by DSA LawChanges to the Sale of Land Act: off-the-plan contracts
What are the new laws?
Recent changes to the Sale of Land Act 1962 (Vic) (“Act”) by the Sale of Land Amendment Act 2019 (Vic) apply retrospectively to residential off-the-plan contracts and sunset clauses. This means that any residential off-the-plan contract with sunset clauses entered on or after 23 August 2019 must follow the new laws. [1]
What should you know about sunset clauses?
Generally, sunset clauses are clauses that permit a vendor or purchaser to end a contract if a plan of subdivision is not registered, or an occupancy permit is not issued, by a specific date.
An issue that emerged from the property boom was developers exercising sunset clauses to end contracts with purchasers in the hope of reselling off-the-plan properties at higher prices. This kind of behavior was labelled by the Victorian Parliament as “opportunistic”. [2]
What was the problem?
Normally, a purchaser pays a developer a deposit for an off-the-plan property and then waits for its construction. Unfortunately, some developers were ending off-the-plan contracts in accordance with the sunset cause, as construction was not yet complete. While the deposit is returnable to the purchaser in these circumstances, it is easy to imagine the disappointment experienced by the purchaser for losing out on securing their new home. Not to mention the deposit paid back is likely not enough for a deposit on the same property, or a similar property, due to the increase in property price during the construction period.
The amendments aim to fix these kinds of situations.
What must a vendor know?
Before a vendor may end a residential off-the-plan contract under a sunset clause, it will be required to take a number of steps:[3]
- obtain written consent of the purchaser to the rescission of the off-the-plan contract;
- provide written notice at least 28 days before the proposed rescission and stating:
- the reason why the vendor is proposing to rescind the off-the-plan contract;
- the reason for the delay; and
- that the purchaser is not obliged to consent to the proposed rescission.
If written consent is not provided by the purchaser, then the vendor may apply to the Supreme Court of Victoria for an order to rescind the off-the-plan contract.[4] However, before making its decision, the Court must have regard to a number of factors, including:[5]
- the likely date that a plan of subdivision or occupancy permit is issued;
- the reason for the delay in registering a plan of subdivision or occupancy permit;
- the effect that a rescission will have on a purchaser;
- the terms of the off-the-plan contract;
- whether the vendor has acted unreasonably or in bad faith;
- whether the land has increased in value; and
- any other matters that the Court considers relevant.
Fortunately for purchasers, the Court will only make an order to rescind if the Court considers that it is just and equitable.[6] For example, if a developer intentionally exercises the sunset clause because they may receive a higher value if the property is re-sold, then the Court may not allow the developer to end the contract.
What other amendments were made?
Terms contracts
Prohibitions were introduced making it an offence to knowingly advertise, arrange, broker or sell residential land (other than residential land that is agricultural land) under a terms contract if the sale price is less than the prescribed amount. [7]
Rent-to-buy arrangements
Prohibitions were introduced making it an offence to knowingly advertise, arrange, broker, or sell residential land under a rent-to-buy arrangement. The exceptions are rent-to-buy arrangements with the Director of Housing, a registered housing associated, or a prescribed class / person.[8]
Disclosure obligations
It was an offence to “fraudulently” conceal a material fact to induce a person to buy land. The amendments have lowered the threshold requirements of the offence by changing “fraudulently” to “knowingly” conceal a material fact. [9]
What should I do now?
As a developer:
- ensure that you understand the new procedural requirements for exercising sunset clauses;
- consider the type of contracts entered into with purchasers; and
- if you are still unsure about what to do next, then you should consider getting legal advice to ensure that your contract of sales are up to date.
As a purchaser:
- carefully read the off-the-plan contracts that you are considering signing; and
- obtain legal advice.
How can DSA Law help?
If you have a commercial law issue and believe you could benefit
expert legal assistance, please Contact Us or
one of our Commercial Lawyers at DSA Law on
(03) 8595 9580.
[1] Sale of Land Amendment Act 2019 (Vic)
[2] Victoria, Parliamentary Debates (Hansard), Legislative Assembly, 21 March 2019, Marlene Kairouz, Minister for Consumer Affairs, Gaming and Liquor Regulation, 1168.
[3] Sale of Land Act 1962 (Vic) s 10B.
[5] Ibid.
[6] Ibid.
[7] Ibid ss 29EA-EC.
[8] Ibid ss 29WA-WG.
by DSA LawWhat is Probate in Victoria?
An executor is the person (or people) appointed in the Will of a deceased person to carry out their wishes in accordance with the terms of their Will. Often, before an executor can undertake any of these tasks, they will require a Grant of Probate. A Grant of Probate is the formal authorisation from the Supreme Court of Victoria for the executor(s) of an estate to deal with the deceased person’s affairs. [1] This can include:[2]
- collection of the deceased person’s assets;
- payment of the deceased person’s debts; and
- assume responsibility of the deceased person’s legal matters.
Similarly, if a deceased person passes away without a valid Will, the person(s) who seek to administer their estate will be subject to the same requirements. In these situations, the grant of representation to an estate is referred to as ‘Letters of Administration’.
When do I Need a Grant of Probate?
A Grant of Probate will not always be necessary to administer a person’s estate. Generally speaking, a Grant of Probate or Letters of Administration will be required in the following scenarios:
Real Estate
If the deceased owned real estate in their sole name, or as a tenant in common, a Grant of Probate will be necessary to enable the executor(s) to transfer the property to the deceased’s beneficiaries or otherwise sell the property.[3]
However, if the deceased owned real estate jointly with another person, that property will automatically transfer to the surviving joint owner(s) without the need for a Grant of Probate.
You may need to seek legal advice to determine in what manner the deceased held ownership of property.
Banks, Share Registries & Other Financial Institutions
If the value of the deceased’s assets (e.g. shares or funds in a bank account) exceed a threshold set by a particular asset holder, a Grant of Probate will often be required. That threshold will often depend on the requirements of that particular asset holder. For example, a particular asset holder could be a bank. In our experience, banks have requested the production of a Grant of Probate to release the deceased’s funds, ranging from $20,000.00 to $50,000.00.
How Can DSA Law Help?
If you are seeking advice regarding a grant of Probate and
believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.
[1] Administration and Probate Act 1958 (Vic), s 6.
by DSA LawDo I need a lawyer when buying a business?
What should I know?
Buying a business can be an important moment for any prospective business owner. However, just like buying a house, there are many moving parts that you should be aware of. Sometimes, buying a business without the advice of a lawyer may cause an adverse financial impact. For example, a person may purchase a business and it does not meet the expectations as initially represented by the vendor.
Therefore, it is recommended that the outcome of any negotiation between you and the vendor is clearly written into a sale of business agreement (“agreement”). The agreement should act as a detailed roadmap, agreed between you and the vendor, for the business transfer.
What are some things I should consider?
- Will you purchase equipment from the vendor?
If you are thinking about buying equipment from the vendor, you should consider a list of equipment in your agreement. For example, if you are purchasing a restaurant, you may also want to purchase the tables, chairs, refrigerators, cutlery, utensils, and cooking equipment.
By listing the equipment purchased from the vendor, this should provide more certainty to your expectations when the business is transferred to you.
- Will you purchase the trading stock?
Some businesses require trading stock for the ongoing sale of goods and/or services.[1]
Consider if trading stock should be purchased from the vendor. If so, then there are number of considerations to be dealt with including valuations, capped stock value, whether the vendor or the purchaser gets to pick the stock they get and not include other things.
- How important is the businesses’ intellectual property to you?
Depending on your vision for the business, a business may be purchased with or without its intellectual property (“IP”).[2] The IP may be important to you because the IP ties with a business’ goodwill. The IP may include:
- trade marks;[3]
- online profile;
- know-how; and
- trade secrets. [4]
Will you be taking over the lease?
While there are businesses that are not the traditional “brick-and-mortar”, there are also a significant number of businesses that are situated on leased premises.
When buying a business, you should consider the transfer of lease. Knowing the terms of the lease that is transferred to you is recommended to ensure that you understand your tenancy rights and legal obligations to the landlord.[5]
- Have you considered the registration or transfer of licences / permits?
Even if a business is purchased, without the transfer or registration of proper licences / permits, you may not be able to operate it. For example, if a restaurant is purchased, you may require a food business licence be transferred or registered so that you can operate the restaurant. In addition, some licences have stringent requirements. As such, it is important that checks are done to ensure that you are eligible to hold the requisite licence.
To avoid these kinds of hiccups, we recommend due diligence of the licences / permits relating to the operation of the business is completed to help ensure that you may lawfully run the business you intend.
What should I do now?
As a prospective business owner:
- clearly outline and set out what part of a business is being purchased from a vendor; and
- consult a lawyer to assist you with the due diligence process and drafting of the terms and conditions of the agreement.
How can DSA Law help?
If you have a commercial law issue and believe you could benefit expert legal assistance, please Contact Us or one of our Commercial Lawyers at DSA Law on (03) 8595 9580.
[1] See generally, Australian Taxation Office, Accounting for business trading stock (20 June 2019) <https://www.ato.gov.au/Business/Income-and-deductions-for-business/Accounting-for-trading-stock/>.
[2] See generally, IP Australia, Types of IP<https://www.ipaustralia.gov.au/understanding-ip/getting-started-ip/types-of-ip>.
[3] See generally, IP Australia, Trade mark basics <https://www.ipaustralia.gov.au/trade-marks/understanding-trade-marks/trade-mark-basics>.
[4] See generally, IP Australia, Trade secrets <https://www.ipaustralia.gov.au/understanding-ip/taking-your-ip-global/ip-protection-china/trade-secrets>
[5] See generally, the Treasury, What is a lease (14 January 2014) <https://treasury.gov.au/publication/look-before-you-lease-avoiding-the-pitfalls-in-retail-leasing/what-is-a-lease>.
by DSA LawWhat to do if I have been left out of a Will?
Dealing with the death of a close family member is always a very difficult and emotional time. Finding out that a family member has left you out of a Will can often make this traumatic time even more challenging.
The Administration and Probate Act 1958 (Vic) provides the mechanism which makes it possible for you to seek a greater provision from the estate, under certain circumstances.
Eligibility
Not everyone is entitled to seek greater provision from a deceased estate. To contest a Will, you must first be deemed eligible under the Administration and Probate Act 1958 (Vic) (“The Act”).
The Act defines an eligible person to include: [1]
- a deceased person’s spouse or domestic partner;
- a deceased’s child, stepchild or adopted child, where they are under the age of 18 years, a full-time student between the age of 18 and 25 years, or suffer from a disability;
- a deceased person’s former spouse who would have been able to take proceedings under the Family Law Act 1975 (Cth);
- a deceased person’s adult child, stepchild or adopted child, who is not capable of providing for their own proper maintenance and support; and
- a registered carer, grandchild or member of the household of a deceased person’s, if that person was dependent (or partly dependent) on the deceased person for their proper maintenance and support.
If you have been left out of a Will, obtaining detailed advice is crucial to be able to determine if you can contest the Will.
Moral duty & failure to make adequate provision
Eligible persons must also be able to demonstrate that:[2]
- the deceased had a moral duty to provide for their proper maintenance and support; and
- the deceased failed to make adequate provisions for the applicant’s proper maintenance and support.
In assessing any claim, the Court will consider a wide range of factors, including:[3]
- the nature of your relationship with the deceased;
- the size and nature of the estate;
- your financial need and resources and those of any other beneficiaries;
- your character and conduct towards the deceased; and
- any relevant contributions to the deceased’s estate.
Once again, it is important to obtain professional advice as to your eligibility.
Timeframe
A claim for greater provision from an estate must be brought within 6 months from the date that Probate is granted. [4] Only in exceptional circumstances will a Court allow someone to apply for greater provision after this 6-month period has expired.[5]
How can DSA Law help?
If you have been left out of a Will or have been inadequately provided for in a Will and believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.
[1] Administration and Probate Act 1958 (Vic), s 90.
by theladWhat is a Power of Attorney?
A General Non-Enduring Power of Attorney authorises your appointed attorney(s) to make decisions on your behalf in relation to financial affairs only.
Powers of Attorney provide authority for another person to make decisions on your behalf, during your lifetime, in relation to financial, personal and medical treatment matters. All Powers of Attorney cease effectiveness upon your passing.
ENDURING POWER OF ATTORNEY
An Enduring Power of Attorney authorises your appointed attorney(s) to make decisions on your behalf in relation to both financial and personal matters.[1] As the name suggests, it endures for your lifetime, even after you have lost your cognitive capacity.[2]
Some examples of the powers your attorney(s) may exercise include:
- Conducting property and financial transactions.
- Decide where you live, whether permanently or temporarily.
- Decide on your daily diet and dress.
- Restrict visitors, as far as it is necessary to protect your best interests.
The exercise of powers in relation to financial matters can come into effect upon the completion of your Enduring Power of Attorney, although may only be used with your direct instruction while you have cognitive capacity. [3] This may be useful in situations where you are overseas or otherwise unable to carry out specific tasks (i.e. lack of mobility).
Conversely, powers pertaining to personal matters will only ever come into effect when you are no longer in a position to make these decisions for yourself.
APPOINTMENT OF MEDICAL TREATMENT DECISION MAKER
An Appointment of Medical Treatment Decision Maker authorises your appointed decision maker to make decisions on your behalf in relation to your health and medical treatment.
The person responsible for making a medical treatment decision will be the first person listed on the appointment who is reasonably available and willing to act at that time.[4]
Your decision makers have very significant responsibilities, including:[5]
- Authorising the switching off of a life support machine.
- Authorising or refusing medication.
- Authorising or refusing operations and procedures.
Like personal matters, medical treatment powers under an Appointment of Medical Treatment Decision Maker will only ever come into effect when you are no longer in a position to make these decisions for yourself, as certified by a doctor.[6]
GENERAL NON-ENDURING POWER OF ATTORNEY
A General Non-Enduring Power of Attorney authorises your appointed attorney(s) to make decisions on your behalf in relation to financial matters only. [7]
In contrast with the Enduring Power of Attorney, a General Non-Enduring Power of Attorney will cease operation when the maker loses their cognitive capacity.
These documents are predominantly used for a specific purpose and time-frame, often in situations where a person requires assistance managing their finance or business interests while they are unavailable.
How can DSA Law help?
If you have been left out of a Will or have been inadequately provided for in a Will and believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.
[1] Power of Attorney Act 2014 (Vic) s 22.
[3] Ibid.
[4] Medical Treatment Planning and Decisions Act 2016 (Vic) s 55.
[7] Power of Attorney 2014 (Vic) s 8.
by theladWhat is a Will, and why it is important?
If you are intending to exclude someone from your Will whom may otherwise be eligible to make a claim against your estate, it is highly recommended to seek expert legal advice on how this can be achieved.
A Will sets out who is to receive the benefit of your estate and under what circumstances, after you have passed away.
There can be common misunderstandings about a Will. So, here are the top tips that you should know about a Will.
Executors
In addition to setting out who is to benefit from your estate, a Will also sets out who is in charge of ensuring your wishes are carried out – known as your executor.
You can appoint up to four (4) executors in your Will.[1] Alternatively, you can nominate a professional, such as a lawyer or accountant, to act as your executor. Appointing a professional to act as your executor can have significant benefits:
- Where there is the possibility of a family dispute over the division of your estate, appointing a professional to be your executor will help ensure your estate is administered impartially.
- Large and complex estates can often be very difficult to Administer. By appointing a professional to be your executor, they often have the requisite experience and expertise to deal with these matters and avoid common pitfalls.
What can I give away under my will?[2]
All assets owned in your sole name will form part of your estate to be distributed in accordance with your Will.
However, when considering what your estate comprises, it is important to consider that some assets do not automatically form part of your estate, including:
- Assets owned jointly with other persons.
- Assets held in a trust, such as a family trust.
- Superannuation and life insurance.
These types of assets are treated differently when it comes to their distribution following your passing. When planning for the succession of such assets, you should consult with your legal representative and/or accountant.
Testamentary trust wills
A Testamentary Trust Will allows your beneficiaries to direct some or all of their inheritance into a special trust set up by your Will, which may provide a more tax-effective way of holding and investing inherited assets.
These types of Wills can also provide increased protection for those beneficiaries who are, or may at a later stage be, going through a relationship breakdown or insolvency.
Testamentary Trusts are not able to be created at a later stage, if they are not incorporated into your Will – which is often a flaw with basic Wills. Beneficiaries may then find themselves with no alternative but to inherit significant assets, which could be detrimental for tax-planning and asset protection purposes.
What if I have underage or disadvantaged beneficiaries?
If any of your beneficiaries are under the age of eighteen (18) years, then their share of your estate must be held on trust (subject to your executors’ ability to advance funds early for the purposes of maintenance, education, etc.) until such time as they reach an age you deem to be appropriate to inherit from your estate.
For children under the age of eighteen (18) years, you can also seek to appoint a guardian, who will assume responsibility for your children’s care until they reach the age of majority. Keep in mind though, your appointment of a guardian could be challenged in court.
Where one (or more) of your beneficiaries is disadvantaged to the extent that they are not able to sensibly deal with their inheritance (i.e. mental impairment, spendthrift, etc.), you may wish to establish a trust to hold their inheritance, thereby allowing for its proper application.
How do I leave someone out of my will?
Community standards hold that a Willmaker should make provision for anyone to whom they have a responsibility to care for, such as their children, spouse or any other persons who are dependent on them.[3]
However, we acknowledge that everyone has their reasons for the way in which they wish to distribute their estate, which can often mean the exclusion of a person or people to whom one might normally consider provision should be made for.
If you are intending to exclude someone from your Will whom may otherwise be eligible to make a claim against your estate, it is highly recommended that you first seek expert legal advice.
How Can DSA Law Help?
If you are seeking advice regarding a Will and believe you could benefit expert legal assistance, please Contact Us or one of our Wills & Estate Lawyers at DSA Law on (03) 8595 9580.
[1] Trustee Act 1958 (Vic) s 40.
[3] Administration and Probate Act 1958 (Vic) s 91A.
by theladCan I challenge my speeding ticket in Victoria?
Have you received a speeding ticket in Victoria? Most drivers will, at one time or another, get caught for exceeding the speed limit. Speeding offences can lead to
- significant fines being imposed,[1]
- the accumulation of demerit points against your driver licence,[2] and
- the automatic mandatory suspension of your driver licence (should you exceed the speed limit by 25 km/h or more).[3]
If you are detected speeding by either a fixed road safety camera or a police officer using a speed gun, you will most likely be issued with an Infringement Notice.[4] If you receive an Infringement Notice, and wish to challenge it, your options are as follows:
1. Nominate the Actual Driver
If you were not driving the vehicle at the time of the alleged offence, you should nominate the person who was driving.[5] This is particularly important if the vehicle is registered in a company’s name, as the fine imposed is generally ten times that for an individual, and failure to nominate can result in further penalties being imposed.[6]
2. Application for Internal Review
One option for dealing with an infringement notice is to apply for an internal review by writing to Victoria Police. If you decide to apply for an internal review, you are asking Victoria Police to withdraw the infringement notice and issue an official warning instead.[7] If Victoria Police does withdraw the infringement notice, you will not be required to pay any fine and you will not accumulate any demerit points against your driver licence.
Whilst Victoria Police has discretion to withdraw an infringement notice, they generally will do so in only limited circumstances, namely, where you have exceeded the speed limit by less than 10 km/h, and if your driving record for the previous two years is clean (see Victoria Police’s website for further information).
In an application for internal review, an admission of liability for the speeding offence will be considered favourably by Victoria Police, and it is more likely the infringement notice will be withdrawn. You should not admit liability if you did not commit the alleged offence and wish to challenge the alleged offence in Court.
3. Object to the Infringement Notice
You may object to the infringement notice and have the matter referred to Court.[8] You must object to the infringement notice before the due date (generally 28 days after the date of the notice) by completing the relevant section on the infringement notice and sending it to Fines Victoria.
When you object to the infringement notice, Victoria Police will withdraw the infringement notice and file charges with the Court. The matter is then dealt with through the Court process.
If you wish to object to an infringement notice, and challenge the alleged speeding offence, we strongly suggest engaging a lawyer to substantially increase your chances of success.
How can DSA Law help?
If you have a infringement notice, or require assistance in challenging a speeding offence, and believe you could benefit expert legal assistance, please Contact Us or one of our Commercial Lawyers at DSA Law on (03) 8595 9580.
[1] Road Safety Road Rules 2017 (Vic) r 20.
[2] Road Safety (Drivers) Regulations 2019 (Vic) sch 3.
[3] Road Safety Act 1986 (Vic) s 28 (‘RSA’); RSA sch 5.
[4] Infringements Act 2006 (Vic) s 12.
[7] Infringements Act 2006 (Vic) s 8.
[8] Infringements Act 2006 (Vic) s 16.
by theladWhat are Unfair Contract Terms?
What are Unfair Terms? Have you recently signed an unfair contract as a small business operator?
If so, your small business may be protected under Australian Consumer Law (“ACL”).
The ACL protects consumers from unfair terms in a contract. On 12 November 2016, the ACL was amended to extend the protection from unfair terms to small businesses.[1]
Is my small business protected?
To be protected from unfair terms as a small business, the contract must be a standard form contract entered into or renewed on or after 12 November 2016.[2]
While determining whether a contract is a “standard form contract” is a legal test, the Australian Competition and Consumer Commission has defined a standard form contract, in general terms, as: [3]
“A standard form contract is a contract prepared by one party where the other party has little opportunity to negotiate the terms.”
Furthermore, if the contract is a small business contract, the following criteria applies:[4]
- at the time the contract is entered into, at least one party to the contract must be a business that employs fewer than 20 persons, and
- the upfront price payable under the contract must be less than $300,000 (or $1,000,000 if the contract is longer than 12 months), and
- the contract is for the supply of goods or services or the sale or grant of an interest in land.
When is a contract term, ‘unfair’?
The ACL outlines a number of examples of terms that may considered ‘unfair’, including:[5]
- a term that has the effect of one party (but not the other party) to avoid or limit their performance under the contract
- a term that has the effect one party (but not the other) to terminate the contract
- a term that has the effect of one party to penalise (but not the other) for a breach or termination of the contract
- terms that has the effect of one party (but not the other) to vary the terms of the contract.
The examples are intended to show the kinds of terms that may be considered ‘unfair’. However, to determine whether a term is unfair is a legal question including many factors such as:[6]
- whether there is significant imbalance between the rights and obligations between the parties?
- whether the terms are reasonably necessary to protect the legitimate interests of the parties?
- whether the terms will cause detriment to the above term if relied on?
What are the exceptions?
While the ACL protections relating to unfair terms is intended to apply to standard form contracts, there are several exceptions in which the protections may not apply, including:[7]
- contract of marine salvage or towage;
- charterparty of a ship;
- contract for the carriage of goods by ship;
- constitutions of companies, managed investment schemes or other kinds of bodies; and
- a small business contract to which a prescribed law of the Commonwealth, a State or a Territory applies
Who can assess fairness?
A court or tribunal can determine whether a term is unfair or fair. If a court or tribunal finds that a term is ‘unfair’, then the term will be considered ‘void’.[8] However, the remainder of the contract will continue to bind the parties if it can operate without the ‘unfair’ term.[9]
If you have concerns that you may have entered into an unfair contract or feel like you are eligible for protections under the law, then you should consider seeking professional legal advice.
How can DSA Law help?
If you have a commercial law issue and believe you could benefit expert legal
assistance, please Contact
Us or one of our Commercial
Lawyers at DSA Law on
(03) 8595 9580.
[1] Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth), s 2;
[3] Competition and Consumer Act Cth) sch 2 (‘Australian Consumer Law’), s 27; See generally, Australian Competition and Consumer Commission, Unfair contract terms <https://www.accc.gov.au/business/business-rights-protections/unfair-contract-terms>.
by theladServed with Court documents, what should you do?
If you have been served with Court documents, the Court documents might show allegations that you owe money, or requires you to attend Court on a particular date.
What should you do?
Read the Court Documents
If you have been listed as a Defendant (sometimes referred to as the Respondent), then the proceeding is civil, meaning there is no immediate risk of criminal charges.
There are three simple things you should take note of:
- Who is the Plaintiff (sometimes listed as the Applicant)?
- What is the claim?
- What do you need to do and by when?
While most Court applications seem scary at first, reading the document carefully will say what you as the Defendant/Respondent need to do next and by what date. However, if it does not then you should consider seeking advice because the consequences for not following procedure set by the Courts can be significant.
Consider your Options
There are specific timing requirements when following procedures set by the Court. For example, this may include preparing a Notice of Appearance,[1] and Defence[2] or Counterclaim.[3]
Furthermore, litigation can be a lengthy process, sometimes lasting more than one year.
However, if you do not dispute the claim, then you should consider making an offer to the Plaintiff and/or their lawyer regarding the amount claimed. Your offer should be made on a “Without Prejudice Save As to Costs” basis. This means your offer cannot be disclosed to the Court until the substantive proceeding is finalised, and costs become a legal concern between the parties.
Do I need a lawyer?
Litigation can be complicated and emotionally draining.
Each Court/Tribunal has its own rules and regulations which you need to take into consideration, even if you are in the right. At times, it might be more commercial to settle, rather than engage in a lengthy and expensive dispute as the Defendant / Respondent.
Because every dispute is always different, you should always engage a lawyer who can advise and guide you through the process.
How can DSA Law help?
If you have a commercial law issue and believe you
could benefit expert legal assistance, please Contact
Us or one of our Commercial
Lawyers at DSA Law on (03) 8595 9580.
[1] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 8.02.
by theladCan I recover legal costs if I win in Court?
If you win in Court, then the general rule is you will have your costs paid by the unsuccessful party. Furthermore, the unsuccessful party will bear their own costs. While that may sound great, it does not mean you will get all your legal costs paid by the unsuccessful party.
There are two types of cost orders that can be granted:
- Standard Costs
- Indemnity Costs
What are Standard Costs?
Usually, costs are ordered on a standard basis.[1] This means you may expect to receive around 60% of the legal costs that you incurred..
The rationale for ordering costs on a standard basis is that a case is more likely to settle if both parties know they will be left out of pocket should the matter proceed, even if they go on to win their case or successfully defend the case against them. In this way, parties are encouraged to settle their dispute prior to trial.[2]
However, to maximise your recovery of costs, you should seek an order that the other side pay your costs on an indemnity basis.
What are Indemnity Costs?
Indemnity costs should cover you for virtually all of the costs that you have incurred since issuing the court proceeding.[3]
A court will only make an order for indemnity costs in certain circumstances. For example, this can include when a litigant commences proceedings with a wilful disregard for known facts or clearly established law.
What are Calderbank Offers and Offers of Compromise?
The most certain way to obtain an order for indemnity costs is to make an Offer of Compromise,[4] or a Calderbank letter.[5] If your dispute is a simple question of how much money is owing, then an offer of compromise should be the simpler option compared to a Calderbank letter.
If you make an offer of compromise and it is rejected by the other side, you may be entitled to a more favourable costs order if the court’s determination is more favourable than the offer you made.[6]
The rationale behind these courts rules is to reward litigants who make reasonable offers to settle, and to punish litigants that cause unnecessary costs to be incurred by rejecting reasonable settlement offers.
Therefore, the morale of the story is that it pays to make an early offer; even if you think the other side will not accept it.
How Can DSA Law Help?
If you are seeking advice
regarding your legal dispute and believe you could benefit expert legal
assistance, please Contact
Us or one of our Commercial
Lawyers at DSA Law on
(03) 8595 9580.
[1] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.30.
[2] Ugly Tribe v Sikola (2001) VSC 189 [10].
[3] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.30.1.
[5] Calderbank v Calderbank (1975) 3 Al ER 333
[6] Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 26.08.
by theladWhat is Unpaid Parental Leave?
Unpaid parental leave is an important area of employment law that is regularly overlooked by employers. We often find that employers have not turned their minds to the management of unpaid parental leave, until it is too late and a workplace dispute has arisen.
This article aims to bring all employers up to speed on the essential ‘must knows’ of unpaid parental leave.
Let’s start at the beginning
The National Employment Standards (NES), which apply to all employees in Australia, establish the minimum unpaid parental leave entitlements.
In short, all employees are eligible for unpaid parental leave, as long as they have completed at least 12 months of continuous service with their employer.[1]
The entitlement itself constitutes 12 months of unpaid leave, as long as the leave is associated with the birth of a child of the employee (or the employee’s spouse), or the placement of a child under 16 years of age with the employee for adoption. [2]
On-going consultation
Employers have an on-going obligation to consult with their employee, particularly when it comes to issues relating to the employee’s pre-parental leave position and their return to work.
This obligation requires the employer to be proactive and engage with the employee regularly to discuss possible changes to the workplace and how such changes may affect the employee’s role.
An employer will not satisfy the obligation to consult by simply informing an employee of a workplace related decision or change. Rather, it requires an ongoing and persistent dialogue between the employer and employee, so as to allow the employee an opportunity to consider and voice their concerns regarding changes in the workplace, before they are implemented.
Can an employee work while on unpaid parental leave?
It is common for an employer to require an employee to perform some work while they are on unpaid parental leave.
Should this be the case, the employer can request a ‘keeping in touch’ day, which allows the employee to perform some work while they are on leave.[3]
Employers must take care when requesting a ‘keeping in touch’ day. For example, an employee can only work up to ten ‘keeping in touch’ days over any 12 month period, all of which must be paid as an ordinary day of work.
In addition, an employer cannot request a ‘keeping in touch’ day within 42 days of the date of birth or placement of a child. [4] However, an employee can request a ‘keeping in touch’ day, as long as 14 days have elapsed since the date of birth or placement of a child. [5]
Most importantly, employers need to be aware that even though they can request an employee perform a ‘keeping in touch’ day, the employee must ultimately consent (such consent cannot be unreasonably withheld). [6]
Can an employee request more than 12 months’ leave?
An employee who has competed 12 months of unpaid parental leave may request an additional 12 months of leave.[7] Such a request must be made in writing.[8] The employer must respond, in writing, within 21 days of receiving such a request.[9]
While an employer can refuse an employee’s request for additional leave, the refusal must be based on reasonable business grounds only.[10] In addition, prior to refusing such a request, the employer must consult with the employee and allow them an opportunity to discuss the request.[11]
What happens on the employee’s return to work?
An employee who has been on unpaid parental leave has an entitlement to return to the same role that they had prior to taking leave. This is referred to as the ‘return to work guarantee’.[12]
The ‘return to work guarantee’ regularly causes mix-ups and confusion amongst employers, particularly when the employee’s position no longer exists, or another employee has been placed in that role.
Pursuant to the consultation obligation, an employer should have already consulted with the employee on workplace changes that may affect the employee’s role. Should the employee’s role no longer exist, but the employee is able and qualified to perform another vacant role, then the employee is entitled to be placed in that role. In the event there are two vacant roles, the employee will be entitled to the role which is closest in status and pay to their pre-parental leave role.
Should there be no available roles at all, then the employee’s employment will come to an end by way of redundancy. Even though an employer can make an employee’s role redundant while that employee is on unpaid parental leave, the employer must still comply with the redundancy provisions of the Fair Work Act 2009 (Cth).[13]
Finally, the fact that the employee is on unpaid parental leave at the time their role is made redundant cannot influence the employer’s decision to make the role redundant.
What about the employee who filled in the role?
When hiring or transferring an employee to fill in for another employee who is on unpaid parental leave, the employer must tell the replacement employee that their engagement/transfer is temporary and that the employee who is on unpaid parental leave is entitled to have their role back when they return to the workplace.[14]
Importantly (and regularly overlooked), an employer must tell the replacement employee that the employee’s unpaid parental leave may end early, should something unexpected happen to the child, or should the employee cease having responsibility for the care of the child.
This is merely a snapshot of the various laws that regulate unpaid parental leave. As an employer, it is critically important that you obtain professional advice when it comes to managing employees who are considering taking unpaid parental leave, or are returning to the workplace.
How can DSA Law help?
If
you have a employment law issue and believe you could benefit expert legal
assistance, please Contact
Us or one of our Employment
Lawyers at DSA Law on
(03) 8595 9580.
[1] Fair Work Act 2009 (Cth), s 67.
[4] Ibid s 79A(2)(c)(ii).
[5] Ibid s 79A(2)(c)(i).
by theladHow to manage risk at a Work Christmas party
The silly season is well and truly upon us! For many, this means blowing off steam at the annual work Christmas party.
While this is often the highlight of the long work year, a degree of care must be exercised when organising and hosting such a party. From a legal point of view, the Christmas party is generally accepted as an extension of the workplace itself.
To help you ensure a (safe) fun event, we’ve put together this list of top tips to keep in mind when organising your work Christmas party.
1. Where will the party be held?
This is key, given offsite locations become a ‘workplace’ for the purposes of OHS and discrimination legislation. As such, it should go without saying that the Christmas party should be held in a safe, sensible location.
If a venue has been hired, ensure it is properly equipped to hold parties. Does the venue have proper fire exits and other essential safety measures in place? Are toilets and non-smoking areas adequately signed?
While you are not expected to exercise a forensic level of scrutiny, you must exercise common sense. Asking yourself whether the location is safe enough for your family is usually a good start.
If the party is going to be held at your workplace, consider whether this location is in fact safe for such an event. Does furniture need to be moved? Are there hazards that pose a risk if people are drinking alcohol? Could something in the office be damaged?
2. Will alcohol be served at the party?
Not surprisingly, alcohol is often the issue that leaves many employers with a headache (and not just from drinking it!)
Ensure the venue is licensed and the staff are RSA (Responsible Service of Alcohol) trained.
If the Christmas party is going to be held at your workplace and you are supplying alcohol (or allowing employees to bring their own), store the alcohol in one central location and task somebody (who is not drinking and preferably RSA trained) to serve.
Also make sure sufficient food is available, so people are not drinking alcohol on an empty stomach.
Finally, ensure there is a sufficient supply of non-alcoholic beverages available for those who do not want to drink alcohol.
3. How will people get home?
No matter the location, make sure all staff are given sufficient information on how to get home safely. Advise them of the nearest train station, bus station and taxi cab rank. Consider supplying taxi vouchers or organising a car pool to minimise any risks.
For those employees who may have had too much to drink, don’t simply say goodbye at the end of the night and leave them to get home on their own. Rather, exercise the level of care you may for a friend or family member, and do what you can to ensure they get home safely.
4. Anything further?
Yes! Given the Christmas party is an extension of the workplace, make sure all staff are briefed beforehand that the standard of conduct expected of them at the party is the same standard expected in the workplace.
Simply send out a group email or have a quick staff meeting to ensure everyone is alerted to the fact that workplace policies on behavior/discrimination/harassment will still apply at the party.
Also, set clear expectations on alcohol consumption. Let employees know prior to the party that if they are too intoxicated, they will not be served and while at the party, keep an eye on the alcohol consumption, even if you are not responsible for serving it.
Finally, when organising all aspects of the work Christmas party, be mindful not to offend anyone. Don’t choose music, entertainment or a venue that some may consider offensive.
While not a conclusive list, being mindful of these various issues and exercising care will help reduce the risk of legal issues arising from the work Christmas party.
How Can DSA Law Help?
If you are seeking advice regarding employment law and believe you could benefit expert legal assistance, please Contact Us or one of our Employment Lawyers at DSA Law on (03) 8595 9580.