Electronic Conveyancing Transfers Guarantee

There has been lately some national media publicity about lost monies in the Electronic Conveyancing (also known as PEXA).  This was where monies went missing due to fraud in the new electronic conveyancing settlements system.

PEXA is own by the major banks and runs the system and they have now (after much adverse publicity) agreed to provide a PEXA Residential Seller Guarantee (Guarantee) to all Vendors of land (sellers) as and from 29.6.2018 to reimburse for loss up to a limit.

Key points are:

1. The seller has the option to make a claim under the Guarantee, rather than seeking to recover the loss by an alternative means;
2. The Guarantee applies to sellers in respect of the settlement of residential property where the seller’s funds are misdirected after the seller’s legal practitioner has entered the correct bank account details into the PEXA platform;
3. There is a $2 million cap on PEXA’s liability per settlement;
4. You must be represented by a lawyer or conveyancer that is registered with PEXA such as Matthews Williams Solicitors; and
5. The Seller through his or her lawyer or conveyancer makes a claim within 3 business days of the transaction.

An important point with this is that the guarantee does not apply to commercial properties and Sellers of residential property should check their bank account next day to make sure funds went into the bank account so that they can make a claim.

If we can help further at Matthews Williams please contact us……

Sentencing Options

For the majority of people, their first exposure to the Criminal justice system occurs when they are charged with offences that are dealt with at the Local Court. This is because most offences committed each year are summary in nature, and as such are not serious enough to warrant appearances before the District Courts or the Supreme Court. Therefore, it is important that defendants (i.e. those charged with an offence) understand the broad range of penalties that are available to Magistrates at the Local Courts, when they sentence someone on the basis of various sentencing principles. The sentencing options available to the Local Courts Magistrates are:

Fines

Fines are the most commonly imposed in addition to Good Behaviour Bonds. The defendant’s current financial circumstances and other relevant considerations may be taken into account by the Local Court when determining the size of the fine. Once a defendant has been ordered to pay a fine, they are given a maximum of 28 days to pay the amount in full, but the court registry can extend this if the offender is not able to pay within the time period. However, if a defendant refuses to pay a court-ordered fine, it may possibly result in the seizure of assets, wage deductions, an order of community service, or in relation to traffic fines, suspension or cancellation of their driver’s licence or vehicle registration.

Good Bonds

These bonds obligate defendants to be of good behaviour, and the court may also impose further conditions that must be complied with for the duration of the bond. These include a condition that the defendant be supervised by an officer of the Community Corrections Office, for as long as the Service deems it appropriate. The court may also include a condition that defendants attend counselling to help treat their alcohol or drug-abuse problem, or defendants may be ordered to reside at a rehabilitation centre to receive more intensive treatment.

There are a wide variety of bonds available in the Local Court, such as the bond stated in section 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which allows Magistrates to direct offenders to enter into a good behaviour bond for less than five years, after convicting them of an offence. If the conditions of the section 9 bond are breached or the defendant commits another offence, then the Magistrate may cancel the bond and impose a sentence. There are also section 11 bonds, which allow Magistrates to find an offender guilty of an offence, but suspend the sentence for a period of 12 months, in order to assess their capacity and prospects for rehabilitation, to demonstrate that rehabilitation has taken place or for any other reason the court considers appropriate in the circumstances.

Dismissal and conditional discharge under Section 10

Section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nonetheless discharge that person without proceeding to conviction. Because there is no conviction recorded, a major benefit of section 10 is that it means that the defendant will not have a criminal record. The court will take into account the person’s character, antecedents, age, health and mental condition, the trivial nature of the offence and any other extenuating circumstances when determining whether to grant an outright dismissal.

Intensive Correction Orders (ICOs)

ICOs are an alternative to a sentence of imprisonment that can be made when a court is satisfied that no sentence other than full time imprisonment is appropriate for an offender, and that the sentence is likely to be for a period of 2 years or less.

Instead of entering full time custody, offenders subject to ICOs are managed in the community by the Community Corrections division of Corrective Services NSW. The two major components of ICOs are:

· supervision by a Community Corrections Officer, whereby the offender's behaviour is monitored and their rehabilitative needs are addressed; and

· community service work, whereby the offender undertakes 32 hours of unpaid work in the community each month.

Suspended sentences under Section 12

A Local Court that imposes a sentence of imprisonment on an offender of a period less than two years, has the option of making an order suspending the whole of that sentence for the duration of its term. The court can then specify in the order that as a condition of their release from custody, the offender must enter into a good behavior bond for the term of the sentence, to prevent the sentence of imprisonment coming into effect. However, it is important to understand that suspended sentences should not be perceived as an alternative to custodial sentences. This is because under section 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) a sentence cannot be suspended until it has actually been imposed- it is only the execution of the sentence that is suspended. However, suspended sentences are not available to offenders where they are also subject to another sentence of imprisonment. Also, if the Local Court decides to later revoke the sentence for any reason, it may choose to re-impose the original sentence of imprisonment on the offender, which can be served full-time, part-time or through home-detention. The court is obligated to revoke the order if there is a breach of the bond under section 98(3), unless it is satisfied the offender’s failure to comply with the conditions of the bond was “trivial in nature”, or the offender had a valid reason.

Full-time Imprisonment /Home Detention

Full-time imprisonment should always be the sentence of last resort for courts, with the maximum available term of imprisonment that can be sentenced in Local Courts being two years. Home detention may also be an option.

If you have questions on sentencing options or anything else, please contact any of our Solicitors at Matthews Williams.

Marriage Celebrants

With Marriage being in the news currently, then the question may arise:  “How do I become a marriage celebrant?”

Well it is not that simple....you need to become qualified and become an Authorised Celebrant under the Part IV of the Marriage Act, 1961.

Ministers of Religion are registered as Marriage Celebrants after being nominated their Church or faith as Marriage Celebrants and are able to marry persons in accordance with their Church or faith throughout Australia.  Chaplains in the Armed Services have the ability to solemnize marriages overseas where one person is in the Australian Defence Force.

Registrars of Births Deaths and Marriages are also by their Office automatically Marriage Celebrants and most Registrars of Courts in rural NSW are able to perform marriages.  Also most Australian diplomatic or consular officer in foreign countries are also authorised to perform marriages in those countries.

Otherwise to become a fully certified and authorised Marriage Celebrant, you will need to be at least 18 years of age, be of good character and attend the correct training and showcase your knowledge surrounding marriage legislation. The relevant training that needs to be completed is a Certificate IV in Celebrancy which can be obtained at many registered training organisations including TAFE.

After vetting by Police and paying fees a person becomes Registered as a Marriage Celebrant and they may solemnise marriages at any place in Australia at any time subject to the Act and provided the Bride and Groom give at least 1 months notice to the Celebrant in writing of their intention to marriage.  Instant marriages are not possible.

If you have questions on the Marriage Law or anything else, please contact any of our Solicitors at Matthews Williams.

Business Law....Duties and obligations

Are you looking to set up a new business, buy or sell a business? The law puts a tremendous amount of responsibilities upon Business owners and employers.

Starting in business can be an exciting time. You can’t wait to put your ideas into action and a lot of hard work. However, there are a range of Business Law issues you must take into account:
• Will you be employing staff to help run the business?
• Will you have contracts will your customers or clients?
• How will you deal with leases, insurance, debt recovery?
• Do you have finance in place?
• What tax implications are there in your business?
• Do you understand the fair trading regulations?

Before you commit to a lease, employ people or start  work for clients, you need to be sure that you are not putting yourself in legal jeopardy or risking criminal or financial penalties.

Running your business may involve a range of Business Law issues:
• Guarantees and security documents;
• Confidentiality agreements;
• Copyright and intellectual property law;
• Partnership and shareholder disputes;
• Customer disputes;
• Supplier and contractor agreements;
• Terms and conditions of trade;
• Bankruptcy and Insolvency;
• Work Health and Safety requirements.

Selling your business has a range of issues you need to think through before signing a contract. In particular, the negotiation for the sale of the business. Many factors come into play when deciding on a sale price for your business. Issues that arise include whether GST is applicable in the sale price and liabilities, responsibility for employees, and trading restrictions that may apply.....just to name a few.
Rushing the sale of a business may devalue your life’s work.

If you have questions on Business Law or anything else, please contact any of our Solicitors at Matthews Williams.

WHY ARE MINUTES OF YOUR MEETINGS ESSENTIAL?

The answer is that they are required by Section 50 the Associations Incorporation Act, 2009 and must be kept by the Secretary.  Similarly corporations are required to keep minutes of meetings too.  Members may at all reasonable times inspect the minutes although Shareholders of corporations have only limited ability to view minutes of Directors meetings.

There are no absolute rules about how minutes of meetings should be set out other than they need to be in English and be reasonably understood.

To minimize controversy (and possible litigation), we suggest that minutes have included in it a list of those attending, those who apologise, incoming /outgoing correspondence (including emails and other web based messaging) and most importantly a Treasurer’s (or Finance report).

Also there should always be a motion to confirm the previous minutes with or without amendments. The Chairperson should sign the minutes and date them to certify they are correct. We find that circulating minutes of the previous meeting and reports (particularly via Email) to be helpful in reducing time in having minutes read out at subsequent meetings.

Motions need to be accurately set out by the Secretary in the minutes and he or she should indicate in some many that they were carried or lost or amended and carried.  The Chairperson should always ask for either a show of hands or may even pass the motion on the voices.  Too often the Chairperson fails to declare the motion as past and that can lead to controversy.  Some motions require either by Law or by the Rules to have secret ballots and those rules must be strictly adhered to avoid litigation.

All Chairperson, the Executive and members should read articles on the internet about meeting procedure.

We also find that so many Secretaries fail to an essential in Minutes being the meeting date and where it was held.  It is also helpful to put in start and finish times of the meeting.

If you have questions on Minutes, Meeting Procedure or anything else, please contact any of our Solicitors at Matthews Williams.

New MOTOR ACCIDENTS STATUTE

The NSW Parliament has passed the Motor Accident Injuries Act, 2017 which changes and limits what claims maybe made on your green slip insurance policy.

The new Statute will commence on or about 1st December, 2017 and will apply to motor vehicle accidents occurring after its commencement. The existing Statute applies until then.

For those sustaining a personal injury as a result of a motor vehicle accident will now only have access to statutory benefits regardless of fault unless they have been charged with or convicted of a serious driving offence.

No common law damages will be recoverable for so called minor injuries and a new Disputes Resolution Service will be established. Serious injuries may still enable some common law claims but they are limited.

The time for making and serving a claim will be reduced from 6 months to 3 months and if you are losing income and do not serve a claim within 28 days of the accident you may lose your right to back claim lost wages.

Statutory benefits for minor injuries and those at fault may cease after 26 weeks.

In short most claims benefits will be limited and green slip costs will no doubt increase the profitability of the Insurers to the detriment of benefits.

If you have a Personal Injury claim are very complex but then we can assist in this or any other legal problem. Please contact any of our Solicitors at Matthews Williams.

What is Civil Litigation?

Litigation is the term used to describe proceedings initiated between two opposing parties to enforce or defend a legal right. It is not a Criminal prosecution but rather a Civil matter.  Civil Litigation is typically settled by agreement between the parties, but may also be heard and decided by a magistrate or judge in court or an arbitrator in some instances.

Contrary to popular belief, litigation is not simply another name for a lawsuit. Litigation includes any number of activities before, during, and after a lawsuit to enforce a legal right. In addition to the actual lawsuit, pre-suit negotiations, arbitrations, facilitations and appeals may also be part of the litigation process.

Civil litigation includes matters before the Supreme Court, the District Court, the Local Court, the Land & Environment Court, the Family Court, the Federal Court, the Motor Accidents Authority Tribunals, the Workers Compensation Commission and even the NSW Civil & Administrative Tribunal (NCAT).  Solicitors have a right of appearance in all Courts and most Tribunals.  Appearances in NCAT in most matters requires leave of the Tribunal to appear for a client.

Litigation begins the moment someone decides to formally enforce or defend his or her legal rights. In most cases, this happens the moment a party engages a Solicitor to represent their interests. Most Solicitors engage in a variety of “pre-suit” litigation activities. These can include many things, from writing a letter on a client’s behalf called a demand letter, to demand compensation. However, there are several different steps in litigation that occur in nearly every case.  For further information contact us.

What is Compensation Law?

Compensation may be defined as: ‘A monetary remedy that is awarded to a person who has sustained damages or an injury and it is given in order to replace the loss caused by the damage done or injury sustained.’ 

The most common injury claims are related to Workers injuring themselves at work or travelling to and from work and motor accidents. Motor Accident claims revolve around negligence and can be claims made on Green Slip Insurers or motor vehicle Comprehensive Insurers. 

However, it may also be for compensation when your land is compulsorily acquired by the Government. It maybe that compensation is awarded when there is a breach of contract and someone suffers loss. 

Compensation for damages or loss originally devolved from the Common Law but in a lot of cases the Common Law has been modified by our various Parliaments over the years, such as the Workers Compensation Acts, the Motor Vehicle Accidents Act, Civil Aviation (Carriers' Liability) Act, the Civil Liability Act and many more. 

Some of these Acts only allow you to make a claim within limited times. Three years is the normal time but it can be more or less. For example, in Air Accidents claims have to be brought within 2 years of the accident. In Motor Accident claims for personal injury must be made within 6 months from the date of the accident but in claims for damage to your car, the period is 6 years. Breach of contract claims are 6 years in most cases. 

Some of the legislation that has been brought in now prevents claims being made and other legislation extends times for bring a claim. 

Complicated and confusing......well you may need to consult with one of our Solicitors to get some advice because any claims for compensation can be a minefield. 

 For further information contact us.

The Consumer Credit Code - Protection for Borrowers

Most credit arrangements, or contracts, are covered by the Consumer Credit Code (CCC). Before a credit contract is offered the borrower must be given a statement by the credit provider which is document that sets out the borrowers rights and obligations must also be provided.

Some of the items which must be disclosed under the code are:

• the amount of the credit
• the interest rate, and how it is to be calculated. If it is a variable rate, you must be told how you can check this
• all charges and fees must be disclosed, including and ongoing loan maintenance fees and default costs and fees. This must include any government fees and charges, including any stamp duty.
• Commissions paid to or by the credit provider

Details of any required security, such as a mortgage or a guarantee, and of any required insurance.

The contract must clearly set out what terms of the contract may be changed by the credit provider during the term of the contract, and the notice that must be given by the credit provider. These may include changes to the interest rate and changes to the repayment instalments. Where the contract sets out pegged interest changes and repayment instalments, a separate notice need not be given.

So be careful. Fully investigate any proposed credit arrangement and, if the terms are not fully understood, get professional advice before signing up.

For further information contact us.

Crime?

What is a Crime?  There are many Crimes or Offences. A lot are contained in the Crimes Act but many more are contained in other Statutes both of the State and Federal Parliaments.  The range of Offences vary from Murder down to Parking.

Most criminal matters are commenced by the Police or the Director of Public Prosecutions by way of Court Attendance Notices (formerly known as Police Charges/Summonses) and those charged with an Offence will appear firstly before a Magistrate sitting in a Local Court.  In some cases issues of Bail may need to be considered.

Magistrates deal with over 90% of criminal matters summarily but the more serious offences are committed to the District Court or Supreme Court for Trial before a Judge and/or Jury.

Unlike Civil Matters, Criminal matters must be proved ‘beyond reasonable doubt’ having regard to the elements of the Offence.  This is when a Solicitor’s professional knowledge becomes essential for the client (i.e. the person charged with an Offence).

Police will normally have a fact sheet (which is not evidence but outlines the Police case) on the occasion of the first appearance before the Court. With the fact sheet and instructions from the client, this will help the Solicitor in deciding whether to advise the client to plead guilty or not guilty having regard to the elements of the Offence. Sometimes an adjournment is necessary to obtain further information.

Once a plea is entered, then the Magistrate may adjourn the matter for hearing, sentence the client, commit the client for Trial in a higher Court or other options which may  depend on the seriousness of the Offence and the previous criminal history of the client.

For further information contact us.

Finders are not Necessarily Keepers

The common law rule is that if you find something of value and you take all reasonable steps to find the owner but fail, then you may be able to keep the goods. There are various adaptations of this rule, depending on state-to-state legislation, but the principal remains the same.

You must report your find to the authorities (usually the police) who then search for the owner. In some jurisdictions there is a legal obligation to report the find and deliver the goods to the authorities for safe-keeping. After a prescribed period of time, if the owner cannot be traced, the goods are returned to the finder who may keep them.

Recently a Sydney bank clerk claimed that he found $250,000 lying in the street. He did not report the find, but a work mate, who noticed some of the money in a bag under the clerk’s work-desk, did. He rang the police. The police took the money in the bag and subsequently found the balance of the $250,000 in a safe custody box at a different bank. The bank which employs the clerk has no money missing. The clerk was charged with larceny (stealing) by finding and faces a large fine or up to 5 years in gaol.

The money remains unclaimed. Who gets it?  Had the clerk reported the find to the police, it would be his. As he has been charged with a crime over the money, then it may be forfeited to the Crown as  proceeds of crime.

For further information contact us.

Is There any Advantage in Creating a Testamentary Trust?

Such a trust is created by a will. It takes effect when the trust creator (the settler) dies. Other trusts, such as discretionary or unit trusts, are created by a deed and come into effect as soon as the settler executes the deed and settles property upon the trust. In all cases the settler must appoint a trustee. In the case of a testamentary trust, the trustees may be the executors of the will, but need not be. The trustee may be one or more natural persons or a company.

With an ordinary trust, the settler or other parties must give assets to the trust. In the case of money, there is no problem, there is no tax or stamp duty on money. However, if property, shares, real estate, bonds or a business is being transferred, then tax and stamp duty issues arise. Such expenses as capital gains tax, stamp duty, income tax and others may be involved.

Additionally, income under an ordinary trust allocated to a person too young to control it is taxed at a special high rate. This penalty rate can be as high as 66% of the income. The test is not the legal capacity of the child, but whether or not the child can control its funds.

In the case of a testamentary trust, there is presently no tax on assets allocated to the trust by will and usually no stamp duty. In addition, income allocated to a child is taxed at the marginal tax rate applicable to the amount of the income.

For further information contact us.

Attention Purchasers of Land!!

More Red Tape has been put in place by the Office of State Revenue as from 21st June, 2016 in respect of Residential Land purchases.  Identifying transfers to foreign nationals so as governments may impose additional Duties and Taxes on foreigners is the reason for the new rules.

Foreign nationals will have to pay 4% extra on the normal stamp duty applying to residential land.  Land Tax Surcharge on Foreign nationals also applies at .075% of the value of the land and there is no threshold.  It also seems that Land Tax (which is levied annually) may also be payable by existing residential lands held by foreign nationals.

Exemptions apply to Australian Citizens, some New Zealand Citizens and Foreign nationals who have resided in Australia for 200 days or more in the last 12 months provided they complete an 8 page form.

The ‘Purchaser Declaration’ form needs to be completed on entering a Contract for the purchase of residential land so as to obtain an exemption from these Duties and Taxes. Australian Citizens will need to provide a copy of an Australian Birth Certificate or Passport or Citizenship Certificate.  Kiwis will require their passport and a special category visa and long term foreign nationals will need to provide evidence of their residing in Australia for 200 days or more.  Corporations will need a lot more paper work to obtain an exemption or partial exemption.

All-in-all, the bureaucrats are putting more obstacles in front of Purchasers of land and you need to be guided through this maze by your solicitor.

For further information contact us.

GREEN SLIP CHANGES

A state wide campaign highlighting the key benefits that will be lost under the NSW Government's proposed changes to CTP Green Slip Insurance has been launched by the Law Society of NSW.

"CTP Changes Adding Insult to Injury" aims to increase public understanding of the key benefits currently covered by their CTP Green Slip insurance.

President of the Law Society of NSW, Gary Ulman, said that behind the headline of reducing premiums, the Government is set to slash cover.

"Only a few people in the community are aware what little coverage and support they will get if under the proposed changes that are due before Parliament in a matter of days," he said.

"In most cases benefits will be slashed after as little as five years, including compensation for past and future lost earnings, medical treatment expenses, and family care and support - all of which is available under the current CTP Green Slip scheme.”

Mr Ulman said that under the proposals, for example, loss of earnings will be restricted to 5 years and capped at 1.5 time Average Weekly earnings.

"This is particularly harsh for those who are injured but who have a long working life ahead of them. It also singles out those who rely on their physical fitness to earn a living - such as tradies," Mr Ulman said.

"Under the proposed scheme most benefits will also be drip-fed to injured motorists by the insurers and based on a complex and rigid system that doesn't take account of people's personal or family circumstances," he said.

Mr Ulman said the scheme also restricts access to legal assistance will also be denied for up to 90 per cent of injured motorists.

"Injured motorists should be able to access expert help to get the benefits they deserve and not left to fend for themselves against well trained insurance company representatives," he said.

The Law Society of NSW and other stakeholder have put together an alternative proposal that will reduce fraudulent claims and deliver savings on CTP green slip insurance without slashing the benefits of injured motorists and their families.

For further information contact us.

BANKRUPTCY....what happens?

Upon being made a Bankrupt, your house maybe sold, your bank account (if it has credit funds) belongs to your Trustee in Bankruptcy, your business may be sold by the Trustee, your shares in companies go the Trustee, any tools of trade above $3700 goes to the Trustee and any other assets go the Trustee except for personal items and most household goods.  The Trustee will try and convert all assets into cash and after deducting his or her fees distribute such funds (if any) to creditors.

You will not be allowed to be a Company director, nor stand for public office or continue in public office.  You maybe able to continue to work for a wage or salary and depending on the level of the wage or salary you might have to make regular repayments to the Trustee.

Bankruptcy lasts for 3 years unless it is extended by the Court.

What happens after discharge?

Your name will appear on the National Personal Insolvency Index forever as a discharged bankrupt and on credit reporting agencies' records for 2 years from the date of discharge, or up to 5 years from the date you became bankrupt, whichever is later.

If there is property that vested in the trustee when you became bankrupt and it has not yet been dealt with, you don’t automatically get it back.

The administration of your bankruptcy may continue after you are discharged – for example, your trustee may not have finalised investigations or the sale of assets, or you may still have income contributions to pay. The Bankruptcy Act says that a discharged bankrupt must still:

• assist their trustee to finalise the administration of the bankruptcy
• advise their trustee of any change of address
• provide information about their financial circumstances if requested to do so
• pay outstanding income contributions.

You also have continuing obligations to:

• give up secured assets if required by the relevant secured creditors
• pay debts that are not released by bankruptcy...e.g. penalties and fines.

For further information contact us.

Noise Pollution

Everyone has experienced at some time nuisance noise coming from a neighbour’s property. What to do? It depends on the type and frequency of the noise. The Protection of the Environment Operations Act (POE) sets out in considerable detail regulations which apply to all sorts of domestic appliances and machinery, internal and external. It deals with such things as air-conditioners, lawn mowers, electric power tools, musical instruments and amplifiers, pool motors, car and burglar alarms. It sets hours during which appliances and machinery can be used and maximum noise levels. Your local council can deal with a wide range of problems, such as barking dogs or other continuing noises. One-off noises, such as a noisy neighbourhood party, are best dealt with by the police. If there is a continuing problem, it is best to have a talk with your neighbour. If that fails, then consult your council to see what they can do. If the problem is beyond the powers of the council, then consult your solicitor to see what legal action can be taken to deal with the problem. In many cases the Local Court has the power to make a “noise abatement order”. Breach of this by the noisy neighbour can lead to fines and other more serious penalties.

If there is a “one-off” problem, then the police have the power to issue a similar notice. The police can issue on-the-spot fines if, after telling the offender to stop or mitigate the noise, it starts again within 6 hours. If we at Matthews Williams can assist you on this or any other legal matter, feel free to phone me or one of our solicitors or call into our office for an appointment.

For further information contact us.