Blog authored by Tim Cullenward (Email: firstname.lastname@example.org )
Tim Cullenward, Douglass McKay and Andrew Cannon recently attended the Law Society of NSW Rural Issues Conference 2019 held on Friday 25th October 2019 at the InterContinental Hotel Sydney. The Conference was aimed at highlighting and shining the focus on the unique and current topical issues which confront rural practitioners and their clients daily in the status quo of arguably the harshest drought on record in rural and regional NSW. In addition to providing legal practitioners present with 6.5 points to be credited between substantive law and practice management and business skills units compulsorily required for continuing professional development, the Rural Issues Conference also provides rural legal practitioners the opportunity to openly network with other rural practitioners and discuss the familiar issues of concern to them.
The event, which culminated and merged distinguished speakers such as members Law Society of NSW President Elizabeth Espinosa, The Hon. Melinda Pavey Minister for Water, Property and Housing, Jodie Thurgood and Andrew Boog of the Rural Issues Committee, Barristers The Hon. Ian Coleman SC and Andrew Rider SC, explored the following topical issues including:
‘Legislative Framework around authorised filming and surveillance’ presented by The Hon. Ian Coleman SC Culwulla Chambers examined a comparison of the state and Commonwealth legislatures in relation to the illegal invasions on properties by animal activists and the use of remotely piloted aircraft systems (“RPAS”) (more commonly known as drones), their potential effects on landholders and farmers and the current protections (or lack thereof) for landholders and farmers as a result of physical and non-physical invasions from users of drones amongst property and livestock;
‘Climate change through a commercial risk lens – implications for rural practitioners’ presented by Keith Rovers, Partner, Minter Ellison explored the currency of new issues and range of risks that have been created as a consequent of climate change and the unique impacts on respective fields of legal practice, particularly in rural areas and the importance for legal firms to be adaptable in the face of our deteriorating and ever- changing climate. Such issues explored included the concept of ‘un-insurability’ by insurance providers, issues of commercial contract interpretation regarding new understanding and definitions of force de majeure and acts of gods events and the growing trend and recognition of Australian ASX listed companies disclosing and holistically defining the term ‘climate risk’ and categories of ‘climate risk’ within legal and corporate policies;
Emma Heuston, Founder of The Remote Expert, an online regional legal practitioner discussed in ‘A practical look at working differently’ the inherent ability and necessity of rural legal practitioners to be innovative, outlining the various ways technology can be harnessed to circumvent and support rural legal firms struggling to attract and retain legal talent within their often isolated communities, such as through the use of virtual legal assistants (VA’s). The seminar also explored the range of alternative modes for legal practice management in the bush as well as emerging acceptance of ‘face-to-face’ client contact through video technologies such as skype and zoom for rural legal firms;
Hanna Jaireth, Farm Debt Mediation Officer for the NSW Rural Assistance Authority in her aptly titled ‘Rural & regional farm debt & franchising mediations: national reforms?’ seminar brought to the fore the poor statistics regarding the use of farm debt mediation and associated services under-utilised by rural legal practitioners such as complaints lodged by primary producers with the Australian Financial Complaints Authority (AFCA). Additionally, the seminar also shed light on how the aftermath of the recent Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry on lending has impacted primary producers as well as the respective rural agribusiness and franchising sectors in Australia and NSW in respect to farm debt mediations;
Barrister Andrew Rider of Level 22 Chambers in his address on ‘Primary Production land: maximising tax exemptions’ set out the authorities and criteria for some of the most commonly applicable tax exemptions used on behalf of clients for rural legal practitioners, discussing the merits and requirements for land tax exemptions for primary production land as well as duties exemptions available for various goods transferred with farmland. However, somewhat of a focus at the Rural Issues Conference was the analysis of the oft cited and applied s274 of the Duties Act 1997 (NSW) (Transfer of certain business property between family members). Whilst discussing the merits the provision has brought to many struggling farming families for rural succession planning broadly, particular emphasis and criticism was also drawn to the undefined and uncertain meaning of “control” referred to within the section.
Tony Cahill presented a current and practical view of the most recent and notable real property and conveyancing amendments in NSW in his seminar on ‘Rural property law update’. As per the Conveyancing (Sale of Land) Amendment Regulation 2019 (NSW), the seminar provided an well informed summary of some of the key changes to the NSW Contract for the Sale of Land including, but not limited to:
- Changes to the cooling off notice in the Contract of Sale and transitional requirements for changing the notice for legal practitioners and firms;
- Implied term regarding occupation certificate for strata units;
- An expanded definition of ‘service’ pursuant to s170 of the Conveyancing Act 1919 (NSW);
- Features regarding changes and additions to standard contract clauses for residential off the plan properties; and
- The potential inoperability between electronic lodgement network operators (ELNO’s) currently in Australia’s electronic conveyancing market, PEXA and Sympli.
However the focal point of the Rural Issues Conference was the open panel discussion titled ‘Rural succession planning: business structures for the family farm presented from experienced rural legal practitioners Peter Moffitt of Gordon Garling Moffitt as chair with John Hennessey and Georgiena Ryan, Principals of Regional Business Lawyers of Wagga Wagga NSW.
The panel, taking questions and responding interactively with solicitors present on a range of rural succession issues, discussed points such as:
- the applicability and challenges of CGT concessions in light of decline rural farming property values such as the maximum net asset value test and turnover threshold of $2 million present in many rural family farming trust and partnership structures;
- the payment of creditors and securitisation of family properties and assets as the most common and profound issues to be dealt with in rural succession planning;
- the omnipresent effect the recent banking royal commission has had on rural succession planning with particular emphasis on the increasing levels of debt to equity ratios amongst farming families today; and
- the ‘revolution’ that has been s 274 of the Duties Act 1997 (NSW) in rural and remote communities since its enactment in assisting the continuance of family bloodlines inheriting and conducting family farming businesses through transfer duty exemptions.