Residential Conveyancing

NSW Retail Leasing: Bonds lodgement and Lease disputes - By Tia Haynes - Commercial Property Lawyer

Written on Tuesday, 6th December, 2011

The current financial climate has had far-reaching affects on the business market, with many businesses now facing financial difficulty. Disputes between Landlords and Tenants and claims on the bond money are becoming a great deal more common.

Two issues in this area that merit discussion are:

A reminder that Landlords must correctly deal with the Lease bond and lodge it within the prescribed timeframes; and
Steps prescribed under the legislation where disputes arising between the Landlord and Tenant cannot be readily resolved.

Requirements on Landlords to lodge the Bond

All retail Leases within NSW fall within the ambit of The Retail Leases Act 1994 (NSW) (“the Act”). The Act provides strict provisions regulating the lodgement of bonds under a retail Lease.

Section 16C(2) of the Act provides that the Landlord must deposit with the Director-General an amount of money equivalent to the amount of the security bond not later than 20 business days after:

(a) the date of receipt of the security bond, or

(b) the date on which the Lease became, or the proposed Lease becomes, binding on the parties,

whichever is the later.

Landlords may face a penalty of up to $2,200.00 for failure to comply with the time limits above.

The bond must be lodged through the NSW Retail Tenancy Unit, and must be accompanied with the prescribed form. Further information, including how to obtain the correct form, can be found on the NSW Fair Trading website (www.fairtrading.nsw.gov.au).

Disputes arising between the Landlord and Tenant

Disputes between Landlords and Tenants are particularly prevalent at present. The disputes commonly relate to a breach under the Lease, usually in relation to payments under the Lease that the Tenant has failed to make. Regardless of the content, where the dispute cannot be resolved, the Parties must have regard to the Act to try to resolve the dispute, prior to litigation being considered.

Section 68(1) of the Act provides that a retail tenancy dispute cannot be the subject of proceedings before any court until the dispute has been referred to mediation.

Mediationis a process in which the Parties identify the issues in dispute, with a mediator present, working together to reach an agreement. The mediator does not provide advice, but rather the mediator’s role is designed to facilitate an agreement.

Section 67 of the Act outlines that mediation is not limited to formal mediation procedures but may include:

(a) preliminary assistance in dispute resolution, such as the giving of advice designed to ensure that the parties are fully aware of their rights and obligations and that there is full and open communication between the parties concerning the dispute; and

(b) other appropriate forms of alternative dispute resolution.

Mediation (or another form of alternative dispute resolution) provides an environment in which Parties to the dispute are able to discuss the dispute openly and freely. Section 69 of the Act provides that any statement or admission made in the course of the mediation is not admissible at a hearing or any other legal proceeding.

Although there are a number of types of alternative dispute resolution (ADR), the more common forms are:

Arbitration: Both the Landlord and Tenant put forward their arguments and evidence which is reviewed by the arbitrator, a neutral third party, who then reviews the case and imposes a decision that is legally binding on both sides.
Facilitation: A process in which the Landlord and Tenant, with the assistance the facilitator, identify problems and disputed issues to be resolved. The facilitator has no advisory or determinative role on the content or outcome, but may advise on or determine the process of facilitation.
Conciliation: The conciliator meets the Landlord and Tenant separately in an attempt to resolve their differences. The conciliator attempts to lower tensions, improves communications, interprets issues, provides technical assistance, explores potential solutions and brings about a negotiated settlement. The conciliator does not determine the dispute.

Conclusion

Landlords need to be aware of their obligations relating to lodging the bond under their Lease. Where the Landlord is legally represented, their lawyer will advise them on this, and arrange for the correct bond lodgement, to avoid breaching the Act and resulting penalty.

With regard to disputes, the Act notes that the first step in any dispute is to ensure that the parties have read their Lease and have spoken to one another about their concerns in an effort to resolve the dispute. If the dispute is not resolved at this stage, we suggest contacting your lawyer to assist in resolving the dispute quickly, before the expense of mediation, ADR or potential litigation is incurred.

Attwood Marshall has lawyers available who specialise in Leasing and would have happy to discuss your leasing matter with you.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Business and Commercial Transactions
Deceased Estates and Contesting Wills
Dispute Resolution and Commercial Litigation
Equine Influenza Class Action
Family Law and Divorce
Personal Injury Claims
Residential Conveyancing - Buying or selling your home or property
Telecommunications Class Action
Thoroughbred Breeding and Racing
Wills and Enduring Powers of Attorney

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

First Home Buyers have last chance for Concession before Christmas!

Written on Thursday, 24th November, 2011

NSW first homebuyers are to face tighter Stamp Duty Concessions in an effort by the Government to stimulate new building activity. From January 1, 2012 significant changes will be made to the current exemption and concessions offered by the NSW Government. The current scheme will be replaced by the First Home – New Home Scheme.

What does this mean on the Purchasers?

Purchasers between now and January 2012, who are first time home buyers must act quickly to make the most of existing benefits before they are abolished.

First time home buyers currently pay no stamp duty on all properties under $500,000, and receive a discount for properties valued up to $600,000. First home benefits of up to $24,990 have been available, including the $7,000 First Home Owner Grant and a duty exemption of up to $17,990 under the First Home Plus Scheme.

Please note that any contracts entered into before 31 December 2011 will still be dealt with under the existing scheme.

NEW SCHEME

However, the new scheme means that from 1 January 2012, the stamp duty concessions will apply only to newly constructed homes - including those built off the plan.

The main changes are as follows:-

The agreement or transfer must be for the acquisition of a first home which is a new home or a vacant block of residential land intended to be the site of a first home. This includes the acquisition of:

(a) a new home (that is a home that has not been previously occupied or sold as a placeof residence);

(b) a substantially renovated home;

(c) a vacant block of residential land (that is an agreement for the sale or transfer of vacant land that is intended to be used as the site of a first home).

Under the legislation, substantial renovation of a building is defined as a renovation in which all, or substantially all, of a building is removed or replaced. The renovation may, but need not, involve the removal or replacement of foundations, external walls, interior supporting walls, floors, roof or staircases.

The entitlement is limited to an eligible purchaser. An 'eligible purchaser' is a natural person (i.e. not a company or trust) at least 18 years of age who has not, and whose spouse/de facto has not:

(a) at any time owned (either solely or with someone else) residential property in Australia other than property owned solely as trustee or executor;

(b) at any time been the holder (either solely or with someone else) of a leasehold interest granted by the Commonwealth in residential property in the Australian Capital Territory;

Other conditions:-

The residency requirements remain the same (must be occupied by at least one of the purchasers for a minimum of 6 months within the first 12 months of ownership)
Applicants may still be eligible for the First Home Grant even if they do not qualify for the stamp duty exemption
The exemption does not apply if the applicant is purchasing an old home to demolish and rebuild or renovate, it is only applicable for vacant land purchases OR if the home they wish to purchase has already been substantially renovated and never lived in.

Price eligibility is limited to:

$600,000 for a new home or off the plan purchase
$450,000 for a vacant land purchase

Where an eligible transfer is approved, no duty is payable where the dutiable value of the property is not more than –

(i) $500,000 for a new home, or

(ii) $300,000 for land being purchased to build a new home.

Where the price exceeds the amounts mentioned in (i) and (ii) above, a reduced duty is payable between that amount and the ceiling amount permitted.

It is still permissible under the new legislation to have an equity partner involved the transaction.

The following link has a full explanation of the points covered above together with Q & A for those more frequently asked questions: http://www.osr.nsw.gov.au/benefits/first_home/faqs/new_home/

If you are a first time home buyer and need a property settled in a timely manner, contact Christine Martin our Property and Commercial Department Manager on 07 5506 8245 or email cmartin@attwoodmarshall.com.au – WE OFFER DISCOUNTS ON OUR FEES TO FIRST HOME BUYERS!

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Business and Commercial Transactions
Deceased Estates and Contesting Wills
Dispute Resolution and Commercial Litigation
Equine Influenza Class Action
Family Law and Divorce
Personal Injury Claims
Residential Conveyancing - Buying or selling your home or property
Telecommunications Class Action
Thoroughbred Breeding and Racing
Wills and Enduring Powers of Attorney

Do you own Strata Title premises in NSW & want to swap your car space with another owner?

Written on Friday, 4th November, 2011

This question is best answered using a practical example

All of the lots in a strata scheme have a separate car space in the basement which is identified on the strata plan as being part of their respective lot.
The strata scheme has 4 lots and each lot has a separate car space which is shown on the strata plan as forming part of each lot.
The owners of lots 1 and 2 wish to swap ownership of their car spaces.

What you need to do:

1. A registered surveyor should prepare a strata plan of subdivision to create 2 new lots (ie lots 5 and 6)

Lot 5 being the whole of the former lot 1 excluding its car space and including the car space of the former lot 2
Lot 6 being the whole of the former lot 2 excluding its car space and including the car space of the former lot 1

2. The strata plan of subdivision requires the approval of the following parties:

The Council or an Accredited Certifier.
The registered proprietors of lots 1 and 2
Any party with a registered interest in lots 1 and 2 eg. a mortgagor (your financing bank), lessor or caveator

3. The consent of the Owners' Corporation is not required. However the Certificate of Title for the common property should be produced at Land and Property Information NSW (LPI) to permit registration of the plan.

4. If either of the lots concerned is owned by the original developer, then a certificate from the Owners Corporation should be furnished with the plan, certifying that either:

The initial period has expired or
That the original developer still owns all lots in the scheme.

Note: If the initial period has not expired and at least one lot has been sold then a certified or office copy of an order made under section 182 of the Strata Schemes Management Act, 1996 authorising the registration of the plan should be lodged with the plan.

5. Lodge plan for registration at LPI (applicable lodgement fees will apply).The Certificates of Title for lots 1 and 2 and the Common Property should be produced in LPI to permit registration of the plan

6. Registration of the plan results in the desired car spaces forming part of the relevant lot. However as the plan does not resolve the ownership of the car spaces, reciprocal transfers from each of the lot owners of their former car spaces should be lodged with the plan.

Note: Transfers will require marking by the Office of State Revenue prior to lodgement in LPI

7. Any existing mortgage on the title of the two lots would also need to be addressed.

Less desirable alternatives to this would be for the lot owners to lease their car spaces to each other or to create reciprocal easements over each other’s car space. Neither of these actions would result in a change of ownership of the car spaces.

A resolution of the Owners Corporation is not sufficient to swap the car spaces and the Owners Corporation cannot create a By Law to swap car spaces that are parts of lots.

Our Property and Commercial team here at Attwood Marshall can answer your queries and assist you with this or any other issue you have with regard to your Strata Title Ownership. Contact an Attwood Marshall Lawyer today on 1800 621 071 or email cmartin@attwoodmarshall.com.au.

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Safety switches & smoke alarms – Are you currently complying? By Jacinta Bennett - Property Paralegal

Written on Friday, 4th November, 2011

Did you know every householder in QLD and NSW has a legal responsibility to keep their home safe, including the way it uses electricity? Or, if you own or run a business you are responsible for the electrical safety of employees and everyone else on your premises?

QLD:

In Queensland it is an offence under the Fire and Rescue Service Act 1990 if a compliant smoke alarm is not installed and under the Electrical safety regulation 2002, all domestic residences constructed since June 1992 must have an approved safety switch installed.

It is the seller’s obligation to notify the buyer, who has entered into a contract, whether compliant smoke alarms and safety switches are installed in the dwelling on the land. This can be disclosed in the electrical safety switch and smoke alarm section in the standard Queensland REIQ Contracts. If the Contract you have entered into is not the REIQ contract, then the seller’s representative will need to either insert a suitable clause in the contract or ensure written disclosure is made some time before the buyer takes possession. If notice is not given then the seller may incur a penalty of $500.00.

If it is noted on the Contract that a safety switch has not been installed then the buyer of the property must, within 3 months after the date of possession, have an approved safety switch installed for the general purpose socket-outlet (power points). Failure to do so may incur a penalty of $1,500.00.

NSW:

It has been noted by the NSW government that if you haven’t done so already, you should “seriously consider” installing an electrical safety switch. While it is mandatory in QLD it is only a consideration in NSW. In relation to the smoke alarms owners must have smoke alarms installed and it is an offence not to comply, remove or interfere with them.

In NSW a Contract is not binding unless it has the 2005 printed page with the warning of smoke alarms attached.

* If you already have a safety switch it is recommended that you test it every 3 months and if it fails get it checked by a licensed electrician.

* Smoke alarms should be tested monthly and the battery should be replaced annually.

Please contact us on 1800 621 071 if you require any further information in relation to the disclosure required to sell your property.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Importance of REIQ Annexure to PAMD Form 22a - Your Right to Commission depends on it! By Jeff Garrett - Legal Practice Director

Written on Friday, 21st October, 2011

We have previously considered the issue of the importance of real estate agents properly completing their PAMD Form 22a's:-

Entitlement to Commission - Are you the effective cause of the Sale?

Make sure you complete your PAMD Form 22a - Your commission may depend upon it!

Another area that is often overlooked is the right to Commission where a Contract is terminated either through the wilful default of the purchaser, by mutual agreement or where it is terminated within the cooling off period.

The Schedule document which is issued by the REIQ accounts for pages 5-9 inclusive of the PAMD Form 22a. Importantly, the suggested Schedule and form from the REIQ is not a prescribed form under the PAMDA legislation or regulations. However, if real estate agents wish to protect their right to commission in the event of a Contract falling over for whatever reason, it is very important that they attach the REIQ Schedule and have the sellers initial each page of the document. Pages 8 and 9 of the REIQ Schedule set out terms and conditions of the appointment of the agent and the agent's entitlement to commission. It also sets out the agent's entitlement to commission in the event of the Contract being terminated for whatever reason (this usually results in the deposit being forfeited to the sellers and, if this form is not completed, the agent may miss out on their entitlement to commission which is usually payable from the deposit monies).

There has been judicial authority that states that failing to annex the REIQ Schedule (and in particular pages 8 and 9 of same) is not fatal to a claim for commission - see the decision of Decker -v- Anderson and Griffiths [2008] QDC 283. However, that case was not specifically on point with respect to an agent claiming commission in the event of a Contract being terminated or rescinded by mutual agreement. The provisions of pages 8 and 9 of the REIQ Schedule specifically provide the agent with the contractual terms to ground a claim for commission in the various circumstances set out in paragraphs 2 and 12.

It is important to note the agent's entitlement to a termination penalty under clause 12 of the terms and conditions. This entitles the agent to a 50% share of the termination penalty in the event that the purchaser pulls out of the Contract in accordance with the cooling off provisions.

Of more importance to the agent, however, are the entitlements set out under paragraph 2.1:

(2) The client defaults under the Contract of Sale and that Contract is terminated by reason of or following that default; or

(3) The Contract of Sale is not completed and the whole or part of the deposit paid is liable to be forfeited; or

(4) The Contract of Sale is terminated by mutual agreement of the client and the buyer.

In these difficult economic times when the market is clearly in the doldrums, it is extremely important that real estate agents do whatever is necessary to preserve their claim for commission in the event that a Contract is terminated. This is particularly relevant in this market when there are a large number of Contracts that are being terminated for various reasons. Make sure you annex the REIQ Schedule and have the client initial all 9 pages!

If you have any questions or queries in relation to any commission disputes or any other issues, please do not hesitate to contact Christine Martin, our Property & Commercial Department Manager on 07 5506 8245 or cmartin@attwoodmarshall.com.au.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

Business and Commercial Transactions
Deceased Estates and Contesting Wills
Dispute Resolution and Commercial Litigation
Equine Influenza Class Action
Family Law and Divorce
Personal Injuries
Residential Conveyancing - Buying or selling your home or property
Telecommunications Class Action
Thoroughbred Breeding and Racing
Wills and Enduring Powers of Attorney

When is a Contract a Contract - By Christine Martin - Department Manager

Written on Friday, 14th October, 2011

Whilst most of us agree that a Contract is a written document, they do not always exist in a formal manner. It is not uncommon for Contracts both short and long term to be negotiated verbally without ever being formalised in writing. Whilst these can operate successfully, while relationships are flowing smoothly, they are a source of great uncertainty once disputes begin to emerge. At some point in time, if a party or parties to the arrangement experience changes in their situation ie relationship; financial; inability to perform his/her implied duties under the contract or death then a raft of problems may arise.

The undocumented conditions of a verbal Contract often create uncertainty as to exactly what terms have been agreed between the parties and in the event of unresolved disputes the parties may find themselves in Court to determine the terms of the verbal Contract.

Some of the points that may be examined by the Court in determining judgement could be:

surrounding circumstances, which include the history of the relationship between the parties
the conduct of the parties both before and after the time of Contract, which in itself may be the means by which the parties manifested their agreement
the original intentions of both/all parties in agreeing to the terms of the Contract. The Court will recognise a contract if it can be shown that by a certain point, the parties mutually agreed to a clear proposal which was intended to be binding

Ideally, parties should document the exact terms and conditions of the Contract noting their respective obligations and then commit them to writing before embarking on the arrangement.

Take note however that legislation precludes any verbal arrangement when proposing to transfer land and a written agreement is always required.

If you find yourself embroiled in a dispute regarding any implied/verbal or written Contract a member of our Commercial team at Attwood Marshall can help you to resolve the issues to achieve your best outcome. Our advice is to act quickly before the matter is out of hand, however, we can easily assess your situation and the clearest path forward in an initial appointment.

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Equine Influenza Class Action
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Telecommunications Class Action
Thoroughbred Breeding and Racing
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Mortgagees in New South Wales now have a new duty to take ‘reasonable care’- By Christine Martin - Department Manager

Written on Thursday, 6th October, 2011

November 1, 2011 marks the date when lenders exercising their power of sale over a property in New South Wales will be required to comply with amended obligations contained in the Real Property and Conveyancing Legislation Amendment Act 2009 (NSW), which amends the Conveyancing Act 1919 (NSW)

The Conveyancing Act will now require a mortgagee or chargee to take reasonable care in exercising its power of sale over property to ensure that the property is sold for:

Not less than market value, or
If there is no ascertainable market value, the best price that can reasonably be obtained in the circumstances

The obligation also applies to agents of the mortgagee or chargee, who are appointed to sell the property. Real estate agents or others appointed by the mortgagee/chargee may also be exposed to direct liability if the new obligations are not met.

Parties cannot contract out of their duty under the new amendments and it will apply to mortgagee sales arising as a consequence of a default after November 1, 2011, even if the mortgage was created before that date.

What are the differences between the existing and new legislation

Currently duties are imposed on mortgagees in NSW by the general law to act in good faith when exercising power of sale on property owned by individuals (as opposed to corporations) ie to act honestly and fairly on behalf of the mortgagor to not sacrifice the mortgagor’s interest in the property. Provided the mortgagee complies with this standard, it does not matter if they are negligent.

The new standard is similar to that imposed by S.420A of the Corporations Act, which applies when the mortgagee is selling the property owned by a corporation. It is anticipated that the Courts will rely on case law about S.420A when interpreting the new S.111A legislation.

We do not expect the new legislation to have a significant impact on the mainstream lenders as best practice for them, especially those operating nationally, has been to meet the standard set by S.420A for both corporate borrowings and borrowings by a natural person rather than to adopt different procedures for each.

The new legislation does not impose any obligation to sell the property at ‘market value’ or ‘best price’ but rather requires the mortgagee to take reasonable steps to obtain the best result, therefore the focus is not on the result achieved, but the efforts that are actually taken to try to achieve the best result for the mortgagee.

Important steps a mortgagee should include in taking reasonable care

Obtain a professional valuation: Mortgagees should obtain an up to date valuation from a qualified valuer with experience and expertise in the relevant market
Advertise the property: (where appropriate) – Mortgagees should endeavour to advertise the material details about the property (nationally or internationally where appropriate) to reach the largest possible group of potential purchasers
Leave the property on the market for a reasonable period: Allow enough time in the market to achieve the best result – this will usually involve allowing time to:

Advertise adequately and provide sale information to a reasonable number of prospective purchasers, and

Allow an inspection and assessment of the property by potential purchasers so that they are in a position to make offers or bids on the property

Sale by auction – This can often be the most appropriate way to achieve the market value

What will happen if the mortgagee breaches its duty under the Act

If a mortgagee breaches it duty under S.111A of the Act, a person who suffers loss or damage as a result of that breach can sue the mortgagee for damages. However (absent other factors that might permit the sale to be challenged, eg by a liquidator) a breach cannot be relied on as a ground to challenge the title of any purchaser from the mortgagee.

Business and Commercial Transactions
Deceased Estates and Contesting Wills
Dispute Resolution and Commercial Litigation
Equine Influenza Class Action
Family Law and Divorce
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Residential Conveyancing - Buying or selling your home or property
Telecommunications Class Action
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Conveyancing: Don`t be Rushed - By Barry van Heerden - Partner

Written on Friday, 30th September, 2011

We are all very much aware of the current state of the economy and the fact that it is harder than ever before to effect a conveyance.

Buyers find it difficult to obtain finance and must jump through all kind of hoops to satisfy their financiers who appear to take forever before finance is approved.

Sellers find it hard to get buyers and agents who spend long hours in trying to get buyers are equally anxious to finalise a deal.

In the middle of all the parties are the lawyers and/or conveyancers who must see to it that the deal settles.

The conveyancing team at Attwood Marshall Lawyers realise the importance of balancing the respective interest of all the relevant parties involved in a conveyance, especially the estate agent. We realise that everybody, and that includes Attwood Marshall Lawyers, want a speedy settlement and not a lengthy delay due to lawyers and/or conveyancers playing with semantics.

However, the conveyancing team at Attwood Marshall is retained by clients to look after and protect their clients' interest when they are buying or selling a property. Attwood Marshall will do whatever is required to settle the deal as quickly as possible but are not prepared to compromise our clients' rights purely for the sake of a quick settlement.

Buyers and sellers are entitled to proper legal advice and assistance and Attwood Marshall prides itself in providing these services to our clients. We do not believe in "cutting corners" and will not advise our clients to become a party to a rushed deal.

Buyers and sellers in general should be aware of the consequences in finalising a "rushed deal". The sale or purchase of a property is considered to be one of the 3 most traumatic events of life and the last thing you want is to have doubts after a settlement or even worse, when a deal turns into a mess after contracts are signed and/or exchanged in a hasty manner.

Rather, take your time, ensure it's the right decision, obtain proper legal advice and then rest assured you have made the right decision.

Should you require any further information on how we conduct a conveyance, please do not hesitate to contact us.

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Telecommunications Class Action
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Want to sell your NSW property ASAP? By Jacinta Bennett - Property Law Paralegal

Written on Wednesday, 24th August, 2011

Step by step guidelines to get your house on the market TODAY!

1. Appointing an agent:

The first step in selling your property starts with finding an agent, as there are numerous out there we recommend you do you research when selecting one. If you have difficulties doing so, we can certainly refer to you to a reputable agent.

2. Signing an Agency Agreement:

Once you have appointed an agent you will then need to sign an Agency Agreement with them. This is required by law to be signed by you, as the vendor and the agent before the property can be marketed etc. This agreement sets out the rights and obligations of both you and the agent and also identifies the details of the sale. Make sure you are aware of the term of the agreement as sometimes this will restrict you listing with another agent.

3. Notifying the agent of your Lawyer’s details:

It is important for vendors to notify their agent as soon as possible that they will be using Attwood Marshall as their lawyers. As soon as an Agency Agreement is signed then the agent should forward a copy through to us and we can then prepare your proposed sale Contract from the agreement provided.

4. Agency Agreement received by Lawyer:

Upon receiving the agreement, we will then contact you to confirm these details. We will also request the necessary funds from you to cover the contract preparation inclusive of searches required by law to be included in the Contract.

5. Preparation of Contract:

Within 24hrs from receiving the Agency Agreement and requested funds, the searches will be ordered and the Contract will be drawn and forwarded directly to the agent.

As soon as the agent receives the proposed sale Contract, then they are able to market the property immediately.

At Attwood Marshall Lawyers we endeavour to provide great service that is efficient and effective, which is why we provide a turnaround time of 24hrs from receiving the Agency Agreement to providing the proposed Contract to the agent.

Feel free to give us a call today to discuss the sale of your property.

Business and Commercial Transactions
Deceased Estates and Contesting Wills
Dispute Resolution and Commercial Litigation
Equine Influenza Class Action
Family Law and Divorce
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Electronic Conveyancing project begins 1 September 2011 - By Claire McLachlan - Property Paralegal

Written on Friday, 19th August, 2011

With the design phase of Australia’s e-conveyancing system due to be finalised by March 2012, e-conveyancing may be here sooner than you think!

Accenture and NECD Limited have signed the master agreement, appointing Accenture to design, build, test and deploy Australia’s National e-conveyancing system, which will be called PEXA (Property Exchange Australia).

Australia’s four major banks have signed conditional subscription and shareholders agreements to become shareholders of NEXDL and provide seed funding for the first development phase of the e-conveyancing platform.

It is expected that PEXA will commence commercial operation in early 2013.

Attwood Marshall Lawyers are excited about the prospect of the Conveyancing process becoming completely electronic and furthering our efforts to have a paper-less office.

Information taken from http://www.nationaleconveyancing.com.au/newsandupdates

Business and Commercial Transactions
Deceased Estates and Contesting Wills
Dispute Resolution and Commercial Litigation
Equine Influenza Class Action
Family Law and Divorce
Personal Injuries
Residential Conveyancing - Buying or selling your home or property
Telecommunications Class Action
Thoroughbred Breeding and Racing
Wills and Enduring Powers of Attorney

QLD legislative update on neighbourhood fencing disputes – By Tia Haynes - Lawyer

Written on Friday, 19th August, 2011

Disputes over dividing fences between neighbours (adjoining land owners) are extremely common. It may therefore be of interest to many to know that the legislation in this area is currently undergoing change.

On 10 August 2011, the Neighbourhood Disputes Resolution Bill 2010 (QLD) received assent. The new Act repeals the existing Dividing Fence Act 1953 (QLD).

Although the new Act will not commence until a date to be fixed by proclamation, we take this opportunity to outline the more important aspects of the Act in relation to dividing fence disputes. We will provide further notification by way of blog once the new Act commences.

What will the new Act do?

The Act seeks to regulate the responsibilities of neighbours (adjoining land owners) with regard to both dividing fences and trees.

What is most important to note with regard to dividing fences?

The new Act provides that:

Dividing fences are owned equally by owners of a common boundary;
Even where land is vacant, in the event that one adjoining owner requests a dividing fence, there should be a “sufficient” dividing fence;
Adjoining owners are equally responsible for the cost of a dividing fence (though extra will be payable by one owner if they request more work to be done that the minimum);
Heights and fencing materials are prescribed;
New forms are applicable, including a Notice to Contribute to Fencing Work; and
QCAT (Queensland Civil and Administrative Tribunal) has jurisdiction to make orders with regard to dividing fence disputes.

If you are experiencing a neighbourhood fencing dispute, or require further information in this area, please contact Christine Martin on 1800 621 071.

Business and Commercial Transactions
Deceased Estates and Contesting Wills
Dispute Resolution and Commercial Litigation
Equine Influenza Class Action
Family Law and Divorce
Personal Injuries
Residential Conveyancing - Buying or selling your home or property
Telecommunications Class Action
Thoroughbred Breeding and Racing
Wills and Enduring Powers of Attorney

NSW First Home Buyers Benefits – By Tia Haynes - Lawyer

Written on Thursday, 11th August, 2011

Although most people are generally aware of the first home buyer’s grant and duty concessions/exemption for properties purchased in NSW (including houses and vacant land in which a first home will be built), it seems that many are unsure as to the finer detail surrounding these benefits.

Here we attempt to answer some of the more important questions surrounding the first home buyer’s benefits. Should you have any further questions however, please contact us and we will be more than happy to assist you with your query.

How much is the grant and is there a cap on the purchase price?

The NSW First Home Buyer’s grant is currently $7,000.00 for eligible purchasers. Although there is no income or asset test to qualify for the benefits, the purchase price of the property is relevant (“cap”).

On 1 January 2011 the relevant cap was amended from $750,000.00 to an increased cap of $835,000.00. This is quite a significant increase benefiting those first home buyers considering properties in the upper level price range.

Please note however that the previous cap of $750,000.00 still applies where the contract is dated between 1 January 2011 and 31 December 2010. Contracts dated prior to 31 December 2010 are not subject to a cap.

Unfortunately a “sliding scale” does not apply, and a purchase price greater than $835,000.00 will disentitle an applicant to obtaining the grant or the duty exemption.

Is there eligibility requirements for the First Home Buyer’s grant?

In order to obtain the FHB grant, in addition to the cap amounts discussed above, an applicant must satisfy the following criteria:

The applicant must be a natural person and not a company or trust;
The applicant must be a permanent resident or Australian citizen;
The applicant must be 18 years of age;
The applicant (and/or their spouse including de facto spouse) must not have owned a residential property (including jointly, separately or with some other person), in Australia before July 2000;
The applicant (and/or their spouse including de facto spouse) must not previously have owned a residential property (including jointly, separately or with some other person), in Australia and occupied that property for more than six months continuously;
The applicant must enter into a contract for the purchase of a home or signed a contract to build a home on or after 1 July 2000 (or in the case of an owner-builder, laying of the foundations commenced on or after 1 July 2000);
The application (or their spouse including de facto spouse) must not have receive a grant under the First Home Owner Grant Act 2000 in any State or Territory (unless subsequently repaid) previously; and
The property must be occupied as the applicant’s principal place of residence for a continuous period of six months, commencing within 12 months of settlement or construction of the home.

Will I have to pay stamp duty as a First Home Buyer?

The First Home Buyers benefit provides First Home Buyers with various duty incentives, depending on the purchase price, and include:

Duty incentive for houses:

Exemptions on stamp duty up to a purchase price of $500,000.00; and
Concessions on stamp duty on homes priced between $500,000.00 and $600,000.00

There is no discount of duty for a house with a purchase price greater than $600,000.00

Duty incentives for vacant residential land on which a first home will be built:

Exemptions on stamp duty up to a purchase price of $300,000.00; and
Concessions on stamp duty on land priced between $300,000.00 and $450,000.00

There is no discount of duty for vacant land with a purchase price greater than $450,000.00

Are there eligibility requirements for the duty concession/exemption?

In order to obtain a stamp duty exemption/concession on your first home purchase, you must meet the eligibility requirements below:

The whole property must be being purchased;
Residency requirements the same as above (that is, the property must be occupied as the applicant’s principal place of residence for a continuous period of six months, commencing within 12 months of settlement or construction);
The applicable must be an ‘eligible purchasers’, meaning that the applicant is a natural person at least 18 years of age and they have not (and their spouse/de facto spouse) has not:

It is worth mention that in the event that there are more than one purchaser, an eligible purchaser may still be eligible for a duty concession under the First Home Plus One (see below), even if the other Purchasers are not considered eligible purchasers.

What is the First Home Plus One?

The First Home Plus One benefit provides a duty concession to an eligible purchasers who purchase property with other purchasers who are not eligible First Home Buyers..

To qualify, the eligible purchasers must purchase at least 50% cent of the property. The value limits and other eligibility criteria of First Home Plus apply, and the stamp duty will be calculated based on the share of the property obtained.

Please note that if the first home buyer’s spouse has ever claimed a benefit under the First Home duty concession/exemption, they will not be entitled to claim under the First Home Plus One benefit.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

QLD Building Boost Grant Available - By Barry van Heerden - Partner

Written on Thursday, 4th August, 2011

From 1 August 2011 the Queensland Government is providing a "Building Boost Grant" up to $10,000.00 to buy or build a new house in Queensland.

This grant will only be available until 31 January 2012.

The requirements to apply for the grant are the following:-

1. An individual over the age of 18;

2. Any corporation or trustee which is substantially Australian owned;

3. You must either:-

(a) enter into a contract to purchase a new home;

(b) enter into a building contract to construct a new home; or

4. The consideration paid for the property must be less than $600,000.00.

5. The home must be occupied for at least 3 months in the first year of you owning the home. It may be occupied by you, a family member or rented to a tenant.

It is also good to know that you will qualify for the Building Boost Grant in addition to the First Home Owners Grant and the First Home Concession. This means that if you are a first home owner, you may qualify for up to $17,000.00 to buy a new home.

Application forms are available on the Qld Building Boost Grant website which sets out the process to follow when applying for the grant.

Should you require any assistance and/or more details in relation to this please contact our office.

Queensland Stamp duty Home Concession ending 30 July 2011 – Hurry in to sign your Contract today!! - By Jacinta Bennett - Property Law Paralegal

Written on Friday, 22nd July, 2011

Are you currently in the market to purchase property in Queensland? Do you intend to move into the property as your principal place of residence within 1 year of purchasing and intend to live in the property for at least 1 year?

If yes, then you are eligible to claim the Queensland Home Concession. This concession provides the purchaser with a discount on stamp duty payable to the office of State Revenue, but it is now only available to purchasers who have signed a Contract before 31 July 2011.

Example – if a purchaser signs a dated Contract by 31 July 2011for $400,000.00 and claims the home concession then stamp duty will be $5,250.00. If the Contract is dated 1 August 2011 then the stamp duty will be $11,825.00. That is a saving of $6,575.00!

From 1 August 2011 the home concession will no longer be available and all buyers will be charged the full stamp duty rate whether you intend to live in the property or not.

However if it is your first home then the usual first home exemption is still available.

At Attwood Marshall Lawyers, we are always happy to go through your Contract with you and provide free pre signing advice.

So hurry in today to get your Contract signed before you miss out!

Recent NSW Conveyancing Appeal judgement serves as an important reminder from practitioners to correctly deal with contract amendments - By - Tia Haynes - Property Law Lawyer

Written on Thursday, 21st July, 2011

The recent NSW Court of Appeal decision of Hoarse v Staunton[1] acts as an important reminder to take post-exchanged contract amendment extremely seriously and to be aware of the legal implications where one neglects to do this. Although the Court of Appeal decision focuses on the legal issue of breach of warranty of authority to act (of the Purchaser’s solicitor), Young JA conveys concern for Contract amendment post exchange.

The facts of the case are such that the Contract for the Sale of Land was initially drafted with the wife as Purchaser (Vanessa Pallister). Her name was subsequently crossed out and the husband’s name (Mark Pallister) was put in its stead. Contracts proceeded to exchange. Later, the solicitors sought to add the wife’s name to the contract. A request was made to simply “amend the Contract” accordingly.[2]When the Contract did not proceed to completion, the Vendor sought to sue the Purchasers for damages. The husband was by this time bankrupt and therefore of no value as a defendant. The question therefore arose as to whether the wife was contractually bound by the Contract and could therefore be sued for damages.[3]

As Mrs Pallister had previously been successful on appeal that there had been no contract between the Vendors and herself, the Vendors sued the husband’s solicitor as defendant, alleging breach of warranty of authority to act for Mrs Pallister.

Although in obiter,[4]it is certainly worth acknowledging Young JA’s concerns (to which McColl JA agrees) that a “conveyancing solicitors would so easily agree with another solicitor’s suggestion that a contract should be amended by simply writing in the name of a second purchaser.”

He follows this by remarking that indeed he is not “sure what is meant by the simple request to “amend” the contract. Normally once a contract is made, it can only be “amended” formally by variation, rescission and replacement with a new contract or novation. Assuming that the solicitors intended a variation, complications arise when the variation is adding a party. What probably happens is that a new contract is made to replace the former contract.”

This case is also serves to highlight that solicitors, save in exceptional cases, have no authority to make a contract on behalf of a client[5](let alone a non-client). Young JA warns that “the Court expects that conveyancers will not take short cuts in conveyancing transactions without a full appreciation of what they are doing, ensuring that what they do will not cause loss to the client.”

It is also interesting to note Young JA’s reference to the somewhat misunderstood section 18(3) of the Duties Act 1997. He describes this section as a “red herring” and suggests that this “section has nothing to say about varying contracts. Before the section, if there was a transfer by direction or the like, a second lot of ad valorem duty may have been payable. The subsection operates so that, in cases within it, that duty is reduced to a nominal amount”. Most importantly, he states unequivocally that “the section does not alter the effect in the law of conveyancing of either contracts or transfers”.

Young JA advises that whilst variations of contracts are permitted, complications arise when the variation is adding a party, and that in situations like this, a new Contract should be entered into to replace the former Contract.

The resulting message that can be taking away from this case is that conveyancers and solicitors should take great care where contract amended is required. Once a contract is made, it should only be amended formally by variation, rescission and replacement with a new contract, or, novation. Further, where the contract amended involves amending parties to the contract, whether that be adding or deleting, upmost attention must be paid.

[1][2011] NSWCA 139.

[2]whether there was actual authority to act on behalf of the wife and subsequently contract on her behalf was the crux of the case, but will not be focused on here.

[3]The wife successfully denied at trial and on appeal that the husband’s solicitor has her authority to contract on her behalf.

[4]This case focused on an action against the husband’s solicitor for breach of warranty of authority to act.

[5]Pianta v National Finance & Trustees Ltd [1964] HCA 61.

Queensland Landholder Duty to apply from 1 July 2011 - By Christine Martin

Written on Friday, 8th July, 2011

Queensland has announced that its land rich duty model will be replaced with a Landholder Duty Model from 1 July 2011

Landholder Duty will apply as follows under the proposed amendments:

Acquisition of 50% or more of an unlisted company which holds 2 million dollars or more of land in Queensland
Acquisition of 90% or more of a listed company or trust holding 2 million dollars or more of land in Queensland

Under these amendments the 60% threshold test is removed for unlisted companies, therefore takeovers and schemes of arrangement where the entity acquired holds any interest in land in Queensland could attract payment of duty.

The new model will apply to agreements entered into after 1 July 2011 to purchase or acquire shares in a company or units in a trust that holds land. The date of entering into the agreement and the actual completion of the transaction are important considerations when determining whether duty is payable and the amount of said duty ie

Where an agreement is entered into before 1 July 2011 and the subject of the purchase or acquisition was not a land rich entity under the current definition however will be at the time of completion of the transaction, and
Where shares or units are purchased or acquired in a landholding entity after 1 July 2011, any acquisition of shares or units in the landholding entity made before 1 July 2011 are included when determining whether the purchaser/acquirer has made a relevant acquisition. Unlike some other states, in Queensland, these earlier acquisitions will not be included in the calculations to determine the amount of duty payable.

The new model will apply to takeovers of publicly listed landholder companies or unit trust schemes. Current land rich provisions generally only apply in Queensland to takeovers of unlisted companies.

Landholder duty will apply to the unencumbered market value of landholder’s property at a rate of 5.25% for unlisted companies and a rate of 0.525% for publicly listed companies or unit trusts.

The Community Ambulance Cover Levy Repeal and Revenue and Other Legislation Amendment Bill 2011 (Qld) containing the proposed amendments was introduced to the Queensland Parliament on 14 June 2011.

New South Wales & Queensland (Gold Coast Lawyers) - Office of State Revenue Forms By Jacinta Bennett - Property Paralegal

Written on Thursday, 30th June, 2011

Why it is important to complete them correctly?

The Office of State Revenue (OSR) is a government organisation that administers state taxation which includes duties, payroll tax and land tax.

Whether you are receiving a duty exemption or concession for purchasing a property, applying for the First Home Grant or just completing a Land Tax Assessment form you should first check you are eligible to apply for such exemption/concession etc. If applicants receive an exemption or duty concession when they are not entitled to, interest and penalties may be imposed by OSR.

You should then carefully read each page thoroughly and complete every question that is required. If there are questions that are not applicable to your situation then mark a line through them or write “not applicable”. Never leave any spaces blank as this can result in your form being rejected or requisitioned.

If there are any alterations made to the form make sure you initial next to the alteration so that it is clear you have made this alteration.

Some forms require your signature to be witnessed by a qualified witness ie Statutory Declaration. Details of qualified witnesses are set out on the forms however, some examples are a Solicitor, Justice of the Peace or Commissioner for Declarations. It is important that you complete the form correctly before signing and you must sign in the presence of your qualified witness.

Supporting documents:

Certain forms require supporting documents for example, certified copy of the applicant’s Birth Certificate. If you are unable to provide any of these documents OSR will then determine whether or not your application will be successful, however in NSW it is mandatory that a certified copy of your Birth Certificate is provided.

NB: It is a criminal offence to provide false or misleading information to OSR and if determined that an applicant has deliberately done so, then prosecution action may be commenced.

Attwood Marshall congratulates our newest partners - Chris Clarke and Barry van Heerden

Written on Thursday, 30th June, 2011

We’re delighted to announce that Chris Clarke and Barry van Heerden have both received a well-deserved promotion from senior associate to partner here at Attwood Marshall Lawyers - Gold Coast.

Chris specialises in all aspects of NSW and QLD personal injury law whilst Barry practices in QLD and NSW property and commercial law with focus on leases, buying and selling of businesses and property development.

Chris has degrees in Earth Sciences and Law from Macquarie University in Sydney and obtained NSW specialist accreditation in 2004 and in 2006 his work was credited by the Law Society being of an exemplary standard and his papers are now disseminated to other accredited specialists in NSW as an example of the proper standard required to be admitted to practice as an Accredited Specialist in his field of law.

Barry qualified as a lawyer in South Africa in 1986 where he practiced in commercial law till the end of 2001. In 2002 Barry and his family moved to Australia and in 2004 Barry completed a Graduate Certificate in Applied law which was necessary to get admitted as solicitor in Queensland. In 2006 Barry obtained his Masters in Law degree and became a Queensland law society mediator.

Chris and Barry`s skills and their combination of outstanding legal expertise make them both a real asset to Gold Coast based Attwood Marshall Lawyers. Chris joined us in 2000 and Barry in 2006 and it’s fantastic to see both are now on board as partners to help us progress the firm forward and in continually improving our services to our growing number of clients.

Congratulations Chris and Barry - WELL DONE!

If you would like to contact Chris or Barry on the Gold Coast - please click the profile links below.

Barry van Heerden

Partner - Property & Commercial

Chris Clarke

Partner - Personal Injuries

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Standard Conditions of the NSW Contract – beware of strata adjustments when acting for a Purchaser - By Tia Haynes - Property Commercial Lawyer

Written on Monday, 23rd May, 2011

When acting for a Purchaser of a strata property, it is generally assumed that outstanding strata levies will be paid by the Vendor from sale proceeds at settlement. However, accepting this general position without further investigation, may be somewhat careless.

Standard condition 23.6.1 deals with strata contributions that are not regular periodic contributions (such as a special levy), not disclosed in the Contract. Special levies are generally raised when there aren't enough funds in either the administrative or sinking fund to pay for an essential expense. Standard Condition 23.6.1 reads:

23.6 If a contribution is not a regular periodic contribution and is not disclosed in this contract-

23.6.1 the vendor is liable for it if it was levied before the contract date (unless it relates to work not started by that date), even if it is payable by instalments;

Significantly, the words in brackets are often overlooked, causing an unaware Purchaser to become liable for more than they bargained for. The critical wording in brackets, “(unless it relates to work not started by that date)”, provide that where a special levy (ie – not a periodic contribution) is levied prior to the contract date, but where work has not commenced at the date of contract, the Vendor will not be responsible for payment of this levy. In other words, the Purchaser will “inherit” the levy on settlement.

Special levies can often be quite hefty so it is important that a Purchaser is fully informed as to whether they will become responsible for any such levies on settlement. Investigation must therefore be made either prior to exchange of contracts or after exchange where the contract is conditional on the Purchaser obtaining a satisfactory body corporate report.

To ensure a Purchaser is fully informed, not just as to potential levies they will become liable for but also as to the nature of the body corporate into which they are buying , a comprehensive body corporate report should certainly be ordered.

Should the report detail the existence of a special levy, further enquiries must be made with the body corporate manager to make clear whether the work, the subject of the levy, has commenced.

It is also worth pointing out the specific wording used in Standard Condition 23.6.1. The said Standard Condition refers to work being “commenced” rather than “completed”.

As time and cost are involved in obtaining a body corporate report, the time at which to order the report is also relevant. Until a contract is exchanged it is not binding on the Parties and therefore a Purchaser should be cautious when expending money on searches that may become irrelevant in the event that the Vendor enters into a contract with another Purchaser. The Vendor is not obliged to compensate a potential purchaser for any money expended on searches in this case.

Therefore, a Purchaser should enter into aContract made subject to asatisfactory body corporate report, prior to ordering the body corporate search. This will allow them to rescind the Contract in the event that the report is not satisfactory. Similarly, the Purchaser’s solicitor should ensure that the “subject to” clause is not restrictive in nature and allows the Purchaser to rescind the Contract in the event that the report details levies for which the Purchaser will become responsible for if the Contract proceeds to settlement.

Should the report reveal that special levies are not payable by the Vendor on settlement, the Purchaser has several options (where the correct special condition is inserted into the Contract as detailed above). The best option is to negotiate an adjustment to the purchase price for the value of the levy. If the Vendor refuses to negotiate, the Purchaser then has the choice to rescind the contract or proceed with the Contract on the understanding that they will be responsible for the outstanding levy.

Although the Purchaser may ultimately find they will be responsible for the special levy, they will be fully informed proceeding with an unconditional contract and can plan and make provision for the cost of the special levy.

If you require any further information and/or advice in relation to buying or selling your property please do not hesitate to contact our property and commercial department manager Christine Martin on 07 5506 8245 or cmartin@attwoodmarshall.com.au.

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“Another Purchaser” Backfires on Agent - By Barry van Heerden - Senior Associate

Written on Wednesday, 11th May, 2011

“There is another Purchaser. You will have to make an unconditional higher or better offer.”

These were the words uttered by an Agent to a Purchaser who then signed a Contract of Purchase of Real Property based solely on the statements made by the Agent.

Personal guarantees were also provided for the performance of the Purchaser.

Due to some non disclosure issues, the Purchaser did not settle on the settlement date and the Vendor commenced proceedings in which it sought specific performance of the Contract.

During the proceedings the Purchaser took the point that it was basically “forced” to sign the Contract due to the statements made by the Agent. The Vendor admitted there was no other Purchaser nor was there any need for the Contract to be unconditional.

The Victorian Supreme Court held that the statement by the Agent was misleading, deceptive and false. Subsequently the Contract entered into was void and all monies paid by the Purchaser were to be refunded to him with interest.

Even though this was a Victorian case, all Agents should be careful not to put pressure on Purchasers to enter into a Contract or to make a higher unconditional offer when there is no reason to do that. It may well be that a Vendor who suffers damages as result of a Contract being declared void because of untrue statements made by an Agent will have a claim against the Agent.

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Are the Liabilities of De- Registered Company really "Dead and Buried"? By Zoë Brereton - Property Commercial Lawyer

Written on Wednesday, 11th May, 2011

Often the advice to a client with a dormant company with outstanding liabilities is to voluntarily deregister the company, usually on the grounds of cost, and in the belief that it completely ends that company’s existence.

However, such advice is often given without a full appreciation of the provisions of Corporations Act 2001 (“Act”), because it ignores the fact that a company that has been voluntarily deregistered can easily be re-registered.

A number of recent cases in the Federal Court have illustrated the Commissioner of Taxation’s willingness and ability to reinstate previously deregistered companies, where those companies have had substantial amounts due to the Australian Taxation Office. The effect of this can come as a shock to those who believe that the liabilities of a deregistered company are ‘dead and buried’.

The Act allows a company to be voluntarily de-registered if the following criteria are satisfied:

all the members of the company agree to the de-registration;
the company is not carrying on business;
the company’s assets are worth less than $1,000;
the company has paid all fees and penalties payable under the Act;
thecompany has no outstanding liabilities; and
the companyis not a party to any legal proceedings.

A director or member of the company, amongst others, can initiate the process. If a company is de-registered, it is a statutory requirement that the directors of the company immediately before de-registration must keep the company’s books for 3 years after de-registration, with potential criminal ramifications if the books are destroyed in that time.

However, the Act also provides that a company can be reinstated by the Court if a person has been aggrieved by the de-registration, and the Court is satisfied that it is just that the company’s registration be reinstated.

Even if there is clear evidence that a company does not possess any assets to meet an outstanding claim for income tax liabilities this will not deter the Commissioner pursuing the re-registration of a company, and invariably, the Court will order the company to be reinstated.

The reason why the Commissioner seeks to reinstate companies where there is an outstanding taxation liability is so that the Commissioner can immediately place the company back into liquidation and appoint a liquidator to the company. Although a company’s resurrection only to immediately put it to death yet again seems counter-intuitive, the Courts have said it is in the public interest to do so, because it allows the provisions of the tax law and the Act to be properly followed. Furthermore, where outstanding taxes are owed, the Commissioner should not be deprived of the opportunity to pursue the claim.

It is to be expected that a liquidator appointed to a re-registered company could be funded by the Commissioner to undertake the usual duties that a liquidator undertakes when a company is placed under liquidation as soon as it is reinstated.

The types of duties that a liquidator must undertake are to:

establish that the company is insolvent;
determine when the company became insolvent;
investigate where there is potential insolvent trading claim against directors;
determine if there have been any preferential payments to creditors that may be recovered;
ascertain if company’s officers have committed offences under the Act; and
determine whether any recoveries could be made.

A liquidator has the ability to hold public examinations, seize books and records and gain access to property and detain persons relevant to the investigation. A liquidator also has the power to recover unreasonable related party transactions or preferential claims.

Each of these could be problematic for people who have deregistered a company with outstanding liabilities because when it is reinstated, a liquidator can then exercise powers to recover company property and to prosecute directors for potential offences under the Act.

In particular, if a company is reinstated, the company is taken to have continued in existence as if it had not been deregistered. A person who was a director of the company immediately before de-registration becomes a director again as from the time when ASIC or the Court reinstates the company. If it is determined that there has been insolvent trading, a director can be held personally liable for those liabilities.

Clearly, incurring taxation debts which cause a company to become insolvent, including as a corporate trustee, can also give rise to a director’s personal liability.

If you are aware of a company with outstanding tax liabilities you need to seek specialist taxation and solvency advice. Simply relying on what is commonly referred to as an “informal liquidation”, by relying on the de-registration provisions of the Act, is realistically not a viable option, unless the company truly has no present or contingent liabilities.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Jointly Owned Property – Your rights if there is a dispute!

Written on Friday, 8th April, 2011

Real property can be held in two different ways, namely, as joint tenants where two or more people own the property equally or as tenants in common where two or more people own the property together in equal or unequal shares and those shares are specified on the Certificate of Title.

In the event that one owner want to sell their share of the property but the other owner does not, what happens then??

In New South Wales – Section 66G of the Conveyancing Act 1919 allows an owner to make an application to the Supreme Court for a trustee to be appointed to sell the property. There are costs involved in making this application and these will increase in the event that the application is opposed.

In Queensland – Section 38 of the Property Law Act 1974 allows an application to be made by one or more of the co-owners to make an application to the Court for a trustee to be appointed to sell the property. Again, there are costs involved in bringing this application and these will increase in the event that the application is opposed.

In both states, the property will vest with the trustee appointed by the Court until it is sold at which time the proceeds of sale will be apportioned between the parties, after payment of the trustee’s fees, real estate agents fees, auctioneers fees (if applicable) and legal fees in transferring the property.

The other owner of the property may offer to purchase the property from the Trustee, however, this option should be explored before making an application to the Court for a Trustee to be appointed.

How to protect yourself from having to appoint a statutory trustee?

It is often the situation that you purchase a property with a friend or family member and due to the nature of your relationship with that person you do not enter a formal agreement with them. When looking at purchasing property with another person, it is important to consider the following issues:

Are all parties aware of their obligations in relation to the payment of outgoings?

If you own the property as joint tenants, upon your death your share in the property will pass automatically to the surviving owner.

If you own the property as tenants in common, upon your death your share will be distributed in accordance with your Will.

What will happen if your circumstances change and you need to sell your share of the property but the other owner doesn’t want to?

A simple partnership agreement can resolve a number of issues that may arise in the future between the parties. It will outline both parties rights and obligations in relation to the payment of outgoings and will also detail the options available if one party wants to sell their share in the property.

For more information please contact an Attwood Marshall Lawyer today on 1800 621 071.

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Landlords: Be careful how you increase your rent - by Barry van Heerden - Senior Associate

Written on Friday, 8th April, 2011

All Leases contain rent review clauses which specify how the rent will be increased on each anniversary date of the Lease.

Some Leases contain clauses that specify the rent will increase by either fixed percentage or CPI but on the condition that the new rent will not be less than the current rent paid by the lessee under the Lease.

These kinds of clauses in Retail Shop Leases are now void. On 24 March 2011 the Queensland Parliament passed amendments to the Retail Shop Leases Act which makes a ratchet provision in a Retail Shop Lease void.

The definition of a "ratchet provision" is the following:-

Any provision in a Retail Shop Lease to the extent that the provision:

Prevents or enables the lessor or another person to prevent the rent decreasing under a rent review; or
Limits or specifies, or allows the limitation or specification of the amount by which the rent may decrease under a rent review; or
Prevents or allows the avoidance of the rent review by the lessor or another person for a purpose mentioned in paragraphs (a) or (b) above.

These amendments are only applicable on Leases entered into after 24 March 2011.

Landlords must also keep in mind that a Retail Shop Lease cannot contain clauses which make provisions for the higher of two different formulas that may be applied to determine new rent. If a Lease contains such a clause, the lessee is entitled to choose which formula must apply to increase the rent and the landlord will have no choice but to accept the formula chosen by the lessee.

We recommend landlords review their Leases to ensure the rent provisions fall within the Retail Shop Leases legislation and lessees to check their Leases to confirm their rent increases are in terms of the legislation.

Should you require any assistance in any leasing matters please do not hesitate to contact Property and Commercial Department Manager, Christine Martin on 07 5506 8245 or email cmartin@attwoodmarshall.com.au..

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Funding for Environmental Upgrade - By Barry van Heerden - Senior Associate - Attwood Marshall Lawyers

Written on Wednesday, 30th March, 2011

Building owners now have the opportunity to do environmental upgrades to their buildings with local Councils providing security for any funds required for the upgrade.

On 18 February 2011 the Local Government Amendment (Environmental Upgrade Agreements) Act 2010 (NSW) commenced in terms of which a new system to secure lending for energy efficiency improvements to buildings was introduced. Buildings that qualify under the legislation are commercial, industrial or strata buildings of at least 20 strata lots.

Funding is not always available for major long term upgrades to buildings. These upgrades may include heating, ventilation lighting and cooling systems.

The new legislation provides for an Environmental Upgrade Agreement to be entered into between the building owner, the financier or lender and the relevant local Council.

The local Council will provide security for the loan and will levy an environmental upgrade charge against the rateable land. This charge is similar to paying rates and all monies paid to the Council under the charge will be paid to the lender by the Council.

The Council has the same rights to recover the levy under the Environmental Upgrade Agreement as it has to recover rates and other charges. However, it must be noted that the Council will not be liable to pay any outstanding amounts to the lender.

Most commercial leases contain clauses stating the lessee should pay a portion of the landlord's outgoings. It is however important that the definition of "outgoings" in the lease makes provision for the payment of a "new" or "future" tax, otherwise landlords may not be able to recover the new charge from tenants. The legislation provides that a new lease may contain a term that the lessee must contribute towards the payment of an environmental upgrade charge.

Lenders may now be more willing to provide loans to building owners with the ultimate effect to improve energy efficiency in buildings.

Should you require any further information in relation to the above you can either contact our offices or your local Council to discuss entering into an Environmental Upgrade Agreement.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Entitlement to Commission - Are you the effective cause of the Sale? By Jeff Garrett – Legal Practice Director – Attwood Marshall Lawyers

Written on Wednesday, 30th March, 2011

You have signed up a client to sell their property, your PAMDA Form 22a has been signed, you have your signs on the property and you "introduce a buyer" (you show them the property but nothing happens as a result of the inspection). You only have an open listing but some months later you find out that the buyers that you introduced have now entered into a Contract for the purchase of the property. You cannot obtain a copy of the Contract from anyone and you are unsure as to what has transpired between the buyer and the seller. The seller will not return your calls and has told you that the buyers were introduced by someone else. You smell a rat but have no hard evidence to assist you in establishing that the buyer bought the property on the basis of your introduction (your calls to the buyer are not answered. Indeed, you receive a threatening letter from their solicitors warning you not to contact them any further).

You have probably all had a similar situation occur and some of you may even have issued letters of demand or even instituted legal proceedings to recover your commission. Unfortunately, despite the fact that you have been appointed as the seller's agent and have done all the right things to ground your entitlement to commission, there are still ways for the sellers to wriggle out of paying you commission.

Are you the effective cause of the sale?

As you know, it is not sufficient that you are appointed as the vendor's agent of the property sold (PAMDA Form 22a). Furthermore, it is not sufficient that you have "introduced" the purchaser to the vendor which results in a subsequent contract. It is well settled that it must be established that the agent was "an effective cause of the sale". The agent also bears the onus of proving that he/she was ‘the’, or, "an" effective cause of the transaction. The agent must also show that "his/her efforts continued to influence the purchaser in its eventual decision to buy". There is a most useful summary and discussion of the issues concerning an agent's entitlement to commission in the case of Emmons Mt Gambia Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117. This was a decision of the Supreme Court of NSW (Court of Appeal) and is often cited in disputes over commission. Although this case involved a second agent becoming involved and concluding the sale, it is instructive in relation to the issues that must be proved to found a claim for commission.

A point often overlooked in these cases is that the agent bears the onus of proof in proving that he or she was the effective cause of sale. This means that the agent must come up with the evidence to establish their claim to commission. Quite often the agent's case will depend upon the evidence provided by the purchaser. The purchaser must give evidence to the effect that it was the agent who firstly introduced them to the property and that it was through the agent's ongoing efforts and influence that led them to entering into the Contract to purchase the property. In the real world, if a purchaser and vendor have got together in an attempt to defeat an agent's claim for commission, it is most unlikely that a purchaser will volunteer this information on behalf of the agent. Many agents will have stories of vendors and purchasers colluding in order to defeat a claim for commission.

Whilst the court can draw inferences from certain facts, ultimately the agent must prove their case and have sufficient evidence to show that he or she was the effective cause of the sale.

Unfortunately, in the cases where the evidence that might be given by the purchaser is unknown or they are completely uncooperative, it is very difficult to provide any meaningful advice to an agent in relation to their prospects of success in recovering the commission through the courts. Sometimes in the absence of this information, your chances are no better than 50/50. In other cases, it is simply unknown what has transpired between the parties which led to the sale occurring and if the parties are uncooperative, you must bring an expensive application to the court to obtain this information before you can even make a decision or get any meaningful advice as to whether you have a solid claim or not.

It is often thought that if a significant period of time elapses between when the agent made the introduction and the eventual sale or where there is a significant change in the purchase price that either or both of these matters will be sufficient to defeat any claim for commission. This is not the case. There are many ingredients that form claims for commission and you should ensure that you obtain proper legal advice in relation to these issues before abandoning any claim for commission.

If you require any further assistance with this issue please do not hesitate to contact our Property & Commercial Department Manager Christine Martin on direct line 07 5506 8245, email: cmartin@attwoodmarshall.com.au.

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Service of Court Documents via Social Networking Websites by Alica Bradford - Attwood Marshall Lawyers

Written on Tuesday, 29th March, 2011

It appears that Australian courts are beginning to recognise social networking sites as a practical way of communication.

MKM Capital Pty Ltd v Corbo & Poyser (Unreported, ACT Supreme Court, Master Harper, 12 December 2008)

The defendants failed to keep up with repayments on a loan owing to MKM Capital Pty Ltd (“MKM”). The defendants did not make an appearance at the hearing, and MKM obtained default judgement for the value of the loan amount and possession of the defendant’s house. Despite numerous attempts at personal service, MKM were unable to serve the default judgement notice on the defendants.

MKM applied to the court applied to the court for an order for substituted service. Rule 6560(3) of the Court Procedures Rules 2006(ACT) provides that a court can make such order if it is satisfied that:

it is impracticable, for any reason, for the document to be served in the authorised way; and
the alternative way is reasonably likely to bring the document to the attention of the person to be served.

MKM submitted that it was impractical that service be effected in the authorised way and that an alternative way of service via Facebook would bring the documents to the defendants’ attention. MKM led evidence that:-

the dates of birth and email addresses displayed on the Facebook profiles matched the 2 defendants; and
the ‘friend’ list on the Facebook profiles showed that each of the 2 defendants were friends with the other.

On the basis of this evidence the court found that it was reasonably likely that the document would be brought to the defendants’ attention and ordered substituted service of the default judgement be effected by sending a private message to the defendant’s Facebook page informing the entry and the terms of the notice.

Citigroup Pty Ltd v Weerakoon[2008] QDC 174

In an earlier decision, the Queensland District Court reached a decision that Facebook was not a suitable method of serving court documents. The reasons for that decision were:-

the uncertainty of the Facebook page;
the fact that anyone can create an identity that could mimic the true person’s identity; and
the court not being satisfied that the person who created the Facebook page was indeed the defendant.

First Writ Served on Twitter – British High Court

On 1 October 2009 the British High Court ordered its first injunction via Twitter, stating the social website and micro-blogging service was the best way to reach an anonymous “Tweeter” who had been impersonating the Donal Blaney on the micro blogging site, Twitter.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Make sure you complete your PAMD Form 22a - Your commission may depend upon it!

Written on Thursday, 17th March, 2011

A recent judgment of the District Court of Queensland in Brisbane (11 November 2010) has reiterated the strict way in which PAMD Form 22a's are construed by the courts if there is a dispute between the vendor and the agent concerning payment of commission.

In the case of Yong Internationals Pty Ltd v Gibbs & Ors [2010] QDC423, Judge Samios dismissed the plaintiff agent's claim for commission and held that the PAMD Form 22a was invalid. The agent had failed to complete the section entitled "how this service is to be performed". This would appear to be the equivalent of clause 4.1.1 of the standard PAMD Form 22a which is usually headed "performance of service". It is not uncommon for this section of the 22a to be left blank.

This recent decision was thought to take any discretion out of the equation for courts when they consider a Form 22a which has sections that have not been completed. This is not the case. The case merely restates the previous views of the court that unless there has been ‘substantial compliance’ with the Legislation, the Form 22a will be non-compliant, and therefore unenforceable.

In a previous case in the District Court of Queensland of Decker v Anderson & Anor [2008] QDC283, there was a similar defect in the agent's Form 22a. Although Section 4.1 of the form had not been completed, information that was missing could be gleaned from other sections of the form and the court held that, on this basis, there was ‘substantial compliance’ with the legislative requirements and the Form 22a was held to be enforceable.

Both cases trace back to a Supreme Court decision of Active Property Marketing Services v Joelco Pty Ltd [2007] QSC167 (13 July 2007). Although the remarks of the sitting Judge were obiter (i.e. not bearing on the decision), it was held that the failure to state ‘how the service was to be performed’ would render the Form 22a invalid and prevent the agent from recovering commission.

The most simple way to avoid getting into trouble with the validity of your PAMD Form 22a is to properly complete it! Although it may well be stating something very obvious when you are required to describe how you will "perform the service", if you don't complete this section or have this information somewhere else in the form, your claim for commission could well be in jeopardy. Furthermore, Section 140 of PAMDA provides that it is an offence for an agent to sue for or recover commission in circumstances where he or she has not been properly appointed in accordance with a validly executed PAMD Form 22a. The maximum penalty for a breach of Section 140 is 200 penalty units.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Handy Tips for Buying a Business

Written on Wednesday, 9th March, 2011

Thinking of leaving employment to buy your own business?

Consider these useful tips as food for thought:

Know what you are good at or could be interested in learning. If you can be passionate about a business then you will enjoy it more and in most cases make more money out of the business.
Establish how much you have to invest in a business; seek advice from your Accountant and Bank Manager. You must have a budget.
Prepare a cash flow budget of your personal expenses and the income that you need to maintain your lifestyle; again your Accountant can assist you. You must know what you need to earn from a business and understand that buying a business is not about buying a salary.
Meet with a Business Broker to discuss your requirements, learn about the current market and make sure that you can buy a business that suits your needs and your budget.
Have a good look around at what is available and educate yourself on the current market; similar to when you go looking for a house it takes at least a few weeks to understand price and value.
Ensure you consult your Accountant and Solicitor as to your requirements and structuring your entity to buy a business. All good business owners need a good Accountant and Solicitor.
When you find the right business for you then ensure you conduct, along with your advisors, a thorough due diligence.
If everything checks out then complete the purchase.
Either now or at some time during the process you need to prepare a business plan; this is an essential item for all good businesses. Again you may want to consult your Accountant or Business Advisor.

Here at Attwood Marshall we can assist you with contract approval before committing yourself to a business purchase. Once under contract, we can undertake the legal due diligence on your behalf and advise you on the process and documentation required to see the contract through to settlement.

If you require any further information and/or advice in relation to buying a business please do not hesitate to contact our property and commercial department manager Christine Martin on 07 5506 8245 or cmartin@attwoodmarshall.com.au.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Ensuring your Bank will release your property in time for settlement

Written on Wednesday, 2nd March, 2011

When you have entered into a contract to sell your property the next step is to contact the Bank or Banks who hold a current mortgage security over the property.

Many people think that when they have told their Bank that they are selling/have sold their property then the Bank will be ready to hand over the title deed when the time comes.

The Bank will generally not even commence the process of releasing/discharging its mortgage even when it receives written notification from your Lawyer that the property is sold and advising the anticipated settlement date.

In order for the process to commence you will need to personally complete the application and deliver/post the document to the Bank immediately the Contract is proceeding unconditionally. With the introduction of internet banking some Banks will now permit you to make the application through your secure internet banking connection.

If you have a line of credit type loan linked to your home loan it is imperative that you clarify the situation as to whether the card credit can remain in place even though the home loan will be discharged.

Many settlements are held up unnecessarily due to the fact that there has been miscommunication between the Bank and the Customer with regard to this type of facility.

Unfortunately the Lawyers involved in the conveyancing process usually bear the brunt of the blame for the delays experienced, when really it could have easily been avoided had the Customer been made clear of the Bank’s requirements in the first instance.

If you are unsure as to your position in this regard you should mention it to your Lawyer and let your Bank know that it is in order for it’s representative to discuss these aspects of your loan with your Lawyer so that your settlement can proceed as planned without any additional work, which may lead to higher fees.

Buying or selling property on the Gold Coast or Northern NSW? Ensure a smooth process with professional Qld Conveyancing Solicitors, Attwood Marshall.

With three offices conveniently located at Robina, Coolangatta - Tweed Heads and Kingscliff you can also visit an office near you.

Call us on 1800 621 071 to book your FREE, no obligation consultation today!

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

A reminder of the PAMDA changes that came into effect on 1 October 2010

Written on Thursday, 10th February, 2011

We receive many completed residential property sale contracts on a daily basis from real estate agents and many of those communications continue to include the direction to the buyer, or ourselves as the buyer’s agent, with the documents presented in a specific order.

The amendments to the Property Agents and Motor Dealers Act 2000 (PAMDA) changed the requirement for documents to be presented in a specific order and the direction requirements.

The new provisions came into effect on 1 October 2010. We have watched with interest if the new procedures have impacted on the process of preparing residential sale contracts and noted that the majority of real estate agents still use the old procedure when delivering contracts to us. We understand that agents are merely trying to protect themselves and do ‘the right thing’ but why jump through administrative hoops that are no longer required?

Agents should consider adapting their administrative procedures to be consistent with current legislation. It should be noted that the following changes have been made to the procedures:

1. Delivery of documents:There is no longer a prescribed order for the delivery of documents at either the proposed relevant contract stage or the relevant contract stage. However, it is logical to present those documents in the following order:

Warning Statement
Information Sheet pursuant to BCCM for the sale of a lot; and
Proposed relevant contract or relevant contract

No penalties or consequences will apply if the documents are not presented in the above order.

2. Direction to the buyer:The direction of the buyer’s attention to the Warning Statement, Information Sheet (if any) and the proposed relevant contract now only applies at the proposed relevant contract stage, i.e. when presenting the contract to the buyer for the first time for signing.

3. No continuing obligation to give the direction to the buyer:There is no requirement to keep giving the direction to the buyer where negotiations of the terms and conditions between the parties mean that the proposed relevant contract passes between the parties a number of times – so long as the direction was given to the buyer when the proposed relevant contract was first presented to the buyer. If the property or the parties were to change, then a new proposed contract has been prepared and a new direction is required in those circumstances.

4. More than one buyer:The requisite direction to the buyer need only be given to one of two or more buyers to be compliant. The agent does not have to give the direction to every named buyer.

No Change: There has been no changetothe requirement for all contracts to be securely attached together, preferably by stapling or binding, and not by bulldog clips or paperclips. Also, if sent by email or fax, the proposed relevant contract or relevant contract must be sent in a single email or a single fax.

If you require any further information about the changes, then we are happy to discuss those with you. Contact our property and commercial department manager Christine Martin on 07 5506 8245 or cmartin@attwoodmarshall.com.au.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

Residential Conveyancing

Step by step guidelines to get your house on the market TODAY!

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Thinking of leaving employment to buy your own business?

Consider these useful tips as food for thought:

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