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Estate Planning/Probate

Should I Make a Will?

Who can get a copy of the Will?

Who can make a family provision claim?

What is Notional Estate?

What is Probate and why do I need it?

What is a Statutory Demand, when should or should I not use one?

How Do I Serve a Document on a Corporation?

How to Obtain a Default Judgement?

How Do I Enforce a Judgement Against the Defendant?

What are the Features of a Charitable Trust?

What Damages are Compensable for Breach of Contract?

How do I Obtain an Apprehended Personal/ Domestic Violence Order?

I've been told my rights were subrogated to the insurer, what does that mean?

When do I need a written contract for Home Building work?

What is the potential benefit of a Notice of Intended Distribution in an Estate?

I want to install a dividing fence between my neighbours and my land, but my neighbours don't agree. What should I do?

Can I get a garnishee order against Centrelink income?

What is the legal test for production of subpoena material?

How has the Personal Property Securities Register (PPSR) affected Retention of Title (“Romalpa”) clauses in supply contracts?

The guarantor in a lease has just died. The Lessee company owes me money under the lease. Can I claim against the deceased's Estate?

How long do I have to file a Default Judgement?

What is the effect of the Evidence Amendment (Evidence of Silence) Act 2013?

Do I need a section 16 Certificate when I am exercising an Option on a Retail Lease?

Where do I find interest rates upon judgements?

What additional terms are prohibited from being added to a Residential Tenancy Agreement?

What are the identifiation requirements when acting for the mortgagee in a mortgage?

I am a real estate agent. I had an agency agreement with a vendor and introduced a prospective buyer to the property. The vendor changed agents and sold the property to the same prospective buyer. Am I entitled to claim commission?

I am selling my residential property and I have done work as an owner-builder. Do I need to attach a certificate of insurance to the contract?

I have inherited a property with a mortgage on it. Is the estate liable to discharge the mortgage first?

I have filed a statement of claim and the defendant has agreed he owes me the amount claimed. What do I do?

I don't like an assessment by the Office of State Revenue (OSR). What are my appeal options?

I own a yacht with a friend and we race it together on the weekends at the Royal Prince Alfred Yacht Club. I would like my sister to have my share in the yacht when I die. Can this be done?

 Who can get a copy of the Will?

In NSW, the law provides that certain people are entitled to obtain a copy of the will on the death of the Testator. It allows particular categories of people the right to inspect and obtain a copy of the will in accordance with specific sections of the law. These sections are not applicable when the person who made the will (the 'testator') is still alive. Only once the testator has died, are these people entitled to obtain a copy of the will. These particular people include any:

  • Person named or referred to in the will (whether as a beneficiary or not).
  • Person named or referred to in an earlier will as a beneficiary.
  • Surviving spouse, de facto partner, child, parent or guardian of the deceased person.
  • Parent or guardian of a minor referred to in the will.
  • Person who had been entitled to a share of the will of the deceased had died without a will.
  • Person (including a creditor) who has or may have a claim at law or in equity against the estate of the deceased person.
  • Person committed with the management of the deceased person's estate immediately before their death.
  • Attorney under an enduring power of attorney made by the deceased person.

A person who has possession or control of the will must allow these people to inspect the will, at their own expense. These people are entitled to inspect any earlier will or a document purporting to be a will.

Succession Act 2006 (NSW), s 54

Who can make a family provision claim?

In NSW, the decision to determine who receives the property stated in your will is restricted by the law. It provides the right to 'eligible people' to vary the terms of the will in order to access more property where they feel they have been left out or unfairly dealt with. These family provision claims allow these eligible people to claim more property from the will than they would have otherwise received.

In relation to who can make a family provision claim, the law specifies people who can apply to the Court for a family provision order in respect of the estate of a deceased person. These eligible persons include any:

  • Person who was the wife, husband, child or de facto partner of the deceased person at the time of death.
  • Former wife or husband of the deceased person.
  • Person who is a grandchild or was a member of the same household as the deceased person and at any particular time was wholly or partly dependent on the deceased person.
  • Person who lived with the deceased person and also received or provided the deceased person with domestic support and personal care. In other words, the person and the deceased had a close personal relationship.
  • Any child born as a result of sexual relations between the parties in a relationship or adopted by both parties, within a de facto relationship.

Succession Act 2006 (NSW), s 57

What is Notional Estate?

icon informationIn NSW, notional estate is a principle used to extend the deceased personal estate beyond those assets which are explicitly written in the will at the time of death. Notional estate can include property of the deceased which was transferred to another person within 3 years of the death of the deceased in certain circumstances. To be granted notional estate, the property needs to be designated by the court through a notional estate order.

Succession Act 2006 (NSW), s 80

What is Probate and why do I need it?

In NSW, before an estate can be administered, it is often necessary that probate has been granted. To obtain a Grant of Probate, the executor named in the Will must apply to the Probate Office of the Supreme Court. The will needs to be checked and information about the deceased person's assets and liabilities need to be verified. When the probate has been granted, all of the management of the deceased assets can be transferred to the executor. The executor can then act and deal upon the estate's assets.

There are cases however, where estates are quite simple and it is not necessary for the executor to obtain a grant of probate where the asset holder is willing to deal with the asset without probate. This might be when the asset is held under joint tenancy or the asset value is small. In this situation the executor might be exposed to liability in dealing with the assets without Probate.

The legal fees charged for a grant of probate in NSW are based on a scale set by the Supreme Court.

Probate and Administration Act 1898 (NSW), s 42

What is a Statutory Demand, when should or should I not use one?

A statutory demand is a demand served under s 459E of the Corporations Act 2001, and, if used properly, is a cost effective means of recovering debt from a company. A company will be presumed insolvent, if the company fails to comply with the statutory demand. A statutory demand can only be issued to a corporate debtor if:

There is no genuine dispute about the existence of the debts; and

  • The debts owed total more than $2,000 (refer to Corporations Act 2001 s 9)
  • A Statutory Demand should only be served where there is no genuine dispute about the existence or amount of the debt. McLelland CJ in Eq in Eyota Pty Ltd v Hanave Pty Limited, considered the meaning of genuine dispute where he said:

In my opinion that expression [genuine dispute] connotes a plausible contention requiring investigation, and raises much the same sort of considerations as the "serious question to be tried" criterion which arises on an application for an interlocutory injunction or for the extension or removal of a caveat. This does not mean that the court must accept uncritically as giving rise to a genuine dispute, every statement in an affidavit "however equivocal, lacking in precision,inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself, it may be" not having"sufficient prima facie plausibility to merit further investigation as to [its] truth"(cf Eng Mee Yong v Letchumanan [1980] AC 331 at 341), or "a patently feeble legal argument or an assertion of facts unsupported by evidence"; cf SouthAustralia v Wall (1980) 24 SASR 189 at 194.

But it does mean that, except in such an extreme case, a court required to determine whether there is a genuine dispute should not embark upon an inquiry as to the credit of a witness or a deponent whose evidence is relied on as giving rise to the dispute. There is a clear difference between, on the one hand,determining whether there is a genuine dispute and, on the other hand,determining the merits of, or resolving, such a dispute.

The Corporations Act 2001 places strict requirements on the form and wording of the demand. If the demand is written in unclear and ambiguous language, it places the demand at risk of being set aside. This would strip the creditor of the benefits received from the company being presumed insolvent.

A company may apply to the Court for an order to set aside a statutory demand served on the company. An application can only be made within 21 days after the demand has been served and requires an affidavit supporting the application. It is assumed that the demand has been served 4 days after is has been posted. The timeframe is strictly enforced by the courts and no extensions of time can be granted.

How Do I Serve a Document on a Corporation?

Service is the procedure by which the plaintiff informs the defendant of the claims made against him or her. Serving a document on a corporation can be achieved through several methods that include:

  • Leaving it at, or posting it to, the corporations registered office
  • Delivering a copy of the document personally to the director of the company
  • Personally serving the document on the principal officer of the corporation
  • Any other manner in which service of such a document may, by law, be served on the corporation.

A party that files a document must soon as practicably possible, serve the document on each other active party.

If you are unable to serve a document, it is possible to make an application to the court for what is called an Order for Substituted Service. However, the Court does not automatically grant an application for an Order for Substituted Service and you will also need to file an affidavit explaining the reasons as to why the document can not be served.

Corporations Act 2001, s 109X

How to Obtain a Default Judgement?

Default judgement is awarded to the plaintiff if the defendant does not reply to the statement of claim within 28 days of when it was served. A statement of claim is determined as served after the fourth working day of when it was posted. If you did not personally serve the statement of claim you can check the day it was served by calling the court, looking at the Affidavit of Service or asking the person who served the statement of claim.

In order to obtain a default judgement, you must fill out and sign two forms. These are:

If the court served the Statement of Claim by post, the Affidavit of Service form will not be required. Similarly, if the Statement of Claim was served by a process server, they would have already filled out and signed an Affidavit of Service and you will not be required to file the Affidavit of Service. In regards to the Notice of Motion, it must be filed within 14 days of you signing the form. Copies of the Notice of Motion and Affidavit of Service do not have to be served on the defendant. Also, there is no filing fees involved with these specific forms. You have to take or send both the Affidavit of Service and Notice of Motion to the court where the Statement of Claim was served.

In order to obtain a sealed or certified copy of the judgement, you need to file a Form 43 Judgement or Order

As well as filing this form, you will also have to provide a filing fee of $55. This filing fee is unable to be claimed back from the defendant.
In most instances, the court will enter a default judgment for the outstanding amount if the Notice of Motion and Affidavit of Service show:

  • that the defendant was properly served with the Statement of Claim
  • that it is more than 28 days since the date of service
  • that the claim has not been paid, or not been paid in full AND
  • if the court records show that the defendant has not filed a Defence. Once you have a default judgment you can enforce the judgment against the defendant.

How Do I Enforce a Judgement Against the Defendant?

If you gain a default judgement, the magistrate or assessor will order the defendant to pay you the money you are owed. If the defendant refuses to pay the money owed, there are a number of things you can do to enforce the judgement.Before trying to enforce the judgement or indeed before commencing proceedings in the first place, it is important to consider whether the defendant has enough income or assets to pay the debt. Some enforcement actions may require you to pay fees and if the debtor is unable to cover the debt, you would be wasting your money. If the debtor is able to cover the debt, the enforcement fees can be added to the debt. If you are unsure about the debtor"s financial position, you can ask the debtor, whether it be an individual or company, for an examination notice which will provide you with the debtor"s income and asset details.

One way to enforce a default judgement is through a writ for the levy of property. This is an order to a sheriff to seize and sell personal property, not land, belonging to the debtor to pay for the debt. In many cases, the arrival of a sheriff with a writ can be enough for the debtor to start repaying their debt. To use this form of action, you need to fill out these two forms and send them to the court where the Statement of Claim was served:

  • Form 65 - Notice of Motion Writ for the Levy of Property
  • Form 66 – Writ for the Levy of Property

There are no filing fees for these forms however, there is a $74.00 sheriff execution fee (as at July 2012) and other sheriff expenses that may be incurred in this form of action.

A Garnishee order will also allow your default judgement to be enforced. This order allows money to be taken from the debtor"s bank accounts or wages in order to repay the debt. Money can also be taken from anyone who holds money on behalf of the debtor. In order to gain a garnishee order on the debtors wages or salary, the following two forms must be filled out and sent to the court where the Statement of Claim was served:

  • Form 69 - Notice of Motion Garnishee Order
  • Form 71 - Garnishee Order for Wages or Salary

In order to gain a garnishee order to recover debt from anyone who holds many on behalf of the debtor, the two following forms must be filled out and sent to the court where the Statement of Claim was served:

  • Form 69 – Notice of Motion Garnishee Order
  • Form 70 – Garnishee Order for DebtsThe Garnishee Order remains until the debt has been paid off or the court makes other orders.

Another two ways of enforcing a judgement is through bankruptcy and winding up a company. Both ways are complex and expensive ways of enforcing a judgement and it is highly recommended that you receive legal advice before taking such action.

You have up to 12 years to enforce the judgement.

What are the Features of Charitable Trust?

Since charitable trusts are in favour of charity, they are treated differently to ordinary trusts. The definition of charity is set out in the preamble to the Statute of Charitable Uses 1601, and is still used in the modern era as its definition.

A charitable trust is an express trust and like any other express trusts there must be:

  • A specific intention for the trust (Certainty of intention)
  • A property that is the subject of the trust (Certainty of subject matter)
  • A charitable purpose (Certainty of objects)

Any trust may be considered to have a charitable purpose if it is a trust for:

  • the relief of poverty,
  • the advancement of education,
  • the advancement of religion
  • other purposes beneficial to the community that do not fall under any of these categories.

In relation to the last category, a public benefit alone does not constitute a charity. Two essential elements have to be satisfied in order for the purpose of the trust to be charitable: "Benefit to the public or to a section thereof; and "Inclusion within the spirit and intendment of the preamble to the Statute of Charitable Uses 1601.

A charitable trust can be created through living people (inter vivos) or by a will. This trust may be created by a declaration of trust or through the transfer of property. At common law, a charitable trust can be of indefinite duration and is preserved by the Perpetuities Act 1984 (NSW).

The public nature of a charitable trust is reflected by the administration of the trust by the Crown. The Attorney General, on behalf of the crown, has the duty to enforce the proper performance of charitable trusts and execute any trust where the trustees fail to do so.

What Damages are Compensable for Breach of Contract?

A party is entitled to compensation for damages as a consequence of the defendant"s breach of contract provided that the loss incurred is not too remote and could not have been avoided by reasonable mitigation. The standard used for determining compensatory damages is that the injured party should receive compensation to an amount which will put them in the same situation if the contract had not been breached. This means that the normal costs incurred in a situation where the contract had not been breached are included in the calculation of the damages so that the plaintiff gains no extra profit from the breach.

There are limits to what can be claimed as compensable damage to the extent, “that his or her expectation of a certain outcome had a likelihood of attainment rather than being mere expectation.” (Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 84, 99) It is this expectation of profit, chance or opportunity that the plaintiff can seek compensation for. It should also be noted that the onus of establishing that a profit, chance or opportunity would have been earned lies on the plaintiff and requires factual evidence that is recognised by law.

How do I obtain an Apprehended Personal/ Domestic Violence Order?

An Apprehended Personal Violence Order is made where the people involved are not related and do not have a domestic or personal relationship, for example a co-worker or neighbour. A Domestic Violence Order is where the people involved are in a domestic relationship for example, people who you are or were married to or a defacto partner. Both court orders restrict the behaviour of the person you fear from actions that include:

  • physically assaulting, harassing, stalking and/or intimidating you,
  • damaging, or threatening to damage, your property,
  • domestic and family violence.
  • entering, remaining on, or accessing your home or workplace, and/or
  • contacting you directly or through another person.

When making an AVO, a court may impose such prohibitions or restrictions on the behaviour of the defendant as appear necessary or desirable to the court and, in particular, to ensure the safety and protection of the person in need of protection and any children from domestic or personal violence (s 35 Crimes (Domestic and Personal Violence) Act 2007). In order to obtain an AVO, it is essential that all elements are satisfied. It must be satisfied that on the balance of probabilities a person has reasonable grounds to fear and in fact fears:

  1. the commission by the other person of a “personal violence offence” (as defined in s 4 Crimes (Domestic and Personal Violence) Act 2007) against the person, or
  2. the engagement of the other person in conduct in which the other person:
  3. intimidates the person, or
  4. stalks the person

It must also be additionally satisfied that the conduct, in the courts opinion, is sufficient to warrant the making of the order. (s 19 Crimes (Domestic and Personal Violence) Act 2007)

To obtain the APVO you can ask the police to apply on your behalf or have an APVO issued by visiting a Local Court.

If the defendant disobeys any of the orders in the AVO, the defendant may be arrested and charged. The maximum penalty for disobeying an AVO is 2 years imprisonment and/or a fine of $5,500. However, it must be proved in court that the defendant disobeyed the AVO.

I've been told my rights were subrogated to the insurer, what does that mean?

Subrogation in simple terms means the substitution of one person for another. It is a legal term that refers to a situation where an insurer has been given the right to exercise power on behalf of the insured. This right arises from a situation where a third party has suffered a loss or damage because of the actions of the insured. Subrogation allows the insurer to exercise any rights that the insured had against the third party in order to resolve the loss or damage to the third party.

When do I need a written contract for Home Building work?

A written contract for Home Building work is needed when the work costs exceed the prescribed amount. The Home Building Regulations 2004 provides the prescribed amounts that are needed for these contracts. There are two different prescribed amounts depending on whether the work is classified as a small or large job.

A small job has a prescribed amount that exceeds $1,000 but is less than $5,000. A small job has a list of requirements that need to be included in the contract. These include:

  • the names of the parties
  • the number of the contractor licence
  • description of the work being done
  • plans and specification of the work
  • contract price

The contract requirements can be found at s 7AAA Home Building Act 1989. Due to the low work costs, a small job contract is not as extensive as a large job contract and only requires basic information.

A large job has a prescribed amount which is in excess of $5,000. The contract has a list of requirements that include:

  • The names of the parties
  • The number of the contractor licence
  • A detailed description of the work that needs to be done
  • Plans and specifications of the work
  • Statutory warranties applicable to the work.
  • The contract price

The contract requirements can be found at s 7 Home Building Act 1989. This contract requires more details and additional clauses are added due to the larger prescribed amount.

What potential benefit does the notice of intended distribution provide?

A Notice of Intended Distribution is a notice published in a newspaper telling the public that the Executor of an estate intends to distribute the estate property. Section 93 of the Succession Act provides a protection to an Executor who distributes the estate according to that Section. The protection is that the Executor will not be personally liable in respect of that distribution to any person who is an applicant of a family provision claim if the Executor is not on notice of that claim. Of course there are always particular provisos to keep in mind, including:

  • the distribution is not made until at least 6 months after the death of the deceased, and;
  • the legal representative has given notice, through the notice of intended distribution, that the legal representative intends to distribute the estate after the expiration of a specified time, and;
  • the notices states the distribution will not take place earlier than 30 days after the notice is given, and;
  • distribution is not made until the time specified in the notice has expired, and if legal representative does not have notice of any application nor intended application for a family provision order

Section 94 of the Succession Act enables the legal representative to immediately distribute the estate immediately to an eligible person who is substantially dependent on the deceased person to support the maintenance or education of the eligible person.

I want to install a dividing fence between my neighbours and my land, but my neighbours don't agree. What should I do?

The Dividing Fences Act 1991 regulates neighbours responsibilities towards dividing fences and is designed to assist any disputes arising from the negotiation of a dividing fence. Neighbouring parties are entitled to come to their own agreements on their own merit but it is where disputes arise about the contribution of an adjoining owner to the costs, location or standard of the dividing fence, the act will intervene. A dividing fence is a fence separating the lands of different owners, whether it is on the common boundary or not. The form of the fence is fairly unrestricted and includes any structure, ditch, embankment, hedge, foundation or gate. Retaining walls have been specifically excluded from the definition of fence under the Act. The form of the fence must be considered ‘sufficient" under section 4, in order for the fence to satisfy the legal requirements. Many factors affect this standard including the scope of the land, privacy, dividing fence common in the area and local policy requirements. In some cases, it may be ‘sufficient" to have no fence.

Firstly, in accordance with section 11, the act requires an owner to notify the adjoining owner of the fencing work needed. The purpose of the notice is to seek to obtain an agreement from the adjoining neighbour about the fencing work. Or if no agreement can be made, to allow you to make an application to the Local court or Land Board for a Fencing order. An adjoining owner is not liable for any fencing work unless an agreement has been reached provided that the fencing work is not deemed to be urgent by the Local court or land board. There is no set form for the agreement, except that it has to be in writing and must include:

  • A description of the boundary on which the fencing work is to be carried out
  • The type of fencing work proposed
  • The estimated cost
  • The proposed division of the fencing costs.

In general, adjoining owners are equally responsible for the cost associated with the dividing fence. However, before the fence work commences, the equally shared costs need to be clearly written in an agreement to limit the possibility of a dispute. An agreement may not be required if either owner is prepared to pay for the full amount for the fence. However, this owner will lose the right to enter the adjoining owners property in order to perform the fencing work.

When an agreement cannot be met between the adjoining owners after a notice has been served, under section 12 of the act, the adjoining owners can attend the Community Justice Centre, a free mediation service, to resolve the issue or either owner can apply to the Local Court or Land Board for an order that can determine:

  • Where the fence is to be erected
  • How the costs are to be shared
  • Which owner is required to repair a particular portion of the fence
  • Whether a dividing fence is required at all

The court order that the fence be erected in a position other than on the common boundary for reasons including the physical features of the land or for other reasons. This was the case in Mezzagosto v Carnuccio, where a dispute over the position of the dividing fence was ordered to be partially on the common boundary and partially on the plaintiffs land. If this results and either owner occupies a part of their neighbours land, the owner does not obtain any title or interest in that piece of land but, the court can order an amount for compensation in accordance with section 14. What is interesting about that case is that the reason the Court ordered the fence be other than on the boundary was simply to allow one of the parties to continue to safely drive their car into the garage at the rear.

There are situations that may arise which may or may not require you to be pay for fencing costs. The owner will be required to cover the fencing cost if:

  • the owner wants a fence of a higher standard than is required for a ‘sufficient" fence;
  • the owner deliberately or negligently damages the fence
  • the owner builds a new fence without consulting the adjoining owner and either coming to an agreement or seeking an order, has no grounds under the Dividing Fences Act 1991 for recovering the costs
  • the adjoining owner is a public authority. i.e. if your property is next to a park or reserve. Although, people living next to these properties may be able to negotiate with the authority for a contribution.

It is important that if you are required to cover a fencing cost that you keep a record of such fencing cost in case it is necessary to take action to recover the full or portion of the cost from the adjoining owner. Without proof, recovery of costs cannot be awarded.

If the adjoining owner which did not seek the order disagrees with the order, he or she can make an objection. Only where the magistrate has made an error of law in the Local Court or Land Board can an owner make an appeal of the decision. Fencing orders are final and an owner cannot make an appeal simply because they feel unsatisfied with the result.

Can I get a garnishee order against Centrelink income?

Centrelink payments going into a bank account cannot be directly garnished. Although, the amount that does not fall under the ‘saved amount" can be garnished. The ‘saved amount" is your Centrelink payments for the four weeks before the garnishee order was made minus anything you have withdrawn from the account in that four weeks.

Whatever, centrelink payments are not spent in the four weeks is the amount that can be garnished. In other words, if the recipient of the centre link payment spends all of their centrelink payments within the four week period, there is no amount that can be garnished.

What is the legal test for production of subpoena material?

When a subpoena is file and served on a person, production of material sought by the subpoena can be objected to on several grounds (see eg. UCPR 2005, Reg 33.4 and Criminal Procedure Act 1986, s 227). A common ground for objection is that the subpoena is merely a "fishing" expedition.

The test for whether a subpoena can be set aside on such a basis was confirmed by the NSW Criminal Court of Appeal in Attorney General for New South Wales v Chidgey [2008] NSWCCA 65.

In that case Beazley JA confirmed the test stated by Simpson J in Regina v Saleam [1999] NSWCAA 86 that "the applicant must (i) identify a legitimate forensic purpose for which access is sought, and (ii) establish that it was 'on the cards' that the documents will materially assist his case."

Accordingly the test is a two stage process. As to "legitimate forensic purpose", "mere relevance" is insufficient. The term 'on the cards' in this context arises from the judgment of Gibbs CJ in Alister v R [1984] HCA 45 where he says "Although a mere 'fishing' expedition can never be allowed, it may be enough that it appears to be 'on the cards' that the documents will materially assist the defence."

How has the Personal Property Securities Register affected Retention of Title ("Romalpa") clauses in supply contracts?

In 2009, the Commonwealth Government introduced the Personal Property Securities Act 2009 (PPSA), which introduced a national regime for the registration of security interests over personal property. The introduction of the Act has affected Retention of Title clauses whilst also highlighting the need for suppliers to register their personal property with the PPSR.

A Retention of Title clause provides that the ownership of goods does not pass to the buyer until the price has been paid. Under s 12 of the PPSA, this clause fits under the broad definition of a security interest and therefore the supplier should register their interest on the PPSR. This is of critical importance because if this does not occur the supplier will have a unperfected (unregistered) security interest. This unperfected security interest may be capable of being defeated by a perfected (registered) security interest if the buyer grants such an interest to a third party, even though a Retention of Title clause may exist.

The Guarantor in a lease has just died. The Lessee company owes me money under the lease. Can I claim against the Deceased"s Estate?

A claim against the deceased estate will depend upon whether you have been notified of the death of the guarantor. Ormiston and Batt JJA said in Ronan v ANZ Banking Group Ltd [2000]:

The ordinary rule is that, in the absence of contrary stipulation, notice, even informal or direct, of death, though not the mere fact of death, will discontinue a continuing guarantee in respect of future advances.

This means that you could potentially claim debts accrued before the notice of death of the guarantor but could be unable to claim debts accrued after the notice of death. Therefore, once you have been notified of the guarantors death it is advised to be particularly careful in your dealings with the lessee company.

How long do I have to file a Default judgement?

In the local and district court, in accordance with regulation 12.9 of the Uniform Civil Procedure Rules 2005, the court can make an order to dismiss proceedings if a default judgement is not filed within nine months after the statement of claim is filed.

In the Supreme Court, in accordance with regulation 12.8 of the Uniform Civil Procedure Rules 2005, the court can make an order to dismiss proceedings if after five months, no steps by either party has been taken to further the proceedings. Therefore, in the Supreme Court the default judgement must be filed within five months after the statement of claim is filed.

What is the effect of the Evidence Amendment (Evidence of Silence) Act 2013?

The Act seeks to amend the primary Evidence Act by adding a new s 89A. Previously, s 89 provided that an unfavourable inference must not be drawn from the failure of the defendant to respond to a question.

The "right to silence" has now been amended and section 89A provides that in proceedings for a serious indictable offence an unfavourable inference may be drawn from the defendant's failure or refusal to mention a fact during official questioning that is later relied on their defence. The onus is on the defendant to mention the fact whilst being questioned.

There are a number of preconditions that must be satisfied before an unfavourable inference can be drawn:

A special caution must be given an investigating official;

  • the investigating official can only give the special caution where they are satisfied that the offence is a serious indictable offence (maximum penalty of 5 years or more);
  • the special caution must be given in the “physical” presence of an Australian legal practitioner who is acting for the defendant;
  • the special caution is given before the defendant fails to refuses to mention a fact relied on at trial;
  • the defendant was allowed a reasonable opportunity to consult with the legal practitioner in the absence of the investigating official; and
  • the defendant is not under 18 years of age or were incapable of understanding the general nature and effect of the special caution.

Do I need a Section 16 certificate when I am exercising an Option on a retail lease?

No. In accordance with section 16(4) of the Retail Leases Act, you will not be required to obtain a section 16 certificate when exercising an option on a retail lease so long as:

  • there is no break in the entitlement of the lessee to possession of the retail shop; and
  • the option is granted before or at the same time as the earlier lease was entered into.

Where do I find interest rates upon judgements?

In accordance with rule 36.7 of the Uniform Civil Procedure Rules 2005 the prescribed rate that is payable under, is 6% above the cash rate last published by the Reserve Bank of Australia before that period commenced.

The local court can not order the payment of interest on a claimed amount less than $1,000.

The interest rates applicable in the local court are also published on the lawlink website:

http://www.localcourt.lawlink.nsw.gov.au/localcourts/interest_rates.html

What additional terms are prohibited from being added to a Residential Tenancy Agreement?

In accordance with section 19 of the Residential Tenancies Act, there are terms that must not be included in a residential tenancy agreement. These include:

  • the tenant paying the cost of carpet cleaning by a professional at the end of the tenancy. Although, the tenant will be required to pay such cost if the landlord permits the tenant to keep a pet on the premises;
  • that the tenant take out a specific form of insurance;
  • that if the tenant breaches the agreement, the tenant is liable to pay any part of the remaining rent under the agreement, increased rent, a penalty or liquidated damages
  • that if the tenant does not breach the agreement, the rent is or may be reduced or paid rebate of rent.

Section 15 of the Act also prohibits certain additional terms from being included in a residential tenancy act for which a standard form is prescribed. In accordance with subsection (4) the additional terms must not contravene with the Act or Regulations and the terms must not be inconsistent with the standard form.

What are the identification requirements when acting for a mortgagee in a mortgage?

In accordance with the Real Property Act 1900 s56C(1), the mortgagee must confirm the identity of the mortgagor. The Act provides that the Mortgagee must take reasonable steps to ensure that the person who executed the mortgage is the same person who is to become the registered proprietor of the land. The reasonable steps that the mortgagee must take vary between whether the mortgagor is a company or a person. For a natural person, Regulation 11B of the Real Property Regulations 2008, provides what information needs to be collected and verified in order to satisfy the identification requirements. The information includes the person’s full name, date of birth and residential address and can be verified through an original or certified copy of a primary photographic identification document, such as a drivers licence. If you do not have a photographic identification document, a primary non-photographic identification document and a secondary identification can be used instead. Similarly for a company, Regulation 11C of the Real Property Regulations 2008 provides a list of some of the information that needs to be collected and verified. This includes:

  • the name with ASIC
  • the registered office in Australia
  • the principal place of business in Australia
  • the ACN or ARBN
  • the registration status
  • the name of each director
  • the name of the company or co-operative secretary

The mortgagee must also verify this information ‘from a document that shows the results of a search made within the previous 30 days of the ASIC database’. The mortgagee also has the responsibility for 7 years from the date of registration of the mortgage to keep a record of the steps that they took to identify the mortgagor. Also the mortgagee must comply with the Registrar General when asked to produce these records and any other questions regarding the reasonable steps taken. If the mortgagee fails to comply with the Registrar General, the Registrar General can make a recording or refuse to register the mortgage.

I am a real estate agent. I had an agency agreement with a vendor and introduced a prospective buyer to the property. The vendor changed agents and sold the property to the same prospective buyer. Am I entitled to claim commission?

The law on agents claiming commission was recently considered in Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117.
In that case Stein AJA said:

“It is trite to say that for the respondent to succeed there has to be established a causal connection between the agent’s efforts and the completion of the transaction (Burchell v Gowrie [1910] AC 614). To prove this it has to be established that the agent was an effective cause of the sale. Putting it another way, that the sale was brought about by the agent’s instrumentality (Ryan v Horton [1911] HCA 10; (1911) 12 CLR 197). This case is also authority for the proposition that the agent claiming commission bears the onus of proving he was the or an effective cause of the transaction (at 203). What the [agent] has to show is that his efforts continued to influence the purchaser in its eventual decision to buy. In effect, the agent has to prove that his initial efforts flowed through to [the purchaser] thus causing the ultimate sale (Moneywood Pty Limited v Salamon Nominees Pty Limited [2001] HCA 2; [2000] 202 CLR 351). The question is whether [the agent’s] efforts continued to influence [the purchaser] to purchase the [property].”

The case emphasizes that merely adducing evidence of an agency agreement and an introduction is insufficient for an agent to prove his or her entitlement to the commission.

In Emmons Mount Gambier the sale through the second agent occurred within a matter of months of the introduction by the first agent. But the court noted that at a point in time the first agent “did nothing further. He ceased any efforts to bring about a sale”. The court could not find evidence that the efforts of the first agent was still working at the time of the eventual sale.

In that case there was a not insignificant price gap between the offer submitted through the first agent and the offer at which the property eventually sold. The case highlights that the onus of proof falls on the agent to prove his or her case. Also noting that the absence of evidence from the purchaser and the second agent, (which would naturally be difficult to obtain), works against the agent seeking the commission.

The evidence an agents needs to adduce is of his or her continued influence on the purchaser right through the sale of the property. The exact content of that evidence will differ from case to case.

I am selling my residential property and I have done work as an owner-builder. Do I need to attach a certificate of insurance to the contract?

In accordance with section 95 of the Home Building Act, an owner-builder must not enter into a contract for sale of land on which owner-builder work has been done by the owner-builder unless there is a certificate of insurance evidencing the contract of insurance.  Owner-builder work means residential building work that exceeds $20,000 that relates to single dwelling house or a dual occupancy, as per s 29 of the Home Building Act. The owner builder is the person that completes the owner builder work and is issued with an owner builder permit for that work (s 3 Home Building Act).

This does not apply if the completion of the work was more than 6 years ago and if the reasonable market cost of labour and materials does not exceed the amount prescribed by regulation 70 of the Home Building Regulations of $20,000 (s 95(3) Home Building Act).

If the owner builder does not obtain a certificate of insurance when it is needed, the contract is voidable at the option of the purchaser before the completion of the contract, (s 95(4) Home Building Act). It is also an offence not to provide a certificate of insurance in these circumstances (s 95(2) Home Building Act).

I have inherited a property with a mortgage on it. Is the estate liable to discharge the mortgage first?

Section 145 of the Conveyancing Act 1919 requires that where real or personal property is charged with a debt, such as a mortgage, then that asset is primarily liable for the payment of the debt unless there is some other contrary instruction or intention. This means that the beneficiary must take the asset subject to the debt.

A general expression to pay debts from the residuary estate is not enough to satisfy an instruction or intention to remove the liability from the specific asset.  If the Testator requires the debt not to be charged against the specific asset, the will must signify by words this intention expressly or by necessary implication, as per s 145 (2).

Creditors will not be limited to seeking payment of their debt from the particular asset but are entitled to claim against the whole estate for payment of the debt, s 145(3).

I have filed a statement of claim and the defendant has agreed he owes me the amount claimed. What do I do?

Once you have come to an agreement with the defendant about the amount owed, you should apply for a consent judgment to ensure the agreed amount is paid. The agreement should state how the agreement is to be paid and also deal with the payment of legal costs.

To obtain a consent judgment, Form 44 – Consent Judgment / Order should be filled out, ensuring that both parties sign the form. For further instructions on how to fill out the Consent Judgment, click the following link – Instructions for Filling out a Consent Judgment.

The next step is to file the Consent Judgment at the local court where the original statement of claim was filed. Here the Original Consent Judgment form will be kept by the local court, and the two copies, which you must provide, will be stamped and returned. A stamped copy should be sent to the defending party. There are no filing fees for Consent Judgments.

Once you have a consent judgment, if the other party does not pay the amount owed you can enforce the debt. For more information see - How Do I Enforce a Judgment Against a Defendant?

I don't like an assessment by the Office of State Revenue (OSR). What are my appeal options? 

You are entitled to lodge an objection if you are dissatisfied with tax assessments or certain decisions of the Chief Commissioner of State Revenue. By lodging an objection, the Review Branch of the Office of State Revenue will conduct an internal review of the assessment. The review branch will allocate an employee who was not substantially involved in the process of the decision under review (s 53(3) Administrative Decisions Review Act 1997), so that a fresh perspective is used.
 
To lodge an objection you may use an objection form provided by the OSR website: http://www.osr.nsw.gov.au/info/publications/general/objections

The objection form must contain specific details as to why you believe the assessment should be reviewed and simply not that you believe the assessment was wrong (s 53 Administrative Decisions Review Act 1997). It must also be lodged within 60 days of the service of your original assessment as provided by the Office of State Revenue (s 53(2) Administrative Decisions Review Act 1997). Time extensions can be granted but only at the discretion of the Chief Commissioner.

If you’re unsatisfied with the outcome of your internal review you are entitled to request a further external review. You may also request a review where the OSR has not determined the outcome of your objection after 90 days.  Your review takes place completely independent of the OSR through the NSW Civil and Administrative Tribunal or the NSW Supreme Court.

Your request for external review must be lodged within 60 days of your internal review outcome being determined.

I own a yacht with a friend and we race it together on the weekends at the Royal Prince Alfred Yacht Club. I would like my sister to have my share in the yacht when I die. Can this be done?

This can be done through a partnership agreement. If a partnership agreement specifies the share of the asset between the partners, then the asset is shared as per the agreement. If the agreement does not specify however, the Partnership Act 1892 applies.

In accordance with section 33 of the Partnership Act 1892, subject to any agreement between the partners, every partnership is dissolved as regards all the partners by the death or bankruptcy of any partner. This means that once one of the partners dies, the partnership will be dissolved.

When a partnership is dissolved, there will be either a winding up of the partnership or the business may continue under a newly constituted partnership. If the partners elect to wind up the partnership, the assets of the partnership are distributed according to the rules set out in section 44. The rule from this section is that the ultimate residue on a dissolution is payable to the partners in proportion to their respective shares of profits. The residue is not payable in proportion to their respective contributions to capital. Therefore, the surviving partner will receive their share of the yacht minus any debts and liabilities from the partnership.

In summary, it is advisable to have a partnership agreement that determines what happens as the dissolution of the partnership may not be in the partners interests.

 


 

Disclaimer

The material on this website does not constitute legal advice and should only be used as a guide and general overview on matters of interest. Each client's circumstances vary and you should not act on the information published without obtaining specific legal advice. Our website is intended to contain current laws and information but does not guarantee that such laws and information will be up-to-date and correct.