Blog authored by Tim Cullenward

Criminal Law Changes and Impacts

The Rural Issues Conference held in Sydney on 26 October 2018 was attended recently by several members of the firm and proved informative on a number of relevant issues. Once such issue was the recent changes to the Crimes (Sentencing Procedure) Act 1999.

Many people would have heard the term “section 10” mentioned in professional and social contexts, when discussing potential outcomes to PCA offences or other criminal matters. The expression "section 10" refers to section 10 of the Crimes (Sentencing Procedure) Act 1999. This section allows a Court that finds you guilty of an offence, to discharge you without recording a conviction. Because there is no conviction, there is no criminal record. This blog intendeds to demonstrate the changes to that section and others, in terms of relevant sentences available to offenders.

As of 24 September 2018, sentencing options available to offenders changed in accordance with the Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017. They include the following amendments:

1. Section 10(l)(a) dismissal without proceeding to conviction.
2. Section 10(l)(b) order discharging the defendant under a Conditional Release Order (CRO) referred to in s9(l)(b) without proceeding to conviction (CRO without conviction)
3. Section 10(l)(c) order discharging the defendant on condition that the defendant entered into an agreement to participate in an intervention program
4. Section 9(l)(a) Conditional Release Order proceeding to conviction (CRO with conviction)
5. Section 10A conviction with no other penalty
6. A fine (Fines Act 1996)
7. Section 8(1) Community Correction Order(CCO)
8. Section 7(1) Intensive Correction Order(ICO)
9. full-time imprisonment.

In addition, if a court finds a person guilty of a domestic violence offence, the court must impose on the person either: (a) a sentence of full-time detention, or (b) a supervised order under section 4A of the Sentencing Act. A "supervised order" is an order (being an intensive correction order, community correction order or conditional release order) that is subject to a supervision condition.However, a court is not required to impose full-time detention or a supervised order if the court is satisfied a different sentencing option is more appropriate in the circumstances of the case and records its reasons for reaching that view.

The court must consider the safety of the victim of the offence before imposing a community correction order or conditional release order on a person guilty of a domestic violence offence. A court cannot make an order for an ICO unless it is satisfied that the victim of the domestic violence offence, and any person with whom the offender is likely to reside, will be adequately protected by conditions of the ICO or for some other reason.

If a court finds a person guilty of a domestic violence offence, the court must not impose a home detention condition if the court reasonably believes that the offender will reside with the victim of the domestic violence offence.

New Orders: CRO, CCO and ICO

These Orders have standard conditions that must be imposed. For CRO's and CCO's the standard conditions are that the offender must not commit any offence and must appear before court during the term of the order if called upon to do so. The standard conditions of an ICO are that the offender must not commit any offence and must submit to the supervision of a community corrections Officer. This is substantially similar to the previous model that most people are aware of.

Intensive Corrections Orders

A court that has sentenced an offender to imprisonment for one or more offences may make an ICO directing that the sentence(s) be served by way of ICO, in the community. There is no non-parole period, and the Order is not available if the offender is under the age of 18 years. The Court will require an assessment report on suitability for such an order.

Before a Court will consider an ICO, it will consider the safety of the community as the foremost issue. There are a number of considerations and restrictions in place regarding ICO’s, and these orders are usually imposed in severe circumstances. For more information, please contact our office.

Community Correction Orders

Instead of imposing a sentence of imprisonment, a court may make a community correction order (CCO) in relation to an offender. The maximum term of a CCO is 3 years, and it commences on the date when the Order is made. The standard conditions on a CCO include not to commit any offence and to appear before the court if called on to do so during the term of the CCO. A Court may also impose additional conditions or vary/revoke any such additional conditions. Additional conditions include curfew, community service work (not exceeding 500 hours or hours prescribed by regulations) rehabilitation or treatment, abstention condition alcohol or drugs or both non-association place restriction and supervision by community corrections or juvenile justice.

Home detention and electronic monitoring or a curfew exceeding 12 hours in any 24-hour period cannot be imposed on a CCO. Community service work cannot be imposed without an assessment report confirming the offender is suitable.

Conditional Release Orders

Instead of imposing a sentence of imprisonment or a fine (or both), a court may make a conditional release order discharging the offender if (a) the court proceeds to conviction, or (b) the court does not proceed to conviction but makes an order under sl0(l)(b).

In deciding whether to make a CRO with a conviction, the court must have regard to:

1. character, antecedents, age, health and mental condition;
2. whether the offence is of a trivial nature;
3. extenuating circumstances in which the offence was committed;
4. any other matter proper to consider.

 

Additional notes:

• A court cannot impose a fine and a CRO on the same offender for the same offence.
• A CRO with conviction may be made as an alternative to imposing a fine.
• The maximum term of a CRO is 2 years and commences on the date it is made.
• The court must impose the standard conditions on a CRO. Those conditions are not commit any offence, and to appear before court if called upon to do so during the term of the CRO.
• The Court also has discretion to impose additional conditions, as discussed above.

For more information, please contact our office.

 

 

Blog authored by Tim Cullenward

Overview

Many would now be aware (either by print, news or social media) of a new road rule now in place in NSW, designed to improve the safety of emergency workers and people they are protecting. There is has been significant discussion about the implantation of this new rule, with many in favour of improved safety measures, with some expressing outrage over the dangers in having to dramatically reduce speed with very little warning.

Transport for NSW, with the support of emergency service agencies and other stakeholders, launched a community education campaign across NSW on 30 July 2018 to give the community time to understand the requirements of the rule. The campaign includes TV and radio advertising, social media promotion and digital signage on major roads.

According to the Transport for NSW, Centre for Road Safety, the rule was introduced to improve the safety of police and emergency workers, as well as the people they are protecting. Police, firefighters, paramedics, State Emergency Service and rescue volunteers perform difficult and dangerous work for the community and like everyone, they should feel safe and know that they are protected at work. The new rule provides certainty for motorists about how they should behave when emergency vehicles are stationary on the road and displaying blue or red flashing lights. The new rule also establishes a required standard for safe behaviour and further ensures emergency workers can do their work without worrying about being struck by a passing vehicle. The rule has been designed to provide maximum safety benefits to emergency workers while keeping it simple for the community to understand.

The NSW Government has stated it will monitor the safety and traffic impacts of the rule during a 12-month trial period in consultation with NSW Police, emergency service organisations and other stakeholders. This will allow an evaluation of the safety impacts and any other consequences of the new rule and enable consideration of reviews and outcomes from other jurisdictions implementing similar rules.

The NSW Government will monitor the safety and traffic impacts of the rule in the 12 months the trial is running, in consultation with key stakeholders, as part of an independent evaluation to determine the impact on the safety of emergency service workers and drivers.

The short version

1. The new rule can be found in the Road Rules 2014, Regulation 78-1 (Approaching or passing stationary emergency response vehicles).
2. The new rule requires motorists to slow down to 40km/h when passing a stationary emergency vehicle displaying blue or red flashing lights.
3. The rule also requires motorists to give way to any person on foot in the immediate area of the emergency vehicle. Motorists should not increase their speed until they are a safe distance past the vehicle.
4. The rule applies to vehicles travelling in both directions, unless the road is divided by a median strip.
5. Motorists who do not comply with the rule will face a $448 fine and three (3) demerit points.
6. A maximum court penalty of $2,200 will also apply. This is comparable with the current penalty when it is determined that a motorist has driven negligently in the presence of obstructions or hazards, including stopped emergency vehicles and personnel.

Key Elements from Transport for NSW, Centre for Road Safety:

• Motorists must not exceed 40km/h when passing a stationary emergency vehicle displaying flashing blue or red lights.
• Motorists must also give way to any person on foot near an emergency vehicle displaying flashing lights and not increase speed until a sufficient distance past the vehicle.
• The rule will not apply when an emergency vehicle displaying blue or red flashing lights is on the opposite side of a road separated by a median strip.
• 40km/h is considered a safe speed around vulnerable road users. This speed is consistent with speed limits in school zones, many work zones, and environments with vulnerable and unprotected road users, such as high pedestrian activity areas.
• The new rule will require that motorists do not increase their speed until a sufficient distance past the emergency vehicle so as not to cause a danger to any person near the vehicle (for example, a fire truck may be stationed by the roadside with flashing lights and firefighters may be managing a fire a short distance away from the vehicle. In this instance, motorists should not increase their speed until they are fully past the vehicle and the emergency workers. In contrast, motorists will be required to slow down to 40km/h for a shorter distance when passing a police vehicle that has pulled over another vehicle on the side of the road).
• It is the responsibility of all drivers to be aware of the individual circumstances of each roadside incident and to drive at a safe and appropriate speed under the speed limit.
• The rule applies to all roads, including motorways, highways and freeways.
• If there is a median strip between your vehicle and the stationary emergency vehicle you will not need to slow down.
• If the emergency vehicle is on the median strip, then the rule will apply to vehicles on both sides of the road.
• A median strip is an area or structure that separates vehicles travelling in opposite directions. A median strip can be covered in grass, it can include or be a wire rope or concrete barrier or be a continuous painted island filled with diagonal bars.
• A median strip does not include double white lines, a single white line or a broken white line on its own or in combination with a continuous white line. It also does not include wide centre lines or short painted islands typically found as part of intersection turning lanes.
• Motorists must slow down to 40km/h when passing the following emergency vehicles when stationary and displaying flashing blue or red lights:
  • NSW Police Force vehicles
  • Ambulance Service of NSW vehicles
  • Fire & Rescue NSW vehicles
  • State Emergency Service vehicles
  • Rural Fire Service vehicles
  • Volunteer Rescue Association vehicles
  • Traffic Emergency Response vehicles
• Motorists should always start slowing down in a controlled manner as soon as they first see blue or red flashing lights, taking into account the current road conditions including surrounding vehicles;
• If an emergency vehicle is attending an incident in an area of low visibility, due to the location or weather conditions, it will be because there are no other options to move to a safer location. Further care should be taken in these circumstances.

For more information, please contact our office.

(Blog post author: Andrew Graham)

It is important that Executors carefully consider the taxation implications before distributing assets of an estate.

An estate at law is a trust, where the executor (and also in most cases the trustee) is the trustee of the trust, and the beneficiaries stated in the Will are the beneficiaries of the trust. The terms of the trust are set out in the Will.

Ordinarily, a trustee will only be assessed to tax of the trust in cases where no beneficiary is presently entitled, namely under Section 99 or Section 99A (which contains penal provisions) of the Income Tax Assessment Act 1997 (“ITAA 1997”). The Commissioner of Taxation is happy to accept tax from the trustee under Section 99 of the ITAA 1997, where the trustee is treated as an individual tax payer. Under current income tax rates, no tax is payable on the first $18,200.00 of taxable income, tax at 19% is payable on incomes between $18,201.00 and $37,000.00, at 32.5% for incomes between $37,001.00 and $90,000.00; at 37% on incomes between $90,001.00 to $180,000.00 and 45% for incomes of $180,001.00 and over. (The Medicare levy, currently at 2%, is payable in addition to the above tax rates).

An estate may be continued for tax purposes for up to three (3) years after the date of death, being the financial year in which the deceased died and two (2) subsequent financial years. It is important that an executor consider whether it is preferable for the executor to pay tax on income of the trust estate (i.e. between the date of death and the end of the financial year of the date of death) or whether the individual beneficiaries should.

Ultimately this decision, and also when to make a final distribution of assets of the trust estate, will depend upon the estimated income of the estate and the likely tax rates of the beneficiaries.

In a case where some or all of the beneficiaries are not liable to tax (such as tax-exempt charities) or are subject to low rates of tax, then executors should carefully consider whether each beneficiary should be asked to pay tax, rather than the trustee. In particular where the estate is large and especially where significant assets of the estate are sold in the course of administration and which realise a taxable gain, executors should be particularly diligent.

It makes sense that if a tax-exempt charity receives its share of the deceased’s estate and is not liable for any tax on such share, no tax will be payable on the income relating to the share received.

However for a beneficiary to be liable for tax on the income relating to its share of the estate, the beneficiary must be “presently entitled”. The principles governing present entitlement in the context of deceased estates is set out in Taxation Ruling IT2622. This ruling says that for a beneficiary to be presently entitled to a share of the trust income, the estate must have been “fully administered”. This involves a question of fact. That is, that the assets of the estate have been called in and the deceased’s debts and liabilities have been paid.

Importantly it is the deceased’s debts and liabilities which have to be paid in order to reach full administration, not those of the estate.

Accordingly, even though liabilities incurred in the administration of the estate (such as legal and accounting fees) may not have been paid prior to the making of a distribution of the proceeds of the estate, the relevant beneficiary will still be considered to be presently entitled.

It is common for an executor to sell assets of an estate (such as real estate, investments and shares) and then to make an interim distribution of the proceeds of sale before the executor has even sought confirmation of the taxation liability either of the executor or of the beneficiaries. Capital gains and capital losses made by the estate are aggregated to determine whether the estate has made a net capital gain or a net capital loss. A net capital gain is included in the estate’s net income (Section 95 of the ITAA 1936). Where a resident beneficiary of a trust estate (who is not under a legal disability) is presently entitled to a share of the income of the trust estate, Section 97 of the ITAA 1936 operates to include in the assessable income of the beneficiary, his or her or its share of net income of the trust.

So long as the estate assets have been called in and the deceased’s debts and liabilities have been paid, it does not matter whether or not the estate has reached the point of full administration or is at the intermediate stage. This is because the beneficiaries are presently entitled to any amounts that are actually paid to them by the executor. If the estate has not been finalised it does not prevent the beneficiaries in this situation from being presently entitled to the income actually paid or to be paid to them or on their behalf. However had one or more debts or liabilities of the estate not had been paid prior to any distribution to a beneficiary of his/her/its share of the estate proceeds, the executor would be liable to be assessed on the income of the trust estate under Section 99 or Section 99A of the ITAA 1936.

It is not uncommon in large estates where a significant net capital gain could be derived from the calling in of the deceased’s assets. For example, where the net capital gain was $300,000.00, tax payable by the executor (under Section 99 of the ITAA 1936), the tax would be $108,097.00. If all the beneficiaries were tax exempt charities, no tax would be payable.

In the case where the net capital gain of the trust estate was $15,000.00 and comprised the only income of the estate, in most cases it would be preferable if the executor was assessed under Section 99 of the ITAA 1936 rather than each beneficiary were assessed under Section 97 ITAA 1936, because the net income is below the taxable threshold of $18,200.00 and no tax is payable.

The message for executors is to carefully consider the taxation implications of each estate, which will depend upon the size of the estate, the nature of the assets, the tax position of each of the beneficiaries and whether the debts and liabilities of the deceased have been paid prior to any distribution being made to any of the beneficiaries.

 

 

Your Will and Aged Care Accommodation

If you (or your spouse) are considering entering Residential Aged Care then you should undertake a review of your Will.

Many people leave all of their estate to their spouse, however this is not always the best decision.

For example only:

• If your spouse receives an aged pension and has entered into in Residential Aged Care and the Australian Government contributes to the Aged Care Daily Accommodation Payment for your spouse; and

• If you have children or other beneficiaries who would benefit from an inheritance;

Then in some cases it may be beneficial to leave some or all of your assets to your children or other beneficiaries rather than to your spouse.

The reason for this is that if your spouse inherits assets then:

• This may increase how much your spouse has to contribute to the costs of their Residential Aged Care.
• It might reduce the amount of Aged Pension that your spouse may be entitled to.

However circumstances can vary greatly.

NB how you currently hold your assets is important, as the gifting rules may come into play if you need to sever joint tenancies and this could adversely affect your and your spouse’s pension.

Likewise the value of your and your spouse’s assets and how close they are to the relevant asset test thresholds may also make a difference.

We therefore recommend you obtain legal and financial advice specific to your situation prior to altering your Will.

 

 

Over 65 and Thinking of Downsizing? Potential new superannuation benefits

From 1 July 2018, if you meet the eligibility requirements, you may be able to make a downsizer contribution into your superannuation of up to $300,000 from the proceeds of selling your home.

To be eligible to make a downsizer contribution of up to $300,000 into your super:

• You will need to be 65 or older at the time of the contribution
• Your house sale contract must have exchanged on or after 1 July 2018
• You must make your downsizer contribution within 90 days of selling your home (unless the ATO grants you an extension on this time limit)
• You can only make a contribution from the sale of one home (ie you cannot previously have used the downsizer contribution scheme). However you can make multiple contributions from the sale of that one home – but all contributions must be made within 90 days of the sale completing and cannot exceed the cap of $300,000 per person
• You or your spouse must have owned your home for 10 years or more before selling it
• Your home must be in Australia and you must apply the main residence exemption for CGT to the sale of the home (unless you acquired the home prior to 20 September 1985)
• You must submit the downsizer contribution form to your super fund either before or at the same time as making your contribution
• The contribution cannot be greater than the total proceeds from the sale of your home

If you choose to make a downsizer contribution then:

• If you have a spouse, then each of you may be able to make your own contribution of up to $300,000
• A downsizer contribution will not count towards your concessional contributions cap
• A downsizer contribution can be made even if your superannuation balance is greater than $1.6 million
• However a downsizer contribution will count towards your transfer balance cap of $1.6 million (nb the transfer balance cap applies when you move your super savings into the retirement phase)

You should carefully consider whether a downsizer contribution is suitable for you, as they are not tax deductible and will be taken into account for determining eligibility for the age pension.

If you sell your home, are eligible and choose to make a downsizer contribution, there is no requirement for you to purchase another home, however purchasing a new home is also permitted.

 

 

Family Dispute Resolution   (Blog by Kathleen Clark)

You’ve been to see your family law solicitor about a parenting matter and hear the dreaded words, “you need to attend mediation”. What does that even mean?

The Family Law Act provides that before making an application for a parenting order, a person must make a genuine effort to resolve their dispute by family dispute resolution(see section 60I(1)). It does not mean relationship or marriage counseling. Like any industry, family law has its own jargon – “family dispute resolution” is regularly interchanged with phrases such as “mediation” and “litigation intervention conference”.

Genuine effort

“Genuine effort” means that you need to participate in the mediation process in good faith. Behaviours that are NOT in good faith include:

• Failure to make proposals in the first place
• Unnecessary postponement of meetings
• Refusing to agree on trivial matters
• Shifting position just as agreement seems in sight
• Adopting a rigid non-negotiable position
• Failure to make counter proposals
• Unilateral conduct which harms the mediation process
• Refusal to sign a written agreement in respect of the mediation process or otherwise
• Failure to do what a reasonable person would do in the circumstances

(see Tom Altobelli, A brave new world: pre-action procedures in family law, Australian Family

Lawyer, Vol 17 (2) at 34-35).

What if it fails?

If the process fails, and it may do so for a myriad of reasons, the mediator (also known as family dispute resolution practitioner) will issue each participant with a section 60I certificate.This is then filed with a court application for parenting orders.There are different types of certificates, and you should check with your lawyer about what type you have been issued, and whether there are any potential cost implications.

The Process

Each mediation provider has their own process.Broadly speaking:

• There is an intake phase.This provides each person participating in the mediation a chance to meet with the mediator, explain how the parenting relationship has worked, current issues and their concerns.Some providers at this stage require each participant to undergo some courses, counselling or other training to ensure they are ready to mediate.
• There is the mediation phase.What this looks like for each mediation is determined on a case by case basis.Some mediations are conducted by telephone, some in separate rooms (called shuttle mediation) and some face to face.Broadly speaking there is opportunity at the commencement of the mediation for each person to say what has brought them to mediation, and what they are hoping to achieve.The mediator will then facilitate discussion between the participants and help them explore options for resolution.It is not the mediator’s role to decide about certain facts or decide who is right.The mediator controls the process that allows the attendees to try and resolve their dispute.

Parenting Plan or Orders

If agreement is reached, you may receive a parenting plan.A parenting plan is a written document, signed and dated by the attendees.It may deal with a variety of matters such as:

• Who the children will live with
• How the children will spend time with each parent
• Communication between attendees/attendees and each child
• How the plan will be updated

Attendees may wish for the parenting to plan to become a Court order and will need to talk to a solicitor about this process.

Preparation

Mediation is not just another hoop to jump through to get to Court.It is an opportunity for you to make the decision about how to parent your children.If you cannot agree or compromise with the other person involved, then you may end up handing over your power to make decisions about how to parent your children to lawyers and judges.Whilst sometimes this is necessary, it is far better if it can be avoided.

Given its importance, you should seek legal advice as part of your preparation for mediation.Things to discuss with your lawyer include:

• What does the Family Law Act say about parenting matters?
• What types of proposals would be reasonable in your particular circumstances?
• What are some negotiating tips and strategies that you can employ?
• What kind of topics should you be ready to discuss at the mediation, and what points will you raise?

If you would like legal advice, please contact either Tim Cullenward or Kathleen Clark today on (02) 6882 3133.

Blog posted by Amanda Quin. Blog Author Kathleen Clark.

 

 

The New South Wales government has recently announced driver licence disqualification reforms that will come into effect in October 2017

Put simply, the penalties for when you have your license disqualified are changing, to ensure better community protection and a reduction of repeat offending and unauthorised driving.

These proposed changes can be summarised as follows:

Police will have greater powers to impose on-the-spot vehicle sanctions to keep repeat offenders and dangerous drivers off our roads.

Certain disqualified drivers who have complied with their disqualification period for at least two years will be able to apply to the Local Court to have their disqualification lifted early.

No disqualified driver ever convicted of driving offences involving death or grievous bodily harm will be eligible to have their disqualification periods lifted early.

Penalties for unauthorised driving will be more proportionate to other NSW driving offences.

There is a number of rationales for these changes. For instance, a disqualification period of 5 to 10 years does not necessarily deter unauthorised driving, and such lengthy periods without a licence may have a devastating impact on people in regional and remote rural areas, especially those without access to public transport, or whose employment requires a license.

It is hoped these reforms will reduce reoffending, by allowing people to return to lawful and regulated driving, while simultaneously providing stronger powers for police to protect the community from dangerous drivers. The reforms are expected to allow police to confiscate registration plates or cars owned by repeat offenders on the spot, where drivers have continued to drive whilst unauthorised. These reforms will enable police to impose a three month vehicle sanction where a disqualified driver is caught exceeding the speed limit by more than 30 km/h. Police will also be able to impose vehicle sanctions on the spot of six months to repeat offenders who have two or more existing convictions for certain driving offences within the previous five years. For instance, people who have been convicted for driving whilst unlicensed or disqualified, apply for a licence without mentioning the disqualification, or stating the name incorrectly on a driving application, may be subject to these harsher penalties. At present these amendments will only apply to a disqualified driver is also the registered operator of the vehicle.

A number of benefits come with these reforms. For instance, certain disqualified drivers may apply to the local Court to have their disqualification lifted early if they have complied with their disqualification period from a minimum of 2 to 4 years depending on the individual circumstances. However, if a person subject to a disqualification has ever been convicted of driving offences involving death or grievous bodily harm, then they will not be eligible to lift their disqualification period. That all aside, the local Court will still need to consider community safety in determining whether to lift a disqualification period. If you have had your disqualification period lifted, you will still need to apply to the roads and Maritime services to complete the standard road safety knowledge test to get your license back.

The maximum penalties for unauthorised driving offences will also be revised, and more information on that issue will be available shortly. Minimum and automatic disqualification periods the plight unauthorised driving offences. For example if you are convicted of driving while your license is disqualified, cancelled or suspended, you will automatically be disqualified for six months under these new reforms. Whilst the court may vary that suspension. Depending on your circumstances, will be no less than the minimum disqualification period of three months. Those automatic disqualification and minimum periods will increase for each second and subsequent offence.

One of the biggest reforms is the abolition of the habitual traffic offender scheme. At present if you are convicted of three relevant serious driving offences within a five year period, you automatically declared a habitual traffic offender Accordingly you are banned from holding a driving licence for five years. That ban applies in addition to any other penalty received for the offence and runs consecutively, meaning you may be off the road for extremely lengthy periods.

If you have received a disqualification notice, or you have been subject to a sanction by police, for further information you should make an appointment with our office.

Blog author: Tim Cullenward

REVENGE PHOTOS

 

In our modern age it has become common for people to record and photograph everything even intimate images and actions. This has led to spurned lovers or ex partners publishing explicit photos or videos of their ex-partner without consent on the internet usually via social media.

The Crimes Amendment (Intimate Images) Act 2017 (NSW) was recently passed criminalising this technological form of stalking and abuse. 

There are four new offences:

• 1.intentionally recording an intimate image of another person without consent;
• 2.intentionally distributing an intimate image of another person without consent;
• 3.threatening to record and or distribute an intimate image of another person without consent; and
• 4.failing to take down or destroy an intimate image recorded or distributed without consent when ordered by the courts to do so.

Penalties for being found guilty of the above offences include up to 3 years in prison, an $11,000 fine or both.

A person under the age of 16 cannot give consent and offenders under the age of 16 may also be liable, however there are some special rules surrounding an offer under the age of 16.

The new laws are a response to sexual, domestic and family violence and a timely message that such behaviour is not humorous but criminal.

Blog author: Geoff Yeo

 

 

The Financial Ombudsman Service, the Credit & Investments Ombudsman and the Superannuation Complaints Tribunal are to be merged into a single entity called the Australian Financial Complaints Authority (AFCA).

AFCA will be overseen by ASIC.

It is proposed that this new complaints authority will commence on 1 July 2018.

 

On 1 July 2017 a number of changes to the Retail Leases Act (NSW) (“the Act”)commenced including:

Removal of 5 year term

Section 16 of the Act was removed. As a result there is no longer a minimum term for a Retail Lease and no requirement for a solicitor’s certificate to be executed for short term leases.

Lease registration

• The Landlord must supply the Tenant with a copy of the fully signed lease within three (3) months of the tenant returning the signed lease to the Landlord.

• In addition, where the term of a lease is three years or more then the lease must be registered within 3 months of the Tenant returning the signed lease to the Landlord. This period may however be extended where any mortgagee delays in consenting to the lease.

• The Landlord cannot require the Tenant to pay any mortgagee consent fees.

• The maximum fine that may be imposed is 50 penalty units (which is currently $5,500).

Disclosure Statements

• If the estimated amount of an outgoing is not disclosed in a Lessor’s disclosure statement, then the Tenant does not need to pay the outgoing.

• Where the estimate for any outgoings is less than the cost of the actual outgoing – then unless there was a reasonable basis for the estimate, then tenant does not need to pay more than what was estimated.

• If a Landlord fails to provide a Tenant with a disclosure statement (which is to be supplied at least 7 days before the lease is entered into) or has served a defective disclosure statement (ie an incomplete or misleading disclosure statement), then the Tenant may terminate the lease during its first 6 months.

• If the Tenant does exercise its right to terminate the lease then the Tenant will be entitled to claim compensation for costs such as their expenditure on fitout. (Although the Tenant cannot terminate the lease under this section in relation to a defective disclosure statement if the Landlord had acted honestly and reasonably when issuing the disclosure statement and if the Tenant is in substantially as a good a position as they otherwise would have been if the disclosure statement had been correct).

• Lessor disclosure statements are now required for Agreements for Lease.

Bonds and Bank Guarantees

Bank Guarantees must be returned to the Tenant within two months after the Tenant has performed all of its obligations under the lease.

Whilst it has not yet started, there is now provision for the Retail Tenancy Unit to move to an on-line bond lodgment system.

Assignment Process

When a Tenant is seeking consent to assign its lease to an assignee, then the Tenant may ask the Landlord for an updated lessor’s disclosure statement.

If the Landlord fails to provide the Tenant with an updated lessor’s disclosure statement within 14 days of it being requested to do so, then the Tenant may prepare its own updated lessor’s disclosure statement for service on the assignee.

If the Tenant then serves an assignor’s disclosure statement and the updated lessor’s disclosure statement on the assignee and the Landlord AND if the Landlord consents to an assignment of the lease (or is deemed to have consented, where the Landlord fails to respond within 28 days) then the Tenant and its guarantors will be released from liability under the lease from the assignment date.

NCAT jurisdictional limit increase

NCAT can now hear retail lease dispute matters up to $750,000.