ByLawyers News and Updates

Conveyancing regulation – NSW

by

The new Conveyancing (Sale of Land) Regulation 2022 commenced on 1 September 2022. It replaces the Conveyancing (Sale of Land) Regulation 2017. No new disclosure requirements arise from the 2022 regulations. Generally the 2022 regulations adopt simple and modern language, removing outdated legislative references.

The 2022 regulations maintain the objectives of the 2017 regulations. Small amendments clarify the disclosure requirements for contracts arising from options. Other minor insertions confirm that cooling off periods do not apply to put options. Part 5 of the regulations consolidates the circumstances entitling a purchaser to rescind a contract or option deed.

Off the plan contract disclosure requirements

Schedule 1 contains a new Part 2 listing additional disclosure requirements for off the plan contracts. Regulation 13(1) states that the documents listed in Part 2 of Schedule 1 are prescribed, and must be included in a disclosure statement for an off the plan contract. These prescribed documents relate to the land to be subdivided, and the development of the land. Examples include:

  • a proposed schedule of finishes;
  • draft by-laws for a strata scheme;
  • draft section 88B instrument;
  • draft building management statement;
  • draft strata management statement.

Cooling off periods for options

Regulation 17(3) confirms that cooling off periods do not apply to contracts arising from a put option. Call options have always been exempt from cooling off periods under section 66T of the Conveyancing Act 1919. In BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265, a purchaser resisted the exercise of a put option against them. Section 66T gave no cooling off rights to options able to be taken to purchase certain property. The court found a put option to be an option to compel the purchase of land, and not in the same character as an option exempted under section 66T. Regulation 17(3) now extends the section 66T exemption to both put and call options.

When purchasers may rescind

Part 5 sets out when a purchaser may rescind a contract or option, and the conditions required for a valid rescission in certain circumstances.

Transition period

Under regulation 26, the transition period runs from 1 September 2022 to 1 March 2023. Anything done in compliance with the 2017 regulations before 28 February 2023 will be taken to comply with the 2022 regulations.

The By Lawyers Purchase of Real Property, Sale of Real Property, and 1001 Conveyancing Answers (NSW) guides have been updated to reflect the new regulations.

Fees Update – Supreme Court Probate Office – VIC

by

New probate filing fees

On 30 September 2018 the Supreme Court (Fees) Regulations 2018 introduces new filing fees for the Supreme Court of Victoria’s probate office.

The By Lawyers Victorian Estates Guide have been updated to reflect these changes.

Common law allows for common sense

by

By Guy Dawson, CEO

For reasons hard to understand, the profession seems to have gone along with the growth of regulation and the slow demise of common law.

It needs to be said loudly and clearly that common law allows for individuality, flexibility, and common sense, whilst regulation equates to conformity and rigidity.

It is time to reaffirm that personal responsibility should determine our behaviour, with resort to the good offices of the bench if we stray outside the reasonable bounds set by the laws of contract, crime and tort. The wrong worked on our freedoms, by regulating our behaviour is now ever present.

Each day I am assaulted by the mindlessly inflexible rules designed for everyone and yet suiting no one.  These well-intentioned rules are developed to comply with suffocating regulation and administered by impersonal apparatchiks in government and big business, all of whom have lost sight of everyday common manners and friendliness, and all are securing their jobs and protecting their backs against some imagined threat.  At the forefront of this unconsciousness are the privacy rules followed closely by the consumer credit rules and verification of identity rules.

It seems that we are no longer to be trusted with the discretionary freedom to choose, contract, and speak, as the imperfection of individual behaviour is no longer preferable to standardised impersonal behaviour produced by controlling regulation.

Connect with us