What are Deposit Bonds?

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Deposit Bonds are becoming a common part of the conveyancing process. So it is important for vendors and purchasers alike to understand what Deposit Bonds are.

A Deposit Bond is a substitute for all or part of the usual cash deposit. The deposit is typically paid on exchange of Contracts in the conveyancing process. It almost like a form of insurance where the institution providing the deposit bond is saying the purchaser is good for the money.

The term of the deposit bond can be from 6 months to 48 months. Longer term deposit bonds are usual when purchasing off-the-plan property.

Where can you get a Deposit Bond from?

Deposit Bonds can be obtained through specific companies that only deal in deposit bonds, or through your banking institution.

In order to obtain a deposit bond you will need some documents to support your application. Documents such as the following a typically required:

  • Copy of your loan approval;

  • Evidence of funds to complete the purchase;

  • Signed and dated Contract for Sale (if selling existing property)

What is the cost of a Deposit Bond?

The cost varies between institutions and will vary depending on the value of the deposit bond and how long you need it in place for.

What is the benefit of a deposit bond versus cash deposit?

Greater flexibility at auction. You select your maximum bid amount and the deposit is then valid for up to 10% of that amount. You can then retain the same deposit bond for up to 6 months until you are successful at auction.

First home buyers. With high property prices first home buyers may not have access to 10% cash deposit but can get loan approval for excess of 5%. A deposit bond (possibly with the need for guarantor) is therefore an option to avoid committing to a cash deposit.

Buying off the plan. When buying off the plan, typically the vendor invests the deposit in a low interest earning account which you may only get half of the interest earnt on settlement. However, with a deposit bond you can leave your money where it is and still secure the perfect property.

For more information, please contact:

Kylie Fuentes
Licensed Conveyancer & JP
kylie@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Key considerations for employment contracts

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Here at Coutts we understand how important it is as a business owner to maintain positive and healthy relationships with employees. We also understand how crucial it is for an employer to protect their interests and limit their exposure to various claims by their employees.

With the combination of the Fair Work Act 2009 (Cth), the National Employment Standards and Modern Awards, entering into well written employment contracts is essential.

In fact, even if you don’t enter into a written agreement with your employees you are still entering into an oral agreement and therefore owe certain duties and obligations to your employees.

Under the National Employment Standards, whether there is a written employment agreement in place or not, a set of minimum entitlements automatically applies to employees. For example, maximum weekly hours, annual leave, public holidays and notice of termination, and these entitlements are on top of the employee entitlements already provided for under the relevant Modern Awards.

Although you do not legally need to provide an employee with a written agreement, employers often struggle if a dispute arises with an employee in the future, as there is no record of the agreed terms of the employment relationship.

So, the question arises, why not enter into a formal written agreement that clearly outlines everybody’s expectations and obligations?

Some key items to consider when it comes to employment contracts are:

1.       Does the agreement comply with current legislation?

Employment agreements will need to comply with the Fair Work Act 2009 (Cth). It is likely that any employment agreement entered into prior to 1 January 2010 will need to be reviewed to provide for the provisions in this act.

2.       Have you reviewed the relevant award?

Employment agreements must comply with the applicable modern award. Awards will often dictate:

·       minimum wages;

·       overtime and penalty rates;

·       types of employment such as casual or permanent;

·       employee classifications;

·       expenses such as travel and meal allowances;

·       breaks, hours of work and rostering;

·       leave entitlements.

It is not uncommon for employment agreements to contain a provision that is inconsistent with the award without the employer even realising, for example paying an employee less than what is required under the award for their position.

In most situations it is likely that the award would prevail and the provision in the employment contract is overridden by the award. To avoid disputes with employees or a breach of the law, it is crucial to ensure the employment terms comply with the law and in particular the relevant award.

3.       Is a restraint of trade necessary to protect your business?

Restraints of trade are very common to try and prevent an employee from working with a competitor, poaching clients or other employees.

However, restraints of trade are only enforceable where the employer can show the restraint is necessary to protect legitimate business interests such as trade secrets, confidential information and clients. The restraint can’t be against public interest, as the employee has a right to earn a living. For example, a restraint which tries to restrict employees from working for a competitor for 100 years within Australia, is unlikely to be enforceable.

Factors to be considered when determining the enforceability of the restraint include the nature of industry, the time of the restraint, the distance of the restraint and overall how reasonable the restraint is.

It is really important to have a properly constructed restraint that is clear, well-worded and reasonable to give the restraint the best chance of being enforceable.

4.       Does the employee know what is expected of them?

A written employment can clearly define the duties and role of the employee to create certainty and ensure the employee is aware of an employer’s expectations.  

5.       Does the agreement protect your confidential information?

Often a business has confidential information which may include things such as financial statements, manufacturing processes, trade secrets or client databases. It is important to ensure your employment agreement protects this information and that an employee is prohibited from disclosing confidential information as it may harm the business.

6.       Have you covered your intellectual property?

Employees are likely to be using your intellectual property throughout the course of their employment, so it’s important to ensure it remains your intellectual property.

Depending on the type of employment, the employee may also be developing or creating new inventions, processes or procedures whilst employed with you. If this is the case, you may want to consider ownership of these creations and covering it in the employment agreement to protect your interests.  

7.       Does it deal with the policies of the business?

You should consider if you have any policies you want to incorporate into the employment contract. For example, a drug and alcohol policy or a work health and safety policy. However, if you are including policies in an employment contract, you may also bind yourself to follow and implement those policies under contract law. Alternatively, you might want policies to be acknowledged by the employee as lawful directions. Generally, if you make the policies accessible and clearly communicated to employees you should be able to rely on those policies.

 

Coutts have expertise in preparing tailored employment agreements that both protect the interests of employers, as well as ensure employees are aware of their obligations. Call 1300 268 887 and book an appointment with Alexandra Johnstone or Keely Irving today.

For further information please don’t hesitate to contact:

Keely Irving
Lawyer
keely@couttslegal.com.au
02 4607 2124

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

eConveyancing: the 1 July 2019 mandate

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Conveyancing is the legal process involved in buying or selling property. eConveyancing is the same process but completed electronically meaning the paperwork involved in a manual conveyance is substantially reduced. The transition to eConveyancing aims to transform NSW into the most efficient and secure place to buy and sell property. 

eConveyancing has been a long time coming and from 1 July 2019, mainstream property dealings can no longer be lodged in paper in NSW. This includes transfers, mortgages, discharge of mortgages, caveats, withdrawal of caveats and transmission applications.

Currently in NSW, over 85% of eligible conveyancing transactions are being completed electronically. This percentage is only set to increase as we reach the 1 July mandate.

So, how will this benefit you? So glad you asked.

You get your money faster. Funds are paid and cleared in your account instantly, on the day of settlement. There is no more waiting for cheques to be banked and for funds to then clear. With eConveyancing you have immediate access to funds from settlement.

Reduces costs. Some banks charge $10, even $15 per bank cheque required for settlement. With e-Conveyancing, funds are paid electronically, eliminating the need for bank cheques and additional expenses like bank cheque fees.

Safety first. e-Conveyancing is tightly regulated. Processes are in place to verify the identity of the parties and allow parties to electronically sign documents securely. For all those tech savvy people, the data is encrypted and the receiving computer checks the data to make sure it wasn’t changed in transit.

Less risk and more certainty. I was reading something not to long ago that reported 1 in 5 people surveyed experience delays to settlement. Delays to settlement can mean additional expenses and make for a stressful situation. With eConveyancing the risk of errors and delays is significantly reduced, giving you added certainty of a successful on-time settlement. This is achieved through electronic signing as well as better checks and balances through electronic channels. For example, there are no cheques drawn in eConveyancing, the funds are electronic. This eliminates the chances of cheques being drawn incorrectly resulting in a delay or even a cancellation to settlement.

Less paperwork. Sending documents in the post to be signed increases the risk of delays to settlement, particularly when documents are lost. With electronic signing, there are far less, if any, documents being posted.

Saves time. In order for settlement to occur, the Transfer must be signed. Electronic signing means you can avoid the hassle of printing, scanning and posting documents. You don’t need to make time to drop into the office to sign documents either. The Transfer is signed by your Solicitor or Conveyancer on your behalf, using their digital certificate.

Peace of mind. In the manual world documents required to transfer ownership to you are typically not lodged for days or sometimes weeks after settlement. With e-Conveyancing it is instant, giving you peace of mind. The change of ownership occurs on the day of settlement, with electronic lodgement to Land Registry Services. This also means Government authorities like Council and Water are advised of the change of ownership much sooner.

Moving forward, in order to complete your property transaction it is important that you ensure your Solicitor or Conveyancer is registered for eConveyancing.

At Coutts not only are we registered for eConveyancing as a firm, but each member of our property team has undergone extensive training and are certified with PEXA (Property Exchange Australia).

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Mediation – Know the basics

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Mediation is an alternative dispute resolution process which aims to resolve disputes in a cost effective and efficient manner. The mediation process allows those involved in a dispute to meet with an independent third party, known as a mediator and genuinely attempt to reach a resolution prior to court proceedings.

The mediator plays a crucial role in mediation, acting as a neutral person responsible for ensuring that parties have an opportunity to communicate their goals, issues and desires to reach a resolution across a wide range of disputes. The additional benefit is that all discussions within mediation are kept confidential.

Mediation has cemented itself as a successful step in resolving disputes across various areas of law including but not limited to family law matters such as property settlement and neighbourhood disputes.

Further, parties are able to participate in mediation in public formats, such as community justice centres or privately through mediation centres. Therefore, the timeline for when parties can meet to discuss their dispute may vary as per the avenue they select.

What are the benefits?

Mediation is known for the many benefits it offers to parties of a dispute. Such benefits include:

1.     Cost effectiveness: Mediation is more cost effective than Court proceedings;

2.     Informality: The informal nature of mediation allows people to feel more comfortable negotiating and discussing the issue at hand;

3.     Preservation of Relationships: If both parties are willing, mediation may also preserve the relationship of the parties in comparison to Court proceedings given the cooperative nature of mediation being less adversarial than Court;

4.     Time efficiency: The Court process is often time heavy and may take several weeks, month or even years to achieve a Court Order. As such, mediation gives the opportunity for a matter to be settled in a time effective manner;

5.     Varying Agreements: Often when a matter is brought before a court, a Court is limited in their ability to customise agreements and Orders. Mediation allows for both parties to customise and modify their agreement to best suit the circumstances of the parties.

What happens if it doesn’t work?

Often once a resolution is agreed upon by the parties, it can then be formalised in writing and upheld as an agreement, however if a resolution is not achieved, parties can commence Court proceedings, depending on the nature of the matter.  

If you are experiencing a dispute that you need assistance in resolving, please contact Coutts on (02) 4647 7577 to book an initial appointment so we may assess your legal options for dispute resolution.  

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

NSW Drink Driving Rules

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COMMENCING TODAY, the new laws surrounding drink driving have come into effect.

Under the new rules, ALL people caught drink driving, or driving with an illicit substance present in their blood, will lose their licence on the spot and be issued with a fine. This includes low range drink drivers, with a minimum fine of $561.

The blood alcohol limit for full licence holders, whether you drive a car or motorbike, is under 0.05.

For professional drivers, including bus drivers, taxi drivers, and heavy vehicle drivers, the blood alcohol limit is 0.02.

Learner and P Plate drivers must have a blood alcohol limit of zero.

These new laws are a key priority of the Road Safety Plan 2021. The Road Safety Plan is targeted at providing safer communities and safer country roads by utilising current technologies and implementing harsher penalties for drink and drug driving. 

Be sure not to drink drive or drive whilst under the influence of an illicit substance. If you find yourself in trouble with the law, contact our Criminal Law Department on (02) 4647 7577 or contact or 24 hour criminal law hotline on (02) 8324 7527.

If you have any questions or for further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

The importance of brand ownership: Snapshot of the UGG boot case

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Brand ownership is so important for businesses of any size.  There is a common misconception that owning a business name means that you own that brand, but the reality is brand ownership in Australia is protected by trade marking of your brand, through either logo protection or words protection.

The other important basic element of brand ownership is that it is jurisdictional, meaning that trade marks are owned in each jurisdiction.  Just because you own a trade mark in Australia does not guarantee that the same trade mark is available in the USA and vice versa.  Protections are obtained for trade marks in each particular country that you wish to sell your goods and services. 

You can own your brand in one country but not in another.

The recent USA “Ugg” case highlights some important lessons learned.

This case was recently heard in the USA where Australian Leather had sold a total of twelve pairs of ugg boots in the USA between 2014 and 2016, but without having any trade mark rights in the USA to the word or logo “UGG”.  Deckers Outdoor Corporation a Delaware corporation (Deckers) alleged the sales of Australian Leather UGG boots in the USA breached the Deckers owned US trade mark for ugg boots, being the registered brand of Deckers.  On Friday 10 May, a Chicago jury found these sales of ugg boots by Australian Leather in the USA meant that Australian Leather was guilty of wilful infringement of the Deckers owned UGG trade marks.  Accordingly, Australian Leather was ordered to pay statutory damages of $450,00USD.

Lessons learned from this recent Chicago case are that before your business makes any sales (including as in this case online sales) of an Australian good in the United States, you need to ensure that any sales don’t infringe a trade mark ownership in the USA.  This means at a minimum you should check the trade mark protections in existence in the US to ensure that your Australian brand does not infringe on trade mark ownership in the USA.

Secondly, if you plan to launch your brand in the USA it is wise to check whether your brand is available or already owned in the USA, particularly if you are looking at brand continuity within many countries such as Australia, New Zealand and the USA.  Ensuring availability of brand ownership in all the countries you intend to operate is important.  Strategic planning of your intellectual property is really important.

In Australia, let’s have a brief look at the trade marks each of these brands own and what each of these brands are able to do within Australia.   To understand this, let’s briefly examine some of the formal protections that are in place within Australia between these two brands. 

The UGG Australia logo is a logo trade marked and owned in Australia by Deckers.  This was registered by Deckers from 12 February 1999 in Class 25: Footwear, including boots, shoes, and clogs.  Click here to see the logo that Deckers owns and uses in Australia.

Among its trade mark portfolio, rival company Australian Leather owns a trade marked triangular shaped logo featuring the letters U and G in Australia.  This is registered from 1 October 2009 in Class 25: Clothing, footwear, headgear.  Click here to see just one of the logos that Australian Leather owns and uses in Australia.

In Australia, each of Deckers and Australian Leather have the right to sell and brand ugg boots using their trade marks that they own, within the same class (as noted above, being class 25 including footwear and in the case of Australian Leather, extending to clothing).  Provided each of the brands is used in accordance with their trade mark ownership in Australia, each brand is selling footwear under a brand that they own and is not infringing brand ownership of the other party.

At Coutts, we regularly assist with legal advice on brand ownership, trade mark applications, intellectual property licences and intellectual property management strategies and implementation.

For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Construction Contractors Beware - High Court confirm monies due to a sub-contractor cannot be withheld

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Overview

Construction sub-contracts will sometimes include a provision allowing a head contractor to retain a portion of the monies due to a subcontractor until a date after the subcontractor’s works have been complete - for example, at practical completion of the head contract or when the defects liability under the head contract has expired. This delay in payment can cause real unfairness to the subcontractor - especially when there is a large time lag between the works performed by the subcontractor and the completion of the overall build. It also raises the risk of a subcontractor never receiving full payment for its works if the contingent event never occurs or if the head contractor becomes insolvent in the meantime.

Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act)

Recognising the unfairness caused to sub-contractors, the Act when introduced in 1999, included a “pay when paid” provision (section 12) which mandated that any provision in a construction contract which sought to make payment to the subcontractor contingent on the head contractor being paid by a third party, or payment to the subcontractor being made contingent on the operation of another contract, was of “no effect”. The scope of this section has previously received little judicial attention.

High Court rejects a narrow operation of the “pay when paid” provision

In Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5 the High Court upheld the finding of the adjudicator that the “retention” provisions in the subcontract fell within the operation of the Act’s “pay when paid” provision. In doing so, the High Court rejected a narrow approach to this provision which had been adopted by the South Australian Supreme Court. 

In Maxcon’s Case, the building contractor (Maxcon), and Mr Vadasz, a piling subcontractor, were parties to a subcontract under which Mr Vadasz had agreed to design and construct piling for a strata development in Adelaide. The subcontract required Mr Vadasz to provide a "cash retention" equivalent to 5% cent of the overall contract sum with the retention funds to be released in tranches as follows:

·        50% within 90 days of the occupation certificate being obtained;

·        the remaining 50% within 365 days of the occupation certificate being obtained.

Under this clause of the subcontract, Mr Vadasz would be denied a large amount owed for works performed by him at the initial construction stage until one year after the entire building was complete - lengthy period of time.

On 25 February 2016, Mr Vadasz served on Maxcon a payment claim under the Act stating that a progress payment of $204,864.55 was due (this amount included the retention monies). On 8 March 2016, Maxcon provided a payment schedule pursuant under the Act stating that it would pay only $141,163.55, ie it deducted a retention sum and administration charges. Mr Vadasz then applied for adjudication of his payment claim under the Act.

The adjudicator accepted Mr Vadasz's submission that Maxcon was not entitled to deduct the retention sum and determined the adjudicated amount to be equal to the total amount claimed by Mr Vadasz. In relation to the retention sum, the adjudicator concluded that the retention provisions of the subcontract did constitute “pay when paid” provisions and were thereby ineffective - meaning that Maxcon had no right to withhold the retention sum.

Maxcon appealed to the South Australian Supreme Court which found in favour of Maxcon. The Court considered that the retention provisions did not fall within the “pay when paid” provision of the Act on the basis that the date when occupation is achieved is not contingent on Maxcon either being paid or on the operation of the head contract.

The High Court rejected the approach of the South Australian Supreme Court. It held that the “pay when paid” provision of the Act meant that Maxcon could not withhold the retention monies from Mr Vadasz because, ultimately, the release of the retention monies to Mr Vadasz was dependent on the operation of another contract (ie the issue of an occupation certificate for the building was dependent on Maxcon performing the building works as required under the head contract).

Lessons from the Case

The High Court favoured an expansive interpretation to the “pay when paid” provision of the Act. In practice, the effect of the decision is that head contractors need to ensure that their subcontracts do not contain retention provisions which infringe the “pay when paid” provision of the Act, as interpreted by the High Court.

It is important to note that the decision does not affect the provision of “security” under a subcontract such as a bank guarantee or an insurance bond. In light of the High Court’s decision, we recommend that head contractors review their subcontractors to ensure that they are legally compliant and to consider other amendments to provide adequate protections for defective subcontractor works.

For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What makes a Will valid?

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A will is a legal document that sets out your wishes for what you want to happen with your estate assets after you have passed away. Ensuring that your will is well structured, clear and up to date is very important, as it will be more likely that your assets will go to who you want them to. Most people have some idea about what they would like to happen with their estate once they have passed. Whether you decide to leave your assets to your children or your favourite charity, it is important that you ensure the will you make is valid so that who you want to benefit will actually happen.

 

Why Should I Make A Will?

We understand that making a will can be a very difficult document for a person to create. However, some reasons it is a good idea to make a will include:

·       To express your wishes and intention for what you want to happen with your estate assets once you have passed;

·       To provide adequately for the people that you care about, especially when considering blended families or other people who you wish to inherit from you;

·       To make it less likely for a dispute to arise; and

·       To avoid the delay and cost of administering an estate when passing without a valid will in place (also known as dying intestate).

 

Legal Requirements for the Will

In New South Wales, for a will to be considered valid it must be:

·       In writing;

·       Signed by the will maker on every page of the will (or by a person the will maker has directed to sign on their behalf in their presence if they are physically unable to sign it themselves); and

·       Witnessed by at least two people at the same time the will maker signs the document. The witnesses must also sign each page of the will to confirm that they were present and witnessed it.

However, there are also requirements regarding the two witnesses. Unless certain circumstances apply, the witnesses cannot be listed as a beneficiary under the will and they cannot be a person who is unable to see.

 

Capacity and Intention

If you are a person who wishes to make a new will, you must have the legal capacity to do so. What this means is that you must have the ability to make decisions for yourself and you must be able to demonstrate that you understand the nature and consequences of your decisions.

You must also be over 18 years of age or have approval from the Court to make a will if you are a minor.

When it comes to signing the will, it must also be clear that you know what you are signing, that it was your intention to make a will and that you were not coerced, influenced or manipulated when you were making your will to have your estate divided in a certain way.

 

Drafting Issues

Whilst it may seem quite easy to make a valid will without seeing a lawyer who practices in the area, certain elements of your will need to be written in such a way that they reflect your intentions.

If a will is not drafted correctly, what you intended to happen or who you intend to benefit may not happen at all. Speaking to a professional will also give you the benefit of experience and ensure it is drafted correctly and allow you to receive a will that is tailored to reflect your individual needs and circumstances.

For further information contact:


Kaisha Gambell
Senior Lawyer
kaisha@couttslegal.com.au
02 4647 7447

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

New laws give added protection for purchasers in NSW when purchasing off-the-plan

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At the end of last year, new laws came in to give purchasers in New South Wales added protection when purchasing off-the-plan properties.

 

A contract for a property being purchased off-the-plan is a contract for the sale of a residential property that has not been completed at the time the contract is entered into.

 

In an off-the-plan contract, there is a sunset clause. The sunset clause is a provision that provides for the contract to be cancelled if the property is not created by the sunset date. The sunset date will be noted in the contract and is the latest date by which the property must be created.

 

Mr Dominello, the Minister for Finance, Services and Property said it best in a recent Media Release when he said “While it works well in most cases, we’ve all heard the horror stories when things go wrong”.

 

In summary, the major amendments to the Conveyancing Act include:

  • Founding minimum disclosure standards

    Prior to entering into a contract, purchasers must be provided with a disclosure statement, which includes a copy of the proposed plan, proposed by-laws (list of rules) and schedule of finishes (list of the inclusions). Penalties will apply to the vendor if a disclosure statement is not provided.

  • Keeping developers accountable for delivering what they promised

    Purchasers must be given a copy of the final plan and a notice of any changes (if applicable), at least 21 days before they can be required to settle. Additionally, purchasers can cancel the contract or claim compensation if they are adversely affected by changes made, after which time they become entitled to a refund of the deposit paid.

  • Extending the cooling off period

    The cooling off period under a contract for the purchase of an off-the-plan property is extended from 5 to 10 business days after the contract is entered into.

  • Clarifying the powers of the Supreme Court

    The Supreme Court can award damages where the contract is cancelled by the vendor under a sunset clause. The Supreme Court can also make an order allowing the vendor to cancel the contract under a sunset clause, but only if the vendor proves to the court that the order is just and equitable in all the circumstances.

 

The changes are of significant importance when you consider that 12% of all residential property sales in NSW are off-the-plan sales.

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

High Court overturns long-standing Prasad direction

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A recent decision in the High Court of Australia has overturned what is known as a Prasad direction, a principle which has been applied in criminal cases since 1972. The principle is named after the case of R v Prasad (1979) 23 SASR 161, a South Australian decision which has been adopted by New South Wales Courts.

What is a Prasad direction?

In a criminal matter, at the conclusion of the Prosecution’s evidence in chief, the Judge may give a direction to the jury that if they believe that the evidence they have heard is not sufficient to support a conviction, it is open to them to stop the trial and enter a verdict of not guilty. If there is direct evidence which is capable of proving the charge, it is not open to the Judge to give a Prasad direction, regardless of the Judge’s perception of the strength of the evidence.

If the Judge chooses to give a Prasad direction, the Judge should tell the jury that it is open to them to bring in a verdict of not guilty at the conclusion of the Prosecution’s evidence or at any time during the trial, however they must be unanimously convinced that the evidence is insufficient.

Is a Prasad direction still available?

Following the decision of the High Court on 20 March 2019, Prasad directions are no longer available. The unanimous decision in the matter of Director of Public Prosecutions (DPP) Reference No 1 of 2017, Re [2019] HCA 9 held that a Prasad direction is contrary to the law and should not be given to a jury during a criminal trial. The Court held that for a judge to invite a jury to stop a trial without hearing the totality of the evidence and without understanding the application of the law to the facts was not only inconsistent with the division of the roles of judge and jury, it was akin to inviting the jury to decide a matter from a position of ignorance. A jury no longer has a common law right to return a verdict of not guilty at or after the close of the Prosecution’s case.

If you have any questions or for further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Surcharges on card transactions – are you charging too much?

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The Competition and Consumer Amendment (Payment Surcharges) Act 2016 implemented a new framework that banned surcharges by large businesses for card payments that were excessive, including surcharges for the use of Eftpos, Mastercard, Visa or American Express. Whilst large businesses have been subject to this framework since 25 February 2016, from 1 September 2017 all businesses (including small to medium sized businesses) have been banned from charging surcharges that are in excess of the caps set out in the legislative reforms.

What are excessive surcharges?

Under these reforms, a business that is charging a surcharge for credit card payments must not charge more than the actual cost for the business to process the credit card payment via Eftpos, Visa, Mastercard or American Express. If the actual cost to process the credit card payment is a percentage of the purchase amount then the fee charged by businesses to customers can be represented as a percentage, for example, “all payments made with a credit card will attract a surcharge of 0.78% of the purchase amount”.

Under the reforms, businesses can choose to charge a set single surcharge for all payments made with a credit card, although, this set amount has to be the lowest cost for processing the payment that business will have to pay to the credit card processer. This set single surcharge cannot be the average fee but must be the lowest fee. For example, a coffee shop cannot set a single surcharge fee of $0.50 and charge a customer to use a credit card to pay for a coffee worth $4.00 (being a surcharge of 12.5% of the purchase amount).

What surcharges are excluded from these reforms?

These reforms apply exclusively to:

-          Eftpos;

-          Debit MasterCard;

-          Credit MasterCard;

-          Visa Debit;

-          Visa Credit; and

-          American Express cards,

issued by Australian banks.

Imposing surcharges for payments via Diners Club, PayPal or BPAY does not fall under these reforms.

What does this mean for my business?

Businesses should, if they already haven’t, put in place processes within their businesses that require maintaining up to date records relating to actual costs for accepting certain card payments as well as monitoring the actual costs incurred by the business in comparison to the amount of surcharges imposed by the business to customers.

If the Australian Competition and Consumer Commission (ACCC) reasonably believes that a business has included an excessive surcharge on a card payment (and that card payment falls within the scope of these reforms) the business may receive an on the spot fine up to $108,000 for listed corporations, $10,800 for other companies and $2,160 for all other merchants, with these fines being per contravention of the reforms.

Case example – Red Balloon

At the end of 2017 Red Balloon Pty Ltd paid penalties of $43,200 following the issue of four infringement notices from the ACCC for alleged breaches of these reforms.

Red Balloon was found to have charged four customers excessive surcharges for payments made by MasterCard credit, Visa credit, Visa debit and MasterCard debit on 31 March and 30 June 2017.

This case is a key example of how important it is that businesses of all sizes have processes in place to ensure they are not in breach of these reforms and are not charging customers excessive surcharges.

If you are unsure about these reforms and would like more information on ensuring your business is complying with the reforms, the Australian Competition and Consumer Commission has published guidance material for businesses (and consumers) about the ban on excessive surcharges and what it means in the day to day operating of a business. These guidance materials can be found on the ACCC’s website.

At Coutts we can advise and draft appropriate commercial contracts or terms and conditions for your business that cover off the relevant legislation including in respect of credit card surcharges.

For further information please don’t hesitate to contact:

Keely Irving
Lawyer
keely@couttslegal.com.au
02 4607 2124

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

De facto relationships decoded

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The aftermath of a relationship breakdown is always difficult, when couples are required to divide their property and deal with the emotions mourning a relationship.  Most people are aware that married couples have rights under law upon the breakdown of their marriage, however it is also important to note that de facto relationships are also governed by Australian legislation and can also apply for property settlement to determine their financial relationship on a final basis.

 

What is a de facto relationship?

De Facto relationships are defined under section 4AA of the Family Law Act 1975 (Cth). A relationship is deemed a de facto relationship if two persons (not married or related by family) live together on a “genuine domestic basis”. Whilst this definition is quite broad, it allows a Court to determine whether a couple relationship exists with reference to circumstances such as but not limited to the duration of the relationship, financial dependence or lack thereof, whether there is a sexual relationship, if the couple live together and their mutual commitment to a shared life.

Further, this concept is inclusive of same-sex couples. 

How do I know if our relationship is eligible for a property settlement?

A de facto relationship is eligible for a property settlement in the following instances:

1.     Where the relationship period was at least two (2) years;

2.     Where there is a child or children of the relationship;

3.     If a party made substantial contributions (financial or non-financial) throughout the relationship and failure to make orders dividing property would be unjust for a party; or

4.     If the relationship was a registered relationship in accordance with state or territory requirements.

Do we need to formally divide our property?

There is no legal obligation for de facto or married couples to commence formal property settlement, however undertaking this settlement will ensure finality of the financial relationship between two parties and can assist in resolving property issues whilst a couple are still amicable. This finally determines ownership of property including motor vehicles, household contents, real estate, superannuation and shares. A written binding financial agreement or a legally-biding Consent Orders will document the way property is to be split between the parties.

Additionally, a time limit exists to make an application for financial orders, being two (2) years from the date of separation. If a person wishes to obtain orders outside this period, permission is then required to be sought from the Court to make orders.

Coutts are able to assist in preparing the necessary documents to formalise a property settlement for de facto relationships. Contact Coutts on (02) 4647 7577 to book in an initial appointment to received tailored advice to your present circumstances.

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What does a Notice to Complete mean?

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You have been told you cannot settle on your Contract on the due settlement/completion date and you are going to be issued with a Notice to Complete. So, what does this mean for you?

Contracts in NSW will generally have an additional condition in the Contract stating if settlement/completion does not occur on the correct date then a Notice to Complete can be issued.

When you enter into a Contract to sell or purchase you will be provided with a settlement date also referred to as a completion date. This date is when you must settle/complete the Contract by.

A Notice to Complete can be issued on behalf of the Vendor or the Purchaser.

If, by the settlement/completion date, for some reason a party cannot settle/complete then the other party may issue a Notice to Complete.

There may be many reasons settlement cannot take place, such as the bank may not be ready, the funds for purchasing may not be available, or the property is not completely vacated. The Notice to Complete will provide an additional 14 days for settlement/completion to take place within. This is an assurance for the party ready to settle that an end date is in place and pressure is on the party that is not ready.

As a vendor who has issued a Notice to Complete on a Purchaser, it is at the end of those additional 14 days that you have the right to either extend the Notice to Complete period or terminate the Contract. Upon termination of the Contract you keep any deposit paid by the Purchaser and possibly sue for any financial loss/damages incurred due to the default by the Purchaser. You will then be entitled to place the property back on the market.

As a Purchaser who has issued a Notice to Complete on a Vendor, it is at the end of those 14 days that you have the right to terminate the Contract, get a refund of the deposit paid, possibly sue for any financial loss/damages you may have incurred and walk away from the matter.

For further information please don’t hesitate to contact:

Meagan Groom
Licensed Conveyancer & JP
meagan@couttslegal.com.au
02 4607 2102

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What is a privacy policy and does my business need one?

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A privacy policy is used by a business to govern how it collects personal information from customers. Privacy policies can often be found on the bottom of websites as a link or may be incorporated in physical forms that customers sign.

 

The purpose of a privacy policy is to outline to clients how the business appropriately handles, uses and manages privacy information.  A privacy policy should outline what information you collect in the course of conducting your business.

Australian privacy laws are governed by the Privacy Act 1988 (the Act) which, incorporates thirteen (13) Australian Privacy Principles (Principles). 

The Principles cover:

  1. open and transparent management of personal information;

  2. anonymity and pseudonymity;

  3. collection of solicited personal information;

  4. dealing with unsolicited personal information;

  5. notification of the collection of personal information;

  6. use or disclosure of personal information;

  7. direct marketing;

  8. cross-border disclosure of personal information;

  9. adoption, use or disclosure of government related identifiers;

  10. quality of personal information;

  11. security of personal information;

  12. access to personal information;

  13. correction of personal information.

 

Generally, a privacy policy should be accessible in any reasonable requested form, free of charge, displayed on the business’ website and include the following:

  • The kinds of personal information you collect and hold;

  • How you collect and hold that personal information;

  • The purposes which you collect, hold, use and disclose personal information;

  • How an individual may their access personal information held by you and seek the correction of such information;

  • How an individual can complain about a breach and how you will deal with a complaint; and

  • Whether you’re likely to disclose personal information to an overseas recipient and if so, to specify the overseas counties if it is practicable.

 

When outlining what kinds of privacy information a business collects it is important to distinguish between:

  • Personal information: which relates to information/opinions that identify an individual such as contact and financial details (whether they are true or not); and

  • Sensitive information: which relates to information/opinions about things like health, religion, political opinions, race or ethnicity.

 

The Act and Principles apply to:

  • organisations and companies with an annual turnover over $3 million;

  • all private health service providers; and

  • some small businesses.

 

If your business meets the relevant criteria, you will need to have a privacy policy. Coutts can assist you in determining whether you need a privacy policy. The Office of Australian Information Commission also has a checklist to assist small businesses to assess whether they need to comply with the Act.

 

Entities required to have a privacy policy must not breach the Principles. There could be consequences for businesses such as a fine where the business does not have a privacy policy when required to or if the business breaches the policy, the Act or Principles.

 

Coutts have experience in reviewing and drafting privacy policies to meet the requirements of the Act and the Principles. Coutts recognise the importance of understanding your business and your specific processes and procedures to ensure the policy reflects how you do business. For further information on privacy policies please contact the Commercial Law team.

For further information please don’t hesitate to contact:

Keely Irving
Lawyer
keely@couttslegal.com.au
02 4607 2124

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Disastrous mistakes in contracting

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Having worked in the legal industry for over 23 years, I’m often asked what are some of the more disastrous mistakes that I’ve seen clients make in contracting. Here’s a round up of just some of them:

1) Relying on a handshake deal: whether it’s because the relationship is going so well at the start or one stage or another (honeymoon phase, anyone?) or whether it’s because you’ve been mates for so long... or family... or like family. Every contract is there for your worst case scenario and while it’s hard to envisage anything ever going wrong, let’s remember best laid plans... Time and time again I’ve provided legal services where only one party kept up with their handshake deal or the relationship is falling apart and so the other party isn’t adhering to the handshake deal (among other things). Not putting things in writing, upfront can have a disastrous roll on effect.

2) Relying on past experience or a good track record: because surely when nothing has EVER gone wrong in the past, this time round it’s going to be a repeat of the same... right? Many times I’ve dealt with aggrieved parties who can’t believe the hand they have just been dealt because it’s never happened to them before or never happened with this other party. It only takes once bitten to be twice shy and ensure that you never want to deal with a repeat of what’s in front of you. Not taking the time to prepare a timely agreement, upfront is always a risky move.

3) Starting work when the contract isn’t finalised or signed: Pretty much a classic move by the other party. Once you’ve started work even in the absence of a contract you’ve lost a good deal of your ability to put genuine pressure on the other party to hear out your issues and address them to your satisfaction. Near enough isn’t good enough and you could end up being bound to the draft or, as noted above, losing genuine negotiation ability once you start work. Take the time to work out the lead time and time needed to get the agreement right and at least cover off your top/high risks and get them started before the start date.

4) Signing a contract that’s incomplete: Often there are multiple authors or contributors to a contract- someone else is pulling together the attachments or the scope of work or the KPIs and that part of the contract has been blank every time you’ve reviewed it. Point blank you don’t have certainty of what you’re signing up to. Ask for a complete contract. Review it and be sure it makes sense to you and is in the form and contains the terms you’ve agreed to.

5) Not tailoring the contract: The contract is an allocation of risk between the parties. If you haven’t turned your mind to the risks for a contract, you have missed an opportunity to properly allocate the risks and work out the party best to manage and control the risk. If you haven’t tailored the contract, have you even turned your mind to and covered off the worst case scenario for your project or contract? How is this contract going to work best for you? More often than not a short time investment and a brief risk allocation meeting at your end can identify at least your top five risks and you can weave these into the draft contract and look at who is going to bear those risks in the current version. You have an opportunity to make sure you ensure the contract works to respond to your risks and consider the project/contract at hand, rather than hope that your generic template (or the contract you used last time) does what you want when you need it to.

6) Finding something on the internet: Sadly I hear this one too often. “I got this from the internet”- first of all- you don’t own that document. Secondly, you haven’t turned your mind to whether the document assists you, covers of your risks or is even remotely suitable to you. You’re rolling the dice big time with this approach.

At Coutts, we provide practical, simple and focused legal advice and solutions. We can prepare short and simple contracts right up to the most complex. We can advise you regarding any range of things- risks and issues in the whole contract right down to the top 5 risks only. We can conduct risk allocation workshops and prepare tailored contracts. Rest assured, we are here to help and our advice and solutions are always effective, commercial and clear.

For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What happens if I can’t purchase a property that I’ve put down a holding deposit on?

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If Contracts have exchanged with a cooling off period, you have the option to get out of the Contract prior to the expiration of that cooling off period, for any reason.

 

In the instance you decide not to proceed with the purchase, you will forfeit the 0.25% deposit (the holding deposit which equates to a quarter of a per cent of the purchase price) to the Vendor. This is compensation to the Vendor for having the property off the market for you.

 

Working example. You entered a Contract to purchase a property for $800,000. You pay a 0.25% deposit of $2,000 to the Agent. Contracts were exchange on 1 November 2018 with a 5 day cooling off period. The cooling off period expires at 5pm on 8 November 2018. On 7 November 2018 you are advised that you will not be able to obtain the finance required to proceed with the purchase and instruct your Conveyancer to rescind the Contract. The Contract comes to an end and you forfeit your holding deposit to the Vendor.

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Unfair Contract Terms Update

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Overview

The introduction of unfair contract laws has visited a major change in the law relating to standard form commercial agreements. When first introduced in July 2010 the laws only applied to consumer contracts - however from November 2016 the laws were extended to cover small businesses. 

Review of Unfair Contract Laws

There is presently a statutory review being conducted in relation to the extension of the unfair contract laws to small businesses. The time for submissions closed in December 2018 and the review findings are likely to be known by mid 2019.

The review is considering most aspects of the operation of the unfair contract laws including:

  • the definition of a “small business” which is currently defined as a business which employs less than 20 people and the upfront price payable under the contract is less than $300,000 in a single year or $1 million if the contract extends for more than 12 months. Concern has been expressed by a variety of stakeholders that the “head count” aspect of the definition has practical difficulties. The review is also considering whether the amount of $300,000 is an appropriate threshold. The ACCC has indicated that it will submit to the review that the definition of a “small business” be expanded so that more businesses are brought within the regime;

  • whether further clarification should be given in the legislation as to what constitutes a “standard form contract”;

  • whether it is appropriate to continue to maintain the exemptions in the legislation which apply to terms that define the main subject matter of the contract or set the upfront price payable under the contract;

  • whether further examples or clarification should be provided in the legislation as to what constitutes an "unfair" term.

 

Other potential changes

The ACCC is pushing for changes to the Competition and Consumer Act 2010 (Cth) to allow the pecuniary penalty and other enforcement provisions of the Act to apply to unfair conduct breaches as they do for other breaches of the Australian Consumer Law, such as misleading deceptive or unconscionable conduct. So far the government has resisted those calls. It will be interesting to see if the present review process makes any recommendations on this issue. A change to the law in this area will apply significant added pressure to businesses to ensure their standard form contracts are compliant with the unfair contract laws - especially given the recent increase in the maximum pecuniary penalty order from $1.1 million to $10 million per breach.

Investigation Powers Strengthened

In October 2018, the ACCC’s investigative powers were boosted to enable it to compulsorily obtain information, documents and evidence to determine if a contractual term may be unfair. These new powers apply only in relation to contracts entered into on or after October 2018.

Conclusions

Unfair contract laws have visited a major change on consumer and commercial transactions throughout Australia - especially since November 2016 when the laws were expanded to cover small businesses. The present review process may make recommendations which further expand that reach and potentially result in breaches of the laws being subject to financial penalty orders. We will report further once the recommendations of the review are made public. In the meantime, it would be prudent for businesses to keep their standard form contract terms under review to ensure that they remain compliant with the unfair contract laws.  

For further information please don’t hesitate to contact:

Daniel St George
Senior Associate
daniel@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What do you do when a property owner dies in NSW?

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When someone passes away, property ownership is generally the last thing on your mind. However, once you have had some time to process the loss, dealing with the property of the deceased person is extremely important. Understanding how the property is owned and what that means will determine how the legal title of the property is transferred and who it goes to.

 

Types of Property Ownership

In New South Wales, there are three ways that people can own property:

  •  Sole Ownership – When the Title of the property is held in the deceased person’s name only. No one has the automatic right to the property and the asset will be handled as part of the deceased person’s Estate.

  • Joint Tenants – This is the most common way that married, or de facto couples own property. Whilst each person holds an individual interest in the property, when one person on the Title passes away the legal concept of “survivorship” takes place. That is, the interest of the deceased person will automatically pass to the other person listed as the joint tenant on the Title as that other person has “survived” the deceased person. In this case, the property does not form part of the deceased person’s Estate.

  • Tenants in Common – This is when two or more people are co-owners of the same property. All of the people who own the property will be listed on the Title. The co-owners can all hold an equal share in the property (known as Tenants in Common in Equal Shares) or they can each own an unequal share, for example, 30/70 or 40/60. The co-ownership will depend on the arrangements made when the property was purchased.
    When a person on the Title of a property owned as Tenants in Common passes away, their individual interest or share in the property does not automatically pass to the other surviving owners. Instead, the deceased person’s share in the house will form part of their Estate and be distributed in accordance with what that person had nominated in their will, or if they did not leave a will, by the laws of intestacy.

So, how do I transfer the property?

As there are different ways that people can own property, it automatically follows that there are different ways to transfer the property into the new owner’s name. Property is transferred as follows:

 

Joint Tenants

Because the concept of survivorship applies to property that is owned this way, it is a much simpler process than the others. Even though the property automatically passes to the survivors, the surviving owner is still required to complete forms and provide certain documents to the land titles office to officially remove the deceased person’s name from the Title.

In New South Wales, the surviving owner will need to prepare and register a document called a “Notice of Death” and provide the land titles office with the original Certificate of Title so that they can remove the name of the deceased owner and return a new Certificate of Title to the surviving owner.

If there is a mortgage over the property, the mortgaging bank may hold the original Certificate of Title and the surviving owner will need to get their consent to register the Notice of Death. 

 

Sole Ownership or Tenants in Common

As the right of survivorship does not apply to property owned by a person in their sole name or as Tenants in Common with other co-owners. Instead, the property forms part of the deceased person’s estate, and how the property is transferred will depend on whether the deceased person had a valid will.

Where there is a Will:

When a deceased person has left a valid will, there will be an executor appointed to handle the estate and transfer the property of the estate. However, the executor will need to apply for a Grant of Probate from the Supreme Court of New South Wales before they are legally permitted to transfer or sell the property. This can be a lengthy process and it always helps if the executor speaks to a legal professional so that they are able to meet the Court’s requirements.

Once Probate has been granted, the executor will be able to arrange for the property to be transferred into the names of the beneficiaries in the will or sold and the proceeds of sale divided between the beneficiaries of the will.

Where there is no Will:

In these situations, the deceased person is considered to have died intestate. Without a valid will, there is also no appointed executor. In New South Wales there is a predetermined hierarchy of people in the deceased persons family who will benefit from their estate. The person who has the greatest interest in the estate will then be required to make an application to the Supreme Court for a Grant of Letters of Administration and become the “Administrator” for the estate. Once the Letters of Administration has been granted, the Administrator has the legal authority to transfer or sell the property, however the beneficiaries of the property or the proceeds of sale of the property will depend on the rules of intestacy under the Succession Act (NSW) 2006.  

 

The legal requirements and time frames for transferring property after someone has passed away can differ greatly. Speaking to a legal professional may help you to understand the process and handle the transfer of the property with as few issues as possible.

For further information contact:


Kaisha Gambell
Senior Lawyer
kaisha@couttslegal.com.au
02 4647 7447

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What is a Title Search and What Can it Tell Me?

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Title searches are a requirement for many kinds of matters. However, In New South Wales, it is particularly important to attach a Title Search to a Contract of Sale as it is a requirement when selling your property. Information in this document is important for would be purchasers to have access to so that they can make informed decisions before they exchange contracts. But what is a Title Search?

 

A Title Search is quite simply a current copy of the Certificate of Title for any given property. The Certificate of Title is the official legal record for the ownership of the property and whilst there is quite often a physical paper title, with the move towards e-Conveyancing, the majority of titles are becoming electronic. In New South Wales title information is controlled by Land Registry Services. Completing a Title Search can provide a lot of information regarding a property, including:

 

Owners of the Property

A Title Search will always show you who the current owners of the property are. This can be an individual, multiple individuals or even a company. When multiple people own the property the Title Search will also provide information on how they own the property such as, as joint tenants or tenants in common. If they own the property as tenants in common, the Title Search will also so you how much of the property each individual owns for example 50/50 or 30/70. It is important to check the Title Search when purchasing a property so that you know the people selling it are entitled to do so.

 

Mortgages over the Property

The Title Search will show you whether or not there is a mortgage associated with the property or not. If there is a mortgage on the property, you will be able to find out from the Title Search who the mortgage is with. This is important because when you sell or purchase a property, it will need to be discharged. It is quite often the case that the mortgagee will hold the original Certificate of Title until the mortgage is paid in full.

 

Easements

Having an easement on a title means that another party or parties has the right to cross or otherwise use a portion of the land. For example, it is very common for water authorities to have service locations on properties that they need to be able to access in order to maintain their systems. It is important for property owners and purchasers to be aware of easements as there is often restrictions and a responsibility to respect them. Building illegally over an easement can have serious consequences.

 

Covenants

A covenant is a form of agreement that creates an obligation on the owner of the property. A covenant can be positive (which requires the property owner to do something) or negative (which restricts a property owner from doing a certain thing). Forms of covenants include but are not limited to what kind of fencing needs to surround the property (including colours), to maintain drainage systems or to not leave caravans or tents at the front of the property. It is common for new estates to have covenants to ensure a certain level of aesthetic appeal. It is important to know what covenants apply to a property as you will be required to adhere to them.

 

Caveats

A caveat is a sign that there is someone else who has an interest in that property other than the current owners or mortgagee. In New South Wales, to put a caveat on a property, the caveator must lodge an application with Land registry Services. It essentially serves as a warning to potential purchasers that there may be some unresolved issues in relation to the property or monies owed to the caveator. For example, if there are family law proceedings in relation to the property that have not finalised the owner of the property will not be able to sell it.

 

Leases

This is quite common if you are buying a commercial property with a leasee in the building. This is because any retail/commercial lease of more than three years is required to be registered on the Certificate of Title to protect the tenant’s interests. If you buy a property with a registered lease on it, you will be required to recognise the lease and become the new landlord.

For further information please don’t hesitate to contact:

Christine Johnsen
Conveyancing Assistant
christine@couttslegal.com.au
02 4607 2105

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

The New Strangulation Laws in NSW

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According to the Australian Bureau of Statistics, between 80 to 100 Australian women die each year at the hands of their male partners. In domestic violence situations, strangulation is considered as a red flag for serious future violence and can even be an indicator for a future fatal incident. NSW’s homicide statistics show that a quarter of all murder victims had previously been a victim of strangulation prior to their death. Research has shown that women who have previously been strangled by their partner are 8 times more likely to be killed by that partner.

Strangulation is currently an offence under section 37 of the Crimes Act NSW 1900. However, the current offence requires that the victim be strangled to the point of losing consciousness, or until they are rendered incapable of resisting and that the perpetrator is reckless as to rendering the victim unconscious or unable to resist. Not only does this create an impossible burden of proof on the Prosecution, it does not capture the majority of strangulation offences that occur in domestic violence situations. When strangulation occurs in domestic violence situations, it is not necessarily done with the intention of rendering the victim unconscious, and therefore an offence under this section is unlikely to be proven. In instances where an offence of strangulation cannot be proven, a lesser charge of assault is pursued by the Prosecution, which carries a maximum penalty of 2 years imprisonment.

In an increased focus on domestic violence, the NSW Government has introduced the Crimes Legislation Amendment Bill 2018 to Parliament to create a new offence of intentionally choking, suffocating or strangling a person without consent. The offence will be punishable by a maximum term of 5 years imprisonment. It is intended that the removal of the requirement that the victim be rendered unconscious or unable to resist and captures domestic violence situations whereby the victim is strangled in an attempt to control, coerce or intimidate the victim. It also more accurately reflects the severity of the crime. 

If you have been charged with a Domestic Violence offence, contact our Criminal Law Team on (02) 4647 7577 or alternatively, on our 24 hour hotline, (02) 8324 7527. If you have any questions or for further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.