As everyone is aware the Coronavirus pandemic is causing changes day by day to the way in which we do business and conduct our daily lives.

Peacockes Solicitors has the internal resources and staff (working remotely) to close the office, yet continue to provide our range of legal services, even though in a less conventional manner.

From Monday 30^th March 2020 our office doors are closed and we ask that you call us on:

02 6882 3133  (our Dubbo office)

02 6847 2001 (our Gilgandra office)

0448 673 924 (our Canowindra office)

or email us at admin@peacockes.com where your query will be dealt with promptly in the normal manner.

A member of our staff will deal with your query/affairs, even though it is now our policy to keep face to face contact to a minimum.

We all have to adapt to these challenging times and we trust that you will understand and co-operate with the measures we have adopted.It is the safety of our staff and clients which is the main factor in our decision making.

PEACOCKES SOLICITORS PTY LTD

 

Blog Post by Kathleen Clark:  email kjc@peacockes.com
 
 Are you a parent with concerns about parenting arrangements and Covid-19?

The following may help:

Q&As for parents from the Federal Circuit Court http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/covid/covid-faq/

Q&As for parents from the Family Court http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/covid/covid-faq/

 

Dear all, 

Let us start by saying everyone here at Peacockes Solicitors hopes you are safe and well, and that you remain so for however long the Coronavirus (COVID-19) pandemic lasts. We want to assure you that we're doing everything we can to ensure it's business as usual for you and the rest of our clients.

We take the health risks and the potential disruption to our staff and clients from the pandemic very seriously. We are monitoring the situation continuously and staying up to date on guidelines and advice issued by local government and health authorities. Whilst things remain fluid in the legal industry, we have a strong plan in place which has now been reviewed to address COVID-19 specifically.

We are taking precautionary and preventive steps to protect the health and well-being of our staff to ensure no disruption to our client services. These steps include:

Face-to-face meetings

For the foreseeable future, our office will be contacting any person with a scheduled meeting to arrange to have that meeting via phone or web. If documents need to be witnessed then we will make suitable arrangements by agreement on a case by case basis. We encourage all clients, both new and existing, to consider the use of Skype facilities if need be.

Office closures

Following advice from the respective governments, and in helping flatten the curve, we have begun transitioning our staff to working from home. All our offices currently remain open however, we consider it only a matter of time before the Federal or State Government directs that offices such as ours close until further notice. We are fortunate that many of our staff can work from home for an extended period, should the need arise, so that we can guarantee continuity of service for our clients.

Office contact

Please call our office on 02 6882 3133 as per usual, however we recommend you utilise email as the preferred means of contact. All our office and individual contact details are supplied on our website.

Mail

Please email any correspondence or documents to our office rather than sending hard copies in the post. We ask all documents be emailed to our admin email address copying in the solicitor with carriage of the matter.

We appreciate your ongoing support and understanding as we adapt to a rapidly changing situation. Please keep safe.

 

The Family Law Section of the Law Council of Australia has created a Top Ten Guide for Separated Parents during Covid19 you can find it HERE.

 

Posted below is an update from REI NSW from 12 March 2020 in respect of Coronavirus (COVID-19) which sets out some information that may be of assistance in this time.

The information below has been reproduced with permission from REI NSW.

REI NSW may be contacted via phone on (02) 8267 0578 and their website is www.reinsw.com.au

Dear Colleague,

 

REINSW is monitoring the evolving situation in relation to the impact of Coronavirus Disease 2019 (COVID-19), previously known as Novel Coronavirus. Cases are currently increasing in Australia, although resulting deaths are thankfully extremely low. It is possible that the disease will continue to be spread through community transmission.

Real estate is a people business where agents deal closely with a wide range of people in many environments – workplaces, homes, shopping centres and so on. In doing so there are a few sensible precautions to take to aid the protection of yourself and others.

The situation is continually evolving, and individuals as well as those responsible for others need to stay informed and make decisions based on information from reliable sources, such as the Department of Health (Commonwealth) and NSW Ministry of Health. Please refer to these websites frequently for news on Coronavirus Disease 2019 (COVID-19) as they are updated regularly.

We are putting precautions in place here at REINSW so that the normal course of business may continue as usual. We are implementing sensible systems in case we need to work remotely and we are working to make sure we have increased hygiene procedures at all of our events and training courses for the foreseeable future.

It is important to make sure your business runs as smoothly as possible in these uncertain times.

If you’re wondering what you can do to prepare your business and staff, perhaps you might consider the following:

• Follow up to date health and hygiene guidelines
• Make sure hand sanitiser and tissues are available to all staff, clients and visitors
• Properly wash your hands frequently and thoroughly. Click here for tips on the 20 second-hand wash.
• Cover your nose and mouth when coughing or sneezing
• Stay at home if you are sick
• Isolate any staff members who show signs of possible symptoms and advise them to contact their doctor
• Refrain from shaking hands or greeting others with a kiss

• Prepare contingency plans in response to the virus
• Review and adapt your agency practices and procedures as required
• Have plans in place for staff to work remotely if needed
• Make sure laptops are available to staff with access to office servers and drives
• Make sure office phones can be diverted to staff mobile phones or to an answering service

NSW Health has provided this fact sheet: Frequently Asked Questions about COVID-19.

We cannot give specific advice to individual businesses but, as your peak industry body, we encourage you to consider:

• Reviewing internal policies and procedures and adapting them if necessary
• Cancelling unnecessary staff travel plans
• Deferring open, periodic or other inspections if there is any concern
• Not attending auctions or entering a property if you’re aware there is someone in there or has been in there self-isolating because of the virus (for instance, a tenant or vendor)
• Encouraging auctions to take place in the agents’ office as opposed to on-site

It is business as usual here at REINSW. However, should REINSW events or training courses need to be cancelled, we will notify you at our earliest opportunity with information on cancellations and postponements.

We are carefully watching news alerts on Coronavirus Disease 2019 (COVID-19) and should government advice change we will notify you with updates.

In the meantime, here are some useful links providing information on the disease and how you can protect yourselves:

• World Health Organization (WHO) | How to protect yourself against COVID-19
• Department of Health | Coronavirus (COVID-19) health alert
• Service NSW | COVID-19 (Novel Coronavirus)

Rest assured that we are here to support you with the smooth running of your agency and we will alert you to any updates on the virus as and when required.

REINSW

 

 

Blog authored by Andrew Cannon  - contact email: aac@peacockes.com

Recent and Upcoming Changes to NSW residential tenancy laws

There were significant changes to residential tenancy laws in NSW in 2019 relating to victims of Domestic Violence.

From 23 March 2020 other changes to the residential tenancy laws regarding a number of significant matters will commence, including the newly enacted Residential Tenancies Regulation 2019 (NSW) (“2019 Regulation”). As well as amendments to the Residential Tenancies Act 2010 (NSW) (the "Act") which are set out in the Residential Tenancies Amendment (Review) Act 2018 ("Review Act").

2019 Amendments relating to domestic violence

In NSW, one of the strongest undercurrents for change to residential tenancy laws was aimed towards availing greater protections for victims of domestic violence. As such, a victim of domestic violence may obtain a declaration by a competent person which will allow victims of domestic violence to terminate their tenancy immediately and without penalty from the landlord. Tenants, who are victims of domestic violence are also able to be exempted from liability  for property damage committed by a co-tenant, which occurred during the commission of a domestic violence offence.

However pursuant to s 54 of the Act and the 2019 Regulations, who will now be held liable in an event of such property damage remains a grey area, although presumably it would be a co-tenant offender. Nevertheless it could result in a situation where the offender/co-tenant is unable to be located and therefore it may be more difficult for a landlord to hold anyone accountable for such damage.

In any case, it is recommended that landlords check their insurance coverage and ensure that they hold cover for tenant damage.

Domestic violence declaration

A victim of domestic violence who wishes to utilise their rights to terminate their lease due to the domestic violence will need to have one of the following:

* A copy of a certificate of conviction regarding the offender; or

* A copy  of a Domestic Violence Order against the Offender; or

* A relevant injunction against the offender under Section 68B or 114 of the Family Law Act; or

* A declaration by a "competent" person.

Where a victim wishes to utilise a declaration by a competent person, then the declaration needs to be completed by a medical practitioner registered under the Health Practitioner Regulation National Law (NSW). The medical practitioner will need to  have consulted the tenant/victim and if applicable, consulted with any dependent child of the tenant who is the victim of the  domestic violence.

Additional 2020 protections  - Consent from tenant required before publication of photos or visual recordings showing the tenant's possessions

From 23 March 2020, it will be an offence for a landlord or agent to publish a photograph or visual recording of the interior of the residential property, if it shows the tenant’s personal possessions  - unless written consent is first obtained from the tenant. A tenant must not unreasonably withhold consent.

This right applies to all tenants, not just victims of domestic violence.

However this change is aimed at preventing tenants from being inadvertently located by former violent partners.

New rights regarding early termination by tenant - ‘break’ fees

Pursuant to s 34 of Schedule 1 of the Review Act (which will become Section 107 of the Act) applicable to all fixed term leases for a period of 3 years or less, a tenant will be able to break their residential tenancy agreement, subject to payment of a scaled fee to the landlord. The following break fees apply in the following circumstances:

1. If less than 25% of the fixed term had expired when the premises were abandoned – 4 weeks rent;
2. If 25% or more but less than 50% of the fixed term has expired when the premises were abandoned – 3 weeks rent;
3. If 50% or more but less than 75% of the fixed term had expired when the premises were abandoned – 2 weeks rent; and
4. If 75% or more of the fixed term had expired when the premises were abandoned – 1 week’s rent.

 

New  Minimum standards

Arguably the most significant of the proposed changes includes s 10 of the Review Act (which modifies Section 52 of the Act) – ‘Landlord’s general obligations for residential premises’, which sets out 7 minimum standards for a rented property to be in a reasonable state of cleanliness and be ‘fit for habitation’. Landlords will have to ensure that a rental property is:

1. Structurally sound;
2. Have adequate natural light or artificial lighting in each room other than a garage or a room intended for storage;
3. Have adequate ventilation;
4. Are supplied with electricity or gas and have a adequate number of electricity outlet sockets or gas outlet sockets for the supply of lighting and heating to and use of appliances in the property;
5. Have adequate plumbing and drainage;
6. Connected to a water supply service or infrastructure for the supply of hot and cold water for drinking, washing and cleaning; and
7. Contain bathroom facilities, including toilet and washing facilities that have privacy.

Further, the Review Act provides a definition that deems when a residential premises is “structurally sound”.

“Structurally sound”

Pursuant to section 10 of the Review Act (which modifies Section 52 of the Act), “structurally sound” is a defined term whereby a residential premises is only considered structurally sound if the floors, ceilings, walls, supporting structures (including foundations) doors, windows, roof, stairs, balconies, balustrades and railings are:

• in a reasonable state of repair;
• with respect to the floors, ceilings, walls and supporting structures – are not subject to significant dampness; and
• with respect to roof, ceilings and windows – do not allow any water penetration into the property; and
• are not liable to collapse because they are rotted or otherwise defective.

Smoke alarms

All NSW landlords will also have to ensure all smoke alarms installed are in working order and carry out repairs as a matter of urgency or face a penalty by way of a fine if they fail to comply. A tenant who repairs or replaces a smoke alarm (including replacing its battery) will also be entitled to a reimbursement of the costs under the new amendments (but only where the Landlord did not act with reasonable diligence to repair or replace the smoke alarm).

Landlords must also:

• Carry out annual checks to ensure smoke alarms are in working order;
• Repair or replace a smoke alarm that is not working within 2 business days of becoming aware that it is not working;
• Replace an existing smoke alarm with a new smoke alarm within 10 years from the manufactured date or earlier; and
• Replace a removable battery in all smoke alarms by the period specified by the smoke alarm manufacturer or otherwise annually.

Modification for strata premises: Pursuant to cl 30 (b) of the 2019 Regulations, it may be possible for a landlord to not be liable to replace or repair smoke alarms, but only where  the strata scheme is responsible for the repair and maintenance of smoke alarms in a residential premises and only if the landlord has advised the tenant in writing that the owners corporation are liable for such repair/replacement.

Changes of ‘a minor nature’

The new regulations include a list of alterations, additions or renovations that are considered to be of ‘a minor nature’ in which it would be unreasonable for a landlord to withhold consent, including changes that are required to be carried out by a licenced tradesperson. However, the tenant must still ask for consent first (but the landlord cannot unreasonably withhold consent, except that no alterations, additions or renovations shall be carried out by tenants on properties on the loose-fill asbestos register and/or of a heritage item).

Pursuant to the 2019 Regulation, the following are all considered kinds of alterations of a ‘minor nature’:

• Securing furniture to a wall of a premise if it is necessary for the safe use of the furniture;
• Fitting a childproof lock to an exterior gate of a single dwelling;
• Installing fly screens on windows;
• Installing / replacing internal windows coverings;
• Installing child safety gates on the premises;
• Installing window safety devices for child safety;
• Installing hand-held shower heads or lower style taps for the purpose of assisting elderly or disabled people;
• Installing or replacing hooks, nails or screws for hanging paintings and other items;
• Installing or replacing a carriage service for connecting a phone line or accessing the internet;
• Planting vegetables, flowers, herbs or shrubs if existing plants do not need to be removed and for shrubs, will not grow taller than 2 metres;
• Installing wireless removable outdoor security cameras; and
• Making a modification that does not penetrate a surface or permanently modify a surface, fixture or the structure of the premises.

Rent increases 

Pursuant to section 9 of  Schedule 1 of the Review Act (which amends Section 41 of the Act), rent payable under a periodic lease agreement may not be increased more than once in a 12 month period.

 

Rectification orders

 

Under Division 5A of the Review Act, broader powers are given to Fair Trading NSW regarding the investigation of damage to premises. These broader powers include the ability of Fair Trading NSW to issue rectification orders for both tenants and landlords, as well as assist both tenants and landlords engaged in a rectification order process to resolve disputes (if any) about repairs and damage to a rented residential property.

Similarly, by way of respective applications made by either a landlord or a tenant, Fair Trading NSW investigators will have dual powers to investigate whether a landlord has failed in their duties, pursuant to the Residential Tenancy Act and Review Act, to provide and maintain the property in a reasonable state of repair and ‘fit for habitation’.

Information Statement for landlords

Pursuant to section 7 of Schedule 1 of the Review Act (to become Section 31A of the Act) a new requirement for landlords from 23 March 2020 is the necessity to acknowledge reading an information statement before entering all new residential tenancies agreements. Under that section, a landlord must not enter into a residential tenancy agreement unless the landlord or landlord’s agent has signed an acknowledgment on the approved form of the residential tenancy agreement that they have read and understood the information which sets out the landlord’s rights and obligations under the residential tenancy legislation in NSW.

Condition Reports

The amendments also see stronger compliance and enforcement of condition reports, which have also been updated in a new, approved form applicable from 23 March 2020. The new, approved form for condition reports reflect the 7 minimum standards to be introduced as well as the new laws regarding smoke alarm compliance for landlords.

Pursuant to section 4 of Schedule 1 of the Review Act (to become Section 29 of the Act), the amendment requires that the landlord or the landlord’s agent before or at the time of signing the residential tenancy agreement, give the tenant 2 copies of the condition report; or one electronic copy. Additionally, failure by a landlord or a landlord’s agent will now result in a penalty being potentially enforced. The new form also requires that once provided by a landlord or a landlord’s agent, that the tenant must return 1 copy of the completed condition report to the landlord or the landlord’s agent within 7 days after taking possession of the property and is to keep the other copy or a completed electronic copy.

Any photos or video recordings taken at the time of inspection are to be verified and dated and should be attached to the condition report to be retained. However, any attachments of photographs/video recordings will not be treated as a substitute for accurate written descriptions of the condition of the property.

Information Disclosure by landlord

Presently, under Section 26 of the Act, prior to the tenant entering into a lease, the landlord/agent must give a Tenant Information Statement to the tenant and disclose if the property is for sale or if the landlord has prepared a sale contract and must also disclose if there is any action being taken by a mortgagee to repossess the property.

In addition a landlord/agent must not make any false statements or false representations about the property or make false promises or mislead or deceive anyone as an inducement to them to enter into the lease and the landlord must not knowingly conceal a material fact.

The new amendments will extend this disclosure requirement, such that if the property is part of a strata scheme, then the landlord/agent must provide to the tenant a copy of the by-laws of the scheme prior to the lease being signed and must also advise the tenant of a strata renewal committee has been established.

In addition the 2019 Regulation includes the following as material facts:

 

• The residential premises have been previously subject to flooding or bushfire within the last 5 years;
• The residential premises are subject to significant health or safety risks;
• The residential premises are listed on the Loose Fill Asbestos register;
• A person has been convicted of a serious indictable offence involving violent conduct that took place at the residential premises in the last 5 years;
  
• A person has been convicted of an offence under the Drug Misuse and Trafficking Act 1985 that took place at the residential premises within the last 2 years; and
  
• The landlord has been notified by the council or NSW Police that the residential premises has been used for the manufacture or cultivation of any prohibited drug or prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985 within the last 2 years.
  
• The council waste services are different to those that are generally applicable in that area;
• The tenant will not be able to obtain a residential parking permit (if in an area where paid parking is usually only permitted);
• The existence of a driveway/walkway that the tenant must share with other persons;
• Where a strata scheme, that there are scheduled rectification work or major repairs to be carried out on the common property;
• If there have been any notices issued or DA's lodged regarding combustible external cladding.

 

Under section 28 of Schedule 1 of the Review Act (to become Section 98A of the Act), a tenant may terminate a residential tenancy agreement by giving 14 days’ notice, if the landlord has failed to disclose information required to be provided to the tenant pursuant to Section 26 of the Act.

However, it may be possible for a landlord to revoke the termination notice if the landlord makes an application to the Tribunal prior to the termination date and if the Tribunal is satisfied in the circumstances that the tenancy should continue.

Changes - long term leases

The new residential tenancy laws in NSW include mandatory terms that cannot be modified, excluded or otherwise contracted out of by either a landlord or a tenant for fixed term tenancy agreements for 20 years or more.

 

 

Blog by Andrew Graham Contact Email: amg@peacockes.com

 

REVENUE ISSUES RE WILLS AND ESTATES 

A.Testamentary Trust 

The use of testamentary trusts has been widely promoted over recent years by those in the financial planning industry and also by accountants and lawyers. The principal reason for the use of the testamentary trust, from the point of view of potentially saving tax, is due to the notion of “excepted trust income” under Section 102AG(I) of the Income Tax Assessment Act, 1997 (“the Act”).

Normally minors who derive non-personal service income by a distribution from a discretionary trust are taxed at penalty rates under Division 6(iv) of the Act where the income received exceeds $416.00. However, where the minor receives income from a trust created in the Will of a person, the income is treated as “excepted trust income” and the minor is taxed on that income as if the minor were an adult. This allows the recipient of the trust income to receive the first $18,200.00 tax free (if the minor has income from no other sources) and also allows the minor the benefit of the progressive tax rates where the income received exceeds $18,200.00 up to the maximum tax rate of 47% (including the 2% Medicare levy) where the income exceeds $180,000.00.

Accordingly, potentially significant amounts of tax may be saved where the children of an elderly person have children under the age of eighteen (18) years. The testator, instead of leaving the whole or part his estate to his child or children could instead establish a testamentary trust for the benefit of that child or children and their wider family members. Typically, each child is appointed as the trustee of the testamentary trust and the beneficiaries, being discretionary, include members of that child or children’s family. The tax payable by the family unit will be significantly less than it would have been had the testator left his estate directly to his child, or children.

There are other potential advantages of use of testamentary trusts, but this blog concentrates solely on the revenue implications (both positive and negative) of such trusts.

Whilst significant tax savings may be achieved where minor beneficiaries are eligible to receive income of the testamentary trust, caution should be exercised before concluding that testamentary trusts are the panacea of estate planning. The following potential disadvantages of testamentary trusts should also be taken into account:-

1.Principal Place of Residence – A testamentary trust does not enjoy the principal place of residence exemption for capital gains tax purposes. Accordingly, if it is intended that a beneficiary of a testator use a property received under the Will of a deceased as his or her principal place of residence, if such property were devised to the trustee of a testamentary trust (as indicated above, usually by a child of the deceased) any profit realised on the eventual sale of the property by the testamentary trust will not be free of capital gains tax. The net capital gain may be reduced by 50% if the property is held for more than twelve (12) months, but the CGT free status of the principal place of residence will be lost.

2.Whilst stamp duty will not be payable upon the transmission of any dutiable property from the deceased to the Trust (so long as it “passes” under the Will of the deceased), any transfers by the Trust to any beneficiary of the trust will be liable to stamp duty. Careful consideration therefore needs to be given to the actual assets, especially real property, which are left to a testamentary trust by the testator.

3.A discretionary trust, unless the trust deed establishing the trust specifically excludes any foreign person from being a beneficiary, will be treated as a “foreign person” for the purposes of the Duties Act, NSW. This means that if a discretionary trust owns real property, not only does it pay land tax on the full value of the property (i.e. does not get the benefit of the tax free threshold, it is also required to pay the surcharge rate of land tax of 2% (in addition to standard land tax). Furthermore, for land tax purposes, the principal place of residence is not exempt, even though it may be used by the beneficiary as his home. The common testamentary trust is really a discretionary trust embodied in the will of the testator which comes to light upon the death of the testator. Significantly the terms of the trust cannot be amended (for example to exclude foreign persons as beneficiaries), unless the will permits it.

4.If the trustee of a testamentary trust uses money of the trust (inherited from the deceased) to purchase real property, foreign surcharge duty (calculated at the rate of 8% on the value of any residential land) could be payable even if the deceased was not a foreign person.

B.Partition of Estate

A device which can produce potentially large stamp duty savings is to partition an estate, rather than to agree on the division of specific assets under a deed of family arrangement.

The following simple example illustrates the potential savings in stamp duty:-

Assume that properties A and B are left to the two beneficiaries, X and Y equally, but that X wants to take Property A and Y wants to take Property B..

If property A has a value of $2,000,000.00 and

property B has a value of $5,000,000.00 then:

Option 1: Deed of Family Arrangement

Under a Deed of Family Arrangement X gets A (worth $2,000,000.00) and Y gets B (worth $6,000,000.00).

The total duty payable is  calculated as follows:-

   i.   A – duty payable on 50% of $2,000,000.00 ($1,000,000.00) = $40,490.00

   ii.  B – duty payable on 50% of $6,000,000.00 ($3,000,000.00) = $150,302.00

Total duty = $190,792.00.
 

Option 2: Partition

The alternative would be to partition the estate under Section 30 of the Duties Act, NSW.

Under the partition X gets 100% of A and Y gets 100% of B. The duty payable is then:

      i.  X – Duty payable $50.00

     ii. Y – Duty payable on $2,000,000.00 ($6,000,000.00 – 50% x $8,000,000.00) = $95,302.00

Total duty = $95,352.00

Therefore the stamp duty saved by choosing to Partition, rather than to use a Deed of Family Arrangement is $95,440.00

                  - - - - - - - - - - - - - - - - - - - - - -

The above demonstrates that careful planning can result in significant revenue savings by beneficiaries following the death of the testator.

It pays to get advice from a professional person having experience and expertise in revenue implications of estate planning and deceased estates and we at Peacockes Solicitors can guide you in the right direction.

 

Blog authored by Amanda Quin

What is a Deposit Bond?

A Deposit Bond is a document which a lender or an insurer or other entity issues which states that the issuer will guarantee the payment of the cash deposit in respect of a contract for sale of a property and will pay the deposit, if called on to do so. There may be other terms and conditions or restrictions noted in the Deposit Bond. For example many Deposit Bonds have an expiry date and will require the original Deposit Bond to be provided to the issuer prior to that expiry date in order for a claim to be made.

Is there a fee for a Deposit Bond to be issued?

Generally a Deposit Bond issuer will charge a fee to provide the Deposit Bond. A full credit application is also usually required to be made by the Purchaser.

When are Deposit Bonds used?

A Purchaser of a property may wish to provide a Deposit Bond if they do not have sufficient money at hand to pay a cash deposit. This may be because they have other investments that they do not wish to liquidate or perhaps because they are borrowing the full purchase price.

Does a Vendor have to accept a Deposit Bond?

A Vendor can refuse to accept a Deposit Bond and may instead insist on a cash deposit being paid.

However if the Purchaser does not have the money available to pay a cash deposit, then this may mean that the sale does not proceed.

Are there any risks if a Vendor accepts a Deposit Bond instead of a cash deposit?

Yes there are some risks including:

(a) That the Deposit Bond may be fraudulent. (NB this risk can be reduced by your legal practitioner or conveyancer checking the authenticity of the Deposit Bond directly with the issuer prior to exchanging contracts); and

(b) Although it has not happened often, there have been instances where a Deposit Bond issuer has been placed into administration/liquidation - which effectively makes the guarantee worthless. NB In such a case, the Purchaser does still remain liable to themselves pay the Deposit and to complete the Contract and in most cases, the Purchaser will proceed to settlement and the deposit will be paid on settlement.

However, there is a risk that if both the Deposit Bond issuer and the Purchaser are unable to pay the deposit, then the Contract will not complete and the deposit will not have been paid. Court action could still be taken against the Purchaser to recover the deposit - but that would only be practically viable if the Purchaser has financial resources to meet any judgement that may be handed down.

A prudent Vendor may need to carefully consider the reliability of the Deposit Bond issuer prior to deciding whether or not to accept a Deposit Bond instead of a cash deposit.

 

Blog by Andrew Cannon – Contact email: aac@peacockes.com

In the midst of the early arrival and the destructive widespread bushfire already throughout Eastern Australia, more than ever it is important to know and understand what rules and laws are applicable to you and your district over this festive season before commencing any activities with fire such as BBQ’s and outdoor pizza ovens.

Fire safety in NSW is mainly regulated by the following legislation in NSW:

• Rural Fires Act (NSW);
• Rural Fires Regulations 2013 (NSW);
• Protection of the Environment Operations Act 1997 (NSW);
• Fire and Rescue NSW Act 1989 (NSW);
• As well as by public authorities such as Local Council regulations via their Local Environmental Plans (LEPs) and rules, news and updates maintained and monitored regularly by the NSW Rural Fire Service.

What is a total fire ban ?

Section 99 of the Rural Fires Act 1997 (NSW) sets out the definition, requirements of and exemptions in relation to total fire ban orders in NSW.

A total fire ban (pursuant to section 99 (1) (a) and (b) of the Rural Fires Act) prohibits the lighting, maintenance or use of fire in the open air for an affected district. These fire bans are declared in the interests of public safety by the Minister. The ban extends also to any activity in the open air that directly causes, or is likely to cause a fire.

Total fire ban orders are declared according to district and on days where there is likely a culmination of weather conditions that are fore-cast as likely to be very hot and dry (conducive to fire) and very high to catastrophic risks of bushfire (including additional factors such as any surrounding impacting bushfires and volume of dry vegetation present).

Potential penalties

Pursuant to section 99 (11) of the Rural Fires Act and Schedule 2 Part 1 of the Rural Fires Regulations, a person who fails to comply whilst a total fire ban order is active is liable to:

• $2200 fine issued on the spot;
• If found guilty in Court, up to a maximum fine of $5,500 and/or 12 months gaol.

Exemptions

Certain exemptions may apply to fire activities during total fire bans.

These exemptions are specified in the Rural Fires Act, Regulations and the NSW Rural Fire Service Schedule of Standard Exemptions to Total Fire Bans, which can be found at www.rfs.nsw.gov.au/fire-information/fdr-and-tobans/schedule-of-standard-exemptions-to-total-fire-bans .

Table of Uses

ACTIVITY	IS IT PERMITTED DURING A TOTAL FIREBAN?	CONDITIONS
Operating an Electric BBQ’s	Yes – subject to conditions	The electric BBQ must be under the direct control of a responsible adult present at all times whilst operating it and no combustible material is to be within two (2) metres of the BBQ at any time whilst it is operating.
Operating a Gas BBQ’s	Yes – subject to conditions	Only if the BBQ is under the direct control of a responsible adult who is present at all times and no combustible material is within two (2) metres of it whilst operational and there is a system of applying an adequate stream of water, such as a hose, to the BBQ and its surrounds and such water is able to be applied for immediate and continuous use. In addition - the BBQ needs to either: (a) be within 20 metres of a permanent private dwelling such as a home; or (b) If in a Park, National Park or State Forest, must be within a designated picnic area and the appliance must have been approved by Council, National Parks or State Forest – as the case may be.
Operating Wood/ coal fired BBQ’s and pizza ovens	Must not be used if outside or if lit in the open air. Any oven or BBQ using solid fuel must not be used during a total fire ban.
Burning of Garbage, refuse and putrescent material	Yes – but subject to conditions and subject to any permit requirements.	The fire may only be lit if in an incinerator designed to prevent the escape of sparks and burning material and the incinerator is clear of all combustible matter for a distance of at least 5 metres. A permit may also be required. See clause 26 of the Rural Fire Regulations and rule 7 of the Schedule of Standard Exemptions to Total Fire Bans.
General hot works	General hot works and activities such as welding, grinding, gas cutting and activity that produces a spark or flame are prohibited and not to be done in the open environment. However exemptions apply to limited activities such as: -Fireworks (but only if part of an organised public display); -Bitumen roadworks; -Beehive smokers; -Mining operations; and -Building, construction or demolition (all of the above are subject to individual and respective conditions).
Light, use or carry tobacco	Generally permitted – but – there are certain locations where this is not permitted. It is NOT permitted to light, use or carry any lighted tobacco product, match or other material within 15 metres of any stack of grain, hay, corn or straw or any standing crop, dry grass or stubble field.. Any persons caught in breach risk receiving a $660 fine on the spot (see s99A (1) of the Rural Fires Act and clause 28 of the Rural Fires Regulations.

 

Bush Fire Danger Period and Fire permits

Even if a total fire ban order has not been made, there are also general restrictions regarding the lighting of fires in the open during the statutory Bush Fire Danger Period (ie from 1 October to 31 March).

If you are planning to light a fire in the open during the statutory bush fire danger period, from 1 October to 31 March, a fire permit is generally required.

If you do obtain a fire permit, then under Part 4 Division 5 of the Rural Fires Act it will be suspended on days declared as a total fire ban. The suspension of the permit will continue until the ban is lifted as notified by the Minister (which can be found on the NSW RFS website and app).

NB Providing it is a non-bush fire danger period, then fire permits are not required for any fires that are lit and maintained for the purposes of land clearance or creating a fire break or for the purpose of cooking food. In the case of cooking food, the fire needs to be in a permanently constructed ground fireplace, at a site surrounded by ground that is cleared of all combustible materials for a distance of at least 2 metres all around and completely extinguished before leaving.

Other considerations

Under section 133 of the Protection of the Environment Operations Act 1997, the EPA also reserves the right to prohibit fires burning in the open air or incinerators where it is of the opinion of the EPA that, because of forecast weather conditions and current fire activity and danger, further burning is likely to contribute to the build up of air pollution.

The Rural Fire Service NSW on www.rfs.nsw.gov.au and app “Fires Near Me” are critical and valuable sources of information for staying up-to-date with changing conditions and fire dangers, as well as local news and radio bulletins and programs for ensuring your safe management and compliance with fire safety this festive holiday season.

 

Our Christmas/New Year Office Hours

 

The Directors and Staff wish you the compliments of the season and advise that this office will close at 1.00 pm on Tuesday, 24 December 2019 and will re-open at 8.30 am on Monday, 6 January 2020.