Elisha Edwin

Benjamin Order to Distribute an Intestate Estate

By Elisha Edwin / September 3, 2019 / 0 Comments

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…

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Is an Attorney Entitled to the Principal’s Will?

By Elisha Edwin / September 1, 2019 / 0 Comments

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…

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

By Elisha Edwin / August 26, 2019 / 0 Comments

“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…

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Landlord Just Blowing Hot Air

By Elisha Edwin / August 14, 2019 / 0 Comments

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

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Priority Notices: Pros and Cons

By Elisha Edwin / May 30, 2019 / 0 Comments

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

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Finders, Keepers, Losers, Weepers

By Elisha Edwin / February 19, 2019 / 0 Comments

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…

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Franchising Code of Conduct – Part 2

By Elisha Edwin / February 13, 2019 / 0 Comments

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…

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Key Changes to the Retail Leases Act 1994

By Elisha Edwin / January 23, 2019 / 0 Comments

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…

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Franchising Code of Conduct – Part 1

By Elisha Edwin / January 21, 2019 / 0 Comments

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…

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Owners Corporation barking mad for banning dogs from common property

By Elisha Edwin / January 21, 2019 / 0 Comments

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…

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Sale by Public Auction

By Elisha Edwin / January 14, 2019 / 0 Comments

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…

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New Laws affecting off the plan residential contracts

By Elisha Edwin / December 17, 2018 / 0 Comments

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…

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

By Elisha Edwin / April 20, 2018 / 0 Comments

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…

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Why choose a lawyer over a conveyancer?

By Elisha Edwin / April 12, 2018 / 0 Comments

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…

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Cautionary tale to landlords: Don’t take your tenant’s stuff and start using it as your own

By Elisha Edwin / April 12, 2018 / 0 Comments

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’…

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