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Christian Porter | Populist Opinion v Procedural Fairness & Justice

 

Popular Opinion

  1. Where there is smoke there is fire [2020 Four Corners Program as to recent and historical inappropriate behaviour of Christian Porter] as well as the more recent allegations of sexual assault dating back to 1988 [33 years ago].
  2. Irrespective of Police confirmation of its own legal advice that there is insufficient admissible evidence to commence a criminal prosecution for sexual assault against Porter, there should be a Public [Executive] Inquiry, at least as to whether Porter is a fit and proper person to hold the office of the first law officer of Australia.
  3. It would seem most people don’t need an Inquiry as they have already determined Porter is not a fit and proper person to hold the office of Commonwealth A-G.

Procedural Fairness and Justice

  1. I agree with the former Solicitor-General, Justin Gleeson that:
  • There must be credible evidence before the Prime Minister calls for any Inquiry;
  • Whether credible evidence exists should not be determined by the PM or his office but at arms-length, in this case by the second law officer of Australia, the Solicitor General.
  • In the event that the Solicitor General determines there is not or not sufficient credible evidence to hold an Inquiry, that should be the end of the matter and the PM should strongly resist populist calls for an Inquiry;
  • In the event that the Solicitor General determines there is credible evidence to be placed before the Inquiry, not going to the innocence or guilt of Porter relating to the sexual assault allegations, but rather, as to whether he is a fit and proper person to hold office; then the PM should EITHER direct such an Inquiry or give detailed reasons why he will not; and in the event of the latter, people can assess for themselves the PM’s explanation, if any

2. No doubt, in determining whether there was credible evidence, the Solicitor General would consider many areas including:

  • The weight, if any, to be given to any signed statement of the woman to her lawyers;
  • The weight, if any, to be given to the hearsay statements made by the woman to her friends;
  • The mental health issues of the woman, such as her Bi-Polar, suicide attempts and mental health hospitalisations, but only to the extent if at all, any of these things could adversely impact upon the credibility of anything said in any signed statement of the woman;
  • Any other matter that may impact upon the credibility of anything said in any signed statement of the woman.

Are there Precedents for an Inquiry?

Yes, there are. There is a 1904 High Court case that arguably supports those promoting a Public  Inquiry into Christian Porter.

The most recent case being the former Justice of the High Court and controversial former Labor Attorney General Lionel Murphy. Murphy was acquitted in a criminal trial relating to allegations of corruption whilst he was A-G. However, whilst he was still a serving Judge of the High Court, the then A-G directed that an Inquiry be held into his fitness to return to the High Court as a Justice and that Inquiry was to be headed by 3 retired Judges.

As it turned out, the Inquiry into Murphy’s fitness was abandoned due to his terminal illness, from which he shortly thereafter, died.

Conflation of Issues

Unsurprisingly, much of the social platform commentary and mainstream media has conflated important but distinct issues, which has led to poor and at times, illogical reasoning, however, populist.

Just consider these areas:

  • Presumption of innocence
  • Distinction between admissible and ‘other’ evidence – in a criminal trial
  • Fitness to be the first law officer in Australia
  • An Inquiry – into what?
  • Assuming determination by Solicitor General of there being credible evidence going to the fitness of Porter to hold office and that the PM directed an Inquiry – would that be setting a dangerous or other precedent?
  • Workplace sexual harassment and/or inappropriate workplace conduct
  • A. Coronial Inquest

Presumption of innocence

We have all heard even the most experienced media commentators say something like: “Of course there is the presumption of innocence but……….”.

There is no ‘but’. Either there is a presumption or there isn’t. Either those words mean what they mean, or they don’t. The current position is that, in terms of any alleged criminal conduct [by whomever it is alleged], Porter stands innocent, end of story!

Commentators frequently go on to speak about his fitness to hold office in the same breath as discussing the criminal allegations and the presumption of innocence. They must be kept and/or discussed separately, failing which leads to confusion.

So, let’s move away from any concept of criminal guilt in relation to the 1988 sexual assault allegations because as things stand, they will never be tested in a criminal court and non-one will ever know whether there was or wasn’t a sexual assault [except for Porter and the woman].

Why is there no Admissible Evidence & what Does this Mean?

Again, this topic is only relevant to a criminal charge or to the consideration of whether there is or should be a case for Porter to answer in a criminal context.

The common social and media commentary is that Police closed the investigation and determined not to lay any criminal charges against Porter because the unidentified woman is deceased. That is simplistic and misleading.

Before Police lay a charge of sexual assault, there needs to be an allegation by the complainant that is either in writing and signed or recorded in an interview with Police. It is not enough that the complainant may have made a statement to her lawyers or of her own accord at some other time, regardless whether that statement is signed or not. The statement on which Police commonly rely must be taken by Police and contain certain content to make that statement admissible in court.

In the Porter case, as I understand it Police did not take any signed statement from the woman. The woman did not participate in any recorded interview with Police. Clearly, there is no significant admissible evidence from the woman herself [to Police] as against Porter.

Had there been a signed statement to police or a recorded interview by the woman, then, notwithstanding her death, it is possible and I put it no higher than that, possible that her statement to police or recorded interview could have been used as a basis to lay criminal charges against Porter. That said, a prima facie case against Porter may have been established but the prospects of a conviction at trial would in my view, have been remote.

It doesn’t stop there because a day or so prior to the woman taking her own life she communicated with Police that she did not want to proceed with her complaint. Of course, that is the prerogative of each and every alleged complainant. That is not to say that the woman withdrew the allegations and she did not tell Police that the allegations were false or incorrect.

So, not only is there not any admissible evidence against Porter [from the woman at least], she told Police she didn’t want to proceed with her complaint. The woman’s reasons as to not wanting to proceed are unknown and all the commentary in that regard is hugely speculative. Such speculation adds nothing and detracts from the debate.

However, the Police didn’t make the call themselves and sought legal advice from the DPP, who I interpolate, advised Police there were no reasonable prospects of success, in the event that any criminal charges were laid against Porter.

Fitness to be the First Law Officer

It is a given that the first law officer, the Commonwealth A-G should be a fit and proper person to hold that office.

If credible evidence exists that Porter is not a fit and proper person then in my view, that evidence can and should be placed before any Inquiry to determine his fitness.

As I have said, in that event, the PM should direct an Inquiry, however, if there is no credible evidence [to be determined by the Solicitor General], that should put an end to the calls for an Inquiry.

An Inquiry – into what?

Again, there has been much confusion as to what sought of Inquiry, if any should be called by the PM.

Let’s understand that, as to criminal proceedings for sexual assault, as things stand, there is just no basis for any such Inquiry. Police have carefully considered the position and obtained advise from the DPP and that should be the end of the matter.

So there is no basis in law, to hold a Public [or executive] Inquiry as to whether there was or was not a sexual assault or whether criminal charges should be laid against Porter.

However, as I have already said, there is established principle to hold an Inquiry as to the fitness of Porter to continue to be the first law officer of Australia, provided that, there is credible evidence to support such an Inquiry.

Would an Inquiry set a Dangerous Precedent?

I have already explained that there are precedents for an Inquiry in the fitness of Porter to continue to hold his office.

I would add that, in professional life it is not only the A-G and Ministers and Parliamentarians who are required to be fit and proper persons to hold their jobs. Many other professionals, doctors and lawyers for example, are required to be fit and proper persons to practise their respective professions.

Just as I am advocating here, if there is credible evidence that an person in any profession is not fit and proper to practise their profession, then I would have no difficulty with that evidence being put before the regulatory body [in respect of doctors and lawyers for example] to determine the issue.

In that sense, if there was an Executive Inquiry into Porter’s fitness to hold office, Porter would not be treated any differently to anyone else who has the onus to demonstrate that he or she is a fit and proper person to practise their profession.

It follows that, in my view, no dangerous precedent would be set by holding the Inquiry, in the event that there was credible evidence to support it.

Workplace Sexual Harassment or other Alleged Breaches

Many social and media commentators refer to last years Four Corners program relating to alleged inappropriate behaviour on the part of Porter and either expressly or inferentially, suggest that [alleged] behaviour either by itself or in combination with the sexual assault allegations should justify an Inquiry into Porter’s fitness to hold office.

However, workplace legislation already enables an investigation into such inappropriate behaviour on the part of Porter. So, if any former staffers of Porter have made or do make complaint, there is a readymade process by which that/those complaints can be investigated. Indeed, any adverse findings could directly impact upon Porter’s fitness to hold office.

One would think that any finding that Porter sexually harassed or behaved sexually inappropriately toward a former staffer or staffers would strongly suggest he was not a fit and proper person to hold the office of A-G.

That said, I am not aware of any actual complaint by any former staffer of Porter.

S.A. Coronial Inquest

The S.A. Inquest is for one purpose and one purpose only. That is, to determine the cause of death of the woman. Put another way, to determine whether her death was by suicide or some nefarious or innocent cause.

The outcome of that Inquest may lead to there being credible evidence that does not now exist or that is not now known, which evidence may [or may not] lend sufficient weight to calls for an Inquiry into Porter’s fitness to hold office. We will all have to wait and see.

To briefly hypothesise, if the Coroner found that the woman took her own life, it is likely that would put an end to endless speculation and conspiracy theories as to the woman having met her death by nefarious means. On the other hand, if the Coroner found that the woman’s death was not by suicide but by person or person’s unknown, such a finding would likely feed the speculation and conspiracy theories.

Where that would then lead us is too speculative as it would entirely depend on the actual evidence given in the Inquest.

Defamation Action

It has been widely reported that Porter has commenced proceedings for defamation against an ABC journalist and the ABC relating to the Four Corners program containing the allegations that he had sexually assaulted the woman in 1988 and particularly, that he was named in that program.

Although, there are suggestions in social media that the defamation proceedings are a tactic to ‘gag’ the media, the fact of the matter remains that Porter is entitled to follow whatever legal advice he has been given. It should also be noted that reportedly, Porter has said he will give evidence as to his denials relating to the allegations in the defamation proceedings.

We will all have to wait and see the outcome of the defamation proceedings.

Criminalisation of coercive control

This is a hot topic at present and rightly so. There needs to be and should be significant community discussion and education to do the subject justice.

Is coercive control a form of domestic violence or abuse and should it be criminalised?

The overwhelming answer is Yes!

It is for that reason that the NSW Government is looking to join the only other state in Australia, namely, Tasmania, to criminalise coercive control. The NSW Law Society has this week endorsed the Berejiklian Government in calling for its criminalisation.

What is Coercive Control?

Coercive control is a type of domestic violence that manifests in psychological abuse via a pattern of acts: threats, manipulation, surveillance, isolation from friends and family, restricting access to finances and rigid rules with harsh consequences are common examples. It is a crime in some countries including the UK, France, and Ireland. 

A long-time victim of coercive control, Belinda, said this:

It is the starting point of violence. It is horrendous to experience and if we put perpetrators away before it escalates, we are likely to save more lives.”

An examination of recent domestic violence deaths will reveal that before being killed at the hands of their current or former partners, most of NSW’s recent domestic violence murder victims suffered through severe episodes of psychological and emotional abuse.

Examples of coercive control include cutting off access to money, installing surveillance devices in the home or on a phone, isolating from family and friends, threatening to withdraw support for a visa or to kill a pet – can destroy a woman who will never experience a physical assault. But many do not recognise themselves as victims.

The NSW Domestic Violence Death Review Team’s most recent report, investigating murders between 2017 and 2019, found 77 of the 78 perpetrators used coercive control on their partner before killing them. This follows earlier research from the NSW Bureau of Crime Statistics and Research in 2016 that found women who experienced emotional abuse were 20 times more likely to subsequently suffer from physical violence.

The murder of Brisbane woman Hannah Clarke and her children in February 2020 by her ex-husband, following years of control and psychological abuse, catapulted the issue to national attention with calls for urgent law reform.

In February 2020, Brisbane woman Hannah Clarke and her three children were murdered by her ex-husband, the children’s father, in a sickening crime that followed years of psychological control. Hannah’s family told media they had not seen the warning signs of abuse “for a long time” and that Hannah herself had questioned whether the relationship was abusive because she had not been physically assaulted.

“Not all domestic abuse is physical,” Hannah’s brother Nathaniel told Channel Nine.

Years before Hannah’s case horrified the nation, the 2011 murder of Lisa Harnum, thrown from a high-rise balcony in Sydney’s CBD by her fiancé Simon Gittany, was one of the first high-profile cases of domestic abuse that had not been preceded by physical assaults, but rather around-the-clock surveillance and control on her movements, employment, outfits and choice of friends.

Conclusion

Lawmakers must be careful to draw a line between criminal behaviour and a relationship that may be dysfunctional, but not necessarily coercive.

There is also a risk of criminalising people with alcohol, drug issues, mental health issues – the vulnerable and disadvantaged who may not fit into the norms of relationships held by others. The offence needs to capture the persistent nature of the offending, intentionally and persistently … specific intent is a very important safeguard against capturing those who may otherwise be innocently caught up in well intended legislation.

So, subject to these minor qualifications, I’m all for it – let’s get it done!

If you or someone you know needs advice surrounding the proposed criminalisation of coercive control please contact one of our criminal lawyers for a free, no obligation consultation or call 4324 5688

covid-19

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”. It is apparent from these statements that the government intends to leave it to employers to sort through the hot mess of whether employers can enforce a ‘no jab, no job’ policy.

Can an employer direct an employee to get the coronavirus vaccine and if the employee refuses, can their employment be terminated?

The Fair Work Commission has already recently considered an employer’s mandatory vaccination policy in relation to the influenza vaccine where a child care worker was dismissed because she did not comply with a direction to be vaccinated and she did not have a medical condition or medical grounds to refuse the vaccination[1]. The test appears to be whether in the context of an employer’s operation, the direction to employees to get vaccinated is lawful and reasonable and further whether the policy is necessary for the employer to discharge its duty of care with respect to persons in its care.

A refusal to follow a lawful and reasonable direction can amount to a valid reason for termination. However, if the direction is not reasonable, then employers open themselves up to an unfair dismissal claim.

What is reasonable will depend on the circumstances. What is reasonable in an aged care, hospital or child-care setting will be different to what is reasonable in an office or on a building and construction site.

The issue is an issue of health and safety. A direction to be vaccinated is more likely to be lawful and reasonable for businesses that are considered ‘high risk’ or susceptible to an infection outbreak. This would include places of employment such as hospitals, nursing homes, schools and child-care centres where the children are too young to be vaccinated themselves and rely on ‘herd immunity’.

Employers considering implementing a ‘no jab, no job’ policy should consider whether the policy is necessary for employees to comply with the inherent requirements of the job (for instance, to care for children, the elderly or the sick) and if an employee does refuse to be vaccinated, can reasonable adjustments be made to accommodate the employee’s refusal (for instance face masks and social distancing) and whether medical grounds will form an exception to the policy.

Contact Conditsis Lawyers today for answers to all your employment questions.

[1] Arnold v Goodstart Early Learning (U2020/11961) 18 November 2020

Who gets the right of representation in a deceased estate when the executor dies?

Sometimes after a grant of probate has issued to the executor of a deceased estate but before the assets of the estate have been administered, the executor(s) appointed by the will-maker passes away themselves.

In those circumstances, there is no person appointed with the authority to deal with the deceased’s assets or with title to the deceased’s assets.

What happens then?

It is the executor of the last surviving executor of the first estate who is automatically the executor of the first estate “by right of representation” as soon as he or she obtains a grant of probate of the Will of the last surviving executor. The chain of representation is broken if that deceased executor leaves no Will or leaves a Will but the Will fails to appoint an executor or if probate of the Will is not obtained. In any of these circumstances, then a further grant will be required to complete the administration of the first estate. The applicant with the best standing to do this is usually the beneficiary under the Will of the first estate that is entitled to the greatest share of the estate or in the alternative, all the beneficiaries of the first estate.  

On a related note, sometimes an executor doesn’t pass away but is too mentally incapacitated to discharge their duties as an executor. By the time the executor is required to discharge their duties, they may be frail or elderly. If there is no substitute executor appointed by the Will, then an application will need to be made to the Court for an administrator to be appointed with the will “annexed” to the grant.

A take-away message from this is that you should consider appointing a substitute executor in the event the first “instituted” executor either passes away or is unable (or unwilling) to act and secondly, you should review your Will regularly and in light of your executor’s circumstances.

Contact Conditsis Lawyers today for a review of your Will.

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 to the adoptive parent, or adoptive parents, as a child born to the adoptive parent or adoptive parents,
  • the adoptive parent or adoptive parents have the same parental responsibility as the parent or parents of a child born to the adoptive parent or adoptive parents,
  • the adopted child is regarded in law as the child of the adoptive parent or adoptive parents and the adoptive parent or adoptive parents are regarded in law as the parents of the adopted child,
  • the adopted child ceases to be regarded in law as the child of the birth parents and the birth parents cease to be regarded in law as the parents of the adopted child.

For the purposes of a distribution of a deceased estate on intestacy and in keeping with the general effect of adoption orders set out in the Adoption Act 2000 (NSW), an adopted child is regarded as a child of the adoptive parent pursuant to section 109 of the Succession Act 2006 (NSW). The adopted child’s family relationships are to be determined accordingly.

For the purposes of interpreting a will-maker’s Will, if the testator provides that a legacy is to vest in their child or children without expressly identifying that child or children by name, then any adopted child or children the testator may have is to share in that legacy.  

It is important to note that step-children are not included in the reference to a ‘child’ in succession legislation.

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 holiday accommodation in hotels, motels and caravan parks to a range of residential premises including free-standing dwellings and apartment buildings in urban and regional centres.

While the economic benefits to homeowners are obvious, there are also impacts to the amenity of neighbourhoods. It is with this in mind, that a new Code of Conduct (Code) for short-term rental accommodation started on 18 December 2020.

A short-term rental accommodation arrangement includes a commercial arrangement for giving a person the right to occupy residential premises for a period of not more than 3 months at any one time[1].

The Code sets out minimum standards of behaviour and requirements for five categories of ‘participants’. The industry participants are taken to include online booking platforms, hosts, guests, letting agents and a person who in trade or commerce ‘facilitates’ short-term rental accommodation arrangements.

While a breach of the Code carries financial penalties, the Code also creates new disciplinary actions that the NSW Commissioner of Fair Trading can take including listing non-compliant participants on an exclusion register. The exclusion register will be a publicly accessible register that is updated in real time to the extent possible. The exclusion register will record a guest that has had two strikes recorded against them in a two year period or a host that has had two strikes recorded against them in a two year period and the Commissioner considers it appropriate that the host be excluded in relation to a premises or any premises. A ‘strike’ is defined in the Code to mean a record of contravention of the Code made against a host, guest or premises with respect to a host and identified as a strike. A record on the exclusion register will remain for five years.

[1] Section 54A Fair Trading Act 1987

Do you have teenage children? You need to read this!

Did you know that it is a criminal offence to have consensual sex or any form of consensual sexual touching when one or both are under the age of 16 years?

  • Example 1: the boy is 16 ½ and the girl is 15 ½ – it is a criminal offence
  • Example 2: the girl is 16 ½ and the boy is 15 ½ – it is a criminal offence
  • Example 3: one is an adult and the other is under 16 years – it is a criminal offence
  • Example 4: both are under 16 years – it is a criminal offence

In this article I will deal with examples 1, 2 and 4 because they relate to ‘Young Persons’ in the Children’s Court, due to them being under 18 years of age.

In December 2018 a new law was introduced in NSW called ‘the similar age defence’. Essentially, provided the alleged ‘victim’ is at least 14 years old, if the ‘other’ teenager is within two years of the age of the victim that other teenager can rely on the ‘similar age defence’ and the prosecution would have to prove one of the following to convict that other:

  1. That the alleged victim was under 14 years of age; or
  2. That the age difference was more than two years.

Victoria, Tasmania, Western Australia and the Australian Capital Territory all have what is referred to as the “similar age” defence.

Prior to the introduction of that law, if both teenagers were under 16 years of age and engaged in consensual sex, it was likely that the boy would be charged with a criminal offence, even if the boy was younger than the girl. Fortunately, the new law has changed things in that regard.

However, every parent should be aware that where their teenager is say 16 ½ years old and he/she has ‘sex’ with another teenager who is say, 14 years old, then clearly, as the age difference is more than two years, the 16 ½ years old will have committed a criminal offence.

Should consensual sex between teenagers be a criminal offence?

Many would say consensual sex between young teenagers, who are more likely than not, exploring their sexuality, should never amount to a criminal offence. Who is to say that the two years age will prevent any unfairness? What if, for example, the boy is 16 ½ years old and the girl a touch under 14 ½ years old but there is evidence to establish the girl was more emotionally mature than the boy, whether due to a cognitive impairment of the boy or not?

Food for Thought

An authority on what is just and reasonable (in context) may be gleaned, from the South African case of Teddy Bear Clinic for Abused Children v Minister for Justice and Constitutional Development [2013], where the Constitutional Court found that laws criminalising consensual sex between young people were unreasonable, and consequently, were unconstitutional; the Court held the laws unjustifiably violate the dignity and privacy of young people and are not in the best interests of the child (under the South African Constitution any limitation on these must be reasonable).

What are the consequences?

As a parent, you should be aware that any conviction for such an offence could result in your daughter or son being required to be listed on the Child Protection Register for a period of about 7 years or so, which involves a lot of restrictions and creates many obligations. Not to mention the potential impact on employment in the event of a finding of guilt.

If you require legal advice or representation in any legal matter, contact the team at Conditsis lawyers. We offer a free first consultation to review your case.

Don’t get sued for Christmas

As the relaxing of social distancing restrictions are coinciding with many workplaces holding their Christmas parties, it is timely to remind employers about their legal obligations to staff, to provide a safe environment at the Christmas party – as well as help employers manage their exposure to claims during the Christmas period.

Although Christmas is a great opportunity for staff to relax after a big year, and for employers to show genuine appreciation for their hard work, the combination of being dressed up and out of the work environment (and, let’s be honest, free drinks) often results in Christmas parties full of inappropriate behaviour from staff and managers alike.

Despite Christmas parties usually being held off site, employers can be held liable for the behaviour of staff during the party. Such behaviour can result in an employer spending time and money investigating a claim, hiring external investigators, defending time consuming and costly litigation, the involvement of insurance companies and the financial and cultural losses incurred from a drop in staff engagement and well-being.

Accordingly, at Conditsis Lawyers, we strongly recommend that employers take some simple actions to ensure firstly – that no claims are made after their Christmas party, and secondly – if a claim is made, they have taken all reasonable steps to ensure they are not held liable.

With that in mind, here is some practical Christmas advice when planning the all-important end of year event:

C – Create a policy! The easiest and most effective way of making sure employees understand their rights and obligations at social events is to ensure you have an informative, easy to read and, most importantly, accurate and up to date Workplace Function Policy in place. And, while we’re on policies, don’t stop at one. Ensure your Drug and Alcohol, Bullying, Harassment and Discrimination, WHS, Grievance Procedure policies and Code of Conduct are watertight. (When in doubt, ask a lawyer).

H – Help staff understand your policies. All new staff should be provided with a suite of company policies at onboarding. A HR representative, or Supervisor should be well versed in the policies and able to answer questions on them.

R – Reminders. There’s no point drafting, or paying for great workplace policies, if they are hidden in a drawer. Remind employees of their obligations to both be aware of, and follow all workplace policies. Pin them to staff noticeboards. Send an email to staff in the lead up to the Christmas party, reminding them that they are still covered by the policy and about your expectations of appropriate behaviour. Use clear examples of inappropriate behaviour: “just because a female is nice to you, it doesn’t mean she wants to kiss you”.

I-  Internet parties are still workplace events! Even if your Christmas party is a zoom meet up, inappropriate behaviour can occur (just google it). Be careful not to let the shield of the internet cause employees to forget their obligations.

S- Safety first. Are your employees working the next day? Think about their duties, for example, are they on a construction site, or required to drive as part of their role? If so, do not serve alcohol – remember, blood alcohol readings can be over the limit the morning after.

T-  Taxi, anyone? Consider providing access to taxis or a shuttle bus as a way for intoxicated employees to get home.

M- Munchies.Provide sufficient food available to absorb all that eggnog.

A-  Alcohol – If you’re providing free drinks, ensure your party is held at a venue where responsible service of alcohol requirements are followed. If it’s more of an after-work-beers-and-chips-in-the-boardroom situation, make sure water is available.

S-  Set an example. Remember, your employees look to you for clues on how to behave. Be the leader you want them to follow.

Hung Juries in Sexual Assault Trials

What does a hung Jury mean?

In Australia, for an accused to either be found guilty or not guilty of a crime in a jury trial, the starting point is that the jury decision must be unanimous. However, after jury deliberations of about 8 hours or so, the judge will usually direct the jury that a majority verdict of 11:1 will be received.

After further deliberation by the jury, if the jury has not reached a majority verdict, the judge will question the foreperson on the jury as to whether, if more time was given, it is reasonably possible that jury will reach a majority verdict. If the answer to that enquiry is no, then likely, the judge will discharge the jury on the basis they could not reach a verdict, unanimously or by majority. The result is what is called a ‘hung jury’.

Hung juries are not at all uncommon and it is nothing to worry about, perhaps unless you are the complainant or the accused and there is a retrial.

Sometimes, following a hung jury result, the accused’s lawyers will make what is called a No Bill application to the DPP, making submissions that there should not be a retrial due to various perceived weaknesses in the prosecution case. However, the usual practise of the state and Commonwealth DPP is that they will retry a matter at least a second time following a hung jury. In years passed it was not uncommon for there to be two or three retrials following hung juries before the DPP would pull the pin.

Does a hung jury mean the trial failed?

Not at all. Indeed, it demonstrates that the criminal justice system works as it was intended. That is because, the criminal law provides for the presumption of innocence for any person accused of having committed a crime and it follows that, the accused does not have to prove his or her innocence, but rather, the prosecution must prove the guilt of the accused beyond reasonable doubt. Juries are told that they must be satisfied of the guilt beyond any reasonable doubt.

Juries are commonly told that suspicion alone, even high suspicion, is not enough, because the threshold is ‘beyond any reasonable doubt’. So, the bar is high but you may think that is as it should be to be convicted of a criminal offence, the consequences of which, often include a lengthy period of imprisonment.

Bearing in mind the high standard of proof and that in sex trials it often comes down to the word of the complainant against the word of the accused, it is not surprising that, after hearing all the evidence, the jury cannot unanimously or by majority verdict of 11:1 agree on a verdict. That doesn’t mean that the collective jury believe that the complainant or the accused is lying. Not at all.

The logical outcomes as to why a jury may be ‘hung’ include:

  • Some jurors, but less than an 11:1 majority may have difficulty in determining who is telling the truth, therefore they are undecided and will remain so, meaning they cannot be satisfied about the guilt of the accused beyond reasonable doubt, but other jurors are satisfied beyond reasonable doubt that the accused is guilty; and
  • Some jurors may strongly be in favour of the complainant and are satisfied beyond reasonable doubt that the accused is guilty; but other jurors are strongly in favour of the accused and believing the accused is not guilty.

In the past, where there has been evidence of a complainant who was flirting with the accused or even being ‘open’ to sex at a later time, criminal lawyers would likely have categorised the prosecution case as problematic. However, in 2020, the community and jurors generally, have come a long way and accept that a yes or a potential yes by a complainant in the past does not mean yes at the time that the sex occurred.

So, although there have been a couple of recent, high profile sexual assault trials that resulted in hung juries, don’t despair, our criminal justice system is working as it should be.

New domestic violence laws bad news for unrepresented defendants

A new law recently passed by the NSW parliament is going to make it even more difficult for defendants who cannot afford a lawyer to defend themselves.

The law is part of a suite of reforms aimed at making it easier for complainants (alleged victims) in domestic violence (DV) cases to give evidence in a court case. It will prohibit an accused person from directly cross examining (questioning) the complainant as part of their defence. Instead, the court will need to appoint a person or use technology (such as text to voice applications) to read out questions for the complainant as the accused writes or types them out.

On the surface, this seems like a sensible reform. It means that a complainant will not have to be confronted directly by their alleged abuser in court. Unfortunately, as is all too often the case, the right of an accused to a fair trial has once again taken a back seat.

Cross-examination is the main, and sometimes only, way that the evidence of a witness in a court case can be tested. Effective cross examination is not just about what you ask the witness, but also how you ask it. Tone and tempo are very important. By interrupting the flow of cross examination by the need to write down or type the next question to be put to the complainant, much of the effectiveness of cross examination will be lost. Even more will be lost by the questions being spoken by a computer or a disinterested human intermediary, without the right tone, intonation and cadence. The result will be that an accused who will be forced to conduct cross examination in this way will be at a huge disadvantage.

What is most galling about this reform is that it will disproportionately effect socio-economically disadvantaged defendants who cannot afford a lawyer to represent them, while Cashed-up defendants who retain a competent lawyer to cross examine their accusers for them will not be affected by the new law. To add insult to injury, this new regime is being introduced in the context of cuts to legal aid in recent times, which mean that fewer and fewer people have access to a free legal aid lawyer. So, in the end, the government is making it harder for those accused of DV offences to defend themselves without a lawyer while at the same time strangling their access to legal representation.

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 probate should not continue for some other reason, then any challenge should be made before probate is granted and before the executor has dealt with the assets of the estate.

Some circumstances where interested persons may seek to challenge a Will include where:

  • The Will is not the last Will of the deceased;
  • The testator lacked testamentary capacity at the time the Will was made;
  • The testator lacked knowledge and approval of the Will;
  • The Will is a forgery, was made under undue influence or pressure, or is fraudulent;
  • The Will is not executed in accordance with the Succession Act 2006 (NSW); or
  • The testator revoked the will in his or her lifetime.

If you are concerned about a pending or current application for probate in a particular estate, you may, provided you have a legitimate interest (for example, you are the executor or beneficiary under a different Will which you claim is the last valid Will of the deceased) file a caveat which prevents a grant being made until the caveat lapses or is withdrawn.

(Creditors of the deceased and family provision claimants are not interested persons for the purpose of contested probate proceedings).

The applicant for probate may file a notice of motion for the caveat to cease to be in force if they believe that the caveator does not have a legitimate interest in the proceedings.

If the dispute can’t be resolved amicably, then you may file an appearance which will result in you being joined as a defendant in contested proceedings. The matter will then be directed to proceed by way of pleadings (statement of clam).

For assistance please contact Senior Associate Solicitor Elisha Edwin

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):

  • For an amount of up to A$100,000; or
  • That are ordinarily acquired for personal, domestic or household use; or
  • That are vehicles or trailers used mainly to transport goods on public roads.

The monetary threshold, currently A$40,000 has been increased to A$100,000. This potentially broadens what goods and services may be caught by the consumer protections under the ACL from next year. The change will not apply retrospectively. It will apply only to purchases made after the proposal is implemented.

The changes to the ACL come after a review of the ACL by Consumer Affairs Australia and New Zealand.

The change to the monetary threshold broadly reflects the effects of inflation since the $40,000 was set (when the ACL commenced operation on 1 January 2011).

The changes will also apply to ASIC Regulations that contain mirror provisions concerning financial products and services.

Businesses may face additional costs in cases where they are required to provide remedies for faulty goods or services that they would not otherwise have needed to provide under a lower threshold or voluntary store return or replacement policy.

A benefit to consumers is that it will capture ordinary consumer purchases of commercial products above the current $40,000 threshold, such as for example commercial glass for installation in a home.

Businesses should ensure that their terms and conditions are updated in line with the changes from 1 July 2021 and that staff are properly trained to understand the relevant ACL protections. The changes may also mean new record keeping processes to track sales and identify consumer contracts are implemented and that your business budget is set at a level that can satisfy claims for repairs, refunds or replacements.

NSW Stamp Duty

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 anyone saving for their first home or wanting to upgrade. It is a transaction-based tax paid on the transfer of land by the purchaser and levied on the sale price, which comprises the value of the land and buildings on the property.

Sydney’s current median property price is $1.15M. Currently, stamp duty on a $.15M purchase is a one-off up-front lump sum amount of $48,500. If implemented, the changes would allow a buyer to ‘opt-in’ to a new scheme where buyers would not have to pay anything up-front.

Once a property has been traded under the new scheme it would remain annually taxed for subsequent owners. Existing home-owners will not be affected until they buy another property.

It is proposed that the new annual property tax would consist of a fixed annual rate of $500 plus 0.3% of the unimproved value of the land. This approach is broadly in line with how council rates are calculated. If a buyer opts in for the new annual property tax, then keeping with the same Sydney median property price example, a home-owner would pay about $2,230 annually. That amount would increase with indexation over time.

The fixed annual rate of $500 and 0.3% of the unimproved value of the land would be the rate applicable to residential land that is owner occupied and land that is used primarily for agricultural purposes. A higher rate would apply to residential housing investors and a higher rate again would apply to commercial and industrial property investors.

The new property tax will replace the existing land tax which is levied on properties (other than your principal place of residence) valued above a certain threshold which is currently $734,000.

Under the changes, it is projected that stamp duty will be completely phased out by 2050.

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 two bases: a claim in contract and a claim in proprietary estoppel.

The plaintiffs were the neighbours of the deceased, Ms Barbara Murphy. The deceased was the owner of two adjoining properties in Birchgrove: no 66 and no 68 Louisa Road. Those properties comprised the bulk of the deceased’s estate. The plaintiffs moved into no 70 Louisa Road, Birchgrove in about 2001. The plaintiffs’ evidence was that the deceased had expressed to them her unhappiness with redevelopment works being carried out at no 72 Louisa Road. The plaintiffs had contemplated their own redevelopment works that involved a strata subdivision and an extension to the rear of their property, similar to the works being undertaken at no 72.

The plaintiffs argued that the deceased has promised to leave them her whole estate in her Will in return for them looking after her for the rest of her life and for them agreeing not to undertake their desired building works to the extent that those works would impede the view from the deceased’s property.

In fact, the deceased made a Will leaving the neighbours only $25,000.

The plaintiffs claimed that they upheld their end of the agreement, but the deceased did not.

Alternatively, the plaintiffs contended that the deceased and her executors are ‘estopped’ from acting contrary to the promises of a testamentary character that she made to them. In other words, they claimed that the estate could not resile from the deceased’s promise or assurance to act in a certain way (to make a will favourable to the neighbours) and which induced the plaintiffs to change their position to their detriment. They did not pursue their redevelopment works and they spent more time looking after the deceased during her later years so that she would not go into a nursing home in accordance with the deceased’s wishes.

CJ Ward was satisfied that the plaintiffs did meet the elements of proprietary estoppel as they had suffered detriment due to their reliance on the deceased’s promise to them. However, they did not succeed in their claim for the whole of the deceased’s estate valued at $12M as the value of the whole estate was not proportionate to the detriment they claim to have suffered by looking after the deceased. They were still awarded the two properties valued at a very healthy $9M.

[1] NSWSC 1466 (23 October 2020)

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 Tribunal held in those proceedings that the relevant by-law prohibiting the keeping of pets in the strata scheme was invalid.

The Court of Appeal recently had to determine the same issue in Cooper v The Owners – Strata Plan No 58068 [2020][2]. Was a by-law invalid pursuant to section 139 of the Act which states that a by law must not be “harsh, unconscionable or oppressive”? Section 150 of the Act then goes on to say that any such by-law maybe invalidated by the Tribunal.

This time the Appellants owned ‘Angus’ a miniature schnauzer in the Horizon apartment building in Darlinghurst. The owners corporation had adopted a by-law 14.1 which provided that “Subject to section 139(5) of the Act, an owner or occupier of a Lot must not keep or permit any animal to be on a lot or the Common Property.” There was an appropriate carve-out for an ‘assistance animal’ at by-law 14.2.

The appeal arose out of the decision from the Appeals Panel of NCAT. The Court of Appeal found in favour of the appellants for the following reasons:

  1. Freehold strata ownership is a well-known form of real property and keeping a pet is “an ordinary incident of the ownership of real property”.
  2. The prohibition of animals under by-law 14 did not derive validity from any provision in the Act. (Section 136 of the Act was considered that provides by-laws may only be made for a proper purpose, that is, to confer specific functions on the owners corporation with respect to managing, administering or controlling the strata scheme or make provision in relation to the use and enjoyment of lots and the common property).
  3. The by-law lacked any rational connection with the enjoyment of other lots and the common property and provided no material benefit to other occupiers.

The Court concluded that the by-law was indeed ‘harsh, unconscionable or oppressive’.

Perhaps it is time for owners corporations to revisit their by-laws concerning the keeping of pets and resolve to change blanket prohibition by-laws in favour of by-laws that are more pet-friendly or require the owner to seek the consent of the owners corporation.

 

 

 

[1] NSWCATD

[2] NSWCA 250 (12 October 2020)

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 called ‘Desi Mums Connect (Sydney)’. The profile of this community group had three characteristics: the members were mothers; they were of Indian extraction; and they lived in Sydney. The post was extremely critical of the travel agency’s quality of services. The plaintiff travel agency contended that the post carried the following imputations:

  1. The plaintiff cheated the defendant by charging $180 for an airline ticket for her infant daughter but did not remit the payment to the airline;
  2. The plaintiff cheated the defendant by issuing a ticket with false information on it that caused the defendant to book another ticket to travel home from India; and
  3. The plaintiff was so incompetent as a travel agent that the defendant’s daughter was forced to travel all the way to India without food or a bassinet to sleep in.

By reason of the publication, the plaintiff claimed that it has been greatly injured in its character, credit and reputation and brought into public hatred, ridicule and contempt.

The defendant did not deny making the publication but denied that the post was defamatory in its ordinary and natural meaning. She also relied upon a range of defences including an ‘honest opinion’ defence.

Section 9 of the Defamation Act 2005 (NSW)(Act) generally provides that corporations do not have the capacity to sue. The plaintiff carries the burden of proving that it is an excluded corporation, that is, that the plaintiff employs fewer than 10 persons and is not related to another corporation. The District Court considered an extract from the plaintiff’s website that contained a statement that the plaintiff had “over 40 staff members based in Sydney, Melbourne and India….” The plaintiff argued that call centre operators should not be properly characterised as employees. The Court was not satisfied that the defendant corporation employed less than 10 employees.

The Court then went on to consider that if was wrong about the plaintiff having no capacity to commence proceedings and the post complained of did carry defamatory imputations, would the defence of honest opinion apply?

Section 31 of the Act provides a defence to the publication of a defamatory matter if the defendant can establish that:

(a) the matter was an expression of opinion of the defendant rather than a statement of fact;

(b) the opinion related to a matter of public interest; and

(c) the opinion is based on “proper material”.

The defendant contended that she had set out in the post a statement of facts as to what happened to her and concluded on the basis of those facts which were substantially true (and hence proper material) that she had been cheated by the plaintiff and she expressed that view. In his honour’s view, the defendant was expressing an opinion and not stating facts. He accepted the ‘sting’ in the post that “this agent cheated us” was a deduction or conclusion or comment on the substratum of fact. He found that the ordinary reasonable reader would appreciate that the defendant’s method was to lay out the facts as she perceived them to be, hence the introductory statements “I would like to share my experience”. The facts were that she had not received a baby meal for her infant or a bassinet and that according to the airline staff member, they had no record of a ticket being purchased for the infant.  The defendant’s overall purpose was to provide a recommendation to the facebook group. The Court found that the reference to being “cheated” was not a gratuitous slur but the basis for the recommendation.

The plaintiff’s claim was dismissed and costs were awarded to the defendant.

[1] NSWDC 657 (2 November 2020)

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 landlord, during the relevant period, from giving a tenant who has been impacted by the COVID-19 pandemic a termination notice for non-payment of rent, water usage charges or utility charges payable by the tenant or applying to the Tribunal for a termination order on the grounds of non-payment of rent, water usage charges or utility charges payable by the tenant.

However, the general prohibition is qualified. A landlord may give a termination notice or apply to the Tribunal for a termination order if the landlord can satisfy two tests.

Firstly, the landlord must have participated, in good faith, in a formal rent negotiation process with the impacted tenant and secondly, it must be fair and reasonable in the circumstances for the landlord to give the termination notice of apply for the order.

If a notice is given, the usual notice period prescribed under the Residential Tenancies Act 2010 has been amended so that a notice must specify a termination date that is not less than 90 days.

For the purposes of determining whether it is fair and reasonable in the circumstances for the landlord to give a termination notice or apply for a termination order, the Tribunal may have regard to the following (non-exhaustive) matters:

(a) any advice provided by NSW Fair Trading relating to the participation of the landlord or impacted tenant in the formal rent negotiation process, including whether the landlord or impacted tenant refused, or refused to make, a reasonable offer about rent;

 

(b) whether the impacted tenant has continued to make any payments towards the rent;

 

(c) the nature of any financial hardship experienced by the landlord or impacted tenant, including the general financial position of each party;

 

(d) the availability and affordability of reasonable alternative accommodation for the impacted tenant;

 

(e) any special vulnerability of the impacted tenant; and

 

(f) the public health objectives of—

(i) ensuring citizens remain in their homes, and

(ii) preventing all avoidable movement of persons.

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 an application for a termination order and an order for payment of the bond. In Serious v Barlow; Barlow v Serious [2020] [1] the tenant submitted that he was an “impacted tenant” and therefore a termination notice or order could only be made if the landlord had participated in a good faith rent negotiation process and it was fair and reasonable in the circumstances to terminate the tenancy. A rent negotiation process had not taken place between the parties.

The Tribunal was required to determine whether the tenant was an impacted tenant as defined by the newly introduced section 228B of the Residential Tenancies Act 2010 (NSW)(Act). An impacted tenant means a tenant who is a member of a household impacted by the COVID-19 pandemic. A household is impacted by the COVID-19 pandemic if –

(a)  any 1 or more rent-paying members of the household have—

(i)  lost employment or income as a result of the impact of the COVID-19 pandemic, or

(ii)  had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or

(iii)  had to stop working, or materially reduce the member’s work hours, because of—

(A)  the member’s illness with COVID-19, or

(B)  another member of the household’s illness with COVID-19, or

(C)  the member’s carer responsibilities for a family member ill with COVID-19, and

(b)  as a result of any of the matters stated in paragraph (a), the weekly household income for the household has been reduced by at least 25% compared to the weekly household income for the household before the occurrence of any of the matters.

The tenant submitted that he was an impacted tenant because his income was zero. The Tribunal accepted that the tenant’s income was zero and therefore satisfied paragraph (a) of the test under section 228B of the Act. However, the Tribunal did not accept that the tenant’s household income had reduced by at least 25% and therefore did not satisfy paragraph (b). The tenant failed to establish any income prior to April 2020. If the income was zero before the pandemic or if the tenant fails to establish income before the pandemic, then the tenant does not meet the statutory definition of an impacted tenant.

The Tribunal decided that a termination order should be made but suspended the order for 21 days to allow the tenant time to seek alternative accommodation and seek arts and entertainment government grants, amongst other things.

 

[1] NSWCATCD 3

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 applied to the land: Development Control Plan 1 (DCP 1) and Development Control Plan 8 (DCP 8). Council notified the development application only in accordance with DCP 1, giving notice to adjoining landowners only. DCP 8 required notification to be given to owners and occupiers of land that adjoins a proposed development site and also to owners and occupiers of land that may be affected by the development proposal.

Mr Simpson claimed that the Council breached then section 79A(2) of the Environmental Planning & Assessment Act 1979 (NSW)(Act) by failing to notify the development application in accordance with the provision of DCP 8. Section 79A(2) of the Act provided that:

A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.

The Court held that the Council deprived itself of the opportunity to consider submissions from objectors and owners who may have been affected by the proposed development as a result of its failure to comply with its statutory requirements.

Preston J commented that compliance with the mandatory requirements for notification of development applications is in the public interest.  Public participation in the development process is crucial to the integrity of the planning system under the Act: “It is not to be viewed as a technical and tokenistic speed hump designed to slow but not divert or prevent the inexorable passage of a development application along the highway to approval.”[2]

The Court declared the development consent invalid. The Court declined to exercise its discretion not to make a declaration of invalidity (and suspend the operation of the development consent and specify terms which would have provided validity to the consent) on the basis that the breach was not merely a technical breach, there were no circumstances that justified the Council’s non-compliance and the orders sought to uphold the public interest in public participation in the development approval process.

 

 

[1] NSWLEC 163 (17 July 2012)

[2] id at para 102

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 the new burger promoted under the ‘Big Jack’ trademark is substantially identical with or deceptively similar to the ‘Big Mac’ trademark and that the ‘Big Mac’ trademark has acquired a substantial and valuable reputation in Australia since it registered its own trade mark back in 1973. McDonald’s seeks relief under section 44 of the Trade Marks Act 1995 including orders that the new trademark should be cancelled and or that Hungry Jack’s should be restrained from using its new trademark on several grounds including that it is likely to deceive or cause confusion. This could prove difficult for McDonald’s to demonstrate that the ‘Big Jack’ trademark is likely to deceive or confuse or that there is some connection with McDonald’s. One would not ordinarily go to a Hungry Jack’s fast food restaurant for a ‘Big Mac’ and vice versa.

McDonald’s further claims that its competitor has deliberately adopted or imitated the distinctive appearance or build of the Big Mac, its ingredients along with its well-known tagline of “two all-beef patties, special sauce, lettuce, cheese, pickles, onions – on a sesame seed bun”. While Hungry Jack’s describes its burger online as “two flame-grilled 100% Aussie beef patties, topped with melted cheese, special sauce, fresh lettuce, pickles and onions on a toasted sesame seed bun.” [emphasis added].

Hungry Jack’s is yet to file a Defence in the proceedings. However, it remains to be seen whether the addition of half a dozen words in its tagline is sufficient to distinguish it from its rival ‘Big Mac’ tagline.

If you have any questions about your business’ intellectual property, contact the team at Conditsis Lawyers today on (02) 4324 5688.

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 National Cabinet’s Code of Conduct which embodies several leasing principles. A lessee is properly characterised as an ‘‘impacted lessee’ if it is eligible for Jobkeeper. The Jobkeeper scheme was extended to 28 March 2021 if a business can satisfy certain criteria.

Impacted lessees may seek a rent reduction proportionate to their decline in turnover, and at least 50% of the rent reduction must be in the form of a rent waiver. A tenant must be able to demonstrate to the landlord that their revenue has declined by reference to comparable monthly or quarterly business activity statements.

In the absence of an extension, tenants would not have been eligible for rent relief beyond 24 October 2020 even if they continued to be an ‘impacted lessee’ beyond 24 October 2020.

There is still inconsistency in the ‘end dates’ of the various pieces of legislation, but the extension may enable some businesses to stay afloat into the next year.

As part of the extension, landlords will be able to receive up to a 25% land tax concession where they provide rent relief to commercial tenants in financial distress from October to December. If a landlord has already paid their land tax liability for the calendar year, they may be entitled to a rebate.

If a tenant and landlord are unable to agree on a temporary rent arrangement, then the parties may apply to the NSW Small Business Commission to participate in a mediation. The cost of the mediation is shared between the parties and if the parties can negotiate an agreement, then the terms of settlement are usually documented in writing and the agreement is legally enforceable.

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 tenants. This contrasts with the traditional model of build-to-sell where the developer sells off each individual lot to a third party who then lives in it or rents it out as their own investment.

There have been two initiatives announced to incentivise developers to explore build-to-rent projects.

The first is a 50% land tax discount on the construction of certain build-to-rent projects from 1 July 2020.

The second is a proposal to prepare a new State Environmental Planning Policy (Housing Diversity) 2020 to facilitate investment into these schemes. A draft Housing Diversity SEPP has not yet been released. However, it is anticipated that the Housing Diversity SEPP will introduce definitions and planning provisions for build-to-rent housing and co-living based on the Explanation of Intended Effect released in July 2020 by the NSW Department of Planning, Industry & Environment.

It is proposed that the definition of build-to-rent housing would refer to a building that:

  • contains at least 50 self-contained dwellings that are offered for long term private rent;
  • is held within a single ownership;
  • is operated by a single management entity; and
  • includes on-site management.

It is proposed that the definition of co-living would refer to a building held in a single ownership that:

  • provides tenants with a principal place of resident for 3 months or more;
  • includes on-site management;
  • includes a communal living room and may include other shared facilities, such as a communal bathroom, kitchen or laundry; and
  • has at least 10 private rooms, some or all of which may have private kitchen and/or bathroom facilities, with each private room accommodating not more than two adults.

It is intended that the Housing Diversity SEPP will also include a mechanism where the building may change from a build-to-rent scheme to a strata-titled apartment development.

The schemes would only be permitted in certain zones including R4- High Density Residential, R3- Medium Density Residential and B4-Mized Use.

Unfavourable GST conditions are a concern for the build-to-rent developer market. Potentially the market would need to rely on government subsidies to operate because while GST is passed down to buyers in a build-to-sell model, GST can’t be passed down in a build-to-rent model.

Tenancies could also prove problematic for developers if there are frequent changes in occupancy rates.

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 did not claim against the owner of Channel 9 or the current affairs program, only his neighbour, Ms Hutley, who made comments on the current affairs program that the neighbour had “put her family through hell” and that he had bullied her and her family and endangered their lives.

Ms Hutley claimed the truth as a defence to the defamation proceedings as Mr Cosco had pleaded guilty to spraying expanding foam into a vent on Ms Hutley’s property. Notwithstanding, Rothman J was scathing in his assessment of Ms Hutley finding against her in the defamation proceedings and finding that Ms Hutley was the antagonist.

A construction worker who was working on Mr Cosco’s property gave an account that Ms Hutley had said they were “dumb foreigners” who couldn’t add up and were “sh*t as humans”.

The Court found that the overwhelming evidence was that Ms Hutley and her family had engaged in a “tirade of abuse and threats” against Mr Cosco and his construction workers.

Before the broadcast, Mr Cosco had a reputation of a good competent builder, an honest and reliable boss for whom others wanted to work. He was well-respected, well-liked and popular.

But his reputation suffered dramatically after the broadcast.

The story does not end here as Ms Hutley has filed an appeal since the original decision was handed down in August. The enforcement of the judgment has been halted, pending a decision of the NSW Court of Appeal. As a condition to the stay of the judgment, Ms Hutley was required to deposit $450,000 as security for costs.

Despite the appeal, the case should prove a cautionary tale in how not to conduct relations with neighbours regardless of where the fault lies.

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 faces, objects and symbols that are often used in social media platforms.

The Plaintiff, Ms Zali Burrows, claimed that the imputation from a zipper-mouth face emoji posted by the defendant, Mr Adam Houda, on his twitter feed in response to another user’s tweet was defamatory.

The words and images complained of were pleaded by Ms Burrows as giving rise to the following imputations:

  • The plaintiff is facing a potential legal battle after a judge made scathing remarks about her competency as a lawyer;
  • The plaintiff so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action; and
  • The plaintiff is a criminal who signs false affidavits.

The Court had to consider in the context of defamation proceedings whether an emoji symbol of a face expressing an emotion conveys a serious meaning or if an emoji illustration has no real meaning. Is an emoji capable of conveying an imputation of serious misconduct?

In May 2020, the defendant tweeted a link to a Sydney Morning Herald story published in July 2019 where Judge Wilson recommended Ms Burrows’ clients be banned for life by ASIC and prosecuted for signing affidavits, they knew to be false.  A third-party twitter user then posted in response to the Defendant’s link: “July 2019 story. But what happened to her since?” to which the Defendant replied with the emoji commonly referred to as “zipper-mouth face”.

The plaintiff’s counsel successfully argued that the ‘zipper-mouth face’ is worth a thousand words and implies that there has been a finding damaging the plaintiff, the defendant knows about it and is not at liberty to disclose the results and can only hint at it by posting the emoji so the reader can guess the rest. The emoji together with the Defendant re-posting an article that is one year old is a case where ‘joining the dots’ is a likely exercise for social media users on a social media site.

The defendant was required to pay the Plaintiff’s cost of the application.

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 the statutory demand, enter into a payment arrangement with the creditor or apply to the Court to have the statutory demand set aside.

As part of the government’s economic response package to coronavirus, the debt “minimum amount” (the subject of a statutory demand) was increased from $2,000 to $20,000. Furthermore, the period within which the debtor company must comply with a statutory demand (or apply to the Court for an order setting aside the statutory demand) was increased from 21 days to 6 months.

The temporary economic response measures are intended to operate for six (6) months commencing 26 March 2020. While it is certainly possible that the temporary measures may be extended beyond 25 September 2020, currently the amendments will expire on 25 September 2020.

In practice, this means that if a creditor serves a statutory demand on a debtor company on 20 September 2020, it must wait until 20 March 2021 before the debtor company is deemed insolvent (assuming the debtor company does nothing in response to the demand) and the creditor can take steps to wind up the debtor company. However, if a creditor waits just 10 days later to serve the statutory demand, that is, 30 September 2020, then it only needs to wait until 21 October 2020 in which to take steps to wind up the company on grounds of insolvency.

Considering these temporary measures in response to coronavirus, creditors must carefully assess the best time to serve the debtor company. Timing is critical.

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 (not the builder) is responsible for obtaining the building bond and lodging it with NSW Fair Trading: section 207 of the Act. There are financial penalties payable for a failing to comply with this provision.

The building bond usually takes the form of an unconditional bank guarantee issued by an Australian bank. The bank guarantee mut contain the project number. The project number is issued by the SBBIS (Strata Building Bond and Inspection Scheme) e-portal once the developer has registered for and logged in to the SBBIS e-portal to create a “new project number” for the strata development.

The building bond must be lodged before an occupation certificate can be issued by council or a private certifier under the Environmental Planning and Assessment Act 1979 (NSW) for any part of the building for which the building work was done.

Within 12 months of the occupation certificate issuing, a building inspector must be appointed by the developer (or the owners corporation if more than one third of the lots in the strata development have been sold). The building inspector must conduct a first inspection of the property and prepare an interim report on any defects. The report must be given to the NSW Fair Trading, the owners corporation, developer and builder.

If no defects are identified in the interim report, then the developer can apply to the NSW Fair Trading for approval that that report become the final report and apply after two years to have the bond returned.

If defects are identified, then the defective work must be corrected otherwise the bond can be used to pay for the rectification work. Any monies remaining will be returned to the developer.

If you would like to learn more about property & conveyancing law please get in touch with us today.

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 is, not by consent of the true owner. Mr Hardy filed a claim in the Supreme Court for legal title to a strip of land in Redfern measuring approximately 88cm wide and 3.81 metres long (making a total of 3.35 square meters of land). The strip of land was situated at the rear of his property and was once part of the “dunny lane”, a throw-back to a time where the “dunny man” would collect waste from the brick outhouses at the rear of the terraced properties.

The basis of Mr Hardy’s claim was that he had been in possession of the strip of land for more than 12 years.

When Mr Hardy acquired the property in 1998, the strip of land was neither used nor usable as a right of way. It had been blocked off at various points by an old paling fence on one side and an old corrugated iron fence on the other side. Initially, Mr Hardy used the strip of land as a garden tool storage area. But by January 2005 he had landscaped the area by laying a weed mat covering the whole of the area and putting granite pavers and some mondo grass over the area.

In April 2018, new owners of the property situated on the southern side of the strip of land “reclaimed” the strip of land by building a barbecue area on the stirp of land and erecting a fence. The strip of land is illustrated in yellow in the schematic map.

The Court concluded that Mr Hardy had acquired possessory title to the strip of land. An action to reclaim the land should have commenced by no later than January 2017 (being 12 years since Mr Hardy took adverse possession of the land) by the neighbours’ predecessors in title. The defendant neighbours who had attempted to reclaim the land were found to have been trespassing upon Mr Hardy’s land and were ordered to remove the structures they had erected on the land and relocate the fence they had built.

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 new homes valued at $800,000, that is a stamp duty savings of $31,335.

The stamp duty threshold on vacant residential land will also increase from $350,000 to $400,000 with the concession threshold increasing to $500,000. To be eligible for the stamp duty exemption on vacant land, purchasers must intend to construct to new home on the land.

The changes do not apply to established or existing homes.

The new thresholds will take effect from 1 August 2020 and will apply for 12 months on contracts signed and dated between 1 August 2020 and 31 July 2021.

This new initiative supplements the first home buyer scheme that is already in place. A $10,000 First Home Owner Grant (Grant) is available to those buying their first new home valued up to $600,000 or buying land and constructing a home with a total value of $750,000 or less.

To be eligible for both the Grant and stamp duty exemption on new homes, you (or at least one of the first home buyers) must satisfy the residence requirement. That is, you must move into the property within the first 12 months of buying the property (calculated from the settlement date). If you are buying land and constructing a home, you must move into the property within 12 months after construction is complete.

You must reside in the property for at least six (6) continuous months. A common error for first home benefits recipients is leasing the property under a 12 months (or longer) residential tenancy agreement granting exclusive occupation to the tenant, from the settlement date. The landlord owner will not be able to satisfy the residence requirement in these circumstances.

Contact Conditsis Lawyers on (02) 4324 5688 for all your conveyancing needs.

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 or services by the Australian Consumer Law.

The consumer guarantees include that:

  • Goods must be of an acceptable quality. This means that the goods must be fit for purpose for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable. (However, if the goods are not of an acceptable quality and the reason or reasons why the goods are not of an acceptable quality were specifically drawn to the customer’s attention, the goods are taken to be of acceptable quality).
  • Goods must be fit for any disclosed purpose or for any purpose for which the supplier represents that they are reasonably fit.
  • Goods must correspond to a description if the goods are supplied by description to a consumer.
  • Goods must correspond with the sample or demonstration model in quality, state and condition. 

These consumer guarantees can’t be excluded by contract.

If a supplier fails to comply with one or more consumer guarantees, your remedy as a consumer will depend largely on whether the failure to comply is a “major failure”.

There is a major failure if the goods would not have been acquired by a reasonable consumer had they known about the failure, the goods are substantially unfit for a purpose for which goods of the same kind are common supplied or they can’t be easily fixed to make them fit for purpose or if the goods are unsafe.

If there has been a major failure, then you must notify the supplier that you reject the goods and return the goods to the supplier (depending on the size, height and attachment of the goods). You may then elect to accept a refund or have the goods replaced.

If the failure is not a major failure, then you still have other remedies available to you. Contact Conditsis Lawyers today on (02) 4324 5688 for all your consumer law questions.

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 the purposes of the Property (Relationships) Act 1984 is a relationship between two adult persons:

  • Who live together as a couple, and
  • Who are not married to one another or related by family.

You will need to prove to the Court that you were in a de facto relationship. Kearney J in Simonis v Perpetual Trustee Co Ltd (1987)[1] indicated that all of the circumstances of the relationship are to be taken into account to determine whether a de facto relationship existed, including such of the following matters as may be relevant in a particular case:

1. the duration of the relationship;

2. the nature and extent of a common residence;

3. whether or not a sexual relationship existed;

4. the degree of financial dependence or interdependence, and any arrangements for financial support between the parties;

5. the use, ownership and acquisition of property; 

6. the degree of mutual commitment to a shared life;

7. the care and support of children;
8. the performance of household duties; and

9. the reputation and public aspects of the relationship.

Furthermore, the Court will require the consent of those persons who would otherwise have been entitled to your spouse’s estate in the event you were not in a de facto relationship with the deceased. In you can’t obtain the consent of those persons, then you will need to serve notice on them of your application for administration.

The Court will also require affidavit evidence from at least two (2) persons who can corroborate that you were in a de facto relationship.

Contact Conditsis Lawyers today for all your estate questions on (02) 4324 5688.


[1] 21 NSWLR 677

new encryption laws

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 tender. 

Recently, the New Zealand High Court had to consider whether cryptocurrency amounted to “property” in an insolvency context in Ruscoe & Moore v Cryptopia Limited (in liquidation) [2020][1]. The judgement is likely to be instructive to Australian Courts.

The NZ High Court referred to the House of Lords decision National Provincial Bank Ltd v Ainsworth [1965] where Lord Wilberforce noted that property has four criteria:

  • It is definable;
  • It is identifiable by third parties;
  • It is capable in its nature of assumption by third parties; and
  • It has some degree of permanence or stability.

The Court held that cryptocurrencies satisfied the criteria set down by the House of Lords based on three interdependent features: there is a public key recording the unit of currency, ownership is by way of a private key attached to the corresponding public key and a fresh private key is generated upon a transfer of the relevant ‘coin’.

The Court dismissed two arguments that cryptocurrency was not property. The first argument was that the common law only recognised two forms of personal property: tangibles and choses in action and as cryptocurrency was neither, did not amount to personal property. The second argument was that cryptocurrency was just a form information and information is not generally recognised as property. That argument was rejected as being ‘simplistic’ and wrong. The court was satisfied that the currency was more than just digitally recorded information. However, even if the currency did constitute information, amongst other things, it was not disqualified from being property.

Contact Conditsis Lawyers today on (02) 4324 5688 for all your property and commercial law needs.


[1] NZHC 728

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 administration.

Letters of administration gives you title to the deceased’s assets and allows you to deal with the deceased’s assets.

A bankrupt or person who has assigned or disclaimed their interest in the estate may not be appointed administrator.

Even though you may know the deceased did not make a Will, you will need to prove to the Court that the deceased did not make a Will.

As a minimum, the applicant for letters of administration will need to provide evidence of searches that were made for a Will amongst the personal effects of the deceased. You will also need to provide evidence of enquiries made for a Will with the NSW Trustee & Guardian and the solicitors and banks of the deceased. This means you will need to write to these institutions and wait to receive their written response. Once you have those responses confirming they do not hold a Will for the deceased, they can be filed with your application to the Court.

If you are aware that the deceased had an accountant, it would be wise to make enquiries with the accountant to ascertain if they hold any document that contain the testamentary wishes of the deceased.

Other enquiries that you can make which our firm undertakes include enquiries with the Land & Property Information office as they hold a general register of deeds that was created in the 1920’s to record any instrument whatsoever, whether affecting or relating to land or not.

Usually, the application for letters of administration must be accompanied by an administration bond unless the Court consents to dispensing with the bond. An administration bond is a document that promises to pay the relevant amount in the event the estate is fraudulently or negligently administered, and creditors or beneficiaries miss out on their proper share of the estate.

Contact Conditsis Lawyers today on (02) 4324 5688 for all your estate enquiries.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 under liquor (and gaming) legislation, to transfer the licence.

Assuming the transfer is with the written permission of the outgoing licensee (usually the vendor of the business) and there are no gaming machine entitlements, you will need to include the following with your transfer application:

(a) Evidence of Responsible Service of Alcohol (RSA) qualifications.

(b) A copy of your NSW National Police Certificate that is less than three (3) months old or a receipt that shows you have applied for one.

(c)  If you are a corporate licensee, you must provide a current ASIC extract showing the office holders in the company.

(d) A statement as to interested parties. For the purposes of the Liquor Act 2007 (NSW), a person is interested in the business, or the profits of the business, carried on under the licence if the person is entitled to receive:

(i) any income derived from the business, or any other financial benefit or financial advantage from the carrying on of the business, or

(ii) any rent, profit or other income in connection with the use or occupation of premises on which the business is to be carried on.[1]

ILGA will not grant a licence unless it is satisfied that, amongst other things, the applicant is a fit and proper person to carry on the business or activity to which the licence relates and practices will be in place at the licensed premises that ensure that liquor is sold, supplied or served responsibly from the premises and that all reasonable steps are taken to prevent intoxication on the premises, and that those practices will remain in place. In determining whether a person is a “fit and proper person” to carry on the business, ILGA will consider if the person is of good repute, having regard to character, honesty and integrity and is competent to carry on the business.

If the licensee is a corporate licensee, then it must appoint an individual manager approved by ILGA to supervise and manage the licensed premises. The person can’t be appointed a manager if at the time of the appointment the person already holds an appointment as the manager of other licenced premises.

Contact Conditsis Lawyers today if you require assistance with the transfer of an existing licence or an application for a new licence.  


[1] Section 41 of the Liquor Act 2007 (NSW)

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home.

To access HomeBuilder, owner-occupiers must meet the following eligibility criteria:

  • You are a natural person (not a company or trust);
  • You are aged 18 years or older;
  • You are an Australian citizen;
  • You meet one of the following two income caps:

-$125,000 per annum for an individual based on your 2018-19 tax return or later; or

– $200,000 per annum for a couple based on both 2018-19 tax returns or later;

  • You enter into a building contract between 4 June 2020 and 31 December 2020 to either:
  • Build a new home as a principal place of residence, where the property value (house and land) does not exceed $750,000; or
  • Substantially renovate your existing home as a principal place of residence, where the renovation contract is between $150,000 and $750,000, and where the value of your existing property (house and land) does not exceed $1.5 million. The renovations must improve the accessibility, liveability and safety of the property. There is a specific exclusion for the construction of a tennis court, pool or shed for eligibility purposes.
  • Construction must commence within three months of the contract date.

It is important to note that this scheme is restricted to owner-occupied dwellings. If you are seeking to build a new home that will be used as an investment or renovate an existing home which is an investment property, you will not be eligible for HomeBuilder.

This scheme supplements the First Home Loan Deposit Scheme and First Home Buyers Assistance Scheme but is open to all home-owners, not just first home buyers.

If you would like to learn more about HomeBuilder or any other property matters please get in touch with our conveyancing team today.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 1994 (NSW)(Act) as a retail use, then that lease is deemed to be a retail lease and accordingly the Act applies.

But what if the permitted use under the lease is, say, that of a commercial office and the premises is situated in a retail shopping centre? A commercial office use is not a prescribed retail use for the purposes of the Act. However, because the premises is located in a retail shopping centre, the Act will apply. This will mean that, amongst other things, the landlord will need to prepare and issue a disclosure statement to the tenant in accordance with the Act. A failure to do so may entitle the tenant to terminate the lease.

A ‘retail shopping centre’ is defined in the Act to mean a cluster of premises (not being stalls in a market) that has all of the following attributes:

  • At least 5 of the premises are used wholly or predominantly for the carrying on of one or more listed (retail) businesses;  
  • The premises are all owned by the same person, or have the same lessor or same head lessor, or comprise lots within a single strata plan;
  • The premises are located in one building or in 2 or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops; and
  • The cluster of premises is promoted or generally regarded as constituting a shopping centre, shopping mall, shopping court or shopping arcade.

The key take-away is that even if your tenant does not carry on a retail business, that is irrelevant, if the premises is situated in a retail shopping centre. Landlords need to be mindful of this.

Contact the team at Conditsis Lawyers to demystify all your leasing needs on (02) 4324 5688 or by email at enquiry@www.conditsis.com

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 and the deposit was 10% of the purchase price. An initial 0.25% deposit was paid on exchange on 1 February 2020 and the balance of the deposit of $54,600 was payable on or by 12 February 2020. The form of contract used provided for payment of the deposit by cash up to $2,000 or cheque.

The Agent directed the buyer to pay the initial deposit to the agent’s trust account by EFT. The Agent provided the buyer with the account details and the buyer paid the initial deposit by EFT. On 7 February 2020, the Agent sent an email to the buyer reminding them to pay the balance of the deposit and again setting out their trust account details. Two days later, the buyer received what appeared to be a further email from the Agent attaching an invoice for the remainder of the deposit and requested payment of the deposit to a fraudulent bank account. The buyer paid the balance of the deposit into this fraudulent bank account.

The vendor sought to terminate the contract on the basis that the deposit had not been paid by the time specified in the contract. The buyer commenced proceedings seeking to enforce the contract on the basis that the Agent had directed the buyer to pay the deposit into its trust account by EFT and the agent was acting at the direction of the vendor and that the purchaser had therefore satisfied its obligation to pay the deposit.

The Court concluded that the fact the contract authorises the agent to receive the deposit in accordance with the contract and to direct the purchaser to pay the deposit to the agent, it does not authorise the agent to bind the vendor in dealings with respect to the deposit.

The contract did not authorise the payment of the deposit by EFT. The agency agreement did not authorise the real estate agent to act on behalf of the vendor when directing or accepting payment of the deposit as stakeholder under the contract. The Court held the buyer was in breach for not paying the deposit in accordance with the contract. The vendor was entitled to terminate the contract.

The Court did not consider whether the Agent was liable to the buyer as stakeholder.

It is an unfortunate outcome for the buyer. However, the case emphasises that extreme care must be taken when relying on emails, without more, to transfer large sums of money. The prudent course of action is to call the sender of the email to verify account details over the phone.


[1] NSWSC 437

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 the testator in the presence of two or more witnesses present at the same time; and
  • At least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

Under section 8 of the Act, the Court may dispense with the formal execution requirements for a valid Will if the following conditions are satisfied: 

  • There is a document;
  • The document states the testamentary intentions of the deceased; and
  • The deceased must have intended the document to be his or her will or to take effect as his or her will.

The issue of whether a document amounted to an informal Will for the purposes of section 8 of the Act was discussed in Rodny v Weisbord [2020][1]. Mrs Rodny made a valid will in December 1997 (1997 will). Her son, Laurence, obtained a grant of probate of that will. The deceased’s daughter (and grandchildren) sought a declaration that a later document made in 2008 by Mrs Rodny was the last will and testament of the deceased. This later document had been prepared by a solicitor based on the deceased’s instructions given at the solicitor’s office.

It was accepted that the 2008 document did embody the testamentary intentions of the deceased. However, the issue was whether Mrs Rodny intended the draft will prepared by the solicitor to take effect as her will.  

The primary judge upheld the daughter’s claim stating that “there is a substantial likelihood that Mrs Rodny intended the final draft of the 2008 will to operate as her will, as that document incorporated all of her instructions”. It was accepted that Mrs Rodny had told family members she had made a new will after seeing the solicitor in 2008. It was also accepted that she had reason to make a new will because some of the gifts under the 1997 will would fail (as that will disposed of land that had been sold Mrs Rodny following the making of the 1997 will).

Mrs Rodny’s son appealed the decision. The Court of Appeal considered the judgment of Powell J in a 1991 Supreme Court case[2] where the judge considered that a document that has not been “seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased was in truth, no more than “instructions” or a “note of instructions”…..I find it very difficult to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.”

The Court of Appeal confirmed that the test is whether the testator intended the document to “operate” and “without more”, thereby constituting his or her will.

The evidence found that the solicitor had drafted a letter addressed to Mrs Rodny in 2008 enclosing the “draft Will” asking Mrs Rodny to peruse it and to advise whether the contents of the will met with her approval. However, the evidence also suggested that the letter and enclosure were never sent by the solicitor to Mrs Rodny nor did she ever see the final draft of the will.

The Court of Appeal upheld the appeal by the son and ordered probate of the 1997 Will to Mrs Rodny’s son.


[1] NSWCA 22 (27 February 2020)

[2] Re application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 540

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 provision for your much-loved pets in your Will, then your Pets will vest in the residual beneficiary under your Will.

Depending on that person’s circumstances, the “gift” of your pets may be considered an imposition to that beneficiary.

Some practical options for you to consider when it comes to leaving your pet to someone, may include:

• Gift your pet to a reliable friend or charity;
• Gift your pet and a sum of money to a reliable friend or charity; or
• Establish a trust in your will where your trustee holds funds to be used for the benefit of a person who has the care of your pet for the duration of the pet’s lifetime.

While you can gift a sum of money to a beneficiary for the purpose of providing care and accommodation to your pet, once the estate is distributed, in practical terms, if will be very difficult to monitor whether that beneficiary is doing the right thing by your pet and enforce the terms of the Will. What the Will does is essentially set out your wishes only as to how your pet is to be cared for. It is not necessarily binding.

To determine a suitable gift of money, you will need to consider the breed of the animal, the estimated life expectancy and medical needs and expenses when it gets older.

You can also create a care plan for your pet and share it with your loved ones. The care plan could include any dietary requirements, your pet’s favourite toys and their temperament, likes and dislikes.

Contact the team at Conditsis Lawyers today on (02) 4324 5688 for all your estate planning needs.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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.

The case of Application by the Owners – Strata Plan No 61299 involved the Seasons Harbour Plaza which is a 159 mixed use strata lot development situated at 252 Sussex Street, Sydney.

The owners corporation had sought approval for the collective sale of the strata scheme from the lot owners. It had prepared a strata renewal plan and submitted it to all lot owners at a general meeting. The strata renewal plan contained all the matters set out in section 170 of the Strata Schemes Development Act 2015 (NSW)(Act).

While more than 75% of the lot owners (by unit entitlement) had consented to the collective sale to a developer and the strata renewal plan, unanimous consent of the lot owners is required or an order from the Court provided more than 75% of the lot owners have consented, to approve the sale.

In approving the strata renewal plan and therefore the sale of the strata scheme, the Court had regard for the matters set out in section 182 of the Act. Particular emphasis was placed on the owners corporation having obtained the “required level of support” from the lot owners in the scheme, all notices required to be served on the lot owners under the Act had been served, the proposed distribution of the proceeds of sale apportioned to each lot was not less than the compensation value of the lot and the terms of settlement under the plan were just and equitable in all the circumstances. The compensation value is the amount that a lot owner would be entitled to under the Land Acquisition (Just Terms Compensation) Act 1991.

The Court exercised its statutory powers under section 182(2) of the Act to vary the strata renewal plan. It did so primarily because the retail lots would have been disadvantaged by the strata renewal plan as they had a smaller unit entitlement but arguably a greater commercial value. The Court reallocated the unit entitlement for all lots to ensure that the proceeds of sale recovered by each lot owner was not less than the compensation value of each lot.

The case is important as it emphasises the importance of owners corporations complying with the process and procedure required under the Act before it seeks an order from the Court, and in particular ensuring that each lot owner, even though a large number of investor owners were based overseas, were notified of the plan.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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, the subject of the demand, enter into a payment arrangement or file and serve an application to the Court to have the demand set aside under section 459G of the Act.

But what if the debtor company does nothing after being served with the statutory demand?

What can the creditor then do to recover its debt?

The next step is to make an application to wind up the company on the ground of insolvency and to appoint a liquidator to act on seizing and selling the assets of the company to recover your debt.

An application may be made in the Federal Court or Supreme Court within three (3) months of the company’s non-compliance with the statutory demand. If you fail to file your application within this strict timeframe, then you will need to file and serve a statutory demand all over again. You will need to put on evidence that the statutory demand was in fact served on the company’s registered office. You will also need to put on evidence that at the time of filing the winding up application, the debt remained due and payable, amongst other things. Once the application is filed, you will need to serve it on the company’s registered address and notify the Australian Securities & Investments Commission (ASIC) no later than 10:30am on the next business day.

The Court will set down a hearing date for the application. The written consent of the liquidator should also be filed prior to the hearing.

For your debt recovery needs, please contact the team at Conditsis Lawyers on (02) 4324 5688 or by email at enquiry@www.conditsis.com.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 habitation for the purposes of section 52 of the Act.   

In the absence of a definition in the Act, over the years, the Tribunal has applied the “reasonable comfort” test to determine what constitutes fit for habitation.

In Bhandari v Laming [2015] NSWCATAP 224, the tenant complained of a strong smell of cigarette smoke permeating into the upstairs Potts Point unit that the tenant occupied. The smoke was coming from the downstairs unit. There was a mechanical problem with the internal ventilation passages in the building that allowed the smoke to enter the upstairs unit. The Tribunal awarded damages to the tenant comprising of a rent reduction and removalist costs. Interestingly, the appeal panel said that the landlord’s obligation to provide a premises fit for habitation is not conditional upon the landlord being at fault or demonstrating that they took reasonable steps to have the owners corporation rectify the problem. The landlord can’t escape liability by showing that it is a strata issue. The landlord must provide a premises that is fit for habitation.

In Raats v Zein [2016] NSWCATCD 62, the tenants complained of a mould infestation in a Waitara townhouse. The cause was a plumbing leak. The Tribunal was satisfied that the mould infestation constituted an unreasonable interference with the comfort of the tenants judged by contemporary standards and ordered compensation to the tenants for removalist costs.

In Marsters v Graham [2016] NSWCATCD 73, the tenant claimed their belongings were damaged by water from a storm caused by a structurally unsound roof. While the landlord released the tenant from the lease and refunded their rent and bond, the Tribunal awarded the tenants compensation under section 187 of the Act for their damaged furniture and other belongings in an amount of $7,822.21. The Tribunal applied the concept of reasonableness. The Tribunal found that it was reasonable to expect the structure of the roof of the premises was sufficiently secure and in a state of repair to ensure that the copious amounts of water that entered the premises did not occur.

Contact the team at Conditsis Lawyers on (02) 4324 5688 to demystify your tenancy rights and obligations.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

The Long Reaching Arm of the Notional Estate in Family Provision Claims

Cowap v Cowap [2019] NSWSC 1104 (22 August 2019)

In December 2015, Mr Geoffrey Cowap died aged 85. By his Will signed three years earlier, he left the whole of his estate to his wife of 57 years, Mrs Barbara Cowap. The principal asset of the deceased’s estate was the matrimonial home, an acreage in Wallaroo outside of Canberra, estimated to be worth $1.35M. The married couple had resided in the home for 32 years.  Mrs Cowap inherited the home by way of survivorship upon the death of Mr Cowap. There was also a share portfolio valued at approximately $409,000 and a $50,000 bank account.

The oldest child of the couple, Nicholas John Cowap (Nick), 64, made an application for family provision out of the father’s notional estate (being the matrimonial home the deceased owned jointly with Mrs Cowap). Nick suffered two heart attacks after his father’s passing that left him with significant disabilities. He could not look after himself and, amongst other things, needed a wheelchair because it was difficult for him to walk any distance unaided. Nick had no assets. His only income was a disability pension.

The Court took into consideration two competing matters: the moral obligation of the deceased to make adequate provision from his estate for his spouse, particularly after a long and happy marriage, and the moral obligation of the deceased to make some provision for his adult child who had fallen on hard times (especially when they are not of his own making).

The Court also considered the clear intention of the deceased in the Will that Mrs Cowap was to enjoy the rest of her years living in the matrimonial home and Mrs Cowap’s own strong desire to remain in the property.

Notwithstanding, the Court designated the home part of the deceased’s notional estate and made orders that the property was to be sold. The Court awarded Nick the sum of $600,000.  

Traditionally, the Court has been reluctant to oust an occupant from their property for the benefit of a family provision claimant. However, the Court was comforted in the outcome (sale of the property) by the fact that on the evidence, Mrs Cowap would be able to afford a smaller property in the same area with the same country feel for about $700,00.

The case demonstrated that there are no inflexible rules when it comes to family provision. Each application for provision must be dealt with by the Court on its merits on the evidence before the Court based on the circumstances at hand.  

Mrs Cowap ended up appealing the decision by Kunc J. The Court Appeal dismissed the appeal in February this year.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 September 2020, (unless otherwise changed by Parliament), being 6 months after the emergency measures were introduced.  

If a document is required under any law to be witnessed, the signature can be witnessed by audio visual link. A host of technology platforms could be used, including but not limited to Zoom, FaceTime, WhatsApp and Skype.

For the purposes of the Regulation, a “document” includes:

(a) A will;

(b) A power of attorney including an enduring power of attorney;

(c) A deed or agreement;

(d) An enduring guardianship appointment

(e) An affidavit, including an annexure or exhibit to the affidavit; and

(f) A statutory declaration.

The witness must observe the person signing the document in real time.

The witness must be satisfied that what they are signing is the same document or a copy of the same document that is being signed by the signatory.

The witness must then endorse the document with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with this Regulation.

The signature block could include a statement to the effect that the document was signed in counterpart and witnessed by way of audio visual link (Face Time) in accordance with the provisions of Schedule 1 to the Electronic Transactions Regulation 2017.

In practice, a witness may confirm the signature was witnessed by signing a counterpart of the document as soon as practicable after witnessing the signing of the document or if the signatory scans and sends a copy of the signed document electronically, the witness countersigns that document as soon as practicable after witnessing the signing of the document.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 the agent knows or ought reasonably to know. An offence under this section can attract a penalty of up to $22,000.  This means that an agent could be in breach of the law even though they didn’t know about it.

Clause 54 of the Regulation prescribes what is a material fact:

(a) within the last 5 years the property has been subject to flooding from a natural weather event or bush fire;

(b) the property is subject to significant health or safety risks;

(c) the property is listed on the register of residential premises that contain loose-fill asbestos insulation that is required to be maintained under the provision of the Home Building Act 1989 (NSW);

(d) within the last 5 years the property was the scene of a crime of murder or manslaughter;

(e) within the last 2 years the property has been used for the purposes of the manufacture, cultivation or supply of any prohibited drug or plant;

(f) the property is, or is part of, a building that contains external combustible cladding to which there is a notice of intention to issue a fire safety order or building product rectification order (or such an order has issued); and

(g) the property, or is part of, a building where a development application or complying development certificate application has been lodged under the Environmental Planning and Assessment Act 1979 for rectification of the building regarding external combustible cladding.

The advice to agents is that they should, at the very least, make reasonable enquiries with their vendor client to determine whether any of the material facts listed above applies to the property.

The enquiries that an agent undertakes independently of the vendor may extend to carrying out a search of the loose-fill asbestos insulation register which is a register administered by the NSW Fair Trading and is free to access. Agents may also consider making enquiries with the local Council to determine if the land has been affected by flood or bush fire in the last 5 years.

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 rights and obligations of each co-owner), and if the parties can’t come to some commercial arrangement or compromise, then a party can make an application to the Court under section 66G of the Conveyancing Act 1919 (NSW).

The Court may appoint (usually) two trustees of the property (but not exceeding four trustees) and vest the property in those trustees to be held by them on statutory trust for sale.

The power of the Court to make such an order is discretionary. Such an order is almost “as of right” unless it would be inequitable to allow the application: Callahan v O’Neill [2002][1]. In Myers v Clark [2018][2] the Court considered the observations of Beazley JA in Hogan v Baseden [1977][3] that while the section is a discretionary provision and does not give rise to an absolute entitlement to an order, the circumstances where relief has been refused have been constrained. In that same case, Mason P added that itwould not be a proper exercise of the power to decline relief under s 66G of the Conveyancing Act to refuse the application on grounds of hardship or general unfairness. In the unhappy event that the parties are unable to settle their differences then the making of an order appointing trustees for sale seems inevitable unless there can be established a legally binding agreement not to put a party out of occupation of their home, or other equitable circumstances.

An example of the limited discretion to refuse to make an order can be exercised is where such an order would be inconsistent with a proprietary right or a contractual or other obligation. In Ngatoa v Ford (1990)[4], relief was refused under section 66G because the parties had a contract between them which limited their ability to dispose of their interests in the property. In another example, in Capolongua v Da Silva [2016][5], the parties were bound by a deed that included a provision that none of the parties “shall under any circumstances seek to exercise any right of sale conferred by section 66G of the Conveyancing Act unless the property had been marketed conscientiously for a period of one year”. The judge accepted that it was not appropriate to make such orders where the requirement had not yet been fulfilled.

Contact the team at Conditsis Lawyers on (02) 4324 5688 to demystify your property law questions.  


[1] NSWSC 877

[2] NSWSC 1029

[3] NSWCA 150

[4] 19 NSWLR 72

[5] NSWSC 1212

Elisha Edwin Property & Conveyancing, Wills & Estates, Civil Litigation

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 scheme.

The Code applies to office, industrial and retail tenancies.

It is intended that landlords and tenants will agree to tailored arrangements taking into account the individual circumstances of the tenant.

Leasing Principles

  1. Landlords must not terminate leases due to non-payment of rent during the COVID-19 pandemic period (or reasonable subsequent recovery period).
  2. Tenants must remain committed to the terms of their lease, subject to any amendments to their rental agreement negotiated under this Code.
  3. Landlords must offer tenants proportionate reductions in rent payable in the form of waivers and deferrals of up to 100% of the amount ordinarily payable, on a case-by-case basis, based on the reduction in the tenant’s trade.
  4. Rental waivers (an abatement of rent) must constitute no less than 50% of the total reduction in rent. A greater proportion of a rental waiver should apply where failure to do so would compromise the tenant’s capacity to fulfil their ongoing obligations under the lease. (Regard must also be had to the Landlord’s financial ability to provide such additional waivers).
  5. Payment of rental deferrals by the tenant must be amortised over the balance of the lease term and for a period of no less than 24 months, whichever is the greater, unless otherwise agreed by the parties.
  6. Any reduction in statutory charges (e.g. land tax, council rates) or insurance will be passed on to the tenant in a proportionate manner.
  7. A landlord should seek to share any benefit it receives due to deferral of loan payments with the tenant in a proportionate manner.
  8. Landlords should seek to waive outgoings payable by a tenant, during the period the tenant is not able to trade. (Landlords reserve the right to reduce services as required in such circumstances).
  9. If negotiated arrangements under this Code necessitate repayment, this should occur over an extended period in order to avoid placing an undue financial burden on the tenant.
  10. No fees, interest or other charges should be applied with respect to rent waived or deferred.
  11. Landlords must not draw on a tenant’s security for the non-payment of rent during the period of the COVID-19 pandemic (and a reasonable subsequent recovery period).
  12. The tenant should be provided with an opportunity to extend its lease for an equivalent period of the rent waiver and/or deferral period.
  13. There is a freeze on rent increases for the duration of the COVID-19 pandemic and a reasonable subsequent recovery period, notwithstanding any arrangements between the parties.
  14. Landlords are prohibited from enforcing failure to trade clauses in leases due to the COVID-19 pandemic.

Mediation

Where the parties can’t reach agreement on leasing arrangements (as a direct result of the COVID-19 pandemic), the matter should be referred to the NSW Small Business Commissioner for binding mediation.

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 Note #1 – Client Authorisation was published to provide guidance around the Client Authorisation. Sections 5 and 6 of the Guidance Note is particularly relevant. There is no requirement in the Electronic Conveyancing National Law or Participation Rules that the Client Authorisation form needs to be wet-signed. However, reasonable steps need to be taken by the Subscriber (lawyer or conveyancer of their agent) to ensure that the Client Authorisation is in fact signed by the client or their agent. This may be done by reference to the signature(s) on the verification of identity supporting documentation.

Guidance Note #2 – Verification of Identity was published to provide guidance around the verification of identity process. The purpose of carrying out verification of identity is to reduce the risk of identity fraud and the registration of fraudulent land transactions. While the Verification of Identity Standard required a face-to-face in person interview, compliance with that Standard is not mandatory. A Subscriber must verify the identity of their client in a way that constitutes reasonable steps. It is up to the Subscriber to determine what constitutes reasonable steps specific to the circumstances. What amounts to reasonable steps may be influenced by the length of time the Subscriber has known the client and whether they (or their firm) has represented that person in previous transactions. Ultimately, this would be determined by a Court on an objective basis – that is, what steps would an ordinarily prudent Subscriber have taken in the circumstances in the ordinary course of his or her business.

 In the current COVID-19 environment, Subscribers may consider using video technology as part of the verification of identify process. 

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 the amendment came into effect.

The amendment came into effect on 24 March 2020 pursuant to the Coronavirus Economic Response Package Omnibus Act 2020.

Ordinarily, if a person fails to prevent a company from incurring a debt when the person is aware at the time that there are grounds for suspecting the company is insolvent (that is, the company can’t pay its debts as and when they fall due) or will become insolvent (or a reasonable person in a like position in the company, in the company’s circumstances, would have been aware that the company is insolvent or will become insolvent), then that person is in breach of section 588G of the Act. Financial penalties would apply to that individual.

However, under the temporary measures, this provision is suspended if the debt is incurred in the ordinary course of business and during the six (6) months commencing from the date the amendment takes effect.

This effectively means the insolvent trading rules are relaxed for the next six (6) months.  Directors of companies do not have to prematurely place their companies into administration or liquidation to protect themselves personally from a claim of insolvent trading later on by a liquidator. They have some time up their sleeve to pursue other possibilities of how they can get their business back on track.

Please bear in mind that this is not a time to incur debt recklessly. The rationale behind the changes is to allow companies the time and opportunity to restructure their financing arrangements with the banks or potentially seek more favourable supply terms with its creditors. It may even mean that company directors seek advice on how to turnaround their business to achieve a better outcome that what would have been achieved had they gone directly to administration or liquidation.

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 debt, enter into a payment arrangement with the creditor or file and serve an application to the Court to have the demand set aside under section 459G of the Corporations Act 2001 (Act).

Part of the government’s economic response to COVID-19 is to create a safety net for distressed businesses. These are temporary measures only. Instead of the 21 days time frame a company has to pay or respond to the statutory demand, that period has now been extended to six (6) months. Once that period expires, the creditor can initiate winding up proceedings in either the Supreme Court of Federal Court.

Furthermore, a statutory demand could usually only be issued in relation to debts of $2,000 or more. That minimum monetary threshold has now been increased to $20,000.

These two changes give businesses some breathing space to defer some existing debt in these uncertain times.

Similarly, for individuals facing bankruptcy, the minimum debt threshold for creditors to issue a bankruptcy notice has increased from $5,000 to $20,000 as a temporary measure to give individuals some breathing space.

Furthermore, the time in which an individual can pay or respond to a creditor’s bankruptcy notice has now increased from 21 days to six (6) months.

These changes came into effect on 24 March 2020 as part of the Coronavirus Economic Response Package Omnibus Act 2020. These measures will be in place for six months, ending 25 September 2020. It is important to remember that these measures apply tothose statutory demands that were served on or after the date the changes came into effect.

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 so) that party does so at its own risk. A court will specifically compel that party to perform its obligations or will order substituted performance by way of an award of damages in favour of the promise.

Sometimes it can become impossible for one or more parties to the contract to perform their obligations under the contract, whether that be physically, economically or legally impossible.

The concept of a “force majeure” event is not a common law concept. It derives from French civil law, meaning “superior force” or “overwhelming force”. However, the concept is often incorporated into commercial contracts in common law countries. The clause governs the relief that is available when a party is not able to perform the obligations under the contract.

In Lebeaupin v Crispin [1920][1] the Court approved the definition of force majeure:

“Force majeure … [means] all circumstances independent of the will of man, and which it is not in his power to control, and such force majeure is sufficient to justify the non-execution of a contract. Thus war, inundations and epidemics are cases of force majeure.… [and also] a strike of workmen.”

For an effective “force majeure” clause, the clause must carefully define the events that will trigger the clause. Force majeure clauses are not implied. Your contract may contain references to defined events, natural disasters, government intervention, epidemics and in light of the COVID-19 crisis, pandemics. You will need to examine the relevant contract provisions to ensure you comply with the notice provisions to trigger the clause.

In our next article, we will examine the common law doctrine of frustration; which relieves parties from performing their contractual obligations.

Contact Conditsis Lawyers today for all your contract needs (02) 4324 5688


[1] 2 K.B. 714 at 719

Parenting Orders and COVID-19

As Federal and State Governments roll out unprecedented social distancing measures and restrictions, to slow the transmission of the highly contagious Coronavirus, we are receiving and responding to many enquiries relating to the obligations of Parents in complying with a variety of court orders in these difficult times.

We are in unchartered territory and the concern of parents is understandable. Of course, in many cases (if not most), these concerns are common to husband and wife and both are exercising caution and practising responsible (and necessary) social distancing.

Some parents have concerns about how they can comply with existing Parenting Orders, or, how a matter currently before the Family Courts will now progress.

On 26 March 2020, his Honour, Justice Alstergren released the following Media Statement, confirming that the Family Court remains open and providing some guidance as to the obligations of parents in these unprecedented times.  

“The Family Court of Australia and the Federal Circuit Court of Australia (the Courts) are acutely aware that the current pandemic is having an enormous impact on families and the Australian community.

Parents are naturally deeply concerned about the safety of their children and how the COVID-19 virus will affect their lives.  Part of that concern in family law proceedings can extend to a parent’s or carer’s ability to comply with parenting orders and what should be properly expected of them by the Courts in these unprecedented times.

The purpose of this statement is to clarify that the Courts remain open to assist parties, and to provide parents with some general guidance. However, it is understood that every family’s circumstances are different.

  1. It is imperative that parents and carers act in the best interests of their children. This includes ensuring their children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.
  2. Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.
  3. In the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with current court orders very difficult, if not, impossible. This may be caused, for instance, where orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating. Or, the “pick up” arrangements of a child may nominate a particular school, and that school is now closed. Many state borders are also closed. In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID-19, and this may restrict the safe movement of a child from one house to another.
  4. As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.
  5. If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other. This will be particularly important if there are later family law hearings and will assist all concerned, including the Court, to understand what agreement may have been reached.
  6. If you feel that you need further guidance, the Family Relationships Advice Line can provide information, advice and telephone-based Family Dispute Resolution services to assist parents and carers to discuss any issues that arise and help them come to an agreement. The Family Relationships Advice Line can be contacted on 1800 050 321 or visit the website.
  7. Parents and carers can also mediate their differences through lawyers. Electronic mediation services are available from the Courts and through local Bar Associations and Law Societies during these restricted times. Visit their websites for more information.
  8. If an agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the Court. This process is quick and usually conducted without a hearing.
  9. If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders.
  10. Where there is no agreement parents should keep the children safe until the dispute can be resolved. Also during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.
  11. At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court (pursuant to s70NAE of the Family Law Act 1975 (Cth)).
  12. It is imperative that, even if the orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children.
  13. The Courts appreciate that agreement by mutual consent may not be reached, particularly if one party has concern for their physical safety. Therefore, the Courts advise that if you or your child is in immediate danger, please contact your local police and seek medical advice if required.

In the meantime, the community should be assured that the Courts will continue to perform their duties during this time of crisis. Whilst changes to the Courts’ operations have been implemented in accordance with the necessary restrictions placed on our community by the Commonwealth Government, the Courts remain open to assist Australian families in these challenging times.

Judges, Registrars and staff are committed to providing access to justice when called upon to do so. This includes conducting hearings both via videoconferencing through the use of Microsoft Teams or other platforms, or by telephone. The Courts are also conducting mediations electronically and through other safe means.

There will be, in exceptional circumstances, a small number of face-to-face in-court hearings. For the safety of all concerned, these will only be granted when absolutely necessary. Those hearings will be conducted in strict accordance with the Face-to-Face in-Court Protocol issued by the Courts. As in any other interaction, social distancing requirements will be strictly be followed. Similarly, face to face interviews by family consultants will only take place in exceptional circumstances.

The Registries are still open for telephone appointments, electronic filing and the listing of urgent cases. Family Consultants will also continue their vital work through these electronic mediums as best they can.”

If you would like to discuss your obligations as a parent, or how your Family Law matter might proceed in these very difficult times, please contact our Family Law team at Conditsis Lawyers to book a telephone or Video Conference with one of our experienced Family Law specialists.

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 not provide much guidance as to what “fit for habitation” means. Since the Act’s inception, there have been several cases decided by the New South Wales Civil & Administrative Tribunal (Tribunal) as to what amounts to “fit habitation”.

The new changes will be more prescriptive as to what constitutes “fit for habitation”.

Section 52 of the Act will be amended to specify the minimum requirements that must be satisfied for residential premises to be fit to live in. A residential premises must:

  • Be structurally sound*;
  • Have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used for storage or a garage;
  • Have adequate ventilation;
  • Be supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to the premises and use of appliances in the premises;
  • Have adequate plumbing and drainage;
  • Be connected to a water supply service or infrastructure that supplies water (water tank for instance) that can supply hot and cold water for drinking and ablution and cleaning; and
  • Contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user.

*A premises is structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roofs, balustrades and railings:

(a) are in a reasonable state of repair, and

(b) with respect to the floors, ceilings, walls and supporting structures—are not subject to significant dampness, and

(c) with respect to the roof, ceilings and windows—do not allow water penetration into the premises, and

(d) are not liable to collapse because they are rotted or otherwise defective.

In our next article, we will explore the Tribunal’s decisions about whether premises are fit for habitation and the tests they apply to determine whether a premise is fit or unfit for habitation.

Contact the team at Conditsis Lawyers on (02) 4324 5688 to demystify your tenancy rights and obligations.

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 Regulations’) and the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (‘SEPP’) at the same time. The changes to the SEPP now bring the demolition or partial demolition of a building, the structure of which is significantly damaged by a bush fire, within exempt and complying development legislation. Other changes to the SEPP allow repair works to be carried out to fences, gates or other barriers and necessary repairs to be carried out to make a building or structure secure and waterproof (other than repairs to a structural element of the building) without the need for development approval.

The objective of the Caravan Regulations is to assist in the provision of emergency accommodation for persons affected by bush fires. The changes:

  1. Permit the owner, manager, operator or caretaker of a caravan park or camping ground to authorise a person to stay in the caravan park or camping ground for an extended period (of up to 2 years) if satisfied that the person displaced because of a bush fire: section 74(3).
  • Permit the installation of a moveable dwelling on land without the need for approval for the purpose of accommodating a person displaced because of a bushfire if it is maintained in a healthy and safe condition and is removed within two (2) years: section 77(d). 
  • Do not require prior council approval to install a moveable dwelling if the owner, manager, operator or caretaker of a caravan park or camping ground is satisfied that the installation is necessary to accommodate a person who has been displaced because of a bushfire: section 74(4A).
  • Empower the general manager of a council to modify conditions to which a ‘primitive camping ground’ is subject if the general manager is reasonably satisfied that it is necessary for the purpose of accommodating persons that have been displaced by fire: section 132(6). A primitive camping ground usually means a camping ground within running water, bathroom facilities, electricity and often, cell service.

You’ll find the team at Conditsis Lawyers is here to demystify all your local government and planning needs. Contact us today on (02) 4324 5688

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 Act means a defect in a major element of a building (attributable to defective design, defective or faulty workmanship, defective materials or a failure to comply with the structural performance requirements of the National Construction Code or any combination of these) that causes or is likely to cause, either:

  1. the inability to inhabit or use the building (or part of it) for its intended purpose;
  2. the destruction of the building (or part of it); or
  3. a threat of collapse of the building (or part of it).

“Major element” means an internal or external load-bearing component of a building that is essential to its stability, a fire safety system or waterproofing.

The Court said that the definition of a major defect should be given a broad meaning. It further held that it was not necessary for the defect to have already caused an inability to inhabit part of the building or created an imminent risk of destruction or collapse of the building in order to amount to a major defect; only that there were reasonable prospects of those consequences to occur. It is not necessary to establish that those consequences are imminent either.

The significance of whether a defect is “major” or “minor” is that for minor defects, owners have only two years in which to make a claim for compensation against the builder while that period is extended to 6 years for major defects.

In this case, Ashton sold her house to Stevenson in May 2016. Ashton had undertaken residential building work to the house in 2014 under an owner-builder permit. The work was completed in May 2014. Less than a month after settling on the purchase of the house, Stevenson noticed a water leak in the ceiling after a heavy downpour of rain. He commenced proceedings in November 2016, arguing that there was significant water penetration into the building from the first floor balcony and that this was a major defect. He also raised other roofing and guttering issues, but these were not considered major defects.

The Court accepted Stevenson’s expert evidence that the balcony membrane was possibly leaking at the junction of the parapet walls and in the expert’s opinion the construction of the balcony did not comply with the Australian standard AS4654.2-2009. Eventually, if the waterproofing to the balcony was not rectified, water penetration would cause the plasterboard sheets in the ceiling below and the joists and timber to rot and decay.

While this case concerned renovations to a single terraced house in Darlinghurst, owners corporations are regarding this case as a win for strata titled buildings because it will make their claims against developers easier. Waterproofing issues are very common in strata titled buildings.

Contact Conditsis Lawyers on (02) 4324 5688 to demystify home building warranty claims and any other property law matters.


[1] NSWCATAP 67

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 of residential lots that have not been created at the time of the contract.

The most significant change is the introduction of a disclosure statement, similar to what retail landlords (and franchisors) are accustomed to preparing prior to entering into a retail lease (franchise agreement) with a tenant (franchisee). The disclosure statement must be attached to the contract.

The Conveyancing (Sale of Land) Amendment Regulation 2019 prescribes that certain matters must be included in a disclosure statement. These matters include:

  • A draft plan containing sufficient information to identify the location of the lot, the proposed lot number, the area of the lot and if the lot is included in a proposed strata scheme, the draft floor plan and draft location plan (excluding parking or storage areas) amongst other things;
  • A proposed schedule of finishes;
  • The proposed by-laws or management statement (if any); and
  • Proposed site of any easements, restrictions or other access rights.

If there is a change to a “material particular” (being a change in the draft plan, by-laws, management statement or schedule of finishes that will or is likely to adversely affect the use or enjoyment of the lot), the developer must serve the purchaser with a notice of changes. This will entitle the purchaser to rescind the contract within 14 days or claim compensation from the vendor of up to 2% of the purchase price. The claim must made on the vendor prior to completion.

The other notable change is that the cooling off period for off the plan contracts has been extended to 10 business days whereas the cooling off period under contracts for the sale of established homes is only 5 business days.

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 business, history of the business, work safety record of the business, suspicions of “phoenixing” activity (where companies are deregistered after incurring debt and then a new business reemerges) and financial credibility, amongst other “metrics”. The rating system is scheduled to come into effect from July later this year.

The rating of a developer will not be publicly accessible in the first instance, but the government has flagged that “there may be an opportunity to open it to other uses in the future” 1 . The rating will be available to purchasers as a pre-purchase report. Presumably it will be similar to the credit risk report one can obtain when investigating the financial viability of a company. A buyer will be able to purchase this report as part of its due diligence prior to exchanging contracts with a developer for an off the plan purchase.

The new ratings system does nothing to ensure a high-quality standard of construction. By itself, the system will not prevent poor workmanship or the use of poor or second-hand materials by builders. However, this rating system coupled with the new NSW Building Commissioner’s powers will be a welcome change for off-the-plan buyers. The powers of the NSW Building Commissioner will include disallowing the issue of an occupation certificate from the Council or the private certifier for poorly constructed buildings and enable buyers’ to have their deposits returned to them in the event an occupation certificate is disallowed.

You’ll find the team at Conditsis Lawyers is here to demystify all your development and conveyancing questions. Call us on (02) 4324 5688.

1 Spokesperson for NSW Better Regulation Minister, Kevin Anderson, January 2020

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 damages would be an adequate remedy. 

In 2014, the Queensland Supreme Court said in GWC Property Group Pty Ltd v Higginson & Ors [2014] QSC 264 that provisions in leases that purported to require tenants to repay fit-out costs or an incentive paid to the tenant (upon default) were “wholly penal in their operation: providing for significant sums to be paid over and above damages which would be payable to the landlord at common law”. 

In that case, the presiding judge, Dalton J, said that for the defendants to establish that the clauses were penal (and therefore unenforceable), they needed to show that the stipulated repayments were extravagant and unconscionable in comparison with the maximum loss that might be suffered on breach of the contract. 

VCAT applied this test in Finetea Pty Ltd v Block Arcade Melbourne Pty Ltd (Building and Property) [2019] VCAT 1529. The landlord and tenant entered a lease of a premises situated in the basement of the Block Arcade in Collins Street, Melbourne. When the tenant defaulted, the landlord sought to recover the value of incentives totalling $555,000 divided into a rent credit of $355,000 and a cash incentive of $200,000 towards fit out works, pursuant to Special Provision 4.4 of Annexure C to the Lease. 

The Court held on the issue of the repayment clauses that the landlord obtained the benefit of the Lease and a contractual right, after the rent-free period had expired, to receive rent and outgoings for the term of the Lease. The rent was struck on the expectation that the premises would be fitted out in the manner contemplated at the expense of both parties and then occupied by the tenant for the period of the lease. Had the tenant not broken the lease, it would not have been responsible for paying rent and outgoings for the rent-free period, nor would it have been responsible to repay the landlord its contribution towards the fit out. The rent-free incentive and the fit out contribution were part of the consideration for its entry into the lease. 

The lease preserved the landlord’s entitlement to recover common law damages. To seek to recover the incentives in addition to those damages would be a “double recovery” and plainly “extravagant and unconscionable in amount” and out of all proportion to the damage it has suffered. 

You’ll find that the team at Conditsis Lawyers is here to demystify commercial leases. 

(02) 4324 5688 enquiry@www.conditsis.com

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 land (leases, covenants, other rights in the land) and fixtures attached to the land (improvements erected on the land).

Generally, the law of the place where the thing is situated will determine the succession of immovable property. However, in relation to movables, the law of the deceased’s domicile at the date of death will apply, as opposed to the law of one’s nationality.

The distinction between movable and immovable property was explored in Haque v Haque (No 2) (1965). [1] The deceased was a man named Abdul Haque. The deceased’s Will was executed in Western Australia. In that Will, the deceased left the entirety of his estate to his brother. The deceased died while a resident of India. He had a wife and children who would be entitled under Muslim law in India. The assets situated in Western Australia included the unpaid balance of the purchase price on the sale of land and shares in partnerships (which owned several parcels of land).

Barwick CJ stated that there was “a sufficient correspondence” between the interest of an unpaid vendor in land sold and the interest of a mortgagee in mortgaged land, to justify applying the same character or quality for the purposes of determining the proper law as to its succession.

The High Court upheld the Court of Appeal’s decision that certain assets were movable assets or choses in action (even though some of the property was land). That is, the unpaid balance of purchase price moneys and shares in the partnerships were movable assets. Therefore, those assets vested in the deceased’s wife and children. By the Muslim law operative in India, the deceased was denied any testamentary capacity as to movables. By that law, they passed by succession to his next of kin.

Contact the team at Conditsis Lawyers for all your estate planning needs on (02) 4324 5688 or by email at enquiry@www.conditsis.com


[1] 114 CLR 98

What is an employer’s obligation to support employees who suffer a mental illness?

In the Federal Court decision of Tropoulos v Journey Lawyers Pty Ltd [2019][1], the Court considered the obligations of an employer to an employee who suffered a mental illness. Mr Tropoulos was a senior associate solicitor employed by Journey Lawyers. Journey Lawyers was a small specialist family law firm located in Queensland.

Mr Tropoulos suffered from a depressive disorder. His disability within the meaning of section 4 of the Disability Discrimination Act 1992 (Cth)(Act) was not in dispute between the parties.

Mr Tropoulos took leave from his employment for approximately six (6) months because of his disability and afterwards sought to return to work on a graduated basis, that is, five half-days per week as a senior associate.

Journey Lawyers proposed the basis upon which Mr Tropoulos returned to work which included, amongst other things, an initial three-day week on a reduced annual salary as a “family lawyer” in lieu of a senior associate. Journey Lawyers further proposed that Mr Tropoulos work in an open plan setting rather than work from his previously allocated office as that office had been allocated to another full-time associate.

Mr Tropoulos rejected this proposal and filed a complaint with the Australian Human Rights Commission and subsequently the Federal Court.

Section 5 of the Act provides that a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability if the discriminator does not make or proposes not to make reasonable adjustments for the person and that failure has or would have the effect that the aggrieved person is treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

Mr Tropoulos argued that his employer failed to make reasonable adjustments to his role and was in breach of the Act. The Act contemplates that an adjustment is reasonable unless the making of the adjustment would impose unjustifiable hardship on the person.

Mr Tropoulos was unable to perform billable work at anywhere near his previous levels and provided no indication of when he would be able to do so. The Court noted that the employer had made reasonable adjustments notwithstanding that it rejected the employee’s proposal of a five half-day working pattern in favour of a three-day working week with an offer of additional leave if required. Due to the firm’s small size, the financial strain of a five half-day working pattern would cause the employer unjustifiable hardship.

The employer had sustained the employee’s salary and position for an extended period but because it was a small firm with tight budgets, the Court found that further extension of this support would impose unjustifiable hardship on the employer.

It would be interesting to see if similar facts concerning a large legal practice (without the same tight budgets or financial constraints) would yield the same result in the Federal Court.

Contact the team at Conditsis Lawyers for all your employment questions on (02) 4324 5688 or by email at enquiry@www.conditsis.com


[1] FCA 436

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 bankrupt’s divisible assets and are not available for the benefit of creditors: section 116(2)(a) of the Act. If the bankrupt is a beneficiary under the family trust, the trust will not make any distributions to the bankrupt as those distributions would likely become divisible assets or assessable income during the bankruptcy period.

The full bench of the High Court recently clarified when trust property will vest in the debtor’s trustee. In Boensch v Pascoe [2019][1] the Court dismissed an appeal from the Federal Court by discharged bankrupt, Mr Boensch, who was claiming compensation under section 74P of the Real Property Act 1974. Mr Boensch claimed that Mr Pascoe (the trustee in bankruptcy) had lodged a caveat over the title to property in Rydalmere owned by Mr Boensch as co-trustee of a family trust without reasonable cause. The caveatable interest claimed by Mr Pascoe in the Rydalmere property was a ‘Legal Interest pursuant to the Bankruptcy Act’.

The High Court concluded that “there is no reason to doubt that, upon the making of the sequestration order, the Rydalmere property vested in equity in Mr Pascoe by reason of Mr Boensch’s right of indemnity and, therefore, that Mr Pascoe had a caveatable interest in the property…….. On the facts as found, Mr Pascoe did not lodge or refuse to withdraw the caveat without reasonable cause”.

In practical terms, this means that a trustee’s right of indemnity to be paid out of trust assets for costs incurred in administering that trust, such as rates, mortgage payments and utilities, is a sufficient interest to cause the trust property to vest in the trustee in bankruptcy. In other words, the trust can be attacked. Circumstances where property would not vest in the trustee in bankruptcy are if the trust had no debts or expenses or if debts and expenses accrued but went unpaid for the bankruptcy period or if the trustee had no right to be remunerated out of the trust assets.


[1] HCA 49

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 bullied you at work. Your employer and the person(s) you allege has bullied you at work (sometimes one and the same person) will be provided with an opportunity to respond to your application. 

A worker is bullied at work if an individual (or group of individuals) repeatedly behaves unreasonably towards the worker (or a group of workers) and that behaviour creates a risk to health and safety1. 

A “stop bullying” order may be made under section 789FF of the Fair Work Act 2009 (Act) if the Commission is satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied at work. 

Aside from a “stop bullying” order, the Commission can make an order requiring a review of the employer’s bullying policy or order that the workers be provided with further information, additional support and training, amongst other things. 

Because of the nature of the complaint, the Commission is obligated to deal with such an application promptly. It has 14 days after the application is made in which to “start to deal” with it under section 789FE of the Act. The Commission may direct a conciliation conference or mediation take place between the parties, require certain persons attend the Commission, invite oral or written submissions, require documents or records, conduct inquiries and hold a hearing.  

If the matter proceeds to hearing, it is important to note that the Commission cannot make an order for a monetary amount in these types of matters. That is, no compensation order can be made, or fines ordered to be paid.  

You’ll find that the team at Conditsis Lawyers is here to help with your employment law issues.  

(02) 4324 5688 enquiry@www.conditsis.com

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 grandchild. 

Ms Lapalme passed away in 2015. At the time of her death, she had three grandchildren. 

Two more children were born between the date of her death and the date of the hearing. 

The Court was asked to determine which grandchildren were to share in the residue of Ms Lapalme’s estate; only those alive at the time of the Will or at the time of her death or even those born after her death. 

The Court observed that, subject to the terms of the Will and surrounding circumstances, “where a beneficiary under a will is identified by way of description, the law presumes those who fulfil that description at the date of execution of the will take the gift”. However, that presumption is displaced where the gift is to a class of beneficiaries, such as this one, in which case those who fulfil the description at the date of death will take the gift. 

As to those grandchildren that were born after the date of death, the Court considered Ms Lapalme’s intention – that it would be highly improbable that Ms Lapalme would have intended to exclude grandchildren born after her death. 

A secondary issue arose as to when does the class of beneficiaries close especially if two children born after her death were included in the class? The Court held that when one grandchild attains the age of 18 years is when the class of beneficiaries closes, that is, when one of the grandchildren meet the condition(s) in the Will. 

Interestingly, the Court concluded that even a grandchild that was conceived but not born as at the date the class closed was included in that class of beneficiary. This seems at odds with the ordinary meaning of “those grandchildren as shall survive me” but it is an established principle of succession law that even an unborn child (that is subsequently born alive) is part of a relevant class of beneficiaries.

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 be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph” or “are used, or proposed to be used, for the carrying on of any business in a retail shopping centre”: section 3, Retail Leases Act 1994 (Act). Helpfully, Schedule 1 of the Act lists those businesses that are taken to be “prescribed for the purposes of this paragraph”. While this seems a very protracted definition, it promotes a great deal of certainty by prescribing what is a retail premises. Any business not on the list is simply not a retail premises and therefore not governed by the Act.


In Victoria, there are two limbs to the definition of retail premises; only one of which needs to be satisfied in order to amount to a retail premises. The first is similar to NSW, the second element provides that a retail premises is premises that are used wholly or predominantly for the sale or hire of goods by retail or the retail provision of services. There is no definition of ‘premises’. This second element has generated a great deal of uncertainty.


In Phillips v Abel [2019], the tenant argued it did not have to pay certain outgoings levied by the landlord because the landlord had not complied with its obligations relating to the provision of a statement of outgoings. The landlord argued that the Act did not apply because there was no retail shop operating on the land. The dispute made its way to the Tribunal to determine if the land was a retail premises for the purpose of the Act.


The tenant operated a sand quarry from the land, extracting sand, clay, gravel from the land and selling it to customers who then went on to use the material to make concrete, tiles or building blocks. It was essentially vacant land. The Tribunal applied the ‘ultimate consumer test’ from its 2017 decision of IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd. Relevant factors include a consideration of who is the ‘end-user’ of the goods or services, is a fee paid for the goods or services, can anyone acquire these goods or services for a fee and did the tenant’s customers pass these goods or services on to anyone else? The lease was found to be a lease of retail premises because its business amounted to a retail provision of goods and services.


The interesting take-away point from this decision and the IMCC decision is that it is unnecessary to have a shop, building or other structure erected on the land in order to constitute a retail ‘premises’. The focus is on what the tenant actually does on the land, not the nature and character of the land itself. The other important thing to note is that a lease of premises that would traditionally have been excluded from the operation of the Act may now fall within its reach.

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 price of $440,000. However, only the brother, Dr Nguyen, was recorded as the sole registered proprietor. Completion of the contract took place in February 2002.


The Court accepted that the brother could only obtain a loan up to $250,000 and was therefore unable to acquire the investment property by himself.


Accordingly, both brother and sister Ms Thi Nguyen, became co-borrowers on a loan from the CBA in the sum of $335,000. A mortgage was taken over the property. It was accepted that the sister paid $90,000 to the CBA to reduce the amount of her and Dr Nguyen’s liability on the loan in the 15 months following completion.


The sister paid the 10% deposit and stamp duty.


Between 2003 and 2006, the sister and her partner moved into the Terrigal property and rented out their former residence in Sydney. The brother argued that he rented the property to his sister and that she held no beneficial interest in the property. However, there was no evidence that she paid any rent to the brother during this period – other than the mortgage repayments which the brother contended was the rent payable to him for that period.

The brother occasionally stayed at the property and the sister and her husband accommodated him by moving out of the premises during those times. Further, in 2006 bathroom and kitchen renovations were undertaken to the property paid for exclusively by the sister. These circumstances did not lend to a landlord-tenant relationship.


In 2007, the sister moved out of the property.

Between 2010 and 2014, the property was tenanted to third parties. The rent was directed to the sister’s partner during that period. The rent was unaccounted for and was not dealt with in these proceedings.
From 2014, the brother rented out the property. That rent was unaccounted for again and was not dealt with in these proceedings.

The sister sought a declaration that her brother held part of the property on trust for her. The Court made orders that the brother held 40% of the Terrigal property on constructive trust for his sister on the basis it would be unconscionable for her brother to deny she had an equitable interest in the property.

The Court did not examine whether there was a resulting trust because there was on going joint venture between the two siblings, that is, an inferred agreement between the two siblings that they wanted to jointly invest in an investment property.


Had there not been any joint venture between the brother and sister, then the Court would need to examine the sister’s alternative resulting trust argument, which would have been strong because she contributed to a substantial portion of the purchase price in any event.

Call Conditsis now for all your co-ownership agreement needs: (02) 4324 5688

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 property.


In this case, the mother Anita Henley paid the 10% deposit on the purchase of a Ballina property in 2011 on exchange of contracts and then paid the balance of the purchase price of $525,000 on completion. However, the contract for sale was in the name of her son, Gregory Henley, exclusively and accordingly Gregory went on to become the registered owner of the property on completion.

Gregory did not contribute anything to the purchase price and in fact, he received the benefit of the first home buyer’s grant and stamp duty concession.


Gregory passed away in 2017. The mother sought a declaration that Gregory held the Ballina property on a resulting trust for her as she contributed the whole of the purchase price and that it was not an asset of Gregory’s estate. The only two children of Gregory defended the proceedings.


Normally, where a person contributes the whole of the purchase price in the name of a second person, a presumption arises that the first person did not intend the second person to take a beneficial interest in the property and a resulting trust will arise in favour of the first person, that is, the person who contributed the whole of the purchase price. This presumption can be rebutted.


The Court found that there was no resulting trust in favour of the mother.


The mother’s evidence was inconsistent – she gave evidence that Gregory was buying the property on her behalf and thought she was recorded as the owner and then further contrary evidence was given that Gregory had to act quickly to secure the property so he put it in his name only.


Gregory lived in the property for 6 months following completion in order to satisfy the first home buyer grant conditions and then vacated the property. The mother then moved into the property after this time. This meant that the mother was more likely than not to have been aware of the conditions of the first home buyers grant and stamp duty concession.


As all negotiations on the property were undertaken by Gregory and the mother had no contact whatsoever with the agent or conveyancer that acted on the purchase, the Court held that for all intents and purposes the property was Gregory’s property. This was then subject to a personal obligation to permit his mother to treat the property as her own and to reside in the property until her death.


The case highlights how imperative it is that the intention of the parties is documented prior to entering a property transaction otherwise there may be unintended consequences if the matter proceeds to Court.


Call Conditsis Lawyers for all your co-ownership agreement needs (02) 4324 5688

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” that you pay a debt, failing which they will commence proceedings to recover the debt.  

A statutory demand means the company will have 21 days from service (formal receipt of the statutory demand) in which to either pay the debt, the subject of the demand, enter into a payment arrangement or file and serve an application to the Court to have the demand set aside under section 459G of the Act.

The period of 21 days is strict.

If you fail to do any of these things within the time limit, an application can be made to wind up your company.

In Sheraz Pty Ltd v Rumsley [2019] FCA 493, Rumsley served a statutory demand on Sheraz Pty Ltd on 24 January 2019. Sheraz had until 14 February 2019 in which to file and serve an application to set aside the demand.

Sheraz filed its application on 7 February 2019, but for whatever reason it did not take immediate steps to serve the application on Rumsley. It served the application by email on the last day of service (14 February 2019) at 4:59pm. Rumsley did not see the email until 25 February 2019.

While Sheraz may have had grounds to set aside the statutory demand on the basis that there was a genuine dispute on foot in relation to the existence of the debt, it was unsuccessful in having the demand set aside.

The Court considered that service by email prior to the deadline, albeit by one minute, was insufficient in the circumstances. Service under section 459G means personal service so the application needed to have come to the attention of Rumsley prior to the deadline. The case may have yielded a different result if the email address of the creditor had been included in the statutory demand.

Not only was Sheraz’s application to set aside the statutory demand dismissed but it was ordered to pay Rumsley’s costs in the proceedings.

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, Milorad’s brother. 

The Will contained an “executor’s discretion” where Milorad could postpone the sale of any asset for as long as he may think fit in his absolute discretion. Following payment of the estate’s debts, the remainder of the estate was to be divided between his two children as tenants in common in equal shares.

On 25 May 2018, Sinisa made an application to the Court to remove his brother as executor of the Estate on the grounds that Milorad had failed in the due and proper administration of the Estate.

The Estate consisted of two properties in Canley Heights, each exceeding $800,000. Milorad resisted calls for the sale of these properties and the distribution of the Estate by his brother on the ground that the deceased did not want to him to sell any property. He denied that this conduct amounted to conduct that would see him removed as an executor.

J Rein found that Milorad had failed to administer the Estate. He noted the discretion contained in the Will not to sell the real estate, but that this discretion did not amount to an instruction not to sell the real estate. The Court also found that he had intermingled his money with that of the Estate’s, falsely omitted his brother as a beneficiary under the Estate in the summons for Probate to the Court, received monies from the Estate without justification, and did not keep adequate records of claimed expenditure on behalf of the Estate.

For these reasons, the Court was satisfied that Milorad should be removed as executor of the Estate. Sinisa also made a claim for family provision.  An order was made in his favour that the assets of the Estate were to be sold and an equal distribution made to the two brothers after payment of relevant costs.


[1] NSWSC 1208 (15 July 2019)

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 Court appeal related only to a limitation period pleaded by the defendant.

A limitation period essentially bars the remedy sought by the appellant, that is, it permits a good defence to be pleaded.

The case involved a question of statutory interpretation arising from two provisions in the Limitation of Actions Act 1974 (Qld).

The first provision was section 26(1) which contains a 12 years limitation period that applies to an action “to recover a principal sum of money secured by a mortgage or other charge on property”. This provision encompasses, relevant to this appeal, debts created by statute and secured by charge, such as council rates and charges.

The second provision which overlaps with section 26 is section 10 of the Act. This provision relevantly creates a six years limitation period for “an action to recover a sum recoverable by virtue of any enactment”, amongst other things. This equally applies to council rates and charges.

The issue was whether section 26 that provided a “longer” 12 years limitation period excluded the operation of the “shorter” six years limitation period in section 10.

The Court relied upon an historical English case of Barnes v Glenton [1899] that held while there could be overlapping limitation periods, a longer limitation period would not extend a shorter limitation period. Both provisions apply. The result is that the registered owner of rateable land who is the defendant to that action, Mr Amos, is free to invoke by way of defence that limitation period which is shorter and more advantageous to him. The appeal by the Council was dismissed with costs.


[1] HCA 27 (4 September 2019)

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 the risk to the property remains with the vendor. The risk in the property does not pass to the buyer until completion. (Contrast this with the position in QLD where the risk passes to the buyer following exchange). The exception to this rule is if the purchaser has already taken possession of the property prior to completion.


A buyer can rescind the contract where the land is substantially damaged after the making of the contract for the sale of land. All money paid by the purchaser under the contract must be repaid to the purchaser and both the vendor and purchaser are relieved from liability. This is a right that the purchaser only can exercise pursuant to section 66L of the Conveyancing Act 1919 (Act).


The Act defines land as “substantially damaged” if the damage renders the land materially different from that which the purchaser contracted to buy.


In Bakhos v Fenner & Anor [2007] NSWSC 641, a house was damaged by fire after the making of a contract for sale and prior to completion. The purchasers sought to rescind the contract under section 66L of the Act. The vendor treated the purported rescission of the contract as repudiation of the contract and terminated the contract. The Court found that the damage was minor. There was smoke damage to the walls and the ceiling in the lounge room and sunroom had sagged as a result of water from the fire department putting the fire out. The ceilings were otherwise in good condition. The carpets were burnt, and the windows had shattered. However, expert evidence from a structural and civil engineer illustrated that the property was still habitable; the mortar in the internal and external walls was still intact, the walls were upright and showed no signs of distress and the roof was in good condition. The Court made a declaration that the Contract was validly terminated by the vendors and were entitled to retain the deposit.

But what happens if they don’t rescind? The Act provides that there must be an abatement of the purchase price which may be adjusted on settlement. The price reduction should be “just and equitable in the circumstances” pursuant to section 66M of the Act.

The Cannabis Cautioning Scheme

The debate over how to deal with cannabis use is back in the headlines again, courtesy of the ACT Government. In September of 2019 the ACT Government passed laws decriminalising the possession of small amounts of cannabis and cultivation of small numbers of cannabis plants. This approach to the problem of cannabis use has generated a great deal of controversy and polarised community views. However, it is by no means new. A not dissimilar policy has been operating in New South Wales for the past 19 years. It’s called the Cannabis Cautioning Scheme. In deciding on the merits and demerits of the new ACT Laws, it is instructive to look at the New South Wales experience. So, what is the Cannabis Cautioning Scheme and how has it performed?

How does the Scheme Work?

The New South Wales Cannabis Cautioning Scheme allows Police who catch offenders in possession of small amounts of cannabis (up to 15g) to give the offender a caution rather than charging them with a criminal offence and requiring them to front up to court.

An offender can get up to two (2) cannabis cautions in a lifetime. The first police caution comes with a notice which aims to educate the user about the ill effects of cannabis use. A second caution comes with a requirement for the offender to undergo a mandatory education session on the same topic.

Has it worked?

The short answer is – not really. As you would expect, the Scheme has saved the NSW Government substantial amounts of money. Diverting offenders from the court system saves time and money to both the Police Force and the court system. However, that is not really how success should be measured. Success depends on whether the Scheme has reduced rates of cannabis use. On that metric, the news is not very positive. There is no evidence at all that the Scheme has had any impact on rates of cannabis use in NSW so, as a public health measure, it has been a failure.

Lessons for the ACT

If the New South Wales experience is anything to go by, there is no reason to be optimistic about decriminalisation of cannabis in the ACT. If anything, the ACT Policy runs the danger of making the problem of cannabis use worse. This is because it applies to much larger amounts of cannabis than the New South Wales Scheme, allowing users to possess anything up to 50g. In addition, by “decriminalising” or, more accurately, legalising possession of up to 50g of cannabis, it sends a message to the community that use of relatively small amounts of cannabis is okay and potentially promotes further drug use. Ultimately, only time will tell how the bold experiment with legalisation will work out for the ACT.

If you would like to learn more about cannabis use and other drug laws please get in touch with our criminal lawyers today.

Illegal Mobile Phone Use On NSW Roads

The current penalty for using a mobile phone whilst driving a motor vehicle is $344 and five demerit points. But is this enough to deter drivers from using a mobile phone whilst on the road? The NSW Government is not convinced.

With the increase of fatalities on NSW roads over the last year, the NSW Government is on a mission to change the overwhelmingly high number of motorists using their mobile phones on the road.

In early 2019, a six-month trial was conducted in an effort to capture drivers using their phones illegally. During that trial, several high-tech mobile phone detecting cameras were installed in two locations across NSW, hidden from road users and operating on a 24-hour basis.

Unsuprisingly, more than 100,000 drivers were found to be using their mobile phone whilst operating their motor vehicle.


So what is the answer?

Recently, the NSW Government introduced the permanent installation of high-tech mobile phone detecting cameras across NSW. As part of the investment, the government will spend approximately $88 million dollars on the installation of cameras, around 45 locations across the state. These cameras will operate 24 hours a day and will not have any warning signs to alert drivers as they approach.


But how will they operate?

According to the new legislation, cameras will take a photograph if an object is held by the driver of a motor vehicle and if such an object “is presumed to be a mobile phone… either held by, or resting on, any part of the driver’s body”.

The cameras will use their artificial intelligence to snap a photograph of a vehicle, in circumstances where it is presumed the driver is using a mobile phone whilst operating a car.  


How accurate will the cameras really be?

The installation of mobile phone detecting cameras appears pivotal in combatting the high statistics of illegal mobile phone use in NSW, however, doubt has risen over the accuracy of the new high tech device.

Concerns have been raised that drivers may cop fines for simply eating food behind the wheel. As Mr Michal Mantaj (Trial Advocate) says, “there will be many drivers who will be doing nothing more than maybe holding a chocolate bar”.

The NSW Government has ensured that all photographs captured by the device will be reviewed by a person, who will ultimately determine whether or not, in fact, that person is holding a mobile phone device.

The cameras are expected to be in full-force by December 2019.

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. The name of the order is derived from an old English case of the same name where the executor could not locate a beneficiary. Such an order applies where there is uncertainty about a factual matter relevant to the distribution of the estate.

In Cooper’s case, Mr Henry Cooper died in 1996 with an estate worth approximately $47,000. He died without leaving a will. He did not have a spouse or children. The order of distribution on intestacy were his parents, siblings, grandparents, aunts and uncles and then cousins. There were several inconsistencies as to the dates on his birth certificate and death certificate and his own parents’ death certificates and other inconsistencies concerning the number and names of his siblings.

The Court held that the possibility of a person entitled to the deceased’s estate surviving him was so remote that it could be disregarded. The Court granted the orders sought by TAG.

A Benjamin order can include a declaration by the court that a beneficiary, predeceased the deceased or that the applicant is at liberty to distribute the estate because it can’t locate the whereabouts of a beneficiary or any other declaration as to who should benefit from the estate. The personal representative of the estate is then excused from any personal liability in the event a beneficiary comes forward later to claim that they have not distributed the estate correctly because the court has made such an order.
The personal representative is required to make all necessary and proper investigations as to who may be entitled to the estate and their whereabouts before the Court will be minded to make such an order.


You’ll find that the team at Conditsis Lawyers is here to demystify the estate process.

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 the attorney to obtain that information.

In Hawkins v Clayton [1988] HCA 15, the High Court held that a solicitor or any other person for that matter, holds a person’s will as bailee. Subject to the terms of the bailment (the legal relationship created between the bailor (the person making the will) and the bailee (usually a solicitor), the bailee owes an obligation to the bailor to exercise reasonable care with the will. The same can be said concerning an original title deed.

There is a popular view that an attorney should be provided with a copy of the will because it would be useful for an attorney to be informed of how the principal intends to dispose of his or her property upon their passing. In this way, the attorney can properly discharge his or her role as attorney. For instance, if the principal gifts certain real property under their will to a beneficiary but the attorney is not privy to this information and sells that same real property during the principal’s lifetime, that specific legacy will fail. Nevertheless, the position in NSW is still that an attorney is not entitled to a copy of the will.

Interestingly, a financial manager appointed by court or tribunal order (whether a private person or the NSW Trustee & Guardian has been appointed as financial manager) is entitled to a copy of the principal’s will by virtue of section 80 of the NSW Trustee & Guardian Act 2009. Arguably, the functions of an attorney and financial manager are the same. However, the Powers of Attorney Act 2003 does not confer such a right on the attorney.

The best course of action is for the principal to give an express direction in the power of attorney document itself as to whether the attorney can access the principal’s will, the type of access allowed and the circumstances in which that access can be obtained.

You’ll find that the team at Conditsis Lawyers is here to demystify the estate planning process.

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 Corporation (Liability Trial) [2019] this week.

The regulator took on one of the “Big 4” on the back of the findings of the Banking Royal Commission and came up short. It alleged that Westpac contravened the National Consumer Credit Protection Act 2009 (Cth) (Act) by using an automated system for home loan approvals, amongst other things.

The first allegation against Westpac was that the bank failed to have regard to the living expenses declared by consumers on their loan application forms.

The second set of allegations against Westpac was that it underestimated the total amount of interest payable over the life of a loan in circumstances where there was an initial interest only period before payment of principal was required. ASIC’s second allegation against the bank was dispatched quickly because where loans with a variable rate are concerned, the total interest payable over the life of the loan is indeterminate. Therefore, the bank had elected to amortise the interest over the life of the loan. The judge decided that “there is nothing” in ASIC’s argument that the bank contravened the Act.

The Court was very critical of the regulator and dismissed the case against it with a costs order to pay Westpac’s costs.

In relation to the first allegation, the Act requires the bank only to assess whether a consumer is unsuitable for a loan. To do this, it must make reasonable inquiries about the consumer’s financial situation and take reasonable steps to verify the consumer’s financial standing, amongst other things, under section 130 of the Act. After making reasonable inquiries, it must determine whether the consumer will be unable to comply with the consumer’s financial obligations under the contract or alternatively, whether the consumer could only comply under substantial hardship.

The Court held that the bank had made reasonable inquiries and taken reasonable steps to verify the consumer’s financial situation, but it was not required to go one step further – that is, to apply the consumer’s declared living expenses to make this assessment. The bank admitted to using the Household Expenditure Measure (HEM) benchmark published by the Melbourne Institute of Applied Economic and Social Research every quarter to assess a consumer’s financial situation. Evidence suggested that this HEM benchmark is the benchmark used by the Australian banking industry to assess household expenses in serviceability calculations. Rent or board and child maintenance/alimony and obligations under other credit contracts were referred to as liabilities and the remaining monthly expenses were encompassed within the concept of “declared living expenses”. The bank did not contravene the Act by relying on the HEM benchmark.

The much-publicised reference to Wagyu beef and the finest shiraz illustrates the Court’s point that a consumer may declare quite extravagant living expenses but that does not mean that the consumer can’t service the loan. That same consumer may very well have to cut back on the niceties in life, be that fine dining or gym memberships or other subscriptions, to meet the loan repayments.

Lottery Winnings and Who Gets the Money in Family Court Proceedings – Windfall During Relationship

Generally speaking, a windfall such as a lottery win acquired during a relationship will form part of the property pool that the Family Court will adjust between parties.

The question that often arises is whether that lottery win is to be considered a contribution by the person that purchased the lottery ticket, or, a contribution by both parties.

The family Courts will generally view such a lottery win during a relationship as a joint contribution by the parties1 notwithstanding that the lottery ticket may have been purchased by only one of the parties and from their sole income.

The Full Court of the Family Court when explaining why it took that position, commented as follows:

“Where both parties are in receipt of an income and where the marriage is predicated on the basis of each contributing their income towards a joint partnership constituted by their marriage, the purchase of the ticket would be regarded as a purchase from joint funds in the same way as the purchase of any other property within that context and should be treated accordingly. Where one party is working and the other party is not, the same conclusion would ordinarily apply because that is the mode of partnership selected by the parties”.

The above comment recognises the importance of non-financial contributions as well as financial contributions made by parties during a relationship and demonstrates that a party does not need to be earning an income to be considered to have jointly contributed to the lottery win.

The question of whether a lottery win will be considered a joint contribution of the parties or a sole contribution, will largely be determined by the circumstances of the relationship existing at the time when the ticket was purchased.

For a discussion on how the Court treats lottery wins received after separation, please see “Lottery Winnings After Separation – Who Gets the Money in Family Court Proceedings”.

1 Zyk & Zyk [1995] FamCA 135

Social media – A solicitor’s friend or foe? The line between the two is often blurred

Just like Robin Thicke and Pharrell, solicitors also hate those blurred lines, particularly when it comes to what constitutes legal advice via social media platforms. The ever-increasing use of social media has brought about new and often unclear ethical challenges for all solicitors with many solicitors at some point in their legal career having that friend, acquaintance or family member message them on a social media platform asking legal or quasi-legal questions. Solicitors should proceed with caution (or not at all) when answering such questions, as this may lead to unintended client engagements and inadvertent retainers.

For example, if a solicitor’s Facebook friend asks a legal question on a solicitor’s Facebook page, any answer posted by the solicitor in response may be construed as legal advice. The solicitor may then become liable for this legal advice and is unlikely to be covered for such advice under their employer’s professional indemnity insurance policy.

Furthermore, if the individual already has legal representation the solicitor may be in breach of the ‘no contact rule’ contained at rule 33 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015which prevents a solicitor from directly dealing with the client of another solicitor without that other solicitor’s consent. 

The lines are often blurred on whether responses via social media can be construed as legal advice, and whether an inadvertent retainer has been established is determined on a case by case basis. However, there is nothing to prevent a solicitor engaging in general legal discussion through social media channels.    

Solicitors should use common sense and discretion as social media can be a powerful marketing tool to create future business opportunities, but it can also be an ethical lawsuit waiting to happen.
Individuals seeking such legal advice via social media platforms should also proceed with caution and consider seeking formal legal advice from a qualified solicitor.

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 Henry Thompson Downie in 1927. He resided in the house with his family until they moved to neighbouring suburb a decade or so later.

Mr Downie died in 1947 without leaving a will.

The house was rented to a Mrs Grimes who was a “protected tenant” paying a small amount of rent until her death in 1998.

That same year, Mr Bill Gertos, former accountant, came across the house while visiting clients in the same street. He was told by neighbours that the house was occupied by an elderly lady who had recently died. He decided to take possession of the house for himself after finding the house uninhabitable.

He changed the locks and engaged a builder to make some improvements to the home so that it was fit for occupation. He paid the rates and other statutory charges on the property and engaged a managing agent to lease the property.

In 2017, Mr Gertos made a possessory title application to the Registrar-General to be recorded as the registered proprietor of the land pursuant to section 45D(1) of the Real Property Act 1900 (NSW). This part provides that a person who is in possession of land (that is, the whole parcel of land) and the title of the registered proprietor has been extinguished by application of the statute of limitations as against the person in possession, may apply to be recorded as the proprietor of that interest in land. The applicant must be in adverse possession which is possession that is “open, not secret; peaceful, not by force, and adverse, not by consent of the true owner”1. The Court accepted Mr Gertos was in adverse possession based on the circumstances. Justice Darke commented on the purpose of law that there is a public interest in ensuring that a person in long-term and undisputed possession is able to deal with the land as owner.

Statute of Limitations

In 2017, Mr Downie’s daughter and two grandchildren commenced proceedings for a declaration that Mr Gertos was not entitled to be registered as the proprietor. By the time the family of the deceased owner’s family took an interest in the property to recover the land, it was too late.

The cause of action to recover the land by the true owner accrued when the owner was entitled to possession. This means that the owner was entitled to recover the land once the property was no longer tenanted, that is, when Mrs Grimes died in 1998, the same year Mr Gertos took possession. There is a 12 years limitation period to recover the land. That period expired in 2010.

This case highlights that in NSW, “squatters rights” or possessory title (by adverse possession) are well and truly alive.

You’ll find that the team at Conditsis Lawyers is here to demystify your property matters and any questions you may have regarding wills and estates.

1 Bowen CJ in Eq in Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 at 475

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 of the Disclosure Statement is set out in Annexure 1 to the Code.

Some of the key elements that must be contained in the Disclosure Statement are:

  • A summary of the relevant business experience of the franchisor and each officer of the franchisor for the past 10 years;
  • Details of any current legal proceedings against the franchisor (and details of any convictions against the franchisor or a director or associate of the franchisor) in the last 10 years;
  • For each marketing or other cooperative fund that the franchisee may be required to contribute: the kinds of persons who contribute to the fund (for example, the franchisee, franchisor or outside supplier), the amount, who controls or administers the fund(s), whether the fund(s) is audited and if so, by whom, how the fund’s financial statements can be inspected by the franchisee and whether the franchisor must spend part of the fund on marketing, advertising or promoting the franchisee’s business.
  • Description of the trade mark used to identify the franchise system, details of the franchisee’s rights and obligations in connection with the use of the intellectual property and details of any agreement that significantly affects the franchisor’s rights to use the intellectual property.
  • Whether the franchise is for an exclusive or non-exclusive territory or limited to a particular site.
  • If the franchisor requires a payment before the start of the franchise agreement: why the money is required, how the money is to be applied, who will hold the money and the conditions under which the payment will be refunded.
  • Establishment costs: including real property type, location and building size details, equipment, fixtures, decorating costs, inventory and other payments required by a franchisee to begin operations and each recurring or isolated payment payable by the franchisee to the franchisor or an associate of the franchisor; and
  • Earnings information for the franchised business, projected earnings, the assumption on which those projections are based and a statement of the franchisor’s solvency and financial reports for the last 2 completed financial years.

An Information Statement to prospective franchisees must also be provided in the form prescribed by Annexure 2 to the Code. This Information Statement does not replace your own financial and independent legal advice but is a starting point for considering the risks and rewards of becoming a franchisee.

You’ll find that the team at Conditsis Lawyers is here to demystify the franchising process.

Pill Testing

As you’re aware, pill testing has been at the forefront of the media over the last few weeks. It comes in the wake of a number of young people dying at festivals from alleged drug overdoses.

There has been public outcry, asking the NSW Premier, Gladys Berejiklian, to consider pill testing at NSW festivals, and punters have been told a resounding ‘no’.

Despite evidence to the contrary, the successful implementation of pill testing at Canberra’s Groovin’ the Moo festival in 2018, the NSW Government is not even remotely convinced.

There is clearly an ongoing and increasing issue of young people consuming illicit drugs and substances at festivals, if pill testing is not the answer, then what other options should we be looking at?

Legalise everything

Some groups have called for the legalisation of all illicit substances.

Why? They say it will enable pharmaceutical companies to produce and manufacture the substances, enabling them to regulate the amount of purity of various substances and ensure there are no unknown, additional poisonous substances. This would also likely result in a considerable decrease in drug-related crime, such as manufacture and supply.

Another argument is that through prescription by General Practitioners amounts of consumption can be heavily regulated and people seeking those prescriptions can also be educated about the harmful effects of the substance.

Harsher sentencing for drug-related crime

On the other hand, there are also calls for harsher punishment and mandatory minimum sentencing. With many people believing that increasing the punitive effects of drug taking and supplying will act as a deterrent.

However, what many do not realise is that sentencing for many drug offences carries some of the most serious penalties in Australia’s legal system. For example, the offence of drug trafficking carries a life sentence (25 years) – equivalent to that of murder.

If the NSW Government won’t test pills – what else should they be testing to stop drug related deaths?

On the spot fines for possession of prohibited drugs

On 25 January 2019, the NSW Government implemented legislation enabling police officers to issue on the spot fines for drug possession offences.

What does this mean?

Police officers will have the discretion and power to issue a $400 fine to offenders found with illicit drugs in their possession.

They will not be required to attend court to have the matter finalised. Unless, they do not pay the fine or elect to have the matter finalised in court.

It also means that a criminal conviction will NOT be recorded. Again, as long as you pay the fine and do not elect to have the matter finalised in court.

Will everyone found in possession of drugs receive an on the spot fine?

No. Police officers have discretionary powers in deciding whether to issue an on the spot fine, or a traditional Court Attendance Notice.

What does the legislation say?

Under Schedule 4 of the Criminal Procedure Regulation 2017 (NSW) a penalty notice may be issued:

If prohibited drug is other than cannabis leaf and:

In the case of 3,4-Methylenedioxymethylamphetamine [MDMA]:

In capsule form – does not exceed a small quantity, and

In any other form – is less than a traffickable quantity, or

In any other case [any other prohibited drug] – does not exceed a small quantity.

Currently, under section 10 of the Drug Misuse and Trafficking Act 1985, the offence of possession of prohibited drugs carries a maximum penalty of 2 years imprisonment.

What’s the aim?

It has been labelled a ‘harm minimisation’ technique by the NSW Government – aiming to reduce the consumption of illicit drugs at festivals, whilst also trying to make them safer.

Whilst the NSW premier, Gladys Berejiklian, does not believe pill testing is the answer, this new legislation does indicate that the NSW Government is looking at other methods of harm minimisation in the wake of a number of deaths at music festivals in the state.

Beards in Employment – the Sikh, the Rabbi and the Hipster – What Amounts to Discrimination?

Men with beards are often told when attending job interviews or attending their workplace that they need to be clean shaven (i.e. that their beard needs to go) but does such a request amount to discrimination?

According to the Australian Human Rights Commission, Commonwealth laws and the state/territory laws generally overlap and prohibit the same type of discrimination. As both state/territory laws and Commonwealth laws apply, an employer must comply with both. However, these laws generally only protect certain attributes (for example sexuality, race, religion/culture, political opinion, disability, national extraction etc) and employers are permitted to have rules about how their employees look and dress on the proviso that those rules don’t conflict with the law.

In that regard, if an employee has a beard because of religious/cultural beliefs then the employer can face discrimination accusations when asking a bearded employee to be clean shaven.

Religion is one of the most prevalent forms of culture which impacts a male’s choice of beard. For many there are strict rules and their facial hair extends beyond the realms of fashion, style or hipster trends. Some examples of religious/cultural hair grooming practices that would be protected by Australian discrimination laws include the Sikh beard, the Jewish beard or Peyes (sidelocks).

However, if the employees choice to have a beard isn’t on grounds of religious/cultural reasons then there is likely to be no cause of action or protection under Australian discrimination laws, as those laws do not protect “personal preferences” (i.e. a person’s personal preference to have a beard) and in such circumstances, an employer will not be in breach of the law by asking their employees to be clean shaven.  

If you have any further questions about the above information (either as an employer or as an employee) please contact our offices and/or the Australian Human Rights Commission.

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 for a term of less than five (5) years.

Mandatory registration of Lease

If a retail shop lease exceeds a term of 3 years or if the parties to the lease have agreed that the lease is to be registered, the lessor must lodge the lease for registration within 3 months after the lease is returned to the lessor following its execution by the lessee. There are financial penalties for a failure to comply with this registration requirement. The 3-month period is to be extended for any delay attributable to the need to obtain any consent from a head lessor or mortgagee.

For the purposes of the term, the term includes any option to renew. For example, if the lease provides for a 1 year term with an option to renew of greater than 2 years, the retail shop lease must be registered.

Lessee to be provided with an executed copy of Lease

A retail shop lease is taken to include a provision to the effect that the lessor must provide the lessee with an executed copy of the lease within 3 months after the lease is returned to the lessor following its execution by the lessee. The 3-month period is to be extended for any delay attributable to the need to obtain any consent from a head lessor or mortgagee.

Lessee not required to pay undisclosed contributions or outgoings

A lessee is not required to pay contributions towards the cost of providing any finishes, fixtures, fittings, equipment or services in or for the shop unless disclosed in a disclosure statement given to the lessee in accordance with the Act.

A lessee is not required to pay outgoings unless disclosed in a lessor’s disclosure statement. If an estimate of outgoings was provided and the estimate is less than the actual amount payable, if there was no reasonable basis for the estimate, then the lessee’s liability is to be reduced to the estimated amount.

NCAT jurisdiction

The New South Wales Civil & Administrative Tribunal (NCAT) (Tribunal) now has powers to make decisions about rectification of leases and disclosure statements, formerly only a Supreme Court remedy where the parties to a retail shop lease sought rectification.

Furthermore, the monetary limit on the Tribunal’s jurisdiction to make an order in respect of a particular retail tenancy claim or unconscionable conduct has been increased to $750,000.

You’ll find that the team at Conditsis Lawyers is here to demystify the leasing process.

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 on each party to the franchise agreement (or prospective party to a franchise agreement) to act in good faith. A failure to discharge one’s obligation to act in good faith attracts a financial penalty. In determining whether a party has acted contrary to this obligation, the Court may have regard to whether the party acted honestly and not arbitrarily and whether the party cooperated to achieve the purposes of the agreement.

Importantly, a franchise agreement must not limit or exclude the obligation to act in good faith and if it does, the clause is of no effect.

The obligation to act in good faith does not prevent a party from acting in his, her or its legitimate commercial interests. For example, if a franchise agreement does not give the franchisee an option to extend the agreement or allow the franchisee to extend the agreement, this does not mean that the franchisor has not acted in good faith in negotiating or giving effect to the agreement.

Disclosure Statement

A franchisor must give a copy of the Code, a disclosure document in the form prescribed in Annexure 1 of the Code and a copy of the franchise agreement to a prospective franchisee at least 14 days before the prospective franchisee enters into the franchise agreement or makes a non-refundable payment to the franchisor in connection with the proposed franchise agreement.

A franchisor must not enter into a franchise agreement, renew or transfer or extend the term of a franchise agreement or receive a non-refundable payment under a franchise agreement unless the franchisee (or prospective franchisee) has received, read and had a reasonable opportunity to understand the disclosure statement and the Code.

This will be evidenced by a signed statement from the prospective franchisee to the franchisor to the effect that the franchisee has received independent legal or business or accounting advice about the franchise agreement or franchise business or has been told about the kind of advice that should be sought but has decided not to seek it.

You’ll find that the team at Conditsis Lawyers is here to assist with your franchising needs.

We will shortly bring you Part 2 of the Franchising Code of Conduct that will discuss the prescribed information that must be included in the Disclosure Statement.

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 him and his wife in the strata scheme and declared that a particular By-law was invalid.

By-law 16 provided that an owner or occupier of a lot must not keep any animal on the lot or the common property (subject to the former legislation).

Section 136(1) of the Strata Schemes Management Act 2015 (Act) provides that By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property. However, there are certain restrictions imposed on By-laws by virtue of section 139 of the Act including that a By-law cannot be harsh, unconscionable or oppressive.

The Tribunal has jurisdiction to make a declaration that a By-law is invalid pursuant to section 150 of the Act if the Tribunal considers that the By-law is harsh, unconscionable or oppressive.

Mr Yardy brought an application against the Owners Corporation seeking orders that the By-law 16 was invalid because it imposes a blanket prohibition upon per ownership and in such circumstances, it is harsh, unconscionable or oppressive and contrary to section 139(1) of the Act.
It is only necessary to establish that the By-law is one of either harsh, or unconscionable or oppressive. In this instance, the Tribunal concluded that the By-law was all of those things: harsh, unconscionable and oppressive.

By-law 16 was “harsh” because it imposed a complete prohibition, with no exceptions, and secondly provided no means by which special circumstances of a particular lot owner might be considered.

By-law 16 was “unconscionable” because it is contrary to the lot’s owners’ basic habitation rights considered in light of contemporary community standards and secondly it provides no opportunity for consideration to be given to the right and needs of individual lot owners.

By-law 16 was “oppressive” in that it does not involve or permit a balanced consideration of the interests and needs of all lot owners or occupiers and operates only in the interests of the lot owners who are opposed to pet ownership.

It is worth noting that the Owners Corporation had amended a previous By-law concerning pet ownership that relevantly provided an owner or occupier of a lot could keep an animal on the lot or common property provided they sought and obtained the approval of the owners corporation which must not be unreasonably withheld.

The Tribunal ordered that By-law 16 be revoked and the terms of the By-law as previously provided be revived.

Owners corporations need to be wary of imposing blanket prohibitions on the behaviour of its lot owners and occupiers otherwise it may face challenges to the validity of its By-laws.

You’ll find that the team at Conditsis Lawyers is here to assist with your property development needs.

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 will proceed to effect an exchange of Contracts on that day.

Importantly, there is no cooling-off period when property is sold at auction.
If a property is “passed in” at auction because the highest bid does not meet the vendor’s reserve price, the property is withdrawn from auction and the highest bidder has a right to negotiate with the vendor. If agreement is reached as to the sale price during this negotiation period following the auction on the same day as the property was offered for sale by auction and the parties proceed to exchange Contracts, there is still no cooling-off period available to the purchaser.

On the other hand, if you negotiate a sale by private treaty and submit the highest offer which is accepted by the vendor, if you proceed to sign a Contract for Sale and an exchange is effected, by law you have a 5 business day cooling off period. This right is provided for under section 66S of the Conveyancing Act 1919 (NSW) (Act). You may elect to waive your cooling off rights by arranging for your solicitor or licensed conveyancer to sign a certificate under section 66W of the Act.

Accordingly, it is important that you have your solicitor or conveyancer review the terms of the Contract for Sale before the auction as there will not be any opportunity following the fall of the hammer to negotiate the terms of the Contract. Your solicitor or conveyancer will be able to request amendments to the Contract before the auction to ensure that the terms of the Contract are satisfactory to you.

You’ll find that the team at Conditsis Lawyers is here to demystify the conveyancing process.

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 for sale (that is yet to be created under a plan of subdivision) unless there is a disclosure statement in the prescribed form and it is made available to prospective purchasers for inspection in the same way the draft contract for sale is made available to prospective purchaser for inspection.
The disclosure statement must include a copy of the draft plan, prepared by a registered surveyor and contain information and documents prescribed by the regulations.

Cooling off period

The cooling-off period for off the plan purchases is extended to 10 business days in lieu of 5 business days.

Completion

Purchasers will no longer be required to complete the purchase earlier than 21 days after receiving copies of the registered plan and other documents that were registered with the plan (including but not limited to the by-laws for the scheme, if applicable).

Material changes

If the vendor becomes aware that the disclosure statement was inaccurate in relation to a “material particular” at the time the contract was signed or has become inaccurate in relation to a “material particular” after the contract was signed, the vendor must serve a notice of changes on the purchaser at least 21 days before completion. The purchaser may elect to rescind the contract, after receiving a notice of changes, if the purchaser would not have entered into the contract had the purchaser been aware of the changes and would be materially prejudiced by the changes.

The vendor can no longer prescribe what is a “material particular” in the contract and the circumstances in which the purchaser can rescind.

The new legislation defines a “material particular” to include a change to the draft plan, provision of draft by-laws, an easement or covenant or changes to the schedule of finishes that will, or is likely to, adversely affect the use or enjoyment of the lot. The purchaser may even rescind after service of the registered plan and other documents (in the absence of the vendor serving the purchaser with a notice of changes) if the disclosure statement includes any inaccuracy in relation to a material particular that is such that the purchaser would not have entered into the contract had the purchaser been aware of the change and would be materially prejudiced by the change.

You’ll find that the team at Conditsis Lawyers is here to demystify the conveyancing process.

Criminal Law Matters: Issue 8 – To Those in the Heavy Vehicle Transport Industry

Q: WHO IS RESPONSIBLE IN THE HEAVY VEHICLE TRANSPORT SUPPLY CHAIN?

A: EVERYONE!

A big legislative step in awareness and regulation of safety and compliance in Australia was the Heavy Vehicle National Law (HVNR) (originally a schedule to the HVNL Act 2012 (QLD)).  The HVNL came into force on 10 February 2014.   The ACT, NSW, SA, QLD, Tasmania and Victoria each passed a law adopting or duplicating the HVNL with some modifications and some differences (eg ACT is missing some sections).  If you are in WA or NT the law still applies to you once you are driving in the jurisdictions which have the HVNL.  The HVNL is administered by the National Heavy Vehicle Regulator (NHVR) with administers the HVNL and 4 sets of regulations.

‘Everyone’ (in the heavy vehicle transport industry) needs to be aware of the recent legislative amendments relating to ‘Chain of Responsibility’ (CoR) which have just come into effect on 1  October 2018.

The heavy vehicle transport supply chain is an industry value chain with each link representing a primary activity.   165 000 businesses in that chain were consulted in relation to these recent amendments.

The Chain of Responsibility  (CoR) is not a new policy concept in Australian transport legislation.  The gist is that legal obligations are placed on parties in the transport supply chain.

The amendments place a primary duty clearly and transparently on each party (‘link’).

The primary duty is to minimize risk by doing all that is reasonably practical to ensure safety.

Before the changes, various players in the supply chain could be punished however there did not seem to be consistency in who was issued infringements/charges and punished.  Further problems included that members of the supply chain pressured other members to not comply with safety obligations and companies could ‘contract out’ their obligations.

The following roles are examples of those who are involved in the transport supply chain.  As can be seen the net is wide –

-loading manager, -loader/unloader, -packer

-consignee/consignor

-operator

-scheduler

-employer

-executive officer

-prime contractor

-if you own premises where 5 or more heavy vehicles unload or load each day.

Often legislative amendments can be ambiguous and difficult to understand. However, these amendments, and the corresponding obligations are currently the subject of an intensive education campaign by the NHVR and, in NSW, the RMS.

The goal is safety.

There is an increase in both liability and penalties available for those who offend.

 

HOW TO FIND OUT INFORMATION EASILY SO YOU DO NOT OFFEND:

  • There is a helpful CoR checklist regarding who are involved in the transport supply chain on the NHVR website (nhvr.gov.au)
  • There are a series of short helpful seminars on the NHVR website.
  • There is a CoR ‘gap assessment tool’ on the website by which you can answer questions both to assist you to determine your role and where you are deficient in your business practices and systems etc. – you are issued with a list of recommendations to assist you to strengthen your ‘compliance and safety management responsibilities’.
  • You should look at your own industry codes of practice.
  • The Crane, Forestry and Livestock industries already have Codes unique to their particular industry and how interactions occur with the NHVL – eg specifically what is carted; how it is loaded/unloaded; how cranes are designed.
  • National Roads have issued an information package – ‘Safety Management in the Chain of Responsibility’.
  • The Australian Standard ISO13000 relation to Australian industry risk management generally is obviously instructive.
  • The NHVR portal has established a free service for those who have fleet to be able to check and monitor registration currency and other details.
  • A ‘Master code of Practice’ is currently being developed for the transport industry

 

Proposed on the spot fines for low-range drink driving offences

The NSW government recently proposed to give police new powers to issue on-the-spot fines and licence suspensions for first time, low-range drink driving offences.

A low-range drink driving offence applies to a driver who has recorded a prescribed concentration of alcohol (PCA) of between 0.05 – 0.08.

The proposal has generated a lot of discussion, particularly in the legal community, as to whether such powers are appropriate. The most common concern is that an ‘on-the-spot’ penalty notice detracts from the seriousness of the offence, as offenders would not have to attend court and ‘face up’ to their actions.

The proposal, if implemented, would bring NSW in line with existing Victorian laws, where drivers over the age of 26 caught low-range drink driving between 0.05 – 0.07 receive an on-the-spot fine and 10 demerit points.

According to Judicial Commission Sentencing statistics, of drivers who were charged with low-range drink driving, almost 50% received s 10(1)(b) [or (c)] non-conviction good behaviour bond. Additionally, 44.4% of offenders received a conviction and a fine. Of those 44.4% of offenders, the average fine imposed was between $501-$750 and the average disqualification period imposed by magistrates was three (3) months.

The proposal by the NSW government would see motorists receiving a $561 fine and an immediate three (3) month licence disqualification, which is very much in the median range of fines and disqualification periods currently imposed in the local court.

It is also proposed that police will have discretionary power to choose to issue a driver with a court attendance notice (CAN), instead of issuing an on-the-spot fine, when having regard to the circumstances of the offence. This means drivers issued with a CAN will need to attend court for sentencing.

However, drivers still have the opportunity to appeal their matter in the local court. Although, if convicted, offenders face an automatic disqualification period of six (6) months and a maximum $2,200 fine (which is double the current maximum amount).

Currently, first-time offenders who are caught low-range drink driving face an automatic disqualification period of six (6) months, with a magistrate having the discretion to lower the disqualification to a minimum period of three (3). Offenders also currently face a maximum $1,100 fine and the prospect of a criminal conviction.

Are we undermining the seriousness of drink driving offences with drivers no longer facing a criminal conviction?

Digital Driver’s Licences – convenience or concern?

The NSW Parliament recently passed a Bill allowing for Digital Driver’s Licences to be used for proof of identity and proof of age purposes.

Driver’s will still be issued with a physical card, however, they will no longer be required to carry it on them if they are able to produce a valid digital driver’s licence.

Amendments have been made to the Road Transport Act 2013, Photo Card Act 2005, Gaming and Liquor Administration Act 2007, and Liquor Act 2007.

Digital Driver’s licences are set to be released across NSW in early 2019. The aim is to save time and make producing identification a little easier.

 

What should you know before opting in?

You do NOT have to hand over your mobile phone, or any other electronic device, to police that your digital driver’s licence is displayed on.

You DO have to make sure your digital driver’s licence can be viewed. This means, if your phone screen is cracked, or your phone brightness is not suitable, you are considered not to have displayed your driver’s licence.

You CANNOT commit an offence for the use of using a mobile phone if it is in response to a request from a police officer or other authorised person.

Police CANNOT seize your mobile phone, or any electronic device, that your digital driver’s licence is displayed on for the purposes of seizing your driver’s licence.

Police CAN ask you to refresh your Service NSW application to ensure that it is up to date.

You MUST remove your digital driver’s licence from all electronic devices as soon as practicable after being required to surrender your licence.

 

So, what if you’re caught out?

Under the recent amendments, a person who fails to comply with a reasonable request to view, copy or scan their digital driver’s licence is considered not to have displayed their licence and is subject to penalties.

What does this mean? Potentially, if your phone is out of battery or if you are out of phone reception, you are considered to not have displayed your driver’s licence.

 

Whilst our phones are able to do just about anything for us, should we be wary about carrying such an important piece of identification on it?

 

 

Supreme Court jurisdiction questioned for hearing bail applications

In the recent decision of Noufl v Director of Public Prosecutions (NSW)[i] the Supreme Court ruled it did not have the jurisdiction to hear a bail application while an appeal was pending in the Court of Criminal Appeal.

The decision was an appeal against conviction, with the appellant applying for bail whilst the matter was heard for appeal.

 

How did this happen?

In a novel argument by the Director of Public Prosecutions (DPP), it was submitted that a single judge of the Supreme Court did not have jurisdiction to hear a bail application. It was submitted that this was an ‘unintended consequence’ of the repeal of the Bail Act 1978 and the introduction of the Bail Act 2013. Namely, that section 28 of the Bail Act 1978, the section responsible for granting Supreme Court jurisdiction, was not transferred into the Bail Act 2013.

Judge Hamill concluded:

[T]he Supreme Court is no longer empowered to hear a bail application while an appeal is pending in the Court of Criminal Appeal unless:

  1. The proceedings for the offence were dealt with in the Supreme Court and the applicant is yet to make their first appearance before the Court of Criminal Appeal (s 62); or
  2. A release application has been refused by another court, police or authorised officer (s 66).

This decision is in conflict with the general understanding of the powers conferred upon a single judge of the Supreme Court and, as such, potentially presents a very significant decision.

 

What are the implications for practitioners and their clients?

If you propose to seek bail pending an appeal against conviction or sentence to the Court of Criminal Appeal you should first make a release application to the District Court, unless the proceedings were conducted in the Supreme Court.

 

Was this an intention of the Bail Act 2013 amendments?

Hamil J provided commentary as to what the future may hold for the Bail Act 2013. He stated that if this was an unintended consequence of the amendments, that the Act should be amended to reflect the original content of s 28 of the Bail Act 1978.

He also commented that if the revocation of Supreme Court powers was intended by legislature then the Act should more clearly reflect this.

 

What does it mean for other courts?

It is now a concern, as mentioned by Hamil J, that an even greater number of bail applications will come before the Court of Criminal Appeal. He also commented that the Court of Criminal Appeal is already met with a number of bail applications, of which, judges have previously voiced their concern: Beech-Jones J in Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227.

 

[i] [2018] NSWSC 1238.

Can you be charged with inciting someone to commit an offence even if they don’t act on it?

The short answer is: generally, yes, but it depends on the circumstances of the case.

In the eyes of the law, inciting a person to commit an offence that, if committed would be of a criminal nature, is sufficient regardless of whether the person carries out the act relating to the incitement.

However, the courts have determined that it will consider the circumstances surrounding the words or actions used to ‘incite’ a person on a case by case basis when determining whether it amounts to incitement.

The dictionary defines incitement as “an act or urging on or spurring on or rousing to action or instigating…”

The court defines incitement similarly, as “to rouse; to stimulate; to urge or spur on; to stir up; to animate” (Young v Cassells).

In R v Chonka, a case about whether someone had incited an act of indecency, the counsel for the accused made an important distinction in determining whether a person was guilty of an incitement offence: “you must… draw a distinction between simply talking about something and encouraging someone else to go and do it.”

Counsel was referring to ‘dirty phone calls’ and argued that unless there was a suggestion in the phone calls to actually do something and that something was an act of indecency, then it cannot be an incitement.

In this case, the actions of the accused were found to amount to incitement, however, it was an important distinction that was made by the accused’s counsel.

To summarise, the courts view when it comes to incitement is that it does not matter if the person who was incited actually committed the offence. Instead, when considered in the circumstances, the act that was incited would have amounted to a criminal act if had been committed.

Speeding offences – when you can appeal and what you need to do for your appeal?

It is important to note that if your licence is suspended you only have 28 days to lodge an appeal. If your licence is suspended by police, you have 28 days from the date your licence is suspended. If you receive a notice of suspension form the Roads and Maritime Services (RMS) you have 28 days from the date you receive the notice of suspension.

So, what can you appeal?

Depending on whether you hold a P1 or P2 provisional driver’s licence or an unrestricted licence there are differences in relation to the types of suspensions you can appeal.

Unrestricted licence holders CAN appeal:

  1. An on the spot decision by police to suspend your licence for exceeding the speed limit by more than 45km/h; and
  2. A decision by the RMS to suspend your licence for exceeding the speed limit either by more than 30km/h or more than 45km/h.

Unrestricted licence holders CANNOT appeal:

  1. A decision by the RMS to suspend an unrestricted driver’s licence for an accumulation of demerit points.

P1 or P2 provisional licence holders CAN appeal:

  1. A decision by the RMS to suspend your P1 or P2 provisional driver’s licence for an accumulation of demerit points (4 points for P1; 7 points for P2);
  2. An on the spot decision by police to suspend your licence for exceeding the speed limit by more than 30km/h and more than 45km/h; and
  3. A decision by the RMS to suspend your licence for exceeding the speed limit by more than 30km/h and more than 45km/h.

Whilst unrestricted licence holders cannot appeal a licence suspension for an accumulation of demerit points, they can apply for a ‘good behaviour’ licence. A good behaviour licence means that you will have 2 demerit points remaining on your licence for a period of 1 year. If you accrue these demerit points during this time, your licence will be suspended for twice the original period of suspension.

P1 and P2 provisional licence holders CANNOT apply for a good behaviour licence.

What happens when you appeal to the court?

You MUST ensure that you have lodged an appeal less than 28 days after you received your licence suspension, or the court will not hear your appeal.

When the court hears your appeal there are 3 potential outcomes:

  1. Allow the appeal;
  2. Dismiss the appeal; and
  3. Dismiss the appeal but vary the suspension period.

Allowing the appeal – if the court allows your appeal, it means that your licence is no longer suspended and you can continue driving.

Dismissing the appeal – if the court dismisses the appeal, it means that your licence will continue to be suspended for the remainder of the suspension period issued by either the police or the RMS.

Dismissing the appeal, but varying the suspension period – if the court dismissed the appeal, but varies the suspension period, it means that your licence will continue to be suspended, but for a period of time indicated by the court.

 

For more information on appealing a licence suspension, contact the team at Conditsis on (02) 4324 5688.

Under Age Consensual Sex – Should Either Party Be Charged?

 Background – Case Study – Client John

Note: Psyuedonyms for all names

 

  1. Initially, John was charged in relation to two complainants – Mary and Jane.
  2. At the time of the alleged offences, Mary was about 16 years and some months and Jane about 15 years and 9 months; and John was about 6 months younger than Mary and 9 months younger than Jane.
  3. John, Mary and Jane all attended the same high school and were in the same year/grade.
  4. Initially, John was charged as follows:

Mary

2 counts of sexual assault under s61I Crimes Act (without consent) – maximum period of imprisonment – 14 years on indictment;

 Jane

2 counts of aggravated sexual assault under s.61J Crimes Act (without consent and complainant under 16) – maximum period of imprisonment – 20 years on indictment;

In the alternative to the above, 2 counts of sexual intercourse with Jane who was under 16years under ss.66C(3) Crimes Act – maximum period of imprisonment – 10 years on indictment; and

4 counts of aggravated (because complainant under 16) indecent assault with Jane who was under 16 years under s.61M(2) Crimes Act – maximum period of imprisonment – 10 years on indictment.

 

  1. Upon conviction for ANY of these offences, John would be required to be listed on the Child Protection Register.
  2. The police Facts in relation to Jane alleged that she had a learning disability (cognitive impairment) and sought to infer, without directly saying it, that John took advantage of that impairment to have “sex” with Jane.
  3. John believed that Jane was “slow” in some subjects but was not aware that she had any learning disability and socially, John believed that Jane was “on par” with other students; and there was no evidence to contradict John.
  4. It is important to note there are other provisions in the Crimes Act (for example – s.66F) under which John could have been charged if the Crown alleged that he took advantage of her disability BUT that direct allegation was not made.
  5. The ODPP sought a joint hearing with both complainants and sought to rely on “tendency evidence”.
  6. Detailed submissions were made on behalf of John (“YP” – Young Person) in the Children’s Court opposing the tendency application and the joint hearing and the defence succeeded in relation to both.
  7. Following Representations to the ODPP – outlining many encounters of consensual sex between Mary and John, including when Mary was under 16 years of age, the ODPP withdrew all charges in relation to Mary.
  8. Notwithstanding detailed Representations to the ODPP in relation to Jane, again outlining many consensual encounters with Jane and that the Facts did not disclose any sexual assault; and the submitted, perverse result, in the event that the “under age” charges proceeded, the ODPP refused to withdraw any of the counts.
  9. The defence gave serious consideration to filing a Motion for a permanent stay of proceedings, potentially arguing that for the charges to proceed was perverse, however, concluded that the Motion would fail because as a matter of law, perverse or not, the offences relating to “under age sex” was committed.
  10. The charges concerning Jane were given a hearing date and the working day before, the ODPP put a proposal – offering to withdraw the sexual assault counts on the basis that the YP pleaded guilty to some of the “under age sex” counts, which proposal, begrudgingly, the YP accepted – because the fact of the matter was that, according to law, BOTH the YP and Jane committed the same offence(s), namely, engaging in “sex” with one another, when the other was under 16 years of age; that the ODPP sought only to prosecute the YP was [incredibly, in the circumstances] within prosecutorial discretion. It should be further noted that in relation to at least one of the counts, the YP was 14 years of age!

 

A Perverse Result?

  1. In my view, in a word – yes!
  2. There was a lengthy sentence hearing and various witnesses including a school teacher were called to give evidence, and contrary to earlier comments of the magistrate, and notwithstanding the ODPP lawyer pressed for a conviction; fortunately, the YP avoided a conviction and the matter was finalised so that the YP was not required to be placed on the Child Protection Register (S. s33 (1) (a) Children (Criminal Proceedings) Act 1987). The magistrate referred to the YP’s case on sentence, as “overwhelming”.
  3. Victoria, Tasmania, Western Australia and the Australian Capital Territory all have what is referred to as “similar age” defence which allows consent to be used as a defence when the victim and the accused are certain ages: see s45 of the Crimes Act 1958 (Vic); s124 of the Criminal Code Act 1924 (Tas); s55 of the Crimes Act 1900 (ACT); s321 of the Criminal Code Compilation Act 1913 (WA).
  4. An authority on what is just and reasonable (in context) may be gleaned, from the South African case of Teddy Bear Clinic for Abused Children v Minister for Justice and Constitutional Development [2013] ZACC 35 (3 October 2013), where the Constitutional Court found that laws criminalising consensual sex between young people were unreasonable, and consequently, were unconstitutional; the Court held the laws unjustifiably violate the dignity and privacy of young people and are not in the best interests of the child (under the South African Constitution any limitation on these must be reasonable).

 

NSW Bureau of Crime Statistics – 2010 – 2015

  1. The NSW Bureau of Crime Statistics and Research (“BOCSAR”: Reference: sr15-13587) records between July 2010 and June 2015, that of 707 s66C(3) charges (not 707 offenders) only two charges related to an accused person who was under 16 years of age, namely 0.28%. The BOCSAR also reveals that, of 163 offenders (in respect of s66C(3)), only 1 offender (0.61%) was under 16 years of age.
  1. The cumulative effect of these statistics strongly evidence that the ODPP decision to proceed to prosecute the YP in respect of the s66C(3) and 61M(2) charges is a rarity, and in my view, truly regrettable.
  1. It is particularly instructive to consider the second reading speeches in parliament when s.66C was enacted. The second reading speeches, tendered to the court on sentence for the YP, make no mention whatsoever, of any intention for s66C(3) to “capture” consensual sex between two 15 year olds. The references in the second reading speeches to offenders is exclusively, to adult offenders. It is therefore not surprising that the BOCSAR statistics reflect that the prosecution of the YP was a rarity.
  1. It is reasonable to accept it is very likely that police/prosecutors would be aware of a substantial number of other allegations of young persons under the age of 16 years having had sex with someone also under 16 years of age. If that is a reasonable proposition, then, the prosecution of the YP demonstrates an instance of a very unusual use of prosecutorial discretion. In the circumstances, the prosecution of the YP was in my view, perverse.

 

Although, the court cannot interfere with prosecutorial discretion to prosecute, the court’s acceptance of the rarity of a prosecution where the YP is younger than or at about the same age as the complainant and where the “sex” was consensual, is a relevant matter on sentence.

Self Defence in NSW

In New South Wales the law as to self-defence is essentially contained in Section 418 of the Crimes Act 1900 and there are various case authorities that interpret that section.

Essentially, there are two (2) legs to making out a defence of self-defence and they are:

  1. The person who asserts he or she is acting in self-defence has to believe that the action taken was necessary to defend himself or herself or another person; and
  2. The conduct or actions of the person have to have been reasonably proportionate to the perceived threat.

As to the first question, that is, whether there is a reasonable possibility that the accused believed that his or her conduct was necessary in order to defend himself or herself, that question is determined from a completely subjective point of view, having regard to all the personal characteristics of the accused at the time he or she carried out the conduct. This would include the accused being affected by alcohol and/or drugs or having a mental health issue which may cause him or her to have a “short fuse”.

As to the second question, it is determined entirely by an objective assessment of the proportionality of the accused’s response to the situation he or she believed he or she faced.  Put another way, the prosecution would have to prove beyond reasonable doubt, that the actions taken by the accused, in purported self-defence, were not reasonable in the circumstances.

Take for example, an intruder into your home.  You startle the intruder and he immediately flees running out into the backyard and about to climb a fence.  You fire a gun and shoot the intruder.  Clearly, that would not be self-defence because, even assuming you get over the first leg, that is, that you believed it was necessary for you to fire the gun; you would certainly fail in respect of the more difficult second leg (that the firing of the gun was proportionate to the threat) and more particularly, the prosecution would be able to prove that your actions in firing the gun were not reasonable.

Having said that, the case law is also clear that pre-emptory actions can still amount to self-defence and you don’t have to wait for someone to hit you if your perception is that that is what was going to happen.  Put another way, if you are approached aggressively in a bar and the other person has his fists raised and clenched and it appeared to you that he was about to strike you, you would be entitled to take [reasonable] action to prevent him striking you.  That action may include you striking him first or taking other “defensive” action.

The law of self-defence can sometimes be quite complex and it is important to get legal advice early.

Immunity for on-field violence must end

It is time that we, as a society, stopped treating on-field violence by sport stars as being immune from criminal prosecution and held athletes accountable for their actions in the same way as the rest of us.

This weekend’s round of NRL saw yet another ugly brawl between players during the Sea Eagles v Storm match which left Dylan Walker with a broken eye socket after he was attacked and punched by Curtiss Scott. Despite the fact that the whole spectacle was clearly captured by television cameras, no criminal charges were laid against Scott or any other of the participants in the brawl.

This whole incident, and others like it, reveal a strange and disturbing aspect of our footy culture. There seems to be a tacit, unspoken rule that the football field is a place where normal Australian laws do not apply. What occurred at that game was unquestionably a criminal assault, and a serious one at that. If the very same conduct happened in any other context, say in a home or at a pub, Scott would have found himself facing a criminal court on assault charges and would be at serious risk of a prison sentence. But, because he perpetrated his crime on a football field, the only consequence he faces is a suspension.

This is completely unjust. As a criminal defence lawyer, I represent people charged with acts of violence on a daily basis. In many cases, the assault is much less serious that Scott’s, but the consequences are much more severe than simply being suspended from the offender’s job for a few weeks. They get a criminal record which follows them around for at least the next ten years, effecting job opportunities and international travel- and some go to gaol.

There is a clear double standard in our society, with one set of rules for on-field behaviour of footballers and another for everyone else. This double standard is an affront to one of the most fundamental principles of law called “the rule of law”.

The rule of law is a simple yet powerful idea that the law should apply equally to all members of society irrespective of their status, wealth or power. Its origins can be traced to at least the Magna Carter in 1215. In the Magna Carter the rule of law meant that the King of England agreed to be bound by the law in the same way as all other Englishmen. Today, over 800 years later, it seems that we have developed a new type of sporting royalty who’s on-field antics are above the law. It is high time that we revisit this part of our sporting culture and demand that our sporting heroes be made accountable for their on-field behaviour under the same law that applies to everyone else.

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 a number of Acts including the Taxation Administration Act 1953 and A New Tax System (Goods and Services Tax) Act 1999.

One of the more critical amendments for property buyers and developers alike is that contracts for the sale of new residential premises* or potential residential land** entered into on or after 1 July 2018 will require the purchaser to remit the GST component directly to the ATO in lieu of the developer, on or prior to settlement.

There is a two (2) year transitional period for contracts entered into prior to 1 July 2018, so that the sale must settle prior to 1 July 2020 in order to avoid the new regime. This may affect many off the plan subdivisions and contracts that have already exchanged.

If the GST component is in addition to the purchase price, then the purchaser must remit 10% of the purchase price to the ATO. If the developer is applying the margin scheme, then the purchaser must remit 7% of the purchase price to the ATO.

The vendor must not make the supply unless it first serves a ‘withholding notice’ on the purchaser 14 days prior to the completion date. This is a strict liability offence.

The withholding notice must include the vendor’s name and ABN, the amount the purchaser will be required to pay the Commissioner, when the purchaser will be required to pay the relevant amount and any other matters prescribed by the regulations. However, the failure of the vendor to comply with its withholding notification obligations does not affect the purchaser’s obligations to remit the GST component to the Commissioner.

This change addresses the problem of developers collecting GST and failing to remit the GST to the ATO, either by taking steps to dissolve the developer company prior to remitting the GST collected or otherwise.

*‘New residential premises’ includes property that has not previously been sold as residential premises, has been created through substantial renovations of a building or have been built or contain a building that has been built to replace demolished premises on the same land and potential residential land.

**‘Potential residential land’ is land that is permissible to use for residential purposes but does not contain any buildings that are residential premises other than land which contains any building that is in use for a commercial purpose. The withholding obligation for potential residential land or commercial residential land only arises if the purchaser is not registered for GST.

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?

Conveyancing is the legal work involved in preparing the sales contract, mortgage and other related documents according to NSW Fair Trading. We like to express it in terms of the transfer of legal title to real property from one person to another, including the discharge or registration of a mortgage.

A conveyancer can help you navigate through a complex system of examining the contract for sale, exchanging the contract for sale, arranging payment of stamp duty, checking if there are outstanding arrears or land tax obligations, checking if swimming pool compliance documentation is needed, finding out if any government authority has a vested interest in the land, calculating adjustments for council and water rates, overseeing the change of title with Land Registry Services, completing any final checks prior to settlement and attending settlement.

Conveyancing can also be done by a lawyer.

In both cases, they are about the same price. Usually, both lawyers and conveyancers can offer you a fixed fee to act on the transaction.

But what really is the point of difference a lawyer can offer you that a conveyancer can’t.

While conveyancers and lawyers are equally qualified to do conveyancing, lawyers usually have a more comprehensive and nuanced knowledge of property law.

Furthermore, lawyers can give you legal advice about other matters that aren’t directly related to the conveyance. We can advise whether the conveyance affects your will or estate planning, we can advise on a lease if the property is being sold or purchased subject to an existing tenancy and we can also advise on some tax implications to name just a few things.

Contact the team at Conditsis Lawyers to demystify the conveyancing process.

Cautionary tale to landlords: Don’t take your tenant’s stuff and start using it as your own

In ACN 116 746 859 (formerly Palermo Seafoods Pty Ltd) (Palermo) v Lunapas Pty Ltd & Anor (Lunapas) [2017]1, Lunapas leased to Palermo certain retail premises in Tweed Heads from which Palermo operated a seafood shop and restaurant. The tenancy was a tenancy at will. Lunapas gave a notice to Palermo giving it 14 days’ notice of termination in contravention of section 127 of the Conveyancing Act 1919 (NSW). Lunapas wrongfully terminated the lease and re-entered the premises.

Palermo sought damages against Lunapas and the sole director of Lunapas for the alleged wrongful conversion of the stock, plant and equipment which remained on the premises.
After the lockout, Lunapas re-opened the premises as a new seafood restaurant and used the tenant’s plant left in the shop (including the EFTPOS machine, refrigerators and kitchen fittings) for their own use to run the business.

Lunapas argued that Palermo had either abandoned its stock, plant and equipment left in the shop or that it disclaimed the right to immediate possession of its stock, plant and equipment.
The Court did not allow an inference of abandonment to be drawn. The Court accepted in substance that Palermo had never been given the opportunity to collect their goods, plant and equipment from the premises. This is despite a written offer to Palermo to collect its stock, plant and equipment within 24 hours of receiving the said offer and despite Palermo’s refusal to accept delivery of the goods packed up by Lunapas in a hired truck and driven to Palermo’s house the Sunday morning after lock-out. The Court accepted Palermo’s position that Palermo’s company director’s refusal to accept the goods was reasonable: he thought the goods being delivered included perishable stock, he thought the truck was not refrigerated, he had nowhere to store perishable stock that was required to be refrigerated and the terms of the delivery were not agreed in advance.

The Court held that conversion was made out at the time of the lockout and in the period thereafter in respect of all of the goods: the stock, plant and equipment. The Court awarded Palermo $200,000 (plus interest up to judgment) representing the market value of the plant and equipment and the stock was assessed separately at $50,000.

This case serves as a reminder to commercial and retail landlords that there is a procedure that must be followed when terminating a lease including giving a tenant the opportunity to collect their goods, even when there has been a breach of the covenant to pay rent.

You’ll find that the team at Conditsis Lawyers have the experience you need to obtain the best possible outcome for your leasing needs.

(02) 4324 5688
enquiry@www.conditsis.com

 

1 NSWSC 1583

Criminal Law Matters: Issue 7

CAN I GET A LICENCE JUST FOR WORK?

CAN I GET A WORK LICENCE?

I HAVE BEEN TOLD YOU CAN GET A LICENCE JUST TO GO TO AND FROM WORK

 No! No! No! Not in NSW!! NOOOOO!

 

I remain fascinated by the fact that every client for any traffic offence where disqualification looms large asks a derivative of the above question.

I have now been working as a lawyer for over twenty (20) years (plus…) and the answer has always been ‘no’ in NSW.

In some states of Australia – for example, Western Australia and Queensland come to mind – you can get a work licence.  But even in those States, it is not a simple process or open to just any body.

In Western Australia conditions include that you need to be employed in a job where driving is essential before you commit the offence.  To obtain the work licence your boss needs to come to Court and give evidence that you were employed before the offence and the business needs you to drive.

In Queensland it is only applicable for certain offences – drink driving with blood alcohol concentration of less than 0.15 – and you held a current driver’s licence at the time (but not provisional or learners).  You cannot have been convicted of a drink driving offence in the last five (5) years or had your licence disqualified, suspended or cancelled (with some exceptions).  There are further conditions – you must:

  • apply to the court at the time you are convicted and before the court orders that you are disqualified from driving
  • show the court you are a ‘fit and proper person’
  • show the court that you’ll lose your job (and your income) if you don’t get a work licence, which will cause extreme hardship to you or your family.

New South Wales may adopt these licences now that the police in NSW have number plate recognition (so can police the work licence holders)  However this type of licence is not yet a reality.

NSW has recently made other progress to the advantage of past ‘traffic offenders’ – the legislation now allows for the removal of driver licence disqualifications by the Court under certain circumstances – after serving a certain period ‘off the road’ (depending on the type of offence for which you are currently disqualified).  Further information can be obtained by contacting us!

Major Changes to NSW Sentencing Law

Proposed Legislation

The Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 No 53 will make substantial amendments to the Crimes (Sentencing Procedure) Act 1999 [“the Act”] and is scheduled to be proclaimed in about May 2018.

 Gloss Overview

  1.  Abolition of Good Behaviour Bonds (s9) AND replacement with Conditional Release Orders (“CRO’s”) OR Community Corrections Orders (“CCO’s”) and consequences of breach;
  2. Abolition of non-conviction bonds AND replacement with Conditional Release Orders (“CRO’s”) and consequences of breach.
  3. Introduction of Sentencing Procedure for Conditional Release Orders [new Part 8]
  4. Introduction of Sentencing Procedures for Community Correction Orders [new part 7];
  5. Abolition of Suspended sentences (s.12) and Home Detention Orders AND replacement with revised Intensive Correction Orders (“ICO’s);
  6. Introduction of Sentencing Procedures for Intensive Corrections Orders [new Part 5] and consequences of breach;
  7. New provisions for Assessment Reports – for ICO’s [new Division 4B];
  8. New sentencing regime for Domestic Violence Offences [new s.4A]; and
  9. Consequences of the new legislation to existing Sentencing Orders.

 

Dot point effect of the Abolition of s.9 Bonds and non-conviction Bonds

  1.  The former good behaviour bonds are abolished.
  2. A CRO may be with OR without conviction.
  3. If the court does not “convict” then the offender will be discharged under s.10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999.
  4. Otherwise, either a CRO will be made under s.9 or a CCO under s.8.
  5. The court cannot impose both a fine and a conditional release order in respect of the same offence.
  6. A conditional release order under s.9 [with conviction] may be made as an alternative to the imposition of a fine.
  7. The maximum term of a CRO is 2 years.
  8. There are standard conditions for a CRO’s: s.98; however, additional conditions may be imposed on application by a community corrections officer or a juvenile justice officer OR the offender [however, the court may refuse to consider an application by an offender if it is satisfied that it is without merit – s.100 (1)]; and may vary or revoke any of the additional conditions: ss.99-99A; the additional conditions must not include home detention, electronic monitoring or a curfew for more than 12 hours a day or a community service work condition: s.99 (3).
  9. The court is to take into account the same factors in determining whether to proceed by way of a conviction [under s.9] or without conviction [under s.10 (1) (b)].
  10. It would appear that the conditional release order may be conditional on the same sort of terms previously imposed by courts under the former s.9.
  11. The footnote to s.97 states that breaches of CRO’s are to be dealt with under s.108 C of the Crimes (Administration of Sentences) Act 1999 [yet to be proclaimed] [“the Administration Act’], the effect of which is that an offender may be “called up” in much the same way as an offender would now be called up for breaching a s.9 bond.
  12. The effect of revocation of a CRO [s.108 D] is that the offender may be sentenced or re-sentenced as the case may be and the Crimes (Sentencing Procedure) Act 1999 applies to that sentencing process; and the offender has the same rights of appeal as if he had been so sentenced when found guilty.
  13. The maximum term of a CCO is 3 years: s.85 (2).
  14. There are standard conditions for a CCO: s. 88; however, additional conditions may be imposed on application by a community corrections officer or a juvenile justice officer OR the offender [however, the court may refuse to consider an application by an offender if it is satisfied that it is without merit]; and the court may vary or revoke any of the additional conditions: ss.89-90; the additional conditions must not include home detention, electronic monitoring or a curfew for more than 12 hours a day: s.89 (3)
  15. Breaches of CCO’s are to be dealt with under s.107C of the Crimes (Administration of Sentences) Act 1999 [yet to be proclaimed], the effect of which is that an offender may be “called up” in much the same way as an offender would now be called up for breaching a s.9 bond.
  16. The effect of revocation of a CCO [s.107 C Administration Act] is that the offender may be sentenced or re-sentenced as the case may be and the Crimes (Sentencing Procedure) Act 1999 applies to that sentencing process; and the offender has the same rights of appeal as if he had been so sentenced when found guilty: s. 107 D Administration Act.

Abolition of s.12 Bonds (suspended sentences) and Replacement with Intensive Corrections Orders [ICO’S]

Procedure and effect of Breach of ICO

 If the Commissioner or a community corrections officer is satisfied that an offender has failed to comply with any of his/her obligations under the ICO, the officer may do any of the following:

  1. record the breach and take no further action;
  2. give an informal warning to the offender;
  3. give, or arrange to be given to, the offender a formal warning that further breaches will result in referral to the Parole Authority;
  4. give a reasonable direction to the offender relating to the kind of behaviour by the offender that caused the breach;
  5. impose a curfew on the offender of up to 12 hours in any 24-hour period.

[s 163 (2) of the Administration Act]

Alternatively, or in addition, to taking any such action, the Commissioner or a community corrections officer may decide to refer the breach to the Parole Authority because of the serious nature of the breach and may also make a recommendation as to the action that the Parole Authority may take in respect of the offender: s.163 (3) of the Administration Act.

 Assessment Reports [relevant to ICO’s and CCO’s]

 Division 4B makes new provisions for Assessment Reports and that Division is reproduced for convenience:

New Sentencing Regime for Domestic Violence Offences

 Part 2, s.4 of the Act introduces a new regime for domestic violence offenders:

Part 2 – Penalties that may be imposed

Division 1 – General

 4 Penalties generally

4A Domestic violence offenders–requirement for full-time detention or supervision

  1. If a court finds a person guilty of a domestic violence offence, the court must impose on the person either:
    (a)       a sentence of full-time detention, or
    (b)       a supervised order.
  2. However, the court is not required to impose either of those sentencing options if the court is satisfied that a different sentencing option is more appropriate in the circumstances and gives reasons for reaching that view.
  3. For the purposes of this section, a “supervised order” is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.

4B Domestic violence offenders–protection and safety of victims

1. An intensive correction order must not be made in respect of:

(a)  a sentence of imprisonment for a domestic violence offence, or

(b)  an aggregate sentence of imprisonment for 2 or more offences, any 1 or more of which is a domestic violence offence,

unless the sentencing court is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected (whether by conditions of the intensive correction order or for some other reason).

2. If the sentencing court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.

3. Before making a community correction order or conditional release order in respect of a person whom the sentencing court finds guilty of a domestic violence offence, the court must consider the safety of the victim of the offence.

Please get in touch with us to learn more about criminal law and how the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 may affect you.

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