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Publications

Another Successful Adverse Possession Claim

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

Changes to Stamp Duty Thresholds on New Homes in NSW

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

Consumer Guarantees under the Australian Consumer Law

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

Proving you were in a De Facto Relationship with the Deceased

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

Is cryptocurrency “property”?

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

Proving the Deceased did not make a Will

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

Transferring a Liquor Licence

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

HomeBuilder Announcement

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

Don’t get caught out

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

Paying the Price for failing to confirm bank account details

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

Informal Wills

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

Providing for your Pet in your Will

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

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

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

When a company fails to pay your debt

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

Tribunal determines what is fit for habitation

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

Witnessing documents in NSW during COVID-19

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

Material Facts a Real Estate Agent Must Disclose to Potential Buyers

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

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

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

New Mandatory Code of Conduct for Commercial Tenancies

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

National Electronic Conveyancing Law Update

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

Relief against directors’ personal exposure in COVID-19 times

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

Relief against creditor action in COVID-19 times

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

Force Majeure Clauses in Commercial Contracts

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

Parenting Orders and COVID-19

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

Changes to residential tenancy laws

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

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

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

What is a major defect?

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

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

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

Dodgy Developer Database

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

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

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

Which law applies?

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

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

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

Stop Bullying Order

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

Re Lapalme; Daley v Leeton [2019] VSC 534

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

What is a retail premises

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

Nguyen v Nguyen [2019] NSWSC 131

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

Henley v Bone [2019] NSWSC 254

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

A Timely Reminder About Statutory Demands

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

Removing an executor

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

Failed Debt Recovery Action by Council

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

Substantial Damage to Land after Exchange

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

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…

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…

Benjamin Order to Distribute an Intestate Estate

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

Is an Attorney Entitled to the Principal’s Will?

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

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

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

Finders, Keepers, Losers, Weepers

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

Franchising Code of Conduct – Part 2

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

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…

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.…

Key Changes to the Retail Leases Act 1994

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

Franchising Code of Conduct – Part 1

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

Owners Corporation barking mad for banning dogs from common property

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

Sale by Public Auction

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

New Laws affecting off the plan residential contracts

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

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…

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…

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…

Under Age Consensual Sex – Should Either Party Be Charged?

 Background – Case Study – Client John Note: Psyuedonyms for all names   Initially, John was charged in relation to two complainants – Mary and Jane. At the time of the alleged offences, Mary was about 16 years and some months and Jane about 15 years and 9…

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: The person…

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…

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

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

Why choose a lawyer over a conveyancer?

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

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…

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  Abolition of Good Behaviour Bonds (s9) AND replacement with Conditional…

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…

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…

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…

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…

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,…

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…

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,…

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…

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…

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’…

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…

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…

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…

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.…

Tips for going to Court

Going to Court can be a frightening and overwhelming experience. Below are some tips outlining Court etiquette and procedures. Ensure you are well dressed and presented as a mark of respect. Always arrive at least five minutes early (unless you are otherwise advised). Sunglasses or hats are not to…

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…

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. If you are a traffic offender 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…

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…

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…

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…

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…