guides in all states.

The two new precedents for practitioners advising potential purchasers are:

  • Initial letter to proposed off the plan purchaser; and
  • Enclosure – Considerations when purchasing off the plan.

The Enclosure is designed to be provided to clients who are considering buying off the plan. It provides plain language information about:

  • What ‘off the plan’ means.
  • The risks of purchasing off the plan.
  • The advantages of purchasing off the plan.

All the pertinent considerations for a client looking at entering into a contract to buy a property off the plan are covered. Importantly, the potential risks are clearly explained, including:

  • Being locked in until the sunset date.
  • Potential for loss if the market deteriorates between the day of sale and the settlement date.
  • Special conditions that operate in the developer’s favour.
  • Possible dissatisfaction with finished product.
  • Changes to the building.
  • Additional legal costs being involved.

Both new precedents can be found in folder A. Getting the matter underway, on each Purchase of Real Property matter plan.

These helpful new precedents were created in response to a request from a By Lawyers subscriber.

Purchasing off the plan – VIC

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To assist practitioners advising clients who are purchasing off the plan, a new precedent has been added to the By Lawyers Purchase of Real Property (Vic) guide.

The Enclosure – Considerations when purchasing off the plan provides a potential purchaser with plain language information about:

  • What ‘off the plan’ means.
  • The risks of purchasing off the plan.
  • The advantages of purchasing off the plan.

The enclosure covers all the pertinent considerations for a purchaser before entering into a contract to purchase an off the plan property. The potential risks are clearly stated, including:

  • Being locked in until the sunset date.
  • Potential for loss if the market deteriorates between the day of sale and the settlement date.
  • Special conditions that operate in the vendor’s favour.
  • Possible dissatisfaction with finished product.
  • Changes to the building.
  • Changes to the owners corporation.
  • Additional legal costs being involved.

A related new precedent ‘Initial letter to proposed off the plan purchaser’ has also been added.

Both new precedents can be found in folder A. Getting the matter underway on the Purchase of Real Property (Vic) matter plan.

This helpful new precedent has been created by our Victorian property author Russell Cocks. It was developed in response to a request from a By Lawyers subscriber.

COVID measures for companies – FED

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COVID measures for companies have been further extended. These temporary measures are currently set to expire on 31 March 2022.

Company execution

The Treasury Laws Amendment (2021 Measures No. 1) Act 2021 (‘the 2021 measures’) commenced on 13 August 2021. They extend and expand on the measures previously introduced in 2020.

A company can execute a document electronically under s 127 of the Corporations Act 2001. Signatories can sign separate counterpart copies.

The method used must:

  • be appropriate in the circumstances,
  • identify the person in the electronic communication, and
  • indicate the person’s intention in respect of the contents of the document.

The measures also allow for alternatives to execution normally requiring a common seal.

Company meetings

The 2021 measures also extend and expand on the previous COVID measures for companies holding meetings. They modify the provisions of the Corporations Act 2001 and the Corporations Regulations 2001, or any equivalent provisions in a company constitution, that require or allow a meeting to be held, or that regulate giving notice of a meeting, or the conduct of a meeting. The provisions include:

  • a meeting can be held using one or more platforms such as Zoom, Skype or Microsoft Teams;
  • all persons participating electronically are taken for all purposes, including quorum requirements, to be ‘present’ at the meeting;
  • a vote taken at the meeting must be taken on a poll, and not on a show of hands, by using technology to give each person entitled to vote the opportunity to participate in the vote in real time or in advance;
  • persons attending the meeting to speak, such as asking questions, can do so using technology;
  • a proxy may be appointed using technology specified in the notice of the meeting; and
  • notice of a meeting may be given by using technologies. For example, a company could send members an email attaching a notice of a meeting and other material, or provide a link to the notice and the other material for viewing or download.

The By Lawyers Dealing with COVID-19 legal issues – Some practical information publication has been updated accordingly. This helpful summary guide to COVID measures in all states is available at the top of all By Lawyers matter plans.

Enforcement – VIC

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The By Lawyers Enforcement (VIC)  guide has been extensively reviewed. It provides practitioners with a wealth of practical information on the options available to recover judgment debts.

Three new precedents have been added to the matter plan and the commentary has been revised and updated.

New precedents

  • Example content – Affidavit in support of application for charging order summons. A judgment or order for the payment of a sum of money may be enforced by obtaining a charging order from the Supreme or County courts. This creates an equitable charge over stocks and shares, or any funds in court in which the judgment debtor has a beneficial interest.
  • Example content – Affidavit in support of application for garnishee summons.
  • Example content – Affidavit in support of application for warrant for seizure or sale or for possession of land.

Commentary enhancements

  • New commentary on stop orders, which prevent funds in court being paid out without notice being given to the person who applied for the order.
  • New commentary on the proper use of bankruptcy procedures, which should not be used for the purpose of putting pressure on a debtor to pay the debt.
  • Enhanced commentary on conduct money, the need for it to be sufficient and outlining some practical considerations.
  • Expanded commentary on post-examination procedures, including examination of the debtor on ‘the material questions’ in the  Supreme or County courts.
  • Further commentary on the instalment order process, including attachment of earnings, and the reluctance of the courts to make orders that will force the debtor into extreme hardship or to live a life of deprivation.
  • Expanded commentary on garnishee orders.
  • Expanded commentary on warrants of seizure and the sale of property – goods and land.
  • Enhanced commentary highlighting the difficulties and reality of enforcing judgment debts and managing client expectations, providing practical guidance on securing the best outcome for the client.

The Enforcement guide review, undertaken by our Victorian litigation author Nawaar Hassan, reflects the commitment of By Lawyers to updating and enhancing our publications.

Family law property dealings – FED

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For the assistance of practitioners conducting family law property dealings, a new folder has been added to the By Lawyers Family Law publication. Commentary and precedents are available to assist family law practitioners at the point of a matter where real property needs to be transferred between the parties.

The new folder is called If required – Real property dealings. The commentary and precedents within the new folder are extracted from the By Lawyers Conveyancing and Property publications. They provide guidance and the necessary forms and precedents to verify the client’s identity to the relevant standard for electronic lodgments of transfers and dealings with real property.

The new folder contains the following precedents and commentary required for the electronic settlements process:

This useful content has been added to the Property Settlement guide and the Financial Agreements guide. The new folder can be found in Finalising the matter on both matter plans. The location of this new content reflects the fact that family law property dealings are typically effected upon finalisation of the matter.

Family law practitioners are reminded that the commentary in both the Family Law Property settlement and Financial agreements guides cover the considerations and procedure for transfers of real property in family law matters. The By Lawyers 101 Family Law Answers reference guide also provides helpful information which includes valuing real property in the family law context, stamp duty implications of real property transfers in family law, together with coverage of capital gains tax and foreign resident withholding payments.

This enhancement arises from feedback from a By Lawyers subscriber. We value such feedback and always love to hear our users. Don’t hesitate to get in contact: askus@bylawyers.com.au

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