The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into effect on 29 March 2021 and replaced the Mental Health (Forensic Provisions) Act 1990 (NSW).
There are a number of changes that this new piece of legislation introduces in relation to the previous act. This new act makes amendments and additions to the previous definitions relating to cognitive impairment and mental illness and/or mental condition, now referred to as a “mental health impairment”.
A mental health impairment is now defined as a “temporary or ongoing disturbance of thought, mood, volition, perception or memory” which “would be regarded as significant for clinical diagnostic purposes” that “impairs the emotional wellbeing, judgment or behaviour of the person.” The mental health impairment can come about due to anxiety, affective disorder, psychotic disorder or a substance-induced disorder that is not of a temporary nature.
Under section 5 of the new act, cognitive impairment is defined as “an ongoing impairment in adaptive functioning and comprehension, reasoning, judgment, learning or memory which result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind.” Cognitive impairment can relate to intellectual disability, borderline intellectual functioning, dementia, acquired brain injury, drug or alcohol related brain damage and autism amongst other causes.
Section 15 of the new act outlines a list of factors that a Magistrate may take into account in deciding whether diversion is more appropriate then dealing with the matter otherwise in accordance with the criminal law. These factors include:
• The nature of the mental health or cognitive impairment,
• The seriousness and circumstances of the alleged offence,
• The suitability of the sentencing options available,
• Any changes in the circumstances of the defendant,
• The defendant’s criminal history,
• Any previous mental health diversion,
• Any treatment plan and its contents,
• Whether the defendant is likely to endanger the safety of themselves, the alleged victim, or any other member of the public, and
• Any other relevant factor.
The intersection between mental health, cognitive impairment and the criminal law can be quite complex. Should issues relating to mental health and/or cognitive impairment arise in criminal law proceedings, it is important to ensure you are represented by someone with knowledge and expertise in this area. Our experienced team at Everingham Solomons can look after these issues for you because Helping You is Our Business.
Recent amendments to regulations expand the applicability of the consumer guarantees regime under the Australian Consumer Law (ACL).
Under the current definition in section 3 of the ACL, a person is a “consumer” if the person acquires:
– goods or services that are priced at $40,000 or less;
– goods or services that are of a kind ordinarily acquired for personal, domestic or household use (regardless of the price of the goods or services); or
– a vehicle or trailer acquired for use principally in the transport of goods on public roads.
The consumer guarantees do not apply to goods acquired:
– for the purpose of re-supply;
– for using them or transforming them through processing, production or manufacture; or
– for repairing or treating other goods or fixtures on land.
From 1 July 2021, the definition of “consumer” under the ACL will be the same except that the monetary threshold of $40,000 will increase to $100,000.
Increasing the monetary threshold to $100,000 means many large commercial transactions that were previously not subject to the ACL will be subject to the consumer guarantees regime from 1 July 2021.
If you are a supplier who may be impacted by the change, you should immediately ascertain the price of your goods or services and find out whether your customers fall under the new definition of “consumer”. If your customers are considered “consumers” under the ACL, you should:
– seek advice on what consumer guarantees will be implied into your transactions and ensure that your goods or services comply with these guarantees;
– review your contracts and terms & conditions to ensure they are up to date and capture the requirements of the ACL;
– provide trainings to your employees so that they understand what rights and remedies consumers are entitled to under the ACL and ensure your employees do not accidently mislead or misinform customers in a manner that contradicts the ACL;
Everingham Solomons have experienced Solicitors who can advise you on the Australian Consumer Law. Please do not hesitate to contact us for any legal advice you may need because Helping You is Our Business.
Where a farming enterprise has been carried on a rural property, for a minimum of 5 years and where the purchaser intends to carry on a farming operation, then generally the sale will be exempt from payment of GST.
A recent matter highlighted the importance of ensuring that each transaction is examined on its facts and generalisations such as the above rule, are not adopted on a wholesale basis.
The facts: The sellers had operated a farming enterprise (sheep) on their property for many years. They had agreed to sell 15 acres from their rural property to a Purchaser.
The purchaser indicated that he intended to run sheep on the property and has been advised that the GST farmland exemption will apply. That is, no GST is payable in addition to the purchase price.
At first glance this looks to be a reasonable proposition, as the seller has run a farming business for more than five years and the purchaser wishes to run sheep on the property.
The real issue to enable you to determine whether the GST exemption will apply to this sale, is whether the purchaser intends to carry on the business of primary production being the carrying on of a business of maintaining animals for the purpose of selling them for their bodily produce and natural increase.
The issue is whether the running a few sheep on a small block of land amounts to the purchaser “Carrying on a business”.
Factors which the Courts have indicated are relevant in indicating whether a primary production business is being carried on include:
a. Does the activity have a significant commercial purpose or character;
b. Does the taxpayer have more than just an intention to engage in business;
c. Is there repetition and regularity of the activity;
d. Whether the activity is similar to other businesses carried on in that line of business;
e. Is the activity planned, organised and carried on in a businesslike manner;
f. Is the activity directed at making a profit;
g. What is the size scale and permanency of the activity; and
h. Is the activity better described as a hobby, form of recreational or sporting activity?
In the above factual scenario, the running of a few sheep is unlikely to satisfy the commerciality test of “carrying on a business” and accordingly the sale would not be GST free for the sale of farm land.
At Everingham Solomons we have the expertise to advise you on all of your property needs because Helping You is Our Business.
Buying or selling real estate is an exciting prospect. The actual process of transferring ownership in land can be quite daunting for many people. Sometimes a buyer/seller of property has difficulty understanding conveyancing terms their solicitor/conveyancer uses.
The following are some commonly used terms you will encounter when buying or selling property in NSW:-
Vendor: the owner of the property
Purchaser: the buyer of the property
Mortgagee: the Bank providing monies to a person for the purchase of property
Mortgagor: the person borrowing the money from the Bank to purchase the property
Offer: The price the purchaser puts to the vendor (usually through a real estate agent) for the property. Vendor acceptance of the offer does not mean the purchaser has entered into a contract to purchase the land, as this happens on exchange.
Contract for Sale of Land: a document prepared by vendor’s solicitor/conveyancer evidencing the legal agreement between the vendor and the purchaser
Deposit: a sum usually 10% of the purchase price payable to the real estate agent on exchange as a vendor safeguard. The deposit is held by the agent until settlement at which time it is released to the vendor.
Bank Deposit: Your bank may require you to have 20% deposit representing the amount of your savings before it will lend to you.
Exchange: Is when a duplicate copy of the Contract is signed by each of the parties and the documents are “”swapped” so the vendor has a copy of the contract signed by the purchaser and vice versa. Once exchange has occurred, the parties are contractually bound and are unable to pull out of the sale/purchase without suffering serious consequences.
PEXA: stands for “Property Exchange Australia”. It is an electronic settlement system for property transactions including payment of settlement monies, duties, taxes, and any other disbursements and the electronic lodgment of dealings to the Land Registry.
Client Authorisation: a form signed by the vendor/purchaser authorizing their solicitor/conveyancer to act for them in the online workspace of PEXA.
Verification of Identity (VOI): Each vendor/purchaser will need to provide identification documents i.e. passport, driver’s licence, medicare card, birth/marriage certificate to their solicitor/conveyancer for identifying the parties to the transaction.
Completion period: The time between exchange and settlement. The vendor usually stipulates a period between 28 days and 42 days for completion to occur.
Settlement/Completion: the day when ownership of the property is transferred from the vendor to the purchaser. The purchaser supplies the balance of monies to pay for the property (taking into account the deposit already paid) and the vendor provides the documents required for the purchaser to be listed as the registered proprietor of the property. This all takes place on the PEXA platform in most circumstances.
Congratulations: the words you will hear from your dedicated Everingham Solomons solicitor/conveyancer once your sale/purchase has been completed because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
There are various enquiries and inspections you should consider undertaking when purchasing a property. One of those is a Survey Report.
What is a Survey Report?
A Survey Report is obtained from a surveyor to establish that the improvements you wish to buy are actually located on the land you are buying and also to establish if there are any encroachments by improvements onto other properties or by improvements onto the land you are buying. A further purpose is to demonstrate that the house is positioned on the land in order to comply with Council’s set back requirements from the boundaries. The location of the fences may not be a true indication of the property boundaries.
How much does a Survey Report cost?
The cost of a Survey Report for a residential property consisting of a house and land usually starts at $1,000.00 and will increase depending upon the size and location of the property.
Do I need to obtain a Survey Report?
There is no requirement to obtain a Survey Report when purchasing property however, it is an important report you should consider obtaining.
What are the consequences of not obtaining a Survey Report?
There may be no consequences or you may find yourself in a situation where you have purchased a property and the structures on the property encroach upon neighbouring land. You will then have the potential added costs of addressing the encroachment including entering into negotiations with the neighbour for a boundary adjustment or easement for the encroachment, or having to upgrade or demolish the encroachment. You may also encounter difficulties or delays in selling the property if a subsequent purchaser identifies issues with the boundaries. Accordingly, the cost of obtaining a Survey Report at the time of purchase could assist in avoiding the added costs of dealing with issues in the future.
At Everingham Solomons, we discuss the inspection options available to permit purchasers to make informed decisions because Helping You is Our Business.
Click here for more information on Jessica Wadwell
In NSW a demerit point system applies to traffic offences. Different categories of drivers have differing numbers of points on their licence. For instance, a professional driver has 14 points, unrestricted drivers have 13 points, P2 licence holders have 7 points and drivers on their P1 licence or learner’s licence have 4 points.
The demerit point system works by allocating demerit point penalties for different types of driving offences. If the driver accumulates more demerit points than allowed based on their category of licence, within a three-year period, their licence will automatically be suspended.
The length of a demerit point suspension depends upon the amount of points accumulated in the 3 year period. For professional or unrestricted licence holders, demerit point suspensions can range from 3 to 5 months suspension, whilst restricted licence holders (P and L platers) face a standard 3 month suspension.
In rural areas a licence suspension can have serious consequences in relation to employment and family life. For this reason, many people on an unrestricted licence choose to serve a 12 month period on a “good behaviour” licence rather than serve the mandated suspension period.
A good behaviour licence will give the driver a further two demerit points for a 12 month period. If the driver exceeds this 2 demerit point limit during this 12 month period of good behaviour, the suspension period will then be double the original suspension imposed. For this reason, a good behaviour licence is sometimes known colloquially as “double or nothing” licence.
Whilst it is not ideal to be charged with driving offence whilst on a good behaviour licence, it is possible to challenge the matter in Court. If a driver is found not guilty of the offence, no demerit points will apply and they will be able to keep their licence.
Alternatively, in some limited situations, it may be possible to enter a guilty plea and have the Court deal with the matter leniently and not record a conviction for the offence. No conviction means no demerit points accrue and no suspension from driving.
Traffic law can be quite a complex area and thus it is important to ensure you are represented by someone with thorough knowledge of how the system works. If you have any traffic related queries please contact the experienced team at Everingham Solomons as Helping You is our Business.
Guns. And I’m not talking about the ones you see on the beach in Summer.
Gun laws in Australia are heavily regulated, and as such there are plenty of ways to find yourself in trouble, if you do not follow the Laws and Regulations carefully.
There are two main hurdles when looking to obtain a firearm. There are the licensing requirements and then there is the permit you are required to hold, so that you may obtain a firearm.
In order to obtain a firearms licence you must make an application. The first requirement is to show that you have a genuine reason for wanting to obtain a firearm. Genuine reasons include; vermin control, hunting, sports shooting, farming and a requirement for employment.
You will also be required to undertake a safety course and a background check which includes a criminal history check along with an intelligence check.
This process is an application so the authority has the discretion to refuse your application. There are a few reasons you may be denied a licence for example certain criminal activity will prohibit you from obtaining a licence.
In addition to not being granted a licence, the authority can suspend or revoke a licence at any time.
If you have been granted a firearms licence, then you may apply for a Permit to Acquire. This is done each time you wish to acquire a firearm.
You will need a valid reason for wanting to obtain a fire arm and generally it must be directly related to the genuine reason you provided with respect to obtaining your gun licence.
The application must include a declaration as to where the firearm is intended to be kept as well as address the safekeeping requirements as set out by the Legislation.
Further background checks are conducted upon a person submitting a permit application.
Once issued, you will be able to take the permit to a Licensed Firearms Dealer and obtain a firearm.
On top of the above, if the Commissioner is of the opinion that you are not fit to possess a firearm, they can issue a Firearms Prohibited Order which will prohibit you from possessing a firearm.
Recently, the Police have been conducting inspections of firearms locally so if you have found yourself in need of some advice, contact Everingham Solomons because Helping You is Our Business.
In New South Wales the Succession Act provides that an eligible person must commence Court proceedings for provision out of the Estate of a deceased person within 12 months from the date of death.
If proceedings are not commenced within this time then the Claimant will be met by a defence that the claim is statute barred and should be dismissed.
Under Section 58(s) of the Act the Court has discretion to extend the time for making an Order. Such extension is granted only upon sufficient cause being shown, often where there is no prejudice to the Estate, and where the delay is explained by the person challenging the Will.
A case that considered extensions of time in the New South Wales jurisdiction is the case of O-Brien v Luscombe. In this case the Supreme Court was asked to consider a claim for provision when the claim was brought 8 years after the time to bring a claim had expired.
In this case the Court considered four general questions to be considered when determining whether to extend the time limit.
1. Is it a strong claim with sufficient merit?
2. Is there any prejudice to any beneficiaries that have already received an interest from a distribution from the Estate (including any real expectations in relation to property)?
3. Is there a reasonable explanation for the delay in bringing the claim?
4. Is there any unconscionable conduct by any other person?
Any attempt to extend the limitation period will be considered on its individual facts. If an out of time Claimant is able to enliven the jurisdiction by extending the time this does not necessarily mean that a claim will succeed. A Court if it is to allow an eligible person to make a claim out of time would then need to satisfy itself of two questions:
1. Has the Applicant, been left with adequate provision for his or her proper maintenance, education and advancement in life? And if not,
2. What provision ought to be made of the Estate of the deceased in favour of the Applicant?
If you require specialised advice in respect of a potential claim involving a Will, Everingham Solomons, has the expertise to assist you with respect of such claims, because Helping You is Our Business.
The death of a loved one can be an upsetting and difficult time. This can be particularly so if a person feels they have been inappropriately left out of the deceased’s Will. In our experience, grandchildren can often have very significant relationships with a deceased grandparent yet they may be left out of their Will. Fortunately, there is a way by which a grandchild can seek to receive a share of the deceased’s Estate.
The Succession Act provides a means by which an “eligible person” can apply to the Court seeking an order that they be given greater provision from a deceased’s Estate. Eligible persons include people like spouses and children of deceased persons. However, determining whether a grandchild is an “eligible person” is a bit trickier.
A grandchild can only be an “eligible person” if they were “wholly or partly dependent” on the deceased person “at any particular time”. Alternatively, a grandchild may be an “eligible person” on the basis that they were a person “with whom the deceased was living in a close personal relationship at the time of the deceased’s death”.
Determining whether a grandchild satisfies one of the above conditions requires a detailed investigation into the nature of the relationship between the grandchild and the deceased, as well as a consideration of previous cases decided by the Courts.
If you are a grandchild and you are concerned that you have been inappropriately left out of a deceased’s Will, then please arrange an appointment with Everingham Solomons Solicitors. We understand the sensitive nature of these situations. We pride ourselves on giving honest and direct advice so that you can understand your legal position in these emotional circumstances, because Helping You is Our Business.
Click here for more information on David Southwood.
Recently we wrote about adult children seeking to contest their parents will. Whilst an adult child may assert “as of right” that a parent is bound to treat children equally in their will, that is not an automatic right as the following case from last year illustrates.
A mature aged adult son, with a reputation for being “a spendthrift of sorts” sought to make a claim against his mother’s estate at the expense of his only sibling despite the fact that his mother by her will, left him a property in excess of $1.2 million coupled with several years’ annuity of $66,000, but he wanted more.
As a child of the deceased, the son qualified as an “eligible person” to apply for a family provision order against his mother’s estate. When she died, his mother left an estate with an estimated value of over $6 million.
When his mother and his late father were still alive, the son took what was described as an early “inheritance in the form of substantial parental assistance, from time to time, as he encountered crises in life (with a divorce, involvement in court proceedings, and subjection to disciplinary proceedings affecting his entitlement to practise his chosen profession)”. “Having received his inheritance, and (not for the first time) fallen on hard times, the plaintiff looks to his mother’s estate (more particularly, the defendant’s inheritance) for relief against pressing debts and for a larger share of the estate”.
To succeed in his claim, the son was required to establish that he has been left without “adequate provision for his maintenance, education and advancement in life” from his mother’s estate and that further provision “ought” to be made for him from her estate. In his application the son sought a further $1 to $1.5 million from his mother’s estate to which the court noted such an “ambit claim suggests that he has a misplaced sense of entitlement”.
In undertaking a review of previous wills made by the deceased, the court noted throughout her son’s adult life “the deceased accommodated his claims of necessity on her generosity; but she remained mindful of her desire, by her will, to even up the scales as between” her son and daughter.
Ultimately the court determined the son failed to establish that he had been left without adequate provision for his proper maintenance, education and advancement in life out of the estate and his application was dismissed.
At Everingham Solomons we have the expertise to assist you with all matters relating to family provision claims, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) came into effect on 29 March 2021 and replaced the Mental Health (Forensic Provisions) Act 1990 (NSW).
Recent amendments to regulations expand the applicability of the consumer guarantees regime under the Australian Consumer Law (ACL).
The answer is sometimes.
Buying or selling real estate is an exciting prospect. The actual process of transferring ownership in land can be quite daunting for many people. Sometimes a buyer/seller of property has difficulty understanding conveyancing terms their solicitor/conveyancer uses.
There are various enquiries and inspections you should consider undertaking when purchasing a property. One of those is a Survey Report.
Guns. And I’m not talking about the ones you see on the beach in Summer.
In New South Wales the Succession Act provides that an eligible person must commence Court proceedings for provision out of the Estate of a deceased person within 12 months from the date of death.
The death of a loved one can be an upsetting and difficult time. This can be particularly so if a person feels they have been inappropriately left out of the deceased’s Will. In our experience, grandchildren can often have very significant relationships with a deceased grandparent yet they may be left out of their Will. Fortunately, there is a way by which a grandchild can seek to receive a share of the deceased’s Estate.
Recently we wrote about adult children seeking to contest their parents will. Whilst an adult child may assert “as of right” that a parent is bound to treat children equally in their will, that is not an automatic right as the following case from last year illustrates.