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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.

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. Speak to one of our expert divorce lawyers today.

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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