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Extension of the Residential Tenancies (Amendment) COVID-19 Regulation

The Residential Tenancies (Amendment) COVID-19 Regulation 2020 (Regulation) introduced changes to residential tenancies in New South Wales on 15 April 2020. The Regulation was intended to operate for six months but has recently been extended to operate until 26 March 2021 (relevant period).

The Regulation generally prohibits a landlord, during the relevant period, from giving a tenant who has been impacted by the COVID-19 pandemic a termination notice for non-payment of rent, water usage charges or utility charges payable by the tenant or applying to the Tribunal for a termination order on the grounds of non-payment of rent, water usage charges or utility charges payable by the tenant.

However, the general prohibition is qualified. A landlord may give a termination notice or apply to the Tribunal for a termination order if the landlord can satisfy two tests.

Firstly, the landlord must have participated, in good faith, in a formal rent negotiation process with the impacted tenant and secondly, it must be fair and reasonable in the circumstances for the landlord to give the termination notice of apply for the order.

If a notice is given, the usual notice period prescribed under the Residential Tenancies Act 2010 has been amended so that a notice must specify a termination date that is not less than 90 days.

For the purposes of determining whether it is fair and reasonable in the circumstances for the landlord to give a termination notice or apply for a termination order, the Tribunal may have regard to the following (non-exhaustive) matters:

(a) any advice provided by NSW Fair Trading relating to the participation of the landlord or impacted tenant in the formal rent negotiation process, including whether the landlord or impacted tenant refused, or refused to make, a reasonable offer about rent;


(b) whether the impacted tenant has continued to make any payments towards the rent;


(c) the nature of any financial hardship experienced by the landlord or impacted tenant, including the general financial position of each party;


(d) the availability and affordability of reasonable alternative accommodation for the impacted tenant;


(e) any special vulnerability of the impacted tenant; and


(f) the public health objectives of—

(i) ensuring citizens remain in their homes, and

(ii) preventing all avoidable movement of persons.

Are you an Impacted Tenant?

We recently reported on the extension of the Residential Tenancies (Amendment) COVID-19 Regulation (NSW) to 26 March 2021 and the matters that the Tribunal may take into account in determining whether a termination notice or termination order is fair and reasonable in the circumstances.

The Tribunal recently heard an application for a termination order and an order for payment of the bond. In Serious v Barlow; Barlow v Serious [2020] [1] the tenant submitted that he was an “impacted tenant” and therefore a termination notice or order could only be made if the landlord had participated in a good faith rent negotiation process and it was fair and reasonable in the circumstances to terminate the tenancy. A rent negotiation process had not taken place between the parties.

The Tribunal was required to determine whether the tenant was an impacted tenant as defined by the newly introduced section 228B of the Residential Tenancies Act 2010 (NSW)(Act). An impacted tenant means a tenant who is a member of a household impacted by the COVID-19 pandemic. A household is impacted by the COVID-19 pandemic if –

(a)  any 1 or more rent-paying members of the household have—

(i)  lost employment or income as a result of the impact of the COVID-19 pandemic, or

(ii)  had a reduction in work hours or income as a result of the impact of the COVID-19 pandemic, or

(iii)  had to stop working, or materially reduce the member’s work hours, because of—

(A)  the member’s illness with COVID-19, or

(B)  another member of the household’s illness with COVID-19, or

(C)  the member’s carer responsibilities for a family member ill with COVID-19, and

(b)  as a result of any of the matters stated in paragraph (a), the weekly household income for the household has been reduced by at least 25% compared to the weekly household income for the household before the occurrence of any of the matters.

The tenant submitted that he was an impacted tenant because his income was zero. The Tribunal accepted that the tenant’s income was zero and therefore satisfied paragraph (a) of the test under section 228B of the Act. However, the Tribunal did not accept that the tenant’s household income had reduced by at least 25% and therefore did not satisfy paragraph (b). The tenant failed to establish any income prior to April 2020. If the income was zero before the pandemic or if the tenant fails to establish income before the pandemic, then the tenant does not meet the statutory definition of an impacted tenant.

The Tribunal decided that a termination order should be made but suspended the order for 21 days to allow the tenant time to seek alternative accommodation and seek arts and entertainment government grants, amongst other things.



Council’s failure to notify a development application

In Simpson v Wakool Shire Council (2012)[1], the Council granted consent to a development application to use an existing industrial building for a dairy processing plant.

Mr Simpson commenced judicial review proceedings in relation to the Council’s failure to notify affected landowners.

There were two Development Control Plans that applied to the land: Development Control Plan 1 (DCP 1) and Development Control Plan 8 (DCP 8). Council notified the development application only in accordance with DCP 1, giving notice to adjoining landowners only. DCP 8 required notification to be given to owners and occupiers of land that adjoins a proposed development site and also to owners and occupiers of land that may be affected by the development proposal.

Mr Simpson claimed that the Council breached then section 79A(2) of the Environmental Planning & Assessment Act 1979 (NSW)(Act) by failing to notify the development application in accordance with the provision of DCP 8. Section 79A(2) of the Act provided that:

A development application for specified development (other than designated development or advertised development) must be notified or advertised in accordance with the provisions of a development control plan if the development control plan provides for the notification or advertising of the application.

The Court held that the Council deprived itself of the opportunity to consider submissions from objectors and owners who may have been affected by the proposed development as a result of its failure to comply with its statutory requirements.

Preston J commented that compliance with the mandatory requirements for notification of development applications is in the public interest.  Public participation in the development process is crucial to the integrity of the planning system under the Act: “It is not to be viewed as a technical and tokenistic speed hump designed to slow but not divert or prevent the inexorable passage of a development application along the highway to approval.”[2]

The Court declared the development consent invalid. The Court declined to exercise its discretion not to make a declaration of invalidity (and suspend the operation of the development consent and specify terms which would have provided validity to the consent) on the basis that the breach was not merely a technical breach, there were no circumstances that justified the Council’s non-compliance and the orders sought to uphold the public interest in public participation in the development approval process.



[1] NSWLEC 163 (17 July 2012)

[2] id at para 102

That’s One Big Food Fight

McDonald’s has commenced proceedings in the Federal Court claiming that its competitor, Hungry Jack’s has infringed it’s ‘Big Mac’ trademark with a lookalike burger called the ‘Big Jack’.

The ‘Big Jack’ burger was trademarked by Hungry Jack’s earlier in the year. The Plaintiff, McDonald’s Asia Pacific, claims that the new burger promoted under the ‘Big Jack’ trademark is substantially identical with or deceptively similar to the ‘Big Mac’ trademark and that the ‘Big Mac’ trademark has acquired a substantial and valuable reputation in Australia since it registered its own trade mark back in 1973. McDonald’s seeks relief under section 44 of the Trade Marks Act 1995 including orders that the new trademark should be cancelled and or that Hungry Jack’s should be restrained from using its new trademark on several grounds including that it is likely to deceive or cause confusion. This could prove difficult for McDonald’s to demonstrate that the ‘Big Jack’ trademark is likely to deceive or confuse or that there is some connection with McDonald’s. One would not ordinarily go to a Hungry Jack’s fast food restaurant for a ‘Big Mac’ and vice versa.

McDonald’s further claims that its competitor has deliberately adopted or imitated the distinctive appearance or build of the Big Mac, its ingredients along with its well-known tagline of “two all-beef patties, special sauce, lettuce, cheese, pickles, onions – on a sesame seed bun”. While Hungry Jack’s describes its burger online as “two flame-grilled 100% Aussie beef patties, topped with melted cheese, special sauce, fresh lettuce, pickles and onions on a toasted sesame seed bun.” [emphasis added].

Hungry Jack’s is yet to file a Defence in the proceedings. However, it remains to be seen whether the addition of half a dozen words in its tagline is sufficient to distinguish it from its rival ‘Big Mac’ tagline.

If you have any questions about your business’ intellectual property, contact the team at Conditsis Lawyers today on (02) 4324 5688.

Extension to the Retail and Other Commercial Leases (COVID-19) Regulation 2020

On 23 September 2020, the NSW Treasurer announced that the Retail and Other Commercial Leases (COVID-19) Regulation (Regulation) 2020 will be extended to 31 December 2020. Previously, the Regulation was due to expire on 24 October 2020.

The extension is welcome relief for tenants. The Regulation incorporates the National Cabinet’s Code of Conduct which embodies several leasing principles. A lessee is properly characterised as an ‘‘impacted lessee’ if it is eligible for Jobkeeper. The Jobkeeper scheme was extended to 28 March 2021 if a business can satisfy certain criteria.

Impacted lessees may seek a rent reduction proportionate to their decline in turnover, and at least 50% of the rent reduction must be in the form of a rent waiver. A tenant must be able to demonstrate to the landlord that their revenue has declined by reference to comparable monthly or quarterly business activity statements.

In the absence of an extension, tenants would not have been eligible for rent relief beyond 24 October 2020 even if they continued to be an ‘impacted lessee’ beyond 24 October 2020.

There is still inconsistency in the ‘end dates’ of the various pieces of legislation, but the extension may enable some businesses to stay afloat into the next year.

As part of the extension, landlords will be able to receive up to a 25% land tax concession where they provide rent relief to commercial tenants in financial distress from October to December. If a landlord has already paid their land tax liability for the calendar year, they may be entitled to a rebate.

If a tenant and landlord are unable to agree on a temporary rent arrangement, then the parties may apply to the NSW Small Business Commission to participate in a mediation. The cost of the mediation is shared between the parties and if the parties can negotiate an agreement, then the terms of settlement are usually documented in writing and the agreement is legally enforceable.

New form of developer investment: Build-to-rent schemes

Build-to-rent housing projects in NSW are relatively uncommon. That position is anticipated to change with the NSW Government recently announcing reform to the planning and tax provisions governing build-to-rent schemes.

Build-to-rent refers to a residential development in which all apartments are owned by the developer and leased to tenants. This contrasts with the traditional model of build-to-sell where the developer sells off each individual lot to a third party who then lives in it or rents it out as their own investment.

There have been two initiatives announced to incentivise developers to explore build-to-rent projects.

The first is a 50% land tax discount on the construction of certain build-to-rent projects from 1 July 2020.

The second is a proposal to prepare a new State Environmental Planning Policy (Housing Diversity) 2020 to facilitate investment into these schemes. A draft Housing Diversity SEPP has not yet been released. However, it is anticipated that the Housing Diversity SEPP will introduce definitions and planning provisions for build-to-rent housing and co-living based on the Explanation of Intended Effect released in July 2020 by the NSW Department of Planning, Industry & Environment.

It is proposed that the definition of build-to-rent housing would refer to a building that:

  • contains at least 50 self-contained dwellings that are offered for long term private rent;
  • is held within a single ownership;
  • is operated by a single management entity; and
  • includes on-site management.

It is proposed that the definition of co-living would refer to a building held in a single ownership that:

  • provides tenants with a principal place of resident for 3 months or more;
  • includes on-site management;
  • includes a communal living room and may include other shared facilities, such as a communal bathroom, kitchen or laundry; and
  • has at least 10 private rooms, some or all of which may have private kitchen and/or bathroom facilities, with each private room accommodating not more than two adults.

It is intended that the Housing Diversity SEPP will also include a mechanism where the building may change from a build-to-rent scheme to a strata-titled apartment development.

The schemes would only be permitted in certain zones including R4- High Density Residential, R3- Medium Density Residential and B4-Mized Use.

Unfavourable GST conditions are a concern for the build-to-rent developer market. Potentially the market would need to rely on government subsidies to operate because while GST is passed down to buyers in a build-to-sell model, GST can’t be passed down in a build-to-rent model.

Tenancies could also prove problematic for developers if there are frequent changes in occupancy rates.

Petty Neighbourhood Squabble ends in Court

A Balmain neighbour has been ordered to pay $300,000 in damages plus interest and legal costs for defaming her neighbour on “A Current Affair” in a 2016 broadcast. Rothman J found the neighbour’s comments on the television broadcast were defamatory of Mr Cosco.

Interestingly, the Plaintiff Ms Cosco did not claim against the owner of Channel 9 or the current affairs program, only his neighbour, Ms Hutley, who made comments on the current affairs program that the neighbour had “put her family through hell” and that he had bullied her and her family and endangered their lives.

Ms Hutley claimed the truth as a defence to the defamation proceedings as Mr Cosco had pleaded guilty to spraying expanding foam into a vent on Ms Hutley’s property. Notwithstanding, Rothman J was scathing in his assessment of Ms Hutley finding against her in the defamation proceedings and finding that Ms Hutley was the antagonist.

A construction worker who was working on Mr Cosco’s property gave an account that Ms Hutley had said they were “dumb foreigners” who couldn’t add up and were “sh*t as humans”.

The Court found that the overwhelming evidence was that Ms Hutley and her family had engaged in a “tirade of abuse and threats” against Mr Cosco and his construction workers.

Before the broadcast, Mr Cosco had a reputation of a good competent builder, an honest and reliable boss for whom others wanted to work. He was well-respected, well-liked and popular.

But his reputation suffered dramatically after the broadcast.

The story does not end here as Ms Hutley has filed an appeal since the original decision was handed down in August. The enforcement of the judgment has been halted, pending a decision of the NSW Court of Appeal. As a condition to the stay of the judgment, Ms Hutley was required to deposit $450,000 as security for costs.

Despite the appeal, the case should prove a cautionary tale in how not to conduct relations with neighbours regardless of where the fault lies.

When an emoji gets you into trouble

In the high-profile District Court case of Burrows v Houda [2020] NSWDC 485, the Court was asked to consider the meaning of the “zipper-mouth face” emoji on twitter. The case involved a twitter thread discussing the Plaintiff’s alleged misconduct as a lawyer.

An “emoji” consists of pictographs of faces, objects and symbols that are often used in social media platforms.

The Plaintiff, Ms Zali Burrows, claimed that the imputation from a zipper-mouth face emoji posted by the defendant, Mr Adam Houda, on his twitter feed in response to another user’s tweet was defamatory.

The words and images complained of were pleaded by Ms Burrows as giving rise to the following imputations:

  • The plaintiff is facing a potential legal battle after a judge made scathing remarks about her competency as a lawyer;
  • The plaintiff so misconducted herself during a court case that the judge recommended that she be referred for possible disciplinary action; and
  • The plaintiff is a criminal who signs false affidavits.

The Court had to consider in the context of defamation proceedings whether an emoji symbol of a face expressing an emotion conveys a serious meaning or if an emoji illustration has no real meaning. Is an emoji capable of conveying an imputation of serious misconduct?

In May 2020, the defendant tweeted a link to a Sydney Morning Herald story published in July 2019 where Judge Wilson recommended Ms Burrows’ clients be banned for life by ASIC and prosecuted for signing affidavits, they knew to be false.  A third-party twitter user then posted in response to the Defendant’s link: “July 2019 story. But what happened to her since?” to which the Defendant replied with the emoji commonly referred to as “zipper-mouth face”.

The plaintiff’s counsel successfully argued that the ‘zipper-mouth face’ is worth a thousand words and implies that there has been a finding damaging the plaintiff, the defendant knows about it and is not at liberty to disclose the results and can only hint at it by posting the emoji so the reader can guess the rest. The emoji together with the Defendant re-posting an article that is one year old is a case where ‘joining the dots’ is a likely exercise for social media users on a social media site.

The defendant was required to pay the Plaintiff’s cost of the application.

Statutory demands and temporary COVID-19 measures

Ordinarily, service of a statutory demand on a debtor company is a remedy under the Corporations Act 2001 (Cth) available to a frustrated creditor when they are owed a debt that is $2,000 or more. A debtor company would normally have 21 days in which to comply with the statutory demand, enter into a payment arrangement with the creditor or apply to the Court to have the statutory demand set aside.

As part of the government’s economic response package to coronavirus, the debt “minimum amount” (the subject of a statutory demand) was increased from $2,000 to $20,000. Furthermore, the period within which the debtor company must comply with a statutory demand (or apply to the Court for an order setting aside the statutory demand) was increased from 21 days to 6 months.

The temporary economic response measures are intended to operate for six (6) months commencing 26 March 2020. While it is certainly possible that the temporary measures may be extended beyond 25 September 2020, currently the amendments will expire on 25 September 2020.

In practice, this means that if a creditor serves a statutory demand on a debtor company on 20 September 2020, it must wait until 20 March 2021 before the debtor company is deemed insolvent (assuming the debtor company does nothing in response to the demand) and the creditor can take steps to wind up the debtor company. However, if a creditor waits just 10 days later to serve the statutory demand, that is, 30 September 2020, then it only needs to wait until 21 October 2020 in which to take steps to wind up the company on grounds of insolvency.

Considering these temporary measures in response to coronavirus, creditors must carefully assess the best time to serve the debtor company. Timing is critical.

Building Bonds – Residential Strata Buildings

Developers of new residential strata buildings that are four storeys and higher are required to pay a building bond to the NSW Fair Trading equal to two percent (2%) of the building contract price. This is a requirement under the Strata Schemes Management Act 2015 (NSW)(Act).

The developer (not the builder) is responsible for obtaining the building bond and lodging it with NSW Fair Trading: section 207 of the Act. There are financial penalties payable for a failing to comply with this provision.

The building bond usually takes the form of an unconditional bank guarantee issued by an Australian bank. The bank guarantee mut contain the project number. The project number is issued by the SBBIS (Strata Building Bond and Inspection Scheme) e-portal once the developer has registered for and logged in to the SBBIS e-portal to create a “new project number” for the strata development.

The building bond must be lodged before an occupation certificate can be issued by council or a private certifier under the Environmental Planning and Assessment Act 1979 (NSW) for any part of the building for which the building work was done.

Within 12 months of the occupation certificate issuing, a building inspector must be appointed by the developer (or the owners corporation if more than one third of the lots in the strata development have been sold). The building inspector must conduct a first inspection of the property and prepare an interim report on any defects. The report must be given to the NSW Fair Trading, the owners corporation, developer and builder.

If no defects are identified in the interim report, then the developer can apply to the NSW Fair Trading for approval that that report become the final report and apply after two years to have the bond returned.

If defects are identified, then the defective work must be corrected otherwise the bond can be used to pay for the rectification work. Any monies remaining will be returned to the developer.

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 is, not by consent of the true owner. Mr Hardy filed a claim in the Supreme Court for legal title to a strip of land in Redfern measuring approximately 88cm wide and 3.81 metres long (making a total of 3.35 square meters of land). The strip of land was situated at the rear of his property and was once part of the “dunny lane”, a throw-back to a time where the “dunny man” would collect waste from the brick outhouses at the rear of the terraced properties.

The basis of Mr Hardy’s claim was that he had been in possession of the strip of land for more than 12 years.

When Mr Hardy acquired the property in 1998, the strip of land was neither used nor usable as a right of way. It had been blocked off at various points by an old paling fence on one side and an old corrugated iron fence on the other side. Initially, Mr Hardy used the strip of land as a garden tool storage area. But by January 2005 he had landscaped the area by laying a weed mat covering the whole of the area and putting granite pavers and some mondo grass over the area.

In April 2018, new owners of the property situated on the southern side of the strip of land “reclaimed” the strip of land by building a barbecue area on the stirp of land and erecting a fence. The strip of land is illustrated in yellow in the schematic map.

The Court concluded that Mr Hardy had acquired possessory title to the strip of land. An action to reclaim the land should have commenced by no later than January 2017 (being 12 years since Mr Hardy took adverse possession of the land) by the neighbours’ predecessors in title. The defendant neighbours who had attempted to reclaim the land were found to have been trespassing upon Mr Hardy’s land and were ordered to remove the structures they had erected on the land and relocate the fence they had built.

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 new homes valued at $800,000, that is a stamp duty savings of $31,335.

The stamp duty threshold on vacant residential land will also increase from $350,000 to $400,000 with the concession threshold increasing to $500,000. To be eligible for the stamp duty exemption on vacant land, purchasers must intend to construct to new home on the land.

The changes do not apply to established or existing homes.

The new thresholds will take effect from 1 August 2020 and will apply for 12 months on contracts signed and dated between 1 August 2020 and 31 July 2021.

This new initiative supplements the first home buyer scheme that is already in place. A $10,000 First Home Owner Grant (Grant) is available to those buying their first new home valued up to $600,000 or buying land and constructing a home with a total value of $750,000 or less.

To be eligible for both the Grant and stamp duty exemption on new homes, you (or at least one of the first home buyers) must satisfy the residence requirement. That is, you must move into the property within the first 12 months of buying the property (calculated from the settlement date). If you are buying land and constructing a home, you must move into the property within 12 months after construction is complete.

You must reside in the property for at least six (6) continuous months. A common error for first home benefits recipients is leasing the property under a 12 months (or longer) residential tenancy agreement granting exclusive occupation to the tenant, from the settlement date. The landlord owner will not be able to satisfy the residence requirement in these circumstances.

Contact Conditsis Lawyers on (02) 4324 5688 for all your conveyancing needs.

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 or services by the Australian Consumer Law.

The consumer guarantees include that:

  • Goods must be of an acceptable quality. This means that the goods must be fit for purpose for which goods of that kind are commonly supplied, acceptable in appearance and finish, free from defects, safe and durable. (However, if the goods are not of an acceptable quality and the reason or reasons why the goods are not of an acceptable quality were specifically drawn to the customer’s attention, the goods are taken to be of acceptable quality).
  • Goods must be fit for any disclosed purpose or for any purpose for which the supplier represents that they are reasonably fit.
  • Goods must correspond to a description if the goods are supplied by description to a consumer.
  • Goods must correspond with the sample or demonstration model in quality, state and condition. 

These consumer guarantees can’t be excluded by contract.

If a supplier fails to comply with one or more consumer guarantees, your remedy as a consumer will depend largely on whether the failure to comply is a “major failure”.

There is a major failure if the goods would not have been acquired by a reasonable consumer had they known about the failure, the goods are substantially unfit for a purpose for which goods of the same kind are common supplied or they can’t be easily fixed to make them fit for purpose or if the goods are unsafe.

If there has been a major failure, then you must notify the supplier that you reject the goods and return the goods to the supplier (depending on the size, height and attachment of the goods). You may then elect to accept a refund or have the goods replaced.

If the failure is not a major failure, then you still have other remedies available to you. Contact Conditsis Lawyers today on (02) 4324 5688 for all your consumer law questions.

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 the purposes of the Property (Relationships) Act 1984 is a relationship between two adult persons:

  • Who live together as a couple, and
  • Who are not married to one another or related by family.

You will need to prove to the Court that you were in a de facto relationship. Kearney J in Simonis v Perpetual Trustee Co Ltd (1987)[1] indicated that all of the circumstances of the relationship are to be taken into account to determine whether a de facto relationship existed, including such of the following matters as may be relevant in a particular case:

1. the duration of the relationship;

2. the nature and extent of a common residence;

3. whether or not a sexual relationship existed;

4. the degree of financial dependence or interdependence, and any arrangements for financial support between the parties;

5. the use, ownership and acquisition of property; 

6. the degree of mutual commitment to a shared life;

7. the care and support of children;
8. the performance of household duties; and

9. the reputation and public aspects of the relationship.

Furthermore, the Court will require the consent of those persons who would otherwise have been entitled to your spouse’s estate in the event you were not in a de facto relationship with the deceased. In you can’t obtain the consent of those persons, then you will need to serve notice on them of your application for administration.

The Court will also require affidavit evidence from at least two (2) persons who can corroborate that you were in a de facto relationship.

Contact Conditsis Lawyers today for all your estate questions on (02) 4324 5688.

[1] 21 NSWLR 677

new encryption laws

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 tender. 

Recently, the New Zealand High Court had to consider whether cryptocurrency amounted to “property” in an insolvency context in Ruscoe & Moore v Cryptopia Limited (in liquidation) [2020][1]. The judgement is likely to be instructive to Australian Courts.

The NZ High Court referred to the House of Lords decision National Provincial Bank Ltd v Ainsworth [1965] where Lord Wilberforce noted that property has four criteria:

  • It is definable;
  • It is identifiable by third parties;
  • It is capable in its nature of assumption by third parties; and
  • It has some degree of permanence or stability.

The Court held that cryptocurrencies satisfied the criteria set down by the House of Lords based on three interdependent features: there is a public key recording the unit of currency, ownership is by way of a private key attached to the corresponding public key and a fresh private key is generated upon a transfer of the relevant ‘coin’.

The Court dismissed two arguments that cryptocurrency was not property. The first argument was that the common law only recognised two forms of personal property: tangibles and choses in action and as cryptocurrency was neither, did not amount to personal property. The second argument was that cryptocurrency was just a form information and information is not generally recognised as property. That argument was rejected as being ‘simplistic’ and wrong. The court was satisfied that the currency was more than just digitally recorded information. However, even if the currency did constitute information, amongst other things, it was not disqualified from being property.

Contact Conditsis Lawyers today on (02) 4324 5688 for all your property and commercial law needs.

[1] NZHC 728

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 administration.

Letters of administration gives you title to the deceased’s assets and allows you to deal with the deceased’s assets.

A bankrupt or person who has assigned or disclaimed their interest in the estate may not be appointed administrator.

Even though you may know the deceased did not make a Will, you will need to prove to the Court that the deceased did not make a Will.

As a minimum, the applicant for letters of administration will need to provide evidence of searches that were made for a Will amongst the personal effects of the deceased. You will also need to provide evidence of enquiries made for a Will with the NSW Trustee & Guardian and the solicitors and banks of the deceased. This means you will need to write to these institutions and wait to receive their written response. Once you have those responses confirming they do not hold a Will for the deceased, they can be filed with your application to the Court.

If you are aware that the deceased had an accountant, it would be wise to make enquiries with the accountant to ascertain if they hold any document that contain the testamentary wishes of the deceased.

Other enquiries that you can make which our firm undertakes include enquiries with the Land & Property Information office as they hold a general register of deeds that was created in the 1920’s to record any instrument whatsoever, whether affecting or relating to land or not.

Usually, the application for letters of administration must be accompanied by an administration bond unless the Court consents to dispensing with the bond. An administration bond is a document that promises to pay the relevant amount in the event the estate is fraudulently or negligently administered, and creditors or beneficiaries miss out on their proper share of the estate.

Contact Conditsis Lawyers today on (02) 4324 5688 for all your estate enquiries.

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 under liquor (and gaming) legislation, to transfer the licence.

Assuming the transfer is with the written permission of the outgoing licensee (usually the vendor of the business) and there are no gaming machine entitlements, you will need to include the following with your transfer application:

(a) Evidence of Responsible Service of Alcohol (RSA) qualifications.

(b) A copy of your NSW National Police Certificate that is less than three (3) months old or a receipt that shows you have applied for one.

(c)  If you are a corporate licensee, you must provide a current ASIC extract showing the office holders in the company.

(d) A statement as to interested parties. For the purposes of the Liquor Act 2007 (NSW), a person is interested in the business, or the profits of the business, carried on under the licence if the person is entitled to receive:

(i) any income derived from the business, or any other financial benefit or financial advantage from the carrying on of the business, or

(ii) any rent, profit or other income in connection with the use or occupation of premises on which the business is to be carried on.[1]

ILGA will not grant a licence unless it is satisfied that, amongst other things, the applicant is a fit and proper person to carry on the business or activity to which the licence relates and practices will be in place at the licensed premises that ensure that liquor is sold, supplied or served responsibly from the premises and that all reasonable steps are taken to prevent intoxication on the premises, and that those practices will remain in place. In determining whether a person is a “fit and proper person” to carry on the business, ILGA will consider if the person is of good repute, having regard to character, honesty and integrity and is competent to carry on the business.

If the licensee is a corporate licensee, then it must appoint an individual manager approved by ILGA to supervise and manage the licensed premises. The person can’t be appointed a manager if at the time of the appointment the person already holds an appointment as the manager of other licenced premises.

Contact Conditsis Lawyers today if you require assistance with the transfer of an existing licence or an application for a new licence.  

[1] Section 41 of the Liquor Act 2007 (NSW)

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 (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home.

To access HomeBuilder, owner-occupiers must meet the following eligibility criteria:

  • You are a natural person (not a company or trust);
  • You are aged 18 years or older;
  • You are an Australian citizen;
  • You meet one of the following two income caps:

-$125,000 per annum for an individual based on your 2018-19 tax return or later; or

– $200,000 per annum for a couple based on both 2018-19 tax returns or later;

  • You enter into a building contract between 4 June 2020 and 31 December 2020 to either:
  • Build a new home as a principal place of residence, where the property value (house and land) does not exceed $750,000; or
  • Substantially renovate your existing home as a principal place of residence, where the renovation contract is between $150,000 and $750,000, and where the value of your existing property (house and land) does not exceed $1.5 million. The renovations must improve the accessibility, liveability and safety of the property. There is a specific exclusion for the construction of a tennis court, pool or shed for eligibility purposes.
  • Construction must commence within three months of the contract date.

It is important to note that this scheme is restricted to owner-occupied dwellings. If you are seeking to build a new home that will be used as an investment or renovate an existing home which is an investment property, you will not be eligible for HomeBuilder.

This scheme supplements the First Home Loan Deposit Scheme and First Home Buyers Assistance Scheme but is open to all home-owners, not just first home buyers.

If you would like to learn more about HomeBuilder or any other property matters please get in touch with our conveyancing team today.

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 1994 (NSW)(Act) as a retail use, then that lease is deemed to be a retail lease and accordingly the Act applies.

But what if the permitted use under the lease is, say, that of a commercial office and the premises is situated in a retail shopping centre? A commercial office use is not a prescribed retail use for the purposes of the Act. However, because the premises is located in a retail shopping centre, the Act will apply. This will mean that, amongst other things, the landlord will need to prepare and issue a disclosure statement to the tenant in accordance with the Act. A failure to do so may entitle the tenant to terminate the lease.

A ‘retail shopping centre’ is defined in the Act to mean a cluster of premises (not being stalls in a market) that has all of the following attributes:

  • At least 5 of the premises are used wholly or predominantly for the carrying on of one or more listed (retail) businesses;  
  • The premises are all owned by the same person, or have the same lessor or same head lessor, or comprise lots within a single strata plan;
  • The premises are located in one building or in 2 or more buildings that are either adjoining or separated only by common areas or other areas owned by the owner of the retail shops; and
  • The cluster of premises is promoted or generally regarded as constituting a shopping centre, shopping mall, shopping court or shopping arcade.

The key take-away is that even if your tenant does not carry on a retail business, that is irrelevant, if the premises is situated in a retail shopping centre. Landlords need to be mindful of this.

Contact the team at Conditsis Lawyers to demystify all your leasing needs on (02) 4324 5688 or by email at enquiry@www.conditsis.com

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 and the deposit was 10% of the purchase price. An initial 0.25% deposit was paid on exchange on 1 February 2020 and the balance of the deposit of $54,600 was payable on or by 12 February 2020. The form of contract used provided for payment of the deposit by cash up to $2,000 or cheque.

The Agent directed the buyer to pay the initial deposit to the agent’s trust account by EFT. The Agent provided the buyer with the account details and the buyer paid the initial deposit by EFT. On 7 February 2020, the Agent sent an email to the buyer reminding them to pay the balance of the deposit and again setting out their trust account details. Two days later, the buyer received what appeared to be a further email from the Agent attaching an invoice for the remainder of the deposit and requested payment of the deposit to a fraudulent bank account. The buyer paid the balance of the deposit into this fraudulent bank account.

The vendor sought to terminate the contract on the basis that the deposit had not been paid by the time specified in the contract. The buyer commenced proceedings seeking to enforce the contract on the basis that the Agent had directed the buyer to pay the deposit into its trust account by EFT and the agent was acting at the direction of the vendor and that the purchaser had therefore satisfied its obligation to pay the deposit.

The Court concluded that the fact the contract authorises the agent to receive the deposit in accordance with the contract and to direct the purchaser to pay the deposit to the agent, it does not authorise the agent to bind the vendor in dealings with respect to the deposit.

The contract did not authorise the payment of the deposit by EFT. The agency agreement did not authorise the real estate agent to act on behalf of the vendor when directing or accepting payment of the deposit as stakeholder under the contract. The Court held the buyer was in breach for not paying the deposit in accordance with the contract. The vendor was entitled to terminate the contract.

The Court did not consider whether the Agent was liable to the buyer as stakeholder.

It is an unfortunate outcome for the buyer. However, the case emphasises that extreme care must be taken when relying on emails, without more, to transfer large sums of money. The prudent course of action is to call the sender of the email to verify account details over the phone.

[1] NSWSC 437

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 the testator in the presence of two or more witnesses present at the same time; and
  • At least two of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

Under section 8 of the Act, the Court may dispense with the formal execution requirements for a valid Will if the following conditions are satisfied: 

  • There is a document;
  • The document states the testamentary intentions of the deceased; and
  • The deceased must have intended the document to be his or her will or to take effect as his or her will.

The issue of whether a document amounted to an informal Will for the purposes of section 8 of the Act was discussed in Rodny v Weisbord [2020][1]. Mrs Rodny made a valid will in December 1997 (1997 will). Her son, Laurence, obtained a grant of probate of that will. The deceased’s daughter (and grandchildren) sought a declaration that a later document made in 2008 by Mrs Rodny was the last will and testament of the deceased. This later document had been prepared by a solicitor based on the deceased’s instructions given at the solicitor’s office.

It was accepted that the 2008 document did embody the testamentary intentions of the deceased. However, the issue was whether Mrs Rodny intended the draft will prepared by the solicitor to take effect as her will.  

The primary judge upheld the daughter’s claim stating that “there is a substantial likelihood that Mrs Rodny intended the final draft of the 2008 will to operate as her will, as that document incorporated all of her instructions”. It was accepted that Mrs Rodny had told family members she had made a new will after seeing the solicitor in 2008. It was also accepted that she had reason to make a new will because some of the gifts under the 1997 will would fail (as that will disposed of land that had been sold Mrs Rodny following the making of the 1997 will).

Mrs Rodny’s son appealed the decision. The Court of Appeal considered the judgment of Powell J in a 1991 Supreme Court case[2] where the judge considered that a document that has not been “seen, or read, or written, or in some way authenticated, or adopted, by the relevant deceased, or where the subject document, even if seen, or read, by the relevant deceased was in truth, no more than “instructions” or a “note of instructions”…..I find it very difficult to find myself satisfied that it was intended by the relevant deceased that the subject document was intended to be his will.”

The Court of Appeal confirmed that the test is whether the testator intended the document to “operate” and “without more”, thereby constituting his or her will.

The evidence found that the solicitor had drafted a letter addressed to Mrs Rodny in 2008 enclosing the “draft Will” asking Mrs Rodny to peruse it and to advise whether the contents of the will met with her approval. However, the evidence also suggested that the letter and enclosure were never sent by the solicitor to Mrs Rodny nor did she ever see the final draft of the will.

The Court of Appeal upheld the appeal by the son and ordered probate of the 1997 Will to Mrs Rodny’s son.

[1] NSWCA 22 (27 February 2020)

[2] Re application of Brown; Estate of Springfield (1991) 23 NSWLR 535 at 540

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 provision for your much-loved pets in your Will, then your Pets will vest in the residual beneficiary under your Will.

Depending on that person’s circumstances, the “gift” of your pets may be considered an imposition to that beneficiary.

Some practical options for you to consider when it comes to leaving your pet to someone, may include:

• Gift your pet to a reliable friend or charity;
• Gift your pet and a sum of money to a reliable friend or charity; or
• Establish a trust in your will where your trustee holds funds to be used for the benefit of a person who has the care of your pet for the duration of the pet’s lifetime.

While you can gift a sum of money to a beneficiary for the purpose of providing care and accommodation to your pet, once the estate is distributed, in practical terms, if will be very difficult to monitor whether that beneficiary is doing the right thing by your pet and enforce the terms of the Will. What the Will does is essentially set out your wishes only as to how your pet is to be cared for. It is not necessarily binding.

To determine a suitable gift of money, you will need to consider the breed of the animal, the estimated life expectancy and medical needs and expenses when it gets older.

You can also create a care plan for your pet and share it with your loved ones. The care plan could include any dietary requirements, your pet’s favourite toys and their temperament, likes and dislikes.

Contact the team at Conditsis Lawyers today on (02) 4324 5688 for all your estate planning needs.

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.

The case of Application by the Owners – Strata Plan No 61299 involved the Seasons Harbour Plaza which is a 159 mixed use strata lot development situated at 252 Sussex Street, Sydney.

The owners corporation had sought approval for the collective sale of the strata scheme from the lot owners. It had prepared a strata renewal plan and submitted it to all lot owners at a general meeting. The strata renewal plan contained all the matters set out in section 170 of the Strata Schemes Development Act 2015 (NSW)(Act).

While more than 75% of the lot owners (by unit entitlement) had consented to the collective sale to a developer and the strata renewal plan, unanimous consent of the lot owners is required or an order from the Court provided more than 75% of the lot owners have consented, to approve the sale.

In approving the strata renewal plan and therefore the sale of the strata scheme, the Court had regard for the matters set out in section 182 of the Act. Particular emphasis was placed on the owners corporation having obtained the “required level of support” from the lot owners in the scheme, all notices required to be served on the lot owners under the Act had been served, the proposed distribution of the proceeds of sale apportioned to each lot was not less than the compensation value of the lot and the terms of settlement under the plan were just and equitable in all the circumstances. The compensation value is the amount that a lot owner would be entitled to under the Land Acquisition (Just Terms Compensation) Act 1991.

The Court exercised its statutory powers under section 182(2) of the Act to vary the strata renewal plan. It did so primarily because the retail lots would have been disadvantaged by the strata renewal plan as they had a smaller unit entitlement but arguably a greater commercial value. The Court reallocated the unit entitlement for all lots to ensure that the proceeds of sale recovered by each lot owner was not less than the compensation value of each lot.

The case is important as it emphasises the importance of owners corporations complying with the process and procedure required under the Act before it seeks an order from the Court, and in particular ensuring that each lot owner, even though a large number of investor owners were based overseas, were notified of the plan.

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, the subject of the demand, enter into a payment arrangement or file and serve an application to the Court to have the demand set aside under section 459G of the Act.

But what if the debtor company does nothing after being served with the statutory demand?

What can the creditor then do to recover its debt?

The next step is to make an application to wind up the company on the ground of insolvency and to appoint a liquidator to act on seizing and selling the assets of the company to recover your debt.

An application may be made in the Federal Court or Supreme Court within three (3) months of the company’s non-compliance with the statutory demand. If you fail to file your application within this strict timeframe, then you will need to file and serve a statutory demand all over again. You will need to put on evidence that the statutory demand was in fact served on the company’s registered office. You will also need to put on evidence that at the time of filing the winding up application, the debt remained due and payable, amongst other things. Once the application is filed, you will need to serve it on the company’s registered address and notify the Australian Securities & Investments Commission (ASIC) no later than 10:30am on the next business day.

The Court will set down a hearing date for the application. The written consent of the liquidator should also be filed prior to the hearing.

For your debt recovery needs, please contact the team at Conditsis Lawyers on (02) 4324 5688 or by email at enquiry@www.conditsis.com.

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 habitation for the purposes of section 52 of the Act.   

In the absence of a definition in the Act, over the years, the Tribunal has applied the “reasonable comfort” test to determine what constitutes fit for habitation.

In Bhandari v Laming [2015] NSWCATAP 224, the tenant complained of a strong smell of cigarette smoke permeating into the upstairs Potts Point unit that the tenant occupied. The smoke was coming from the downstairs unit. There was a mechanical problem with the internal ventilation passages in the building that allowed the smoke to enter the upstairs unit. The Tribunal awarded damages to the tenant comprising of a rent reduction and removalist costs. Interestingly, the appeal panel said that the landlord’s obligation to provide a premises fit for habitation is not conditional upon the landlord being at fault or demonstrating that they took reasonable steps to have the owners corporation rectify the problem. The landlord can’t escape liability by showing that it is a strata issue. The landlord must provide a premises that is fit for habitation.

In Raats v Zein [2016] NSWCATCD 62, the tenants complained of a mould infestation in a Waitara townhouse. The cause was a plumbing leak. The Tribunal was satisfied that the mould infestation constituted an unreasonable interference with the comfort of the tenants judged by contemporary standards and ordered compensation to the tenants for removalist costs.

In Marsters v Graham [2016] NSWCATCD 73, the tenant claimed their belongings were damaged by water from a storm caused by a structurally unsound roof. While the landlord released the tenant from the lease and refunded their rent and bond, the Tribunal awarded the tenants compensation under section 187 of the Act for their damaged furniture and other belongings in an amount of $7,822.21. The Tribunal applied the concept of reasonableness. The Tribunal found that it was reasonable to expect the structure of the roof of the premises was sufficiently secure and in a state of repair to ensure that the copious amounts of water that entered the premises did not occur.

Contact the team at Conditsis Lawyers on (02) 4324 5688 to demystify your tenancy rights and obligations.

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

Cowap v Cowap [2019] NSWSC 1104 (22 August 2019)

In December 2015, Mr Geoffrey Cowap died aged 85. By his Will signed three years earlier, he left the whole of his estate to his wife of 57 years, Mrs Barbara Cowap. The principal asset of the deceased’s estate was the matrimonial home, an acreage in Wallaroo outside of Canberra, estimated to be worth $1.35M. The married couple had resided in the home for 32 years.  Mrs Cowap inherited the home by way of survivorship upon the death of Mr Cowap. There was also a share portfolio valued at approximately $409,000 and a $50,000 bank account.

The oldest child of the couple, Nicholas John Cowap (Nick), 64, made an application for family provision out of the father’s notional estate (being the matrimonial home the deceased owned jointly with Mrs Cowap). Nick suffered two heart attacks after his father’s passing that left him with significant disabilities. He could not look after himself and, amongst other things, needed a wheelchair because it was difficult for him to walk any distance unaided. Nick had no assets. His only income was a disability pension.

The Court took into consideration two competing matters: the moral obligation of the deceased to make adequate provision from his estate for his spouse, particularly after a long and happy marriage, and the moral obligation of the deceased to make some provision for his adult child who had fallen on hard times (especially when they are not of his own making).

The Court also considered the clear intention of the deceased in the Will that Mrs Cowap was to enjoy the rest of her years living in the matrimonial home and Mrs Cowap’s own strong desire to remain in the property.

Notwithstanding, the Court designated the home part of the deceased’s notional estate and made orders that the property was to be sold. The Court awarded Nick the sum of $600,000.  

Traditionally, the Court has been reluctant to oust an occupant from their property for the benefit of a family provision claimant. However, the Court was comforted in the outcome (sale of the property) by the fact that on the evidence, Mrs Cowap would be able to afford a smaller property in the same area with the same country feel for about $700,00.

The case demonstrated that there are no inflexible rules when it comes to family provision. Each application for provision must be dealt with by the Court on its merits on the evidence before the Court based on the circumstances at hand.  

Mrs Cowap ended up appealing the decision by Kunc J. The Court Appeal dismissed the appeal in February this year.

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 September 2020, (unless otherwise changed by Parliament), being 6 months after the emergency measures were introduced.  

If a document is required under any law to be witnessed, the signature can be witnessed by audio visual link. A host of technology platforms could be used, including but not limited to Zoom, FaceTime, WhatsApp and Skype.

For the purposes of the Regulation, a “document” includes:

(a) A will;

(b) A power of attorney including an enduring power of attorney;

(c) A deed or agreement;

(d) An enduring guardianship appointment

(e) An affidavit, including an annexure or exhibit to the affidavit; and

(f) A statutory declaration.

The witness must observe the person signing the document in real time.

The witness must be satisfied that what they are signing is the same document or a copy of the same document that is being signed by the signatory.

The witness must then endorse the document with a statement specifying the method used to witness the signature and that the document was witnessed in accordance with this Regulation.

The signature block could include a statement to the effect that the document was signed in counterpart and witnessed by way of audio visual link (Face Time) in accordance with the provisions of Schedule 1 to the Electronic Transactions Regulation 2017.

In practice, a witness may confirm the signature was witnessed by signing a counterpart of the document as soon as practicable after witnessing the signing of the document or if the signatory scans and sends a copy of the signed document electronically, the witness countersigns that document as soon as practicable after witnessing the signing of the document.

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 the agent knows or ought reasonably to know. An offence under this section can attract a penalty of up to $22,000.  This means that an agent could be in breach of the law even though they didn’t know about it.

Clause 54 of the Regulation prescribes what is a material fact:

(a) within the last 5 years the property has been subject to flooding from a natural weather event or bush fire;

(b) the property is subject to significant health or safety risks;

(c) the property is listed on the register of residential premises that contain loose-fill asbestos insulation that is required to be maintained under the provision of the Home Building Act 1989 (NSW);

(d) within the last 5 years the property was the scene of a crime of murder or manslaughter;

(e) within the last 2 years the property has been used for the purposes of the manufacture, cultivation or supply of any prohibited drug or plant;

(f) the property is, or is part of, a building that contains external combustible cladding to which there is a notice of intention to issue a fire safety order or building product rectification order (or such an order has issued); and

(g) the property, or is part of, a building where a development application or complying development certificate application has been lodged under the Environmental Planning and Assessment Act 1979 for rectification of the building regarding external combustible cladding.

The advice to agents is that they should, at the very least, make reasonable enquiries with their vendor client to determine whether any of the material facts listed above applies to the property.

The enquiries that an agent undertakes independently of the vendor may extend to carrying out a search of the loose-fill asbestos insulation register which is a register administered by the NSW Fair Trading and is free to access. Agents may also consider making enquiries with the local Council to determine if the land has been affected by flood or bush fire in the last 5 years.

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 rights and obligations of each co-owner), and if the parties can’t come to some commercial arrangement or compromise, then a party can make an application to the Court under section 66G of the Conveyancing Act 1919 (NSW).

The Court may appoint (usually) two trustees of the property (but not exceeding four trustees) and vest the property in those trustees to be held by them on statutory trust for sale.

The power of the Court to make such an order is discretionary. Such an order is almost “as of right” unless it would be inequitable to allow the application: Callahan v O’Neill [2002][1]. In Myers v Clark [2018][2] the Court considered the observations of Beazley JA in Hogan v Baseden [1977][3] that while the section is a discretionary provision and does not give rise to an absolute entitlement to an order, the circumstances where relief has been refused have been constrained. In that same case, Mason P added that itwould not be a proper exercise of the power to decline relief under s 66G of the Conveyancing Act to refuse the application on grounds of hardship or general unfairness. In the unhappy event that the parties are unable to settle their differences then the making of an order appointing trustees for sale seems inevitable unless there can be established a legally binding agreement not to put a party out of occupation of their home, or other equitable circumstances.

An example of the limited discretion to refuse to make an order can be exercised is where such an order would be inconsistent with a proprietary right or a contractual or other obligation. In Ngatoa v Ford (1990)[4], relief was refused under section 66G because the parties had a contract between them which limited their ability to dispose of their interests in the property. In another example, in Capolongua v Da Silva [2016][5], the parties were bound by a deed that included a provision that none of the parties “shall under any circumstances seek to exercise any right of sale conferred by section 66G of the Conveyancing Act unless the property had been marketed conscientiously for a period of one year”. The judge accepted that it was not appropriate to make such orders where the requirement had not yet been fulfilled.

Contact the team at Conditsis Lawyers on (02) 4324 5688 to demystify your property law questions.  

[1] NSWSC 877

[2] NSWSC 1029

[3] NSWCA 150

[4] 19 NSWLR 72

[5] NSWSC 1212

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 scheme.

The Code applies to office, industrial and retail tenancies.

It is intended that landlords and tenants will agree to tailored arrangements taking into account the individual circumstances of the tenant.

Leasing Principles

  1. Landlords must not terminate leases due to non-payment of rent during the COVID-19 pandemic period (or reasonable subsequent recovery period).
  2. Tenants must remain committed to the terms of their lease, subject to any amendments to their rental agreement negotiated under this Code.
  3. Landlords must offer tenants proportionate reductions in rent payable in the form of waivers and deferrals of up to 100% of the amount ordinarily payable, on a case-by-case basis, based on the reduction in the tenant’s trade.
  4. Rental waivers (an abatement of rent) must constitute no less than 50% of the total reduction in rent. A greater proportion of a rental waiver should apply where failure to do so would compromise the tenant’s capacity to fulfil their ongoing obligations under the lease. (Regard must also be had to the Landlord’s financial ability to provide such additional waivers).
  5. Payment of rental deferrals by the tenant must be amortised over the balance of the lease term and for a period of no less than 24 months, whichever is the greater, unless otherwise agreed by the parties.
  6. Any reduction in statutory charges (e.g. land tax, council rates) or insurance will be passed on to the tenant in a proportionate manner.
  7. A landlord should seek to share any benefit it receives due to deferral of loan payments with the tenant in a proportionate manner.
  8. Landlords should seek to waive outgoings payable by a tenant, during the period the tenant is not able to trade. (Landlords reserve the right to reduce services as required in such circumstances).
  9. If negotiated arrangements under this Code necessitate repayment, this should occur over an extended period in order to avoid placing an undue financial burden on the tenant.
  10. No fees, interest or other charges should be applied with respect to rent waived or deferred.
  11. Landlords must not draw on a tenant’s security for the non-payment of rent during the period of the COVID-19 pandemic (and a reasonable subsequent recovery period).
  12. The tenant should be provided with an opportunity to extend its lease for an equivalent period of the rent waiver and/or deferral period.
  13. There is a freeze on rent increases for the duration of the COVID-19 pandemic and a reasonable subsequent recovery period, notwithstanding any arrangements between the parties.
  14. Landlords are prohibited from enforcing failure to trade clauses in leases due to the COVID-19 pandemic.


Where the parties can’t reach agreement on leasing arrangements (as a direct result of the COVID-19 pandemic), the matter should be referred to the NSW Small Business Commissioner for binding mediation.

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 Note #1 – Client Authorisation was published to provide guidance around the Client Authorisation. Sections 5 and 6 of the Guidance Note is particularly relevant. There is no requirement in the Electronic Conveyancing National Law or Participation Rules that the Client Authorisation form needs to be wet-signed. However, reasonable steps need to be taken by the Subscriber (lawyer or conveyancer of their agent) to ensure that the Client Authorisation is in fact signed by the client or their agent. This may be done by reference to the signature(s) on the verification of identity supporting documentation.

Guidance Note #2 – Verification of Identity was published to provide guidance around the verification of identity process. The purpose of carrying out verification of identity is to reduce the risk of identity fraud and the registration of fraudulent land transactions. While the Verification of Identity Standard required a face-to-face in person interview, compliance with that Standard is not mandatory. A Subscriber must verify the identity of their client in a way that constitutes reasonable steps. It is up to the Subscriber to determine what constitutes reasonable steps specific to the circumstances. What amounts to reasonable steps may be influenced by the length of time the Subscriber has known the client and whether they (or their firm) has represented that person in previous transactions. Ultimately, this would be determined by a Court on an objective basis – that is, what steps would an ordinarily prudent Subscriber have taken in the circumstances in the ordinary course of his or her business.

 In the current COVID-19 environment, Subscribers may consider using video technology as part of the verification of identify process. 

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 the amendment came into effect.

The amendment came into effect on 24 March 2020 pursuant to the Coronavirus Economic Response Package Omnibus Act 2020.

Ordinarily, if a person fails to prevent a company from incurring a debt when the person is aware at the time that there are grounds for suspecting the company is insolvent (that is, the company can’t pay its debts as and when they fall due) or will become insolvent (or a reasonable person in a like position in the company, in the company’s circumstances, would have been aware that the company is insolvent or will become insolvent), then that person is in breach of section 588G of the Act. Financial penalties would apply to that individual.

However, under the temporary measures, this provision is suspended if the debt is incurred in the ordinary course of business and during the six (6) months commencing from the date the amendment takes effect.

This effectively means the insolvent trading rules are relaxed for the next six (6) months.  Directors of companies do not have to prematurely place their companies into administration or liquidation to protect themselves personally from a claim of insolvent trading later on by a liquidator. They have some time up their sleeve to pursue other possibilities of how they can get their business back on track.

Please bear in mind that this is not a time to incur debt recklessly. The rationale behind the changes is to allow companies the time and opportunity to restructure their financing arrangements with the banks or potentially seek more favourable supply terms with its creditors. It may even mean that company directors seek advice on how to turnaround their business to achieve a better outcome that what would have been achieved had they gone directly to administration or liquidation.

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 debt, enter into a payment arrangement with the creditor or file and serve an application to the Court to have the demand set aside under section 459G of the Corporations Act 2001 (Act).

Part of the government’s economic response to COVID-19 is to create a safety net for distressed businesses. These are temporary measures only. Instead of the 21 days time frame a company has to pay or respond to the statutory demand, that period has now been extended to six (6) months. Once that period expires, the creditor can initiate winding up proceedings in either the Supreme Court of Federal Court.

Furthermore, a statutory demand could usually only be issued in relation to debts of $2,000 or more. That minimum monetary threshold has now been increased to $20,000.

These two changes give businesses some breathing space to defer some existing debt in these uncertain times.

Similarly, for individuals facing bankruptcy, the minimum debt threshold for creditors to issue a bankruptcy notice has increased from $5,000 to $20,000 as a temporary measure to give individuals some breathing space.

Furthermore, the time in which an individual can pay or respond to a creditor’s bankruptcy notice has now increased from 21 days to six (6) months.

These changes came into effect on 24 March 2020 as part of the Coronavirus Economic Response Package Omnibus Act 2020. These measures will be in place for six months, ending 25 September 2020. It is important to remember that these measures apply tothose statutory demands that were served on or after the date the changes came into effect.

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 so) that party does so at its own risk. A court will specifically compel that party to perform its obligations or will order substituted performance by way of an award of damages in favour of the promise.

Sometimes it can become impossible for one or more parties to the contract to perform their obligations under the contract, whether that be physically, economically or legally impossible.

The concept of a “force majeure” event is not a common law concept. It derives from French civil law, meaning “superior force” or “overwhelming force”. However, the concept is often incorporated into commercial contracts in common law countries. The clause governs the relief that is available when a party is not able to perform the obligations under the contract.

In Lebeaupin v Crispin [1920][1] the Court approved the definition of force majeure:

“Force majeure … [means] all circumstances independent of the will of man, and which it is not in his power to control, and such force majeure is sufficient to justify the non-execution of a contract. Thus war, inundations and epidemics are cases of force majeure.… [and also] a strike of workmen.”

For an effective “force majeure” clause, the clause must carefully define the events that will trigger the clause. Force majeure clauses are not implied. Your contract may contain references to defined events, natural disasters, government intervention, epidemics and in light of the COVID-19 crisis, pandemics. You will need to examine the relevant contract provisions to ensure you comply with the notice provisions to trigger the clause.

In our next article, we will examine the common law doctrine of frustration; which relieves parties from performing their contractual obligations.

Contact Conditsis Lawyers today for all your contract needs (02) 4324 5688

[1] 2 K.B. 714 at 719

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.

We are in unchartered territory and the concern of parents is understandable. Of course, in many cases (if not most), these concerns are common to husband and wife and both are exercising caution and practising responsible (and necessary) social distancing.

Some parents have concerns about how they can comply with existing Parenting Orders, or, how a matter currently before the Family Courts will now progress.

On 26 March 2020, his Honour, Justice Alstergren released the following Media Statement, confirming that the Family Court remains open and providing some guidance as to the obligations of parents in these unprecedented times.  

“The Family Court of Australia and the Federal Circuit Court of Australia (the Courts) are acutely aware that the current pandemic is having an enormous impact on families and the Australian community.

Parents are naturally deeply concerned about the safety of their children and how the COVID-19 virus will affect their lives.  Part of that concern in family law proceedings can extend to a parent’s or carer’s ability to comply with parenting orders and what should be properly expected of them by the Courts in these unprecedented times.

The purpose of this statement is to clarify that the Courts remain open to assist parties, and to provide parents with some general guidance. However, it is understood that every family’s circumstances are different.

  1. It is imperative that parents and carers act in the best interests of their children. This includes ensuring their children’s safety and wellbeing. Whilst the Courts make orders that are determined to be in the best interests of a child, caring for and determining the practical day-to-day best interests of a child is primarily the responsibility of parents and carers.
  2. Consistent with their responsibilities to act in the children’s best interests, parents and carers are expected to comply with Court orders in relation to parenting arrangements. This includes facilitating time being spent by the children with each parent or carer pursuant to parenting orders.
  3. In the highly unusual circumstances now faced by Australian parents and carers, there may be situations that arise that make strict compliance with current court orders very difficult, if not, impossible. This may be caused, for instance, where orders stipulate that contact with a parent occurs at a designated contact centre, which may not currently be operating. Or, the “pick up” arrangements of a child may nominate a particular school, and that school is now closed. Many state borders are also closed. In addition, there may be genuine safety issues that have arisen whereby one parent, or someone in close contact with that parent, has been exposed to COVID-19, and this may restrict the safe movement of a child from one house to another.
  4. As a first step, and only if it is safe to do so, parties should communicate with each other about their ability to comply with current orders and they should attempt to find a practical solution to these difficulties. These should be considered sensibly and reasonably. Each parent should always consider the safety and best interests of the child, but also appreciate the concerns of the other parent when attempting to reach new or revised arrangements. This includes understanding that family members are important to children and the risk of infection to vulnerable members of the child’s family and household should also be considered.
  5. If an agreement can be reached about new parenting arrangements, even if they are to be adjusted for a short period of time, this agreement should ideally be in writing, even if by way of email, text message or WhatsApp between each other. This will be particularly important if there are later family law hearings and will assist all concerned, including the Court, to understand what agreement may have been reached.
  6. If you feel that you need further guidance, the Family Relationships Advice Line can provide information, advice and telephone-based Family Dispute Resolution services to assist parents and carers to discuss any issues that arise and help them come to an agreement. The Family Relationships Advice Line can be contacted on 1800 050 321 or visit the website.
  7. Parents and carers can also mediate their differences through lawyers. Electronic mediation services are available from the Courts and through local Bar Associations and Law Societies during these restricted times. Visit their websites for more information.
  8. If an agreement has been reached and consent orders have been developed to outline new or varied parenting orders, consent order applications can be filed electronically with the Court. This process is quick and usually conducted without a hearing.
  9. If the parties are unable to agree to vary the arrangement, or if it is unsafe to do so, and one or both parents continue to have real concerns, the parties are at liberty to approach the Court electronically and seek a variation of the orders.
  10. Where there is no agreement parents should keep the children safe until the dispute can be resolved. Also during this period of dispute, parents should ensure that each parent or carer continues to have some contact with the children consistent with the parenting arrangements such as by videoconferencing, social media, or if that is not possible, by telephone.
  11. At all times, parents or carers must act reasonably. To act reasonably, or to have a reasonable excuse for not complying with Court orders, is a matter that is considered by the Court (pursuant to s70NAE of the Family Law Act 1975 (Cth)).
  12. It is imperative that, even if the orders cannot be strictly adhered to and are varied by the parties, the parties ensure that the purpose or spirit of the orders are respected when considering altering arrangements, and that they act in the best interest of the children.
  13. The Courts appreciate that agreement by mutual consent may not be reached, particularly if one party has concern for their physical safety. Therefore, the Courts advise that if you or your child is in immediate danger, please contact your local police and seek medical advice if required.

In the meantime, the community should be assured that the Courts will continue to perform their duties during this time of crisis. Whilst changes to the Courts’ operations have been implemented in accordance with the necessary restrictions placed on our community by the Commonwealth Government, the Courts remain open to assist Australian families in these challenging times.

Judges, Registrars and staff are committed to providing access to justice when called upon to do so. This includes conducting hearings both via videoconferencing through the use of Microsoft Teams or other platforms, or by telephone. The Courts are also conducting mediations electronically and through other safe means.

There will be, in exceptional circumstances, a small number of face-to-face in-court hearings. For the safety of all concerned, these will only be granted when absolutely necessary. Those hearings will be conducted in strict accordance with the Face-to-Face in-Court Protocol issued by the Courts. As in any other interaction, social distancing requirements will be strictly be followed. Similarly, face to face interviews by family consultants will only take place in exceptional circumstances.

The Registries are still open for telephone appointments, electronic filing and the listing of urgent cases. Family Consultants will also continue their vital work through these electronic mediums as best they can.”

If you would like to discuss your obligations as a parent, or how your Family Law matter might proceed in these very difficult times, please contact our Family Law team at Conditsis Lawyers to book a telephone or Video Conference with one of our experienced Family Law specialists.

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 not provide much guidance as to what “fit for habitation” means. Since the Act’s inception, there have been several cases decided by the New South Wales Civil & Administrative Tribunal (Tribunal) as to what amounts to “fit habitation”.

The new changes will be more prescriptive as to what constitutes “fit for habitation”.

Section 52 of the Act will be amended to specify the minimum requirements that must be satisfied for residential premises to be fit to live in. A residential premises must:

  • Be structurally sound*;
  • Have adequate natural light or artificial lighting in each room of the premises other than a room that is intended to be used for storage or a garage;
  • Have adequate ventilation;
  • Be supplied with electricity or gas and have an adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to the premises and use of appliances in the premises;
  • Have adequate plumbing and drainage;
  • Be connected to a water supply service or infrastructure that supplies water (water tank for instance) that can supply hot and cold water for drinking and ablution and cleaning; and
  • Contain bathroom facilities, including toilet and washing facilities, that allow privacy for the user.

*A premises is structurally sound only if the floors, ceilings, walls, supporting structures (including foundations), doors, windows, roofs, balustrades and railings:

(a) are in a reasonable state of repair, and

(b) with respect to the floors, ceilings, walls and supporting structures—are not subject to significant dampness, and

(c) with respect to the roof, ceilings and windows—do not allow water penetration into the premises, and

(d) are not liable to collapse because they are rotted or otherwise defective.

In our next article, we will explore the Tribunal’s decisions about whether premises are fit for habitation and the tests they apply to determine whether a premise is fit or unfit for habitation.

Contact the team at Conditsis Lawyers on (02) 4324 5688 to demystify your tenancy rights and obligations.

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 Regulations’) and the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (‘SEPP’) at the same time. The changes to the SEPP now bring the demolition or partial demolition of a building, the structure of which is significantly damaged by a bush fire, within exempt and complying development legislation. Other changes to the SEPP allow repair works to be carried out to fences, gates or other barriers and necessary repairs to be carried out to make a building or structure secure and waterproof (other than repairs to a structural element of the building) without the need for development approval.

The objective of the Caravan Regulations is to assist in the provision of emergency accommodation for persons affected by bush fires. The changes:

  1. Permit the owner, manager, operator or caretaker of a caravan park or camping ground to authorise a person to stay in the caravan park or camping ground for an extended period (of up to 2 years) if satisfied that the person displaced because of a bush fire: section 74(3).
  • Permit the installation of a moveable dwelling on land without the need for approval for the purpose of accommodating a person displaced because of a bushfire if it is maintained in a healthy and safe condition and is removed within two (2) years: section 77(d). 
  • Do not require prior council approval to install a moveable dwelling if the owner, manager, operator or caretaker of a caravan park or camping ground is satisfied that the installation is necessary to accommodate a person who has been displaced because of a bushfire: section 74(4A).
  • Empower the general manager of a council to modify conditions to which a ‘primitive camping ground’ is subject if the general manager is reasonably satisfied that it is necessary for the purpose of accommodating persons that have been displaced by fire: section 132(6). A primitive camping ground usually means a camping ground within running water, bathroom facilities, electricity and often, cell service.

You’ll find the team at Conditsis Lawyers is here to demystify all your local government and planning needs. Contact us today on (02) 4324 5688

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 Act means a defect in a major element of a building (attributable to defective design, defective or faulty workmanship, defective materials or a failure to comply with the structural performance requirements of the National Construction Code or any combination of these) that causes or is likely to cause, either:

  1. the inability to inhabit or use the building (or part of it) for its intended purpose;
  2. the destruction of the building (or part of it); or
  3. a threat of collapse of the building (or part of it).

“Major element” means an internal or external load-bearing component of a building that is essential to its stability, a fire safety system or waterproofing.

The Court said that the definition of a major defect should be given a broad meaning. It further held that it was not necessary for the defect to have already caused an inability to inhabit part of the building or created an imminent risk of destruction or collapse of the building in order to amount to a major defect; only that there were reasonable prospects of those consequences to occur. It is not necessary to establish that those consequences are imminent either.

The significance of whether a defect is “major” or “minor” is that for minor defects, owners have only two years in which to make a claim for compensation against the builder while that period is extended to 6 years for major defects.

In this case, Ashton sold her house to Stevenson in May 2016. Ashton had undertaken residential building work to the house in 2014 under an owner-builder permit. The work was completed in May 2014. Less than a month after settling on the purchase of the house, Stevenson noticed a water leak in the ceiling after a heavy downpour of rain. He commenced proceedings in November 2016, arguing that there was significant water penetration into the building from the first floor balcony and that this was a major defect. He also raised other roofing and guttering issues, but these were not considered major defects.

The Court accepted Stevenson’s expert evidence that the balcony membrane was possibly leaking at the junction of the parapet walls and in the expert’s opinion the construction of the balcony did not comply with the Australian standard AS4654.2-2009. Eventually, if the waterproofing to the balcony was not rectified, water penetration would cause the plasterboard sheets in the ceiling below and the joists and timber to rot and decay.

While this case concerned renovations to a single terraced house in Darlinghurst, owners corporations are regarding this case as a win for strata titled buildings because it will make their claims against developers easier. Waterproofing issues are very common in strata titled buildings.

Contact Conditsis Lawyers on (02) 4324 5688 to demystify home building warranty claims.


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 of residential lots that have not been created at the time of the contract.

The most significant change is the introduction of a disclosure statement, similar to what retail landlords (and franchisors) are accustomed to preparing prior to entering into a retail lease (franchise agreement) with a tenant (franchisee). The disclosure statement must be attached to the contract.

The Conveyancing (Sale of Land) Amendment Regulation 2019 prescribes that certain matters must be included in a disclosure statement. These matters include:

  • A draft plan containing sufficient information to identify the location of the lot, the proposed lot number, the area of the lot and if the lot is included in a proposed strata scheme, the draft floor plan and draft location plan (excluding parking or storage areas) amongst other things;
  • A proposed schedule of finishes;
  • The proposed by-laws or management statement (if any); and
  • Proposed site of any easements, restrictions or other access rights.

If there is a change to a “material particular” (being a change in the draft plan, by-laws, management statement or schedule of finishes that will or is likely to adversely affect the use or enjoyment of the lot), the developer must serve the purchaser with a notice of changes. This will entitle the purchaser to rescind the contract within 14 days or claim compensation from the vendor of up to 2% of the purchase price. The claim must made on the vendor prior to completion.

The other notable change is that the cooling off period for off the plan contracts has been extended to 10 business days whereas the cooling off period under contracts for the sale of established homes is only 5 business days.

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 business, history of the business, work safety record of the business, suspicions of “phoenixing” activity (where companies are deregistered after incurring debt and then a new business reemerges) and financial credibility, amongst other “metrics”. The rating system is scheduled to come into effect from July later this year.

The rating of a developer will not be publicly accessible in the first instance, but the government has flagged that “there may be an opportunity to open it to other uses in the future” 1 . The rating will be available to purchasers as a pre-purchase report. Presumably it will be similar to the credit risk report one can obtain when investigating the financial viability of a company. A buyer will be able to purchase this report as part of its due diligence prior to exchanging contracts with a developer for an off the plan purchase.

The new ratings system does nothing to ensure a high-quality standard of construction. By itself, the system will not prevent poor workmanship or the use of poor or second-hand materials by builders. However, this rating system coupled with the new NSW Building Commissioner’s powers will be a welcome change for off-the-plan buyers. The powers of the NSW Building Commissioner will include disallowing the issue of an occupation certificate from the Council or the private certifier for poorly constructed buildings and enable buyers’ to have their deposits returned to them in the event an occupation certificate is disallowed.

You’ll find the team at Conditsis Lawyers is here to demystify all your development and conveyancing questions. Call us on (02) 4324 5688.

1 Spokesperson for NSW Better Regulation Minister, Kevin Anderson, January 2020

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 damages would be an adequate remedy. 

In 2014, the Queensland Supreme Court said in GWC Property Group Pty Ltd v Higginson & Ors [2014] QSC 264 that provisions in leases that purported to require tenants to repay fit-out costs or an incentive paid to the tenant (upon default) were “wholly penal in their operation: providing for significant sums to be paid over and above damages which would be payable to the landlord at common law”. 

In that case, the presiding judge, Dalton J, said that for the defendants to establish that the clauses were penal (and therefore unenforceable), they needed to show that the stipulated repayments were extravagant and unconscionable in comparison with the maximum loss that might be suffered on breach of the contract. 

VCAT applied this test in Finetea Pty Ltd v Block Arcade Melbourne Pty Ltd (Building and Property) [2019] VCAT 1529. The landlord and tenant entered a lease of a premises situated in the basement of the Block Arcade in Collins Street, Melbourne. When the tenant defaulted, the landlord sought to recover the value of incentives totalling $555,000 divided into a rent credit of $355,000 and a cash incentive of $200,000 towards fit out works, pursuant to Special Provision 4.4 of Annexure C to the Lease. 

The Court held on the issue of the repayment clauses that the landlord obtained the benefit of the Lease and a contractual right, after the rent-free period had expired, to receive rent and outgoings for the term of the Lease. The rent was struck on the expectation that the premises would be fitted out in the manner contemplated at the expense of both parties and then occupied by the tenant for the period of the lease. Had the tenant not broken the lease, it would not have been responsible for paying rent and outgoings for the rent-free period, nor would it have been responsible to repay the landlord its contribution towards the fit out. The rent-free incentive and the fit out contribution were part of the consideration for its entry into the lease. 

The lease preserved the landlord’s entitlement to recover common law damages. To seek to recover the incentives in addition to those damages would be a “double recovery” and plainly “extravagant and unconscionable in amount” and out of all proportion to the damage it has suffered. 

You’ll find that the team at Conditsis Lawyers is here to demystify commercial leases. 

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

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 land (leases, covenants, other rights in the land) and fixtures attached to the land (improvements erected on the land).

Generally, the law of the place where the thing is situated will determine the succession of immovable property. However, in relation to movables, the law of the deceased’s domicile at the date of death will apply, as opposed to the law of one’s nationality.

The distinction between movable and immovable property was explored in Haque v Haque (No 2) (1965). [1] The deceased was a man named Abdul Haque. The deceased’s Will was executed in Western Australia. In that Will, the deceased left the entirety of his estate to his brother. The deceased died while a resident of India. He had a wife and children who would be entitled under Muslim law in India. The assets situated in Western Australia included the unpaid balance of the purchase price on the sale of land and shares in partnerships (which owned several parcels of land).

Barwick CJ stated that there was “a sufficient correspondence” between the interest of an unpaid vendor in land sold and the interest of a mortgagee in mortgaged land, to justify applying the same character or quality for the purposes of determining the proper law as to its succession.

The High Court upheld the Court of Appeal’s decision that certain assets were movable assets or choses in action (even though some of the property was land). That is, the unpaid balance of purchase price moneys and shares in the partnerships were movable assets. Therefore, those assets vested in the deceased’s wife and children. By the Muslim law operative in India, the deceased was denied any testamentary capacity as to movables. By that law, they passed by succession to his next of kin.

Contact the team at Conditsis Lawyers for all your estate planning needs on (02) 4324 5688 or by email at enquiry@www.conditsis.com

[1] 114 CLR 98

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

In the Federal Court decision of Tropoulos v Journey Lawyers Pty Ltd [2019][1], the Court considered the obligations of an employer to an employee who suffered a mental illness. Mr Tropoulos was a senior associate solicitor employed by Journey Lawyers. Journey Lawyers was a small specialist family law firm located in Queensland.

Mr Tropoulos suffered from a depressive disorder. His disability within the meaning of section 4 of the Disability Discrimination Act 1992 (Cth)(Act) was not in dispute between the parties.

Mr Tropoulos took leave from his employment for approximately six (6) months because of his disability and afterwards sought to return to work on a graduated basis, that is, five half-days per week as a senior associate.

Journey Lawyers proposed the basis upon which Mr Tropoulos returned to work which included, amongst other things, an initial three-day week on a reduced annual salary as a “family lawyer” in lieu of a senior associate. Journey Lawyers further proposed that Mr Tropoulos work in an open plan setting rather than work from his previously allocated office as that office had been allocated to another full-time associate.

Mr Tropoulos rejected this proposal and filed a complaint with the Australian Human Rights Commission and subsequently the Federal Court.

Section 5 of the Act provides that a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability if the discriminator does not make or proposes not to make reasonable adjustments for the person and that failure has or would have the effect that the aggrieved person is treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

Mr Tropoulos argued that his employer failed to make reasonable adjustments to his role and was in breach of the Act. The Act contemplates that an adjustment is reasonable unless the making of the adjustment would impose unjustifiable hardship on the person.

Mr Tropoulos was unable to perform billable work at anywhere near his previous levels and provided no indication of when he would be able to do so. The Court noted that the employer had made reasonable adjustments notwithstanding that it rejected the employee’s proposal of a five half-day working pattern in favour of a three-day working week with an offer of additional leave if required. Due to the firm’s small size, the financial strain of a five half-day working pattern would cause the employer unjustifiable hardship.

The employer had sustained the employee’s salary and position for an extended period but because it was a small firm with tight budgets, the Court found that further extension of this support would impose unjustifiable hardship on the employer.

It would be interesting to see if similar facts concerning a large legal practice (without the same tight budgets or financial constraints) would yield the same result in the Federal Court.

Contact the team at Conditsis Lawyers for all your employment questions on (02) 4324 5688 or by email at enquiry@www.conditsis.com

[1] FCA 436

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 bankrupt’s divisible assets and are not available for the benefit of creditors: section 116(2)(a) of the Act. If the bankrupt is a beneficiary under the family trust, the trust will not make any distributions to the bankrupt as those distributions would likely become divisible assets or assessable income during the bankruptcy period.

The full bench of the High Court recently clarified when trust property will vest in the debtor’s trustee. In Boensch v Pascoe [2019][1] the Court dismissed an appeal from the Federal Court by discharged bankrupt, Mr Boensch, who was claiming compensation under section 74P of the Real Property Act 1974. Mr Boensch claimed that Mr Pascoe (the trustee in bankruptcy) had lodged a caveat over the title to property in Rydalmere owned by Mr Boensch as co-trustee of a family trust without reasonable cause. The caveatable interest claimed by Mr Pascoe in the Rydalmere property was a ‘Legal Interest pursuant to the Bankruptcy Act’.

The High Court concluded that “there is no reason to doubt that, upon the making of the sequestration order, the Rydalmere property vested in equity in Mr Pascoe by reason of Mr Boensch’s right of indemnity and, therefore, that Mr Pascoe had a caveatable interest in the property…….. On the facts as found, Mr Pascoe did not lodge or refuse to withdraw the caveat without reasonable cause”.

In practical terms, this means that a trustee’s right of indemnity to be paid out of trust assets for costs incurred in administering that trust, such as rates, mortgage payments and utilities, is a sufficient interest to cause the trust property to vest in the trustee in bankruptcy. In other words, the trust can be attacked. Circumstances where property would not vest in the trustee in bankruptcy are if the trust had no debts or expenses or if debts and expenses accrued but went unpaid for the bankruptcy period or if the trustee had no right to be remunerated out of the trust assets.

[1] HCA 49

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 bullied you at work. Your employer and the person(s) you allege has bullied you at work (sometimes one and the same person) will be provided with an opportunity to respond to your application. 

A worker is bullied at work if an individual (or group of individuals) repeatedly behaves unreasonably towards the worker (or a group of workers) and that behaviour creates a risk to health and safety1. 

A “stop bullying” order may be made under section 789FF of the Fair Work Act 2009 (Act) if the Commission is satisfied that the worker has been bullied at work and there is a risk that the worker will continue to be bullied at work. 

Aside from a “stop bullying” order, the Commission can make an order requiring a review of the employer’s bullying policy or order that the workers be provided with further information, additional support and training, amongst other things. 

Because of the nature of the complaint, the Commission is obligated to deal with such an application promptly. It has 14 days after the application is made in which to “start to deal” with it under section 789FE of the Act. The Commission may direct a conciliation conference or mediation take place between the parties, require certain persons attend the Commission, invite oral or written submissions, require documents or records, conduct inquiries and hold a hearing.  

If the matter proceeds to hearing, it is important to note that the Commission cannot make an order for a monetary amount in these types of matters. That is, no compensation order can be made, or fines ordered to be paid.  

You’ll find that the team at Conditsis Lawyers is here to help with your employment law issues.  

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

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 grandchild. 

Ms Lapalme passed away in 2015. At the time of her death, she had three grandchildren. 

Two more children were born between the date of her death and the date of the hearing. 

The Court was asked to determine which grandchildren were to share in the residue of Ms Lapalme’s estate; only those alive at the time of the Will or at the time of her death or even those born after her death. 

The Court observed that, subject to the terms of the Will and surrounding circumstances, “where a beneficiary under a will is identified by way of description, the law presumes those who fulfil that description at the date of execution of the will take the gift”. However, that presumption is displaced where the gift is to a class of beneficiaries, such as this one, in which case those who fulfil the description at the date of death will take the gift. 

As to those grandchildren that were born after the date of death, the Court considered Ms Lapalme’s intention – that it would be highly improbable that Ms Lapalme would have intended to exclude grandchildren born after her death. 

A secondary issue arose as to when does the class of beneficiaries close especially if two children born after her death were included in the class? The Court held that when one grandchild attains the age of 18 years is when the class of beneficiaries closes, that is, when one of the grandchildren meet the condition(s) in the Will. 

Interestingly, the Court concluded that even a grandchild that was conceived but not born as at the date the class closed was included in that class of beneficiary. This seems at odds with the ordinary meaning of “those grandchildren as shall survive me” but it is an established principle of succession law that even an unborn child (that is subsequently born alive) is part of a relevant class of beneficiaries.

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 be used, wholly or predominantly for the carrying on of one or more of the businesses prescribed for the purposes of this paragraph” or “are used, or proposed to be used, for the carrying on of any business in a retail shopping centre”: section 3, Retail Leases Act 1994 (Act). Helpfully, Schedule 1 of the Act lists those businesses that are taken to be “prescribed for the purposes of this paragraph”. While this seems a very protracted definition, it promotes a great deal of certainty by prescribing what is a retail premises. Any business not on the list is simply not a retail premises and therefore not governed by the Act.

In Victoria, there are two limbs to the definition of retail premises; only one of which needs to be satisfied in order to amount to a retail premises. The first is similar to NSW, the second element provides that a retail premises is premises that are used wholly or predominantly for the sale or hire of goods by retail or the retail provision of services. There is no definition of ‘premises’. This second element has generated a great deal of uncertainty.

In Phillips v Abel [2019], the tenant argued it did not have to pay certain outgoings levied by the landlord because the landlord had not complied with its obligations relating to the provision of a statement of outgoings. The landlord argued that the Act did not apply because there was no retail shop operating on the land. The dispute made its way to the Tribunal to determine if the land was a retail premises for the purpose of the Act.

The tenant operated a sand quarry from the land, extracting sand, clay, gravel from the land and selling it to customers who then went on to use the material to make concrete, tiles or building blocks. It was essentially vacant land. The Tribunal applied the ‘ultimate consumer test’ from its 2017 decision of IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd. Relevant factors include a consideration of who is the ‘end-user’ of the goods or services, is a fee paid for the goods or services, can anyone acquire these goods or services for a fee and did the tenant’s customers pass these goods or services on to anyone else? The lease was found to be a lease of retail premises because its business amounted to a retail provision of goods and services.

The interesting take-away point from this decision and the IMCC decision is that it is unnecessary to have a shop, building or other structure erected on the land in order to constitute a retail ‘premises’. The focus is on what the tenant actually does on the land, not the nature and character of the land itself. The other important thing to note is that a lease of premises that would traditionally have been excluded from the operation of the Act may now fall within its reach.

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 price of $440,000. However, only the brother, Dr Nguyen, was recorded as the sole registered proprietor. Completion of the contract took place in February 2002.

The Court accepted that the brother could only obtain a loan up to $250,000 and was therefore unable to acquire the investment property by himself.

Accordingly, both brother and sister Ms Thi Nguyen, became co-borrowers on a loan from the CBA in the sum of $335,000. A mortgage was taken over the property. It was accepted that the sister paid $90,000 to the CBA to reduce the amount of her and Dr Nguyen’s liability on the loan in the 15 months following completion.

The sister paid the 10% deposit and stamp duty.

Between 2003 and 2006, the sister and her partner moved into the Terrigal property and rented out their former residence in Sydney. The brother argued that he rented the property to his sister and that she held no beneficial interest in the property. However, there was no evidence that she paid any rent to the brother during this period – other than the mortgage repayments which the brother contended was the rent payable to him for that period.

The brother occasionally stayed at the property and the sister and her husband accommodated him by moving out of the premises during those times. Further, in 2006 bathroom and kitchen renovations were undertaken to the property paid for exclusively by the sister. These circumstances did not lend to a landlord-tenant relationship.

In 2007, the sister moved out of the property.

Between 2010 and 2014, the property was tenanted to third parties. The rent was directed to the sister’s partner during that period. The rent was unaccounted for and was not dealt with in these proceedings.
From 2014, the brother rented out the property. That rent was unaccounted for again and was not dealt with in these proceedings.

The sister sought a declaration that her brother held part of the property on trust for her. The Court made orders that the brother held 40% of the Terrigal property on constructive trust for his sister on the basis it would be unconscionable for her brother to deny she had an equitable interest in the property.

The Court did not examine whether there was a resulting trust because there was on going joint venture between the two siblings, that is, an inferred agreement between the two siblings that they wanted to jointly invest in an investment property.

Had there not been any joint venture between the brother and sister, then the Court would need to examine the sister’s alternative resulting trust argument, which would have been strong because she contributed to a substantial portion of the purchase price in any event.

Call Conditsis now for all your co-ownership agreement needs: (02) 4324 5688

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 property.

In this case, the mother Anita Henley paid the 10% deposit on the purchase of a Ballina property in 2011 on exchange of contracts and then paid the balance of the purchase price of $525,000 on completion. However, the contract for sale was in the name of her son, Gregory Henley, exclusively and accordingly Gregory went on to become the registered owner of the property on completion.

Gregory did not contribute anything to the purchase price and in fact, he received the benefit of the first home buyer’s grant and stamp duty concession.

Gregory passed away in 2017. The mother sought a declaration that Gregory held the Ballina property on a resulting trust for her as she contributed the whole of the purchase price and that it was not an asset of Gregory’s estate. The only two children of Gregory defended the proceedings.

Normally, where a person contributes the whole of the purchase price in the name of a second person, a presumption arises that the first person did not intend the second person to take a beneficial interest in the property and a resulting trust will arise in favour of the first person, that is, the person who contributed the whole of the purchase price. This presumption can be rebutted.

The Court found that there was no resulting trust in favour of the mother.

The mother’s evidence was inconsistent – she gave evidence that Gregory was buying the property on her behalf and thought she was recorded as the owner and then further contrary evidence was given that Gregory had to act quickly to secure the property so he put it in his name only.

Gregory lived in the property for 6 months following completion in order to satisfy the first home buyer grant conditions and then vacated the property. The mother then moved into the property after this time. This meant that the mother was more likely than not to have been aware of the conditions of the first home buyers grant and stamp duty concession.

As all negotiations on the property were undertaken by Gregory and the mother had no contact whatsoever with the agent or conveyancer that acted on the purchase, the Court held that for all intents and purposes the property was Gregory’s property. This was then subject to a personal obligation to permit his mother to treat the property as her own and to reside in the property until her death.

The case highlights how imperative it is that the intention of the parties is documented prior to entering a property transaction otherwise there may be unintended consequences if the matter proceeds to Court.

Call Conditsis Lawyers for all your co-ownership agreement needs (02) 4324 5688

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” that you pay a debt, failing which they will commence proceedings to recover the debt.  

A statutory demand means the company will have 21 days from service (formal receipt of the statutory demand) in which to either pay the debt, the subject of the demand, enter into a payment arrangement or file and serve an application to the Court to have the demand set aside under section 459G of the Act.

The period of 21 days is strict.

If you fail to do any of these things within the time limit, an application can be made to wind up your company.

In Sheraz Pty Ltd v Rumsley [2019] FCA 493, Rumsley served a statutory demand on Sheraz Pty Ltd on 24 January 2019. Sheraz had until 14 February 2019 in which to file and serve an application to set aside the demand.

Sheraz filed its application on 7 February 2019, but for whatever reason it did not take immediate steps to serve the application on Rumsley. It served the application by email on the last day of service (14 February 2019) at 4:59pm. Rumsley did not see the email until 25 February 2019.

While Sheraz may have had grounds to set aside the statutory demand on the basis that there was a genuine dispute on foot in relation to the existence of the debt, it was unsuccessful in having the demand set aside.

The Court considered that service by email prior to the deadline, albeit by one minute, was insufficient in the circumstances. Service under section 459G means personal service so the application needed to have come to the attention of Rumsley prior to the deadline. The case may have yielded a different result if the email address of the creditor had been included in the statutory demand.

Not only was Sheraz’s application to set aside the statutory demand dismissed but it was ordered to pay Rumsley’s costs in the proceedings.

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, Milorad’s brother. 

The Will contained an “executor’s discretion” where Milorad could postpone the sale of any asset for as long as he may think fit in his absolute discretion. Following payment of the estate’s debts, the remainder of the estate was to be divided between his two children as tenants in common in equal shares.

On 25 May 2018, Sinisa made an application to the Court to remove his brother as executor of the Estate on the grounds that Milorad had failed in the due and proper administration of the Estate.

The Estate consisted of two properties in Canley Heights, each exceeding $800,000. Milorad resisted calls for the sale of these properties and the distribution of the Estate by his brother on the ground that the deceased did not want to him to sell any property. He denied that this conduct amounted to conduct that would see him removed as an executor.

J Rein found that Milorad had failed to administer the Estate. He noted the discretion contained in the Will not to sell the real estate, but that this discretion did not amount to an instruction not to sell the real estate. The Court also found that he had intermingled his money with that of the Estate’s, falsely omitted his brother as a beneficiary under the Estate in the summons for Probate to the Court, received monies from the Estate without justification, and did not keep adequate records of claimed expenditure on behalf of the Estate.

For these reasons, the Court was satisfied that Milorad should be removed as executor of the Estate. Sinisa also made a claim for family provision.  An order was made in his favour that the assets of the Estate were to be sold and an equal distribution made to the two brothers after payment of relevant costs.

[1] NSWSC 1208 (15 July 2019)

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 Court appeal related only to a limitation period pleaded by the defendant.

A limitation period essentially bars the remedy sought by the appellant, that is, it permits a good defence to be pleaded.

The case involved a question of statutory interpretation arising from two provisions in the Limitation of Actions Act 1974 (Qld).

The first provision was section 26(1) which contains a 12 years limitation period that applies to an action “to recover a principal sum of money secured by a mortgage or other charge on property”. This provision encompasses, relevant to this appeal, debts created by statute and secured by charge, such as council rates and charges.

The second provision which overlaps with section 26 is section 10 of the Act. This provision relevantly creates a six years limitation period for “an action to recover a sum recoverable by virtue of any enactment”, amongst other things. This equally applies to council rates and charges.

The issue was whether section 26 that provided a “longer” 12 years limitation period excluded the operation of the “shorter” six years limitation period in section 10.

The Court relied upon an historical English case of Barnes v Glenton [1899] that held while there could be overlapping limitation periods, a longer limitation period would not extend a shorter limitation period. Both provisions apply. The result is that the registered owner of rateable land who is the defendant to that action, Mr Amos, is free to invoke by way of defence that limitation period which is shorter and more advantageous to him. The appeal by the Council was dismissed with costs.

[1] HCA 27 (4 September 2019)

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 risk to the property remains with the vendor. The risk in the property does not pass to the buyer until completion. (Contrast this with the position in QLD where the risk passes to the buyer following exchange). The exception to this rule is if the purchaser has already taken possession of the property prior to completion.

A buyer can rescind the contract where the land is substantially damaged after the making of the contract for the sale of land. All money paid by the purchaser under the contract must be repaid to the purchaser and both the vendor and purchaser are relieved from liability. This is a right that the purchaser only can exercise pursuant to section 66L of the Conveyancing Act 1919 (Act).

The Act defines land as “substantially damaged” if the damage renders the land materially different from that which the purchaser contracted to buy.

In Bakhos v Fenner & Anor [2007] NSWSC 641, a house was damaged by fire after the making of a contract for sale and prior to completion. The purchasers sought to rescind the contract under section 66L of the Act. The vendor treated the purported rescission of the contract as repudiation of the contract and terminated the contract. The Court found that the damage was minor. There was smoke damage to the walls and the ceiling in the lounge room and sunroom had sagged as a result of water from the fire department putting the fire out. The ceilings were otherwise in good condition. The carpets were burnt, and the windows had shattered. However, expert evidence from a structural and civil engineer illustrated that the property was still habitable; the mortar in the internal and external walls was still intact, the walls were upright and showed no signs of distress and the roof was in good condition. The Court made a declaration that the Contract was validly terminated by the vendors and were entitled to retain the deposit.

But what happens if they don’t rescind? The Act provides that there must be an abatement of the purchase price which may be adjusted on settlement. The price reduction should be “just and equitable in the circumstances” pursuant to section 66M of the Act.

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.

If you would like to learn more about cannabis use and other drug laws please get in touch with our criminal lawyers today.

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 and any questions you may have regarding wills and estates.

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.


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



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





-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.



  • 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:


2 counts of sexual assault under s61I Crimes Act (without consent) – maximum period of imprisonment – 14 years on indictment;


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


1 NSWSC 1583

Criminal Law Matters: Issue 7




 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.

Please get in touch with us to learn more about criminal law and how the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 may affect you.

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:



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.

If you would like to learn more about retail leasing and what our commercial lease lawyers can do for you please click here

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.

Criminal law is a complex topic that will require expert advice from one of the best criminal law firms in NSW in order to secure your future.

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.

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