Conveyancing, Leases and Business
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
3. Business and Franchise
The easy to follow, comprehensive procedures and checklists in this guide eliminate common issues which cause delay or dispute in relation to contracts for sale of business, such as purchaser entity, finance, premises and franchise requirements.
Precedents include our new Uniform Contract for Sale of Business which covers all aspects of the transaction from pre-exchange vendor warranties and purchaser guarantees (by shareholders where applicable) to completion, including effective releases of PPSR security interests, transfer all of business assets including copyright works, trade marks, supplier contracts, et cetera and the ASIC/Fair Trading requirements for the transfer of business name. Our contract also customises the competition restraints so they are enforceable, bind the key people and deal with e-commerce, non-solicitation of staff and customers and confidential information.
The commentary compares business structures, sets out the tax consequences of sale price apportionment, explains the tax treatment of stock, long service leave and other employee entitlements, considers the status of the premises and any franchise agreement and discusses many other important issues affecting business conveyancing.
Some of the most popular precedents in this publication include:
- Uniform contract for sale of business
- Letter to purchaser's solicitor submitting contract
- Letter to vendor's solicitor with executed contract for exchange
- Direction to pay to purchaser's solicitor
- Order on agent
- Notice to complete
- Direction to pay to incoming mortgagee
- Summary of relevant considerations
- Letter to vendor's solicitor raising requisitions
Guides in this publication
MATTER PLAN
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“ Commentaries ”
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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 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 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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“ – 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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“ Termination20 Lawyer’s lien20 ”
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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 cost 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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“ 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. ”
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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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“ See the detailed commentary A brief explanation of the transition to E-conveyancing for information on transactions that must be completed electronically, transactions that can be completed electronically and the full timeline for implementation. See the PEXA Help Centre for detailed guidance on ... ”
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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 Real Estate Institute contract and the Law Society contract are both designed to be in two parts. The first part comprises the general conditions as set down by legislation. The second part provides all the requirements specific to the particular transaction. ”
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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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“ 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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“ Consideration of the purchasing entity is important. You may need to give advice on the best vehicle with which to purchase the property. If your client is an individual the matter will be simple, but if you act for a couple then the proportion in which each person owns the property needs to be ... ”
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“ Title The property will almost always be a fee simple title that is registered or will be registered following a proposed subdivision. ”
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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. The standard residential contracts provide that the price includes GST. The commercial contract allows the parties to specify whether the price includes or excludes GST and whether ... ”
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“ Although severely modified by the statutory warranty regime, this remains the guiding principle and the vendor has no general duty of disclosure to the purchaser. The purchaser should rely upon his own enquiry. ”
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“ The finance approval will need to be satisfied prior to the expiration of the contract condition. Building and pest inspections will need to be complied with as per the contract. If the client is proceeding to exchange without loan approval then ensure you have the appropriate note on the Retainer ... ”
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“ Special conditions need careful consideration as often they go beyond a balanced protection for both parties. It is not unusual to find significant penalties for failure of the purchaser to settle on the nominated day but none for failure of the vendor to do so. Interest clauses, which have ... ”
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