The Law Society of NSW Specialist Accredititation 

BLOGS

Any information contained in a blog on this website is general in nature only. The content of any blog posted below reflects information which is known to us as at the date of the posting of the blog. Please be aware that the law regularly changes. Please do not rely on the general information contained in the below blogs, instead we recommend that you contact us to obtain legal advice tailored to your own specific situation.

 

May24

Swimming Pool Certification

Amanda Quin - Tuesday, May 24, 2016

Swimming Pool Certification - Requirements for Selling or Leasing

If you are selling, purchasing or leasing a property in NSW that has a swimming pool, spa or any excavation, structure or vessel that is capable of being filled with water to a depth greater than 30cm designed for human aquatic activity (all of which for the purposes of this Article will be referred to as a “Pool”), then you need to be aware of new regulations that came into effect from 29 April 2016.

What do the new regulations mean for Pool Owners in NSW ?

All Pool Owners in NSW must:_

  • (a)register their Pool (including Strata Schemes and Community Schemes), if they have not already done so. To register your pool all you need to do is go to http://www.swimmingpoolregister.nsw.gov.au/ and enter your name, address, contact details, pool type, approximate age of the pool and complete a self-assessment checklist on your pool; and
  • (b)maintain a safe pool barrier; and
  • (c)comply with any Council orders regarding the safety of their Pool (nb Local Councils have the right to randomly inspect any Pool)

All Pool Owners should generally ensure that their Pool complies with all relevant safety regulations relating to their Pool.

Additional requirements for Landlords:

Before entering into a lease for a premises in NSW that includes a Pool, the Landlord must obtain and attach to the Residential Tenancy Agreement either:

  • (a)A compliance certificate (from either the relevant local Council or an independent registered certifier) in relation to the Pool at the property. The purpose of this certificate is to confirm that the Pool meets the relevant safety requirements. This certificate should be attached to the residential tenancy agreement for the property; or
  • (b)An occupation certificate for the Pool, which is less than 3 years old, together with evidence of registration of the Pool on the Swimming Pool register.

NB The above requirement to obtain and attach documents to the Residential Tenancy Agreement does not apply where the Pool is on common property and the premises are part of a Strata Scheme or Community Scheme that has more than 2 lots.

Additional requirements if you are selling a property in NSW with a Pool:

Before entering into a Contract for Sale for a Property in NSW that includes a Pool (n.b. there are limited exemptions for pools that are on “common property”) the Vendor must obtain and attach to the Contract for Sale either:

  • (a)An occupation certificate for the Pool, which is less than 3 years old, together with evidence of registration of the Pool on the Swimming Pool register; or
  • (b)A compliance certificate (from either the relevant local Council or an independent registered certifier) in relation to the Pool at the Property. The purpose of this certificate is to confirm that the Pool meets the relevant safety requirements; or
  • (c)A non-compliance certificate for the Pool which indicates that the issues that cause the Pool to be non-compliant are minor issues.

Where a non-compliance certificate has been issued and should it show that the Pool has significant safety problems, then the Pool Owner is obliged to rectify the safety problems and then seek a re-assessment of the Pool by a certifier, prior to selling the Property.

However, if the non-compliance certificate indicates that the problems are minor then a non-compliance certificate may be attached to the Contract for Sale and in such a case the Purchaser will instead be responsible for ensuring that the safety issues are rectified. (It may be the case that some Purchaser’s may seek to renegotiate the purchase price based on whom is required to rectify any minor compliance issues).

NB The above requirement to obtain and attach documents to the Contract for Sale does not apply where the Pool is on common property and the premises are part of a Strata Scheme or Community Scheme that has more than 2 lots.

If none of the above certificates are attached to the Contract of Sale, then the purchaser may be able to rescind the contract within 14 days of exchange (or in some circumstances they may be able to rescind the contract right up until the completion date if there is a breach of a Vendor warranty). Therefore it is very important to attach the correct certificates to the Contract for Sale.

What this means if you are buying a property in NSW with a Pool:

The purchaser of a property with a Pool (other than where the pool is on common property of a strata or community title scheme where there are more than two lots in the scheme) should checkthat the Contract of Sale includes at least one of the following;

  • -A certificate of compliance (no greater than 3 years old), or;
  • -An occupation certificate (no greater than 3 years old) and a certificate of registration, or;
  • -A certificate of non-compliance (no greater than 1 year old).

If the Contract for Sale includes a certificate of non-compliance and theproblems with the Pool do not pose a significant risk, then the Vendor can sell the property without being obliged to ensure that the Pool safety is up to standard and insteadthe purchaser will be required to rectify the “minor” non-compliant issues identified by the certifier.

If you are a purchaser faced with the decision of purchasing a property with a certificate of non-compliance you can ask to see a copy of the notice outlining the non-compliant issues. This will give you the opportunity to estimate the potential costs involved to undertake the rectification works and therefore negotiate on the purchase price. Please be aware however that price negotiations should be undertaken prior to exchange of contracts.

For further information visit the NSW Government Swimming Pool Register website at http://www.swimmingpoolregister.nsw.gov.au/ or contact our office on (02) 6882 3133.



May12

Official opening of the Canowindra Office

Amanda Quin - Thursday, May 12, 2016

The new Peacockes Solicitors office in Canowindra was officially opened on Friday 6th May 2016. Geoff Yeo, the solicitor whom is servicing the new office and the directors of Peacockes, as well as many members of the Canowindra Business Community attended the evening to celebrate this milestone. The Canowindra Phoenix newspaper reported on the event and the on-line article is available at: http://www.canowindraphoenix.com.au/peacockes-solicitors-open-for-business/


May03

Interlock Device Orders and Driving Offences

Amanda Quin - Tuesday, May 03, 2016

 

WHAT IS AN INTERLOCK DEVICE?

An interlock device is an Electronic Breath Testing Device linked to a vehicle’s ignition system.The device is designed to prevent the vehicle from being driven unless the driver first blows into the device and prove the driver has a zero blood alcohol concentration.

Whilst driving, the driver must periodically continue to blow into the device to continue to prove that the driver has a zero blood alcohol concentration.

If the device detects alcohol in the driver’s breath, the vehicles ignition system will disable.

WHEN WILL A COURT MAKE AN INTERLOCK DEVICE ORDER?

For many years, the types of penalties that could apply in relation to driving offences have included good behaviour bonds, fines, licence disqualification periods, suspended sentences and for more serious offences or for repeat offenders, courts have also imposed gaol terms.

Since February 2015 the courts have been required to also apply a Mandatory Interlock Order to anyone who is found guilty of either:

  • (a)A first offence of High Range PCA; or
  • (b)A second PCA offence of any type (including low range and special range) within five (5) years of a previous PCA offence (ie in laymen’s terms, a repeat offender).

This new Interlock Order requires a person to install an interlock device in their vehicle at the end of their licence disqualification period, as set out below (please note that limited exceptions apply, please contact us for advice in relation to the same) and their driver’s licence will have a condition applied to it only permitting them to drive a vehicle which has an interlock device installed.

Mandatory Interlock Offence Minimum Interlock Period (starts after the licence disqualification period)

Novice range PCA or Special range PCA or Low range PCA, if it is a second or subsequent offence within 5 years of a previous PCA offence

12 Months

Mid range PCA or Driving under the Influence of Alcohol, if it is a second or subsequent offence within 5 years of a previous PCA offence

24 Months

High range PCA that is a first offence

24 Months

High range PCA that is a second or subsequent offence

48 Months

In addition, the courts can choose to make an Interlock Device Order in relation to other serious driving offences where alcohol was a factor, including dangerous or aggravated driving causing grievous bodily harm or death.

WHAT IS THE COST OF AN INTERLOCK DEVICE?

Participating in an Interlock Program and installing an Interlock Device can cost in excess of $2,200 – however it may be possible to apply for some or all of the Program/installation fees to be paid by instalments, depending upon your financial situation. Again, please contact our office for advice in relation to the same.

WHAT HAPPENS IF YOU DON'T INSTALL AN INTERLOCK DEVICE/ENROL IN THE INTERLOCK PROGRAM WHEN ORDERED BY A COURT TO DO SO?

If a Court makes a Mandatory Interlock Order against you and you do not enrol in the interlock program at the expiry of your disqualification period, then you will remain disqualified from holding a licence (other than an interlock licence) for a period of five (5) years. 


Apr26

Loose-fill Asbestos

Amanda Quin - Tuesday, April 26, 2016

Certain council areas in NSW are considered to be at a higher risk for the presence of loose-fill asbestos insulation.

Loose-fill asbestos is considered to be a significantly more serious health risk as compared to asbestos sheeting.

The NSW government has a buy back/demolition compensation scheme operating, BUT only if the person applying for the buy back/demolition compensation was the owner of the property as at 29 June 2015.

Existing home owners (ie who owned an at risk property as at 29 June 2015) have until 1 August 2016 to register for the free testing program (nb free testing is available if the house is in one of the council areas listed below).

Or if you are a concerned home owner and you live outside of the free testing area, you may choose to privately test your house at your cost, but such cost will be refunded if the test is positive.

If you are purchasing a house built before 1980 (particularly if the property is in any of the following local council areas), then you should consider requiring a clear asbestos test before completing your purchase:

  • Albury City Council
  • Bankstown City Council
  • Bega Valley Shire Council
  • Berrigan Shire Council
  • Bombala Council
  • Boorowa Council
  • Cooma Monaro Shire Council
  • Eurobodalla Shire Council
  • Goulburn Mulwaree Council
  • Greater Hume Shire Council
  • Hornsby Shire Council
  • Ku-ring-gai Shire Council
  • Lithgow City Council
  • Manly Council
  • Narrandera Shire Council
  • North Sydney Council
  • Orange City Council
  • Palerang Council
  • Parramatta City Council
  • Queanbeyan City Council
  • Snowy River Shire Council
  • The Hills Shire Council
  • Tumbarumba Council
  • Upper Lachlan Shire Council
  • Wagga Wagga City Council
  • Warringah Council
  • Yass Valley Shire Council
  • Young Shire Council

 



Apr01

Abolition of Duties in NSW - Pitfalls

Amanda Quin - Friday, April 01, 2016

The NSW State Government has flagged that on 1 July 2016 it will be abolishing stamp duty on the following transactions:

  • Transfer of business assets
  • Transfer of marketable securities (eg shares in private companies and units in unit trusts)
  • Transfer of statutory licences and gaming machine entitlements
  • Mortgage Duty (to the extent it has not already been abolished)

You may recall that the NSW State Government has on a number of occasions flagged that these duties were being abolished and then delayed the abolition date. Hopefully, this time the abolition will proceed as planned.

LANDHOLDER DUTY – LAND RICH COMPANIES AND UNIT TRUSTS

However, there is a potential pitfall for companies and unit trusts which are landholders.

Despite the proposed abolition of stamp duty on the transfer of shares in a private company or units in a unit trust from 1 July 2016, it appears that landholder duty will still remain.

Landholder duty is payable on the acquisition of a significant interest in a private company or unit trust that owns land and meets certain other requirements.

As such, stamp duty may still be payable on the transfer of shares in a private company or units in a unit trust, where the transfer involves a significant interest and where the company or unit trust (or its linked entities) has land holdings in NSW with a value of $2 million or more.

There are some exemptions for companies which hold rural land. This can be a complex area of law and we recommend legal advice be obtained prior to any transfer occurring.

TRANSFER OF A LEASE IN CONJUNCTION WITH A SALE OF BUSINESS

Where a lease is transferred with the business (which often happens with business premises that are rented), then although the goodwill of the Business will be exempt from stamp duty, nevertheless the plant and equipment and any consideration for the transfer of lease is liable for duty.

If the transaction were instead structured with a new lease being granted to the new owner of the business, then the plant and equipment would not be liable for stamp duty.

Accordingly when buying a business that operates from leased premises, you should consider whether the costs of the stamp duty that would be payable in relation to the plant and equipment and the transfer of the lease is likely to outweigh the costs of negotiating and entering into a new lease instead.

TRANSFER OF LAND IN CONJUNCTION WITH A SALE OF BUSINESS

Where a sale of land and a sale of business takes place, then whilst the goodwill of the Business will not be liable to duty, nevertheless the land and the plant and equipment of the business will be liable to duty.

Oct09

REGISTERING PERSONAL PROPERTY SECURITY INTERESTS

If you sell personal property (such as goods or equipment or livestock or vehicles etc) on account OR if you lease or hire out personal property to third parties (hereafter referred to as "your customer"), then you need to be aware of the Personal Property Security Act ("the PPS Act").

The PPS Act enables you to record your ownership and other rights in goods or equipment or other personal property that your customer has not yet paid for. This type of security interest can be registered even if the anticipated account payment period is quite short.

The PPS Act also permits you to record your ownership of goods, equipment, livestock (including racehorses) or other personal property that has been leased to your customer, if the lease is a long term lease.

From 1 October 2015, the PPS Act deems leases to be on a long term basis if:-

  • The lease has no defined term or is for an indefinite period; or
  • The lease is for a motor vehicle, boat or aircraft (or equipment with a serial number) and is for a term of 12 months or more (including options) (this was previously only 90 days); or
  • Where the lease itself does not contain provision for a long term, if you consent to your customer keeping the goods or equipment for more than one year.

If you register your interest within the relevant time frames AND if your customer goes into liquidation, then you can protect your assets from being sold by your customer's liquidator.

However if you fail to register your interest by the relevant deadline AND if your customer enters into liquidation, then their liquidator is entitled to sell your goods and equipment, without needing your consent and you will merely be an unsecured creditor among many seeking their money back.

There are different deadlines to register your ownership interest depending on the type of transaction that has taken place. These deadlines are as follows:-

SECURITY INTERESTS WHERE PERSONAL PROPERTY IS SOLD ON ACCOUNT OR BY WAY OF VENDOR FINANCE -

Type of Goods Deadline for PPS Registration
Where your goods are part of your customer's inventory:
The PPS security interest must be registered by you before your customer obtains possession of the goods from you.


Where your goods are not inventory:


The PPS security interest must be registered by you within 15 business days of your customer obtaining possession of the collateral.

If you do not register a PPS interest within the relevant timeframes, then the PPS interest may still be validly created as a general security interest (ie an interest which effectively puts other parties on notice of your interest in the goods, eg this may be useful if your customer sells his or her business), however it will not benefit from thesuper-priority over liquidators.

In addition where your security interest relates to a company, the Corporations Act also provides for a 20 business day registration time limit for general security interests, if you wish to minimise the risk of your property being sold as part of your customer's liquidation.

Given the competing time limits, we recommend that, if in doubt, you register a PPS registration as early as possible in any transaction where a PPS interest may arise.


Aug27

Buying or Selling a Property in NSW - Law Society Guide

Chris Tongue - Tuesday, August 27, 2013

For Sellers:

YOUR GUIDE TO SELLING A HOME

For Buyers:

YOUR GUIDE TO BUYING A HOME

Buying or Selling a Home: Online guides now available

Please follow the above links to view online checklists for buying and selling a house or apartment in New South Wales.

These checklists will help answer some of the common questions about buying and selling and show how your solicitor will assist in the process.

For more information, please contact our office.

May09

NSW Victims of Crime Compensation Changes

Chris Tongue - Thursday, May 09, 2013

NSW VICTIMS  OF CRIME COMPENSATION CHANGES

Victims Services in NSW have placed a halt on the filing of victim's compensation applications pending the passage of new legislation in relation to compensating victims of crime.

If the proposed legislation is passed then a new less generous statutory scheme for compensation will be created and an alternative scheme will commence whereby a victim may be ordered compensation when the offender is convicted of their crime. Any such compensation order however is stayed if the offender lodges an appeal of their conviction and is set aside if the offence is dismissed on appeal.

The proposed changes include:-

(a)    A reduction in the amount of compensation payable when a claim is made through Victims Services (ie being the scheme whereby  State government money is utilised in providing compensation to victims);

(b)   The introduction of tighter time limits for filing Victims Compensation applications.

(c)    The ability for a court to order  an offender to pay up to $50,000 in compensation directly to the Victim of a Crime or to another aggrieved person.

It would therefore appear that the intention of this legislation  is to make it simpler and easier to seek compensation directly from the offender, however this then creates the difficulty of whether an offender can comply with such an order.

Date:- 9 May 2013