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  • Solicitors and Agents Agree on New Protocol
    Us With Feedback Pay an Invoice Solicitors and Agents Agree on New Protocol A revised Residential Conveyancing Protocol has been approved by the Law Society of NSW and the Real Estate Institute of NSW It affects the relationship between solicitors and agents While the Protocol is not legally binding it does assist those professions to determine who is to undertake which step in the conveyancing process It covers such issues as tenanted properties exchanges by the agent and exchanges by the solicitor deposits being held by the agent as stakeholder pre settlement arrangements failed settlements because of a purchaser default and communications The Protocol is available on our resources page here Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe to our FREE Newsletter indicates required Email Address First Name Connect with Us Recent Posts New Charity Definition at Law Commences Operation Today Financial Report of Charities Clarified Private Ancillary Funds and Others Benefit from Privacy on ACNC Register Governance Standards Now Applicable to Charities Charities Commission Regulates the Charities Nonprofits Sector Contact Kylie Maxwell Solicitor Level 3 50 York Street Sydney NSW 2000 Telephone 61 2 9889

    Original URL path: http://www.kyliemaxwell.com.au/solicitors-and-agents-agree-on-new-protocol/ (2014-01-05)
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  • Penalty imposed for environmental destruction
    of up to 550 000 00 and a criminal penalty of up to seven years imprisonment or a fine of 462 000 00 The Court pointed out that the fact that criminal liability was a possibility meant that upper levels of civil penalty were not restricted to the worst cases of offending such as repeat offending widespread destruction or the pursuit of commercial interests and high financial returns The Court agreed ultimately that a penalty of 150 000 00 was appropriate in the circumstances In determining that a lower penalty should not be imposed the Court took into account that the landowner had caused extreme damage over a reasonably sized area had openly and defiantly refused to follow the instructions of the department consider the findings of an expert s report and the instructions of departmental officers in a visit made pursuant to a monitoring warrant had property interests of approximately 6 15 million dollars and had a business that attracted net income on a sliding scale over 4 consecutive years of between 129 000 00 down to 42 000 00 The Court considered that the penalty imposed would make him sufficiently financially uncomfortable such as to prevent him deterring again was not really remorseful of damage he had done to the ecological community but more so of the fact that he and his family had suffered the process of litigation In determining that a higher penalty should not be imposed the Court considered the fact that the landowner cooperated with the minister after proceedings commenced had agreed to pay 40 000 00 of the minister s legal costs and said that if he had not done so then a higher penalty might have been imposed had agreed to undertake a remediation plan over 5 years on his property to

    Original URL path: http://www.kyliemaxwell.com.au/penalty-imposed-for-environmental-destruction/ (2014-01-05)
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  • Council’s Correspondence Can Be Cryptic
    the DA for the Property is still current within 21 days and 2 3 a letter from Gosford Local Council certifying that there has been practical physical commencement of the Property within 21 days The letters sought were intended to satisfy the former s99 4 of the Environmental Planning and Assessment Act 1979 NSW which stated that a development consent did not lapse if building engineering or construction work was physically commenced on the land to which the consent applied before the date on which the consent lapsed A letter from the Council dated 6 February 1996 stated that among other things physical commencement within the meaning of the Environmental Planning Assessment Act is ongoing unless Council has issued a notice to complete under section 99 of the Act A further letter from Council dated 31 May 2010 stated the information contained in Council s correspondence of 6 February 1996 which states that physical commencement of the above development is ongoing is still relevant Both letters were given to the Plaintiff by the Defendant The Court of Appeal decided that both of the letters constituted the certification required by clause 2 3 of the Heads of Agreement However the letters did not address the currency of the development consent as required by clause 2 2 as they merely confirmed that the earlier statement that physical commencement of the work had taken place was ongoing The letter of 31 May 2010 which was worded cryptically said nothing of whether the development consent was actually in force at the date of the letter An argument was put by the Defendant that this was implied by the letter but the Court of Appeal said that more than this was required to achieve an actual certification as required by the Heads of Agreement The

    Original URL path: http://www.kyliemaxwell.com.au/councils-correspondence-can-be-cryptic/ (2014-01-05)
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  • Settlement statement not a repudiation
    a delayed settlement on terms in the vendor s favour Then on 21 November 2011 the purchasers wrote to the vendor s solicitor stating that funding that they had obtained would fall short of the amount payable and that they were unlikely to be ready for settlement by the completion date the purchaser proposed an alternative transaction by way of vendor finance In a letter in response dated 21 November 2011 the vendor s solicitor rejected the proposal and stated that the vendor reserved its rights and relied on the terms of the contract as they were without the unauthorised amendments made by the agent On 23 November 2011 the vendor s solicitor wrote again stating that the transfer had not been tendered and enclosing a transfer for stamping and execution The purchasers wrote to the vendor s solicitor on 1 December 2011 stating that settlement would not occur on 1 December 2011 Later on the same day the purchasers wrote again and stated that settlement would likely occur within 14 days The vendor then served a notice to complete on the purchasers on the same day The purchasers then retained solicitors and the vendor s solicitor wrote to the purchasers solicitor and said that it was enclosing a settlement statement with interest calculated at 12 per annum with a view to settlement occurring on 16 December 2011 On 15 December 2011 the vendor s solicitors wrote to the purchasers solicitors regarding cheques required for settlement On the same day the purchasers solicitor wrote to the vendor s solicitor stating that the purchasers disputed the validity of the notice to complete The purchasers did not attend for settlement on 16 December 2011 and on 19 December 2011 the vendor terminated the contract The Court of Appeal decided that even though

    Original URL path: http://www.kyliemaxwell.com.au/settlement-statement-not-a-repudiation/ (2014-01-05)
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  • Declarations of State Significant Development or Infrastructure for Part 3A Projects
    The new Regulations also state that where the Minister has declared that development is only partly State significant infrastructure the remainder of the development unless it is declared by the Director General not to be sufficiently related to the State significant infrastructure or except to the extent that it is State significant development can be carried out without development consent under Part 4 and is also declared to be State significant infrastructure Similarly if the Minister has declared that development is only partly State significant development the remainder of the development is also declared to be State significant development unless the Director General has determined that it is not sufficiently related to the State significant development The Regulations hand over to Councils the responsibility of being the consent authority in circumstances where before the repeal of Part 3A of the Act a development application remained undetermined by a regional panel who had the role of exercising consent authority functions of the Council if the regional panel ceased to exercise those functions at the time of the repeal Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe to our

    Original URL path: http://www.kyliemaxwell.com.au/declarations-of-state-significant-development-or-infrastructure-for-part-3a-projects/ (2014-01-05)
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  • Despite no earning capacity, small provision made
    Family Provision Order under Chapter 3 of the Succession Act 2006 The claimant also filed an additional declaration stating that 3 219 ordinary shares in Westpac Banking Corporation the WBC shares were held in the names of the claimant and the Will maker and the same did not form a part of the property of the estate and that the claimant was the sole beneficiary of those shares His Honour was satisfied with the fact that the claimant being the child of the Will maker was an eligible person to apply for a Family Provision Order In making its determination the Court had to consider whether adequate provisions for proper maintenance education or advancement in life of the claimant have been made in the Will and whether the claimant bore the responsibility of persuading the Court that adequate provision has not been made for him His Honour concluded that the provisions made in the Will were inadequate for the claimant for his proper maintenance or advancement in life and ordered that the claimant should receive a lump sum of 55 000 from the estate His Honour considered that the claimant had virtually no earning capacity and this was balanced with the Court s view that a parent is not responsible for the entire provision and upkeep of adult children In the Court s view the Will maker should have provided the claimant a modest lump sum in respect to certain needs of the claimant of which he had given evidence His Honour also concluded that the WBC shares did not form a part of the property of the estate as it was in the names of the claimant and the Will maker and that the claimant was the sole beneficiary of those shares The judgment confirms that an eligible person

    Original URL path: http://www.kyliemaxwell.com.au/despite-no-earning-capacity-small-provision-made/ (2014-01-05)
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  • Claimants’ challenge to Will succeeds despite being able to self-support
    her daughter the claimant In accordance to Clause 7 of the Will no substantial provisions were made for the claimant and another son of the Will maker Both of them were assisted financially by the Will maker and her deceased husband in the past This made them financially stable and they could maintain their own mortgages The claimant applied for a Family Provision Order under Chapter 3 of the Succession Act 2006 Hallen J derived general principles from this case that the claimant was an eligible person and the provisions made for her in the Will were inadequate for her proper maintenance or advancement in life The Court ordered that the claimant receive a lump sum of 225 000 out of the estate The judgment in this case establishes that certain people can make family provision claims against a Will in situations where the Will is valid but the provisions stated are unfair and even in circumstances where the claimant s are able to support themselves to a fair degree In light of the above case we propose both Will makers and claimants seek proper legal guidance in the preparation of Wills and in receiving an inheritance Office 61 2

    Original URL path: http://www.kyliemaxwell.com.au/claimants-challenge-to-will-succeeds-despite-being-able-to-self-support/ (2014-01-05)
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  • The type of Orders sought before the Guardianship Tribunal are important
    appointment The first daughter appealed against the financial management Order made by the Guardianship Tribunal on only two grounds which identified as questions of law Firstly it was claimed that the Guardianship Tribunal failed to exercise a power it was bound to exercise under Section 25U 2 of the Guardianship Act 1987 which is to review the making of the financial management Order The second question of law argued was that the Guardianship Tribunal breached the rules of procedural fairness It was claimed that the Tribunal refused to allow the first daughter s partner to give any oral evidence or make submissions at the hearing The Administrative Decisions Tribunal concluded that the Guardianship Tribunal may revoke a financial management Order on two bases a if the protected person is now capable of managing his or her affairs and b if it is in the best interests of the protected person for the Order to be revoked The Administrative Decisions Tribunal also concluded that the evidence produced by the first daughter s partner did not relate to the old lady s capacity to manage her own affairs nor had it any relationship to her best interests The first daughter s partner thought that if the financial management Order was revoked then his wife the daughter could act as the Power of Attorney without the need for a financial management Order and that would be a significant change from the existing arrangement The Administrative Decisions Tribunal considered that if the first daughter was seeking such Orders she should have applied to the Guardianship Tribunal for a revocation of the financial management Order instead of appealing on the questions of law outlined above Further according to the Administrative Decisions Tribunal the Guardianship Tribunal did not make an error of law by failing to

    Original URL path: http://www.kyliemaxwell.com.au/the-type-of-orders-sought-before-the-guardianship-tribunal-are-important/ (2014-01-05)
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