ByLawyers News and Updates

Interest on unpaid legal costs – TAS

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Under new regulations, the maximum rate of interest on unpaid legal costs that can be charged by Tasmanian lawyers has increased significantly. The Legal Profession Regulations 2018 came into force on 28 November 2018 and replaced the Legal Profession Regulations 2008.

Rule 66 now provides that the applicable rate for interest on unpaid legal costs is that prescribed by the Rules of Court for the purposes of section 165 of the Supreme Court Civil Procedure Act 1932. The current rate is 7.5%. The previous rate was 3.5% and was tied to the Reserve Bank of Australia Cash Rate Target.

All By Lawyers Tasmanian costs agreements have been updated accordingly.

New owners corporations regulations – VIC

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On 2 December 2018 the Owners Corporations Regulations 2007 were replaced with the Owners Corporations Regulations 2018, providing new owners corporations regulations which include amendments to the model rules for an owners corporation in Schedule 2 of the regulations.

A notable amendment to the model rules concerns changes to the external appearance of a lot and notification requirements for renovations to a lot.

Rule 5.2 requires lot owners to obtain the written approval of the owners corporation before changing the external appearance of their lot. An owners corporation cannot unreasonably withhold approval, but may give approval subject to reasonable conditions to protect the quiet enjoyment of other lot owners and the structural integrity or the value of other lots and/or common property.

Rule 5.3 provides that an owner or occupier of a lot must notify the owners corporation when undertaking any renovations or other works that may affect the common property and/or other lot owners’ or occupiers’ enjoyment of the common property.

The commentary and relevant precedents in the By Lawyers Conveyancing (VIC) guide – and the applicable sections of our very popular Reference Manual 1001 Conveyancing Answers (VIC) – have all been updated accordingly in consultation with our Victorian conveyancing author Russell Cocks.

 

Mandatory electronic lodgement from 1 December – WA

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Are you ready for mandatory electronic lodgement?

From 1 December 2018, all new eligible stand-alone transfers, caveats and withdrawal of caveats, and any lodgement case consisting of eligible discharges, transfers, mortgages, caveats and withdrawal of caveats must be lodged electronically.

Electronic lodgement is mandatory from this date and paper lodgement will not be accepted for the above scenarios, unless an instrument cannot be lodged using an Electronic Lodgement Network and a completed Request to accept paper lodgement form is attached. The form must be completed by the party requesting paper lodgement, and that party must also ensure that they hold evidence that supports their request. The form does not need to be used in a lodgement case that includes an additional document not listed above e.g. transmission, survivorship application.

The By Lawyers Conveyancing (WA) Publication has been updated accordingly to assist WA solicitors and conveyancers with the transition to electronic conveyancing.

For further details, see the ‘E-Conveyancing’ section of the By Lawyers conveyancing commentaries and our related article ‘A brief explanation of the transition to E-conveyancing’, which includes information on how to get connected, both accessible from the Matter Plan in our Conveyancing Guides.

 

Conveyancing – signing electronic mortgage documents – NSW

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Procedure for signing electronic mortgage documents for mortgages over real property has been clarified in NSW with amendments to the Real Property Act 1900 made by the Conveyancing Legislation Amendment Act 2018 which commenced on 22 November 2018.

The amendments provide:

  • That where a mortgage is lodged for registration, any other document supporting that instrument, such as a caveator’s consent, may also be signed electronically: s 36 (1F) Real Property Act 1900; and
  • That a mortgage is acceptable for registration in NSW where it is signed by the mortgagee alone (that is, not also signed by the borrower and witnessed), provided that the mortgagee certifies that it holds a mortgage granted by the borrower on the same terms as that which is lodged for registration: s 56 (1A) Real Property Act,

The amendments reflect practice which has developed following the introduction of the National Mortgage Form.

The Commentary in the By Lawyers Mortgages (NSW) Guide has been updated accordingly.

Conveyancing – amendments in support of eConveyancing – NSW

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Amendments to the Conveyancing Act 1919 and the Real Property Act 1900 by the Conveyancing Legislation Amendment Act 2018, in support of eConveyancing, commenced on 22 November 2018. These amendments address the following key issues concerning electronic conveyancing:

  • Clarifications regarding the application of the Conveyancing Act 1919 and the Real Property Act 1900 to electronic form contracts and electronic signatures – s 6C, 23C (2) and 54A (4);
  • If a sale of land contract is in electronic form then those documents which must be attached to satisfy vendor disclosure obligations may also be in electronic form.
  • Where a registry instrument (dealing, memorandum, caveat or priority notice) is lodged for registration, any other document supporting that instrument may be signed electronically: s 36 (1F) Real Property Act 1900;
  • A client authorisation produced in electronic form may also be electronically signed: s 107 (1A) Real Property Act 1900; and
  • Deeds are now able to be electronically signed and attested – Section 38A of the Conveyancing Act 1919 states that a deed may be created in electronic form and electronically signed and attested in accordance with Part 3. Notably, this includes leases.

The Sale and Purchase Commentaries as well as 1001 Conveyancing Answers within the By Lawyers Conveyancing Guide (NSW), which already cover eConveyancing in detail, have been updated to reflect these changes in support of eConveyancing.

The Commentary within the By Lawyers Leases (NSW) Guide has also been updated.

Electronic filing in the Magistrates Court – QLD

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The By Lawyers Magistrates Court QLD commentaries have been updated to reflect the recent changes which introduce electronic filing in the Magistrates Court, as a result of amendments to the Uniform Civil Procedure Rules 1999 by the Uniform Civil Procedure and Other Legislation Amendment and Repeal Regulation (No. 1) 2018 and the subsequent repeal of 49 Practice Directions by Practice Direction No. 4 of 2018.

New Division 4, Part 1, Chapter 22 of the Uniform Civil Procedure Rules 1999 now sets out the rules for electronic filing. For court users to access eLodgement, it is necessary to contact CITEC Confirm to obtain a login.

The following documents are approved by the Principal Register for electronic filing in the Magistrates Court where the proceedings were commenced by a claim that was electronically filed:

  • Claim (Form 2)
  • Application (Form 9)
  • Statement of Claim (Form 16)
  • Request for default judgement (Form 25)
  • Default judgement (Form 26)
  • Affidavit (Form 46)
  • Enforcement Hearing Summons (Form 70)

By Lawyers Guides provide practitioners and support staff with up to date information to help make the practice of law easier.

Magistrates Court (Civil) Guide- review – South Australia

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The By Lawyers South Australian Magistrates Court (Civil) Guide has been reviewed and updated to ensure that the precedents and commentaries are in line with current law and practice.

The extensive review was performed by our author Josephine Battiste, barrister at Mitchell Chambers.  As with all our authors, Josephine takes a practical approach, drawing on her considerable experience to cover all aspects of procedure and focus on practical tips that will help lawyers confidently represent their clients and successfully run civil matters in the Magistrates Court.

Highlights from the By Lawyers South Australian Magistrates Court (Civil) Guide include:

  • expanded commentary on settlement options, including Enforceable payment agreements, Pre-filing Alternative Dispute Resolution services in the Magistrates Court and Offers to consent.
  • new commentary on statutory actions;
  • new commentary and precedents in relation to service outside of South Australia;
  • expanded commentary on entry of default judgement, calculating interest on judgement debts and setting aside default judgement entered against a defendant;
  • expanded commentary on preparing and filing a defence;
  • new commentary and precedents on summary stay or dismissal of claim and striking out statement of claim, defence or reply; and
  • a new section on pre-trial processes covering discovery, the initial directions hearing and Alternative Dispute Resolution.

New precedents include a combined Offer and acceptance and an example List of documents for both plaintiff and defendant. All of the existing precedents in the guide have been reviewed to ensure they reflect current law and practice.

We invite you to explore this publication and to consider the wealth of assistance the guide offers for lawyers appearing for clients in civil matters in the Magistrates Court.

 

 

By Lawyers is going global!

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BY LAWYERS IS GOING GLOBAL

By Lawyers is excited to announce that in February 2019 we will be launching our online guides and precedents in the United Kingdom. Our UK team is already on the ground working on content with our UK authors – practising lawyers in the various UK jurisdictions.

In the UK, we will duplicate the successful Australian By Lawyers system to give UK lawyers the same real time access to law, matter plans and precedents that are an integral part of practice for their Australian colleagues.

We also wish to assure our Australian clients that it will be very much business as usual at home for our Australian editorial and publishing teams. We have appointed a new management team for By Lawyers Australia to ensure that our Australian publications continue to expand and improve – and remain always up to date, of course.

We have pleasure introducing Brad Watts as the new Managing Director of By Lawyers Australia.

Many of you know Brad already a contributing author and more recently our senior consultant. Brad will take the reigns of By Lawyers Australia from today, reporting to our Chief Executive Officer, Bobbi Young, Chief Operating Officer Danni Larney and the Global Editor in Chief Guy Dawson. Brad will be ably assisted by our new General Manager Paul Maher, previously Legal Editor, and the rest of our wonderful in-house team – plus the 45 practising lawyers across Australia who are our external authors and who help us keep our content relevant, practical and up to date.

We sincerely thank our Australian subscribers for their support over the last decade and we look forward to continuing to assist them to enjoy practice more.

By Lawyers is very proud to be taking our great Australian product to the world.

Intervention orders – Domestic Violence Disclosure Scheme – South Australia

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Under a trial of a new Domestic Violence Disclosure Scheme which commenced on 2 October 2018, a person who may be at risk of domestic violence is now able to get information about their partner or former partner, to help make decisions about their safety and the future of the relationship.

A request for information can be made by either the person who is feeling unsafe in their relationship or a person concerned about the welfare of someone they know.

Such information might include any convictions the partner or former partner has for relevant offences, any relevant reports made to police and any charges or current and historical intervention orders. This information will be passed on to a specialist domestic and family violence worker, who will contact the applicant to arrange a meeting.

A request for information can be made online or at any local police station. Applicants will be required to undertake not to spread, publish or misuse such information.

It is untested at this stage whether, or to what extent, information disclosed could be used in an affidavit or other evidence seeking an interim or final intervention order. It would appear that possession of such information would constitute a legitimate forensic purpose for the issue a subpoena to Police covering the relevant material, if an applicant seeks to rely upon such information.

When acting for a defendant, it is important to explain that future partners, or third parties on their behalf, may have the ability to access information about current or historical intervention orders under the Domestic Violence Disclosure Scheme.

The By Lawyers Intervention Orders (SA) Guide has been updated to include commentary on the disclosure scheme and developments as to its application in practice will be monitored.

Combustible cladding – Conveyancing – QLD

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New regulations for combustible cladding

From 1 October 2018, amendments by the Building and Other Legislation (Cladding) Amendment Regulation 2018 (QLD) (the Regulation) to the Building Regulation 2006 (QLD) require owners of private buildings to undertake a three-stage process, managed through an online system, to identify whether a building is affected by combustible cladding.

Buildings covered by the Regulation are class 2-9 buildings of Type A or Type B construction for which building approval was given after 1 January 1994 and before 1 October 2018.

The Queensland Building and Construction Commission (QBCC) is the regulator responsible for the online checklist and register.

For further information on the three-stage rollout, see the QBCC website.

Duties of an owner on sale of affected property

A change of building ownership attracts statutory duties for building owners. If one or more of the relevant stages has been completed, an owner must give the new owner:

  • notice, in the approved form, about the extent to which the original owner has complied with Part 4A; and
  • copies of each document given by the original owner to the QBCC under Part 4A.

They must also give the QBCC a copy of the notice given to the new owner. Failure to do so may attract a maximum penalty of up to 20 penalty units.

The By Lawyers Conveyancing (QLD) publication has been updated accordingly.

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