Buying off the plan involves an element of mystery and a high degree of uncertainty particularly for the unwary. Buying off the plan differs from when you buy an existing property. The main difference is that buying off the plan requires you to imagine the finished product, a building that is yet to be constructed and often exists only in the form of plans and artists impressions, whereas buying an existing property is much more certain insofar as what you see and inspect is what you get.
Just as each development differs so to does the contract for an off the plan purchase. Normally the contract for sale of land will contain a draft strata plan, a copy of any by-laws, a copy of preliminary plans submitted to Council, the type and standard of finishes to be used in the building and inclusions.
All off the plan contracts afford the developer varying degrees of flexibility to change the property. Part of this can be explained by the developer wanting to retain some discretion but more importantly the developer needs to retain flexibility to make changes when they are required for example where council or engineering requirements dictate a change must be made to the development. This is usually balanced by provision in the contract for a purchaser to be able to pull out if the change significantly affects the property to the detriment of the purchaser.
Another feature of the off the plan purchase is a delayed settlement date. Where an existing property can be completed within a 6 week period, an off the plan purchase can take many months if not years to complete. Normally contracts will contain a ‘sunset clause’ that allows a developer to extend beyond that date to accommodate unforeseen events. However it is important to document in the contract some final date after which the purchaser knows that if the plan is not registered by that date, the purchaser can pull out and be refunded their deposit.
Buying off the plan can be advantageous for both buyers and sellers. It is essential that legal advice is obtained before an off the plan purchase contract is signed because the contract can contain pitfalls for the unwary. At Everingham Solomons we have the expertise and experience to assist you in all aspects of buying and selling because Helping You is Our Business.
Click here for more information on Lesley McDonnell
A recent article which appeared in the Sydney Morning Herald concerned a property case in the Family Court called Kane & Kane [2013] FamCAFC 205 . The judgment overturned an earlier finding in which a trial judge had assessed a husband’s financial contribution to a long marriage more favourably, due to the husband’s skill in “selecting and pursuing an investment”. The investment significantly increased the value of the couple’s family superannuation fund.
Kane & Kane concerned a 30 year marriage. The husband was aged 61 years and the wife 48 at the time of the trial. The parties were able to reach agreement in regard to dividing some of their joint matrimonial assets qually, but they could not agree on the division of their joint superannuation which totaled the sum of $3.4 million.
Whilst still married, the husband had extensively researched and considered a number of investment possibilities for the couple’s superannuation fund. His wife did not agree to him purchasing the shares in “Company 1” however he went ahead and did so. The purchase price paid by the husband was $539,500. The value of the shares on “Company 1” at the date of the trial had significantly increased to $1.85 million.
Significantly, the funds used to purchase the shares came from the couple’s joint funds. Yet, the allocation of funds deposited into the superannuation fund itself was unequal and significantly favoured the husband.
At trial, the husband argued that due to his “special skills” in selecting and purchasing the shares in “Company 1”, that he was entitled to a greater share of the superannuation funds. He sought a split of approximately 66% in his favour.
As previously outlined this matter went on appeal. The court stated that the husband was not qualified nor an expert in share investments. The judge said that the husband’s skills “did not prevent losses in other investments which he allocated not only to his superannuation fund but also to that of his wife”. The judge also commented more generally when he said that “special skills will not always produce significant financial results”.
The appeal court found that the husband’s contribution to the superannuation fund was not to be disproportionately weighted in his favour when splitting the funds between the couple. The court ultimately found that it was not a just and equitable outcome to favour the husband and that the principle of “special skills” in relation to assessing financial contributions, was not a settled doctrine advocated by the legislation.
If you require advice in regard to any aspect of property proceedings or superannuation splitting, at Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
Every day people are involved in accidents or become sick. Sometimes this can mean that you are unexpectedly not able to make decisions for yourself. There is a way to ensure that someone you trust can make decisions for you should this power be taken away from you.
Making a document called an Appointment of Enduring Guardian is a powerful and proactive step that you can take today whereby you can appoint a trusted friend or family member (or more than one) to make health and lifestyle decisions for you in the event that you are unable to make decisions for yourself.
It is a common misconception to think that only the elderly need to appoint an enduring guardian. Accidents and illness happen to people at all stages of life and from all walks of life. If you are over 18 years of age and you have the capacity to understand what you are doing then you can make an Appointment of Enduring Guardian.
Too often people think “well if I get sick, then I will make one”. By then it is often too late. If a person is suddenly rendered incapacitated and a decision needs to be made for them often this will necessitate an application to the Guardianship Tribunal. This in turn can make an already stressful situation more difficult with no guarantee as to who may ultimately be appointed by the Tribunal.
Making an Appointment of Enduring puts the power in your hands. You can choose who makes decisions for you and the types of decisions. For example your guardian (s) can decide:
where you live
what health care you receive
what personal services you receive
to consent to medical or dental treatment for you, and
to refuse medical and dental treatment in certain
circumstances
You can also make the above decisions subject to directions such as turning off life support where there is no reasonable chance of recovery and enabling your guardian to be able to obtain and view all of your health and lifestyle records where they would otherwise be unable to due to privacy laws.
Importantly, an Appointment of Enduring Guardian only takes effect if you become unable to make health and lifestyle decisions for yourself.
Thinking about not being able to make decisions for yourself is difficult but giving the power to someone you trust to make decisions for you is easy and can bring some much needed peace of mind to you and your family.
At Everingham Solomons, we have the experience and expertise to assist you in making an Appointment of Enduring Guardian which will ensure that your wishes are carried out, because Helping You is Our Business.
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Both companies and individuals need to be prepared for the end of the PPSA Transitional Period which is rapidly approaching.
What is the PPSA?
The Personal Property Security Act (PPSA) came into effect on 30 January 2012, aiming to regulate interests in ‘personal property’. That is, property other than real estate.
Who does the PPSA Apply to?
Essentially, the PPSA may apply to any of the following parties:-
sellers or buyers of personal property;
lessors or lessees of personal property;
persons supplying goods on retention of title terms (e.g. hire arrangements); or
financiers taking security over personal property.
What is the PPSA Transitional Period?
When the PPSA came into effect, any person with an existing security interest in personal property was granted a two year transitional period in which to register his or her interest on the newly established Personal Property Security Register (PPSR).
During the two year transitional period, the interests of secured parties were deemed to be “temporarily perfected”. Essentially, this meant that their interest took priority over competing interests in the same property.
What do I need to do?
From 31 January 2014 onwards, any unregistered security interest will loose its status as “perfected” and secured parties will be at risk of loosing their priority and ultimately, the title to their property.
Now is the time to perfect your security interest and protect your personal property. Depending on the nature of your property, perfection can be achieved by either registration, possession, or (when applicable), control.
For advice on how to perfect your security interest and for assistance in registering on the PPSR, please contact the experienced team at Everingham Solomons, because Helping You is Our Business.
Click here for more information on Abbey Huckstep.
Often, if you consult a contractor to do any sort of work, you will be provided at the outset with either an estimate, or a quote. The two are very different.
If you have been given and have accepted a quote, a contract is created. The contractor can only charge the quoted amount for the work done.
If you have been provided with an estimate on the other hand, a contract is not created. Two essential elements of a contract are that:
the terms are certain; and
there is an intention to create a legally binding relationship.
A quote fulfills both of the above elements, whilst an estimate fulfills neither.
Often people are lured into a contract by a favourable estimate, only to later be charged a higher amount. If this has happened to you there are a number of possible remedies, but they are not based on the contract.
The first remedy is in misrepresentation, or misleading and deceptive conduct. If you have been lured into a contract by a misrepresentation, then you can apply to have the contract set aside. If however, you have received the benefit of the contract, you will still have to pay the reasonable amount for the work done, but nothing in excess of that.
The second remedy is the equitable remedy of estoppel. Estoppel is a rule of law that says that if one party makes a representation, and it is relied on by another party to their detriment, the first party cannot act in a manner contrary to the representation.
For an estoppel to arise, the representation made must be sufficiently clear and certain. A party is unlikely to be estopped unless there can be little dispute about the effect of the representation.
If you have a query relating to invoices, quotes or estimates, please contact Everingham Solomons, because Helping You is Our Business.
The Home Building Act 1989 gives protection to home owners after their houses are built.
Home building refers to anything from building a new home down to renovation of a kitchen or installation of a pool.
Section 18B of the Home Building Act incorporates into legislation warranties for all residential work. The builder warrants that the work will be carried out in a proper and workmanlike manner, all materials will be good and suitable to purpose, building work will comply with any laws, the work will be done with due diligence, and must be fit for occupation.
If these warranties are not complied with then the builder can be sued for breach of the contract.
The first point of call, for those with complaints, is the Consumer Trader & Tendency Tribunal. The Consumer Trader & Tenancy Tribunal can hear and determine matters up to the value of $500,000.
Disputes lodged with the Consumer Trader & Tenancy Tribunal generally concern building works not carried out as agreed, building work that is defective, dispute about insurance or non-payment.
Applications must be lodged within three years or within six years for structural defects.
If you should have any issues in respect to home building disputes, please ensure that you contact us at Everingham Solomons because Helping You is Our Business.
As we usher in the new year, those of us involved in property and conveyancing transactions are awaiting roll out of electronic conveyancing in 2014.
E-Conveyancing, as it is to be known, will involve electronic settlement of sales and purchases in an online workspace.
The early stages of a sale or purchase will remain the same, with solicitors preparing the contract for sale of land and submitting same to the legal representative of the purchaser. Once the contract has been reviewed, and the purchaser has obtained all necessary pre-purchase inspections (such as pest & building reports, survey and finance approval), the contracts will be exchanged and both parties locked into the deal.
From there, the paper process of arranging settlement will be done away with for most standard conveyancing transactions. At this stage, not all real estate will fall under the new system, however that is the goal. E-Conveyancing will also bring a standardised system into play across most Australian states and territories, which will make moving or buying/selling interstate a much simpler process.
Essentially, E-Conveyancing will mean faster lodgement of title deeds with NSW Land & Property Information which will ensure less room for human error (including postal delays). The days of drawing bank cheques for settlement will soon be a thing of the past, as financiers will liaise with vendor & purchaser (together with their respective solicitors) to book settlement of the transaction and funds will be provided electronically. For vendors, this means direct deposit of funds following settlement, and for purchasers no more waiting in line at the bank for cheques to be drawn!
Obviously time will tell as to whether the time and cost saving benefits of E-Conveyancing will be realised, however we look forward to coming online with the new system in mid-late 2014 because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
School bullying has become an issue for many parents, particularly, with new technology and accessibility to social media websites. As bullying becomes a concern for parents, often the decision has to be made as to whether the child should continue in their current school or change.
What happens though if separated parents cannot decide whether the child is to leave one school to attend another. This was argued in the recent Federal Circuit Court of Australia decision of Bardot and Benjamin (2013) FCCA 1024. The facts of this case were the parties were married in 1998 and separated in 2006. There were final children’s orders made in 2008 which included, amongst other things, equal shared parental responsibility for the long term decisions of the two children.
It was submitted by the mother that the youngest child was attending school and was a victim of bullying.
The issue in dispute for the Court was whether the child was still experiencing bullying and whether or not such bullying was impacting on her physical and/or psychological welfare. If so, would moving the child to the new school assist her?
The primary consideration is, and always will be, the best interests of the child. The mother argued that the child should attend at the new school as she believed that their “no bullying” policy alleviated the mother’s concerns that the child would be protected. The father claimed that the bullying had been exaggerated and had been resolved at the existing school. The father submitted that it was in the child’s best interests to remain at her current school and continue to work on her vulnerabilities with her school counsellor.
In evidence, it was explained to the Court that the child described the current playground as a war zone involving shifting alliances that added to her feelings of anxiety and uncertainty.
Whilst taking into account the principles in the Family Law Act, Her Honour came to the conclusion that the weight of evidence shown was that it was in the child’s best interests to be given the opportunity to change schools due to the bullying.
If you have any issues in relation to your child’s best interests and you cannot make a decision with the other parent, you should contact Everingham Solomons because Helping You is Our Business.
After a long marriage Mr and Mrs Pratt separated, following which property settlement and spousal maintenance proceedings were listed for a three day hearing.
At the commencement of the hearing, the wife sought an adjournment for a significant period, being two years. The trial judge ordered the proceedings be adjourned for at least three years. Also, the husband’s application for a reduction in spousal maintenance (he was paying $6,500.00 per month) was dismissed.
The application for a lengthy adjournment was provided for under Section 70(5) of the Family Law Act. In general terms,
this section of the Act provides that if there is likely to be a significant change in the financial circumstances of the parties to the marriage and having regard for the time when a change is likely to take place, it is reasonable to adjourn proceedings. Also if the
significant change in the financial circumstances is more likely to do justice between the parties than an order that the court could make immediately with respect the division of property.
The facts of the matter were as follows:
The parties owned a large landholding in the Northern Territory used for cattle grazing. In 2010 the properties were valued at $26 million. 11 months later a different valuer said the property was worth $16.4 million. It was common ground that the large Northern Territory cattle property had fallen in value. There was a loan facility from the parties’ bank for $34 million and interest at 9.52% was accruing. As at October 2011 the interest would have amounted to about $3 million.
The wife submitted that “the cattle area valued” could be expected to increase over a two year time frame when the live cattle market would ease or new markets would open. On the other hand, it was argued for the husband it was unknown how long it would take for the market to adapt to change.
The trial judge concluded that given the parlous state of the parties’ finances, he was not satisfied that within two years an increased value was feasible, but hoped an increase would occur over three years, when the parties would be able to get something for their endeavours. Thus the trial judge exercised his discretion and adjourned for a period of three years.
On appeal, the Full Court found against such lengthy adjournment. The Court held that the section required an affirmative opinion that there was likely to be a significant change in financial circumstances that made it reasonable to adjourn the proceedings. The Court accepted, that the expert evidence did no more than speculate an improvement in the market for rural properties if a number of events occurred, none of which was expressed as a certainty. The Full Court held that the hearing should proceed.
At Everingham Solomons we can assist you with all your family law matters including situations which involve complex issues because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
Federal legislation provides protection for people that are misled in business. Section 18 of the Australian Consumer Law says that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
The courts have spent much time in considering what sort of conduct is able to be categorised as misleading or deceptive or conduct likely to mislead or deceive.
Generally to be misleading there must be a statement made about a fact, and the statement must be false. To make a statement of fact is to refer to an objective feature which is not reasonably disputable. An example of a statement of fact is to say that a car is 4 metres long.
Where someone expresses an opinion, the law on misleading and deceptive conduct is less clear. An example of an opinion would be to say that a car is nice, or that a car is safe. Those statements are not statements of fact. Two people could reasonably come to differing views on the car based on the information they have and the way that any information is applied to the person’s subjective standards.
Courts have said that a statement of opinion can be misleading when there are no grounds for expressing the opinion. For example if a person was to say that a car was safe, when they in fact knew that the brakes did not work.
Advertising puffery is when sellers describe items without reference to any particular standard. For example to say that a car is nice. How nice a car might be to an individual probably depends on what they currently drive and cannot easily be compared to any global standard. Generally, advertising puff is unlikely to be considered misleading or deceptive.
Silence is rarely considered to be misleading or deceptive. Staying silent is no act at all, and therefore generally, the courts have said that remaining silent does not satisfy the requirement of conduct under section 18 of the ACL . There are however, three main exceptions which apply to that general rule.
Firstly, where there is a reasonable expectation that the matter not announced should be disclosed.
Secondly, where a half truth is told. For example to say a car is 4 metres long, without going on to say that the reason for the length of the car is because the bumper bar is partly detached and is dragging behind it.
Thirdly where a representation about a factual matter is initially made, but the state of the factual matter subsequently changes, and there is an obligation to tell of the change in circumstances.
If you think you have been the subject of misleading and deceptive conduct, please contact Everingham Solomons, because Helping You is Our Business.
Buying off the plan involves an element of mystery and a high degree of uncertainty particularly for the unwary. Buying off the plan differs from when you buy an existing property. The main difference is that buying off the plan requires you to imagine the finished product, a building that is yet to be constructed and often exists only in the form of plans and artists impressions, whereas buying an existing property is much more certain insofar as what you see and inspect is what you get.
