Conveyancing
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.
Recent updates can be viewed at Obiter - News & Updates, via the link above.
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
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 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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“ Australian Government Commercial Building Disclosure Australian Taxation Office ”
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“ Sale of Real Property (WA) Leases (WA) ”
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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 practice of obtaining building and pest reports before the contract can become ... ”
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“ The agent or the client has advised you that a purchase has been negotiated and that details will follow. As the majority of the purchases handled by practitioners are of residential premises the contract will have been prepared before the property was listed for sale and will be received fairly ... ”
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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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“ Read our paper A brief explanation of the transition to E-conveyancing which includes information on how to get connected and the full timeline for implementation. Eligible stand-alone transfers, caveats and withdrawal of caveats must be lodged electronically. ”
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“ The foreign resident capital gains withholding payments provisions of the Taxation Administration Act 1953 (Cth) came into force on 1 July 2016 and were amended from 1 July 2017. Essentially from 1 July 2017 when a property is sold with a market value of $750,000 or more, the buyer is required to ... ”
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“ Buyers must 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 (Cth). Subdivision 14-E applies to all contracts that settled after 1 July 2018. Contracts entered into prior to 1 July 2018 ... ”
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“ Section 143 of the Transfer of Land Act 1893 allows a contract to be signed by a power of attorney. 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 do anything ... ”
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“ The central issues as to the identity of the buyer 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 buyer, but it happens. ”
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“ It must be unambiguous whether or not GST is payable by the buyer 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 is ... ”
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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 buyer is required to withhold 12.5% of the purchase price. The sum withheld must be remitted to the Australian ... ”
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“ The contract between a seller and buyer 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 buyer of the purchase ... ”
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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 buyer might consider to be included but aren’t shown as exclusions. Typically disputes arise over such items as birdbaths, dishwashers, large entrance pots, cubby houses ... ”
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“ Contracts for sale of land Unlike in other States, there are no mandatory disclosure requirements of a seller, other than strata or survey-strata title, and so a buyer must contract the relevant authorities to check if there are any restrictions on the title and ensure compliance on building ... ”
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“ At common law a builder who constructs a building will have contractual and tortious duties. The contractual duties will be owed to a party with whom the builder enters into a contract in relation to the building (the owner of the land) and tortious duties will be owed to those who are reasonably ... ”
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“ The Offer and Acceptance and General Conditions contract is designed to obviate the need for any alterations and additions to the contract. However, care should be taken to consider additional or special conditions that may be of use given the specific circumstances of the property. ”
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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 sellers or buyers of waterfront property, you must check if there are ... ”
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“ Option or right of first refusal An owner of land may grant an option to purchase, a right of first refusal or a right of pre-emption. A right of first refusal and a right of pre-emption differ from an option in the strict sense. These rights are principally contractual and frequently appear in ... ”
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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 buyer is the best course of action to take to avoid subsequent ... ”
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“ There is an extensive Library of Special Conditions included in the guide to deal with the many issues that might be relevant. Special conditions need careful consideration as often they go beyond a balanced protection for both parties. It is no longer uncommon to find significant penalties for ... ”
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