When agents are completing the inclusions/exclusions on a sale Contract or forwarding the instructions through to the Vendor’s solicitor to assist with preparation of the hard copies of the sale Contract, it is important to note as clearly as possible exactly what is included and/or excluded.

In a recent situation regarding a completed purchase we have had an enquiry as to whether or not the oven which the Purchaser had seen on inspection, should still have been in the premises on settlement. On checking the Contract the inclusion was listed as stove, so technically if they received a stove on settlement and not the gas hot plates and oven first inspected, then the Vendor had fulfilled his obligations.

In this instance, if the agent had listed gas hot plates and oven there would be no confusion as to what the Purchaser could expect to receive on settlement. If specifically branded appliances/inclusions are of importance to the Purchaser, then these items should be clearly described on the Contract.

On final inspection the Purchaser and agent should ensure that the property about to be settled is as it was presented to the Purchaser originally and as described in the Contract or settlement should be delayed until the situation is resolved.

New South Wales Only

A move into aged care can happen quickly. Decisions can be both emotional and financial so it’s wise to plan ahead. If you or a loved one are considering a move into residential aged care,you should attend.

Oculus Aged Care have organised a series of free seminars to discuss:
- 5 easy steps to entering aged care
- cost of residential aged care
- selling or keeping the family home

Our guest speaker Jeff Garrett will discuss:

- Wills and Enduring Powers of Attorney
- Enduring Guardianship
- Advance Health Directives

About the Presenters

Penny Pettigrew Dip.Fin.Mar

Penny has been providing information on Residential Aged Care Fees and Charges since the introduction of the Aged Care Reforms in 1997. Her extensive technical knowledge will enable your questions to be answered.

Guest Speaker

Jeff Garrett. Senior Partner and Legal Practice Director of Attwood Marshall Lawyers. Jeff has extensive experience in estate planning and has provided helpful guidance to many clients in this situation.

A young worker died as a result of injuries sustained in a workplace accident at Matraville in Sydney on the 27th April 2013. The 23 year old Blacktown man was working at a business at Matraville when he was crushed between his stand up rider forklift and the framework inside the freezer. The worker became wedged between the forklift and the framework. The incident occurred at 1.30 p.m. but the man was not found and assisted until 2.45 p.m. It then took rescue services approximately one hour to free the man from the freezer. He was taken to St George Hospital in a critical condition but died at 6.30 a.m. on Sunday morning. WorkCover are investigating the accident.

This accident serves as a reminder that constant vigilance is needed, particularly when working around forklifts or in isolated and dangerous circumstances.

The deceased man’s family have statutory benefits under the NSW Workers Compensation Act under Section 25 and if there is fault or negligence on the part of the employer then the man’s family and dependents will have a claim under the Compensation to Relatives Act (NSW) for the financial detriment they have suffered as a result of the worker’s death.

Anyone requiring advice concerning workplace incidences and fatalities should contact Attwood Marshall for further advice on 1800 621 071.

Interesting issues arise for workers who work in both Qld and NSW. If a worker works in New South Wales but is injured in Queensland, do Queensland laws apply? Not necessarily.

In an effort to clarify the issue for employers the state governments for New South Wales, Queensland and Victoria enacted uniform legislation with the aim of having employers to only have one policy of worker’s compensation insurance in one state to cover their employees. Essentially there are similar tests which are used under New South Wales, Queensland and Victorian law to determine which state compensation system applies. Compensation is normally paid under the Act of each state when the employment is connected with that state. The fact that a worker is outside the state when an injury is sustained does not prevent compensation being payable under the state Act in relation to that employment. A series of cascading tests apply to determine whether the worker’s employment is connected with the state. The Court/Commission looks at the following factors to determine connection with the state. A worker’s employment is usually connected with:

(a) the state in which the worker usually works in that employment; or

(b) if no one state is identified as above, the state in which the worker is usually based for the purposes of that employment; or

(c) if no one state is identified by the two paragraphs above, the state in which the employer’s principal place of business is located.

It is not possible for a worker to pick and choose which state is liable to pay the claim based on the generosity or paucity of benefits available in any one particular jurisdiction. Some workers have attempted to escape the compensation restrictions of one state in order to obtain the more favourable benefits in another state. See for example Ferguson -v- WorkCover Qld [2013] QSC 78

Generally where a worker pursues a claim for compensation in one state then that law is also the law that applies with respect to the calculation of common law damages against the employer in the event that negligence can be found against the employer. This is enshrined in legislation (Qld Section 324, NSW Section 150A).

Occasionally the worker’s compensation insurer of a state will not properly consider the jurisdictional element when paying out statutory benefits. It is therefore crucial that all workers obtain legal advice soon after their injury so that the jurisdictional issue can be settled early to ensure that the case is properly prepared, bearing in mind that in both New South Wales and Queensland a 3 year time limit applies to the prospection of a common law damages claim against the employer. Many technical steps must be taken before that time to ensure that all the procedural requirements of the legislation in both states are complied with so that adequate notice can be given for a claim of common law damages.

If you are unsure as to which state law applies in the calculation of your entitlements as a worker please contact Attwood Marshall Lawyers or further advice on 1800 621 071.

Susan Delaney suffered brain injuries when she was injured when a motorcycle driven by her boyfriend crashed on a mountain road.

Ms Delaney’s boyfriend was a member of the Odin’s Warriors Motorcycle gang and was killed in the accident.

The Supreme Court approved a settlement that provided for Ms Delaney’s ongoing care which is the substantial amount of the damages.  In severe brain damaged clients there is a requirement for around the clock care for cleaning, feeding, bathing and the other necessities of life.  Susan Delaney’s mother Joan has been looking after her following the motorcycle accident.  The settlement is a substantial sum to ensure the provision of care for Ms Delaney for the rest of her life.

The main difference is that under the Subcontractors’ Charges Act 1974 (SCA), you can secure a payment that will be due to you whereas, The Building and Construction Industry Payment Act (BCIPA) will give you a rapid return for payment of a progress claim when it falls due and/or the right to recover.

This information is specific to Queensland claims.

BCIPA Claims:

Under the BCIPA, if you (as Claimant) have a progress payment due, you must;

1. Issue a Claim (‘the Claim”) to the respondent with the words “This is a claim under The Building and Construction Industry Payment Act 2004”;
2. State a time for payment;
3. State the sum of the progress payment, or how it has been calculated.

When the Respondent (principle contractor, owner builder etc) is served with this progress claim, they must within 10 business days of receiving the Claim

1. Either pay the sum due under the claim;

or if they dispute the amount;

Provide to the claimant a Payment Schedule  which will set out

1. Why they dispute the amount;
2. How much they will pay; and

If a Payment Schedule has been served, then the Respondent must

1. Pay the undisputed amount identified in the Schedule with 10 business days of the claim.

If a Payment Schedule has not been served, then the Respondent is liable for the full sum.

If the Respondent does the following:

1. Provides a Payment Schedule but does not pay the sum;
2. Provides a Payment Schedule and the Claimant disputes the sum within it;
3. Does not provides a Payment Schedule and does not pay the sum;

Then the Claimant can lodge an application for Adjudication under the BCIPA.

SCA Claims:

If you are concerned that the principle may withhold payment, or maybe unable to pay the full amount due to you, then you would make a claim under the SCA.

Some examples of when this may occur is when you require protection from an insolvent builder by securing the monies owed by the developer to that builder and directing some of those monies you. This bypasses a potentially insolvent builder. It will in effect restrain them from dispersing money which would otherwise go to someone above you (for example a contractor), and instead would direct the payment to you as subcontractor.

You cannot lodge a Notice of Charge after  the money has already been paid to the builder, or if the entire debt to the builder has been paid by the developer.

The Notice?

When serving your Charge on your superior, you must:

1.  Include the amount and particulars of the claim as prescribed by a qualified person (architect, engineer, etc., as per s 10A) and state that you require the employer/subcontractor to take the necessary steps to see that it is paid or secured (s 10(1)(a))
2. Provide a statutory declaration;

What time limits apply for the Notice?

A notice of charge can be given at any stage during the subcontract period, but the following time restrictions apply after the completion of the subcontract:

1. for contract monies – Within (3) three months after the completion of works.
2. for retention monies – Within (3) three months of the expiration of the maintenance period.
3. for monies held under a security – Within (3) three months of the expiration of the release period.

If the money is due before completion, the charge can be made in respect of money payable to you at the date of the notice (such as retention money), or money to become payable to you for work already done by the contractor at the date of notice.

What happens when a Charge is served?

When someone is served with the Notice of Charge, they must within 14 days:

Give a “contractor’s notice” to the developer, stating that the builder:

1.  Accepts liability to pay the claimed amount;
2. Disputes the claim; or
3. Accepts liability to the amount stated in the “contractor’s notice”, but otherwise disputes the claim.

When a builder provides a notice accepting the liability,  the developer will pay the amount to the subcontractor. Payment of the sum must be made immediately.

If the builder does not accept the liability, the subcontractor’s must take the next steps to enforce the charge, essentially proving the debt.

At least the money will be secured as the developer should not pay any monies to the builder or risk also having to the debt to the subcontractor.

Still not paid?

If you lodge a Notice of Claim under this act, and within 35 days of lodging same you are still not paid, you can:-

1. Suspend work if you have not been paid.

If a dispute arises in respect of the monies, the subject of the notice of claim and if such a dispute is not resolved within 1 month after the notice has been given, proceedings must be brought in a Court of Law to resolve the dispute, otherwise the notice has no force and effect.

If a sub-contractor should fail to commence legal proceedings within the necessary time limit after a notice is issued, the sub-contractor may still be able to pursue his claim only if another sub-contractor has given the necessary notices and commenced legal proceedings within the required time limit. The first sub-contractor does this by applying to a Court for an order that his claim be joined in the claim of the second sub-contractor as provided by Section 13 of the Act.

Be careful

If you have lodged a Charge improperly, or have failed to comply with certain requirements of the Act, you may be held liable for damages incurred by the builder. This could be as a result of the developer withholding money payable to the builder due to your apparent subcontractor’s charge. Prior to lodging a Charge, we recommend that you speak with either Master Builders Association, BSA or seek legal advice.

If you require further information please contact 07 5536 9777 or email info@attwoodmarshall.com.au.

Like most things in life, the important jobs can sometimes be overshadowed by the menial and estate planning is no exception.

In Part 2 of our Feature Podcast on how to effectively and seamlessly transition from home or hospital into an aged care facility, Practice Director, Jeff Garrett addresses the full range of legal instruments that need to be considered if you are wanting to significantly reduce both your vulnerability and/or the vulnerability of your loved ones to what can become, an absolute disaster.

A move into aged care can happen quickly. Decisions can be both emotional and financial so it is wise to plan ahead.

If you or a loved one are considering a move into residential aged care, you must listen to Penny Pettigrew who has been providing information on Residential Aged Care Fees and Charges since the introduction of the Aged Care Reforms in 1997. Her extensive technical knowledge will enable your questions to be answered.

Next week: The importance of planning your estate with Jeff Garrett

Locating unregistered easements can be as simple as ordering the As Constructed SIS Location Diagram from Council. This diagram will show easements that may not be registered, including sewer, water, storm water and fiber optic. Gold Coast City Council offers this search for a mere $23.00…. that seems like a small price to pay to ensure your contract is legally binding.

We recommend you undertake this search, along with the title search, before preparing any contracts for the sale of real property in Queensland.

Never use the wording ‘Refer to Title Search’ in the encumbrances section of the Contract. The encumbrance must be described in detail. For easements and covenants registered on title, use the exact wording from the title search.

For further informaton, contact Attwood Marshall on 07 5536 9777 or email info@attwoodmarshall.com.au.

SMOKE ALARMS 

It is common knowledge that from 1 July 2007 all residential dwellings in Queensland are required to have smoke alarms installed (Qld Fire and Rescue Services Act 1990).

With rental properties there appears to be confusion as to who is responsible for the maintenance (including the replacement of batteries) of smoke alarms.  In most cases there are 3 parties involved:  the tenant, the landlord and the agent, and all 3 parties are usually quick to put the responsibility for checking the smoke alarms on the other.

Landlord’s Obligations 

• must ensure smoke alarms with a minimum service life of 10 years are installed in the dwelling;
• are responsible for cleaning, testing and replacing of batteries within 30 days before the start of a tenancy and this includes any renewal of a Tenancy Agreement;
• must repair/replace smoke alarm if smoke alarm fails for any reason (except for a flat battery which must be replaced).

Tenant’s Obligations 

• must clean and test the alarm during a tenancy if the tenancy is longer than 12 months and must do so at least once every 12 months;
• must replace the batteries if the batteries are flat or almost flat during a tenancy.

 Managing Agents

Managing agents act for the landlords and it will depend on the Management Agreement entered into between the landlord and the managing agent.  The legislation places the obligation on the landlord who remains the ultimate responsible party.  If the Management Agreement states the agent is responsible to perform these duties on behalf of the landlord the agent will not escape liability;

Agents should be aware of their specific duties resulting from their Management Agreement and something like the testing of smoke alarms should be specifically negotiated with the landlords.

BLINDS, CURTAINS AND WINDOW FITTINGS 

Most people are not aware of the fact that in 2006 the Qld Government has introduced mandatory safety standards in relation to blinds, curtains and window fittings installed after 3 February 2006.

In 2010 the ACCC has issued regulations which regulate the design, construction and labelling of corded window furnishings and from 1 July 2011 all suppliers and landlords must comply with these regulations.

Landlords are responsible to ensure the property and all products they provide are safe and this includes blinds, curtains and window fittings.

The Department of Fair Trading has issued a guideline with 7 easy steps to ensure blind and curtain cord safety:

• make sure children cannot reach any blind or curtain cords;
• make sure the bottom of any blind or curtain cord is at least 160cm above the floor;
• move children’s costs, beds, high chairs or playpens away from windows with blind or curtain cords;
• make sure your child cannot climb on furniture and reach the blind or curtain cord;
• wrap blind cords securely around a hook attached high on the wall;
• install a cord tensioning device for vertical blinds;
• when installing new blinds seek advice from the supplier about products that use ‘wands’ instead of cords to operate the blinds.

Again, agent’s responsibilities in this regard should depend on the contents of their Management Agreement.  We strongly advise agents should consider their Management Agreement and would recommend that it is not enough for an Agreement only to state the agent will manage the property on behalf of the landlord.  Statutory obligations, as outlined above, should be specifically discussed and recorded in the Management Agreement to avoid any disputes.

Should you require any further information in this regard please do not hesitate to contact our property and commercial department on 07 5536 9777 or email info@attwoodmarshall.com.au.

See related articles:

• Is your Landlord liable? By Barry van Heerden – Partner
• Baby`s death results in tough lessons for Real Estate Agents – By Jeff Garrett – Legal Practice Director