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Change to Sales of Off the Plan Properties in NSW

A change to the Conveyancing Act 1919 in New South Wales has established protection for purchasers from developers rescinding off the plan contracts in bad faith.

An off the plan contract typically includes a clause that allows the purchaser or developer (the vendor) to rescind (cancel) the contract if a title does not issue for the subject property by a certain date. It is suspected that this mechanism for bringing contracts to an end has been misused by developers for financial gain. Off the plan contracts can run for significant periods of time during which the value of the subject property might increase. In those circumstances, a developer might be enticed to deliberately stall a project so that they can bring the off the plan contract to an end and re-sell the property at a higher price.

The change to the Legislation requires the developer to serve a notice on the purchaser at least 28 days before the proposed rescission that specifies why the developer is proposing to rescind the contract and the reason for the delay in the title for the subject property issuing.
Following the notice, the developer can then bring the contract to an end, but only if:

1. Each purchaser under the contract consents in writing to the rescission; or
2. The developer has obtained an order of the Supreme Court permitting the rescission; or
3. The regulations otherwise permit the developer to rescind the contract.

The Supreme Court may make the order permitting the developer to rescind the contract, but only if the developer satisfies the Court that making the order is just and equitable in all the circumstances. In that regard, the considerations for the Court include:

1. The terms of the off the plan contract;
2. Whether the developer has acted unreasonably or in bad faith;
3. The reason for the delay in the title issuing;
4. The likely date on which the title will issue;
5. Whether the subject property has increased in value; and
6. The effect of the rescission on each purchaser.
It is important to note that a purchaser who unreasonably withholds consent to the rescission after having received the notice from the developer will have to bear their own costs of the developer’s application for an order from the Supreme Court.

If you have any questions regarding off the plan contracts, or conveyancing matters in general, you should contact the experienced property lawyers and conveyancers at Burt & Hanke Legal, servicing Albury, Wodonga and surrounding areas.

[Important note: this post is not intended to be legal advice and it should not be relied upon by others as such. No responsibility is accepted by Burt & Hanke Legal and its directors for any errors in the content, including errors arising from omission or negligence. Persons seeking legal advice should contact Burt & Hanke Legal for an appointment.]

Middle-Range Drink Driving in NSW


A person commits a middle-range prescribed concentration of alcohol offence (commonly known as “mid-range drink driving”) if the person has a reading of between 0.08 and 0.149 inclusive and they:


(1) Drive a motor vehicle;
(2) Occupy the driver’s seat of a motor vehicle and attempt to put the vehicle in motion; or
(3) As an appropriate licence holder, occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.


The maximum penalty for a first time mid-range drink driving offender is a $2,200.00 fine and imprisonment for 9 months. In addition, the offender faces licence cancellation and an automatic licence disqualification period of 12 months, which in certain circumstances can be reduced to a minimum period of 6 months.


For a second or subsequent mid-range drink driving offender, the maximum penalty is a fine of $3,300.00 and imprisonment for 12 months. In addition, the offender faces licence cancellation and licence disqualification for a period between 6 and 9 months together with an interlock condition on their licence for a minimum period of 24 months thereafter.


Having said that, the offender will avoid a loss of licence for a first, second or subsequent offence, if he or she can convince the Court not to impose a conviction for the offence pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999.


For experienced and professional advice and representation in drink driving or DUI matters, contact Albury drink driving lawyers at Burt & Hanke Legal.


http://burthankelegal.com.au/


[Important note: this post is not intended to be legal advice and it should not be relied upon by others as such. No responsibility is accepted by Burt & Hanke Legal and its directors for any errors in the content, including errors arising from omission or negligence. Persons seeking legal advice should contact Burt & Hanke Legal for an appointment.]

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Protection for Small Businesses from Unfair Contract Terms

Amendments to the Competition and Consumer Act 2010, will see protections for small businesses from unfair terms in standard form contracts entered into or varied on and from 12 November 2016.

Presently, protections in respect to unfair terms in standard form contracts apply only to consumers.

The new protections apply to small businesses who are a party to a standard form contract for the supply of goods or services or the sale or grant of an interest in land where the upfront price in the contract is less than $300,000.00 or $1,000,000.00 over a contract term of more than 12 months.

A small business is defined as a business with fewer than 20 employees, which includes all casual employees who are employed on a regular and systemic basis.

In simple terms, a standard form contract is a contract proffered by one party to a transaction on terms that are not negotiable. 

The Legislation provides examples of contract terms that might be unfair, including but not limited to:

- A term that permits, or has the effect of permitting, one party (but not the other party) to terminate the contract;
- A term that penalises, or has the effect of penalising, one party (but not the other party) for breach or termination of the contract;
- A term that permits, or has the effect of permitting, one party (but not the other party) to vary the terms of the contract; and
- A term that limits, or has the effect of limiting, one party’s right to sue another party.

If a court or tribunal determines that a contract term is unfair, then that particular term is void and unenforceable.

The contract will otherwise continue to bind the parties provided it is capable of doing so without the unfair term.

There are some contracts and terms that are excluded from the operation of the Legislation in relation to unfair terms. See sections 26 and 28 of the Legislation.

If you have any questions regarding unfair contract terms or any business law matters, you should contact the experienced lawyers and solicitors at Burt & Hanke Legal servicing Albury, Wodonga and surrounding areas.

www.burthankelegal.com.au

[Important note: this post is not intended to be legal advice and should not be relied upon by others as such. No responsibility is accepted by Burt& Hanke Legal and its directors for any errors in the content, including errors arising from omission or negligence. Persons seeking legal advice should contact Burt & Hanke Legal for an appointment.]
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Low-Range Drink Driving in NSW

A person commits a low-range prescribed concentration of alcohol offence (commonly known as “low-range drink driving”) if the person has a reading of between 0.05 and 0.079 inclusive and they:
Drive a motor vehicle;
Occupy the driver’s seat of a motor vehicle and attempt to put the vehicle in motion; or
As an appropriate licence holder, occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.
The maximum penalty for a first time low-range drink driving offender is a $1,100.00 fine. In addition, the offender faces licence cancellation and an automatic licence disqualification period of 6 months, which in certain circumstances can be reduced to a minimum period of 3 months.

For a second or subsequent low-range drink driving offender, the maximum penalty is a fine of $2,200.00. In addition, the offender faces licence cancellation and licence disqualification for a period between 1 and 3 months together with an interlock condition on their licence for a minimum period of 12 months thereafter.

Having said that, the offender will avoid a loss of licence for a first, second or subsequent offence, if he or she can convince the Court not to impose a conviction for the offence pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999.

For experienced and professional advice and representation in drink driving or DUI matters, contact Albury drink driving lawyers at Burt & Hanke Legal.

[Important note: this post is not intended to be legal advice and it should not be relied upon by others as such. No responsibility is accepted by Burt & Hanke Legal and its directors for any errors in the content, including errors arising from omission or negligence. Persons seeking legal advice should contact Burt & Hanke Legal for an appointment.]

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Capital Gains Withholding Payments on the Disposal of Real Property

On and from 1 July 2016, new laws commence that implement 10% capital gains withholding payments on the sale of taxable property in Australia, which of course includes real property.

The purpose of the new laws is to assist the Australian Government in securing payment of capital gains tax from foreign residents.

In simple terms, when a foreign resident disposes of real property in Australia with a market value of $2million or more, the purchaser must withhold 10% of the purchase price and remit same to the Australian Taxation Office (ATO).
The new regime applies to contracts for the sale of land entered into on and from 1 July 2016.

All Australian resident vendors will have to obtain a valid clearance certificate from the ATO prior to settlement of their sale to ensure that the regime does not apply to them. If they fail to do so, then the purchaser must retain the payment and remit same to the ATO.

If a vendor is not eligible for a clearance certificate, they might be able to reduce the amount withheld in certain circumstances by obtaining a variation notice from the ATO. An example might be if the vendor is a foreign resident but they have not made a capital gain by the disposal of the asset.

Significant penalties apply to purchasers who fail to comply with their obligations under the new regime.

For advice in relation to this post or conveyancing in general, do not hesitate to contact the experienced legal professional at Burt & Hanke Legal practising in Albury, Wodonga and surrounding areas.

[Important note: this post is not intended to be legal advice and it should not be relied upon by others as such. No responsibility is accepted by Burt & Hanke Legal and its directors for any errors in the content, including errors arising from omission or negligence. Persons seeking legal advice should contact Burt & Hanke Legal  for an appointment. Persons seeking legal advice should contact Burt & Hanke Legal for an appointment.]

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The Implementation of the National Domestic Violence Order Scheme

New South Wales was the first State or Territory to take meaningful steps towards the implementation of the National Domestic Violence Order Scheme.

The purpose of the Scheme is to afford better protections to victims of domestic violence by eradicating the current issues surrounding the enforceability of domestic violence orders across state and territory boundaries.

Presently, if a person protected by an order in one state wishes to travel to, or move to another state, they would have to apply to a court in the other state to have the interstate domestic violence order registered (if possible) or to obtain the protection of a new order in that state.

Rather, the National Domestic Violence Order Scheme would automatically make an order made in one state recognised and enforceable in all other states and territories in Australia.
 
The Scheme would also improve intelligence and information sharing between police across state and territory borders.
New South Wales has introduced the model laws required to give effect to the Scheme.

For further advice regarding domestic violence matters, or any criminal matter, contact the experienced lawyers and solicitors at Burt & Hanke Legal servicing Albury, Wodonga and surrounding areas.

[Important note: this post is not intended to be legal advice and it should not be relied upon by others as such. No responsibility is accepted by Burt & Hanke Legal and its directors for any errors in the content, including errors arising from omission or negligence. Persons seeking legal advice should contact Burt & Hanke Legal for an appointment.]

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Driver Licence Suspension Appeals NSW

If your driver licence is suspended in New South Wales, then you may be able to appeal to the Local Court of New South Wales to have the suspension period reduced or even overturned.

The following licence suspensions can be appealed:

- A decision by the Roads & Maritime Services (RMS) to suspend your licence for exceeding the speed limit by more than 30 km/hour and less than 45 km/hour;
- A decision by the RMS to suspend a provisional driver’s licence for loss of demerit points; and
- A decision by the Police to suspend your driver licence for exceeding the speed limit by more than 45 km/hour.

Most importantly, you must lodge your appeal within twenty eight (28) days of being served with the notice of suspension.

On hearing the appeal, the Local Court, essentially, can do one of three things:

- Dismiss the appeal;
- Set aside the suspension; or
- Vary the suspension.

The Roads Transport Act is the relevant legislation and section 268(5)(a) provides that the Court is not to vary or set aside the decision to suspend your licence unless it is satisfied that there are exceptional circumstances justifying lifting or variation of the suspension.

In our experience at the Local Court in Albury, the most relevant consideration is whether you are a fit and proper person to hold a licence. Your need for a licence may also be a relevant consideration.

If you have any questions regarding licence suspension appeals, you should contact the experienced lawyers and solicitors at Burt & Hanke Legal servicing Albury, Wodonga and surrounding areas.

[Important note: this post is not intended to be legal advice and it should not be relied upon by others as such. No responsibility is accepted by Burt & Hanke Legal and its directors for any errors in the content, including errors arising from omission or negligence. Persons seeking legal advice should contact Burt & Hanke Legal for an appointment.]

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Changes to Legal Costs Disclosure

From 1 July 2015, in New South Wales and Victoria, important changes will be implemented to the way in which solicitors will have to disclose legal costs to you.

Where a solicitor proposes to charge $750.00 or less, excluding GST and disbursements, for the completion of legal work, then there is no requirement for the solicitor to make any type of formal costs disclosure.

Where the costs for the legal work are expected to be between $750.00 and $3,000.00, again, excluding GST and disbursements, then the solicitor must make written disclosure of the costs by providing the client with a Uniform Standard Disclosure Form. A Uniform Standard Disclosure Form is a short form of disclosure, generally one to two pages, which sets out the costs to be charged for the legal work.

In the event that the costs for the legal work are likely to exceed $3,000.00, then the solicitor must make full disclosure to their client in writing, including an estimate of legal costs and the basis upon which they are charged. Generally, the full disclosure consists of several pages of various terms and conditions.

If you have any questions regarding solicitors’ costs disclosure obligations, or if you require legal advice in respect to any other matter, you should contact the experienced solicitors at Burt & Hanke Legal, servicing Albury, Wodonga and surrounding areas.

[Important note: this post is not intended to be legal advice and it should not be relied upon by others as such. No responsibility is accepted by Burt & Hanke Legal and its directors for any errors in the content, including errors arising from omission or negligence. Persons seeking legal advice should contact Burt & Hanke Legal for an appointment.]
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