This article continues our series on motor accident compensation in NSW. You can read about other matters of particular relevance to NSW Trustee and Guardian (NSWTG) clients in part 7 found here.

In previous parts of this series, I briefly mentioned the Lifetime Care and Support Scheme which is of particular relevance to seriously injured protected persons under management. The scheme pays for treatment, rehabilitation and care for people who have been injured in a motor accident in NSW. There are similar schemes in other jurisdictions.

It is a no-fault scheme. Benefits are payable to injured persons, regardless of who was at fault, provided the injury meets the eligibility criteria. In the case of children, the motor accident must have occurred after 1 October 2006 and, in the case of adults, after 1 October 2007.

Severe injuries that may be eligible for the Scheme include:

• Spinal cord injury
• Brain injury
• Complications
• Burns
• Permanent blindness

As part of the application process, a medical specialist will need to complete a medical certificate to confirm the severity of your injury. There may also be some specific assessments for the particular type of injury to help determine if it will meet the eligibility criteria. These will usually be completed by the treating team.

Below are the assessment tools that are used for each type of injury that may be eligible for the Scheme:

• Brain injuries and burns: FIM™ and WeeFIM®.
• Spinal cord injuries: American Spinal Injury Association (ASIA) Scale.
• Amputations: no additional assessment tool, determined by the percentage loss of limb/s or assessment of equivalent impairment.
• Permanent Blindness: no additional assessment tool, they must be legally blind in both eyes.

 

Brain Injuries

The Lifetime Care and Support Guidelines define a traumatic brain injury as an insult to the brain, usually with an associated diminished or altered state of consciousness that results in permanent impairments of cognitive, physical and/or psychosocial functions. A person may be eligible for the Scheme if they have sustained a traumatic brain injury and:

• the brain injury was caused by the motor accident; and
• the duration of Post Traumatic Amnesia (PTA) is greater than 1week. If the PTA assessment is not available or applicable (for example, if the child is under 8 years of age, or the injured person has a penetrating brain injury), there must be evidence of a very significant impact to the head, causing coma for longer than one hour, or a significant brain imaging abnormality due to the motor accident; and
• one of the following criteria is met:
  • if over 8 years of age: a score of 5 or less on any of the items on the FIM™ or WeeFIM®) due to the brain injury; or
  • if aged from 3 to 8 years: a score two less than the age norm on any item on the WeeFIM® due to the brain injury; or
  • if aged under 3 years: a medical certificate from a paediatric rehabilitation physician that states they will probably have permanent impairment due to the brain injury resulting in a significant adverse impact on your normal development.

 

Burns

A person may be eligible for the Scheme if they have sustained burns and:

• the burns were caused by the motor accident; and
• they have full thickness burns greater than 40 per cent of their total body surface area, or greater than 30 per cent of their total body surface area if you are a child under 16 years; or
• they have inhalation burns that have caused long term respiratory impairment; or
• they have full thickness burns to the hand, face or genital area; and
• one of the following criteria is met:
  • if over 8 years of age: a score of 5 or less on any of the items on the FIM™ or WeeFIM® due to the burns; or
  • if aged from 3 to 8: a score two less than the age norm on any item on the WeeFIM® due to the burns; or
  • if aged under 3 years: a medical certificate from a paediatrician or an appropriately qualified medical specialist otherwise approved in writing by us that states they will probably have permanent impairment due to the burns resulting in a significant adverse impact on your normal development.

 

Spinal Cord Injuries

The Lifetime Care and Support Guidelines define spinal cord injury as an acute traumatic lesion of the neural elements in the spinal canal (spinal cord and cauda equina) resulting in permanent sensory deficit, motor deficit and/or bladder/bowel dysfunction.

A person may be eligible for the Scheme if they have sustained a spinal cord injury and if:

• the spinal cord injury was caused by the motor accident; and
• there is a spinal cord injury resulting in permanent neurological deficit.

 

Amputations

A person may be eligible for the Scheme if they have had an amputation or amputations, or the equivalent impairment, caused by the motor accident that meet/s the criteria described below:

 

Criteria for Multiple Amputations

The injury resulting in the amputations, or the equivalent impairment, was caused by the motor accident; and

They have multiple amputations of the upper and/or lower extremities (or equivalent impairment or some combination), meaning that there is more than one of the following types of amputation at or above the level of:

• a “short” transtibial or standard transtibial amputation, as defined by the loss of 50 per cent or more of the length of the tibia. This includes all other amputations of the lower extremity (such as knee disarticulation or transfemoral amputation) above this level;
• a thumb and index finger of the same hand, at or above the first metacarpophalangeal joint. This includes all other amputations of the upper extremity (such as below-elbow or above elbow amputation) above this level;
• there are multiple impairments, each of which is an ‘equivalent impairment’ to one of the types of amputation above. ‘Equivalent impairment’ means the functional equivalent to an amputation, resulting from an injury such as (but not limited to) brachial plexus avulsion or rupture, where paralysis exists and movement in the paralysed limb, or relevant part thereof, is minimal or non­existent due to the injury.

 

Criteria for Unilateral Amputation

• The injury resulting in the amputation (whether amputation, or an equivalent impairment), was caused by the motor accident; and
• They have one of the following:
  • forequarter amputation (complete amputation of the humerus, scapula and clavicle) or shoulder disarticulation;
  • hindquarter amputation (hemipelvectomy by trans-section at sacroiliac joint, or partial pelvectomy);
  • hip disarticulation (complete amputation of the femur); or
  • an equivalent impairment to one of the types of amputation above. ‘Equivalent impairment’ means the functional equivalent to an amputation, resulting from an injury such as (but not limited to) brachial plexus avulsion or rupture, where paralysis exists and movement in the paralysed limb, or relevant part thereof, is minimal or non-existent due to the injury.

 

Permanent Blindness

A person may be eligible for the Scheme if they lost sight in both eyes and:

• the loss of sight was caused by the motor accident; and
• they are legally blind, defined by:
  • visual acuity on the Snellen Scale after correction by suitable lenses is less than 6/60 in both eyes; or
  • field of vision is constricted to 10 degrees or less of arc around central fixation in the better eye irrespective of corrected visual acuity (equivalent to 1/100 white test object); or
  • a combination of visual defects resulting in the same degree of visual loss as that occurring in either of the definitions above.

 

Read more about Motor Accident Compensation in NSW in part 9 of the series, “Representing a Person Under Management”.

A de facto relationship is defined in the Family Law Act 1975 Act (Cth) as being a relationship between two people of the opposite or same sex who live together on a genuine domestic basis. Section 4AA of the Act provides defining qualities to a de facto relationship that include:

1. not legally being married to each other;
2. not related by family; and
3. regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Interestingly, a de facto relationship can still exist when one party is still married to another person.

When a party to a de facto relationship is trying to negotiate their settlement, is not straightforward as there is a degree of complexity in deciding whether or not a de facto relationship exists between two people. If a person denies the existence of a de facto relationship, a hold is put on the financial settlement proceedings until the court can determine whether or not there was in fact a de facto relationship. If the court decides that a true de facto relationship existed, then the matter can proceed. If the court decides that, in contemplation of the particular circumstances, a de facto relationship did not exist within the meaning of the Act, then the case is dismissed, and a property settlement cannot occur.

However, to simplify this the Court applies the following criteria to evaluate the de facto status:

1. the duration of the relationship (i.e. whether the parties have lived together for a period of 2 years or longer);
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the care and support of children;
5. the degree of financial dependence between parties;
6. the ownership, use and acquisition of their property;
7. the degree of mutual commitment to a shared life;
8. the reputation and public aspects of the relationship; and
9. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship.

While the list above is specific in nature, the court is not required to consider all of these issues in determining whether or not two people are in a de facto relationship. Essentially, this issue turns on the type of relationship and how the parties arranged their affairs together.

It is important to note that for de facto couples, there exists a limitation period for making a claim to the court for a property settlement. Any application to the court regarding the breakdown of your relationship and the dispute as to the adjustment of your relationship assets, liabilities and/or financial resources must be made within two years of the date of separation. However, if a party to the relationship decides to make a claim after the two-year period, they must first obtain the Court’s permission make that application. The court will consider this application with regard to any hardship experienced by you or the other party if the application were not to proceed, together with any explanation as to the delay. In these circumstances, it is important to seek advice from an experienced solicitor in order to understand your entitlements in a particular situation.

This limitation period does not apply to de facto couples who are approaching the court for relief as to the disputed parenting arrangements for their children.

Unlike a marriage certificate for a married couple, de facto couples often face issues when providing evidence that a de facto relationship exists. If one party disputes the relationship, it can be difficult to prove and apply key factors. If a dispute arises about the existence of your de facto relationship, seeking professional legal advice is highly recommended from the outset. As a result the Courts can create a declaration that identifies the existence of a de facto relationship.

In a first for Australia, the ACT has become the country’s only jurisdiction to legalise low-level personal cannabis possession and cultivation. Before getting too excited or outraged, depending on your stance on this, it is important to understand the limited scope of these changes.

For adults (18 years or older) it is no longer a crime under ACT law to possess up to 50 grams of dried cannabis or 150 grams of wet cannabis harvested from your own cultivated plants. However, all reasonable steps must be taken to store the cannabis in a place outside the reach of children.

It is also legal for an adult to naturally cultivate 1 or 2 cannabis plants on a premises where you live. That premises cannot have more than 4 cultivated plants in total – split among 2 or more residents. This might make marking out who owns which plant or dry or harvested cannabis a must. The plants must be cultivated by the person living there and any exercise or control by someone else could lead to prosecution. Any artificial cultivation (hydroponic; using artificial light or heat) remains a crime.

Cannabis cannot be smoked or vaped in public or where it is exposed to children. Cultivation and possession of cannabis must be strictly for personal use. Selling or supplying cannabis in any way is still a serious offence and the law is silent on how one is supposed to obtain their cannabis seedlings in the first place.

The amendments to Canberra’s Drugs of Dependence Act provisions stress the goal of harm minimisation instead of the old focus on crime and punishment.

The huge elephant in the room to these amendments is the Commonwealth offences which still apply in the ACT. Though not a crime under ACT law a police officer could still in theory lay charges for possessing cannabis or cultivation of a plant under the Commonwealth Criminal Code (offences which may carry imprisonment). The only arguable answer to this very awkward state of affairs may lie in an untested legal defence under the Commonwealth Code. It is a potential defence to any Commonwealth offence if the conduct is otherwise justified or excused under another State or Territory Law or if a charged person is under a “mistaken belief” about this justification or excuse.

The ACT also always faces the prospect of the Commonwealth parliament overriding these laws, a power they can wield against the Territories but not the States. They have also shown their willingness to exercise this highly controversial power in dumping the ACT’s early same sex union laws and the NT’s euthanasia laws.

Instead of interfering with ACT affairs or forcing people to test these uncertain legal defences, we would surely hope police would exercise their discretion not to charge people who are genuinely trying to stick to the spirit of the ACT laws. Whether a step in the right direction or not, the experiment of Canberra’s limited legalisation of cannabis should be given a chance to see whether they can genuinely contribute to harm minimisation in the community. Perhaps we might finally then find some other way of looking at this problem beyond the tired old “war on drugs” paradigm.

 

If you require legal advice relating to cannabis offences contact McKenna Taylor Lawyers. For leasing, commercial or other civil law advice on cannabis issues contact Chamberlains Law Firm.

We’ve moved!

Chamberlains Law Firm is delighted to announce that as part of our commitment to continued growth, our Sydney staff has moved to a new office location. The move marks another year of drastic expansion for the firm and our Sydney practice in particular.

We can now be found on:
Level 12, 59 Goulburn Street, Sydney NSW 2000

Phone: +61 (0)2 9264 9111
Email: hello@chamberlains.com.au

As at 1 June 2020, civil procedure in the WA Magistrates Court has changed in an attempt to contemporise and bring the procedure in line with other states, but also in an attempt to simplify how civil matters are conducted in the Magistrates Court of Western Australia.

Tihana Nevjestic of our Perth office welcomes the new changes and says that they will not only simplify the procedure, but in many cases clients will have greater control as to how the matter is conducted which will in turn have a positive effect on legal costs in a jurisdiction which was notorious for high legal costs incurred as a result of procedural road blocks.

The below flowchart outlines the new procedure for General Claims in the Magistrates Court of Western Australia.*

*Flowchart from Magistrates Court of Western Australia.

Firstly, a patent is drafted by a Patent Attorney. Once drafted, the patent is then filed online with IP Australia.

There are three main types of patent applications that can be file in Australia:

1. Provisional Patent Applications;
2. Standard Patent Applications; and
3. Innovation Patent Applications.

The type of patent application you require will depend on a number of factors. Speaking to a Patent Attorney is recommended to determine which patent application is best suited for you.

What is a patent?
A patent is a written document that discloses your invention. If granted, a patent provides you with the exclusive right to exploit your invention.

How do I write a patent?
Patents are drafted by Patent Attorneys who take information provided by you and create a patent application for your review.

What is the structure of a patent?
A patent application follows the following structure:

1. Title
2. Field of Invention
3. Background
4. Summary
5. Detailed Description
6. Claims
7. Figures
8. Abstract

Each section of a patent application must be written in accordance with specific rules which define the type of language used, information provided, layout, section ordering etc.

By submitting an application which does not properly describe your invention, you risk not obtaining a granted patent, and as such, the exclusive rights to your invention.

Where can I see other Australian patents?
You can search for Australian patents online using IP Australia’s online database AUSPAT.

How do I start filing a patent?
Speak to one of our friendly staff members at Chamberlains if you are interested in filing a patent application. Our Patent Attorneys are able to determine the right patent application for you, as well as draft and file the application on your behalf.

 

If you have a Discretionary Trust that owns land in New South Wales or which may own land in the future, you need to act BEFORE 31 DECEMBER 2020 to amend your Trust Deed to avoid surcharge land tax and duty being applied.

The State Revenue Legislation Further Amendment Bill 2019 was enacted on 24 June 2020.  The Bill contains provisions that have significant tax implications for Discretionary Trusts that own or intend to own land in New South Wales or through an ownership interest in a company or unit trust.

The Bill provides that a Discretionary Trust will be deemed a foreign person, and liable for foreign land tax and duty surcharges if the Trust includes foreign persons as beneficiaries of the Trust. To avoid these additional taxes and duties,  the Trust must expressly exclude foreign persons as eligible beneficiaries of the Trust.

 

Why is this important?

Foreign persons who own or acquire residential land in New South Wales are currently liable to pay surcharge duty of 8% and surcharge land tax of 2%.

Most Discretionary Trusts are not liable to pay the surcharges because it is presumed that all the eligible beneficiaries of a Discretionary Trust are Australian Citizens unless declared to be foreign persons.  The new legislation will reverse this approach so that all Discretionary Trusts from 24 June 2020 will be assumed to be a foreign person unless the Trust actively and expressly excludes foreign persons as eligible beneficiaries.

The most significant impact is that the law is ‘retrospective’. Retrospective means that the surcharge taxes will back date to when the surcharges were initially introduced in 2016. This means that a Discretionary Trust which already owns residential land may be liable to pay the last 4 years’ worth of surcharge taxes.

 

What can you do

You can avoid the surcharge or apply for a refund of any surcharge already paid if you review and amend your Trust Deed before 31 December 2020 in accordance with the legislation to:

1. exclude all foreign persons as eligible beneficiaries of the trust; and
2. prevent any variation or amendment to the exclusion provision, so that a foreign person cannot in the future be added as an eligible beneficiary.

The fact that a foreign person is an eligible beneficiary will be sufficient for the Trust to be deemed a foreign person by the State Revenue Office of New South Wales and liable for the surcharges.

The Discretionary Trust Deed should be amended even if:

1. none of the currently eligible beneficiaries are foreign persons
2. distributions are not being made to that foreign persons
3. the Trust Deed had previously satisfied the foreign beneficiary requirements; and
4. if the Discretionary Trust doesn’t currently own residential land

 

In summary:

1. Review your Trust Deed
2. Amend your Trust Deed
3. Sign the amendment before 31 December 2020
4. Submit the Trust Deed together with all variations to the State Revenue Office of NSW for confirmation that the trust is not a ‘foreign person’.

 

Please note that this Bill only relates to Discretionary Trusts that own or will acquire residential land in New South Wales.

However, we recommend that all Discretionary Trusts be amended as similar amendments are being proposed or have been made in other States and Territories.

Chamberlains Law Firm can prepare a Deed of Variation for your Discretionary Trust Deed in accordance with the legislation to avoid being liable to pay the surcharges.

When you are buying or selling a property a lot of different terms can be thrown around. Here is an easy reference guide to help you through the process:

Caveat

A Caveat is a legal claim lodged against a property by a person with an interest in the property. A Caveat will prevent a property from being sold or transferred unless the caveat is removed.

Certificate of Title/Title Deed

A Certificate of Title is the official document that identifies the owner of property or land. A Certificate of Title will also reference any encumbrances on the property, including existing mortgages and caveats.

Holding Deposit

The initial holding payment made when you find a property you are interested and your offer has been accepted. The holding deposit is usually paid directly to the Selling agents trust account as a promise to the Seller, but is usually refundable if you don’t proceed to enter into a Contract to purchase the property.

Exchange Date/Contract Date

The exchange date (‘Contract Date’) is the date that the counterpart contracts signed by each of the the Seller and Buyer are “exchanged”, dated and made formally binding. You are now liable to fulfil your obligations by law as stated in the Contract of Sale. This is the date that is most referred to with regards to concessions and tax related queries.

Finance (‘Pre-Approval vs. Unconditional Approval’)

Pre-approval is the stage where your bank/lender has confirm an amount you are able to borrow, based upon your financial position. Finance is not guaranteed at this point and is conditional.

Unconditional Approval is the stage where your bank has carried out all the necessary enquiries, including a valuation on the property it is taking as security, and has agreed to formally lend you the funds required for your purchase. This stage is “unconditional” because it doesn’t have any further conditions attached to it, except for the execution of documentation.

Off the Plan

An ‘Off the Plan’ property is a unit or house that has not yet been built, and you have agreed to buy based off the Developers’ plans.

Settlement/Completion Date

The date that funds are handed over to the Selling party and the property ownership transfers from the seller to the buyer.

Special Conditions

‘Special Conditions’ are specific terms and clauses listed in your Contract of Sale that outline the particulars of what is required from the Buyer and Seller during the Contract period.   These conditions are “additional” clauses to the standard/prescribed conditions usually contained in a Contract for Sale, and are intended to address specific issues which are not covered by the standard conditions, or which are unique to your contract.

Transfer of Land

The ‘Transfer of Land’ document is a Land Title document that is lodged for registration with the Land Titles Office immediately following settlement to have the Buyer registered as the new property owner on title.

 

Interested in learning more on Property Law?

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The Release of Deposit Conundrum

Legislative reforms affecting the accountability of company directors of have been introduced with the passing of the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 (the Bill). The Bill has been passed by both houses and is currently pending royal assent. Amendments will apply to the Corporations Act 2001 (Cth) and the Corporations (Aboriginal and Torres Strait Islander) Act 2006.

The amendment comes as a response to the problems arising from illegal phoenixing activity, one issue of which can be attributed to the previous lack of standardisation for the identification of company directors. The Bill has introduced the requirement for all company directors to have a Director Identification Number (DIN) for verification and accountability purposes.

The Bill provides a 12-month transitional period for all directors to obtain a DIN. The DIN will allow directors to be traced throughout changes in positions, relationships and companies. The amendments also introduce new civil and criminal penalties, such as infringement notices for individuals failing to meet their DIN requirements.

Previously, the identity of directors did not need to be verified by ASIC. Individuals were required to provide personal identification details, however this allowed for slight variations to be made and possibly false identities to remain undetected. The requirement for all directors to have a DIN reduces this risk of intentional variations being made by directors to operate dishonestly across different companies.

These changes are part of the Government’s legislative package to revise the Commonwealth registers and a positive step to combat illegal phoenixing.

 

 

 

The recent decision of the Supreme Court of New South Wales in In the matter of RCR Tomlinson Ltd (administrators appointed) and Ors [2020] NSWSC 735 (RCR Tomlinson) has clarified the characterisation of certain types of assets in a construction liquidation as circulating and non-circulating assets. This decision impacts the returns recoverable for employees and secured lenders owed to by the RCR Tomlinson Group.

Background
The RCR Tomlinson Group (RCR Group) comprised of 41 companies and more than 3,800 employees. Each of the companies within the group operated construction-related businesses. Administrators were appointed on 2 November 2018 who then were appointed as liquidators on 1 May 2020.

The Commonwealth Government (Commonwealth) paid several millions of dollars of employee entitlements under the Fair Entitlements Guarantee scheme. The RCR Group also had secured debts owed to lenders including the Commonwealth Bank of Australia (Secured Lenders). There was a shortfall within the RCR Group to pay both the Commonwealth and Secured Lenders in full. In order to discern the returns owed to the Secured Lenders and the Commonwealth, it was necessary to identify the RCR Group’s assets as circulating or non-circulating.

Legal principles

1.1        Snapshot Date:

(a)        The date the administrators are appointed is the relevant date for assessing whether property is a circulating or non-circulating asset (consistent with s 443 of the Corporations Act 2001 (Cth) and the approach taken in Re Amerind which governs the payment of priority employee claims by receivers).

1.2        Classification of a circulating asset:

(a)        The classification of an asset as a circulating or non-circulating asset depends on whether the WIP permutation was an ‘account’ under s340(5) of the PPSA; and

(b)        Whether a ‘monetary obligation’ under s 10 of the PPSA exists on the administrators’ appointment date.

(i)          ‘Monetary obligation’ means an:

(A)        existing legal obligation to pay
(B)        an identifiable monetary sum
(C)        at an ascertainable future date (Strategic Finance Ltd (in liq) v Bridgman [2013] NZCA 357))

(c)         The asset must be characterised as ‘property’ for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA). E.g. If it is a ‘mere expectancy’ there is no existing contractual right, thus will not constitute ‘property’.

1.3        WIP Permutations that classify circulating assets:

(a)        WIP Permutation 1: Goods or services under a contract are completed pre-appointment date, but payment is subject to issuance of an invoice, which occurs post appointment as does payment of the invoice;

(i)          Any dispute of amount to be invoiced is governed and determined by the contract.

(b)        WIP Permutation 2: Goods or services under a contract are completed pre-appointment date, but payment is subject to certification or approval and issuance of an invoice, both of which occur post appointment as does payment of the invoice.

(i)          Any dispute of certification and amount invoiced can be determined under the contract, thus constituting an account under s 10 and 340(5)(a) of the PPSA.

1.4        WIP Permutations that do not classify circulating assets:

(a)        WIP Permutation 3: Goods or services under a contract are commenced before and are partly performed at the Appointment date but only completed after the Appointment Date, following which an invoice is issued and then paid;

(i)          There is only mere a possibility that a monetary obligation might arise.
(ii)         There was no contractual basis for apportionment of payment between pre and post appointment of goods and services, meaning no monetary obligation existed and no account.

(b)        The following categories likely do not give rise to ‘monetary obligations’ hence are not circulating assets.

(i)          WIP Permutation 4: A contract for goods or services is executed pre-appointment date, but the goods or services are all provided post appointment date, at which time an invoice is issued and paid;
(ii)         WIP Permutation 5: An umbrella contract is in place pre-appointment date, but the order for the goods or services is only placed post appointment date, at which time the goods or services are provided and an invoice then issued and paid.

 

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