the ohl wire issue 17: off the plan purchase - nsw changes in response to sunset date concerns

Off the Plan Purchases: NSW Changes in response to Sunset date concerns

January 2016

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Can a video message from thegrave be a valid will?

The Employment Law Issues That Need to be on Your Radar in 2016

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LEGAL - WEALTH PROTECTION - INVESTMENT - BUSINESS - LIFESTYLE - SYDNEY

pagepage 7Your rights as the beneficiary of a will

LAW

ISSUE

2016

5 Business Trends for Entrepreneurs in 2016

Off the Plan PurchasesNSW Changes in response to Sunset date concerns

If a home buyer purchases a property in a subdivision that has not been built yet or has not been registered yet, this is referred to as buying off the plan.

Buying off the plan lets homeowners plan ahead for their future housing needs and encourages efficient and cost-effective land development.

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NSW Changes in response to Sunset date concerns

Sunset clauses are included in contractual agree-ments when home buyers purchase off the plan. They establish the right of a home buyer to pull out of a contract and obtain a refund of all of their deposit money in the event the home construction hasn't been completed by a designated date. However, home sellers also can use sunset clauses to terminate contracts.

This has been raising concerns about the possibility of developers taking advantage of the clauses to end contracts when property values rise. Recent court action has exacerbated these concerns, prompting worry among those who are interested in entering into contracts for off-plan purchases.

However, now legislation has been introduced in NSW which could alleviate worries that buyers have about a developer securing a windfall by using a sunset clause to pull out of a contract.

New Legislation Could Protect Buyers in Off the Plan Purchases

A series of cases in which developers used sunset clauses to terminate contracts has been causing significant concern about off the plan purchase contracts. Consumers in NSW found developers were rescinding their contracts, and then turning around shortly thereafter and reselling the land or apartments for a higher price.

Developers also reportedly were causing intention-al delays in projects to trigger sunset clauses so sellers could avoid fulfilling contractual obligations. Buyers faced disappointment and uncertainty, as well as the loss of properties that may have increased significantly in value since the time the buyers entered into their initial contract.

Proposed legislation was introduced in response to buyers’ concerns. The legislation is called the Conveyancing Amendment (Sunset Clauses) Act 2015. The legislation would prevent sellers from terminating off the plan contracts unless notice of the termination is provided to the buyer AND the buyer agrees in writing to the termination. Thetermination could not automatically occur due to a buyer's non-response.

If a buyer did not agree in writing to the termination, it could occur only if the seller was able to obtain a Supreme Court order permitting the contract termination, or if other regulations allowed the termination.

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Supreme Court order permitting the contract termination, or if other regulations allowed the termination. However, no such current regulations exist that would allow a termination in other circumstances.

What Will Courts Consider in Determining Whether to Allow a Termination?

If the court is asked to exercise its discretion to determine whether to allow a termination, the court must consider certain factors, including:

• The contract terms included in the off-plan contract. • Whether the seller is acting in bad faith or is acting unreasonably.• Why the delay in creating the subject lot occurred.• The date on which the seller estimates creating the subject lot. • Whether any increase in the value of the subject lot has occurred. • The effect contract rescission will have.

Decisions regarding whether the termination will be permitted will need to be made on a case-by-case basis unless the buyer agrees in writing to the termination. If a seller seeks a termination and the buyer does not agree, the legislation makes clear the seller could become responsible for paying the buyer's legal costs unless the Court determines the buyer unreason-ably withheld consent to terminate the contract under the sunset clause. This reduces the risk to buyers of refusing to allow a contractual agree-ment to be terminated.

Seeking Legal Assistance

Valuable property and the opportunity for buyers to build their dream home are all at stake when a seller seeks to terminate a contract for an off the plan purchase by using the sunset clause.

An experienced legal professional should be consulted to provide representation in arguing against such a termination when buyers wish to prevent the rescission of the contractual agreement. Owen Hodge Lawyers can provide representation at all phases of real estate trans-actions involving off-plan contracts, including when disputes arise about contract termination.

The Employment Law Issues

That Need to be on Your Radar in 2016 For business owners and HR Managers in NSW, the task of staying up-to-date with employment law changes in 2016 may be a tricky challenge.

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On a fundamental level it is essential to ensure that the changes that came in with the new financial year in July 2015 have been correctly implemented. The Fair Work Amendment Bill 2014 was passed in late 2015 in an effort to improve the efficiency of collective bargaining and will affect employers with unionized workforces, but aside from that, there was relatively little new employment legislation.

Several important court decisions clarified the rights of injured workers to bring civil claims and the obligation of state-owned employers to comply with the commitments in enterprise bargaining agreements. The Federal Circuit Court also made it clear that courts may use the accessorial liability provisions in the Fair Work Act to make orders against directors where orders against the corporate entity would be unenforceable because of liquidation or deregistration.

If enacted in 2016, the Fairer Paid Parental Leave Bill 2015 might cause employers to re-think benefit offerings. Further out on the horizon, various reports and investigations may prompt changes in the law dealing with employment discrimination, trade unions, agricultural labour, and workplace relations. Finally, of course, the next Federal election may also sweep in major changes in labour and employment law, but these are likely to be issues in 2017 and beyond.

New Dollar Limits

From July 1, a number of caps and limits have gone up, thanks largely to indexation:

• the salary limit above which an employee may not make a claim for unfair dismissal has risen to $136,700;• the National Minimum Wage is now up to $656.90 per week or $17.29 per hour;• All award pay rates increased by 2.5 percent as of July 1;

• The superannuation guarantee % also rose to 9.5 percent;• The superannuation guarantee cap rose to $50,810 per quarter, or $203,240 per annum;• The redundancy tax concession has risen to $9,780, plus $4,891 per completed year of service;• The eligible termination pay cap has risen to $195,000.

In addition, as of that date, all employees must receive a new Fair Work Information Statement before or as soon as practicable after they start employment. As of July 1, 2016 employers of 19 or fewer employees must make use of the simpli-fied electronic SuperStream system for superan-nuation compliance, as larger employers must already do.

Fair Work Amendment Bill 2014

On November 11, both houses of Parliament passed the Fair Work Amendment Bill 2014. The law allows employers to submit proposed green-fields agreements to the Fair Work Commission for approval if a deal has not been reached with unions during a six-month “negotiating period”.

Notable Cases

In Tomlinson v Ramsey Food Processing Pty Ltd, the High Court unanimously held that employees are not prevented from bringing civil claims seeking damages for injuries sustained in the workplace following a successful prosecution of the employer by the Fair Work Ombudsman.

In United Firefighters Union v Country Fire Author-ity, the Full Federal Court upheld the validity of an

enterprise bargaining agreement between the Country Fire Association and the United Firefighters Union.

The decision reverses a recent finding of the Federal Court and means that

State-owned employers are subject to commitments contained within enter-prise bargaining agreements, like their

privately owned counterparts.


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In Roberts v A1 Scaffolding Group Pty Ltd & Ors, the Federal Circuit Court took aim at phoenix arrangements. It held that directors were liable for underpayment of the applicant’s wages including allowances, accrued annual leave and leave loading, redundancy, superannuation and long service leave, with interest, notwithstanding the fact that the business was in liquidation.

Fairer Paid Parental Leave Bill 2015

The fate of the Fairer Paid Parental Leave Bill 2015 is still uncertain. If enacted, it would reduce government payments to parents who have access to employer-paid parental leave. It would also reduce the employer’s administra-tive responsibility to managingthose government benefits.

However, because of the adverse impact these changes would have on some employees, employers may be prompted to redesign benefit packages to retain valuable workers.

Reports and Investigations a Likely Basis for Further Legislation

Although 2015 was scant on employment legislation, it was rich in reports and investigations that may provide the basis for future law making.

An investigative report entitled “Slaving Away” uncovered troubling labour practices in Australia’s agricultural sector. The report revealed that some labour hire companies exploit vulnerable tourists with holiday visas, predominately from Asia, by engaging them in temporary labour while paying them less than minimum wage and imposing unsatisfactory working conditions.

In 2015, the Productivity Commission undertook a public inquiry on the workplace relations framework. The report indicates that Australia’s workplace relation system “needs repair not replacement”. It remains to be seen whether amendments to address the deficiencies identified by the report, which include removing the weekend penalty rate, will be implemented.

Public hearings held by the Trade Unions Royal Commission highlighted the need for further investigation into possible criminal conduct by unions and officials, including “physical and verbal violence, cartel conduct, secondary boycotts, contempt of court and other institutional orders and the encouragement of others to commit these acts.

Finally, the Australian Human Rights Commission has commenced an inquiry into employment discrimination against older Australians and Australians with disabilities. The Commission intends to report on its findings and recommendations by July 2016.

The task of keeping abreast of employment law changes can be more than a full-time job for business owners and HR managers.

At Owen Hodge Lawyers, our employment attorneys are experts in the field and can be depended upon to help keep your business in compliance in 2016 and years thereafter.

Call us at your earliest convenience to schedule a consultation at 1800 770 780.

Can a Video Message from the Grave be a Valid Will?

One common trend has involved people who make video recordings specifying what they wish to happen to their money and property in the event of a death. These video messages can provide details on what the deceased wants to happen, but unfortunately many people are not aware that a message they leave behind may not always be legally enforceable.

Everyone needs to plan ahead for an uncertain future and prepare a plan for what will happen after their death. If you are considering creating a video message, you should strongly think about getting appropriate legal help so you can follow the process for creating a will that follows all requirements under the law. If someone you love already has passed away and you need help arguing for or against the use of a video message as a valid will, you also should consult with a legal professional.

Owen Hodge Lawyers is here to help with estate planning and with the process of protecting your interests and enforcing your loved one's wishes after a death. Call us NOW!

Can a Video Message be a Valid Will?

In general, a video message cannot be considered a valid will if it stands alone. This is because the law requires a will be in writing. A video message is oral, not written, and thus it cannot be classified as a legally binding will that is enforceable.

In some Australian states, it may be possible for those who wish their loved one's last wishes to be respected to argue that a video recording should be classified as a document and considered an informal will. However, this is a long-shot argument.

There is never any guarantee that any court in any state would view the video as a legally enforceable informal will. If there is both a written will and a video recording which conflict, it also is well settled under the law that the written will is going to prevail. A video cannot be used to change or modify the terms of a will under any circumstances.

While a video message cannot be a stand-alone will, some people do want to use video messages

Video recording devices are easily accessible to everyone today, and many people record them-selves communicating all sorts of different things.


to further clarify provisions in a written will that could cause confusion or that could lead to conflict among family members. As you create an estate plan, you may want to use a video message from

beyond the grave to explain why you made the decisions you did, or to provide more insight into the terms of your will. However, even this can be risky because it will be up to the judge

to determine if a particular video recording should be used to argue in favor or against a particular interpretation of a written will.

Judges may have a hard time making an accurate assessment of whether a video creator was of sound mind at the time the video was recorded. There also could be

questions raised about whether the video was made under duress. This means that while a video might be shown to family members to try discouraging

them from challenging a will, it would not necessarily have any legal effect.

Because you cannot count on a video to have any legal weight at all, it is not a good idea to make a video an integral part of your estate

plan. Instead, it is best to ensure you have a comprehensive

written will, created with the help of an experienced legal professional, which clearly defines exactly what your wishes are so there is no question about the legal validity of your written

requests.

Owen Hodge Lawyers has helped many clients prepare wills which make their wishes clear and which allow the deceased to have control over how money and property can be transferred after death.


Your rights as

the beneficiary of a will

In NSW, under the Succession Act 2006, there are three things you should expect as the beneficiary of a will.

• You have the right to be notified that you are a beneficiary, to what extent and how that share was calculated;• You have a right to be notified of other claims, including legal proceedings, against the estate; and• You have a right to receive your distribution within 12 months or know about the reasons for delay if one is anticipated. If a gift of money is not paid within 12

months, you may be entitled to interest on that money.

Back to family drama, though; there are five reasons not to anticipate your inheritance:

• Funeral expenses come first. The person who arranges the funeral is responsible for paying the costs but is entitled to reimbursement from the estate ahead of other creditors. • If Uncle Eddie died owing more than he owned, the claims of creditors, including the cost for treatment of his last illness, come next.• The proceeds of any life insurance policy or superannuation will pass to named beneficiaries, separate and apart from the

provisions of the will;• Unless you specifically request to do so, you have no right to read the actual will;• If there are legal costs related to your inheritance, for example if you must sell land to collect cash, those likely will come out of your pocket.

What to do nextIf you are the beneficiary of a will, you may need legal representation to protect your rights. Remember the executor has a duty to obey the law and to carry out the deceased’s intentions, but no particular duty toward beneficiaries. If you have questions or concerns about your rights as the beneficiary of a will, please call us for a free consultation at 1800 780 770.

Divorce is a stressful process for all parties, especially around the holiday season. Many people want to begin a new year with their divorce issues settled and their property settlement resolved.

Tips for Reducing the Time of a Property Settlement

If you are committed to resolving your property dispute and reach-ing a settlement quickly during the holiday season, here are some tips:

• Get ready to negotiate early. You should begin the process of negotiating a property settlement as early as possible and you should be prepared to negotiate as soon as you decide to end your marriage. Obtain financial records

Reduce the Time of a Property Settlement During Christmas and New Year Season in Australia

and all relevant documents right away so you are ready foreffective negotiations.

• Communication. You need to be ready to sit down and have a discussion with your partner. Consider what you each brought to the relationship. Communicate about your financial and economic contributions and about what you each should be entitled to walk away from the relationship with.

• Bring in the professionals. A third party can help you keep emotions out of negotiations, and can provide you with invaluable assis-tance in effectively negotiating a property settlement. The advice of a professional can be essential to knowing what you are entitled to by law when a divorce occurs.

Then you can start off negotiations on your property settlement with a reasonable idea of what a fair settlement would be.

Owen Hodge Lawyers has helped many couples effectively reduce the time it takes for a property settlement. Give us a call now so we can help you resolve this important issue. issue so you can move on in 2016.



5

business trends

in 2016

The start of a new year is a great time for business owners to take stock of their company's standing and explore new possibilities for growth.

1. The gig economy will continue to create new opportunities: Freelance work is continuing to become more popular than ever, and is moving into new industries including professional services fields. Your organization can look for new ways to connect with freelancers to provide needed services, or can take advantage existing networks of freelancers out there to expand your talent pool on an as-needed basis.

2. The sharing economy will evolve and cause more disruption. Many project the sharing economy is likely to move more towards altruism as there is increased emphasis on ensuring businesses benefit the consumers and communities they serve.

3. Social media will continue to increase in importance: Generation Z, or the Limitless Generation, is becoming a more important and more vocal demo-graphic group. This generation is 100 percent online and is strongly tied into the online world of social networks. As a result, social selling is becoming even more important and businesses that want to tap into important new markets will need to find ways to excel in the

creation of original shareable content to get their message out.

4. Emerging markets will expand. Investors will continue looking to emerging regions such as the Middle East and Africa to find new opportunities to cater to a rapidly growing global middle class. This means the market for accessible luxury is likely to expand.

5. Lean businesses will continue to thrive. As money-losing start-ups are forced to cut costs and as competition for venture capital financing increases, the most successful companies are likely to be focused on developing lean businesses that grow organically with the development of creative products.

Entrepreneurs need to carefully monitor market trends and look for ways to take advantage of emerging opportunities as new markets develop and traditional markets evolve.

Meriton Festival Village

7 January to 26 January Elizabeth Street, Sydney NSW 2000

Woyzeck - Sydney Festival

7 January to 12 January245 Wilson Street, Eveleigh NSW 2015

The 2016 Sydney Festival centrepiece, Woyzeck, has been adapted from Georg Buechner and created by Tom Waits, Kathleen Brennan and Robert Wilson. Directed by Jette Steckel ofthe Thalia Theatre Germany,

Bondi Markets - Bondi Beach

3 Januaryto 10 JanuaryCampbell Parade Bondi Beach NSW(02) 9315 7011

Bondi Markets are the place to find the next big thing. Keep your eye out for up and coming designers. Mix it with the locals and shop to the sights and sounds of Australia's most famous beach.

What’s On in Sydney

Everyone's favourite Festival Village is back this summer, the ultimate oasis of musical and theatrical delights, along with plenty of delicious eats, all in the heart of the city at Hyde Park.

Apia International Sydney

10 January to 16 January

Sydney Olympic Park NSW 2127

Riverside Organic Markets

9 JanuaryHuntleys Point Road, Gladesville NSW Phone: (02) 9999 2226

Riverside Organic Markets is a weekly market running on Saturday. Hidden in a little pocket of Gladesville, Organic Food Markets have once again found a niche providing fresh organic and conventional fruit and vegetables, artisan (and gluten free!) breads, gourmet produce...

Summer Sounds in The Domain

9 January1 Art Gallery Road, Sydney NSW 2000(02) 9248 6500

Take all the things you know and love about The Flaming Lips: psychedelic pop anthems, the beamed-from-outerspace live shows, and the feelings of joy and goodwill towards your fellow humans, creatures and Martians - and now imagine all of this happening in The Domain, for free..

Apia International Sydney 2016 promises to be one of the best tennis experiences in the nation.

The Rabbits - Sydney Festival

14 January to 24 January

Roslyn Packer Theatre, Walsh Bay NSWPhone: (02) 9318 8200

Quentin Tarantino Live On Stage

15 January 201680 Pyrmont Street, Pyrmont NSW 2009(18) 0070 0700

Presented by the People's Republic of Movies (P.R.O.M.), working directly with Quentin Tarantino, an exclusive one-night-only double bill of Australian cinema plus a live Q&A hosted by the Oscar® Award-winning writer/director himself live on stage at The Star.

Apia Wheelchair International Open

12 January to 16 January Sydney Olympic Park NSW 2127www.apiainternational.com.au

The International Tennis Federtion Wheelchair Tennis Tour originated in 1992 with 11 international tournaments, but has grown in size and popularity with currently over 160 events taking place all over the world.

Opera Australia and Barking Gecko Theatre Company, in conjunction with Sydney Festival, present the brand new Australian opera The Rabbits.

(02) 8248 6500

www.apiainternational.com.au


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