Headphones while driving: Are you asking for treble?

In NSW it is not expressly illegal to wear headphones while operating a motor vehicle.

Music to your ears, right?

Not quite. There is a bit of a ‘catch all’ road rule which could see the wearing of headphones as being problematic and in some circumstances illegal. This rule being NSW Road Rule 197(1) essentially make something illegal if it is a distraction that causes a driver to not have proper control of a vehicle.

This rule generally is invoked if your driving causes an accident or if you are witnessed to be driving erratically.

So, would a Police Officer charge you for wearing headphones while driving in these circumstances? Well, that beats me!

Police have discretionary power with respect to this offence, meaning that they alone would decide if you wearing headphones was deemed to be a distraction and therefore, if it would be deemed an offence. In some circumstances, you may be able to fight any charges laid in Court, but the Police will have the discretionary power to charge you initially.

If you were charged under this road rule for not having proper control of the car, you’d be looking at three demerits and a $481 fine. The Court could impose higher penalties, should the matter be referred there.

In addition to the possible fines, you face if you are charged with this offence, insurance companies may not pay on a claim arising from an accident. This is because there are usually clauses in their PDS noting if you are negligent or knowingly dangerous in your driving, then your claim may be denied. This is ultimately a matter for the insurance companies to decide.

Generally, it is considered that the practice of wearing headphones is unsafe, as it inhibits your ability to hear emergency sirens and horns used by other drivers as well as generally dulling your awareness of your surroundings. Plus, generally speaking, in order to use headphones, you need to connect to your mobile phone. Mobile phone use while driving carries many possible offences as well.

As the law is unclear and there is a lot of discretionary powers, the best position in NSW lends to being one where you err on the side of caution and refrain from using headphones while you drive.

If you need some sound legal advice, contact Everingham Solomons, because Helping You is Our Business.

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The cash’s out of the bag

On 7 December 2022 saw a major reform in Employment law through the implementation of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Act). This change saw many changes come into effect, including provisions regarding pay secrecy.

Previously, it was not uncommon for Employers to have a pay secrecy clause in Employment contracts prohibiting Employees from disclosing their pay details to others.

From 7 December 2022 all new Employees and Employees on an award, enterprise agreement or other Fair Work Instrument have an established workplace right to share details about their pay and benefits and to ask other Employees about their pay details. They can also ask about the terms of their employment.

This can also apply to Employees with an employment contract, but only in certain circumstances.

Employees will not be required to disclose information should they not wish to.

The changes also see Employers now being prohibited from taking adverse action against Employees for disclosing this information to others. If they do, Fair Work Ombudsman can impose penalties and the Employee can make general protections claims (general workplace claim) against their Employer.

However, it is noted that if you are a contracted Employee and have a pay secrecy clause in your contract, and your Employment contract has not been amended in any way since 7 December 2022, then the secrecy clause in your contract will still apply.

Any amendment to your current contract will automatically invoke this change and your pay secrecy clause will no longer apply.

Remember a change to your contract can be as simple as agreeing to work from home, a pay rise, change of your working hours, or a change to your role. It does not need to be a specific change relating to these provisions. They also do not have to be in writing.

In addition, from 7 June 2023, Employers can also no longer include pay secrecy clauses in Employment contracts, or they can face penalties of up to $66,600.00.

Employment law is tricky and has very strict deadlines for claims, if you need help with employment law, contact Everingham Solomon’s team of experienced Solicitors because Helping You is Our Business.

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Going… Going… Gone are the days of rental bidding

With rental properties becoming more and more difficult to obtain, there has been a trend of Real Estate Agents engaging in a process referred to as rental bidding between prospective tenants.

Rental bidding is a practice in which Agents encourage a prospective tenant to increase their rental offer on a property because it may increase their prospects of securing the property. Essentially an auction is conducted between the prospective tenants to decide what rent will be paid, playing each offer against the other, which results in a higher rent being required.

A recent change to the Property and Stock Agents Regulations now prohibits Licensed Real Estate Agents from engaging in this practice.

From 17 December 2022, Agents can no longer invite offers of rent that is higher than the advertised price for a residential property.

These changes also effect the ways in which a residential property can be marketed for rent. A price range or a “starting price” can no longer be utilised by licensed agents. There must be a fixed rent amount listed on the advertisement.

This does not mean however that a higher offer cannot be accepted, however agents are prohibited from disclosing if higher offers have been made and they certainly cannot suggest you offer an amount over and above the rent noted in the advertisement.

There is, however, a bit of a catch. This change only applies to residential properties which are being managed by a licensed real estate.  These changes do not apply to anyone who is privately advertising a residential property for lease.

Real estate agents can individually face fines of $550.00 and businesses of up to $1,100.00 for breaching these regulations. General or ongoing non-compliance can see businesses faced with Court imposed fines of up to $11,000.00.

If you need legal assistance, contact Everingham Solomon’s team of experienced Solicitors because Helping You is Our Business.

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Hi Ho, Hi Ho, it’s back to Court we go

It was announced that as at 28 November 2022, the Land and Environment Court of NSW will be revoking its COVID 19 policies resulting in hearings and Court attendances back to being conducted in person.

During the COVID 19 pandemic NSW Courts switched to Audio Visual Link (AVL) methods to conduct trials and court attendances to limit contact, however they have slowly been transitioning back toward usual pre-pandemic practice.

Most branches of the Local, District, Supreme and Federal Courts have already repealed their COVID policies and have made the transition back to in person attendances and the remaining NSW Courts are sure to follow soon.

In accordance with pre-pandemic procedures, a party can request to attend Court by AVL, however this needs to be approved by the Registrar of that Court.

There does appear to be some beneficial changes that were driven by the pandemic, which will overall make the Court systems easier to navigate with less attendances being required including submission of Orders being conducted online.

If you need to appear in Court, contact Everingham Solomons to see one of our Litigation team because Helping You is Our Business.

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Who’s that knocking at my door?

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthLeases give a Tenant a right to exclusive use of a property. More simply they get a legal right to solely occupy and use a property as if it is their own. This means that no other person is allowed to occupy or enter a property without the consent of the Tenant.

So, what happens when the Landlord or their agent needs to get in for some reason?

Generally, a Landlord may need to enter a property so that repairs or inspections can be conducted, because the property is for sale or to comply with health and safety requirements.

In order to do this, they will need the consent of the Tenant.

Landlords and their agents also do not require consent if they are entering the property because of an emergency, to carry out emergency repairs or if they genuinely believe that the property is abandoned.

However, there are circumstances in which the Tenant’s consent is not required, if the Landlord has given a certain amount of notice to the Tenant.

The notice period in which a landlord is required to provide a tenant varies and comes down to the reason for which access is sought.

Here are some common reasons why a landlord might seek access and the required notice periods under the Residential Tenancies Act:

To complete an inspection:                                         7 days (Max 4 times in 12 months)

Carry out necessary repairs:                                      2 days

To comply with WHS obligations:                               2 days

To obtain a property valuation:                                   7 days

To take photos to advertise property for sale:            Reasonable notice (max once in 28-day period before marketing)

To show potential buyers:                                          14 days

You can, of course agree to waive the required notice period.

There are also some conditions in which a landlord or their agent is required to uphold. Normally, access is not allowed on Sunday’s, public holidays or at unreasonable times. They are also not allowed to stay in or on the property longer than is necessary to carry out their task.

At Everingham Solomons we have the expertise and experience to assist you in your leasing needs with our Accredited Specialist in Property Law on hand because Helping You is Our Business.

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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.

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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.

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Zoe’s Law

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthNew South Wales is the first state of Australia which has introduced Laws that makes it a criminal offence to cause the loss of an unborn child.

The legislation came into effect in late March and includes two new offences.

The first is a stand-alone offence which makes it a crime to cause the loss of a fetus. Previously, NSW laws only recognised the loss of an unborn child as an injury to the gestational parent. Now, there is a separate charge for the loss of a fetus.

This new law will be used in circumstances where the parent survives but loses an unborn child because of a crime being committed. This will now apply to a range of crimes including driving offences, bodily harm offences and the like.

This offence can carry a punishment of five (5) years to twenty-eight (28) years imprisonment, depending on the circumstances of the offence.

The second offence will be charged when a gestational parent is killed because of a crime. The punishment for this offence will be an additional three (3) years in prison (added to the sentence for killing the parent).

It is important to note that a person can only be charged with causing the loss of a fetus in circumstances where the fetus is at least 400g in weight or once the gestation period exceeds 20 weeks.

The new legislation also means that family members will also be able to submit victim impact statements to the Court addressing the loss of the unborn child. Victim impact statements are used by the Court when determining what sentence is appropriate for an offender.

The NSW Government have also announced a bereavement payment of $3,000.00 to be paid to the family of the victim/s if a person is charged with one of these offences.

For all your legal needs contact Everingham Solomons because Helping You is Our Business.

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But that’s mine!

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthA common document that many people put in place when completing their estate planning is a Power of Attorney. This allows another person to make financial and legal decisions on behalf of that person.

A person’s financial affairs can be quite intricate and the person who is acting as the Attorney can sometimes be required to make some complicated decisions.

Specifically, the Attorney can be put into a difficult position when the person they are acting for has significant expenses, but there is not enough money to pay for them. The Attorney does not have much of a choice other than to sell some of the person’s assets.

This is quite common when a person becomes elderly or their care needs increase.

In order to pay for care facilities, many people will have to sell some of their assets, such as property, to be able to afford the entry payments.

An Attorney generally also has the power to sell these assets on behalf of another person, but what if by doing so, they are effectively stripping a third-party of their benefit under that person’s Will?

S22 of the Power of Attorney Act 2003 deals with this very issue.

When a Power of Attorney, which has been drafted in accordance with this legislation, sells an asset that has been gifted to a third party under a Will, the Estate of that person will be obligated to account for this, by way of Ademption. This is a fancy way of saying that the Beneficiary, who was disadvantaged by the Attorney’s actions, will receive a cash payment of the net proceeds of sale (or whatever is left over) out of the Estate, before the rest of the estate is distributed.

So even if a person’s gift is sold by an Attorney, they will be compensated for the value of that asset, so far as possible.

If you have questions about Attorney’s duties or more generally Estates contact Everingham Solomons because Helping You is Our Business.

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The name’s Bond. Deposit Bond.

Headshot of Sarah Rayner - Solicitor at Everingham Solomons TamworthDeposit Bonds can be quite useful when buying Property. When you exchange on a Contract of Sale to Purchase property, you will usually be required to make payment of a Deposit, usually in cash, which is 10% of the purchase price.

There are circumstances where this can be tricky though. Maybe your assets are invested and you require some time to access them or perhaps your bank is issuing you a loan which will cover 100% of the purchase price, but your loan funds are not available until settlement.

So, what do you do in these situations? The Vendor will still require payment of the Deposit before you enter the Contract.

Usually, a convenient way to address this situation is to have a Deposit Bond issued. A Deposit Bond is essentially a guarantee from a provider that they will make payment of the Deposit, if a purchaser defaults on the Contract. It is a promise to pay.

Some of the perks of Deposit Bonds are that there are multiple providers of Deposit Bonds in NSW, and they usually can be obtained fairly quickly. But there is usually an upfront fee associated with the issuing of a Deposit Bond.

Each provider will have specific criteria you will have to meet to become eligible for a Deposit Bond, which usually will be that you have an asset base in which they can secure the Bond against.

However, you cannot simply assume that a Bond will be accepted by the Vendor in your transaction. You will need to ensure that the Contract of Sale allows you to make payment of the Deposit by way of Bond.

The other big consideration is that the Deposit that you paid by way of using a Deposit Bond isn’t really paid. It is a promise to pay made by the provider. The amount that you are securing with a Bond will become payable at settlement of your transaction. So, the Bond is really only a temporary placeholder for the Deposit. You will still need to have the full amount payable, in cash, available at settlement.

If a Purchaser defaults on the Contract of Sale in which a Bond has been used in lieu of a cash Deposit, and the Vendor becomes entitled to retain the Deposit, the Vendor can then “cash in” the Bond with the provider. The Purchaser will remain liable to the provider to reimburse the amount of money owed to them.

This generally means that while there are a few extra hoops for the Vendor to jump through to collect a forfeited deposit, from the Vendor’s perspective accepting a Deposit Bond instead of a cash Deposit when you are selling, is relatively low risk.

If you have questions about Deposit Bonds, or purchasing property in general, contact Everingham Solomons because Helping You is Our Business.

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