Conveyancing Voice. AIC Forms Live. Contents

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1 Follow Us Conveyancing Voice January Foster Promote Advance Contents Government Gazette Updates Client Complaints Deposits of less than 10% in property transactions News & Updates National Conference 2017 Professional Development & Practical Skills Calender for 2017 AIC Forms Live 2017 The AIC Live Forms platform was launched on the 4 th of January for Members of the AICSA. Once Members register for the platform, they will receive a two week trial from the date of their registration. To register and sign up for AIC Forms Live please click on the button below: Forms are being added to the AICSA Forms Live site continually. Forms currently available through the platform include: AICSA Land Contract AICSA Business Contract (to be added soon) Form 1 Form 2 LTO panel forms Further documents will be added over time if there is a document you would like to see included please contact the AICSA and we can look into it.

2 Government Gazette Update DEVELOPMENT ACT 1993, SECTION 25 (17): CITY OF SALISBURY - SALISBURY CITY CENTRE DEVELOPMENT PLAN AMENDMENT Preamble 1. The Salisbury City Centre Development Plan Amendment (the Amendment) by the City of Salisbury has been finalised in accordance with the provisions of the Development Act The Minister for Planning has decided to approve the Amendment. NOTICE PURSUANT to Section 25 of the Development Act 1993, I- (a) approve the Amendment; and (b) fix the day on which this notice is published in the Gazette as the day on which the Amendment will come into operation Dated 7 December 2016 DEVELOPMENT ACT 1993, SECTION 25 (17): DISTRICT COUNCIL OF ROBE - ROBE GOLF COURSE EXPANSION DEVELOPMENT PLAN AMENDMENT Preamble 1. The Regional Robe Golf Course Expansion Development Plan Amendment (the Amendment) by the District Council of Robe has been finalised in accordance with the provisions of the Development Act The Minister for Planning has decided to approve the Amendment. NOTICE PURSUANT to Section 25 of the Development Act 1993, I- (a) approve the Amendment; and (b) fix the day on which this notice is published in the Gazette as the day on which the Amendment will come into operation Dated 7 December 2016 JOHN RAU, Deputy Premier, Minister for Planning 2

3 Foster Promote Advance Client Complaints The AICSA Public Advisory Service and Professional Conduct Committee regularly receives inquiries or complaints from the public about conveyancing fees charged and the conduct of members. It is part of professional life that some clients are unhappy with the services rendered to them. Some have genuine grievances. Some have unrealistic expectations or won t accept responsibility for their own actions. Others do not understand what has happened or why it has happened. Often unhappy clients seek the assistance of the Institute to resolve their problems. The Institute seeks to resolve such issues in order to preserve the status and standards of the profession. AICSA members are expected to abide by the AICSA Code of Conduct, which may be found on the AICSA website under Code of Conduct. Some pertinent provisions from the Code of Conduct are as follows: 8.2. A conveyancer will keep up to date with the law relating to conveyancing and other essential facts and public policies that affect their clients. Members should take advantage of the professional development seminars and recordings offered by AICSA to keep up to date. Making time to regularly read the Voice and the SA Conveyancer will also assist. 8.5 A conveyancer will keep adequate files for each matter handled for a client including electronic records, notes of all telephone conversations and copies of all documents and correspondence as required under the Act. Keeping proper file notes will assist in justifying conveyancing fees and work completed in the event that a client complains. It will also assist in defending any claim made by a client against your professional indemnity insurance A conveyancer will give their clients an accurate and complete breakdown of their fees and disbursements A conveyancer will as soon as possible after being asked to do so by a client, unless it is unreasonable or inappropriate in the circumstances provide to the client an estimate of the costs and disbursements the client will incur and the method of calculation of those costs. In Victoria, under section 47 of the Conveyancers Act 2006, conveyancers must provide a written fee disclosure document to a client before or at the time that a conveyancer is instructed to act or as soon as possible afterwards. The conveyancer is required to give a costs estimate or to set out the basis on which costs will be calculated. The options open to clients in the event of a dispute with a conveyancer as to fees is also set out in the disclosure document. A client is not required to pay conveyancing fees if a fee disclosure document has not been provided. Whilst this is not law in South Australia, it is still good practice to give clients full written disclosure of estimated costs as soon as instructions are received. If fees are disclosed upfront, arguments with clients over fees may be avoided later; it manages the expectations of the client. 3

4 Any fee estimate should ideally separately set out an hourly rate or fee that will be charged for work completed in the event that additional work is undertaken or where a conditional contract does not proceed to settlement, eg. contracts subject to finance approval A conveyancer has a duty to communicate effectively and promptly with clients and will keep clients informed of all significant developments in any matter in which they are acting unless the client has instructed the conveyancer to do otherwise. Do not assume that the client already knows the conveyancing process. Advise at the outset what the conveyancing process is, and keep the client informed. Try empathy. Imagine yourself in the place of your client and let them know what you would want to know and when, as if you were in their position. When acting for both parties in a matter, immediately upon being instructed and before doing any other work ensure that each party is sent the Acknowledgement that Conveyancer acts for more than one party as set out in Schedule 9 of the Land and Business (Sale and Conveyancing) Act 1994 for signing and return. The client may not have an opportunity to choose their own independent conveyancer if the Acknowledgement is presented to the client for signing with the Client Authorisation and other documents closer to settlement. Also, the client may not look kindly upon a conveyancer who does not disclose that they are acting for both parties upfront A conveyancer will not assume to act for a client until they have received instructions from the client. AICSA has received complaints in the past that conveyancers have made such assumptions after having received a contract from an agent. NEVER assume. ALWAYS confirm a client s instructions in writing before commencing any work. If the agent has not provided an address for the client, contact the client by telephone to obtain one so that your letter of appointment may be ed rather than sent by post. This avoids having to wait for a response by post, which may take some time given Australia Post s new delivery times for letters. It is also good for client relations to make a telephone call to the client at the outset rather than just sending a letter. The AICSA s Code of Conduct covers much more in relation to dealings with clients than what is set out above. In addition, the Code deals with business names and professional descriptions, carrying on other businesses, advertising, employed conveyancers, dealings between conveyancers, dealings with other professionals, trust money and taxation matters. If you have not read the Code of Conduct for a while, I recommend re-visiting it. Also consider drafting a dispute resolution or complaints policy which sets out how client complaints will be handled by your business. It is always better for your business for client complaints to be dealt with in-house rather than through the AICSA s Professional Conduct Committee or Consumer and Business Services, South Australia. Jenny Raymond Vice President / Councillor 4

5 Foster Promote Advance Deposits of less than 10% in property transactions There have been many decisions and much debate about whether a vendor can claim the balance of a 10% deposit where a purchaser defaults. Many recent authorities have held that the vendor is not entitled to do so and this question was considered afresh in late October 2016 in the matter of Kazacos v Shuangling International Development Pty Limited NSWSC Contract clause regarding payment of other 5% found to constitute penalty In this matter the deposit paid was 5% on exchange. There was a clause in the contract that stated that the other 5% was payable on the completion date or the date when the purchaser defaulted under the contract. The obligations of the purchaser were guaranteed by one of the directors. The situation was that, after numerous extensions, the vendor terminated the contract as the purchaser was unable to settle. The vendor resold the property at a higher price but then sued for the other half of the deposit. Justice White held that the clause constituted a penalty and the vendor was not entitled to claim any other monies from the purchaser. Default payment found not to be an earnest of the bargain The nature of a deposit is that it is essentially an "earnest" of the bargain made between the parties and the purchaser's performance of the bargain. His Honour held that, in this case, the payment to be made on default had nothing to do with binding the purchaser to its bargain and was not in any way a genuine pre-estimate of damages for breach. The Court held that the time when the second tranche of the so-called deposit was to be paid was when the purchaser had already demonstrated that it was unable to complete. The Court seemed to be very much influenced by the fact that the vendor made a significant profit from the purchaser's default. Not only did it get to keep $850,000 being the initial 5% deposit as well as extension fees, it has resold the property for $1,000,000 more than the original purchase price. Vendors should consider risk of accepting less than 10% deposit on exchange The Courts consistently held that where a deposit is accepted on exchange, then this is the amount that the parties have agreed is the "earnest" for performance of the purchaser's obligations. If the clause stipulated that the deposit was payable, in this instance, as to 5% on exchange and 5% by a given date which was say the day when settlement should have taken place, and it was stated that this payment had to be made on that date even if the delay in settlement was not caused by the purchaser, this may assist, but it is doubtful. Therefore, it has to be understood that if you are a vendor and you accept less than the normal 10% deposit on exchange, if the purchaser defaults it is most likely that the accepted deposit amount is the only amount that you are going to be able to recover, as any attempt to recover anything more will be deemed by the Courts to be a penalty. Chris Rumore Buying property in Australia Colin Biggers & Paisley 5

6 Bank List updated The Bank List has been updated with information from Adelaide Bank and Bendigo Bank. Click here to view the latest version of the Bank List. News and More PPSA: Lessee s administrator retains ownership of plant and equipment against lessor of premises (Cooper Grace Ward) Failing to register a lessor s security interest on the PPSR over plant and equipment at leased premises can result in the lessor s unperfected security interest passing to the administrator of the lessee... Which Types of Facebook Posts Get the Most Likes, Comments, and Shares? (MarketingProfs) Consumers interact most with very short Facebook posts, according to recent research from BuzzSumo. The report was based on an analysis of data from 800 million Facebook posts made in The meaning of GST in property transactions (Greenwoods & Herbert Smith Freehills Pty Ltd) McEwans Australia Pty Ltd v Brisbane City Council emphasises again the need to get tax advisers involved early to ensure the most appropriate GST treatment of transactions and contractual language that accurately reflects the intention of the parties.... 6

7 AICSA is pleased to invite you to attend the Family Law DATE: Tuesday February Time: 4:30pm - 6:00pm LOCATION: AICSA Training Room INVESTMENT MEMBERS: Early Bird Prices: $95.05 (Incl. GST) Members: $ (Incl. GST) Non members: $ (Incl. GST) Student: View site for pricing DETAILS This session will cover the following: Building Financial Agreement & Court Orders Sales & Transfers Stamp Duty Implications Releasing Funds from Trusts Acting for Both Parties Presented by: Rose Cocchiaro Resolve Divorce Lawyers Professional Development & Event - Cancellation, Change & Refund Policy PLEASE NOTE: No refund will be given unless more than 7 days notice is received by AICSA in writing. Cancellation may invalidate discount. Changing between events (including from seminar to recording) after registration and less than 48 hours prior to the event will incur an administration fee of $25.00 (+ GST). The AICSA reserves the right to cancel sessions that do not reach the minimum number of participants required (full refunds given). Frequently Asked Questions on RPA Reforms & EC- Updated We have an FAQ set up for E-Conveyancing on the AICSA website. You can access them via the link found below; Diary Dates 26 January - Australia Day 31 Janaury - Practical Skills Course Begins 2 February - AIC Forms Live Training Introduction to Interests & Dealings in Land 14 February - Family Law Seminar 15 February - Practical Skills: Opening, Managing and Closing a File 22 February - Workshop Alignment Settlement Dates Click here for settlement room dates. Member Event Photos Click on the link to view photos from our recent events Click Here 7

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9 Professional Development 2017 Seminars & Workshops The Australian Institute of Conveyancers SA Division provides a range of seminars across a variety of subjects to give all Registered Conveyancers and staff the opportunity to further their Professional Development in addition to various workshops. Registration for seminars & workshops are open to all, members and non-members alike. SEMINAR PRICES MEMBERS: $ (Incl. GST) STUDENTS: $25.00 (Incl. GST) WORKSHOP PRICES MEMBERS: $ (Incl. GST) STUDENTS: $ (Incl. GST) Practical Skills Course 2017 AICSA will conduct an intensely practical introductory course of 10 subjects over 12 sessions directed at new and/or inexperienced conveyancing clerks, more experienced clerks and conveyancing students wishing to update their skills and obtain a Certificate of competency. Please refer to the practical skills calender for available courses Practical Skills Course PER CLASS: $99.00 (Incl. GST) ENTIRE COURSE: $ (Incl. GST) TESTIMONIALS The Practical Skills course is fantastic to gain knowledge in the how to part of conveyancing. I ve sent a couple of my team to the course when they were new to the conveyancing industry and they learned a lot that assisted them in doing their job role in my business Penny Erskine - Conveyancing Matters Foster Promote Advance

10 Professional Development Calendar 2017 FEBRUARY DATE SESSION NAME CPC TIME LOCATION 14 Family Law Seminar 15 4:30pm 6:00pm AICSA 22 Alignment Series Workshop 20 8:00am 11:00am AICSA MARCH DATE SESSION NAME CPC TIME LOCATION 14 Cyber Security Seminar - Risk Management 15 4:30pm 6:00pm AICSA APRIL DATE SESSION NAME CPC TIME LOCATION 5 Land Divisions Workshop 20 8:00am 11:00am AICSA 11 Land Divisions Workshop 20 8:00am 11:00am AICSA MAY DATE SESSION NAME CPC TIME LOCATION 3 Off The Plan Workshop 20 8:00am 11:00am AICSA 24 Off The Plan Workshop 20 8:00am 11:00am AICSA JUNE DATE SESSION NAME CPC TIME LOCATION 13 Dealing with Death Seminar - Risk Management 15 4:30pm - 6:00pm JULY Your Computer DATE SESSION NAME CPC TIME LOCATION 5 Form 1 Workshop 20 8:00am 11:00am AICSA 26 Form 1 Workshop 20 8:00am 11:00am AICSA

11 Practical Skills Course 2017: JANUARY DATE SESSION NAME TIME LOCATION 31 Introduction to Interest and Dealings in Land 2pm 4:45pm AICSA FEBRUARY DATE SESSION NAME TIME LOCATION 15 Open, Manage, & Closing a File 2:00pm 4:45pm AICSA MARCH DATE SESSION NAME TIME LOCATION 1 Contractual Issues for Clerks (Session 1) 2:00pm 4:45pm AICSA 8 Contractual Issues for Clerks (Session 2) 2:00pm 4:45pm AICSA 22 General Practices & Procedures 2:00pm 4:45pm AICSA APRIL DATE SESSION NAME TIME LOCATION 5 Open your own Conveyancing Business 2:00pm 4:45pm AICSA 26 Financial & Accounting Issues (Session 1) 2:00pm 4:45pm AICSA MAY DATE SESSION NAME TIME LOCATION 3 Financial & Accounting Issues (Session 2) 2:00pm 4:45pm AICSA 10 Land Services Group 9:30am 12:30pm AICSA 24 Introduction to Vendor Statements 2:00pm 4:45pm AICSA JUNE DATE SESSION NAME TIME LOCATION 7 Conveyancing IT 4:30pm 6:00pm AICSA CONTACT US Ph: E: communications@aicsa.com.au W:

12 Foster Promote Advance Australian Institute of Conveyancers South Australian Division Incorporated CONTACT Level 3, 255 Pulteney St Adelaide SA 5000 Tel: Fax: DX L.T.O. Web: AICSA STAFF Rebecca Hayes Chief Executive Officer e: Geoffrey Adam E-Conveyancing & Legislative Projects Officer e: Glenys Jackson Business Manager e: Matthew Netherwood Manager, Membership & Partnership e: Renzo Rigano Marketing and Communications Coordinator e: Karen Holt Membership Coordinator e: Megan Whitford Professional Development & Events Coordinator e: Janette Wale Finance & Administration Officer e: Disclaimer The views expressed in this E-Newsletter are those of the author and not necessarily those of the publisher or editor. The material contained in this publication is of the nature of general comment only, and neither purports, nor is intended to be advice, legal or otherwise, on any particular matter. No subscriber or other reader should act on the basis of any matter contained in the publication without considering and, if necessary, taking the appropriate professional advice upon their own particular circumstances. The publisher, the authors and the editor expressly disclaim all and any liability to any person, whether a purchaser of this publication or not, in respect of anything set out in this publication and of the consequences of anything done or omitted to be done by any person in reliance, whether whole or partial, upon the whole or any part of the contents of this publication. No correspondence will be entered into in relation to this publication either by the publisher or the editor.