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Elisha Edwin

Proving the Deceased did not make a Will

By Elisha Edwin / July 9, 2020 / 0 Comments

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…

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Transferring a Liquor Licence

By Elisha Edwin / June 18, 2020 / 0 Comments

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…

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HomeBuilder Announcement

By Elisha Edwin / June 17, 2020 / 0 Comments

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…

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Don’t get caught out

By Elisha Edwin / May 28, 2020 / 0 Comments

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…

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Paying the Price for failing to confirm bank account details

By Elisha Edwin / May 28, 2020 / 0 Comments

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…

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Informal Wills

By Elisha Edwin / May 28, 2020 / 0 Comments

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…

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Providing for your Pet in your Will

By Elisha Edwin / May 28, 2020 / 0 Comments

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…

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

By Elisha Edwin / May 28, 2020 / 0 Comments

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…

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When a company fails to pay your debt

By Elisha Edwin / May 28, 2020 / 0 Comments

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…

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Tribunal determines what is fit for habitation

By Elisha Edwin / May 22, 2020 / 0 Comments

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…

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

By Elisha Edwin / May 22, 2020 / 0 Comments

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…

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Witnessing documents in NSW during COVID-19

By Elisha Edwin / May 11, 2020 / 0 Comments

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),…

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Material Facts a Real Estate Agent Must Disclose to Potential Buyers

By Elisha Edwin / May 11, 2020 / 0 Comments

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…

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

By Elisha Edwin / May 11, 2020 / 0 Comments

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…

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New Mandatory Code of Conduct for Commercial Tenancies

By Elisha Edwin / April 22, 2020 / 0 Comments

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…

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National Electronic Conveyancing Law Update

By Elisha Edwin / April 20, 2020 / 0 Comments

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…

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Relief against directors’ personal exposure in COVID-19 times

By Elisha Edwin / April 6, 2020 / 0 Comments

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…

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Relief against creditor action in COVID-19 times

By Elisha Edwin / April 6, 2020 / 0 Comments

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…

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Force Majeure Clauses in Commercial Contracts

By Elisha Edwin / April 6, 2020 / 0 Comments

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…

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Changes to residential tenancy laws

By Elisha Edwin / February 27, 2020 / 0 Comments

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…

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

By Elisha Edwin / February 27, 2020 / 0 Comments

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…

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What is a major defect?

By Elisha Edwin / February 12, 2020 / 0 Comments

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…

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

By Elisha Edwin / February 12, 2020 / 0 Comments

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…

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Dodgy Developer Database

By Elisha Edwin / February 12, 2020 / 0 Comments

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…

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

By Elisha Edwin / January 7, 2020 / 0 Comments

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…

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Which law applies?

By Elisha Edwin / January 7, 2020 / 0 Comments

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…

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

By Elisha Edwin / January 7, 2020 / 0 Comments

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…

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

By Elisha Edwin / January 7, 2020 / 0 Comments

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…

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Stop Bullying Order

By Elisha Edwin / December 19, 2019 / 0 Comments

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…

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Re Lapalme; Daley v Leeton [2019] VSC 534

By Elisha Edwin / December 19, 2019 / 0 Comments

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.…

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What is a retail premises

By Elisha Edwin / December 11, 2019 / 0 Comments

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…

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Nguyen v Nguyen [2019] NSWSC 131

By Elisha Edwin / December 9, 2019 / 0 Comments

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,…

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Henley v Bone [2019] NSWSC 254

By Elisha Edwin / December 9, 2019 / 0 Comments

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…

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A Timely Reminder About Statutory Demands

By Elisha Edwin / December 9, 2019 / 0 Comments

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…

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Removing an executor

By Elisha Edwin / December 9, 2019 / 0 Comments

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…

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Failed Debt Recovery Action by Council

By Elisha Edwin / December 9, 2019 / 0 Comments

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…

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Substantial Damage to Land after Exchange

By Elisha Edwin / December 9, 2019 / 0 Comments

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…

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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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