ByLawyers News and Updates

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.

National Mortgage Form – All states

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New content added

New content on the National Mortgage Form has been added to the Mortgages Guides in each state.

The National Mortgage Form is an Australia-wide initiative. It standardises the content and presentation of mortgages lodged for registration via all lodgement channels with land registries in the various participating Australian states and territories.

Mortgagees and property practitioners across all participating jurisdictions must adopt the National Mortgage Form. The previous previous mortgage forms used in each Land Registry will no longer be accepted.

The National Mortgage Form allows for incorporation of any registered common provisions, or other registered dealings.

For further information, user guide and link to the current webform version of the National Mortgage Form, see the ARNECC website.

Compatibility with PEXA and Sympli

The Mortgage is created and registered within PEXA. For further information, see the PEXA Community user guides ‘How to create and register a mortgage in PEXA’ and ‘How to create and register a second mortgage in PEXA’. These are available on all By Lawyers Mortgages matter plans.

It is expected that the new Electronic Lodgement network Operator, Sympli, will have corresponding capability when it commences later this year. Details on Sympli will be added to by Lawyers guides as soon as Sympli becomes operational.

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.

Mortgages QLD

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Mortgages

OCTOBER 
  • Costs Agreements
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.

April 

  • File Cover Sheets for all publications have been completely re-formatted for a better look.

  • Mortgages Commentary added on verification of identity requirements.

February 

  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

Mortgages VIC

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Mortgages

OCTOBER
  • Costs Agreements
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
    • Included reference to time limit for bringing costs assessment included total estimate of legal costs section with provision for variables and included authority to receive money into trust.
JULY
  • The commentary was amended to note that from 1 August 2016, authorised deposit-taking institutions (ADIs) must register stand-alone mortgages and discharges via PEXA.
APRIL
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
FEBRUARY
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.

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