In the wake of the Italian Prime Minister recently extending lockdown to its entire country in an effort to contain the spread of coronavirus (COVID-19), many Australians may be concerned about their employment and leave entitlements, should Australia find itself in a similar position.
Whilst there has only been 80 confirmed cases of COVID-19 (including 3 deaths) in Australia, the World Health Organisation has recommended, for those persons who are in or having recently visited areas where COVID-19 is spreading, that you self-isolate by staying at home if you begin to feel unwell (even with mild symptoms such as headache, low grade fever and slightly running nose). So what does this mean in terms of your leave entitlements?
The National Employment Standards provide the minimum conditions of employment, including leave entitlements for all employees covered by national workplace laws. For every year of service, full time and part time employees are entitled to a minimum of at least 10 days of paid personal (sick)/carers’ leave, 2 days of unpaid carers’ leave (if needed) and 2 days of paid compassionate leave (if needed). It is important to note that whilst registered agreements, awards and contracts can set out different entitlements to paid sick and carer’s leave, these entitlements cannot be less than the minimum, as mentioned above. Casual employees are also entitled to 2 days of unpaid carer’s leave per occasion, and full and part-time employees can take unpaid carer’s leave if they have no paid sick or carer’s leave left.
Key takeaways for employees:-
- If you intend to take paid personal leave, then your employer can ask you to provide evidence to show that you took the leave because you were unable to work because of an illness or injury or needed to provide care of support to an immediate family or household member (because of an illness, injury, or unexpected emergency affecting the member). Evidence may include a medical certificate from a doctor, or a statutory declaration.
- If you are required to self-quarantine but have used up all your paid personal leave, then you can ask your employer to allow you to take annual leave to cover your absence from the workplace.
- The entitlement to long service leave is based on a qualifying period of continuous service. Employees are entitled to take 8.6667 weeks of paid long service leave after a period of 10 years’ continuous service. If your absence from the workplace may be lengthy, you can ask your employer to agree to the taking of long service leave if you have the required period of service.
- If you have used up all of your leave entitlements, but you are forced to self-quarantine (for example, by an authority), then you can ask your employer to continue to pay you, however, there is currently no obligation on the employer to do so.
Key takeaways for employers:-
- If an employer has a reasonable concern that an employee is sick (for example, that employee has recently travelled to or returned from a country or region that is at high or moderate risk for COVID-19 and are displaying symptoms of the virus), then they can:-
- direct that employee to obtain a medical clearance before returning to work; or
- direct that employee not to work during the risk period.
Where an employee is unable to provide a medical clearance, then that employee is considered unfit for work. In this situation, an employer can reasonably direct that employee to take sick leave. If the employee has exhausted their sick leave, then the employee should be entitled to unpaid personal leave.
- If an employee requests to stay home from work as a precaution against being exposed to COVID-19, then these requests are subject to the workplace’s normal leave application processes.
- If an employee has used up all their leave entitlements, then you should consider whether to pay the employee their annual leave entitlements in advance (i.e before they have accrued any entitlement to the leave). Most modern awards provide that an employee can take a period of annual leave in advance if there is a signed written agreement in place between the employee and employer regarding the taking of annual leave in advance, specifying:-
- the amount of leave to be taken; and
- the date on which the leave will commence.
- The Australian Government Department of Health advises that employees who have returned from a country or region that is at high/moderate risk for COVID-19 cannot attend work if they work in a setting with vulnerable people. The Department of Health have advised that from previous experience with other coronaviruses, categories of people at most risk of serious infection include:-
- people with compromised immune systems (e.g. cancer)
- elderly people
- Aboriginal and Torres Strait Islander people
- people with diagnosed chronic medical conditions
- very young children and babies
- people in group residential settings
- people in detention facilities
- Employers should provide information and brief all employees on relevant information and procedures to prevent the spread of coronavirus. Such information can be obtained from the Department of Health website.
- If an employer suspects that an employee has returned from a country or region that is at high or moderate risk for COVID-19 or they think they have been in close contact with a confirmed case of COVID -19, then they should inform that employee to remain isolated in their home.
- An employer can only direct an employee to take annual leave in some situations (for example, where an employee has accumulated excess annual leave or during a shutdown period). The rules about when and if an employer can direct an employee to take annual leave is set out in awards, registered agreements and employment contracts.
- Section 524 of the Fair Work Act 2009 (Cth) provides that an employer may stand down an employee, without pay, during a period where the employee cannot be usefully employed because of, for example, a stoppage of work for any cause for which the employer cannot reasonably be held responsible. The most common situation is severe and inclement weather.
- Other alternatives may include a work from home arrangement for at-risk employees.
Employers have certain obligations under work health and safety legislation to safeguard the health of all employees. In a situation where an employee has:-
- recently returned from a high or moderate risk area for COVID-19;
- is not displaying symptoms of the virus, and
- is able to produce a medical clearance,
but the employer seeks to take a cautious approach, the employer can direct the employee not to return to work for a certain period of time (the Australian Government Department of Health recommends 14 days from the date of leaving the high/moderate risk country/region). Where an employer directs an employee not to return to work for a specified period of time, an employer is unable to force the employee to take annual leave and the employee would be entitled to be paid ordinarily, whilst subject to the direction.
Employers should continue to take care by conveying to any employee who is directed not to attend work, that:-
- such approach is a precautionary one, and
- that the direction has not been given for any discriminatory reason.
Should you require any assistance with a workplace health and safety or employment issue, please don’t hesitate to contact Just Us Lawyers on 07 3369 7145 or via email to firstname.lastname@example.org for further advice.
Written by Natalie Smyth
 Data obtained from the Australian Government Department of Health as at 11.00 hrs on 9 March 2020.
Casual (adj): not regular or permanent. See also, chance, random, occasional, offhand, spontaneous.
Australian employment law contemplates three categories of employment status: full-time, part-time and casual, and to determine which category you fall in, it is usually as straightforward as checking your employment contract – or at least it should be.
While determining whether or not you are a full-time employee is usually straight-forward, the difference between part-time employment and casual employment is not so clear cut. The court will often look further than just the employment agreement to consider how the actual employment should be categorised.
For example, when I worked in retail I was hired as a Christmas casual. My employment had no end date, and my employer would change my shifts from week to week depending on the needs of the store, sometimes calling me in for additional shifts or letting me leave early if it was quiet.
After Christmas, I was kept on (yay!), still on a casual basis, and for a year or so I worked as many shifts as I could fit between study and sport. Over time, the days and times I worked became more regular, until I was working the exact same three shifts each week. It was around this time that I signed a new employment contract and was classified as a part-time worker. While my hourly rate was cut down a little, I was now guaranteed a minimum number of hours per week (but could still work more if necessary) and was entitled to paid sick leave and annual leave (including leave loading).
The above worked perfectly for me – I lived at home while I was a casual, but shortly after being made part-time I had moved out and started renting. I’m not sure that I would have been confident doing this without the security of part-time work, knowing that I had guaranteed income, even if I couldn’t work a shift and a minimum notice period in the end.
Importantly, even if I hadn’t signed that new employment contract once my hours became regular, I may have been properly classified as a part-time employee. The Full Federal Court has said that determining whether an employee is a casual employee ‘depends upon an objective characterisation of the nature of the particular employment as a matter of fact and law having regard to all of the circumstances’. Such circumstances include the regularity of hours, and the anticipation of ongoing employment. The result in Skene was that, on termination of the Plaintiff’s employment the court found that they were entitled to be paid out their accrued leave entitlements.
Employers should therefore be careful to consider the actual needs of their business when deciding whether to classify an employee as casual. If the employer is satisfied that the employee will truly be employed on a casual basis, the hourly rate paid to the employee should compensate them for their lack of certainty and leave entitlements (and their contract should reflect this).
Casual employment can be beneficial to both an employee and an employer, however if you feel that the circumstances your employment fits better into the part-time category but being categorised as casual is enabling your employer to avoid giving you certain entitlements, please get in touch with our experienced employment solicitors by calling 07 3369 7145 or emailing email@example.com.
 Workpac Pty Ltd v Skene  FCAFC 131 (16 August 2018) at .
Written by Sarah Camm
(Image by “Oh Tilly”)
Receptionist / Legal Assistant
The successful candidate will be managing our front desk and assisting our Team in the conduct and management of client files.
- Reception duties including greeting clients and attending to incoming telephone calls and enquiries;
- Collection and delivery of mail;
- Ordering stationary;
- Archiving files and maintaining Safe Custody records;
- Opening files, data entry into Open Practice / Matter Centre;
- Diary management and boardroom bookings;
- Preparation of client invoices;
- Drafting, formatting and amending court documents and other correspondence as directed by solicitors;
- Arranging meetings and conferences;
- Assisting other team members and attending to all other administrative duties as required.
Candidates applying for the position must possess the following:
- Professional personal presentation;
- High standard of attention to detail, ability to multi-task and prioritise your workload;
- Highly developed communication and interpersonal skills, verbal and written;
- Daily attendance, punctuality and ability to work as a team member;
- Ability to work under pressure and meet deadlines;
- An open car licence and car is essential;
- A commitment to develop your skills with the firm.
We have two offices, one at Wilston and another at Kelvin Grove. You may be required to work from either location.
If you can fulfil the above and believe that you would be successful in this role, please forward your resume to Nikki Barry at firstname.lastname@example.org.
By Sarah Camm
The countdown to Christmas is filled with many wonderful events, Christmas parties, family barbecues, and other opportunities to have a few cold drinks in the amazing weather Brisbane has to offer this time of year. It is important that employers and employees plan how to get home from the office Christmas party, and where possible arrangements are made to stay over at your mate’s house rather than driving home. But mistakes happen, and sometimes those mistakes can mean you are facing an extended period without a drivers’ licence.
If you need your drivers’ licence for work, you may be eligible to apply for a restricted licence under section 87 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“TORUM ACT”).
There are a couple of important things to note regarding applying for a restricted licence:
- you must apply for it, it will not be automatically granted
- evidence in the form of an affidavit will be required from you, your employer and sometimes other family members setting out your circumstances
- the application must be made and heard when you are disqualified, that is, when you are sentenced for the offence
- the court will impose the conditions it sees fit when granting the restricted licence, and you must not drive a vehicle for other purposes or other than in accordance with the court’s orders
- the court will take the granting of a restricted licence into account when sentencing you for the offence, which may result in a longer period of disqualification
To be eligible for a restricted licence you must satisfy the following criteria:
- you must be charged with, and convicted of, one of the following offences:
- drink driving, with a blood alcohol concentration (“BAC”) reading of less than 0.15
- driving with a relevant drug in your blood or saliva
- failure to provide a specimen of breath or saliva at the roadside (but not at the police station)
- as a consequence of the conviction, you will be disqualified from driving
- the court must consider you are a fit and proper person to hold a restricted licence, having regard to the safety of other road users and the public generally
- extreme hardship would be caused to you or your family because you would be unable to earn an income. General hardship, such as an inability to take children to school or medical appointments will not satisfy this criteria, even if you are the only member of your family who drives.
You will be ineligible for a restricted licence if:
- this will be your second conviction for a similar offence, or you have previously had your licence cancelled or suspended, in less than 5 years;
- your BAC reading was 0.15 or higher
- the offence occurred while you were driving for work purposes
- the offence occurred whilst you were driving with a restricted licence
- the offence occurred while you were driving a vehicle you were not authorised to drive
- you are a learner driver or on your p-plates
- you are unemployed
At Just Us Lawyers we can help put you in the best possible position to be successful in your application for a restricted licence. If you have been charged with a drink driving offence, and you will be unable to keep your job without being able to drive, contact our office on 07 3505 0355 for advice on whether you will be eligible for a restricted licence, and for assistance in making the application to court.
NIKKI BARRY – OFFICE MANAGER
If you could sum yourself up in 5 words, what words would they be?
Feisty, Independent, OCD, Fun & Generous
Why did you choose the career path that you are currently in?
I am very process driven – legal forms and systems seemed like a good fit. Every matter is different, so it can be very interesting and challenging work.
Who is the person you have learnt the most from?
I have so many amazing people in my life who have inspired me and who have been strong influences in a personal and professional capacity.
What advice would you give to a 13 year old you?
Smile and people won’t even notice the freckles.
Do you have a favourite quote?
“No experience is a wasted experience if you learn from it” – but I don’t know who said it.
Tell us something about yourself that would surprise us
More often than people realise, I actually hold my tongue.
Top 3 life highlights
- News that my son was successful in obtaining a diesel fitter apprenticeship
- My daughter becoming school captain
- Returning to Brisbane after an eight year tree change.
What advice would you give to recent new hires?
We all bring skills and experiences to the table, but we can all still learn something new every day.
What aspects of your role do you enjoy the most?
Finding more efficient processes to improve our service to our clients and to enable our employees to achieve a suitable work/life balance.
What books are at your bedside?
Nora Roberts “Shelter in Place” and Jean Clare’s “Never Give Up”.
What children’s character can you relate with most and why?
Some days Dory from Nemo “Just keep swimming, just keep swimming” but I hope more often Moana because she’s strong, driven and strives to chase what she believes in.
What do you enjoy doing most in your spare time?
Yoga and hanging out with my kids and friends – it’s all about the company.
When was the last time you laughed so hard you cried?
Surprise 50th birthday cruise for a friend in July – there were 20 of us and we laughed so hard for four days.
Where do you see yourself in five years?
Happy with my life and proudly watching my kids flourish as young adults.
Nikki has recently re-joined Just Us Lawyers as Office Manager after a tree change out west for the past eight years. Nikki is a Qualified Justice of the Peace and is available to witness/certify documents during business hours – call 07 3369 7145 to arrange a time.
By Sarah Camm
In a significant decision handed down last week, the Supreme Court of Queensland has held that a Binding Death Benefits Nomination (“BDBN”) executed by an attorney was valid.
Justice Bowskill’s decision in Re Narumon  QSC 185 is significant because, until now, the question of whether an attorney has (or should have) this power has been unclear, and has been the subject of some discussion in the legal community.
The reason for this uncertainty is as follows:
- An attorney can be given power to make financial and legal decisions on behalf of a principal, however the execution of a BDBN is not included in the examples of these types of decisions in the Powers of Attorney Act 1998 (Qld);
- An attorney cannot be given the power to make decisions about special personal matters, including making a will and appointing an attorney, in part on a policy basis, because of the potential for abuse;
- A BDBN, which provides direction for payment of a benefit after death of the principal, could be said to be testamentary or will-like in nature; but
- BDBNs differ from a will in that they often lapse, and must be renewed or re-made every three years, depending on the rules of the particular fund.
Facts in Re Naruman
In 2013 Mr Giles made a lapsing BDBN with his SMSF, nominating his wife and their son to receive 47.5% of his death benefits each, and his sister to receive 5%.
Shortly after making the 2013 BDBN, Mr Giles lost capacity. Under an existing Enduring Power of Attorney, his wife and sister were appointed his attorneys for personal and financial matters.
In 2016, before the 2013 BDBN expired, the attorneys executed an extension of the 2013 Nomination. They also executed a new BDBN, because they were concerned that the 5% distribution to Mr Giles’ sister in the 2013 BDBN, who is not a dependent as required by superannuation legislation, would invalidate the document.
The Court had to determine:
- Whether the 2013 BDBN was valid, despite the nomination of his sister to receive 5%
- Whether an attorney can execute a BDBN on behalf of the principal member
- Whether the extension of the 2013 BDBN or the new BDBN executed in 2016 were conflict transactions, and whether this invalidated the documents
The 2013 BDBN
The Court found that the 2013 BDBN was valid, but that as the member had no power to nominate his sister, and the trustee was not authorised to pay the benefit to her, the nomination of Mr Giles’ sister to receive the 5% benefit was of no effect.
Attorneys executing BDBNs generally.
The Court found that nothing in the Superannuation legislation appears to restrict an attorney of a member executing a nomination on behalf of that member, noting that the terms of the fund deed itself actually govern the rights of a member to make a BDBN.
The terms of Mr Giles’ fund deed did not prohibit an attorney executing a BDBN on behalf of a member and in fact expressly contemplated that they could.
The Court then considered the Powers of Attorney Act 1998 (Qld) itself and held as follows:
The effect of a BDBN, if valid, is to bind the trustee of the superannuation fun to pay benefits, following the member’s death, to the nominated persons (and, if relevant, to do so in the nominated way). That does not seem to fall within any of the examples in the definition of a financial matter, including as a legal matter relating to the principal’s financial matters. But the examples are not exhaustive and do not limit the meaning of the provision. It is difficult to see why the exercise of a member’s right under a SMSF deed, to require the trustee of the fund to pay benefits, after their death, in a particular way would not be “a matter relating to the [member’s] financial… matters”. Given the breadth of meaning of the word “financial”… such an act does fall within the meaning of this term.
The Court also held that, although it deals with benefits of a member after their death, a BDBN is not a testamentary act, so it does not fall within the restricted ‘special personal matters’.
While acknowledging the possibility for abuse by allowing attorneys to make a BDBN on behalf of the principal, the Court noted that several protections against abuse exist in the making of an EPOA, as well as in the attorney’s duties to act honestly and in the principal’s interests, and to avoid a conflict of interest.
The 2016 Extension
The Court held that there was no conflict of interest in the execution of the extension by the attorneys. This Court accepted that the reason for executing the extension was to ensure continuity in Mr Giles’ estate planning and that his wishes continued to have effect. While the attorneys gained some benefit, this was held to be incidental to the exercise of the power, and coincided (rather than conflicted) with the interests of the principal. The 2016 extension was therefore held to be valid.
The new 2016 BDBN
The Court was not prepared to hold that the new BDBN made in 2016 was valid. The new BDBN removed the 5% nomination to Mr Giles’ sister, and nominated Mr Giles’ wife and son to each receive 50% of the benefit. While the change was minor, it was held that without express authority in the EPOA to enter into conflict transactions, the attorneys could not make a BDBN which changed what Mr Giles had proposed in favour of themselves.
Re Narumon does resolve some ambiguities in this important discussion. It is important to note however that the Court was considering circumstances where there was an existing BDBN to refer to. The Court did not exclusively determine whether, even if the EPOA did have a conflict clause, the execution of a BDBN either changing the member’s existing nomination or where the member had no previous nomination, would be valid.
Unfortunately, Binding Death Benefits Nominations are often overlooked in the Estate Planning process. EPOAs, too, are seen as a DIY document, simply containing a number of tick boxes for completion. Trust Deeds are often drafted by an accountant, and executed without a legal advice from your estate planning solicitor.
The decision in Re Narumon highlights the importance of having well considered advice over all aspects of your estate plan. At Just Us Lawyers we can review your existing EPOAs, BDBNs and other estate planning documents to ensure that they will do what you want them to.
We can draft appropriate conflict clauses to ensure your attorneys have the appropriate powers to act in your interests, and provide you with certainty and peace of mind that your affairs will be taken care of.
 Re Narumon  QSC 185 at .
By Remy Forster
The most stressful part of selling a property is generally considered to be the steps taken prior to a contract being signed – constant open homes, receiving (and rejecting) unreasonable offers, staging a house and negotiating with tenants are all common aggravations. Unfortunately the work of selling a property doesn’t stop there, and it is usual for a step or two to be missed in the process of preparing for a property settlement once the stress of finding a Buyer has been alleviated. Below we outline the major items to prepare for as a Seller to help you get your property settlement completed on time.
1. Make sure you can sell the property.
Not all Sellers are disposing of property that they legally own. If you are selling a property on behalf of someone else, or if you will be acting on their behalf for a part of the conveyance due to their absence, it is vital that you have the correct documentation in place for the settlement to be completed. For example:
- If you have changed your name since you purchased the property, you will need to be able to provide evidence that you are the same person (for example a marriage certificate or change of name certificate),
- If you are assisting a partner or spouse in selling a property, your legal representative should not be able to accept your instructions on their behalf without a signed authority (such as a Power of Attorney),
- If you are selling the property on behalf of a family member, partner or spouse and you intend to execute all associated documentation on their behalf, you will need a registered Power of Attorney (for further guidance on this, see our blog on registering a Power of Attorney), or
- If you are selling the property on behalf of a deceased estate, you will need evidence that the estate is being administered and/or has been registered. The title to the property will also need to be transferred out of the name of the deceased and into the name of the personal representative before settlement documentation can be executed.
If you are unsure as to whether you have sufficient documentation, or if you have the legal ability to sell a property, we would recommend that you contact your legal representative prior to executing any sale contracts.
2. Release your property debts.
In order to sell your property, you will need to be able to release any debts held over the property title. Most sellers will only have a mortgage over the property title, and having this debt released requires you to contact the financial institution which holds the mortgage (for further guidance on this, see our blog on tips for discharging a mortgage). However, if you have any other debts over the property, such as a writ or caveat, you will also need to contact the parties who hold these debts to arrange the debts to be released. If you have a debt over the property to a less formal party (for example, a mortgage over the property which has been lodged by a family member), you will still need to contact that party for them to arrange releasing their debt over the property.
3. Obtain a Capital Gains Clearance Certificate
Due to recent legislative changes, certain property settlements require the Sellers to provide evidence from the Government that the Buyers are not required to withhold a portion of the purchase price. This evidence is provided by the Government in the form of a “Capital Gains Clearance Certificate” upon application by the Seller. We recommend that all Sellers verify if their property falls within the requirements for this Certificate to be provided (for further guidance on this, see our blog on Capital Gains Clearance Certificates) and apply for the Certificate once their property is listed for sale. Certificates are valid for twelve months when issued, and a new application can be submitted if the Certificate expires prior to the property settlement occurring (applications can be made online).
4. Have your identity documents ready
It is a requirement in Queensland for all legal representatives to verify the identity of their clients in conveyancing transactions. For sales this is especially important to ensure someone is not fraudulently selling a property they do not own, or do not have right to. This requirement means your legal representative should ask for a certified copy of 100 points of identity documentation, or for you to complete a Verification of Identity with a verification provider (for example, Australia Post). The most common documents which you can use to verify your identity are your current Australian passport, current Australian Driver’s license and any change of name or marriage certificates which show your name has changed since your passport and/or driver’s license were issued (if you don’t have these documents available, please see Schedule 8 of the Participation Rules which list a table of the possible documents you can provide). If you cannot provide sufficient documents to prove your identity, your legal representative may not be able to act on your behalf in the transaction.
5. Check if you will be available during the transaction.
In the mysterious ways of the universe, it is common for the perfect Buyer for your property to come along when you already have a trip or other adventures planned. It is always important when signing a contract that you make sure you will be available for at least a portion of the transaction, and that you advise your legal representative if you will not be available for the entire time. During a conveyancing transaction there will be additional documents for you to sign as the transaction progresses, and most likely instances where your legal representative will need to contact you for your instructions. If you are unable to complete these steps, it will make it difficult for your settlement to be completed on time.
6. Disclose, disclose, disclose.
Standard conveyancing transactions require Sellers to disclose certain information about the property to any potential Buyers, and these disclosures need to be reflected on the Contract the parties sign. For example, a Seller is required to disclose to the Buyer:
- If they have conducted work on the property under an Owner Builder License,
- If there are any work notices issued by the local council for the property,
- If there are any tree disputes registered with QCAT that involve the property, or
- If there are any defects or circumstances relating to the Body Corporate which would materially prejudice a Buyer.
If the Seller does not disclose this information, the Buyers may be able to either terminate the Contract or pursue the Seller for costs. We recommend that Sellers gather any information about the property that they have in preparation to disclose this information to the Buyers.
7. Gather your settlement documents
If you’re selling a residential home, you may not have any documents to gather or collect. Below is a list of documents which affect some property sales and we recommend that you peruse to see if they apply:
- Certificate of Title – some Sellers have an original Certificate of Title for their property. These Certificates were only originally issued prior to the 1990’s, and since then have only been issued upon request by the party who owns the property. You can check if you have a Certificate of Title by viewing a copy of a Title Search for your property (which your real estate agent should have ordered as part of preparing the contract of sale).
- Tenancy documents – if the property has tenants and you have copies of rental agreements, rental ledgers or bond forms, you will need to provide these to your legal representative prior to settlement. If you have a property manager, they may hold these documents for you.
- Building finals – if you have conducted any work on the property since you purchased it, you may have copies of final inspection certificates for this building work. It is not a legal requirement in Queensland for you to provide these to the Buyer (unless there is a special condition in your contract requiring this), but having these on hand can smooth over issues which arise during the conveyancing process.
- Rates, water and body corporate notices – the Buyers are supposed to conduct searches on these accounts during the conveyancing process, however if they do not, having copies of these notices will assist your legal representative in preparing for settlement.
Finally, you will need to make sure you have collected all keys, remotes and access cards that you hold for the property for these to be handed to the Buyer following settlement.
If you have any queries about the conveyancing process, or generally about what to do when selling a property, please contact our Conveyancing team.
By Natalie Smyth
Like so much with the law, the devil is usually in the detail, and what might seem a good idea at the time may have consequences from left field. It is no different with conveyancing contracts for the sale of residential property in Brisbane.
Take the example of Tara. Tara made her living as a medium sized property developer in Brisbane. She purchased land and developed one or two apartment blocks per year with an average of 10 to 15 units each. When the market was good, Tara had no trouble selling her apartments. She was very proud of her finishes and the quality of her fittings. “They sell themselves really”, she told me.
But recently things have been different. There has been a glut of good product on the market and prices were falling.
Tara was sick and tired of Buyers putting down a small deposit and walking away when they found an apartment which was cheaper. It was unfair she thought, after all the planning and work she put in for Buyers, to be able to walk away like that with very little consequence. She decided to do something about it.
Tara told her agent that she would now require Buyers to put down a deposit of thirty percent and the contract of sale must now specify that the deposit was non-refundable. Her agent told her she may lose some prospects but Tara said she didn’t care, “If they are not prepared to do that, they are not serious anyway”, she replied.
For a while everything worked well. She was attracting Buyers who were fair dinkum. But then one Buyer, having paid the 30 percent deposit refused to pay the balance. Tara was very patient and gave the Buyer every opportunity to come up with the balance of the purchase price but the Buyer just refused to pay.
“Oh well, so be it, the deposit is non-refundable, I will just take that and find another Buyer….the deposit will compensate me for the extra interest I have had to pay, while the Buyer has been dithering around”, she thought.
However, when Tara came to sign the transfer documents for the new Buyer she found that the previous Buyer had placed a caveat on the property preventing the sale. If that was not bad enough, the previous Buyer had now engaged a solicitor who had written to her bank demanding that the mortgage be removed from the property and the Bank was listening, they wanted Tara to pay back the mortgage. Tara needed to mortgage her apartment blocks to finance the construction, she simply didn’t have the funds to pay for everything upfront.
The previous Buyers solicitor claimed that the contract of sale, even though it was in the standard REIQ form, was an Instalment Contract and the deposit wasn’t really a deposit at all but part payment of the purchase price which gave the previous buyer an interest in the apartment. A ‘non-refundable’ deposit can make a contract an Instalment Contract with unintended consequences.
What is an Instalment Contract?
In most land contracts in Queensland, the Buyer will pay a deposit that is held by the ‘stakeholder’ (usually the agent or Seller’s lawyer) until settlement. On settlement, the Buyer will then pay the balance of the purchase price, in exchange for the Seller providing them with clear legal title to the property.
An Instalment Contract, as the name suggests, has the Buyer make payment of the purchase price by a number of instalments. It is sometimes called a vendor finance arrangement. Usually, these instalments will be non-refundable.
Most importantly, Instalment Contracts change the legal relationship between the Buyer and Seller, and provide more protection to Buyers than under a standard REIQ contract.
Can a non-refundable deposit make a contract an Instalment Contract?
Section 71 of the Property Law Act 1974 (Qld) defines an Instalment Contract as one in which the Buyer must make a payment, other than a deposit, without becoming entitled to a transfer of the land.
A deposit is defined in the Property Law Act to be an amount that:
- does not exceed 10% of the purchase price (for existing lots), or 20% of the purchase price (or proposed/off the plan lots); and
- is paid or payable in one or more instalments; and
- is liable to be forfeited to the Seller in the event of default by a Buyer.
Where a deposit is truly non-refundable, it is not ‘liable to be forfeited’. The Buyer is deemed to have already paid to the Seller part of the purchase price. Even though, the contract itself specified that the amount was a deposit, it does not overrule what is provided in the Property Law Act.
What are the consequences of an Instalment Contract?
Instalment Contracts provide more protection to Buyers than a standard REIQ contract. In summary, where a contract is deemed to be an Instalment Contract because of a non-refundable deposit these protections are:
- Restriction on Termination by Seller on default of the Buyer
Under a standard contract, a Seller can terminate the contract and forfeit the deposit if the Buyer breaches it in a material way. However, section 72 of the Property Law Act requires a Seller under an Instalment Contract to provide a Buyer with 30 days’ notice to remedy this failure to pay, before the Seller is able to terminate the contract or take any other action. This means that time is not of the essence in relation to the payment of monies. The settlement date may be extended by up to 30 days by the Buyer without a Seller’s consent.
- Property cannot be Mortgaged under an Instalment Contract
Under a standard REIQ contract, there is no prohibition against mortgaging the property after the contract is formed, provided that the mortgage is removed from title at or before settlement. However, Section 73 of the Property Law Act provides that under an Instalment Contract, a Seller must not mortgage the property without the consent of the Buyer. However, you can insert a Special Condition into the contract that provides the Buyer’s consent to the registration of a mortgage.
- Registration of Caveat by Buyer under an Instalment Contract
Section 74 of the Property Law Act provides that a Buyer under an Instalment Contract has an express right to lodge a caveat over the Land.
When we told Tara that she would have to pay the previous Buyer out she was very upset. But when we told her that, as the price for removing the caveat, she would also have accede to the demand of the previous Buyer’s Solicitor to pay a share of the profit from the sale as well as his legal costs, she was furious.
“The Previous Buyer is an absolute devil. I have been taught a very expensive lesson. I should have made sure of the details before getting the agent to change the contract and then I wouldn’t be in this mess,” Tara complained.
The creation of an Instalment Contract can severely impact a Seller’s right to terminate a contract, if a Buyer defaults. It is important to get legal advice before you enter into any contract, including Instalment Contracts.
What can I do to avoid an Instalment Contract?
As a general rule, special conditions should not express or imply that the deposit is ‘non-refundable’, and the Seller should be under an obligation to refund the ‘deposit’ if the contract is terminated because of the Seller’s default. However, don’t try this at home. You should always obtain legal advice before including conditions that allow for release of the deposit.
Whether you’re purchasing your first family home or increasing your property portfolio, purchasing property is an important financial decision that is not to be taken lightly. It is crucial that you sign a contract in accordance with your current circumstances and needs. Typically this is achieved through Pre-Contract Advice and/or Contractual Negotiation.
WHAT ARE SPECIAL CONDITIONS
In addition to the standard terms of a Contract, it is common practice to insert special conditions prior to execution. This provides additional protection and rights with respect to the property transaction. Special conditions are also inserted to vary or delete existing standard terms to benefit either or both parties.
Listed below are some common special conditions that can be inserted for the benefit of the Purchaser:-
- Body Corporate Pet Approval – if purchasing a unit or townhouse with the intention of a pet residing in or on the property, the Purchaser must ensure the body corporate will approve.
- Due Diligence – this allows the Purchaser to investigate the land being purchased through a range of property searches. This may be necessary to ascertain development restrictions, permitted uses, current building structure approvals and certification etc.
- Prior Sale – are funds from your sale to be used to assist in the purchase of the new property? It would be beneficial to insert a condition with respect to the satisfactory settlement of your prior sale Contract.
When a Special Condition is inserted into any Contract it must be clear and concise, warranting avoidance of potential future dispute, as a condition could be void if it is deemed vague or confusing.
Once you have entered into a property transaction by way of a fully executed Contract of Sale, it is legally binding, therefore we recommend engaging Pre-Contract advice in which we can draft appropriate conditions, negotiate and provide advice with respect to terms you would be bound by.
For further information on special conditions and how we can assist in pre-contract advice please contact our Conveyancing Team based at our Wilston office.