Conveyancing, Leases and Mortgages
This bundle includes guides from the following three publications.
Recent updates can be viewed on Obiter - our News & Updates site.
A complete matter-management solution allowing conveyancers and support staff to run a busy conveyancing practice. Each step in the transaction is set out in sequential order with easy access to all required precedents and a simple but comprehensive commentary.
Commentary covers all issues that arise regularly and more complex issues that arise from time to time.
Some of the most popular precedents in this publication include:
- Settlement Statement
- Letter to vendor after settlement
- Letter to purchaser after settlement
- Settlement instructions - Sale with a mortgagee
- Initial letter to purchaser
- Letter to council with payment of outstanding rates and notice of change of ownership
- Irrevocable authority
- Letter to agent after settlement
- Put and call option
- Authority to solicitor to forward deeds
- Costs agreement
A guide to negotiating and drafting retail, commercial and rural leases including assignment, termination, transfer and other related transactions. The commentary covers the Retail and Commercial Leases Act requirements and key practical issues in leasing such as bank or personal guarantees, interruption, outgoings, repairs, renewals, registration and subleases.
Precedents include commercial and retail leases in plain English, agreements to lease, disclosure statements, licences, a library of additional clauses and notices, appropriate letters and all that is required for the quick and accurate production of leases and advice to landlords or tenants. Our comprehensive Retainer Instructions ensures nothing is missed and the client is properly advised.
Some of the most popular precedents in this publication include:
- Advice to parties reviewing a lease
- LEASE - Retail - Annexures A and B
- LEASE - Commercial industrial - Annexures A and B
- Deed of assignment of lease
- Reply to lessor's solicitor returning executed lease
- Notice to Owners Corporation
Use this comprehensive and practical guide to prepare loan agreements, mortgages and guarantees for most of the transactions required in general practice.
The detailed commentary includes information on the formal requirements for identification of parties, execution, registration and enforcement.
Some of the most popular precedents in this publication include:
- Notice to owners corporation section 22 notice
- Letter to discharging mortgagee requesting discharge
- Mortgage linked loan agreement
- Standard terms document - Registered memorandum AJ843928
- Acknowledgement of receipt of memorandum
- Authority to complete documents and satisfy requisitions
- Direction to pay
- No security loan agreement
- Letter to mortgagor's solicitor submitting documents
Guides in this publication
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“ Commentaries ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a practitioner charges a client for their professional services and other payments that arise out of the provision of legal services, including disbursements such as court fees. Costs are one of the most heavily ... ”
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“ Nature of disclosure6 Timing of disclosure7 ”
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“ Costs disclosure is not required in relation to certain clients, described in the legislation as ‘sophisticated clients’ or ‘government or commercial clients’ as defined by the relevant legislation to include clients such as lawyers, law firms, public companies, liquidators and government entities. ... ”
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“ Cost agreements are not always required, although clearly, as between the practitioner and their client, there will be disclosure but without the need for formal compliance with the regulation. The limits are: ”
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“ In New South Wales and Victoria there is a standard costs disclosure for fees under $3,000 which is included in the precedents. If the total legal costs in a matter (excluding GST and disbursements) are not likely to exceed $3,000 (the higher threshold), a practitioner may, instead of making a ... ”
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“ Knowing that clients are disinclined to read, sign and return cost agreements, the letter sending them usually provides that unless heard to the contrary the practitioner will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many ... ”
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“ Costs are remuneration for professional work when acting in the capacity of a barrister or solicitor. Payments to a practitioner for work which is not professional work, are not costs. Disbursements are payments made, or liabilities incurred in the course of practice and which the practitioner is ... ”
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“ Practitioners are required to provide an estimate of the total of costs, excluding GST and disbursements, and information on the impact of any significant change to these costs. A practitioner must take all reasonable steps to satisfy itself that the client has understood and consented to the ... ”
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“ What is a disbursement Disbursements are payments made, or liabilities incurred in the course of practice, and which the practitioner is bound to pay whether put in funds by the client or not; or payments which, by established custom and practice of the profession, the practitioner is bound to pay. ... ”
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“ A practitioner may request money on account of fees be paid into a trust account before the work begins. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. Experience confirms that if a client is reluctant to pay such ... ”
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“ The costs agreement will set out the billing cycle. Commonly a regular monthly billing cycle is adopted covering work undertaken during the previous month, or when the WIP reaches a specified amount, whichever is the earlier. ”
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“ A lump sum invoice is one which sets out a recital describing the legal service provided and a total amount. An itemised invoice is one which sets out in detail each of the legal services provided, the date they were provided, and the cost for each service. An itemised invoice allows for an invoice ... ”
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“ A practitioner cannot charge for the time spent in preparing an invoice. A practitioner cannot charge for the time spent in preparing an itemised invoice for a client who has already received a lump sum invoice. ”
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“ All bills should be accompanied by a written statement setting out the avenues that are open to the client in the event of a dispute and any time limits that apply to the taking of such action. Under the uniform law in New South Wales and Victoria each bill or covering letter must be signed by a ... ”
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“ – When to charge and how to charge Goods and Services Tax (GST) is a broad-based tax of 10% applied to most goods and services, including legal services. Businesses are required to register for GST if their turnover exceeds the $75,000 threshold. If turnover is less than $75,000, registration is ... ”
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“ Reducing fees can create goodwill but needs to be handled with care as some clients may take offence to the implication that they cannot afford to pay for the work they have retained. Similarly, it may create an expectation that any future costs will be discounted. It is also a hard-won reality ... ”
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“ Credit terms are quite common and need to be clearly documented and administered. ”
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“ Notification of rights is a requirement in all states and is found in all example invoice precedents. If the client has not been advised of their rights in a costs agreement, practitioners must advise the client of their rights at the time of issuing the invoice. ”
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“ Monthly accounting for work in progress is recommended in order to achieve target lockup days. If debtors are not followed up promptly cash flow reduces making it imperative to adopt a debtor’s policy for effective debtor control. All overdue accounts must be followed up promptly and repeatedly. ”
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“ When a retainer is terminated before completion, a practitioner may claim costs for the work done to the date of termination on a quantum meruit basis if: The client terminates the entire retainer; ”
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“ When there are costs owing to the practitioner from the client, the lawyer may retain possession of the client’s documents which are legitimately in the practitioner’s possession. However, the Australian Solicitors’ Rules specify that when a practitioner claims to exercise a lien for unpaid legal ... ”
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“ If a practitioner has an equitable charge over the client’s property incorporated into the costs agreement, ordinarily the practitioner could exercise that power in seeking payment of costs. However, general charges such as a charge over ‘all my estate, rights, title and interest in and to any real ... ”
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“ Sound financial management is absolutely critical to the success of a law practice. There is a high correlation between practices with poor financial management and increased probability of experiencing professional negligence claims. The link is clear. Principals, who do not manage their ... ”
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“ Methods of payment include: Credit card; ”
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“ All By Lawyers cost agreements include the following authority to transfer money to pay their invoices: Trust money ”
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“ Lawcover recommends that practitioners use the costs assessment scheme to recover costs. Instituting proceedings against a disgruntled client who refuses to pay an outstanding bill exposes practitioners to the risk of a cross-claim in negligence being filed. The advantage of the cost assessment ... ”
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“ The following outline of costs assessment was written for NSW but the procedure is similar in the other states. This publication will be expanded to cover cost assessment in the other states in due course. In the interim refer to the relevant State Supreme Court. NSW Procedure ”
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“ A client may be entitled to complain to the Legal Services Commissioner about a costs dispute. If the complaint is made after the law practice or client has already applied for assessment of such costs, the assessment will ordinarily be stayed until the complaint has been determined. Similarly, if ... ”
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“ RevenueSA Australian Taxation Office ”
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“ Companies, Trusts, Partnerships and Superannuation Papers and Articles – Conveyancing and Property ”
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“ The purpose of a conveyancing transaction is to transfer the title and use of real property from one party to another. Despite the current trend to make it so, conveyancing is not adversarial. This is largely due to the disclosure regime that governs the transaction. It is, however, an area of ... ”
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“ Taking good instructions The use of precedent Retainer Instructions ensures that all important issues are considered, instructions which cannot be contradicted later are recorded, costs discussed and the scope of the retainer clearly defined. ”
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“ VOI ”
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“ A client authorisation enables the client to authorise a solicitor or conveyancer to act on their behalf for an electronic transaction. Although the authorisation is similar to a power of attorney, legislation specifically states a client authorisation is not a power of attorney. When transacting ... ”
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“ It is common for one person to want to appoint another person to be their representative for the purpose of undertaking some activity on their behalf. The law has always recognised this arrangement, which at its simplest is governed by the law of agency. The need for the person acting on behalf of ... ”
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“ The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 provide that when a property is sold with a market value of $750,000 or more the purchaser is required to withhold 12.5% of the purchase price. The sum withheld must be remitted to the ... ”
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“ The requirement for purchasers to withhold the GST and remit it to the commissioner on taxable supplies of certain real property under Subdivision 14-E Schedule 1 Taxation Administration Act 1953 came into force on 1 July 2018. Subdivision 14-E applies to all contracts that settle after 1 July ... ”
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“ The contract between a vendor and purchaser is the primary document setting out the obligations of the parties. It is an executory document, meaning that it establishes the rights and obligations of the parties to be performed over a period of time, culminating with payment by the purchaser of the ... ”
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“ Panels identifying the parties and their representatives are followed by the panel headed ‘land’, which makes it plain that all improvements and fixtures on the land are included in the sale. The ‘payment’ panel allows for details of the price and deposit to be specified. GST has its own panel. The ... ”
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“ Inclusions that form part of the sale should also be identified to avoid confusion. For instance, a common assumption by purchasers is that large freestanding items such as birdbaths or entrance step pots are included. As a general rule all fixtures will pass with the property and all chattels will ... ”
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“ Auction contracts Auction contracts are no different to any other type of contract – until the contract is exchanged it is not enforceable. This means that a purchaser can walk away at any time up until they have signed the contract and that the vendor is not obliged to proceed until the vendor has ... ”
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“ A vendor of land which is sold as an estate in fee simple or Crown leasehold must provide a disclosure statement as set out in s 7 of the Land and Business (Sale and Conveyancing) Act 1994. The vendor’s statement is commonly referred to as a ‘Form 1’. Such a statement is required when land is sold ... ”
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“ Special conditions may cover a wide range of circumstances and exist to ensure that the contract is tailored to the needs and understanding of the parties. Clarity of drafting is imperative in this regard. If work is to be done by the vendor prior to settlement, for example, then a date by which it ... ”
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