Conveyancing
A complete matter-management solution which allows conveyancers and support staff to run a busy conveyancing practice. Includes the By Lawyers Contract for Sale of Land.
Each step in the transaction is set out in sequential order with easy access to all of the required precedents and a simple but comprehensive commentary. The publication includes the reference materials ‘1001 Conveyancing Answers’, ‘A full description of the sale process in NSW’ and ‘A full description of the purchase process in NSW’.
Recent updates can be viewed at Obiter - News & Updates, via the link above.
Popular precedents include:
- Contract for sale of land – By Lawyers
- Order on the agent
- Letter to vendor's solicitor with settlement adjustments and requesting payment directions
- Detailed cover sheet - Purchase of real property
- Section 66W certificate
- Direction to pay to purchaser’s solicitor
- Notice to complete
- Contract for sale of land – Law Society
- Letter to vendor's solicitor submitting transfer
- Settlement instructions mortgagee
Guides in this publication
MATTER PLAN
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“ Contents Overview3 ”
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“ In the legal profession the term ‘costs’ refers to the fees and other expenses a solicitor 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 regulated ... ”
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“ Nature of disclosure1 Timing of disclosure2 ”
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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 NSW & VIC 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 law practice may, instead of making a disclosure under ... ”
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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 practice will assume agreement. There will almost always be a later opportunity to have the agreement signed. Of course, many practitioners ... ”
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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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“ Firms 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 law practice must take all reasonable steps to satisfy itself that the client has understood and consented to the proposed ... ”
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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 lawyer may request money on account of fees be paid into a trust account before the commencement of work. This is particularly so in criminal and other court matters where the inclination to pay may wane with an unwanted outcome. The funds may cover legal fees as well as disbursements and the ... ”
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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. ”
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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 law practice cannot charge for the time spent in preparing an invoice. A law practice 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 NSW and VIC each bill or covering letter must be signed by a principal of the ... ”
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“ In 1991 the Australian Competition and Consumer Commission released guidelines to assist businesses in the withdrawal on one and two cent pieces. In the purchase of goods or services for cash, businesses were advised to round the final payment: ”
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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 than registration ... ”
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“ Reducing fees can create good will but needs to be handled with care as some take offence to the implication that they cannot afford to pay for the work they have retained. It is also a hard won reality that comes from experience that people are inclined not to value any advice given for free. ”
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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, then 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 the 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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“ NSW Land Registry Services Registrar General’s Guidelines ”
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“ 1001 Conveyancing Answers (NSW) 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, statutory warranties and the ... ”
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“ Instructions are received in many different ways. A practitioner is likely to begin acting on a purchase after being advised by an agent or their client that a purchase has been negotiated and that details will follow. As the majority of the purchases handled by practitioners are of residential ... ”
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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. A client ... ”
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“ Sections 23C and 54A of the Conveyancing Act allows a contract to be signed by a duly authorised agent in writing. However, if a document that is required to be registered such as a transfer is signed by an attorney then the power must be registered. A power of attorney authorises the attorney to ... ”
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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 of the Taxation Administration Act 1953 came into force on 1 July 2018. Subdivision 14-E applies to all contracts that settle after 1 ... ”
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“ By necessity these contracts cover much of the same ground. However, there are some key differences identified in the table below. Both contracts comprise a summary, standard terms and conditions and any added special conditions. The terms and conditions are the subject of copyright and any ... ”
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“ Summary, special conditions and standard terms and conditions The contract comprises the summary, the standard terms and conditions and any added special conditions. The terms and conditions in PDF format remain unchanged and the summary is used to amend the terms and conditions or add special ... ”
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“ The Law Society have published a 2019 edition of the contract. The Property Law page at the Law Society has further information including a summary of changes, a link to an FAQ and a link to the ECOS site. ”
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“ The central issues as to the identity of the purchaser are those relating to tax, tenancy and asset protection. See the dedicated Business structures – Comparative table commentary for more information. ”
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“ Identification Those who cannot imagine a mistake in this area easily overlook the need for identification of the property. It seems inconceivable that a contract can relate to a property other than the one inspected by the purchaser, but it happens. ”
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“ It must be unambiguous whether or not GST is payable by the purchaser and whether or not it is included in the price. If substantial inclusions are involved then an apportionment of the price may be necessary for tax purposes. Transfer duty is payable on the price inclusive of GST whichever way it ... ”
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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 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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“ This is often an area which leads to dispute. Care should be taken to ensure that all inclusions are stated and any items that a purchaser might consider to be included but aren’t are identified as exclusions. Typically disputes arise over such items as birdbaths, large entrance pots, cubby houses ... ”
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“ Commercial building disclosure From 1 November 2011 corporate vendors of office space buildings exceeding 2,000 square metres are required to obtain and disclose a current Building Energy Efficiency Certificate (BEEC). The BEEC needs to include: ”
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“ At common law a builder who constructs a building has contractual and tortious responsibilities. The contractual responsibilities are owed to the owner with whom the builder enters into the contract in relation to the building work, and a tortious duty is owed to a subsequent owner to exercise ... ”
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“ Both the By Lawyers contract and the Law Society contract are designed to obviate the need for any alterations and additions to the contract. Most practitioners add some special conditions to the Law Society contract, some have many pages often making minor changes to the standard clauses and ... ”
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“ Section 52A of the Conveyancing Act 1919 provides that a vendor shall be deemed to have included in the contract such terms, conditions and warranties as may be prescribed and the regulations may make provision for or with respect to the remedies and relief available to a purchaser under a ... ”
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“ Waterfront properties and foreshore maritime structures There is no automatic right to use existing foreshore maritime structures, such as jetties, boat ramps and boat sheds enjoyed by a waterfront property. When acting for vendors or purchasers of waterfront property, you must check if there are ... ”
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“ Enquiries before exchange Despite the apparent protection of the regime of statutory warranties there is little comfort to be found in rescission or litigation. Thorough inspection before exchange by the appropriate experts and by the purchaser is the best course of action to take to avoid ... ”
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“ As discussed above, when using the By Lawyers contract in most matters it will not be necessary to add any special conditions because the special conditions customarily included by vendors in the Law Society contract have already been incorporated in the By Lawyers contract. There is an extensive ... ”
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