ByLawyers News and Updates

Family provision claims VIC

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New precedents have been added to the By Lawyers Family Provision Claims VIC publication.

Following an author review of the guides, there is new content on the matter plans for both Acting for the Estate and Acting for the Plaintiff.

The new content to assist practitioners acting for clients in relation to claims on a deceased estate under Part IV of the Administration and Probate Act 1958 includes:

Acting for the Estate – new family provision precedents

  • Letter to beneficiary affected by settlement of claim
  • Letter to client after first directions hearing
  • Letter to client enclosing affidavits for signing
  • Letter to client enclosing draft affidavits
  • Letter to witness enclosing affidavit for signing

Acting for the Plaintiff – new family provision precedents

  • Letter to potential claimant
  • Authority to settle and receive
  • Direction to pay and authority to receive
  • Letter to client enclosing settlement deed
  • Letter to client after filing claim
  • Letter to client enclosing draft affidavit
  • Letter to client enclosing affidavit for signing
  • Letter to client after first directions hearing
  • Letter to client enclosing estate affidavits
  • Letter to witness enclosing affidavit for signing
  • Letter to client finalising the matter – Payment
  • Letter to client finalising the matter – No payment

This review of the Family Provision Claims VIC publication and the addition of these new family provision precedents is part of By Lawyers continuing commitment to enhancing our content and helping our subscribers enjoy practice more.

Online applications for intervention orders – VIC

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Online applications for intervention orders are now available for family violence related matters, via the Magistrates’ Court website.

Amendments to the Family Violence Protection Act 2008 which commenced on 31 July 2019 allow an applicant to apply online, instead of attending in person at a police station or magistrates  court. Online applications for intervention orders take about 15 minutes to complete. They can be saved, amended and lodged at any time within 4 weeks of being started.

Police can also make the online application on someone’s behalf.

There is no requirement for the application to be sworn or witnessed. Rather, when completing the online application the applicant must make a declaration of truth as to the contents of the application. Making a deliberately false declaration of truth is an offence carrying serious penalties – up to 600 penalty units and 5 years imprisonment. The applicant must also acknowledge their understanding of that offence and those penalties when completing the application.

When deciding whether to make an interim order based on an online application, the Magistrates’ Court can waive the requirement that the application be supported by oral evidence or an affidavit. Before waiving the requirement the court must consider whether it is practicable to obtain oral evidence or an affidavit before the order is made.

The By Lawyers guide Intervention Orders (VIC) has been updated to cover online applications for intervention orders. This publication is located in the By Lawyers Criminal – Magistrates’ Court guide.

Assistance for potential applicants and background information on the new process is available from the Neighbourhood Justice Centre via the Magistrates’ Court website.

Library of initial letters – Traffic Offences – VIC

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By Lawyers Victorian Traffic Offences guide has been expanded with the addition of 13 new initial letters to the client. These helpful precedents make initial client communication easier for solicitors advising clients in traffic matters.

The new letters contain details of the applicable penalties for some of the most common traffic offences. They enable practitioners to quickly and accurately advise clients on the available sentencing options for their offence immediately after the first conference and in advance of the first court attendance.

These new precedents are conveniently located within a folder called Library of initial letters to client in Folder A. Getting the matter underway.

The new letters cover drink and drug driving offences including all Blood Alcohol Content offences, driving while impaired and failing a roadside test. There are separate letters for both permit and full licence holders.

Because each letter has been drafted to correspond to a particular drink or drug driving offence and provides all details of the applicable penalty, they help practitioners prepare the client for court faster by eliminating the need to research the specific penalties which apply for a driving offence every time. The letters set out any applicable term of imprisonment, the number of penalty units for any fine, the licence suspension or disqualification period, the Interlock order requirements, the Behaviour Change Program requirements and other licence conditions.

To see the library of new initial letters just Click on the Guides and Precedents button from criminal or traffic matter  in LEAP, or select the Victorian Traffic Offences Guide on the By Lawyers website.

Magistrates Court – Subpoenas – VIC

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New forms for Magistrates Court Subpoenas

The By Lawyers Victorian Magistrates’ Court – Civil guide has been updated to reflect recent changes to the Magistrates Court rules affecting subpoenas in civil matters.

The Magistrates’ Court General Civil Procedure (Miscellaneous Amendments) Rules 2018, which amend the Magistrates’ Court General Civil Procedure Rules 2010, came into effect on 15 October 2018.

These amendments make important changes to subpoena forms and processes in the Magistrates Court’s civil jurisdiction. The intention of the amendments is to harmonise Victoria with other Australian jurisdictions with regard to subpoenas.

Importantly, the existing form for Magistrates Court subpoenas, form 42A Subpoena to attend to give evidence, has been updated.

There are also two new forms for Magistrates Court subpoenas, forms – 42B, Subpoena to produce and 42C, Subpoena both to attend to give evidence and to produce.

For more information on Subpoenas generally, see the By Lawyers Reference Manual 101 Subpoena Answers located in the Reference Materials folder at the top of the matter plans in all By Lawyers litigation and criminal guides.

Podcast – Personal Injury Guide – Victoria

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If you are wondering what all the fuss is about with By Lawyers new Personal Injury Guide for Victoria, listen to this podcast from our Senior Consultant and Editor Brad Watts explaining the content and advantages of this newest addition to the By Lawyers litigation guides.

Brad takes you through the new guide from start to finish and discusses key pieces of commentary and the helpful precedents that make it easy to represent a client with a personal injury claim. The content discussed includes:

  • Limitation periods and taking proper instructions
  • Costs agreements
  • Assessing the viability of a personal injury case – elements of negligence under the Wrongs Act
  • Supporting and preparing the claim – gathering evidence from the client and witnesses
  • Settling the claim early through mediation and offers of compromise
  • Managing the case in court

You can access this episode on Soundcloud – or click below to listen!

Conveyancing Victoria – Seven reasons to use the By Lawyers Contract of Sale of Land

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The By Lawyers Contract of Sale of Land for Victoria is gaining more fans among Victorian lawyers and conveyancers all the time, as it simplifies the conveyancing process.

For those still wondering what all the fuss is about, you can read below Seven reasons to use the By Lawyers contract – or you can listen to this lively and informative podcast:

 

Seven reason to use the By Lawyers Contract of Sale of Land:

  1. The contract and the vendor’s statement are combined into ONE document, with the vendor’s statement, logically, coming FIRST. The vendor’s statement is formatted to deal with the obligatory disclosures first, then to group the optional fields in a way that makes removal of those fields simple if they are not required. Part 2 general conditions in PDF form removes the need for ‘standard’ special conditions. Any genuinely special conditions can be added.
  2. Clear new approach – all pertinent details are set out in Part 1 to enable anyone to quickly understand the deal by referring to this Part.
  3. Particulars of sale include a “sunset date” for off the plan approvals. No more searching through mountains of special conditions to work out this crucial date.
  4. Non-derogation warranty. The general conditions can be amended by any special conditions BUT not so as to reduce the rights created by the general conditions. No more contracts that say one thing on page 1 and reverse that on page 15! This contract is fair to both parties.
  5. General Condition 12 – deposit release – establishes a clear protocol for early release, by requiring timely objection to title. Title objections actually have very limited relevance to the Torrens system, as title is part of the disclosure in the contract. General Condition 12 allows 28 days to object to title. This offers protection to purchasers, while allowing the vendor to have use of the deposit. Again, this process is fair to both parties.
  6. General Condition 14 – loan condition – extends the time for approval to 21 days and allows for extension, subject to vendor’s ability to end the extension by notice.
  7. General Condition 25 – losses – removes any disputes relating to default losses from the settlement process and allows the parties to resolve these issues after settlement. Unless there is a legitimate objection to title, the matter is settle and disputes relating to quality and inclusions etc, follow after settlement. This removes unnecessary settlement delays.

The By Lawyers Contract of sale of Land is available to LEAP users and By Lawyers subscribers via the Conveyancing & Property – Sale matter plans, or for purchase on the By Lawyers website.

VIC – County Court – Author Review

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The By Lawyers author of Victorian Civil Litigation and Injuries, Nawaar Hassan, Barrister, has reviewed the County Court publication including commentary, matter plans and precedents. Various enhancements have been made, including expansion and clarification of commentary relating to:

  • Directions hearings, administrative mentions and the civil directions group;
  • Offers of compromise and Calderbank offers;
  • Dealing with self-represented litigants;
  • New efiling procedures and requirements;
  • Commencing proceedings and claiming interest;
  • Counterclaims by the defendant and claims for contribution or indemnity;
  • Subpoenas and notices to produce;
  • Retaining an expert.

Precedent letters instructing expert witnesses have also been updated.

VIC – Powers and Advance Care Directives – Medical Treatment Planning and Decisions Act 2016

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The Medical Treatment Planning and Decisions Act 2016 commenced 12 March 2018. It gives statutory recognition to advance care directives and simplifies and contemporises laws relating to medical treatment decision making for people without decision making capacity. The By Lawyers VIC Powers and Advance Care Directives matter plan, precedents and commentary have been updated accordingly.

Off the Plan Sales – Best Endeavours – Part 1

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off the plan

The sale of land ‘off the plan’ is a common occurrence in the property market. Its principal virtue is that it provides certainty to both vendor (as to the sale) and purchaser (as to the eventual purchase) of the subject property. Whilst there may be some delay in relation to the eventual settlement, which cannot occur until the proposed plan of subdivision is registered at the Land Titles Office, both parties can be confident that, upon registration, the contract will proceed to settlement on the agreed terms.

Off the plan sales are common in a variety of circumstances, but the two principal scenarios are:

  1. sales of vacant land; and
  2. sales of homes.

Land sales

These sales generally fall into one of two categories:

  1. small-scale subdivisions, perhaps only creating as few as two lots; or
  2. large-scale subdivisions, including ‘greenfield’ sites, creating multiple lots.

Whilst projects in these two categories can have enormous differences in scale – from 2 lots to 1000 or more lots – the same legislative framework guides the subdivisional process (Subdivision Act 1988 (Vic)) and the same legislative framework regulates the vendor’s obligations, and purchaser’s rights, on sale (Sale of Land Act 1962 (Vic)).

Pursuant to the Subdivision Act, the vendor is required to satisfy the local council, acting in a supervisory capacity, that the proposed plan satisfies all of the subdivisional requirements of council and service authorities; and, when satisfied, council will seal the plan and provide a statement of compliance. These documents are then lodged with the Land Titles Office and, in the normal course of events, the plan is registered and settlement may take place.

The Sale of Land Act prohibits completion of the sale until registration of the plan, imposes pre-contract requirements and creates during-contract rights, which are essentially designed to protect purchasers.

The 2008 contract of sale, widely used for sales generally, adopts these broad guidelines; and it is possible to create a contract for an off the plan sale relying on the particulars of sale and general conditions alone, without the need for any special conditions or annexures. This is particularly so for small-scale developments, although larger-scale subdivisions involving substantial earthworks may require the inclusion of a plan showing ‘works affecting the natural surface level’: s 9AB Sale of Land Act.

Home sales

Again, these sales generally fall into one of two categories:

  1. small-scale subdivisions, creating just a few lots for sale; or
  2. multi-unit subdivisions, including high-rise developments.

The same subdivisional and registration processes apply to these developments, with the added complication that councils generally will not issue a statement of compliance until construction of the development is complete.

Such contracts envisage the construction of improvements on the land during the contract, and a special condition will usually be added to the effect that the contract is not a major domestic building contract and that the vendor will enter into a major domestic building contract with a registered builder. The extent of detail provided to the purchaser in respect of the improvements to be erected is not regulated and may vary from reliance by the purchaser on a glossy brochure provided by the vendor (which is not included in the contract) to a full copy of the major domestic building contract (including specification) that the vendor has or will enter into. It is fair to say that purchasers ‘take on faith’ that the vendor will ultimately deliver to the purchaser at the expiration of the contract the product, in all its glory, that was touted as being sold when the purchaser entered into the contract.

Once the contract has been signed and the project is underway, the purchaser enters purgatory – a state of perpetual waiting. Even if the project is a mere land subdivision, ages can pass before the plan is registered. If a home is being constructed, long periods of inactivity cause concern. The default period between contract and settlement (14 days after notification of registration of the plan) is 18 months, but contracts can adopt another period and contracts spanning 60 months are common.

A recent case has considered the vendor’s obligations in terms of completion of the project within the required period: Joseph Street Pty Ltd & Ors v Tan & Anor [2010] VSC 586. The project was a relatively small development by the vendor of six units. The contract completion, or sunset, period was 15 months, and the vendor had entered into a contract with a registered builder for construction of the units. Regrettably, the builder ‘went broke’ and the project was substantially delayed while the vendor put other construction arrangements in place. The sunset period expired, the vendor rescinded the contract and the purchaser sought specific performance. No doubt, given the rising housing market, the property had appreciated and both parties sought to take advantage of that situation.

To succeed, the purchaser had to establish that the vendor was in breach and thus not entitled to rescind. The purchaser sought to do so on the basis of a breach by the vendor of an express contractual obligation to use ‘best endeavours’ to complete the contract within the sunset period. It was also agreed that such an obligation was an implied term of the contract. The court concluded that the true cause of the delay was the collapse of the builder, an occurrence that was beyond the control of the vendor. The vendor had therefore fulfilled its contractual obligations to use best endeavours and was entitled to rescind, thereby retaining the (more valuable) property.

Off the Plan Sales –  Best Endeavours – Part 2

Mortgage Stress

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Whilst there is considerable consistency between the property laws of Victoria and New South Wales, there are also significant differences.

Some differences in practice are:

  • nomination in New South Wales is virtually unheard of as it creates a second duty, but is common in Victoria as it does not; and
  • deposit release is prohibited in New South Wales but common in Victoria.

Some differences in the law are:

  • acquiring an easement by prescription is banned in New South Wales but still available in Victoria; and
  • there is no equivalent in New South Wales to Victoria’s statutory right to clawback fraudulent transactions s 172 Property Law Act 1958.

Perhaps the best known example of the difference was the view previously held in New South Wales that the existence of an illegal structure on land constituted a defect in title and allowed a purchaser to avoid the contract. This was in contrast with the Victorian view that such a defect was merely a quality defect and that the vendor was protected by the principle of caveat emptor. The New South Wales view was ‘corrected’ (that is; brought in line with Victoria) by the Court of Appeal in Carpenter v McGrath 40 NSWLR 39 and consistency has reigned since.

In recent years a significant difference has again occurred with New South Wales taking a ‘radical’ view of the impact of fraud in certain mortgage transactions. In both jurisdictions it is accepted that whilst fraud is an exception to indefeasibility, nevertheless registration of a fraudulent instrument by a party who was not party to the fraud will be indefeasible. Mortgagees have therefore been able to rely on mortgages that have been fraudulently signed provided that the mortgage was registered and the mortgagee was not itself a party to the fraud. However in New South Wales an argument was accepted that it was possible to look ‘behind’ the mortgage at the document that constituted the agreement to repay as it was that document that created the obligation that justified the mortgagee’s security interest and the extent of the mortgagor’s covenant to repay was to be determined by a consideration of the contractual agreement between the parties.

If that contract (loan agreement) created an obligation to repay a specific amount then the covenant to pay protected by the indefeasible mortgage was enforceable. However if the loan agreement referred to an ‘all monies’ mortgage relating to past and future advances then it was said that the mortgagor’s covenant to pay arose contractually from the ancillary documents that related to the actual advances and that if those documents were fraudulent then the covenant to repay arose outside of the protection of the indefeasible mortgage. Essentially, it was said, no money was advanced pursuant to an ‘all monies’ mortgage as the money was advanced pursuant to forged documents.

Victorian mortgagees quaked in trepidation as an army of decisions mounted on the north bank of the Murray River set to wreck havoc on Victorian all money mortgages but Pagone J. in Solak v Bank of Western Australia [2009] VSC 82 manned the ramparts and beat off the hordes by upholding an all monies mortgage and the lenders breathed a sigh of relief. However a Trojan Horse has appeared in the form of Perpetual Trustees Victoria Limited v Xiao [2015] VSC 21. Hargrave J. has adopted the New South Wales analysis of an all monies mortgage and has described the decision in Solak as ‘plainly wrong’.

The scene is now set for a definitive decision by the Victorian Court of Appeal on what is an important point of law. According to Xiao a mortgagee of a forged all monies mortgage is not able to enforce the mortgage or undertake a mortgagee’s sale. Whether confirmation of Xiao will have retrospective repercussions is a matter for the future.

The mortgagor’s victory in Xiao was somewhat pyrrhic as Hargrave J. went on to find that Xiao in fact held the property on trust for the forger (her husband) and that the lender was entitled to judgment against the husband, who had also been joined as a defendant. Hargrave J. was obliged to overcome the presumption of advancement applying to a transfer from husband to wife but did so by finding adequate evidence that it had been the intention of the husband at the time of transfer to retain the beneficial interest in the land.

The mortgagee would therefore be faced with the need to enforce this judgment by way of a Warrant of Execution rather than a mortgagee’s sale. The mortgagee’s possession of the certificate of title would aid that exercise.

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