ByLawyers News and Updates

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

Community titles – WA

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A statutory regime creating community titles has been introduced in WA.

The Community Titles Act 2018 commenced in full on 30 June 2021.

The principal object of the Act is to facilitate the subdivision of land into parcels for separate development or disposition, with an interest in associated land in the nature of common property. The separate parcels can then be further subdivided.

The Act permits a single parcel of freehold land to be subdivided in a way that creates up to 3 tiers of schemes in one community scheme. Each scheme has its own community corporation. A community corporation is similar in function to a strata owners corporation. It is established on registration of the scheme. Each scheme also has its own set of by-laws to govern it and the common property.

The Act enables the creation of community titles (land) schemes and community titles (building) schemes within a community scheme.

Community title usually applies to large estates. These can sometimes include more than one residential lot as well as commercial and retail lots. The management of community title schemes can be complex. They can often span large areas of land with mixed – potentially  conflicting – uses. One issue that should be borne in mind by practitioners acting for purchasers of residential units in a property subject to a community title scheme is that there can be by-laws for both the strata scheme and the community titles scheme which apply to the lot the client is purchasing.

Much like strata titles, community title schemes are managed by committees and meetings. The community scheme committee deals with day-to-day issues and general meetings are held for more substantial issues.

These amendments bring WA property law into line with most other Australian states.

The commentary in the By Lawyers Conveyancing (WA) publication has been updated. It now includes details of how community schemes are created and operated, with specific commentary on:

  • Community development statements;
  • Scheme documents and registration;
  • Functions of a community corporation; and
  • Buyer information requirements.

County Court Civil – VIC

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The By Lawyers County Court Civil (VIC) publication has been updated.

This update reflects recent amendments to the Court’s practice notes in the Common Law Division issued by Her Honour Judge Tsalamandris, the Head of the Common Law Division. The links to the practice notes within the Acting for the plaintiff and the Acting for the defendant commentaries have now been updated.

Practice notes provide practitioners with information and direction on the court’s practice and procedures. They particularly explain how matters are conducted in the court’s specialist lists. As all By Lawyers litigation guides emphasise, it is important that practitioners have a sound understanding of the practice notes relevant to any proceedings they propose to commence for a client, or which are already on foot.

The Common Law Division Practice Note applies to all proceedings in the Common Law Division.

In addition, there are practice notes giving instruction on the conduct of cases in specific lists, such as the following which are the subject of the recent updates:

Procedures vary between courts, divisions and specialist lists. Compliance with practice notes is important for timely and efficient case management and will prevent unnecessary applications, save time and avoid the risk of adverse costs orders. The ‘Case management and direction’ sections of the commentaries in all By Lawyers litigation guides provides a valuable resource.

This update to the County Court Civil guides is part of By Lawyers continuing commitment to keeping our content current and helping  our subscribers enjoy practice more.

Conveyancing To do lists – All states

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The By Lawyers Conveyancing To do lists have been enhanced. As a result of recent feedback from a subscriber, space has been added next to the checkboxes in the Sale of Real Property and Purchase of Real Property guides. This extra space can be used to enter the date that a task has been completed, or any other note relevant to that particular aspect of the matter’s progression.

This small but important enhancement to the utility of these popular precedents will be extended to other guides in due course.

To do lists precedents are available in most By Lawyers guides. They reside within Folder A. Getting the matter underway on the matter plans and are an essential matter and risk management tool.

The Conveyancing To do lists chronologically set out the usual steps to be completed in a sale or purchase matter and allow team members working on the file to tick off each step as the matter progresses. This ensures that nothing important is missed. It also assists with seamless continuity when multiple people are working on a matter. These documents can be of particular assistance to team members who are unfamiliar with a particular area of law, or when assigning a task to more junior staff and assessing their progress or providing training.

To do lists can be printed out and attached to the file for manual completion, or ‘pinned’ to the top of the LEAP matter and competed electronically.

In order to pin a To do list to the top of the correspondence window in a LEAP matter, simply right-click on the precedent after it has been saved into the matter and select ‘Pin to top’. It will then stay at the very top of all correspondence in the matter as a handy reminder and reference tool.

By Lawyers love feedback from subscribers! If you have a suggestion or request, please don’t hesitate to get in contact: askus@bylawyers.com.au.

Immigration work – FED

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Immigration publication substantially enhanced

Practitioners doing immigration work will find the By Lawyers Immigration publication has been substantially reviewed and expanded. The new content includes significant new commentary on reviews, appeals and ministerial intervention.

Lawyers doing immigration work

Practitioners will be aware that barriers to lawyers doing immigration work were lifted from 22 March 2021. Amendments to the Migration Act 1958 (Cth) removed the requirement for lawyers with an unrestricted practising certificate to also be registered as migration agents before doing immigration work for their clients. See the previous By Lawyers Obiter post Lawyers doing immigration work for more information.

The resultant opportunity has seen By Lawyers Immigration publication expanded to assist practitioners acting for clients in immigration matters.

Review, appeals and ministerial intervention

The existing section of the By Lawyers Immigration publication has had new commentary and precedents added. This new content will assist practitioners acting for an applicant who seeks to review a decision concerning an existing visa or a visa application. The publication now covers all possible review options up to and including High Court appeals.

New commentary and precedents

Enhancements include the addition of the following precedents and the expansion of the related commentary to provide highly practical resources on the review and appeals process:

Administrative Appeals Tribunal

  • Letter to client with costs agreement explaining the tribunal process
  • Letter to client re invitation to provide information from tribunal
  • Letter instructing expert witness to prepare report and attend tribunal hearing
  • Statement of Issues, facts and contentions
  • Draft minutes for consent order – Administrative Appeals Tribunal
  • Letter to client – Application for review of tribunal decision successful
  • Letter to client advising of tribunal refusal and attaching decision

Immigration Assessment Authority

  • Letter to client – Application for review of authority decision successful
  • Letter to client advising of authority refusal and attaching decision
  • Example content – Statutory declaration by applicant – Submission accurately and completely presents claim

Judicial review

  • Letter to client with costs agreement explaining the court process
  • Brief to Counsel
  • Example content – Grounds for application for judicial review
  • Example content – Affidavit to accompany application for judicial review
  • Example content – Final orders sought by the applicant
  • Example content – Affidavit for filing or tendering evidence
  • Example content – Affidavit in support of application for extension of time to lodge application for judicial review
  • Letter to client after decision – Application granted
  • Letter to client after decision – Application refused

The enhancement of this publication assists practitioners to do immigration work for clients in all type of Migration Act matters.

Magistrates Court Civil- VIC

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The By Lawyers Magistrates Court Civil – Acting for the Plaintiff litigation commentary has been reviewed by our author.

The resulting consolidation and enhancements include:

  • The commentary on interrogatories has been enhanced including practical insights into the correct form that an interrogatory should take. Examples of defective interrogatories have been added to assist practitioners in drafting interrogatories.
  • The commentary on expert witnesses has been enhanced. The commentary now highlights the crucial point that reliance on an expert report will usually waive privilege over all materials or communications that may have influenced the expert in forming their opinion. This means practitioner communications with an expert witness will likely have to be disclosed to the other party and the court, so drafting communications requires care.

This review of the Magistrates Court Civil – Acting for the Plaintiff litigation commentary is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Invoice recitals – All states

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The precedent invoice recitals from the By Lawyers reference publication 101 Costs Answers have been added to various other matter plans. This makes an enormous amount of valuable, drafted By Lawyers content more readily available to all users.

The useful library of invoice recitals provides assistance to practitioners and support staff when preparing invoices in any matter. These recitals, which detail the work usually completed in a variety of matter types, are now available on each relevant matter plan. The appropriate recital appears directly below the invoice precedent.

Invoice recitals are provided for the following areas of law:

  • Conveyancing
  • Criminal
  • Employment
  • Enduring guardianship NSW
  • Estates
  • Family law
  • Injuries, works compensation, victims support
  • Insolvency
  • Leases
  • Mortgage
  • Power of attorney NSW
  • Retirement villages NSW
  • Sale and purchase of business
  • Security of payments NSW
  • Wills

101 Costs Answers is located in the Reference materials folder on every By Lawyers matter plan. It contains practical, detailed commentary on all aspects of legal costs and disbursements. It also contains fully compliant costs agreement precedents for all common areas of law.

Build-to-rent – NSW

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The New South Wales Government has introduced tax concessions for new build-to-rent housing projects. These potentially valuable concessions will remain applicable until 2040.

The term build-to-rent applies to large-scale residential unit developments constructed with the intent of being kept long-term and rented out to lower-income families at affordable prices. The build-to-rent model has been successful overseas and is now being encouraged in New South Wales.

Eligible developments will receive:

  • a 50 per cent reduction in land value for land tax purposes; and
  • an exemption from foreign investor duty and land tax surcharges – or a refund of any surcharges already paid.

The concessions are expected to encourage and support the supply of large-scale rental housing that is professionally owned and managed. The rationale is that such accommodation provides tenants with security of tenure and quality rental services. For a developer to qualify for the scheme, each tenant must be provided with a range of lease term choices, including the option of entering into a fixed term lease of at least 3 years.

These concessions only apply to housing developments that contain at least 50 self-contained dwellings, where construction commenced after 1 July 2020. The dwellings must be used specifically for the purpose of build-to-rent.

See the Treasurer’s guidelines for further information including full eligibility requirements.

The By Lawyers 1001 Conveyancing Answers (NSW) guide has been updated accordingly. This  comprehensive resource is located in the Reference materials folder at the top of the matter plan in every By Lawyers New South Wales conveyancing publication.

Certificates of title – NSW

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The NSW Government has approved the cancellation of all remaining paper certificates of title as part of the implementation of electronic conveyancing. All remaining paper certificates of title are expected to be cancelled in April 2021. Certificates of title will then no longer be evidence of indefeasible title. The By Lawyers Conveyancing and Property guides will be amended accordingly at that point.

Implications

  • For solicitors and conveyancers any lien held over a certificate of title as a form of security for payment of costs will become ineffective.
  • Equitable mortgagees holding certificates of title as security will need to make alternative security arrangements.

Alternative security for professional costs 

  • A solicitor’s lien over all client documents created or obtained in the matter.
  • Creating a charge for the repayment of costs over the client’s real property which entitles the firm to lodge a caveat on title until all costs are paid.
  • Authority to pay professional fees and disbursements from client funds held in the trust account.
  • Guarantee clause for the performance of the agreement by a guarantor, and creating a charge over the guarantor’s real property.

All By Lawyers Costs Agreements provide for these methods of security.

Alternative protection for lenders 

  • Lien over other documents or assets held by the borrower to secure the repayment of the loan.
  • Ensuring that loan agreements contain a right to register a mortgage.
  • Lodging a caveat.

The By Lawyers Mortgages (NSW) Guide contain a ‘Mortgage Linked Loan Agreement’ that is linked to the mortgage and incorporates the provisions found in the By Lawyers ‘Registered Memorandum AJ843928’. A copy of the memorandum of common provisions is recorded at NSW Land Registry Services and can be used at no additional cost by our users.

The By Lawyers Mortgages (NSW) Guide also covers caveats and contains an ‘Acknowledgement of debt – Caveatable Interest’ that creates an interest in the borrower’s real property entitling the lender to register a caveat on the property to secure repayments.

Cancellation of ALL certificates of title

Keep an eye out for the upcoming cancellation of ALL certificates of title, paper and electronic, in NSW. This will see the removal of the requirement to lodge consents and changes to the requirements relating to verification of identity, right to deal and retention of proper evidence.

There will be another Obiter post from By Lawyers when our guides are updated for these developments.

Coronavirus legal issues – All states

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Dealing with coronavirus legal issues is currently a major challenge for legal practitioners everywhere. A great deal of emergency legislation has been passed already in response to the pandemic, both temporary and permanent. Temporary arrangements are daily being introduced by courts, land registries and other authorities to allow business to be transacted despite the need for social distancing. There are also practical measures that can and must be taken to allow practitioners to continue to provide their services and assist their clients.

By Lawyers have produced a publication which brings together in one place a collection of practical information to help the profession at this time. Dealing with coronavirus legal issues is a valuable resource for lawyers. It is now available by clicking on the link at the top of the matter plan in every By Lawyers Guide.

The content within Dealing with coronavirus legal issues is also published here on our Obiter News and Updates site.

The Dealing with coronavirus legal issues publication will be updated and enhanced as the response to the pandemic develops. As always, By Lawyers will keep practitioners abreast of ongoing changes and provide our trademark practical assistance to guide the profession in these difficult times.

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