Retrospective changes to off the plan sunset clauses in Victorian land contracts

Georgie Wakenshaw - Tuesday, June 25, 2019

 

The Victorian Parliament has just passed the Sale of Land Amendment Bill 2019 giving effect to changes to off the plan sunset clauses in contracts for sale of land. These changes will retrospectively apply from 23 August 2018 and will affect all existing residential off the plan contracts no matter the date they were signed.

Under the new law, developers and other vendors will no longer be able to rescind off the plan contracts for residential land without:

1. Providing the purchaser with at least 28 days written notice of the proposed rescission detailing the reason why the vendor wishes to rescind the contract and the reason for any delay in procuring the registration of the plan of subdivision or occupancy permit (as the case may be); and

2. The purchaser consents to the rescission of the contract.

If the purchaser does not agree to the rescission of the contract, the vendor may apply to the Supreme Court for an order rescinding the contract provided they can demonstrate to the Court that it is just an equitable to do so. In determining whether it is just and equitable to make an order rescinding the contract, the Court will consider factors such as the terms of the contract, whether the vendor has acted in bad faith, the likely date of registration of the plan or issue of the occupancy permit, whether the subject lot has increased in value and the effect of the rescission on the purchaser.

Developers and vendors will not be able to contract out of these requirements, that is, a special condition cannot be including in the contract purporting to exclude the new requirements. If a developer is found to breach the new requirements, they will be in breach of the Contract with the usual remedies available to the purchaser for a breach of contract, such as the right to seek damages.

The new law mirrors that introduced by the NSW Government in late 2015 in an effort to target developers who sought to exercise their rights to rescind contracts pursuant to the sunset clause and subsequently re-sell the property for a higher price.

 


2019 National Minimum Wage and Penalty Rates Update

Cosgriff Lawyer - Thursday, June 20, 2019


The Fair Work Commission has conducted its Annual Wage Review and concluded to increase the national minimum wage and all modern award minimum wages by 3%.

The increase to the minimum wages will apply for the first full pay period from 1 July 2019. From that time, the national minimum wage will increase to $740.80 per week (from $719.20) or $19.49 per hour (from $18.93).

This increase will apply to employees who are paid in accordance with the minimum wage or are covered by a modern award. The increase may also apply to employees covered by a collective agreement under which the pay rates are linked to the Annual Wage Review.

Further changes are also being implemented to some Sunday penalty rates in certain hospitality and retail industry awards following on from the Commission’s decision in 2017. These changes are as follows:

penalty rates for full and part-time employees under the Hospitality Award will decrease to 150% (casual employees will remain at 175%);

penalty rates for full and part-time employees working between 7am and 9pm under the Pharmacy Award will decrease to 165% and casual employees will decrease to 190%;

penalty rates for Level 1 full and part-time employees under the Fast Food Award will decrease to 125% and Level 1 casual employees will decrease to 150%.

There are widespread changes to the penalty rates under the Retail Award – please contact our office for specific advice as to those changes.

For further information in relation to the changes to the national minimum wage or penalty rates and how they affect your business, please contact Skye Engwerda on (03) 5480 6344.



Selling a property with a pool or spa?

Georgie Wakenshaw - Monday, May 06, 2019

NSW

Swimming pool or spas in NSW have been required to be registered on the NSW Swimming Pool Register from October 2013. The Conveyancing (Sale of Land) Regulation 2017 requires a Contract of Sale to include this Certificate of Registration and one of the following:

  • An Occupancy Certificate issued within the last 3 years; or
  • A current Certificate of Compliance; or
  • A current Certificate of Non-Compliance. If you receive a Certificate of Non-Compliance, a purchaser will have 90 days from the settlement date to rectify any defects and bring the barrier into a compliant state.

If one of the above Certificates is not attached to the Contract when the purchaser signs the Contract, the purchaser will be entitled to rescind the Contract at any time up until settlement. This requirement is built into law and cannot be contracted out of (that is, a clause included in the Contract removing the requirement to include the Certificate or making the Contract conditional upon the vendor providing the Certificate within a certain period of time after Contracts are exchanged).

Certificates of Compliance are valid for three years or until the pool is no longer compliant (whichever is earlier) and a Certificate of Non-Compliance is valid for 12 month. If you considering selling your house which has a swimming pool or spa, you should apply for the Certificate of Compliance as early as possible to avoid any delay in the sale process. This is especially important if your property will be auctioned.

Some properties, such as those within a strata complex, are exempt from complying with these regulations.

Victoria

There is presently no requirement in Victoria for a Certificate of Compliance to be attached to a Contract of Sale.

However, the Victorian Government has passed legislation for a new swimming pool register and compliance regime effective from 1 December 2019. Homeowners will be required to ensure that the safety barriers around a pool or spa are compliant and inspections are likely to be carried out every three years. You are currently able to voluntarily register your pool or spa on the Victorian Building Authority website prior to registration becoming mandatory later this year.

It will only be a matter of time before Section 32 of the Sale of Land Act 1962 is amended to require reflect similar requirements to those of NSW.

Our conveyancing and property law team will be able to guide you through the compliance process to ensure that the required disclosure is made in your Contract of Sale.


Review of the Family Law Act

Georgie Wakenshaw - Monday, June 18, 2018

Review of the Family Law System

The Federal government has commissioned the ALRC to undertake the first comprehensive review of the family law system since the commencement of the Family Law Act in 1975.

Purpose of the Review

The review will focus on supporting families to resolve their family law disputes quickly and safely by considering:

  • “appropriate early and cost-effective resolution of all family law disputes;
  • the protection of the best interests of children and their safety;
  • the best ways to inform decision makers about the best interests of children and their views;
  • family violence and child abuse, including protection for vulnerable witnesses;
  • laws in relation to parenting and property division after separation.”

Why is the review important?

Notably the review represents the first comprehensive review into the family law system since the commencement of the Act in 1976. This means that even though there have been widespread changes in Australia, both socially and to the needs of families, the family law system has not kept up with those changes.

The current system has been criticised as being:

  • costly;
  • harmful to the dignity and privacy of separating families;
  • inefficient;
  • ineffective in dealing with safety issues and interacting with other services and Courts; and
  • Adversarial in nature and providing an appropriate dispute resolution and adjudication process.

References

Australian Government, Australian Law Reform Commission, website accessed 31/05/2018 https://www.alrc.gov.au/inquiries/family-law-system.

Rae Kaspiew, “Separated parents and the family law system: What does the evidence say?”, 3 August 2016, Australian Government, Australian Institute of Family Studies, accessed 31/05/2018 https://aifs.gov.au/cfca/2016/08/03/separated-parents-and-family-law-system-what-does-evidence-say.


NATIONAL MINIMUM WAGE UPDATE

Georgie Wakenshaw - Thursday, June 14, 2018

NATIONAL MINIMUM WAGE UPDATE

The Fair Work Commission has announced a 3.5% increase to minimum wages. The increase applies from 1 July 2018.

The outcome of the Fair Work Commission’s Expert Panel’s review is that from 1 July 2018:

  • the National Minimum Wage and Modern Award minimum wages will increase by 3.5%; and
  • the National Minimum Wage will increase to $719.20 per week (up from $694.90) or $18.93 per hour (up from $18.29).

Employers who pay their employees at or close to the minimum wage rates pursuant to a Modern Award, the National Minimum Wage or other industrial instrument, will be required to increase their employees’ pay in the first pay period on or after 1 July 2018.

For further information in relation to the changes, please contact Skye Engwerda (03) 5480 6344.

 


Do you have a Will in place?

Cosgriff Lawyer - Tuesday, November 21, 2017


While many people know the importance of having a Will in place, there are an alarming number of people who not have one in place either because they see it as something that they will do when they get “older” or because they don’t see the importance of writing one.

If you pass away without a valid Will, you will have died intestate. In these cases, your assets are distributed according to the Rules of Intestacy, in a set order laid down by the law. This order probably won’t reflect your wishes.

In Victoria the Rules of Intestacy provide as follows:

  • If you leave a spouse or domestic partner, but no children, then your spouse or domestic partner will receive your whole Estate;
  • If you leave a spouse or domestic partner and children, your spouse will receive the first $100,000 and one third of the residue, while your children will receive the remaining two thirds equally;
  • If there is no spouse or domestic partner and no children, then your parents will receive your whole Estate. If your parents have predeceased you, then your Estate will pass to your siblings. If you have no siblings, the Administrator of your Will will continue to trace your family tree and collateral relatives;

New South Wales Rules of Intestacy are a little different and provide as follows:

  • If you leave a spouse or domestic partner, but no children, then your spouse or domestic partner will receive your whole Estate;
  • If you leave a spouse or domestic partner and children, and the children are your spouse's children, your spouse is entitled to the whole estate.
  • If you leave a spouse or domestic and children, but the children are not the spouse's children, the spouse is entitled to, your personal effects, $350,000.00 and half of the residue, while your children will receive the remaining one half equally.
  • If you leave no spouse but leave children, your children will share the whole estate equally.

To make a new Will or to update an existing Will please contact Zoe Broadbent at Cosgriff Lawyers (03) 5480 6344.

 

 


Is it a Loan or a Gift?

Georgie Wakenshaw - Wednesday, August 23, 2017


Loan from Parents in Family Law Property settlements- it can be a challenge!

Determining if a payment from a friend or a family member is a gift or a loan is a common challenge in family law property settlements. Pursuant to section 79 of the Family Law Act 1975 (Cth) if the payment is classed as a loan, it will be regarded as a liability and reduce the value of the property pool available for distribution. A gift however is considered as an indirect contribution and as such, will not form part of the property pool.

Is it a loan or a gift?

 Factors that the Court will take into account when determining whether a payment is a loan or a gift are:

  • Whether there is any formal loan documentation between the parties and when this was created?
  • What evidence is there of the loan being repaid? eg. Bank statements.
  • Whether any interest or principal payments have been made during the relationship on the loan?
  • Whether a caveat/charge or other security has been provided for the loan?
  • How long the loan has been outstanding?
  • What is the likelihood that the debt will be enforced?.

Has a parent said ‘it is a gift because we want to help you out’? Bear in mind that the Court will also take into consideration informal factors such as conversations about the nature of the loan.

Case examples

In Pelly v Nolan [2011] FMCA a father loaned his son $250,000 to help his son buy a property. After the property was sold, the father loaned a further $70,000 which the son used to purchase a new property. The son did not pay back any of the loan nor had been charged any interest, although the father had prepared a loan agreement. The Court found that even though no money or interest had been repaid, on the balance of probabilities, it was likely that the son would have repaid the loan. Therefore the sum of $320,000 was considered a liability of the marriage and was paid out of the matrimonial pool. The Court first considered the formality of the loan and how it was documented. E.g. there was a formal agreement allowing for interest and a repayment date, and the parties had begun to make some repayments. The Court is likely to view the loan as a liability given that the parties had the intention to repay the loan.

In Maddock & Anor (No.2) [2011] FMCAfam 1340 a father gave the parties $240,000 towards the cost of buying and building a house. The Court found that there had been no formality, no term of repayment, no demand for repayment until the family law settlement and no capacity to pay. On the evidence given to the Court it was decided that if the parties had not separated, the father would never have asked for repayment of the funds. Therefore, the sum of $240,000 was considered a gift and was not required to be repaid. There was no formal agreement or demand for the repayment of the loan prior to separation. The Court held that had the parties not separated, the parent would never have called on the loan to be repaid and as such considered the money to be a gift.

If you have separated or are thinking of separating from your spouse/partner, contact Ashlyn McCurdy at Cosgriff Lawyers to find out more or to arrange an appointment on (03) 5480 6344 or ashlynm@cosgriff.lawyer.


Drinking and driving: Know your limits

Georgie Wakenshaw - Wednesday, August 23, 2017

 

Drinking and driving: Know your limits

Drivers who hold a learner or probationary licence must have a zero blood alcohol concentration (BAC) at all times whilst driving, whereas a full licence holder is permitted to have a BAC up to 0.05.

Victoria

Have you ever had an open alcoholic drink whilst driving? Section 49B of the Road Safety Act 1986 (the Act) provides that drivers are not permitted to drink alcohol whilst driving or in charge of a vehicle and section 49C of the Act prevents passengers from drinking alcohol whilst supervising Learner drivers. Did you know that you would be breaking the law if you were drinking in your car while stationary, as you would be deemed to be ‘in charge’ of the vehicle at the time?

Minimum loss of licence periods for drink driving

Victoria hasmandatory sentencing when it comes to most drink drive offences. When you combine these strict liability offences with mandatory sentencing, you will be off the road for some time!

BAC reading First offenders
0.00 to less than 0.05 (learner or probationary licence holders) 3 months
0.05 to less than 0.07 (learner or probationary licence holders) 6 months
0.05 or more but less than 0.10 (all drivers) 6 months
0.10 or more but less than 0.11 (all drivers) 10 months
0.11 or more but less than 0.12 (all drivers) 11 months
0.12 or more but less than 0.13 (all drivers) 12 months

As you can see, for every 0.01 over the BAC limit, your loss of licence increases by one month.

New South Wales

 Rule 298-1of the Road Rules 2014 NSW (the Rules) states that all drivers are prevented from drinking alcohol while driving. Interestingly, the Rules do not make any mention of passengers also being restricted from drinking even when supervising a Learner driver. The supervisor must, however, be under the legal alcohol limit of 0.05 just as if they were the driver of the vehicle.

Minimum loss of licence periods for drink driving

In NSW all drink driving offences will require you to attend at the Local Court. The minimum suspension period that can be ordered is legislated, but Magistrate does have the option to order a lesser suspension period if you can convince them to do so.

BAC reading First offenders
0.05 or more but less than 0.079 (all drivers) 6 months
0.08 or more but less than 0.149 (all drivers) 12 months
Over 0.15 (all drivers)

3 years

A very common question we are asked is “if I lose my licence in NSW, can I still drive in Victoria?”. As a result of mutual recognition provisions between Australian states, an order for a loss of licence in New South Wales will be placed onto a national database, which may be accessed by Victoria licensing authorities. It is therefore important that you do not drive at all during any disqualification period.

If you have been charged with drink driving, contact Ashlyn McCurdy at Cosgriff Lawyers to find out more or to arrange an appointment on (03) 5480 6344 or ashlynm@cosgriff.lawyer.

 


Capital gains withholding: Impacts on foreign and Australian residents

Georgie Wakenshaw - Tuesday, August 01, 2017


Capital gains withholding: Impacts on foreign and Australian residents

Foreign Resident Capital Gains Withholding (“FRCGW”) first applied to vendors disposing of certain taxable Australian property under contracts entered into from 1 July 2016.

From 1 July 2017 new rules for FRCGW apply to contracts entered into after that date. The changes will apply to real property disposals where the contract price $750,000 and above (previously $2 million) and the FRCGW withholding rate will be 12.5% (previously 10%). The existing threshold and rate will apply for any contracts that are entered into from 1 July 2016 and before 1 July 2017, even if they are not due to settle until after 1 July 2017.

What this means for you:

Australian resident vendors can avoid the 12.5% withholding by providing a clearance certificate obtained from the ATO to the purchaser prior to settlement. Your lawyer will arrange this for you.

Foreign resident vendors may apply for a variation of the withholding rate or make a declaration that a membership interest is not an indirect interest and therefore not subject to withholding.

Purchasers must pay the amount withheld at settlement to the Commissioner of Taxation.

For further information on FRCGW and whether it affects you please do not hesitate to contact Zoe Broadbent at Cosgriff Lawyers.

 


Increase to Minimum Wages and new Penalty Rates from 1 July 2017

Georgie Wakenshaw - Monday, July 17, 2017

 

3.3% increase to Minimum Wages and new Penalty Rates from 1 July 2017

 The Fair Work Commission has conducted its Annual Wage Review and the decision has been made to increase the minimum wage by 3.3 per cent.

The increase will apply from the first full pay period starting on or after 1 July 2017.

The 3.3 per cent increase applies to employees who are covered by an award and employees to whom the minimum wage applies.

The increase does not affect employees who are already getting paid more than the new minimum wage or above the new award rates.

Employers should also note that from 1 July 2017 certain penalty rate provisions in some awards for the hospitality, restaurant and retail industries will be varied.

The changes are different for each award, so they affect employers and employer differently depending on the award they are covered by.

For further information in relation to changes and how they affect your business, please contact Skye Engwerda and Zoe Broadbent.