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Posts by Elisha Edwin

No Jab, No Job?

Prime Minister Scott Morrison last month declared that the states have agreed it would not be unlawful to work in aged care without being vaccinated stating that “they’re not recommending that that be the case” but “that doesn’t mean that that mightn’t be a position in the future”.…

The position of adopted children in deceased estates

An adopted child has the same rights in relation to the adoptive parent(s) as a natural child born to those adoptive parents. If an adoption order is made, then pursuant to section 95 of the Adoption Act 2000 (NSW): the adopted child has the same rights in relation…

New Code of Conduct for the short-term Rental Accommodation Industry

The prevalence of online booking platforms has seen a significant increase in short-term rental accommodation. Booking platforms have made it very easy for letting agents and hosts to advertise and promote properties and for guests to find short-term accommodation. There has been a shift away from traditional short-term…

Challenging a Will as invalid

The grant of probate is based on the understanding that the Will is valid and represents the last testamentary intentions of the deceased. If you believe that the Will that is being propounded as the last Will of the deceased is not valid or that the application for…

Prepare your business for changes to consumer guarantees

From 1 July 2021, consumer guarantees under the Australian Consumer Law (ACL) will apply to a broader range of goods and services. The amending legislation broadens the definition of a ‘consumer’ to mean a person or business who acquires goods or services (on or after 1 July 2021):…

Proposed Changes to Stamp Duty in NSW

On 17 November 2020, the NSW Treasurer announced proposed changes to stamp duty including an election by property purchasers to pay a smaller annual tax in lieu of a one-off up-front lump sum based on the value of the property. Stamp duty has become a major barrier to…

Neighbours inherit waterfront estate

In Moore v Aubusson [2020][1] the plaintiff couple sought a declaration that the defendant executor held the whole of the deceased’s estate on trust for them in equal shares as tenants in common and an order that the estate be transferred to them. The claim was framed on…

Another Owners Corporation is barking mad (Round 2)

A couple of years ago, the Tribunal was asked to determine whether a by-law was invalid by virtue of section 139 of the Strata Schemes Management Act 2015 (NSW) (Act) in Yardy v Owners Corporation SP 57237 [2018][1]. Those proceedings involved ‘Baxter’ a small maltese cross terrier. The…

Woman sued over comment she posted on a facebook mother’s group

A Sydney based travel company commenced defamation proceedings against a member of a private mother’s facebook group that had close to 6,000 members. In Aaren Pty Ltd trading as Price Beat Travel v Arya [2020][1], the defendant published a post on the facebook page of a community group…

Extension of the Residential Tenancies (Amendment) COVID-19 Regulation

The Residential Tenancies (Amendment) COVID-19 Regulation 2020 (Regulation) introduced changes to residential tenancies in New South Wales on 15 April 2020. The Regulation was intended to operate for six months but has recently been extended to operate until 26 March 2021 (relevant period). The Regulation generally prohibits a…

Are you an Impacted Tenant?

We recently reported on the extension of the Residential Tenancies (Amendment) COVID-19 Regulation (NSW) to 26 March 2021 and the matters that the Tribunal may take into account in determining whether a termination notice or termination order is fair and reasonable in the circumstances. The Tribunal recently heard…

Council’s failure to notify a development application

In Simpson v Wakool Shire Council (2012)[1], the Council granted consent to a development application to use an existing industrial building for a dairy processing plant. Mr Simpson commenced judicial review proceedings in relation to the Council’s failure to notify affected landowners. There were two Development Control Plans…

That’s One Big Food Fight

McDonald’s has commenced proceedings in the Federal Court claiming that its competitor, Hungry Jack’s has infringed it’s ‘Big Mac’ trademark with a lookalike burger called the ‘Big Jack’. The ‘Big Jack’ burger was trademarked by Hungry Jack’s earlier in the year. The Plaintiff, McDonald’s Asia Pacific, claims that…

Extension to the Retail and Other Commercial Leases (COVID-19) Regulation 2020

On 23 September 2020, the NSW Treasurer announced that the Retail and Other Commercial Leases (COVID-19) Regulation (Regulation) 2020 will be extended to 31 December 2020. Previously, the Regulation was due to expire on 24 October 2020. The extension is welcome relief for tenants. The Regulation incorporates the…

New form of developer investment: Build-to-rent schemes

Build-to-rent housing projects in NSW are relatively uncommon. That position is anticipated to change with the NSW Government recently announcing reform to the planning and tax provisions governing build-to-rent schemes. Build-to-rent refers to a residential development in which all apartments are owned by the developer and leased to…

Petty Neighbourhood Squabble ends in Court

A Balmain neighbour has been ordered to pay $300,000 in damages plus interest and legal costs for defaming her neighbour on “A Current Affair” in a 2016 broadcast. Rothman J found the neighbour’s comments on the television broadcast were defamatory of Mr Cosco. Interestingly, the Plaintiff Ms Cosco…

When an emoji gets you into trouble

In the high-profile District Court case of Burrows v Houda [2020] NSWDC 485, the Court was asked to consider the meaning of the “zipper-mouth face” emoji on twitter. The case involved a twitter thread discussing the Plaintiff’s alleged misconduct as a lawyer. An “emoji” consists of pictographs of…

Statutory demands and temporary COVID-19 measures

Ordinarily, service of a statutory demand on a debtor company is a remedy under the Corporations Act 2001 (Cth) available to a frustrated creditor when they are owed a debt that is $2,000 or more. A debtor company would normally have 21 days in which to comply with…

Building Bonds – Residential Strata Buildings

Developers of new residential strata buildings that are four storeys and higher are required to pay a building bond to the NSW Fair Trading equal to two percent (2%) of the building contract price. This is a requirement under the Strata Schemes Management Act 2015 (NSW)(Act). The developer…

Another Successful Adverse Possession Claim

Last year a Sydney developer was successful in his claim for legal title of an unoccupied house in Ashbury based on his uninterrupted occupation of the house for more than 12 years. This year we see a further successful claim to title of land that is adverse, that…

Changes to Stamp Duty Thresholds on New Homes in NSW

On 26 July 2020, the NSW Government announced that the threshold above which stamp duty is calculated on new homes for first home buyers will increase from $650,000 to $800,000. A concession on the stamp duty payable will apply on homes valued at between $800,000 and $1million. For…

Consumer Guarantees under the Australian Consumer Law

When you buy a product (or service) from a business, the business must guarantee the product (or service) provided it is under $40,000 or over $40,000 but is normally bought for personal or household use. These consumer guarantees are implied into every contract for sale of goods and…

Proving you were in a De Facto Relationship with the Deceased

If you were in a de facto relationship and your de facto spouse dies intestate (that is, without a Will), it is a very difficult and complex process to apply for and obtain a grant of letters of administration of your spouse’s estate. A de facto relationship for…

Is cryptocurrency “property”?

Cryptocurrency is a form of virtual money stored in a “digital wallet” that does not physically exist. Some of the more well-known cryptocurrencies are bitcoin, ethereum and ripple. They are digital tokens created from code. The currencies are not regulated and are not considered a form of legal…

Proving the Deceased did not make a Will

If your loved one has passed away without a Will and the asset holders (such as the deceased’s banks or nursing home) will not release the deceased’s assets to you without the grant of the Court, you will need to apply to the Supreme Court for letters of…

Transferring a Liquor Licence

Transferring a Liquor Licence If you are buying a business that trades with a liquor licence, then as part of the sale of business agreement, you will need to make an application to the Independent Liquor & Gaming  Authority (ILGA), the statutory decision-maker responsible for determining licensing matters…

HomeBuilder Announcement

As part of a further economic response to the coronavirus, this morning the Treasurer announced a new scheme called HomeBuilder that is designed to assist the residential building and construction industry by encouraging the commencement of new home builds and renovations this year. HomeBuilder will provide eligible owner-occupiers…

Don’t get caught out

For landlords, it might seem like a very simple distinction between what is a retail lease and what is a commercial lease. Most know that if the permitted use under the lease is one of those uses that are ‘prescribed’ under Schedule 1 of the Retail Leases Act…

Paying the Price for failing to confirm bank account details

Emails are not always a secure form of communication and are susceptible to being hacked. The recent case of Deligiannidou v Sundarjee [2020][1] illustrates the consequences of failing to take cyber threats seriously. A buyer entered into a contract to buy residential land. The purchase price was $560,000…

Informal Wills

Under section 6 of the Succession Act 2006 (NSW)(Act), a Will is not valid unless: It is in writing and signed by the testator (or by some other person in the presence of and at the direction of the testator); and The signature is made or acknowledged by…

Providing for your Pet in your Will

While there has been a re-think in recent times about the legal status of pets, domestic animals are still considered to be ‘property’ under Australian law. In fact, even the definition of ‘goods’ under the Competition and Consumer Act 2010 (Cth) includes animals. If you do not make…

Selling a strata scheme to a developer when there are dissenting lots owners

New strata laws came into effect on 30 November 2016 that amongst other things, established a process for the collective sale and renewal of a strata scheme. Almost three years later, the Land & Environment Court finally heard its first application under the 2016 strata scheme sale provisions.…

When a company fails to pay your debt

Previously, we discussed one possible debt recovery remedy against a company: serving that company with a statutory demand. Statutory demands are creatures of the Corporations Act 2001 (Act). If a statutory demand is served on a company, it has 21 days in which to either pay the debt,…

Tribunal determines what is fit for habitation

In our last article, we explored new changes to residential tenancy laws that will prescribe in detail when a premises is fit for habitation. While landlords have always been obligated to ensure their premises are fit for habitation, the Residential Tenancies Act (2010)(Act) does not define fit for…

Witnessing documents in NSW during COVID-19

The witnessing requirements in NSW have been relaxed due to the COVID-19 threat by virtue of a new regulation that amends the Electronic Transactions Regulation 2017 (Regulation). The Regulation came into effect on 22 April 2020. The new regime will be in force until they expire on 26…

Material Facts a Real Estate Agent Must Disclose to Potential Buyers

Under section 52(b) of the Property, Stock and Business Agents Act 2002 (NSW), a real estate agent must not induce another person to enter into a contract or arrangement by failing to disclose a material fact of a kind prescribed by the regulations (whether intended or not) that…

What to do when you want to sell, but your co-owner doesn’t

If you own property with one or more parties and are looking to sell, but your co-owner(s) is uncooperative and doesn’t want to sell, what can you do? In the absence of a co-ownership agreement prepared at the time the parties acquired the property (which sets out the…

New Mandatory Code of Conduct for Commercial Tenancies

On 7 April 2020, the National Cabinet announced a new mandatory Code of Conduct for commercial tenancies. The Code contains 14 good faith leasing principles that apply to small to medium sized enterprises with a turnover of $50M or less and that are eligible for the JobKeeper Payment…

National Electronic Conveyancing Law Update

On 19 March 2020, Australian Registrars National Electronic Conveyancing Council (ARNECC) released a statement concerning the face-to-face identity verification regime and signing of Client Authorisations as a result of the evolving COVID-19 outbreak situation. The statement emphasised particularly relevant sections of two of its published guidance notes. Guidance…

Relief against directors’ personal exposure in COVID-19 times

As part of the government’s economic response to COVID-19, the Corporations Act 2001 (Cth) (Act) has been amended so that subsection 588G(2) does not apply to a person in relation to a debt of a company if the debt is incurred in the 6 months from the date…

Relief against creditor action in COVID-19 times

If a company owes a debt to a creditor, then one option available to that creditor is to serve a statutory demand on the company. In ordinary circumstances, pre-COVID-19 times, a company would have 21 days from service of the statutory demand in which to either party the…

Force Majeure Clauses in Commercial Contracts

A contract by its very nature requires that the parties to the contract perform their obligations which they have expressly agreed to undertake. If a party fails to carry out or discharge its obligations under the contract (in the absence of any provision entitling that party to do…

Changes to residential tenancy laws

From 23 March 2020, new residential tenancy laws will come into effect. Currently, section 52(1) of the Residential Tenancies Act 2010 (NSW) (Act) provides that a landlord must provide the residential premises in a reasonable state of cleanliness and fit for habitation by the tenant. The Act does…

Changes to the Caravan Regulations as part of bush fire response and recovery efforts

Changes to the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (‘Caravan Regulations’) recently came into effect in response to the impact of the recent bush fires in NSW. There were also changes made to the Local Government (General) Regulation 2005 (‘General…

What is a major defect?

The Supreme Court recently considered the meaning of what is a “major defect” for the purposes of the Home Building Act 1989 (NSW)(Act). Stevenson v Ashton [2019][1] was an appeal from the NCAT Appeals Panel. A major defect in residential building work pursuant to section 18E(4) of the…

Changes to off-the-plan contract laws now in effect

From 1 December 2019, new laws to contracts for off the plan developments are now in effect. The changes introduce disclosure requirements on vendor developers so that there is greater transparency to buyers who are looking to buy off-the-plan. The changes apply only to contracts for the sale…

Dodgy Developer Database

The State government announced in late January that it would seek to introduce a new rating system which will rate so-called “dodgy developers”. The proposed ratings system will be based on a calculation of several factors including customer complaints, the length of time a developer has been in…

Landlords can’t claw back fit-out contributions from defaulting tenants

A recent decision in the Victorian Civil and Administrative Tribunal (VCAT) has cemented the position in Victoria and Queensland that landlords can’t claw back fit out contributions from tenants that have defaulted, even if there is an express provision in the lease that says a landlord can, where…

Which law applies?

When there is a dispute between which country’s inheritance law should apply, one must distinguish between movable and immovable property. Movables include chattels not attached to land and choses in action, such as bank accounts and debts owing to a person. Immovables are land and any interest in…

When does trust property vest in a bankrupt’s trustee?

Discretionary family trusts are common asset protection structures. Generally, when a debtor becomes bankrupt, the property of a bankrupt vests forthwith in the bankrupt’s trustee: section 58(1) of the Bankruptcy Act 1966 (Act). However, trust assets held by the bankrupt as trustee do not form part of the…

Stop Bullying Order

Bullied at work? If you believe you have been bullied at work, one option available to you is to apply to the Fair Work Commission for a “stop bullying” order. A copy of your application will be sent to your employer and to the person(s) you allege has…

Re Lapalme; Daley v Leeton [2019] VSC 534

Ms Lapalme made a Will in 2004.  In that Will, she left the residue of her estate to “those grandchildren as shall survive me and attain the age of 18 years as tenants in common in equal shares”.  At the date of her Will, she had only one…

What is a retail premises

Another Victorian Civil & Administrative Tribunal (Tribunal) decision was recently handed down that widens the scope of what is a ‘retail premises’ under the Victorian Retail Leases Act 2003. In NSW, the definition of a retail premises is limited to those premises that “are used, or proposed to…

Nguyen v Nguyen [2019] NSWSC 131

This recent case is just one in a long line of many where it is essential that the parties put their intentions and obligations down in writing prior to purchasing property. Two siblings verbally agreed to buy a residential investment property in Terrigal in 2001 for a purchase…

Henley v Bone [2019] NSWSC 254

Following on from Nguyen v Nguyen, the Court had to revisit a situation between two family members where there was no agreement in writing as to who the beneficial owner of a property was or if there was more than one beneficial owner, their relevant shares in the…

A Timely Reminder About Statutory Demands

If your company has been served with a statutory demand, this should not be taken lightly. It would be a mistake to confuse this demand, which is a creature of the Corporations Act 2001 (Act) with a letter of demand – simply a letter from a creditor “demanding”…

Removing an executor

In Stegnjaic v Stegnjaic [2019][1], the late Mr Stevan Stegnjaic died on 23 October 2016. Mr Milorad Stegnjaic was appointed the sole executor of his late father’s estate. Probate of his late father’s Will was granted to him. The deceased had one other child, namely Mr Sinisa Stegnjaic,…

Failed Debt Recovery Action by Council

In Brisbane City Council v Amos [2019][1], the High Court had to consider two overlapping limitation provisions under the Limitation of Actions Act 1974 (Qld) (Act). The Brisbane City Council brought an action to recover unpaid rates and charges levied between April 1999 and January 2012. The High…

Substantial Damage to Land after Exchange

With bushfires continuing to burn on an unprecedented scale in NSW, it is topical to discuss what happens in a situation where a home has been destroyed by fire and the owner of that home has exchanged contracts to sell it. In NSW, the general rule is that…

Benjamin Order to Distribute an Intestate Estate

In NSW Trustee and Guardian; re estate of Cooper [2018] NSWSC 1020, the NSW Trustee & Guardian (TAG) applied to the Court, as administrator of the estate, for orders permitting the distribution of the deceased estate to the Crown. The order sought is known as a Benjamin order.…

Is an Attorney Entitled to the Principal’s Will?

The short answer to this question is ‘no’ unless there is an express direction from the attorney within the power of attorney document itself that the attorney is entitled to access the principal’s will. Otherwise, simply, in New South Wales at least, there is no legal basis for…

ASIC v Westpac: Tearing Strips (of Wagyu) off the Watchdog

“I may eat Wagyu beef everyday washed down with the finest shiraz but, if I really want my new home, I can make do on much more modest fare”.Here! Here! Justice Perram.The Federal Court judge handed down his judgment in Australian Securities and Investments Commission v Westpac Banking…

Landlord Just Blowing Hot Air

One of the most contentious issues in any commercial lease is about each party’s obligations about the air conditioning services. A dispute between a commercial tenant and landlord over the air conditioning made its way to the Victorian Civil and Administrative Tribunal (Tribunal) late last year. The tenant…

Priority Notices: Pros and Cons

Priority notices were introduced as part of the electronic conveyancing process in 2016. What are priority notices? Priority notices are forms of land dealings that are registered on title and temporarily act as a caveat would: they put third parties on notice that the priority notice holder intends…

Finders, Keepers, Losers, Weepers

It made headlines in November last year – a Sydney developer that exercised “squatters rights” to claim title to a house valued at $1.7M by simply moving in to an unoccupied Ashbury house and renting it out. The house at 6 Malleny Street was originally purchased by Mr…

Franchising Code of Conduct – Part 2

We recently discussed the obligation on the parties to a franchise agreement to act in good faith that is enshrined in the Franchising Code of Conduct and the timing requirements of providing your franchisee with a disclosure statement.But what must be included in the Disclosure Statement?The prescribed form…

Key Changes to the Retail Leases Act 1994

A number of amendments were made to the Retail Leases Act 1994 by the Retail Leases Amendment (Review) Act 2017. No minimum Term The provision mandating a five year minimum term was removed. This means that there is no longer a need for a solicitor’s certificate for leases…

Franchising Code of Conduct – Part 1

The Franchising Code of Conduct is set out in Schedule 1 of the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 (Code).The Code regulates the conduct of parties (or prospective parties) to a franchise agreement. Obligation to Act in Good Faith The Code introduces a positive obligation…

Owners Corporation barking mad for banning dogs from common property

Earlier this year, the NSW Civil and Administrative Tribunal handed down a decision in Yardy v Owners Corporation SP 57237 [2018] NSWCATCD 19. The Tribunal decided that the owner of a lot was allowed to keep his small Maltese cross terrier, called Baxter, on the lot owned by…

Sale by Public Auction

Buying a property at auction is different to buying a property by way of private treaty.The bidding process is public and once the metaphorical hammer falls at the auction, if you are the highest bidder, you are required to proceed to sign a Contract for Sale. The auctioneer…

New Laws affecting off the plan residential contracts

Amendments to the Conveyancing Act 1919 were passed by the NSW Parliament on 13 November 2018 that impose further obligations on developers.The changes affect disclosure, the statutory cooling-off period and rescission of the contract, amongst other things. Disclosure Statement It will be an offence to offer residential property…

Buyer (and their Lawyers) Beware: The new tax collectors

New GST legislation will take effect from 1 July 2018 that will affect developers and purchasers of new residential land and their respective legal advisors. The Treasury Laws Amendment (2018 Measures No. 1) Bill 2018 was passed and assented to on 29 March 2018. Amendments were made to…

Why choose a lawyer over a conveyancer?

Australians have a love affair with real estate. When you are undertaking one of the biggest financial commitments of your life, you will inevitably have to elect between a lawyer or a conveyancer to act on your conveyance. But what is the difference between a lawyer and conveyancer?…