If you are a home owner, your Certificate of Title (land title deed) is an instrument executed by the Registrar General at the Land Registry Services, and is evidence of your ownership of your property. In 2018, all paper Certificates of Title held by the banks were converted to electronic certificates of title called eCT’s.
Where is the Certificate of Title normally kept?
If your property is mortgaged, your eCT is held by the mortgagee – the person or entity who lent the money to you, for example the Bank.
If you do not have a mortgage, your paper Certificate of Title should be kept in a safe place, for example:
• With your solicitor
• In a safe deposit with the Bank
• In a safe place with your other personal papers
What happens if a Certificate of Title is destroyed or misplaced?
If a Certificate of Title is destroyed or misplaced a new Certificate of Title may be obtained from the Land Registry Services. In order to obtain this new document, you must meet the requirements of the Land Registry Services which include:
• Completion of an Application form
• Documents proving your identity
• Documents proving your ownership of the land
Identity Fraud
In the recent case of Chandra & Anor V. Perpetual Trustees Victoria Ltd & Ors, a false application was made for a new Certificate of Title, and as a result the property was able to be mortgaged without the homeowners consent.
Some steps to prevent identity fraud
• Always keep your personal documents in a safe place
• Never sign a document you are unsure of
• Never divulge your passwords or PIN numbers to anyone
• Lock your mailbox or obtain a Post Office box
• Only provide personal information if it is necessary
If your property is not mortgaged, keep your paper Certificate of Title in a safe and secure place.
At Everingham Solomons, we have the expertise to assist you with all legal matters regarding your home, because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
As a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.
There is an emerging predisposition on the part of Judges of the Supreme Court that adult children bringing a claim for further additional benefits from the Estate, which their claims may be dismissed entirely or otherwise the provision made for them will be made in a paltry amount.
This is particularly true when a Court looks at the conduct of the adult children towards the deceased when assessing what weight to give to the deceased’s intention to deliberately leave adult children out of their will.
The starting point of the Act is that the freedom of the person making the Will is the foundation principle and that consideration and proper respect must therefore be afforded to a capable testator’s judgement. A Court cannot simply “ride roughshod over the testator’s intention.”
There is no rule or principle that the deceased has an obligation to make provision for an adult child. Neither is a testator required to look after a child for the rest of the child’s life into retirement.
In circumstances where there is evidence that the child has been callous, hostile or indifferent towards the deceased the Court will not look favourably on the clear intentions of the deceased in favour of adult children.
In cases of small Estates, where there is a surviving widow, it is sometimes deemed appropriate that no provision be left for the adult children at all.
An adult child cannot presume to have an automatic right to a share of the estate of a parent. Nor does an adult child have an automatic right to parity as between his and her siblings, as was found in the case of Revell v Revell.
At Everingham Solomons, we have the expertise to assist you with respect to such claims, because Helping You is Our Business.
With the increased use of online services across all areas of our lives, cybersecurity is extremely important. Particularly in conveyancing transactions where large amounts of money are transferred between accounts.
Email phishing is of particular concern and requires that we all be extra vigilant in dealing with email communications. Phishing is where a criminal impersonates an organisation in order to steal or alter important information.
For example, let’s say you have a property purchase coming up and have been liaising with your solicitor via email. Your email may have already been hacked without your knowledge and the hackers have been tracking those emails. Your solicitor sends you an email outlining their trust account details for deposit of settlement funds. This email is intercepted by the hackers who change the bank account details. The email then continues to you with the hacker’s account details and you subsequently transfer the funds to the hacker’s account. The funds are never received into the solicitor’s trust account and the panic sinks in. Goodbye money.
In the above example, the end result could have been avoided by telephoning your solicitor to verify their trust account details. This account verification process can be applied to all instances where account details are received via email. Importantly, you should check the telephone number within the email to ensure this also hasn’t been changed by the hacker. You want to ensure you contact the person you have been liaising with to confirm any bank account details rather than the hacker.
As hackers become increasingly sophisticated, it is important that we are all cyber vigilant. Caution is better than catastrophe!
At Everingham Solomons we take cybersecurity seriously because Helping You is Our Business.
Click here for more information on Jessica Wadwell
Like most people do when they find themselves with a spare 5 minutes, I was scrolling through my social media feed recently and I came across some marketing material for ABC’s upcoming show Fisk. Now I’m in no way part of the Fisk marketing team, but for context, the show will revolve around a Law Firm which practices in Wills and Estates.
The video in question showed some snippets from the show along with asking the cast if they had a Will in real life. Of the six Cast members that were asked, only one confirmed that they had a Will.
The others said things like “it’s kind of a complicated process”, “I probably should” and “I’m too busy living”.
It got me thinking that this is probably the general thinking when it comes to Wills.
So in attempt to dispel the notion that getting a Will prepared is horribly complicated and time consuming, I thought I’d break down the general process.
The first step in this process is sitting down with a Solicitor to give instructions. In this appointment, the Solicitor will ask questions with respect to your assets, liabilities and family members. This is an important part of the process so that we can give you appropriate advice with respect to how your assets will transfer and if there is a possibility of future claims against, and any risks for your estate.
There will also be a discussion about Executor/s and Executrix/Executrices, they are the people who will manage your estate. The Solicitor will discuss with you the role, practicalities and importance of nominating an appropriate person/s.
Its then time to discuss and for you to advise who you want to be the beneficiaries of your Estate. You can nominate specific gifts, break the estate into parts or elect to deal with your Estate as a whole.
If required, the other important thing that you will do is appoint a guardian for any minor children.
You may also wish to include funeral wishes in your Will.
Any other additional items, concerns or questions will also be addressed at this initial appointment.
Once the Solicitor has your instructions, they will prepare the document for you. They will provide you with a draft version for review. Once you are satisfied with the document, then a follow up appointment with the Solicitor is made to execute the document.
At the appointment to sign the document, you will be asked questions about your wishes and intentions. The Solicitor will take you through the document explaining the effect and if the Solicitor is satisfied you understand the document, and you confirm that the document is an accurate representation of your wishes, then you can sign your Will.
Now, if you have extensive assets or complicated affairs such as trusts, Self-managed Super funds and companies then some further enquiries and collaboration with other professionals, such as accountants, may be required. This can mean the process is a bit more complicated.
It is important to remember that Wills are not a one size fits all situation, and it is important to get the right advice with respect to your Estate. It is also important to regularly review your Will as people’s circumstances can change regularly.
If, like most of the cast of Fisk, you are in need of a Will, contact Everingham Solomons because Helping You is Our Business.
Under NSW Workers Compensation Law if you require treatment as a result of an injury the workers compensation insurer is required to pay for the treatment if it is considered reasonably necessary. However, there is a process to obtaining pre-approval and payment for expenses related to medical treatment as a result of your injury.
To commence with treatment you must seek pre-approval from the workers compensation insurer. Any request for reasonably necessary treatment should be approved by the insurer within 21 days of that request being made pursuant to Section 60 of the Workers Compensation Act 1987.
If the workers compensation insurer has exceeded this time frame we can intervene on your behalf to obtain a response from the insurer.
If after receiving treatment, the workers compensation insurer has not forwarded payment to your treating doctor or specialist, there are benchmark time periods that apply to the insurer. The workers compensation insurer has 10 working days after receiving a valid tax invoice from your treatment provider to pay the tax invoice. If the payment is not forthcoming, we can assist with making sure your treatment provider is paid promptly and treatment can continue.
If you or someone you know is having difficulty either having treatment approved by the workers compensation insurer or having medical expenses paid by the insurer then please contact our office because Helping You is Our Business.
Click here for more information on Libby Campbell.
The phrase above isn’t an introduction to a joke, but rather the exact scenario in Darby v Director of Public Prosecutions [2004] NSWCA 431.
Mr Darby was standing outside a nightclub in Sydney. A plain clothes police officer and his drug detection dog, Rocky, were walking past on their way to enter the club. As Rocky walked past Darby he began sniffing the air and then walked up to and placed his nose on Darby’s pocket. Rocky’s actions in placing his nose on Darby’s pockets, involved him “bunting and ferreting” Darby’s pocket and genital areas. Police subsequently searched Darby and found him to be carrying drugs.
The crux of the matter was whether Rocky’s actions constituted a search, and if so, did the police have “reasonable suspicion” to conduct the search, as any search conducted before having reasonable suspicion would be illegal, and the drugs found during this search could be excluded as inadmissible evidence in Court. Thus much turned on whether Rocky “searched” Mr Darby or not.
At first instance, the Magistrate found that Rocky’s actions constituted a search of Mr Darby, the search was illegal as it was not based on reasonable suspicion, and the drugs found on Darby during the search were held to be inadmissible evidence. Consequently, the charges were dismissed.
The DPP appealed the decision of the Magistrate to the Supreme Court of New South Wales. Here O’Keefe J found that the actions of Rocky were not a search but rather identification and this identification gave police reasonable suspicion to search Darby.
Mr Darby appealed this decision to the New South Wales Court of Appeal. Darby’s counsel raised the point that Rocky’s actions of “ferreting and bunting” constituted an assault and battery and thus Rocky’s actions were illegal.
In a majority decision (2 -1), the Court of Appeal upheld the decision of the Supreme Court. It was held unanimously by the Court of Appeal that using a dog to sniff in the vicinity of a person for the purpose of drug detection does not constitute a search. However, in his dissenting judgment, Giles JA held that the actions of Rocky in bunting Mr Darby constituted battery and thus were unlawful.
Today most police powers can be found in the Law Enforcement (Powers and Responsibilities) Act 2002. Should you have any criminal law matters, please feel free to contact our experienced team of solicitors at Everingham Solomons because Helping You is Our Business.
The 2020 Sir Adrian Solomons Memorial Law Bursary was awarded to Riley Bomford of Calrossy Anglican School.
Riley obtained a NSW ATAR of 97.5 and band sixes in five Higher School Certificate subjects. Riley was the Calrossy boys’ school captain for 2020 and involved in charitable and community based activities too numerous to particularise in full. Riley plays rugby and cricket as well as holding refereeing and executive positions in those fields. For 2021, Riley is studying law at the University of New England whilst working full time as a court officer at the Armidale Court House.
Everingham Solomons is very proud to be associated with such a well-rounded, hard-working and community conscious individual.
If you would like more information on the Law Bursary, please contact Everingham Solomons because, Helping You is Our Business.
Riley is pictured here with Everingham Solomons Director, Clint Coles.
What should be done during the Decommissioning and Rehabilitation Phase?
At the end of a renewable energy project’s operating life, the wind or solar farm will be decommissioned and all turbines, arrays and other infrastructure will be removed from the land. Following removal of all equipment and related infrastructure, the land will undergo a series of steps to ensure return to agricultural use. The obligations to ‘make good’ rests with the project owner.
Generally, the Development Approvals and the lease agreement contain provisions explicitly setting out the requirements for the decommissioning and the expectations around rehabilitating the land.
Further, the planning assessment process normally requires a Decommissioning and Rehabilitation Plan (DRP) to be prepared. A DRP typically sets out the requirements in relation to the removal of infrastructure and rehabilitation of land to an agreed state as negotiated between the landowners and the project owner.
From a landowner’s perspective, it is essential that the lease agreement clearly sets out the responsibilities for decommissioning and rehabilitation and provides for security of the funding to enable decommissioning.
In determining an agreed standard for the land at the end of decommissioning, landowners should consider the following:
• Removal of unwanted infrastructure and decision on which (if any) roads, access tracks, gates and/or fences and other infrastructure should remain on the land after the termination of the lease;
• Rehabilitation of land (e.g. pasture type and condition, erosion control, weed control); and
• Return or replacement of any landowners’ farm infrastructure (e.g. fences, gates, water points).
A landowner may also wish to seek ongoing evidence that the project owner has the capacity to fund the decommissioning activity and that such funds are set aside securely for that purpose. Examples include bank guarantees, a sinking fund, a trust fund or a deposit held by the landowner.
Everingham Solomons have experienced Solicitors who have represented landowners in wind and solar farm projects. Please do not hesitate to contact us for any legal advice you may need in relation to a renewable energy project because Helping You is Our Business.
In 2020 the New South Wales Parliament passed the Personal Injury Commission Act 2020
which was legislation to establish a Personal Injury Commission. The idea behind the Personal Injury Commission is that it will combine the Dispute Resolution Systems of the Workers Compensation and CTP Insurance Schemes into one Tribunal. The commencement date of the Personal Injury Commission is 1 March 2021.
The New South Wales Governments hope is that the new Personal Injury Commission will make it easier and more cost effective for injured people to claim in their respective jurisdictions.
The Personal Injury Commission will adapt a digital platform and it is expected that regional cases will now proceed on par with city matters, avoiding unnecessary delay.
Importantly, there will be no changes to the entitlements to injured workers.
If you have been injured at work or as a result of a motor vehicle accident please contact our office because Helping You is Our Business.
Click here for more information on Libby Campbell.
From time to time the government seeks to stimulate the economy by offering grants and exemptions to entice us to dip our toes into the property market. First Home buyers have been the traditional beneficiaries of these grants, with the original First Home Owner Grant being introduced in July 2000 in an attempt to negate the effect on the property market of the newly introduced GST. Since that time there have been numerous schemes with similar names helping first home buyers realise the Australian dream of property ownership.
Eligible first home buyers can currently apply for two schemes – one that provides a grant of $10,000, and the other an exemption or concession from stamp duty.
First Home Owner Grant (New Homes Scheme)
– Grant of $10,000
– For purchasing a brand new (never lived in & being sold for the first time) home under $600,000
– For building a new home where the total price of land and building is under $750,000
Individuals over 18 that have not owned or co-owned property in Australia may apply for this grant. At least one of the purchasers must be an Australian Citizen or permanent resident. If you have purchased a residential property since 1 July 2000 and lived in it for less than 6 months you may also be eligible for the grant.
One of the purchasers must move into the home within 12 months and continue to live there for at least 6 months. If you are building a new home you must move in within 12 months after the house has been constructed.
First Home Buyer Assistance Scheme
This scheme provides an exemption or concession on the amount of stamp duty payable when a first home buyer purchases an existing home, new home or vacant land on which they will build a home. Thresholds apply which have changed over time, most recently in August 2020.
New Homes – Full stamp duty exemption for new homes under $800,000. If the property is over this amount you will pay a concessional rate of duty between $800,000 and $1 million.
Existing Homes – Full stamp duty exemption for existing homes under $650,000. If the property is over this amount a concessional rate of duty is payable between $650,000 and $800,000.
Vacant land – Full stamp duty exemption for land under $400,000. If the land is over this amount a concessional rate of duty is payable between $400,000 and $500,000.
This scheme is for individuals over 18 who have not owned residential property in Australia. At least one of the first home buyers must be an Australian citizen or permanent resident. You must live in the property for at least 6 months within 12 months of buying the property.
Still confused about whether you are eligible for these grants? Contact the Property Law Team at Everingham Solomons because Helping You is Our Business.
What is a Certificate of Title or eCT?
As a child of the deceased, a daughter or son of the deceased is deemed to be a person eligible to bring a claim under the Succession Act which allows for eligible people to make an application to vary the Will. In NSW a claim must be made within 12 months of the date of death.
With the increased use of online services across all areas of our lives, cybersecurity is extremely important. Particularly in conveyancing transactions where large amounts of money are transferred between accounts.
Like most people do when they find themselves with a spare 5 minutes, I was scrolling through my social media feed recently and I came across some marketing material for ABC’s upcoming show Fisk. Now I’m in no way part of the Fisk marketing team, but for context, the show will revolve around a Law Firm which practices in Wills and Estates.
Under NSW Workers Compensation Law if you require treatment as a result of an injury the workers compensation insurer is required to pay for the treatment if it is considered reasonably necessary. However, there is a process to obtaining pre-approval and payment for expenses related to medical treatment as a result of your injury.
The phrase above isn’t an introduction to a joke, but rather the exact scenario in Darby v Director of Public Prosecutions [2004] NSWCA 431.
At the end of a renewable energy project’s operating life, the wind or solar farm will be decommissioned and all turbines, arrays and other infrastructure will be removed from the land. Following removal of all equipment and related infrastructure, the land will undergo a series of steps to ensure return to agricultural use. The obligations to ‘make good’ rests with the project owner.
From time to time the government seeks to stimulate the economy by offering grants and exemptions to entice us to dip our toes into the property market. First Home buyers have been the traditional beneficiaries of these grants, with the original First Home Owner Grant being introduced in July 2000 in an attempt to negate the effect on the property market of the newly introduced GST. Since that time there have been numerous schemes with similar names helping first home buyers realise the Australian dream of property ownership.