Driving on an interstate licence in NSW

Headshot of Dan Daley - Solicitor at Everingham Solomons TamworthSection 53 of the Road Transport Act 2013 (NSW) (“RTA”) provides “A person must not, unless exempted by the statutory rules, drive a motor vehicle on any road without being licensed for that purpose”.

This means that you must have a NSW licence to drive in NSW unless, you are exempted under the statutory rules. However, there are people driving in NSW everyday on interstate or overseas licences, so how can this be?

Regulation 96 of the Road Transport (Driver Licensing) Regulations 2017 (“RTDLR”), provides that a visiting driver licenced in another Australian jurisdiction or a foreign jurisdiction, is exempt from the requirement that they hold a current NSW driver licence. However, Transport for NSW has the power to remove these NSW driving privileges for drivers licenced interstate or overseas for various reasons outlined in 96(4) of RTDLR.

An area that can catch out drivers from outside jurisdictions, is the removal of driving privileges on the basis of loss of demerit points. If the loss of points would be enough for Transport for NSW to suspend a holder of a NSW licence, Transport for NSW have the same power to withdraw the driving privileges for a visiting driver – under regulation 96(4)(n) of RTDLR.

For NSW drivers facing the prospect of a 3-month demerit point licence suspension, they have the option to elect to be of good behaviour for a period of 12 months as an alternative to the licence suspension under – s 36(1)(a) of the RTA. Visiting drivers don’t have this option.

In a recent case a man who had previously lived in Queensland and held a QLD licence but now worked in NSW, was facing a 3-month withdrawal of his driving privileges due to demerit points incurred in NSW. Given his QLD licence, he wasn’t entitled to the good behaviour election.

To resolve this problem, he was advised to:

  1. Attend Service NSW and attempt to apply for a NSW licence, given that he now resided in NSW.
  2. Request that he be provided “notice of licence ineligibility” upon his application for NSW licence being refused due to the demerit points accumulated.
  3. Elect to serve the good behaviour period as an alternative to serving the suspension under section 36(1)(b) of the RTA relying on the notice of licence ineligibility.

This resolved his problem.

Traffic law is quite a complex area of law that requires legal expertise. Given this, it makes sense to see the experienced team at Everingham Solomons where Helping You is Our Business.

Click here for more information on Dan Daley.

Preparing a Will: What to expect at your appointment

Headshot of Jessica Wadwell - Conveyancer at Everingham Solomons TamworthPreparing a Will may seem daunting, but it is important that you put in place a Will that reflects your wishes, and to reduce the burden on your family and loved ones when you die.

To alleviate some of your stress, this article provides a brief overview of what to expect at your first appointment with us.  The appointment is usually in person as it is important instructions are received from you personally.  This allows us to have a conversation with you to ascertain details to help us prepare your Will, such as:

  • Personal details including identification, contact details and occupation.
  • Whether you have a current Will.
  • Details of family and other relationships i.e. spouse/de facto, children, stepchildren, dependents and former spouses.
  • Particulars of assets both solely and jointly held i.e. real property, bank accounts, shares and motor vehicles.
  • Particulars of liabilities i.e. mortgages and loans.
  • Superannuation information including any binding or non-binding nominations.

We will discuss with you who you would like appointed under your Will and how you would like your assets to be distributed to beneficiaries upon your death, such as:

  • Who you would like to appoint as your executor(s).
  • If you have infant children, who you would like to appoint as guardian(s).
  • Specific gifts to any beneficiaries.
  • Who the residue of your Estate is to be distributed to.
  • Substitute beneficiaries to cover the event of beneficiaries predeceasing you.

Depending upon how you wish your assets to be distributed, further discussions may be required regarding family provision issues.  For instance, people who may be entitled to make a claim on your Estate on the basis that adequate provision has not been made for them under your Will.

We will also discuss other estate planning documents such as Powers of Attorney and Appointments of Enduring Guardian which operate during your lifetime.  These documents permit you to appoint another person to make financial, and medical and lifestyle decisions on your behalf should you be unable to do so.

Once instructions are obtained for the preparation of your Will, our appointment is usually concluded.  A draft Will is then prepared and submitted to you for your approval, and a further appointment is scheduled for reviewing and signing of your Will.

At Everingham Solomons we have the expertise and experience to assist you with all your estate planning needs, because Helping You is Our Business.

Click here for more information on Jessica Wadwell

What is Vacant Possession?

Headshot of Suzanne Hindmarsh - Conveyancer at Everingham Solomons TamworthWhen buying a property you need to ascertain if the property is vacant possession or tenanted.  If you want to live in the property, you will require the contract to stipulate vacant possession.

What is vacant possession?

Vacant possession refers to the exclusive use of the property, free from any tenancy or any physical impediment preventing the purchaser from enjoyment of the property. This requires the property to be free of chattels such as furniture, any rubbish or personal items at the time of completion.

If at the initial inspection of the property there is significant rubbish on the property, we recommend a special condition be inserted in the contract before the parties sign the contract requiring the seller to remove any rubbish before settlement.

For a majority of contracts, the seller is obligated to provide vacant possession on completion. This requires the seller, on or before completion of the contract (settlement day), to remove any items not included in the sale of the property.  If items of furniture, rubbish or personal property not included in the contract remains on the property, vacant possession has not been provided.

A final inspection by the purchaser, in the presence of the real estate agent, prior to the completion is required to ensure no undesired items are left behind. This allows the seller another opportunity to remove these items prior to completion.  If these items are not removed, the purchaser’s options can include:-

  • Refusing to complete the contract
  • Negotiate to retain a percentage of the deposit to cover the cost of removal of unwanted items; or
  • Commence legal proceedings to recover damages

Remember, as a purchaser you do not want any surprises after completing the contract and paying the full purchase price.

At Everingham Solomons, we can provide you with advice to assist in the smooth running of your conveyancing transaction because Helping You is Our Business.

Click here for more information on Suzanne Hindmarsh.

Who should I Appoint as Executor of my Estate?

Headshot of Nick Hawkins - Solicitor at Everingham Solomons TamworthOne of the most important things to consider when making a Will is who you wish to appoint as your executor. Your solicitor will discuss appointments of executors with you but there are a couple of issues to consider before giving instructions to prepare your Will, including:

  1. Capability – The executor’s job is to manage your estate, call in, sell and distribute your assets, and pay any debts and liabilities. If you are leaving gifts in your Will to children who have not attained the age of majority, your executor will have to invest your assets and manage the estate for many years. Therefore, you need an executor who is up to the job. They need to be organised and trustworthy. They also need to be comfortable managing, investing or selling your assets, or at least able to adequately instruct a solicitor or financial advisor on these issues.

 

  1. Number of Executors – You should really have at least two executors appointed in some capacity; that way, if one is unable to act, you have a backup. You can appoint a primary executor and a substitute who can only act if the first is unable. Or you may wish to appoint multiple joint executors who must work together. If you appoint joint executors they need to get along with each other to facilitate the administration of your estate. You do not want to create a situation where disputes arise between your executors.

 

  1. Location – If you appoint executors who live across multiple states, or executors who live overseas, the management of the estate can be a lot more difficult. Issues with the location of executors often arises when signing Probate documents and documents to authorise the distribution of the estate assets. All executors need to sign the original Probate documents and all executors need to have their signatures witnessed by a Justice of the Peace or solicitor. If there are many executors spread out across the country it can take much longer to finalise the estate.

 

  1. Practicality – Primarily, the executor needs to be someone that knows enough about your assets and financial affairs to be able to provide this information to a solicitor.

 

It may also be practical to appoint an executor who is a beneficiary of your estate and is motivated to start the administration process and follow it through to distribution. In other instances it may be more practical to appoint someone who will not benefit from your estate and can remain completely impartial. This may be necessary if your Will gives some discretion to your executors as to how to divide a particular asset between your beneficiaries or the beneficiaries don’t get along with each other.

If you need assistance drafting a Will or wish to discuss appropriate executors to appoint, contact a solicitor at Everingham Solomons because Helping You is Our Business.

Click here for more information on Nick Hawkins.

Facebook and Family Law

Without doubt, a family law matter can be extremely emotional and stressful times for all parties involved. A reaction by ‘blowing off steam’ social media would be a very natural reaction for a person under such circumstances. However, doing so might land you in gaol.

Section 121 of the Family Law Act 1975 makes it an offence to publish or otherwise disseminate to the public, any account of or part of Court proceedings which makes it possible to identify and of the following:

  1. a) a party to proceedings;
  2. b) a person related to or associated with a party to proceedings; or
  3. c) any witness in the proceedings.

A person found guilty of such offence upon conviction may be in prison for a period up to one year.

The philosophy behind drafting such provision is the right to privacy of the parties and the protection of children.

When the Family Law Act came into force in 1975, the internet, social media and the likes were decades away from becoming the every day reality they are in 2022.

Accordingly, Section 121 of the Act considers “publishing” to mean as in a newspaper, periodical publication, by radio broadcast or television or other electronic means. Whilst these are still prevalent in 2022, the inclusion of the term “other electronic means” encompasses the internet and social media.

In the recent case of Suris & Suris [2021] FedCFamC1, the Respondent, Mr Suris, was referred to the Australian Federal Police by Her Honour Justice Carew for investigation for breaches of Section 121.

During the acrimonious parenting dispute, Mr Suris filmed a documentary about his children and the impact of the Court proceedings, with the hope it would assist his case. Mr Suris had created a website to show the documentary, as well as making numerous social media posts, some of which included the full names and photographs of his children. This is a flagrant breach of Section 121 and it’s overarching goal of the protection of children.

The case of Suris is certainly a more extreme examples of breaching Section 121, however according to the wording, publishing anything that makes it possible to identify a party, a relation or a witness, could be considered to be a breach.

Accordingly, one must stop and consider the above before using social media platforms such as Facebook or Twitter to ‘blow off steam’ about family law matters.

For advice and assistance on all matters associated with Family Law disputes, contact Everingham Solomons where Helping You is Our Business.

Click here for more information on Lachlan Ennis.

Changes to NSW Stamp Duty

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthThere have been some recent announcements with respect to the Stamp Duty system in NSW.

The main change being the introduction of the First Home Buyer Choice scheme but there are also a couple of other changes.

First Home Buyer Choice Scheme

The Government has announced a new scheme for First home buyers which is due to commence in 16 January 2023.

The scheme will allow first home buyers an option as to whether they pay stamp duty on the dutiable value of the property or they opt into pay an annual property tax for as long as they own the property.

The property tax is calculated based on the use of the property, with it being calculated at a lower rate if the purchaser is living in the property.  Higher rates apply if you are purchasing the property as an investment.

Certain eligibility criteria will apply to this scheme.

It is important to note that this scheme is in addition to the other NSW First Home Buyers’ schemes and that the schemes/ grants can be used together in some circumstances.

Intergenerational Transfers (Primary Production)

In NSW there is an exemption from stamp duty for a transfer of primary production land to a relative that has the intention of carrying on the primary production activities, subject to meeting several eligibility criteria.

Previously, the person acquiring the property had to be an individual. Now the exemption will apply when transferring to companies, trusts, self-managed super funds, and the like providing that a link can be established between the entity and the person eligible to receive the exemption.

This allows for the next generation of farmers to carry on the farming using these structures.

Surcharge Purchaser Duty

Landowners will now also be eligible to apply for a refund of surcharge Purchaser Duty paid, if the Land is used wholly or predominately for commercial or industrial purposes rather than residential purposes.

For further information on the changes to Stamp Duty in NSW or just assistance with Stamp Duty generally, contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Sarah Rayner.

 

Previous asymptomatic injuries, are they deducted in Workers Compensation Claims?

Headshot of Libby Campbell - Solicitor at Everingham Solomons Tamworth

Under NSW Workers Compensation law, injured workers are entitled to a permanent impairment claim if they are assessed at 11% Whole Person Impairment or greater for a physical injury or 15% Whole Person Impairment for a psychological injury. An assessment is carried out by qualified doctors.

On occasion, injured workers will have pre-existing conditions, injuries, or abnormalities of the same area of the body being assessed. When this occurs, a deduction can be made by the Doctor to exclude the level of impairment not related to the workplace injury and therefore not compensable, from the total Whole Person Impairment assessment.

The question has been raised, particularly for psychological injuries, where the previous injury or pre-existing condition or abnormality is asymptomatic at the time of assessment, and whether a deduction should be made for the prior injury. The Supreme Court decision of Marks v Secretary, Department of Communities and Justice [2021] NSWSC 306 and [2021] NSWSC 616 provided further clarity on this issue. In this matter the Plaintiff had worked for the NSW Police Force and in 2011 reported a PTSD injury following a colleague threatening him with a firearm. He made a permanent impairment claim and was assessed at 22%WPI. Mr Marks commenced new employment with the Department of Communities and Justice and sustained a further workplace injury with a diagnosis of major depressive disorder. He disclosed he had suffered the prior injury but that it had resolved and he was not having any further treatment in relation to the prior injury. In 2019 he was assessed at 21%WPI. Justice Simpson stated: “notwithstanding the plaintiff’s asymptomatic status at the time of his employment with the first defendant, he was nevertheless, by reason of his earlier experience of PTSD, rendered more vulnerable due to the subsequent harassment and vilification such that the earlier condition was ‘a significant factor’ in the assessment of the extent to which the current condition was caused by the events while he was an employee of [Police].”

Therefore, despite being asymptomatic, the medical evidence is still required to be reviewed objectively to decide whether there is any residual influence of a pre-existing injury on the worker’s current whole person impairment. If you have a workers compensation injury and require advice, please contact our office because Helping You is Our Business.

Click here for more information on Libby Campbell.

A handwritten note leads to buried Treasure after death

Headshot of Lesley McDonnell - Senior Associate at Everingham Solomons TamworthIn NSW, there are certain formalities that are required to make a valid will. Failure to observe these formalities can lead to additional delay and expense to your estate. Legislation empowers a Court, in appropriate circumstances, to utilise a dispensing power “to give effect to a testator’s true intentions despite the fact that a will has not been validly executed”.

The deceased died in 2015 leaving a handwritten will dated 11 September 2002. A further document was discovered dated 12 September 2002 (‘the informal document’). The informal document was handwritten and signed by the deceased and stored in the deceased’s safe custody packet at a bank. The informal document stated that cash was buried in the ground at the deceased’s home and $45,000 was to be sent to a named person and $5,000 was for the executors to bury her. Having discovered the informal document after the death of the deceased, the executors of the will faithfully followed the instructions and discovered $50,000 hidden as described by the informal document.

An application was made to the Victorian Supreme Court for the informal document to be admitted to probate pursuant to the dispensing power as the informal document was not witnessed in accordance with the formal requirements to make a will.  The Court noted three criteria must be satisfied namely:

(a) there must be a document; and

(b) the document must record the testamentary intentions of the deceased; and

(c) the deceased must have intended the document to be his or her will.

The Court noted “The informal document is clearly a document and it clearly records the testamentary intentions of the deceased. It makes reference to one of the deceased’s assets, and expressly makes directions as to how she wishes it to be dealt with (by the named executors of her will) in the event of her death…The informal document was stored with her financial institution with other important items and was executed only a day after her will, thereby forming part of a broader course of action settling her testamentary affairs. The deceased clearly treated the document as one of practical significance, intending that it take effect, in conjunction with her will, upon her death”.

The Court was satisfied that the deceased intended the informal document to take effect as a codicil to her will.

Whilst ultimately the application was successful, it was not without associated difficulty and delay and uncertainty for the parties involved coupled with considerable legal costs much of which could have been avoided if the deceased had consulted a Lawyer to make a will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.

Click here for more information on Lesley McDonnell

Show me the Money

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthIt is fairly common knowledge that when you die your bank will freeze any account that is in your sole name. The process to get the bank account unfrozen depends on the amount of money that is in the bank account at the time of death.

Typically (but each bank has different requirements), a balance of under $50,000.00 will mean that the bank will not need to see a Grant of Probate or Letters of Administration. They will however, require various documents to be provided by the deceased’s executor, including the Will, Death Certificate and signed bank paperwork.

If the bank requires the Grant of Probate or Letters of Administration to be provided, then the process becomes a bit more involved.

Closing a deceased’s bank account sounds relatively straight forward and you’re probably thinking it is pretty easy, but practically speaking for many people it isn’t that simple.

For many people having their partners bank account frozen poses quite a challenge.

Let’s look at this practically.

Did you know that a death certificate can take months to be obtained in some cases?

Did you know that a Probate Application cannot be made before a death certificate is issued?

Did you know that once you file a Probate Application it can take months to be granted?

You still might be thinking ok, so it takes some time… But what if your partner, children or other family relied on the money you have in your sole bank account to pay for day-to-day expenses like rent or food?

Could they live for a month or more without access to that money? If the answer is no, then you probably have an issue.

There are some very simple solutions to this problem, such as a joint bank account or ensuring that your partner has access to funds in an account which will not be frozen.

Banks will in some circumstances allow access to a frozen bank account for some expenses, but this is assessed on a case-by-case basis and requires a person to make an application for the funds.

While this seems very simple, we see many people in a situation that cause them significant stress because their partner failed to consider this issue.

It is important to get the proper advice when preparing your Will so contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Sarah Rayner.

Building disputes – you need to act fast

Headshot of David Southwood - Solicitor at Everingham Solomons TamworthHave you got genuine concerns about residential building work that has been done at your property? If yes, there are important obligations and timing issues that you must be aware of. If you do not comply with these, your ability to commence proceedings and obtain compensation or relief may be seriously compromised.

  1. Obligation to mitigate – If you discover a defect in building work, you can’t sit on your hands and watch things get worse. The law requires you to take steps to reduce the damage that occurs from the defective work. If you fail to do this, you may only receive compensation for some of the damage, as the law considers that you should have taken steps to protect yourself from avoidable damage.

 

  1. Obligation to notify builder – Related to the obligation to mitigate, you are also required to notify the builder in writing about the defect within 6 months after the defect becomes apparent. You must not unreasonably refuse the builder access to remedy the defect.

 

  1. Time limits to commence proceedings – If you wish to commence proceedings about defective residential building work, ideally you should do so within 2 years of completion of the building work and no later than 6 years. If you commence proceedings after this time, your claim will only be considered if you can show there is a “major defect” in the building work.

 

Proving a “major defect” is a big hurdle. In essence, it requires there to be a defect that will cause the building work to be uninhabitable, unusable or cause its destruction. On the other hand, if you commence proceedings within two years, any reasonable claim for defective work can be considered.

 

If you have genuine concerns about building work, it is important that you engage a solicitor early to ensure that you comply with the above obligations. If you don’t, your ability to claim compensation or obtain a remedy may be seriously compromised. Everingham Solomons Solicitors has experience in building disputes and is happy to assist you, as Helping You is Our Business.

Click here for more information on David Southwood.