Publications

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 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 New South Wales 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 New South Wales 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. Ultimately, only time will tell how the bold experiment with legalisation will work out for the ACT.

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.

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.

 

Criminal Law Matters: Issue 6

Dory: A friend of mine, her name’s Sigourney, once told me that all it takes is three simple steps: Rescue, rehabilitation, and um… one other thing?

Group of Cheering Fish: Release!

 Be very careful when entering a plea of ‘guilty’ to a criminal offence.

You do not have to be ‘guilty’ to enter a plea of ‘guilty’.  For example, sometimes you may want to just ‘get it (the court proceedings) over with’.

However if you enter a plea of ‘guilty’ (for whatever reason) you need to remember that for the purpose of sentencing you are admitting the crime you have been charged with and you will be sentenced on the facts relied on by the Prosecution.   Further you are at the mercy of the Court in relation to sentence subject only to the Court’s jurisdictional limits.

In the case of ‘Meissner’ Justice Dawson said –

 “It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred”

You can ask the District Court at the time of an Appeal, by way of Notice of Motion, to allow a change of plea. Sometimes this request is made of the Local Court in the course of the Local Court proceedings.

A client recently instructed me to apply to the Local Court to reverse her plea of ‘guilty’.

She had entered a plea of ‘guilty’ (represented by her former lawyers) in order to finalise very protracted proceedings.

She was alleged to have stolen a poster (one might think a trivial offence).  She had a strong defence and had always maintained her innocence.

The charge of larceny (stealing) was listed for hearing however on the first hearing date the matter was ‘not reached’ and adjourned due to a busy court list.  The matter was listed for hearing again several months later (and a year after the alleged offence).  My client suffers from anxiety and could not face the thought of giving evidence in the witness box.  She instructed her former lawyers to plead ‘guilty’.

The problem was that she was then sentenced to a term of imprisonment!

A home detention assessment was ordered and she was ultimately deemed suitable to serve her imposed prison sentence by home detention.

However she realised she had made a big mistake as she was not guilty of the offence to begin with and was now subject to a very serious penalty.

In this case the question became:

 

IS THE COURT FUNCTUS?

Section 207 Criminal Procedure Act NSW states that an accused person can apply to the Local Court to change a plea of ‘guilty’ to ‘not guilty’ ‘at any time’ before the summary proceedings are “finally disposed of”.

In the case of DD v Arab & Anor [2009] NSWCA 75 at paragraph 36 (Beazley JA) : “..The final disposition of summary proceedings, where there has been a finding of guilt after a hearing or a plea of ‘guilty’, must mean after sentence has been imposed and recorded.”

However this case was complicated by the fact that the application to reverse the plea came after the Court had imposed a sentence of imprisonment (as is required by the legislation before a home detention assessment is ordered).  Although the matter was adjourned for the home detention assessment (so the case was not finalised when we applied to the Court to reverse the plea) two (2) Magistrates both opined (and one formally ‘found’) that the Court had no power/no jurisdiction/was functus.  There was no other option other than the jail term whether it be in a jail or ‘at home’.  My client was stuck with her ‘guilty plea’ and with a jail term for stealing a poster.

In case the Court erred about being ‘functus’ the Court also ruled on the further issue as to whether there were merits in the application for a reversal of the plea.

In this case the Court found that this was a typical ‘Meissner’ case (even though my client suffers from diagnosed anxiety) and that she made an informed decision to plead ‘guilty’ to avoid giving evidence.

So if you are not guilty of an offence you should really think twice before just trying to ‘get it over with’!

 

Make the most of a Pre-Sentence Report interview

A Pre-Sentence Report (“PSR”) is a report about you prepared for the court by the community offenders service. It is used by the Court to help decide what sentence to impose on you. It will also let the court know whether you are suitable to be placed on a Community Service Order.

A Community Service Order is an alternative to a term of imprisonment and therefore whether you are assessed as suitable can have significant implications.

Besides ascertaining whether you are medically capable and willing, the PSR will also provide the court with valuable information about your personal circumstances and attitude towards the offence.

This can help you stand out in circumstances where the Magistrate has probably seen the same offence many times before and maybe several times on the same day that you are being sentenced.

Although it may feel daunting at first, you should consider the interview with the Community Corrections worker as an opportunity to help your case.

The Community Corrections worker will obviously ask you questions but it is up to you to give thoughtful answers. Where appropriate volunteer information if you are not asked about something important.

It is not a time to air frustrations you may feel about the court process, the Police, and victims or witnesses.  The interview is less about the offence itself and more about you. Even questions about the offence are really aimed at ascertaining your attitude towards it.

The interview can be relatively short, so you should spend that valuable time talking about the most relevant and important things.

The sort of things that may appear in the PSR which will not help you get the best result includes;

  • Minimised his/her role in the offending;
  • Apportioned blame on the victim;
  • Disputed the Facts;
  • Did not appear to have insight.

A Community Service Order can add additional pressure to your other commitments such as work or family. That’s okay, you should be upfront about practical issues but don’t be misunderstood as unwilling.

Finally, Community Corrections workers are people too. So, try make their job as easy as possible by being on time, looking presentable, being efficient with the time of your responses, and being courteous and respectful.

Making the most of a PSR interview is one way that you can be proactive and take a process that can sometimes make you feel powerless into your own hands.

Court clarifies DUI charges

In a recent decision, the NSW Supreme Court clarified what is meant by driving under the influence.

 

What is DUI?

Many people use the term “DUI” as an umbrella term to refer to all kinds of drink driving charges. This is not technically correct.

In law, there are two kinds of drink driving charges, DUI and PCA. Most drink driving charges are in fact PCA charges. PCA stands for Prescribed Concentration of Alcohol. When a person is breathalysed and returns a reading over the limit, the police will charge a PCA offence, not a DUI offence.

A DUI offence is used where Police do not have a reading but are instead relying on the fact that the person was under the influence of alcohol  or other drug at the time of driving. Usually, to prove a DUI charge, Police rely on observations about the person’s appearance and behaviour to show that they were “under the influence”.

Until recently, many Lawyers and Magistrates thought that in order to establish a DUI charge, police had to establish that the person was so affected by alcohol or some other drug that their ability to drive was impaired. The recent Supreme Court Decision of DPP vs Kirby established that a DUI charge can be proved even where there is no proof that the person’s state of intoxication would have impaired their ability to drive. All the police have to prove is that the person was influenced by alcohol or a drug in some way, whether it was related to driving or not.

Whether or not this development is seen as positive will probably depend on a person’s individual point of view. Critics of this development may well argue that the function of DUI charges is limited to protecting against drivers whose ability to control a car is impaired by alcohol or some other drug and that this development is unfair because it unnecessarily punishes people who may have had a little bit of alcohol, may well be under the legal limit for a PCA charge and pose no danger on the road. On the other hand, supporters will no doubt say that anyone who is under the influence of alcohol or drugs to any extent should not get behind the wheel of a car.

 

Our expert traffic law team understand all the strategies to you get the best outcome. Contact Conditsis Lawyers today.

Challenging a Will: What information does an applicant need to show when making an application for a greater share in the deceased’s estate?

If a person decides to make a claim against a deceased person’s estate seeking a greater share in the deceased’s property, that person will need to provide information to the Court to show that they have needs that have not been adequately provided for by the deceased.

Additionally, a person will need to provide information to the Court on the nature and quality of the relationship between the applicant and the deceased.

An applicant can also provide information to the Court as to:

  • the size, nature and value of the deceased’s assets and any liabilities;
  • any contribution, financial or otherwise, the applicant has made to the deceased’s property or welfare during the deceased’s lifetime;
  • any obligations or responsibilities the applicant feels that the deceased owed to him or her;
  • whether the deceased made any statements to the applicant as to how he or she would provide for the applicant; and
  • details of the deceased’s will and whether the deceased appointed a person to deal with his or her estate.

Although an applicant may be an eligible person to make an application for better provision from a deceased person’s estate, it is important that the applicant shows to the court that they have needs, present and future, that the deceased has failed to recognise in his or her will.

The Court will need to know the nature and extent of the person’s present needs as well as what his or her future needs may be. Accordingly the applicant will need to provide extensive information as to their current financial circumstances. This includes details of the applicant’s income and any liabilities or debts the applicant may have to provide information to the Court as to the applicant’s financial resources. The Court will also ask for details on the property the applicant owns and has bought and sold.

In addition, the applicant will need to provide as far as reasonably possible information on what his or her future needs may be. If the applicant anticipates that they will have future medical needs, then information will need to be provided as to what they are.

 

Expert legal advice on Wills and Estates

To speak with an experienced and qualified solicitor regarding a Wills or Estate matter, contact us today.

 

Recent changes to the Retail Leases Act and their impact on entering into lease of a retail shop

On 1 July 2017, amendments made to the Retail Leases Act 1994 (NSW) came into effect that will impact landlords and tenants of retail premises.

The leasing of retail premises is governed and affected by numerous legislative and regulatory requirements. The Retail Leases Act 1994 (NSW) (the Act) overrides any provision of a lease that is inconsistent with the Act. Accordingly, it will be in the interests of landlords and tenants alike to be aware of them. This is particularly so, when either:

  • negotiating and entering into a lease; or
  • renewing a lease on exercise of a lease option.

A summary of the changes to the Act that are of particular relevance when either entering or renewing a lease are set out below.

 

1. Five year minimum term no longer applies

A tenant’s statutory entitlement to a five year term is one of the most significant aspects of retail leases, intended to improve a tenant’s security of tenure allowing a tenant to realise its investment in its fitout costs. A tenant could waive it by providing a certificate under the Act.

As from 1 July 2017, the minimum five year term is now no longer required.

The reason for this change is to provide greater flexibility in lease negotiations where parties find that a shorter term is better suited to their business needs.

Quite often landlords and tenants will enter into a lease for a term of less than five years not being aware that the five year statutory entitlement was required to be waived. If not waived at the commencement of the lease, a tenant was later entitled to rely on the Act to extend its lease term to five years. As a result, situations have arisen whereby tenants have sought significant sums from landlords to surrender its lease.

Removing the five year term requirement is aimed at addressing these types of situations.

 

2. Some retail premises are now no longer covered by the Act

The Act now specifically excludes certain usages from being retail shop premises. These include ATMS, vending machines, internet booths, storage of goods for use or sale in a retail shop and in some instances, car parking.

 

3. Provision by landlord of its disclosure statement

Seven days before entering into a lease, a landlord is required to provide a disclosure statement to a tenant. The information contained in the disclosure statement includes important information for a tenant such as the rent, lease term, options, relevant dates, premises details, fit out requirements and estimates of outgoings.

If the landlord fails to do so, or the disclosure statement is materially false, misleading or incomplete, a tenant can terminate the lease within the first six months.

In addition to this right of termination, a tenant will also have a right to compensation. This right also extends to a tenant’s cost in connection with the fit out of the retail premises.

Landlords should be aware that the requirement to provide a lessor’s disclosure statement also extends to when an “agreement for lease” is entered into. An agreement for lease is an agreement to grant a lease in the future. This can occur in situations where the premises are not ready for occupation or have not been fully erected, or if the former tenant is still in occupation or when a lease is inteneded to commence at a future date and the parties do not want to execute a lease until then.

 

4. Disclosure of outgoings before entering into a lease

Many leases allow a landlord to recover outgoings from a tenant for various expenses it incurs in the operation, maintenance and repair of retail premises. A retail landlord is required to disclose details of the various outgoings and contributions a tenant is required to meet. This disclosure is intended to help tenants make informed decisions about the costs of a lease.

Noncompliance with this requirement will result in the tenant not being liable for anything not disclosed or accurately disclosed by the landlord.

This also extends to estimates of outgoings. If an estimate of a particular outgoing provided in the disclosure statement is less than the actual amount required to be paid, a tenant will only be required to pay the estimate, unless there was a reasonable basis for that estimate.

In addition, any term of a retail shop lease that requires the tenant to pay or contribute towards the cost of providing any finishes, fixtures, equipment or services will not be enforceable if not disclosed in lessor’s disclosure statement.

 

5. Leases with terms of three years are now required to be registered and a copy given to the tenant within three months

It is now a requirement that when a retail shop lease has a term of more than three years (including any option term), or the parties agree that the lease is to be registered on the title to the premises, the landlord must lodge the lease for registration and an executed copy provided to the tenant within three months of it being returned to the landlord.

However, this period can be extended when a landlord is required to seek the consent of its mortgagee in order for the title deed (CT) to the premises to be produced for registration to occur. Obtaining a mortgagee’s consent and production of a CT can take a few months.

This amendment will provide greater protection to tenants. There are several risks to a tenant in not having a lease registered. In the event a landlord’s mortgagee takes possession, the mortgagee is not required to recognise a lease that is not registered. A purchaser of the landlord’s building may also not recognise a lease if unaware of its terms.

 

6. Lease preparation expenses that a landlord can recover from a tenant

Under the Act, a landlord is prohibited from passing on lease preparation costs to a retail tenant. Lease preparation costs are the legal fees a landlord incurs in issuing a lease. Other costs a landlord incurs are registration fees and mortgagee consent fees. Consent of the mortgagee is required for a lease to be registered.

When the original provision in the Act was drafted, it was intended that a landlord could not pass on mortgagee consent fees. However, the intention not to pass on mortgagee consent fees was not made sufficiently clear in the Act. As it was not specifically prohibited, mortgagee consent expenses have been passed on.

Seeking to provide greater clarity to prevent disputes, the Act now specifically prohibits a landlord from passing this expense onto a tenant.

However, a landlord can still request a tenant to pay the fee to register the lease on the title to the premises.

 

7. Bank Guarantee

A tenant is usually required to provide some form of surety to a landlord so as to guarantee it can meet its obligations under the lease.

The most common forms of surety under retail leases are security bonds and bank guarantees.

The Act did not make provision for the handling and return of a bank guarantee. In order to encourage transparency and greater certainty in dealings between a landlord and a tenant, a landlord is now required to return a bank guarantee within two months after a tenant has completed performance of its obligations under the lease.

A landlord may be required to compensate a tenant for any loss or damage suffered by the tenant as a result of any failure by the landlord to return it, including any reasonable costs incurred by a tenant in cancelling a bank guarantee as a result of the landlord not returning the original bank guarantee.

Sunset clauses in an off the plan purchases

In contracts for off the plan purchases, clauses are often included that provide for either party to end the contract in the event that the unit being purchased is not complete by a sunset date.

In 2015, the media reported that developers were exploiting these sunset clauses by ending the contract, then re‑selling the property to a new purchaser for a higher price to take advantage of rising property prices.

To address this practice and to provide purchasers with protection against developers exploiting sunset clauses to end a contract, on 2 November 2015 “sunset date provisions” were enacted under the Conveyancing Act 1919 (NSW).

Under these provisions:

  • a purchaser is required to consent in writing to the ending of the contract;
  • if a purchaser does not agree to end the contract, a developer is required to obtain an order from the Supreme Court permitting it to end the contract under the contract sunset clause; and
  • to obtain the court order, the vendor developer must show that the ending of the contract is “just and equitable” in all the circumstances.

In determining whether it is just and equitable for a developer to end the contract, the Court is required to consider:

  • the terms of the contract;
  • whether the vendor has acted unreasonably or in bad faith;
  • the reason for the delay in creating the subject lot;
  • the likely date on which the subject lot will be created;
  • whether the subject lot has increased in value;
  • the effect of the rescission on the purchaser; and
  • any other matter that the court considers relevant.

The new provisions were retrospective: in other words they apply to all off the plan contracts whether or not they had been entered into before or after 2 November 2015.

 

Is this enough for purchasers?

Up until now there have only been two applications by developers to the Court to end off the plan contracts.

In the first case, the developer did not provide sufficient evidence to justify ending the contract. Although the Court accepted that delays caused by contamination, the carrying out of remediation works and delays with the sewer mains had prevented the developer from completing on time, nevertheless evidence that included an increase in construction costs was not sufficient.

In the second case, a question arose as to whether it was possible for purchasers to be awarded compensation if the Court permits the developer to invoke the sunset clause to end the contract.

The ending of a contract pursuant to a sunset clause is called a rescission. This means that once the contract has been ended, the respective parties are put back in the position they were in before the contract was entered into. For purchasers, this means repayment of their deposit. However, purchasers are then in a position of attempting to purchase another property several years after entering into the contract, during which time prices may have risen considerably. This means that they may need to pay more for a comparable property.

In light of these considerations, is the refund of a purchaser’s deposit adequate? Should a purchaser be entitled to compensation as well?

Before the court made a decision, the case settled.

 

Contact us today for your conveyancing needs.

Conveyancing can be a complex area, and we recommend involving an experienced and qualified lawyer when buying or selling property.
Contact our conveyancing team today.

 

New disclosure requirements for contracts for sale of residential land

From 1 September 2017, contracts for sale of residential land will need to be updated to include new documents and meet new disclosure requirements.

 

Before residential property can be sold, a vendor is required to prepare a contract for sale that:

  • discloses information about a property’s title, its zoning, sewerage, any rights of ways or restrictions on use and swimming pool compliance;
  • contains certain documents; and
  • includes warranties about certain property matters a vendor is obliged to either make or disclose that it cannot make.

Collectively these documents, warranties and information are termed “vendor disclosure”. If contracts for sale do not contain the necessary information or fail to disclose any non-compliance with the statutory warranties, a purchaser has rights to rescind the contract.

On 1 September 2017, the Conveyancing (Sale of Land) Regulation 2010 was repealed and replaced with the Conveyancing (Sale of Land) Regulation 2017. As a result, marketing contracts that were prepared prior to 1 September 2017 that have not been exchanged will need to be updated.

 

New Asbestos Warning

A contract for sale is now required to contain a warning in respect of loose fill asbestos.

This warning advises purchasers to the effect that a purchaser should:

  • give consideration to whether or not a property contains loose fill asbestos insulation; and, if so,
  • to conduct a search of a register maintained by the Department of Fair Trading; and
  • to make enquiries at the local council as to whether it holds any records showing that the property has loose fill asbestos insulation.

This is particularly relevant for properties constructed prior to 1980. Between 1968 and 1979, a Canberra based company called “Mr Fluffy” provided loose fill asbestos insulation to homes in the ACT and in NSW. It was sprayed into roof cavities as ceiling insulation. It poses a significant health risk.

A taskforce was set up by the NSW Government to carry out free testing of residential property and in 2015, a register was set up to identify residential properties affected by this type of asbestos. In addition, from 20 June 2016, councils have been required to notify prospective purchasers if a property has been listed on the register by placing this information on its planning certificates (attached to contracts).

However, there have been concerns that purchasers may inadvertently purchase properties that had not yet been tested. To address this issue and to bring it to the attention of prospective purchasers, the warning notice is now required to be included in all contracts. Purchasers will be alerted so they can make the necessary enquiries.

 

Additional sewer service diagram to be attached

A vendor is required to disclose information about a property’s sewerage. It does this by attaching to the contract a diagram from a recognised sewerage authority showing the location of the authority’s sewer. This is commonly called the “sewer diagram”.

The sewer diagram shows the location of the sewer and the means of connection from the property to the sewer. The purpose is to show a purchaser whether part of a structure on the property has been built over or is adjacent to the sewer. This is important as an authority has a statutory easement to gain access for maintenance and is not required to compensate, rebuild or reinstate any structure to the state it was in before. The information is also important to a purchaser as it will affect a purchaser’s plans such as building a swimming pool or an extension to the house.

Following changes in 2009 the sewer diagram became less reliable. The sewer diagram did not contain all relevant information in respect of an authority’s sewer, such as an outline of the house in relation to any pipes.

A vendor will now be required to attach a diagram showing the location of any sewer lines “upstream of the point of connection to the authority’s sewer main” (including point of connection); and the location of the authority’s “sewerage infrastructure for the property downstream of the point of connection.”

This will provide all relevant information to a purchaser and not leave the vendor in a position where it has inadvertently breached its statutory warranty.

 

Additional Requirements

All strata by-laws in force are also required to be attached to a contract for selling a strata lot (ie unit or apartment in a strata title);

For further information on new disclosure requirements, contact us.

Family Court backlog letting families down

Chief Justice Diana Bryant has called on the Government to increase funding for the Family Court, describing the underfunded system as letting down “vulnerable people caught up in the system”.

 

Newcastle: Court delays in action

To see the backlog in action, look no further than Newcastle’s Federal Circuit Court. The court is experiencing a 19-month backlog in dealing with family law matters after one of three judge positions was left vacant from February 2017. The two judges who remained are each responsible for about 770 matters – almost double the national average.

On 8 September, it appeared calls for assistance may have been heeded, with the Government announcing the appointment of Jane Costigan to the Newcastle Registry of the Federal Circuit of Australia.

 

The Family Court workload

The Family Court is a busy jurisdiction. In 2015-16 over 100,000 applications were filed in the Family Court system across family law issues including:

  • separation and divorce
  • parenting and custody disputes
  • family and domestic violence
  • missing children
  • property and finance matters.

The average delay from filing to hearing is approximately 17 months, but some families have waited up to three years for their case to be heard.

 

Finding a balance for self-representation

In 2015-16, 44% of people involved in Family Court matters represented themselves. The increase of 5% from the previous year reflects the ongoing trend towards self-representation.

Self-representation is a right but can leave the system clogged with people without legal experience trying to run complex legal cases. Especially when emotions are running high around children, custody and divorce.

The Family Court recommends getting legal advice, but there’s no obligation to do so, and not everyone is eligible for legal assistance. Despite the costs of a legal representative, professional family law expertise is likely to help move their case forward and resolve it quicker than through self-representation.

 

Delays leading to settlements

The waiting times aren’t in keeping with the Court’s vision of putting children and families first and maintaining functional family relationships after separation; the backlog is not helping.

Backlogs in family law courts increase the likelihood some will choose to settle their case. Dispute resolution without judicial processes – including resolution of cases by agreement between the parties – is a fundamental element of family law. However, the need for closure to matters can encourage settlement in a case, and an outcome which isn’t in the best interests of children and families.

 

No resources to check compliance

When cases do make it through the system, a lack of resources means there’s no capacity to monitor compliance with orders made by the Court. Chief Justice Bryant remains concerned the Government “doesn’t understand the effect this is having on families”. Without enforcement of compliance, decisions of the court are rendered almost meaningless.

 

Fixing the faults

Chief Justice Bryant called on the Federal Government to boost court funding so more registrars and family consultants could ease the bottleneck.

The Government responded by announcing a $10.7 million package to engage more family consultants across the Federal Circuit Court of Australia, the Family Court of Australia and the Family Court of Western Australia.

It remains to be seen if this injection of funds for frontline services is enough to make a difference to the family law delays.

 

Resolving your family law matter

If you have a family law issue in the Family Court, your best chance of a speedy resolution in the best interests of your family is specialist family law expertise.

 

We’re ready to help

Our experienced family law team will support you through Family Court processes, and identify the best strategies to minimise waiting times. Contact Conditsis Lawyers today.

Family Law changes aim for quicker decisions and victim safety

New laws proposed by the Federal Government would introduce streamlined parenting hearings and preventing victims of family violence from being confronted by alleged attackers.

Following a review of the Family Law Act, the changes are expected to help reduce bottlenecks and long waiting periods in the Family Court, and reassure victims of violence of their safety in the system.

 

Parental Management Hearings for smarter dispute resolution

The new laws propose a $12.7 million investment in parental management hearings to resolve family law disputes.

The hearings are a new approach to resolving less complex family law disputes where both parties are representing themselves. In 2015-16, 44% of cases before the Family Court involved self-represented parties.

Designed as a less adversarial approach, the hearings will gather evidence from both sides to make decisions in the best interests of children and families.

Planned for a trial in Parramatta, the hearings would be rolled out across all relevant Australian jurisdictions.

 

No face-to-face contact protects victims of family violence

Current laws still allow for the victims of domestic and family violence to be cross-examined by their attacker who has been charged or convicted, or by an alleged offender.

The draft laws propose new rules preventing victims of family violence from being personally cross-examined by convicted or alleged perpetrators, or be required to cross-examine the convicted or alleged perpetrator if they are representing themselves. Instead, the court will appoint another party to undertake the cross-examination.

The new approach is a response to concerns that this interaction may further traumatise victims of violence, and the fear of facing attackers in court contributes to victims not reporting family violence.

Critics say the changes don’t go far enough, and that to protect victims, legal representation should be required for both parties, so family lawyers with expertise in these types of cases are a ‘buffer’ between the victim and the alleged abuser.

Public consultation has now closed on the issues, with a report expected in 2018.

 

Help when you need it

Family law can be a complex area – it can be emotionally draining for parents and children. Our specialist family law team are experts in dispute resolution and in supporting you through the Family Court hearing process. At the heart of our approach is maintaining your family relationships and acting in the best interests of your children. Contact Conditsis Lawyers today.

 

Housing Affordability: New Bills before the Federal Parliament

Housing affordability, rising house prices and high levels of home loan indebtedness are topics that have received much public comment in the media.

In the 2017–18 Budget, the Government announced the “Reducing Pressure on Housing Affordability – first home super saver scheme. There are currently four bills before the Federal Parliament to implement tax measures to implement the scheme and to tighten foreign investor rules to address housing affordability.

 

First Home Super Saver Scheme

On 1 July 2017 the First Home Super Saver Scheme (FHSSS) was established to assist first home buyers to save for a deposit inside superannuation.

Individuals are able to make voluntary contributions either through personal contributions or through salary sacrificing arrangements into their superannuation and to withdraw those contributions for the purposes of purchasing their first home.

There is a cap on the contributions that individuals can make. This is to ensure that individuals do not contribute more into their superannuation than they would otherwise have done.

From 1 July 2017, home buyers can contribute up to $15,000 per year and $30,000 in total. Contributions and withdrawals will take advantage of the concessional tax treatment available under super.

The scheme will be administered by the ATO. Contributions can be withdrawn from 1 July 2018.

Individuals will need to meet an eligibility criteria and certain conditions. These include entering into a contract to purchase or construct a residential home within 12 months of the first release under the FHSS scheme and to occupy the premises for at least six of the first 12 months.

If individuals are unable to meet the conditions, released amounts can be recontributed back to super.

 

First Home Super Tax 2017 Bill

Individuals are required to pay a tax if they do not enter into a contract to purchase or construct their first home or recontribute the requirement amount into superannuation.

This is to ensure that individuals do not obtain a benefit from accessing the FHSS Scheme.

 

Downsizing contributions into superannuation

Individuals over the age of 65 years will be able to contribute the proceeds of the sale of their family home up to $300,000 into their superannuation on or after 1 July 2018.

The measure is aimed at encouraging older people to downsize from large family homes and to relocate to housing that is more suitable for their needs. Older people will be able to invest the proceeds of selling a home into their superannuation which in turn will help to free up housing stock for young growing families.

 

Ensure Australian homes are available to Australians–changes to foreign investor rules

The Federal Government is also implementing three measures to tighten rules for foreign investor.

These include measures:

  • to reduce avoidance of capital gains tax by foreign residents with a 12.5% tax on sales of home of more than $750,000;
  • placing a limit on foreign ownership in new developments by introducing a 50% cap; and
  • implementing a charge on foreign owned residential property left vacant for more than six months in a year.

These measures are aimed at freeing up more housing stock.

Conveyancing can be a complex area. If you require an experienced and qualified conveyancing solicitor, contact us today.

Criminal Law Matters: Issue 5

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

William Pitt, 1st Earl of Chatham

The police apply to a Registrar for the search warrant; the warrant is granted and an Occupier’s Notice is served on the occupier informing the occupier of certain things including the ambit of the warrant.  The occupier can call for a copy of the warrant to view.

In reality many people who have a number of police arrive on their doorstep with recording devices and documents etc.  would not have the presence of mind to carefully peruse their Occupier’s Notice so as to for example notice missing pages, errors or inconsistencies in times/dates/signatures let alone call for a viewing of the originating document i.e the warrant.

Should such errors render the execution of the search warrant unlawful?  There is much caselaw about the ‘strict’ approach to be taken with the relevant documents and the procedures given the intrusive nature of the search and the infringement of individual rights.

There is case law and legislation and codes of conduct governing their operation.  However navigating the law in relation to search warrants is not so simple as the old adage ‘A Man’s home is his castle’.

One of the first major pieces of information on the Occupier’s Notice is the time the warrant expires.

I recently had a case where the Occupier’s Notice was defective in that the warrant was said to expire before the police arrived.

Within the Notice itself was information that the warrant had been applied for at the same time that it expired.  The Prosecution said ‘obviously this information as to the expiration time was an error!’

Not so obvious to my client – he did not even know what time it was when he was presented with the Occupier’s Notice.  He was being filmed at the time, surrounded by a number of police and also he was already in handcuffs.

So should this error in the Occupier’s Notice be just brushed off as a ‘slip’?

My client lamented – ‘What is the point of even serving an Occupier’s Notice if the police can just say ‘oh sorry just a mistake’ and get out the liquid paper and change the document?’  If anyone had noticed at the time would the outcome of the search have changed? Would my client just have had to wait for an amended copy of the notice to be obtained from the Local Court? Could the police have even re-written the notice? (It appears that they have that power)

The law is not clear and, as stated above, involves an interpretation of the legislation, common law and codes of practice etc. in the context of the particular situation.

What is clear is that it is a myth that a small error on a warrant renders the search unlawful and that all evidence is excluded.

It is also clear that the Occupier’s Notice is not the authority itself but rather information about the authority being the warrant.

The Law Enforcement Powers and Responsibilities Act (LEPRA) was introduced including for the purpose of making policing more practical.

Section 76 LEPRA says specifically that errors in warrants do not render the execution of the search unlawful unless the error is in relation to a ‘material particular’.

If the admission of evidence is held to be an argument about ‘unlawful’ or ‘improper’ (as opposed to ‘jurisdiction’) the Magistrate has discretion under the Evidence Act (section 138) to decide that the probative value of eg what was discovered in the search outweighs the impropriety or illegality.

So is a man’s home his castle?

Tell ’em they’re dreaming!

Criminal Law Matters: Issue 4

I recently was waiting at the Local Court in the Downing Centre for my client’s matter to be heard.

The majority of the cases before the Court were offences of violence.

One man who described himself as having ‘a strong moral compass’ and particularly a dislike for ‘littering’ hit a person waiting at a bus stop late at night after he saw that person discard their rubbish.

A bus driver grabbed a sixty-four (64) year old woman who had been a passenger on his bus and who had an issue with his driving.  She stood outside the bus taking photos of him and he got off the bus and grabbed her to stop her behaviour.

A thirty-three (33) year old man with no criminal history threw his mobile phone on the ground in the workplace then threw a mug of water on his colleague, smashed the mug and injured the colleague resulting in an injury requiring stitches.

A man who took offence to something he thought someone said to his girlfriend at McDonalds proceeded to grab a pole and ‘trash’ the frying station and assault a number of McDonald’s staff members.

And then there was the bespectacled year 11 female school student who assaulted security and police due to being denied entry to a nightclub on her eighteenth (18) birthday.

My client was arrested at Mardi Gras after he punched a police officer (with no effect!); he then proceeded to escape from police custody and run down the road in handcuffs chased by a police officer on a motorcycle.

Not all of the offences involved people under the influence of drugs and/or alcohol.  Diagnosed mental health issues featured in some of the matters.

In all matters the Court was sending a strong message to the community of ‘general deterrence’.  Violence is not to be tolerated in society and punishment will follow.  The penalties ranged from ‘good behaviour bonds’ with and without a conviction recorded, to fines, to community service.

Punishment is only one of the purposes of sentencing.  Rehabilitation is another important purpose of sentencing.  Accordingly, the Courts are looking for ways to try and treat this problem of social violence and aggression.

Studies have shown that impulsivity and acting aggressively could be due to low levels of a chemical in the brain called Serotonin.  Other studies have suggested that medications taken to treat depression called ‘Selective Serotonin Reuptake inhibitors’ (SSRIs) may help with these problems by increasing the levels of Serotonin in the brain (sertraline is one such medication).

In our Local Court at Gosford (and other courts in NSW) there is now pre-sentence referral by the Court for repeat violent offenders to participate in a study called ‘Reinvest’.   The study is to find out whether people in the criminal justice system who are impulsive and have problems with violence and aggression would benefit from treatment with sertraline.

Watch this space in relation to the results in current court matters.

The Newcastle Herald: Behind Newcastle’s rising crime statistics

Opinion | What’s behind area’s rising crime statistics

The NSW Bureau of Crime Statistics and Research disclosed last week that crime across most of NSW had remained stable or fallen over the past two years. The bad news, particularly for Newcastle, is that most major crimes are increasing in the Newcastle and Lake Macquarie Statistical Area.

This region is showing significant increases in four of the 17 major offences: motor vehicle theft (up 15.9 per cent), steal from motor vehicle (up 10.1 per cent), steal from retail store (up 17.8 per cent), and malicious damage to property (up 8.2 per cent).

Newcastle itself, however, has significant increases in five major offences including sexual assault (up 13.1 per cent) and indecent assault (up 26.9 per cent).

Why has there been such increases in [reported] sex crimes?

It should be emphasised that there has been an increase in the reporting of such crimes, not necessarily that more crimes of this nature have been committed. No one would know whether or not there has been an actual rise in this type of offending, or whether victims are now more likely to make a complaint to police. There are many and varying reasons as to the increases, but few would argue with the following:

  1. The work of the Child Abuse Royal Commission since it started in 2013 and particularly, extensive media coverage of it;
  2. Extensive media coverage of sex crimes in general and domestic violence;
  3. Gradual but significant changes to laws governing the manner in which sex trials are run and dealing with the non-admissibility of evidence that used to be taken for granted and would be put before the jury.

Although the Child Abuse Royal Commission has particularly focused on systemic child abuse, there could not be any doubt that victims of sexual abuse, hearing the heart-breaking stories of survivors and the exposure of sex crimes, in many cases committed many decades ago, would have encouraged victims to find the strength to make a complaint to police.

The media coverage of the Royal Commission, appropriately covered with sympathy and empathy for the survivors and outrage against the perpetrators and institutions that allowed abuse, would also have gone a long way towards giving victims the strength to come forward.

One ought not underestimate the link between domestic violence (with all its variables) and its continued calling out in the media and social media and victims of sex crimes being fortified with the belief that the community is behind them and that “enough is enough”.

Lastly, it is one thing for a victim to make a complaint to police and entirely another for them to tell police and prosecutors that she or he is prepared to stare down their attacker, to see him (usually a him) charged and be prepared to give evidence against him. Significant changes to laws over recent years and media coverage of them, would have emboldened victims to not only report the crime but to see the arduous proceedings through to the end. These changes include:

  •  Significant difficulties for the defence to access confidential counselling notes of the victim, let alone getting any part of the notes admitted into evidence;
  • Significant difficulties for the defence to cross examine the victim about his or her sexual history, even if relevant to the alleged offence;
  • The initial complaint to police by a child victim is recorded on a DVD by police and generally, that DVD becomes the child’s evidence as to the alleged offence;
  • The child complainant is assisted by “the Children’s Champion” in readiness for cross examination;
  •  A report is prepared on behalf of the child complainant informing lawyers [and judges] of terms and expressions to avoid, having regard to the child’s level of maturity and understanding;
  • The cross examination of the child complainant is recorded before the jury is empaneled and later played back to the jury.

Newcastle Herald – Original Article: http://www.theherald.com.au/story/4920761/whats-behind-areas-rising-crime-statistics/ 

New increased police powers unjustified and problematic

Recent changes to parole and shoot to kill laws and regulations introduced through amendments to terrorism legislation in New South Wales present some very real concerns to our priceless civil liberties under the repeated political populace mantra that this is necessary to make us “safer from terrorists that would see us harm”.

This bill was rushed through parliament without proper scrutiny and is another step in the continual fettering of our civil liberties. It raises a number of significant concerns that will likely impact on our lives and have regrettable unintended consequences.

Changes to parole

Under the new regulations, parole will not likely be granted to a person who the police suspect has links to or is associated with terrorists or terrorism, potentially, even in an indirect way. It is absolutely crucial that we understand what the words “associated” or “linked” mean. It would appear that suspicion and possibly speculation will suffice; that is “guilt by association”. Who is to determine whether there is sufficient evidence for such association or link: is it the police or government? What is the standard of proof that will be required before an offender loses his or her right to parole – to ever be released from prison?

To illustrate this point let’s consider this example; Bill, an Australian with Anglo Saxon lineage, grew up with Mahmoud, whose background is Lebanese – Muslim, and they remained friends. Unbeknown to Bill, Mahmoud had covert interests in ISIS and/or terrorist activity. Bill is then gaoled for stealing a car and after spending three years in prison is due for parole. Under the new legislation, the police could present evidence of Bill’s “association” and/or “links” to Mahmoud and the presumption would be against Bill getting parole – yet – Bill has no direct link or interest in terrorist activity or ISIS and does not support or condone their activities in any way.

Fear of such an occurrence could have the effect of isolating, even more so, persons such as Mahmoud.

Increased police powers – shoot to kill

The Coroner in the Lindt Siege Inquest made it clear that police already had sufficient power to shoot and kill Monis. This additional power – to shoot to kill even where there is no evidence that the hostages have actually been threatened – is unnecessary and problematic. The legislation does not allow for independent oversight of the police commissioner’s declaration of an event that is or is likely to be a ‘terrorist act’. Why doesn’t such life ending power with unintended potential consequences have an adequate check and balance, such as with a request for a search warrant where a Justice or Justices’ sign off on the “declaration”? This could be done within a couple of hours and sieges are notorious for lasting many hours.

Likely Unintended Consequence

Any siege is likely to be treated as a terrorist act and increases the potential for hostages to be killed or seriously injured even where there is no direct evidence that the hostages were threatened or in actual danger at the hands of the hostage taker.

These changes go a long way to achieving a perverse result; giving the terrorists’ at least part of what they seek to achieve; to cause us to react out of fear and to change the way we live. Whenever we make changes to our laws that take away or whittle down our civil liberties – such as granting (even) greater powers to our police force and intelligence agencies – these changes have the real potential to cause innocent people, particularly, if they are of different ethnicities or religions, to be locked up indefinitely without there being sufficient evidence for them to be charged or brought before a court for any (other) offence. Through these laws we then achieve an unintended consequence; that, in a perverse way, at least on one level, the terrorists’ achieve their goal; that is, to affect the way we live; to limit our civil rights and freedoms that we hold so dear and for which our forefathers have fought wars and lost their lives.

For further information, contact Manny Conditsis today.

Should I speak with police?

When Police are investigating an allegation that you have committed a criminal offence, they will usually invite you to participate in an interview with them about the allegations. Deciding whether or not to accept this invitation can be one of the most difficult and important decisions you will need to make. Here are some things you should know before you make that decision:

Things you should know

Right to silence

Except for some specific circumstances, generally, every person who is suspected of a crime has the right to silence. This means that you cannot be forced to be interviewed by police. In fact, the law provides that if you choose to remain silent, your silence cannot be used against you in court.

Practical Hint: Your right to silence includes the right not to have your refusal to participate in an interview recorded. Sometimes, when you tell police that you do not want to participate in an interview, some will suggest to you that it is still a requirement that your refusal to participate in an interview should be recorded on video and audio. This is incorrect and, if you have make a decision not to be interviewed by police, you should insist that you do not want your refusal to be recorded in this way. You may however, agree to sign a police notebook saying you don’t want to be interviewed. Too often, after the recording equipment has been turned on, despite knowing that you have said that you don’t want to be interviewed, police nonetheless start asking questions about the allegations and, under the pressure of the moment, you might start to answer the questions even though that was not your intention.

No single right answer

Many people, including some lawyers, will tell you that you should never “talk to the cops”. While this is often wise advice, that is not always the case. Sometimes, participating in an interview with police can be of great benefit to your case. Get a lawyer – a really good one!

There is no easy way to decide whether or not it is a good idea to be interviewed by police. This article explores some of the factors that might influence that decision. However, there are many other things to consider and they will vary from case to case. At the end of the day, there is no substitute for getting advice from an experienced and highly skilled criminal defence lawyer who will be able to weigh up all of the relevant considerations and help you make this crucial decision. Thatsaid, there are some common factors which need to be considered in most cases.

What happens in a police interview

Usually, when Police interview a suspect they will do it in a specialised room in a police station called an ERISP room. ERISP stands for Electronic Record of Interview with Suspected Person. An ERISP room is a small room, usually with no windows, which is fitted with a desk and recording equipment. The entire interview is normally recorded on both an audio and a video disc so that there can be no dispute about what was said.

There are usually two police officers who conduct the interview. One who does most of the talking and another one who will initially listen and take notes and might later ask additional questions if he or she thinks the first police officer missed something.

You have the right to have either a Lawyer or a support person with you during the interview.

The form of the interview is usually question and answer. That is, police will ask you questions about the allegations and ask you to respond.

It is important to understand that, before police interview you, they would have already carried out investigations and likely, have a great deal of knowledge about the allegations and surrounding circumstances. Often, police will already know many of the answers to the questions they are asking you and the purpose of asking is not to find out what happened but to see whether or not you will give a truthful answer.

Depending on the personality of the police officers who are conducting the interview and the nature of the case, the questions and the comments by police can get accusatorial, heated, and sometimes even downright rude or offensive. If this happens, it can rattle you and prevent you from thinking straight.

At the end of the interview, the interviewing police will leave the room and another police officer who is not involved in your matter will come into the room and ask you a series of standard questions designed to have you confirm that the interview was conducted in a fair manner. If you feel that the investigating police have pressured you in any way (whether before the interview or during it) or you have been mistreated in any way, it is very important to tell this police officer.

Things you should think about

Your personality

The kind of person you are can have a big impact on your decision of whether to agree to be interviewed by police. Some of the things you should consider are:

  • How do you cope with pressure?
  • How articulate are you?
  • How good is your understanding of English?
  • If the interview is being conducted through an interpreter, how good is the interpreter? (Finding this out can be tricky but a good lawyer might be able to suggest ways to do this)
  • How even tempered are you – might you get angry or lose your cool in the interview?

How much do you know about the allegations?

Sometimes, you might have a very good idea about what is being alleged against you, at other times you might have no idea at all. The more you know ahead of the interview the better your chances of being able to answer questions persuasively and accurately.

Do you have something to hide?

Even if you are innocent, there may still be things you might be tempted to hide from police. If you think there is any chance that police might ask you about something which you might be tempted to lie about, it is probably not a good idea to be interviewed.

As a hypothetical example, assume that your partner thinks that you have cheated on them and, as revenge, reports you to police and makes false allegations that you have been violent towards her/him. You have never raised a hand against your partner however, their suspicions of your infidelity are true. Unless you are prepared to fess up to your infidelity to police, you should not agree to be interviewed. If the question of your infidelity comes up in the interview and you lie about it and police can prove you lied, your credit will be damaged and this might lose you the whole case even though you might be innocent of the actual charge against you. This is not to mention the fact that lying to police creates an offence in itself.

Is this the right time to be interviewed?

Sometimes, you get to choose a mutually convenient date and time for your interview with police. Other times, police arrest you without notice, take you back to the police station and then ask you whether or not you want to participate in an interview. It might be completely the wrong time for you to have your wits about you. For example, you might be tired, you might be affected by alcohol or you might be still distraught about something that has just happened. If you think that for any reason you are not in the right state of mind to do well in the interview it is best to decline any invitation to be interviewed.

The pros

Some of the advantages of giving an interview to police are:

  1. Avoiding a charge – sometimes, giving an interview to police can help to avoid being charged with a criminal offence in the first place. For example, if you can tell police during the interview that there is compelling evidence to show that you are innocent and tell them where or how to get that evidence, police might not charge you in the first place (assuming that evidence checks out). This can avoid a great deal of stress, anxiety and cost.

However, you should not place too much weight on this possibility. In practice, it is rare that police would not charge a person because of what they have said in an interview. Remember, if you have been invited to an interview with police it is because police already have evidence against you. It is very difficult to persuade police not to charge you. It is definitely not as simple as telling police that you are innocent or trying to explain to them why the person who has made allegations against you might have made it up. Experience shows that police will usually charge you after the interview unless what you tell them in the interview is extremely compelling as to your innocence and is able to be verified independently of you.

For example, if police suspect that you have carried out a robbery at 4pm on the 1st January and you are able to tell them that at the time of the robbery you were several hundred kilometres away on a holiday and that you were at a particular fast food restaurant that has cameras and police are able to retrieve footage from those cameras which confirm that you indeed were where you say you were, that might be a case where police would not charge you. However, without those cameras or other compelling evidence supporting your story, you would probably still be charged.

  1. Early denial – if you do find yourself having to defend the charge in Court, your interview with police will be played to the Court [including the jury] at your trial. If – and only if -you did well in the interview – that is, you denied the allegations against you in a way that is believable and reliable and you dealt well with any curve balls thrown at you by police – this can go a long way to persuading a judge and/or jury that you are in fact innocent.

Additionally, it is tactically wise to have the recording of your interview played to the Court early, which is what will happen if you participated in an ERISP.

Rest assured, an early and good ERISP can go a long way toward winning you the case.

  1. Preserving evidence of your innocence – sometimes during an interview with police, you may be able to point them in the direction of evidence that shows that you are innocent. Assuming that police are doing their job properly, they should then go out and get that evidence. This can be particularly important if the evidence of your innocence can only be obtained by police and might disappear unless it is secured quickly. One example is the CTTV footage at a fast food restaurant used in the example above. If police know about it, they can contact that restaurant and obtain a copy of that footage before it is overwritten or deleted and lost forever.

The cons

The flip side of what is said above under ‘The pros of doing an ERISP’ is that a bad interview, can just as easily lose you the case. For every pro, there are cons to being an interviewed by police. Some of the main ones are:

  1. Making admissions – if you participate in an interview with police some of the things you say may incriminate you. For example, you might admit having done something which police could not have otherwise proved against you. Another way you might incriminate yourself is by saying something which the police can prove was a lie.
  2. Making mistakes – even people who are innocent can look like they are guilty if they get tripped up and make a mistake under pressure. This can happen in many different ways. For example, your memory of the events about which police are asking might be hazy because they happened a long time ago or because you were affected by alcohol at the time. You might say something that you genuinely believe to be true but may later turn out to be wrong. Although, this might be about a detail which does not in and of itself prove that you are either guilty or innocent,, if it can be shown that what you said was not true, it can look like you have either deliberately lied because you know you are guilty or your memory of the events is unreliable and cannot be trusted.
  1. Looking guilty – sometimes, even innocent people can come across as looking guilty, especially when they are nervous. The nerves, anxiety and pressure of being under interrogation by police can make you sound and behave in a way which can later be interpreted by a judge or jury as a sign that you are guilty. This can go a long way to persuading a judge or jury that your protestations of innocence should be rejected.

There is a lot more to it

The decision whether or not to participate in an interview with police is very complex and there are many things to consider. The topics addressed above are only the tip of the iceberg. Given that the decision about being interviewed by police is a crucial decision which can make or break the whole case for you, we strongly advise that you speak to a highly qualified and experienced criminal lawyer before you make it.

Contact Michal Mantaj to find out more.

Challenging a deceased person’s will: family provision claims

If a person is unhappy with what has been left to them in a will, a family provision claim can be made seeking better provision from a deceased person’s estate.

In this article, we look at what a family provision claim is and who can make a claim.

What is a family provision claim?

A claim for family provision is an application made to the court by a person who feels that a deceased person has failed to provide for them properly in their will or that the share left to them is less than what they may have expected or even been promised.

Family provision is statute based and confers on the court a discretionary power to make an order for adequate provision to be made out of a deceased person’s estate for the maintenance of an applicant.

A purely twentieth century concept, family provision overrides the general legal principle that a person has the testamentary freedom to dispose of their property on death as they think fit. Up until the enactment of family provision legislation, this right was seldom interfered with unless the deceased person (or testator) had abused that right.

In a society in which wives were financially dependent on their husbands and adult males were the principal property holders and breadwinners, the first family provision act in New South Wales in 1916 was a reflection of community expectations that a deceased person had a moral duty or obligation to ensure adequate provision had been made for his dependants.

The primary focus of the first Act was the proper maintenance and support of a testator’s wife, husband or children. It addressed situations that occurred in a 1909 New Zealand case (Re Allardice: Allardice v Allardice (1909) 29 NZLR 959), in which a testator (deceased adult male) left a will that favoured his second family and completely cut out his first wife and children.

If successful, in making an order for provision, the court does not rewrite the deceased person’s will so that it is a will that should have or ought to have been made. Further, an order is not meant to right the wrongs in the deceased’s relationship with the applicant or to ensure that there is an overall fair division of a deceased person’s estate. However, the family provision legislation does give the court a discretionary power to discharge a testator’s responsibility to make adequate provision for the proper maintenance of the applicant.

Who can make a family provision application?

Up until 1982, the main focus of family provision legislation was on spouses and children of the deceased. In 1982, applicants eligible to bring a claim were broadened to include not only those entitled automatically on the basis of family ties but those who had cohabited or been dependant on the testator.

Under the current family provision legislation Succession Act (2006) NSW, there are six categories of eligible persons who can make an application.

They are:

  • the spouse of the deceased at the deceased’s date of death;
  • a person living in a de facto relationship with the deceased;
  • children of the deceased (which also includes adopted and ex nuptial children);
  • the former spouse of the deceased;
  • a person who at any time was wholly or partly dependent upon the deceased, either a grandchild of the deceased or who was a member of the deceased’s household; and
  • a person who was living in a close personal relationship with the deceased at the deceased’s time of death.

However, although a person may be eligible to make a family provision claim, it does not necessarily mean an entitlement to provision will be automatic. A person’s relationship with the deceased will not mean that there was a moral duty to provide for that person.

The process for making a claim

As spouses, de facto partners and children are recognised as having an automatic entitlement to make an application on the basis of familial ties, they will have less factors to demonstrate to the court when applying for family provision.

However, those who were members of the deceased’s household or had a close personal relationship with the deceased, and who do not have family ties to the deceased, may have a harder time providing sufficient evidence for a claim for family provision. These applicants need to demonstrate to the court that there are “factors warranting” the making of an order for provision. If unable to meet these factors, the court will not be able to make an order for provision.

When should a claim be made

Any claim for family provision needs to be brought within twelve months from the date of the deceased’s death.

It is possible to bring a claim after the twelve months have elapsed, but the court will need sufficient reasons to extend the time period for making an application.

If you are a person who has been left out of a will, or would simply like further information on family provisions, please contact us today.

Claiming against an Estate: Who can claim and what does an applicant need to show?

If you are a beneficiary or family member who has been left out of a will or your inheritance is less than promised or you consider you are entitled to a larger share than you have been left, there are avenues to pursue. One of these is to bring an application for family provision against the deceased person’s estate however, not everyone is automatically entitled to claim.

This article examines who is eligible to bring a claim and, if so, what that applicant needs to demonstrate in order to be successful.

Who can claim?

Before you can claim, you will need to establish that you are an eligible applicant.

The current family provision legislation, Succession Act (2006) NSW, specifies who can make an application. If you are:

  • a spouse, a person living in a de facto relationship with the deceased or a child, you are automatically entitled to bring a claim; or
  • a former spouse, a person who at one time was a member of the deceased’s household, or was living in a close personal relationship with the deceased at the time of the deceased’s death, it is possible to bring a claim but additional factors need to be demonstrated.

The existence of a particular relationship to a deceased does not create a moral duty to provide. If you are eligible to bring a claim, it does not necessarily follow that there will be an automatic entitlement to provision. It will need to be shown that the deceased failed to make proper provision for you either during the deceased’s lifetime or through their will.

What does the court consider when asking if there has been proper provision for an applicant?

To determine whether or not the deceased did make proper provision involves examining two questions:

  1. has the applicant been left by the deceased person without adequate provision for his or her proper maintenance, education and advancement in life; and, if so
  2. what provision ought to have been made?

Some of the matters that a court will look at to determine whether or not adequate provision has been made are the applicant’s financial position, the size and nature of the deceased’s estate and it will then balance these considerations with the interests of other claimants and demands on the estate.

An applicant must be able to demonstrate that they have a genuine need for maintenance and support and that their own financial resources are not adequate to meet their needs.

Other relevant considerations that will be taken into account will be any provision that a deceased made during their own lifetime, as well as the character and conduct of the applicant before and after the deceased’s death.

It is important to bear in mind the approach a court will take.

Each family provision claim is different and the outcome will depend on the circumstances and merits of a particular case.

Furthermore, frequently emphasised in judicial decisions is that the court does not have the power to effect what may be considered to be a fair distribution of the deceased’s estate among competing beneficiaries. The purpose of the family provision regime is not to create equality or fairness between a deceased’s family members. Nor is it an issue in a family provision claim of righting the wrongs that may have existed in a relationship between the deceased and the applicant.

A successful order for family provision in favour of an applicant will be made at the court’s discretion. The court will only intervene to the extent necessary when an eligible applicant is in need of proper provision and the deceased failed to make proper provision for the applicant.

 The contents of this article are intended to provide a general guide only. If you are considering bringing a claim against a deceased estate, you should seek advice that looks at your particular circumstances.

If you wish to discuss any claim that you may want to bring, contact our team today.

 

Tips for going to Court

Going to Court can be a frightening and overwhelming experience. Below are some tips outlining Court etiquette and procedures.

  1. Ensure you are well dressed and presented as a mark of respect.
  2. Always arrive at least five minutes early (unless you are otherwise advised).
  3. Sunglasses or hats are not to be worn in the courtroom.
  4. Do not take food or drink into the courtroom.
  5. Turn your mobile phone off (and not just on silent as it can affect the microphones) or it may be confiscated.
  6. When the court is ready to begin, a member of the court staff will open a door behind the bench to allow the judge or magistrate to enter the courtroom. The member of the court staff will then call “silence, all stand” and everyone in the courtroom then stands. Once the judge or magistrate has walked in, everyone must bow towards the bench.
  7. In the event that you are required to speak to the judge or magistrate, please refer to the them as “Your Honour”.
  8. When entering the court, face the bench and bow towards the judge or magistrate. The same applies when you are leaving the court.
  9. If you arrive when court is already sitting, quietly open the door, bow towards the bench and take a seat in the public gallery, located at the back of the court, or where you are advised to sit.

If you would like more information please contact us.

Federal Government’s Proposed New Encryption Laws

The Federal Government has recently announced that it intends to make new encryption laws to force tech companies to provide law enforcement authorities with assistance to intercept and decrypt communications. While little else is known concerning the details of these proposed laws, the language which the Prime Minister and the Attorney General have used to describe it is concerning.

Most people accept that there is a need for our laws to keep up with changes in technology and that the delicate balance between civil liberties and community safety must change in response to the circumstances which we face as a society. However, the proposed new encryption laws shift that balance too far towards authoritarian style, Big Brother surveillance by the state of its citizens.

Reading between the lines of what both the Prime Minister and the Attorney General said in their press conference, it appears that the new encryption laws will seek to force tech companies to help law enforcement authorities with intercepting and decrypting communications by building tools for that purpose. It is one thing to require companies to release information they already have to law enforcement authorities; it is quite another to force them to “assist” those authorities with decrypting that information.

To force tech companies (or for that matter any other non-Government entity) to build tools for law enforcement authorities to help them crack encoded messages would be an unprecedented incursion into the civil liberties of private individuals and companies. Effectively, it amounts to the Government co-opting the private sector to do its job for it.

If this is what the legislation will require, then it is disingenuous of the Government to claim that the new encryption laws will not involve any change in legal principle but will simply bring those principals into the online world. The truth of the matter is, existing obligations to cooperate with law enforcement authorities already apply as much to the online world as they do in the real world. The only reason the Government might need new legislation would be to impose new and fundamentally different obligations.

As if the civil libertarian concerns were not enough, there is also the obvious danger that any decryption tool built for law enforcement authorities could be leaked to criminal organisations which will then use it to wreak havoc on ordinary law-abiding citizens and organisations. We would do well to remember that the recent, devastating wannacry cyber-attacks-which crippled many computers around the world and caused an estimated four billion dollars’ worth of damage, originated with a leak from the NSA. We would be naïve to think that if these new powers are implemented the resulting decryption tools would only ever be used for legitimate law enforcement purposes.

Michal is a Law Society Accredited Specialist in Criminal Law. If you need help with a criminal matter, contact Michal today.

 

Changes to First Home Owners Benefits: the NSW Government’s Housing Affordability Package

From 1 July 2017 first home owners have access to a range of benefits as part of a housing affordability package implemented by the NSW Government to increase housing affordability for first home buyers.

Prior to the 2017 State Budget, the NSW Government announced its housing affordability package to help first home buyers get onto the ‘property ladder’. The measures aim to remove or reduce the financial barriers that can prevent first home buyers from affording their own property, such as government stamp duty and lenders mortgage insurance, while assisting them to save for a deposit, which is often several times the average wage.

Over the years there have been numerous financial incentives implemented to assist first home buyers purchase their first home. In its first iteration, the state government scheme offered very generous incentives to first home owners whether they were investing or buying a home to live in. In 2012, the NSW Government revised the incentives to focus on stimulating the building industry by encouraging new home construction; it restricted first home benefits to the purchase of newly built properties that had not been sold before (ie sold to a purchaser by a vendor who bought from a developer but had not finalised the first sale) and vacant land. However, housing affordability has only worsened.

The state government’s current housing affordability package re-introduces financial incentives for first home buyers to purchase both newly-built and existing properties as their primary residence, while retaining its financial measures for all purchasers, new home buyers or otherwise, to purchase a newly-built home. The major change in latest government package is the removal of incentives for investors.

What’s included in the housing affordability package: exemptions and concessions for new and established properties

As from 1 July 2017, first home buyers have access to a range of new incentives and exemptions.

They will now be:

  • exempt from paying stamp duty for new and established properties that are sold for up to $650,000;
  • entitled to stamp duty relief for new and established properties that are sold from $650,000 to $800,000; and
  • no longer be obliged to pay 9% insurance duty on lenders mortgage insurance meaning a saving of $2,900.

With these measures, first home buyers can save $24,740 on the purchase of $650,000 home.

All buyers, first home owner or otherwise, who purchase a new home off the plan they plan to live in will still be entitled to the twelve-month deferral of paying stamp duty. To qualify for this entitlement, purchasers must commence living in the property within twelve months of the issue of a certificate of occupation (not from the date of settlement of the purchase) and do so for a continuous period of six months.

The current exemptions and concessions for vacant land of up to $450,000 are still available.

The First Home Owner Grant

The First Home Owner Grant of $10,000 is

  • now limited to the purchase new homes of up to $600,000 in value; and
  • available for the building of a new home up to $750,000 in value under a home building contract or by an owner builder.

Share equity scheme

As part of the housing affordability package, the NSW Government will also introduce a share equity scheme where a buyer can purchase a property with an approved equity partner. This is aimed at assisting those who are unable to afford a home on their own.

An approved equity partner includes the NSW Land and Housing Corporation, a registered community housing provider and other approved persons. The guidelines on the operation of this scheme are yet to be developed.

The shared equity scheme will apply on eligible transactions where:

  • the equity partner obtains an interest in the home of not more than 80%;
  • the equity partner has the right to share in any capital gains on sale or refinancing but has no right of occupation; and
  • the home buyer can purchase more equity in the property from the equity partner at a price determined under the arrangement between the home buyer and the equity partner.

The first home buyer will also be entitled to duty exemptions or concessions and the first home owner grant and no duty will be payable on subsequent transfers of equity from the equity partner to the home buyer.

 

Ending financial incentives for investors

One of the biggest criticisms that has arisen in recent years, is the competition first home buyers face against investors. As such, financial incentives for investors have ended.

The $5000 New Home Grant Scheme and the entitlement to defer paying stamp duty for twelve months on off the plan purchases are no longer available to investors as from 1 July 2017.

Furthermore, foreign investors will now be obliged to pay higher duties and land taxes when purchasing residential real estate. Foreign investors will now be subject to a surcharge on stamp duty of 8% and a surcharge on land tax from 0.75% to 2.%.

If you have a question about the incentives or need advice regarding purchasing or selling property, contact us today.

 

Do you have an unregistered firearm? Dispose of it without penalty as part of the Australian Government’s firearm’s amnesty

The Federal Attorney General’s Department has announced a National Firearms Amnesty aimed at reducing the number of unregistered firearms in our community, to run from 1 July to 30 September 2017.

The amnesty allows anyone with an unregistered firearm to either register, sell or dispose of it, including its accessories, without penalty or risk of prosecution.

In Australia, it is illegal to have an unregistered firearm. Outside of the amnesty period, anyone caught with an unregistered firearm could face a fine of up to $280,000, 14 years in jail, and a criminal record.

How to dispose of firearms

Amnesty participants do not need to provide personal details to surrender a firearm or firearm-related article for destruction – there is a no questions asked policy. There is also no cost involved with handing in firearms or related items for destruction.

Find your registered drop-off point by calling the Amnesty hotline on 1800 909 826 or searching for the closest point using your postcode via the Amnesty website here.

For further information, contact us.

Traffic Offender’s Intervention Program

The Traffic Offender’s Intervention Program (TOIP) is typically a pre-sentence course for people who have committed traffic offences.

The Magistrate or Judge may refer you to the program or you can book in directly. If you undertake to complete it, your court proceedings are typically adjourned by the Magistrate (at your request) until after you have finished the program.  Completion involves attending and participating in the course, completing a workbook and providing personal comments.  (If you have difficulty writing this can be accommodated). Attending the course costs about $130.

I have been involved in the program by way of presentations since about 1995, however it has been operating in NSW for much longer than that. I am involved in the PCYC program run over a number of evenings at Bateau Bay PCYC; this is an excellent program with various speakers including police and people injured or affected by motor vehicle incidents.

There is also a one day program known as ‘SAVE’ run across NSW on Saturdays (which is sometimes easier to attend for those without transport and due to work commitments). The contact number to book into this course is 0408 910 025 or email: info@savetrafficoffenderprogram.com.au

If the Court allows you to attend the traffic offenders intervention program then it will take your participation ‘into account’ when sentencing you; you should receive a more lenient penalty than if you did not attend the course. While attending the program does not automatically entitle you to a non-conviction (section 10 – with reference to the Crimes (Sentencing Procedure) Act) it certainly augurs well for a better outcome in your court proceedings than if you had not attended and could help to persuade a court not to convict and disqualify you.

The program ‘opens the eyes’ of offenders.  Most participants say: ‘this program should be offered to all people gaining their driver’s licence for the first time’. In fact, it is often likened to ‘AA’ in that the participants seem to become champions of the cause despite any ‘court outcome’.  There is almost a religious reaction to it in relation to the impact it has on participants.

I am involved with the ‘legal side’ of the traffic offenders course however the part of the program with greatest impact is the police and emergency services section. I have had clients physically faint in this section of the course.  It shows the very real, possible outcome of a traffic offence, such as accidents, injuries, death.

Traffic law is complex and open to tricky interpretation and clever manipulation in order to avoid legal sanction. However, when it comes to the ‘crunch’, traffic law is highly legislated with the sole purpose of reducing deaths on the roads.

If you have the opportunity to attend the traffic offenders program, I suggest that you embrace that opportunity and share what you learn with your peers, work colleagues and family. Do not be ashamed, but be an advocate so that injuries and deaths on the road are reduced due to education and mindfulness executed in the practice of driving.

We can help

If you need help with a traffic offence, Conditsis Lawyers can provide you with advice on the best strategy for your case. Contact Conditsis Lawyers today.

Using the home safe rule to defend a drink driving charge

If you’re charged with drink driving, you may receive advice that the easiest thing to do is plead guilty. Depending on your prescribed concentration of alcohol or PCA, your driving history and what led to your arrest, an experienced lawyer may advise the smart choice is to plead guilty and try to reduce the punishment.

However, there are some cases where defending a drink driving charge is possible, using a strategy like the home safe rule. Expert traffic lawyers will understand when and how to defend a charge, and if relevant try to have you found not guilty or have the charge withdrawn by police prosecutors.

What the law says

Under the law, police can’t make you provide a breath test at your home or usual place of residence.

If your lawyer raises the home safe rule as part of your defence, it’s up to the prosecution to prove, beyond a reasonable doubt, that the breath test was not carried out after you arrived home.

What is ‘home’?

The legal term has been updated to ‘home’ from ‘usual place of abode’, but essentially it means the same thing. Defining ‘home’ is key to whether this defence can be used in your case. Past decisions don’t provide a concrete definition – judges tend to decide on a case-by-case basis, however they do provide some guide as to what is and is not considered a home for the purpose of this defence.

Based on past cases:

  • you’re home at your ordinary residential property when you’re within the property boundary
  • even if part of your property isn’t fenced off or enclosed, it may still be home if it’s clearly part of where you live and enjoy your property
  • the entire grounds of a hospital or caravan park aren’t generally accepted as a home – the boundary of your residence within those grounds is your home
  • there’s no difference between single or multi-occupancy properties
  • a car park may be considered part of your home. You may be home if you park in your driveway or carport, or car space within the car park of the block of apartments where you live.

What can happen if you use this defence

If your lawyer can prove to the court the breath test was conducted after you’d arrived home safe, there could be several outcomes:

  • the court can throw out the evidence of the breath test, the arrest and further breath analysis based on the evidence being obtained illegally
  • the evidence can be judged as invalid, and not able to be used in court
  • you can challenge any charges of refusing to provide a breath test (if you knew your rights and refused at your home).

We can help

If you need help with a traffic offence, Conditsis Lawyers can provide you with advice on the best strategy for your case. Contact Conditsis Lawyers today.

How the two hour rule can help defend a drink driving charge

If you’re charged with a drink driving offence, you need to take it seriously. Acting quickly to get advice from an expert traffic lawyer could mean the difference between receiving a fine, losing your licence or even a stint in jail.

Depending on your case, your lawyer may recommend using the two hour rule as part of your defence in court.

What is the two hour rule?

Under the law, the police can’t make you take a breath test (or have a blood sample taken) more than two hours after you last drove.

It’s widely accepted that your prescribed concentration of alcohol, or PCA, measured using a breath test can fluctuate; the results you get initially may be different to those returned in a test taken 30 minutes later. The two hour rule makes allowances for such variations in your PCA.

The reading you record within two hours of driving is accepted as being your reading when you were behind the wheel.

How the law is applied

The prosecution must prove (beyond a reasonable doubt), that the breath test or blood sample was taken within two hours of you driving. If you claim as part of your defence that it was taken more than two hours after, they must provide evidence to prove you wrong.

This defence puts the focus on the police procedures used when you were arrested and charged.

Using the two hour rule as a defence

This can be a useful defence if you’re involved in a car accident. By the time police are called to the scene of the accident and address safety, deal with any injuries and transport you to a police station for a breath test, more than two hours may have passed.

If more than two hours have passed and they take a test, they’ve obtained evidence outside the law.

Bear in mind, the prosecution may rely on other evidence to prove when you last drove – not just your version of events.

Smart use of this defence

Knowing when to use this defence can be tricky. Revealing it too early can disadvantage your defence, while delaying it too long can mean it’s too late. An experienced lawyer will know when and how to use this defence to your benefit.

Should I defend the charge?

Drink driving charges are rarely defended, usually because of the efficient detection, documentation and prosecution system, and the cost of a defence hearing. The focus is usually on minimising the consequences – not recording a conviction, reducing your fine, or minimising loss of licence time or jail term.

Pleading guilty may end up being the best strategy, but you should be aware of all your options including a potential defence before making that decision.

We can help

Look for an experienced traffic lawyer who can give you a straight answer on pleading guilty or options for defending the charge.

Our expert traffic law team understand all the strategies to you get the best outcome. Contact Conditsis Lawyers today.

What happens when you can’t agree on parenting arrangements?

The end of a relationship can be an emotionally draining time, especially when children are involved.

Amid the upset and turmoil, a number of big questions need to be answered. Who will the children live with? How much time will they spend with each parent? What will be the responsibilities of each parent? And how will you negotiate other people, such as grandparents?

In almost all cases, we find that it’s best if you and your former partner can reach an agreement on how your children will be cared for. However, if you are unable to agree, you may need to consider a dispute resolution process or a court enforced parenting order.

Dispute Resolution

Before you can apply to the court for a parenting order, in most cases you will need to take part in a Family Dispute Resolution Conference. This will give you and your former partner an opportunity to actively shape a solution for your family. In order for dispute resolution to be effective, both parties need to make a reasonable effort to communicate with each other and resolve the situation through counselling or mediation, with the help of an experienced Family Law solicitor.

Generally, dispute resolution is faster, cheaper and less stressful than going to court. It also improves the chances of finding a lasting resolution to your problem.

Parenting Orders

If you and your former partner are unable to resolve the issue through dispute resolution, you may need to consider applying to the court for parenting orders. Going to court is stressful, costly, and time consuming, however it can sometimes be the only way forward.

The Family Law Act 1975 (Cth)

If your matter does progress to court, your situation will be assessed based on Australia’s leading piece of family law legislation; The Family Law Act 1975 (Cth) (The Act). The Act covers all matters surrounding the custody of children in Australia, and it’s based on two major concepts; parental responsibility and the best interests of the child. If you do go to court, it’s worth taking some time to think about how these issues may affect your case.

Parental responsibility

Parental responsibility is a key issue in Australian family law. In Australia, both parents are legally responsible for their child/ren until they turn 18 years of age. This is the case even if you or your former partner choose to remarry or start a new family.

When the court considers parental responsibility, it takes into consideration your ability to make decisions that affect the day to day care, and ongoing welfare of your child.

Best interests of the child

The Family Law Act 1975 is designed to protect the ‘best interests of the child’. This means that a court ruling is likely to prioritise what is best for your child/ren over what is most convenient for you or your former partner. If you are about to go through this process, it’s important to understand that the Family Law Act 1975 does not focus of ‘parental rights’, but rather, ‘parental responsibility’.

At Conditsis Lawyers our sympathetic and experienced team of family law specialists understand the emotional and financial impact law proceedings can have on you and your family.

Contact Conditsis Lawyers today.

Understanding Divorce In Australia

In Australia, Divorce is obtained by an Application to the Federal Circuit Court of Australia.

The Divorce only deals with the dissolution of the marriage. It does not deal with issues of financial support, property distribution or arrangements for children.

Grounds for Divorce

The only ground for Divorce in Australia is that the parties have been separated for at least 12 months and that there is no reasonable probability of them recommencing married life.

Who can apply for a Divorce in Australia

Either you or your spouse must be:-

  • An Australian citizen by birth or granted citizenship; or
  • Currently living in Australia and intend to live here indefinitely.

If you were married overseas and satisfy the other requirements you can apply for a Divorce here in Australia. You must provide a copy of the marriage certificate. If this is not in English you must have it translated by a qualified translator.

If your marriage is less than 2 years, you and your spouse will need to obtain counselling and obtain a counselling certificate, or file an Affidavit (sworn statement) along with a Divorce Application as to why this has not happened.

Separation under the one roof

You and your spouse may live in the same household during the 12 month period of separation. You have to prove that you were in fact separated during that time. This done by way of an Affidavit (sworn statement) filed with the Divorce Application.

Do you both have to agree to a Divorce?

No. Only one of you have to decide that the marriage is over, and communicate that to the other spouse.

If there are no children of the marriage under the age of 18 years you will not be required to attend the Court Hearing.

If both you have your spouse make the Application for Divorce and there are children under the age of 18, neither of you will be required to attend Court.

However, if you apply for a Divorce as a sole Application and there is a child of the marriage under the age of 18 years you must attend the Court Hearing.

A child of a marriage is:-

  • A child of both you.
  • A child adopted by you and your spouse.
  • A child of your spouse.
  • A foster child who is under your care and living in the household of you and your spouse during the marriage.

Divorce can become complex once other factors are involved.

It is recommended that you seek legal advice before commencing these actions.

Contact Conditsis Lawyers today.

Is a Parenting Plan enough?

Separation and divorce is tough on families, especially children. Even when both parents want the best for their children, it can be difficult when emotions are running high and finances are involved.

If you can reach an agreement with the other parent about parenting arrangements, a Parenting Plan is a great start. But it’s important to understand the difference between types of agreements, and how best to protect yourself and your children.

What is a Parenting Plan?

A Parenting Plan is an informal agreement made between both parents which can cover information like:

  • where your child lives including shared custody, scheduled visits, school holidays and special occasions like birthdays
  • how you’ll work together to make any big decisions
  • who your child spends time with
  • who is in charge of day-to-day responsibilities like transport between houses, or medical appointments
  • how you’ll resolve an issue if you disagree.

The agreement needs to be in writing and signed by both parents. There’s no special form or standard format for a Parenting Plan, so it’s a good idea to get help from an experienced Family Law solicitor to make sure all the important issues are covered.

Do we have to make a Parenting Plan?

No. But the law encourages parents to make their own parenting decisions, without the need for a court case. Agreeing on a Parenting Plan means you can avoid going to Court and having others make decisions about your children.

You don’t need to wait until you disagree before you get legal help with your Parenting Plan. Your Family Law solicitor can provide support to resolve any disputes and negotiate an agreement.

If you feel any pressure or threatened to agree to a decision, get independent legal advice before signing anything that will affect you and your children.

Is a Parenting Plan enough?

A Parenting Plan doesn’t have to be registered with the Family Court and is not ‘enforceable’. But to give both parties certainty, and provide security for your children, you can register the Plan with the Family Court.

How do I register a Parenting Plan as a Parenting Order?

If both parties agree on a Parenting Plan, you can choose to register it with the Family Court as a Parenting Order (called a Consent Order when both parties agree on it). You don’t need to attend a court proceeding, but each parent should receive independent legal advice.

A Parenting Order can also be made by the Court if parents can’t agree on arrangements. This takes the decision-making out of your hands and a judge will decide on arrangements based on what is best for the child’s welfare, and ensuring they maintain a relationship with both parents. The judge will take any existing Parenting Plans into account if they need to make a Parenting Order.

Which is the best choice for me?

Even if you’re getting on well with your ex, it’s still a good idea to register your Parenting Plan with the Court. If there is any history of abuse or violence, it’s essential to register the agreement for your own peace of mind.

We’re ready to help

Our experienced family law team will support you through making a Parenting Plan and registering it with the Family Court. We’re experts in managing separation and children’s issues, and reaching agreements to meet your children’s needs and maintain family relationships.

Even if you agree on a Parenting Plan with your ex, talk to a Family Law solicitor and register the Plan with the Family Court.

Contact Conditsis Lawyers today.

Defending Drink Driving Charges

Introduction

Being convicted of a drink driving charge can potentially have devastating consequences for both you and your family. It begins with a loss of your driver’s licence. For some people that is merely an inconvenience, however for others -who rely on their licence to maintain their employment- it can be a disaster. It can lead to loss of employment and that, in turn, can have flow on consequences such as losing a house, increased stress and anxiety and relationship problems.

If you have been charged with a drink driving offence, before deciding to plead guilty it is very important to consider whether you might have a defence open to you. There is a whole range of ways in which a defence can be mounted against a drink driving charge. Below are some of the more common defences to the most common type of drink driving charge.

Disclaimer

The defences described in this article are only a sample of some of the ways in which a PCA charge can be defended. There are many others. In addition, the law is very complex. It is not possible to fully describe a defence in a few lines. Therefore, the descriptions of defences provided here are merely simplified summaries and should not be relied upon in place of competent legal advice.

Types of Drink Driving Charges

When most people talk about drink driving charges, they usually refer to them either as “drink driving” or “DUI”. In fact, there are two (2) different types of drink driving charges. These are PCA (“Prescribed Concentration of Alcohol”) charges and DUI (“Driving Under the Influence”) charges. PCA charges are by far the most common types of drink driving charges. They involve allegations that a person drove with a particular blood alcohol concentration reading. There are five (5) different sub categories of PCA Charges as follows: novice range, special range, low range, mid range and high range PCA’s. The level of alcohol concentration required for each of these ranges is different. However what they all have in common is that a conviction for any of them leads to an automatic loss of licence.The defences described below can (in appropriate circumstances) apply to any of these categories of PCA charges.

Challenging the Reading

The reading produced by the breath analysis conducted by police is not always representative of the driver’s true blood alcohol concentration at the time of driving. Sometimes, with the help of expert pharmacologists, it is possible to establish that the reading alleged by police is higher than the true reading of the driver at the time of driving and that the true reading was either below the limit or, at least, in a less serious category of a PCA offence.

Honest and Reasonable Mistake

Many people are surprised when they first learn that if a driver honestly and reasonably believed that they were under the limit at the time they drove then they are not guilty of a PCA offence even if, in reality, they were in fact over the limit. This defence is not as simple as it sounds. Raising this defence can be very tricky, particularly when it comes to convincing the court that any mistake made by the driver was a reasonable one. However, it is certainly a defence worth bearing in mind and discussing with a competent lawyer.

The Two (2) Hour Rule

The law provides that police must conduct a breath analysis within two (2) hours of driving. Otherwise, the police may not be able to rely on the result of the breath analysis in court. This means that if the police cannot prove that the breath analysis was conducted within two (2) hours of driving, that may provide a defence to a PCA charge.

Home Safe Rule

The law says that it is illegal for police to conduct a breath test at a person’s home. Consequently, if a driver was breath tested whilst on their property, it can be argued before a court that the reading produced by the breath analysis cannot be used in court against the driver.

Speak to Us

If you have been charged with a drink driving offence, speak to one of our expert criminal and traffic lawyers about your particular circumstances. Your first consolation with us is free if you choose not to proceed with us so you have nothing to lose by talking to us, and it may end up saving you a great deal.

Michal Mantaj,
Conditsis Lawyers
Accredited Specialist, Criminal Law

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

What should be in the contract for a sale of residential land?

Purchasing property is an immense financial undertaking and it is essential that the contract for the sale of land meets all of the legal requirements to ensure that the process will proceed as smoothly as possible. Therefore, basic information beginning with the price, the parties to the contract, the property and the promise should all be featured within the contract.

Beginning with the opening page of the contract, generally speaking, the following particulars should be included:

  • The selling agent – if there is one;
  • The party purchasing the property and the seller;
  • The price (obviously);
  • The amount to be deposited;
  • A full description of the property by the address;
  • The nature of any improvements;
  • Any particulars that are included within the title;
  • Any furnishings or chattels.

In addition, the contract should also include a cooling-off period and a statement must be included within its prescribed form outlining that the cooling-off period lasts for three clear business days in Victoria, or five business days in New South Wales to name two examples. The absence of such a statement may provide the buyer with an opportunity to withdraw from the contract before the sale has been finalised.

Information that should be included within the contract

There are a number of things that buyers should be mindful of in relation to contracts dealing with the sale for residential land, such as a description to any improvements to the property, and anything excluded from the sale should also be clearly outlined within the contract. In addition, the settlement time should also be provided for in the contract, and can be between 30-90 days depending on the jurisdiction.

Once all of the particulars and the necessary disclosure documents have been incorporated, the contract is ready to be dealt with.

What must the vendor disclose?

Vendors under a contract for the sale of land should attach all disclosure documents, conditions, warranties, along with disclosing, and describing any serious defects in the title of the property that the purchaser must accept.

The documents that may be attached include:

  • Zoning or planning certificates;
  • Plans showing the position of sewer lines in relation to the land;
  • A copy of the property certificate and the official plan of the land such as a deposited (subdivision) plan, or if the property is a strata title, a copy of the whole strata plan;
  • Any documents creating easements, covenants, and any restrictions shown on the property certificate;
  • Notice conforming to the legal requirements in relation to the wording and print size outlining the rights available to the buyer, and also the cooling-off notice;
  • A certificate of home warranty insurance should also be attached to the contract by the owner, developer or builder.

Failure to include all the required documents may grant the buyer the right to cancel the contract within the specified time period which may differ according to the jurisdiction.

Warranties: Essential promises

Providing that the contract states otherwise, the seller at the date of the contract warrants:

  • That the land does not contain any sewers that is the property of a recognised authority;
  • The zoning or planning certificate outlines the true status of the land, which can include planning and zoning information;
  • The land is not subject to any adverse affectation (e.g. a proposal by a public authority to acquire part, or all of the land).

Additionally, vendors are also required to include a warning that dwellings must be fitted with smoke alarms.

One of the things to bear in mind is that there is the possibility that a contract can be rescinded for breach of warranty: If the seller fails to disclose the matter; the buyer was unaware of its existence; and the buyer would not have entered into the contract if they were aware of the matter in question.

When you need a property lawyer, you’ll find that the team at Conditsis Lawyers have the experience you need to obtain the best possible outcome for your conveyancing needs.

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