NSW

Forcing the sale of land in NSW

Where land is owned by multiple people (whether as joint tenants or tenants in common), any one of the owners can approach the Supreme Court to seek an order for the appointment of a trustee for sale and for the property to be sold.

Ordinarily, the owners can come to agreement on the need for a sale and the basis on which it is to be conducted. For example, following some negotiations or a mediation, the co-owners may agree to:

  • sale by auction with an agreed reserve price;
  • sale by public treaty with an agreed price; or
  • sale by one owner to another, with agreement on how the price is determined (such as agreeing on a valuer or methodology).

When co-owners are in a dispute however as to whether a property should be sold, when and on what terms, the provisions of section 66G of the Conveyancing Act 1919 (NSW) can be utilized to force the sale of the property, even where the other owner (or owners) do not want to sell it.

Once appointed, the trustee has the legal power to sell the property on the best terms available and to engage real estate agents, valuers and lawyers/conveyancers as may be required. So as to help ensure that the property sells for fair market value and to avoid any breach of trust allegations from any of the owners for not obtaining the best price possible, it is sensible for a trustee to sell at public auction

A usual order made is that the unsuccessful party (usually the defendant/respondent) pays the plaintiff /applicant’s legal costs. The costs risk arising from litigation (which can be substantial in amount) is usually a key factor in out of court settlements being made.

Applications for the appointment of a statutory trustee for sale are generally only refused in special circumstances, such as where the is a prior agreement not to sell, around the terms of any sale or to sell only when certain conditions are met (which is why any co-ownership agreements ought to be in writing as verbal evidence can be less persuasive).

Usually, after a successful application is made and the property is sold, the proceeds of sale after payment of:

  • any encumbrances (such as mortgages and unregistered mortgages secured by caveats);
  • the costs of sale (real estate agent and auctioneer fees and marketing costs etc); and
  • the trustee’s costs

are held on trust by the appointed trustee and then distributed proportionally according to ownership.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to family disagreements in relation to land or estates or any business or commercial dispute, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal needs.

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Claim a CTP Green Slip refund

The NSW Government has reformed the compulsory third party (CTP) insurance scheme to reduce the costs of CTP Green Slips for vehicle owners and better support people injured on NSW roads.

If you were the registered owner of a private vehicle as at midnight 30 November 2017, you may be able to claim a CTP Green Slip refund for CTP insurance policies bought or renewed before 1 December 2017.

Over 4 million NSW vehicle owners will be eligible for a refund as a result of these reforms.

Claims must be submitted by 30 September 2018.

To see if you are eligible to claim a CTP Green Slip refund and to make a claim for your refund, log in to Service NSW

Do you own land in NSW through a family trust structure?

Do you own land in NSW through a family trust structure? If so, then take note…

Revenue NSW (previously the NSW Office of State Revenue) automatically applies the Land Tax Surcharge on land tax assessments for properties owned through a family trust. The surcharge, which was introduced as part of the 2016 NSW budget, is currently at 2%, and can be significant.  There is a similar application to stamp duty also.

This surcharge does not apply where Revenue NSW has been advised of the fact that the trust deed specifically excludes foreign persons or entities as potential beneficiaries.

Revenue NSW may allow trustees up to 6 months from an assessment date to update their trust deed to remove foreign persons as beneficiaries. After the deed is updated and Revenue NSW is satisfied with the changes, the trustee can then apply for the surcharge to be refunded.

We have assisted several clients to update their trust deeds at the time of initial registration for land tax (to exclude foreign persons or entities as potential beneficiaries) however, where there is an existing trust with an existing landholding, this may be something that needs to be monitored and updated, so check your assessments.

FURTHER INFORMATION

Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to land tax, trust deed amendments or any other commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal needs.

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Road Rules Awareness Week

26 February – 4 March 2018 is Road Rules Awareness Week in New South Wales and is part of Transport for NSW’s Towards Zero campaign.

Here is a guide to the Top 10 misunderstood Road Rules which provides simple answers to many road rule questions, including using roundabouts, when you can and can’t use high-beam and fog lights, and when it is permitted to make a u-turn.

Top 10 Misunderstood Road Rules

Below are some short videos on each topic in the top 10.

Road Rules Awareness Week provides an annual opportunity for drivers to refresh their knowledge of road rules. It also allows pedestrians, motorcyclists, passengers and bicycle riders to better understand the rules and improve their safety on or near the road.

 

 

How does jury service work?

Jury service plays an important role in our justice system. Juries are used to ensure that legal verdicts are impartial and in line with community standards of behaviour.


The jury system in New South Wales is administered by the Jury Services Branch of the Office of the Sheriff of New South Wales, operating in accordance with the Jury Act 1977 and the Jury Amendment Act 2010.

WHAT DOES A JURY DO?

Juries are used in the District and Supreme Courts of New South Wales to:
  • hear and determine more serious criminal matters
  • hear and determine civil matters involving large monetary claims
  • participate in coronial inquests in the New South Wales Coroner’s Court.

In criminal trials, a jury hears evidence, applies the law as directed by the judge, and decides if a person is guilty or not guilty of a crime, based on the facts. A jury does not participate in the sentencing process.


In most criminal trials, 12 people are selected to be on the jury. Up to 15 jurors can be empanelled if a trial is expected to last longer than 3 months. To be ‘empanelled’ means to be chosen for a specific trial.

Civil trials which require juries are usually defamation proceedings. The trial judge will outline the issues the jury needs to consider to decide who is at fault. A civil trial jury is typically comprised of 4 jurors however, in the Supreme Court, 12 jurors may be ordered.

HOW IS A JURY SELECTED?

There are 3 steps to jury selection:
  1. Inclusion on the jury roll
  2. Receiving a jury summons
  3. Jury selection and empanelling

People who sit as jurors in a particular trial have gone through all 3 steps.

Each year, the names of around 200,000 potential jurors are randomly selected from the New South Wales Electoral Roll (the list of registered voters) and included on a jury roll. Notices of Inclusion are sent out to tell people they are on the jury roll. This is a list of people who could be selected for jury service in the next 12 months.

Approximately 150,000 people on the roll are sent a jury summons notice at some point in the year. This notice requires them to come to court, where they may be selected as a juror for a specific trial.

Out of these, only about 9,000 people a year are selected to serve on jury panels for specific trials. They are then empanelled as jurors.

You can ask to be excused from jury service for various reasons, including the kind of work you do, personal circumstances or because you are away from the state.

There are several categories of people that are excluded from being on a jury (such as lawyers, judges, members of parliament, policemen etc) and others who may be exempted from being on a jury (such as doctors, firemen, members of the clergy, the ill and those who have been on a jury in the last 3 years etc).

DO YOU GET PAID?

If you are selected as a juror, you will get paid an allowance for attending (only if for more than half a day) plus a travel allowance. This is intended to reduce any financial hardship you may incur by serving as a juror, but is not intended to be equal to your normal wage or salary payment – it is effectively a public service obligation on all citizens of New South Wales.

The amount you are paid depends on the length of the trial and whether you are currently employed or not employed. People who are not employed include carers, stay at home parents, retirees and unemployed people.

The present entitlement are:

The travel allowance is calculated on the distance from your postcode to the courthouse and is presently paid at the rate of 30.7c/Km.

Allowances are paid weekly by electronic funds transfers to your nominated bank account. You will be given details to log onto juror.nsw.gov.au and enter your bank account details prior to your court attendance.

WHAT ABOUT EMPLOYERS?

The allowance paid to jurors is not intended to be a substitute for a salary or wage.

Under the Fair Work Act 2009, an employer is required to pay full-time or part-time staff for the first 10 days of jury service.

Employers cannot:
  • force employees to take own leave, such as recreation or sick leave, while doing jury service;
  • dismiss, injure or alter their employees position for doing jury service;
  • ask employees to work on any day that they are serving as jurors; or
  • ask employees to do additional hours or work to make up for time that they missed as a result of jury service.

 

FURTHER INFORMATION
Craig Pryor  is principal solicitor at McKillop Legal. For further information in relation to jury duty or any court/litigation related matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.

Justices of the Peace

A Justice of the Peace (JP) can perform certain functions like witnessing Statutory Declarations or Affidavits and certifying copies of documents.

The NSW Department of Justice has updated the Justice of the Peace Handbook for JPs in NSW. The handbook contains guidance for JPs, tips to avoid common risks and answers to frequently asked questions.

Witnessing a Stat Dec or Affidavit

When witnessing a NSW Statutory Declaration or Affidavit, the JP must see that person’s face as well as confirm that they have known the person for at least 12 months or sight approved identification documents. The current approved versions of Statutory Declaration and Affidavits contain amended wording in this regard but it should be added if it is not there.

If the person refuses to remove any face covering, the JP must refuse to witness the execution of the document unless there is special justification (which means a legitimate medical reason, but does not include religious beliefs or cultural practices).

Approved identification documents include drivers licences, Medicare card, birth certificate, passport (so long as they have not expired/been cancelled). Expired passports are acceptable so long as they did not expire more than 2 years ago.

Quick JP facts

  • JPs may not charge or receive any benefit for providing JP services.
  • A JP is not authorized to witness an Enduring Power of Attorney.
  • JPS cannot conduct a marriage unless they are also a licensed Marriage Celebrant.
  • The Jury Act 1977 does not provide an exemption for JPs from jury duty.
  • A JP May not provide legal advice unless they are also a registered Australian Legal Practitioner.
  • A JP must not unreasonably refuse to provide JP services.

The Code of Conduct for Justices of the Peace was reviewed in 2014 and updated by the Justices of the Peace Regulation 2014.