The short answer is the ‘the company behind the digital platform’. For example, Instagram, Facebook and Twitter.
But first, what are digital assets?
You may not know this, but your Facebook and Instagram accounts are ‘assets’. They may or may not add monetary value to your estate.
What happens to all your emails, picture and blogs when you are gone? Do you even care?
What if your family is left with awkward invitations and messages to you? If you do not care, easy.
If you do care, then what should you do about it?
There is currently no legislation dealing specially with digital assets, so your estate is left to rely on contract law to deal with your digital assets. A digital asset is a contractual agreement between you and the digital platform provider. What happens to your digital content is governed by the terms of the contractual agreement that you ‘agreed’ to when you signed up for an account. But how many of us actually read through all the terms and conditions before clicking ‘accept’ or ‘agree’?
Most of the suppliers of the digital assets are located outside of Australia. Therefore, your digital contract will be exclusively governed by the contractual law of another country.
Some of these contracts have terms and provisions about what happens if you die, some do not. Of the ones that do, your family, next of kind and executors will still have to go through a foreign process to be able to access your digital accounts. They may need to rely upon the contents of your Will in order to have legal rights to do this.
Digital assets do not fall within the traditional definition of ‘property’ to be disposed of in your Will. Therefore, if you wish to specifically gift your digital asset you will need to address this carefully to avoid any disputes after you die. If you have significant digital assets which may have some value, either now or in the future, you should include provisions for your digital assets in your Will.
At Chamberlains Law Firm we offer assistance and guidance to our clients to provide advice about how to deal with digital assets from an estate planning perspective. Speak to us today to discuss your situation.
Unlike New South Wales, Western Australia does not have a general statutory cooling-off period for off-the-plan residential strata contracts. WA also does not have a general seller disclosure regime for residential property transactions. Instead, disclosure obligations depend on specific statutory requirements and the terms negotiated between the parties. However, the Strata Titles Act 1985 (WA) does impose specific disclosure obligations for strata titles contracts, including off-the-plan sales.
Before a buyer signs an off-the-plan strata contract, the seller must provide a Disclosure Statement containing prescribed details about the proposed strata titles scheme, including:
This disclosure must be provided before the buyer signs the contract.
Failure to comply gives the buyer potential statutory remedies, including avoidance.
WA does not give buyers a cooling-off period. Instead, buyers have a right to avoid the contract if:
This protects buyers from excessive delays in registration where the development is stalled or fails to progress.
The right to avoid the contract is not a cooling-off period, it applies only if registration does not occur within the statutory timeframe.
WA legislation does not mirror NSW’s “material particulars” regime. However, under fair trading and contract law principles, buyers are still entitled to rely on the representations made in the disclosure materials.
If the final registered plan differs materially from what was disclosed, this may:
In WA, deposits under an off-the-plan contract must generally be held by:
Funds cannot be released before settlement unless the contract expressly allows it and complies with trust accounting rules.
This differs from NSW’s strict prohibition on early release of instalments.
For expert support with WA property transactions, speak with our Perth conveyancing solicitors today.
The ACT has strengthened consumer protections for purchasers of off-the-plan properties through amendments to the Civil Law (Sale of Residential Property) Act 2003 (ACT) and related regulations. These reforms aim to provide greater transparency, improved disclosure and enhanced remedies for buyers.
Before entering an off-the-plan contract, a developer must give a purchaser a Disclosure Statement including:
Failure to provide compliant disclosure allows the purchaser to rescind.
The ACT has a 5-business-day cooling-off period under the Civil Law (Sale of Residential Property) Act, applying to off-the-plan contracts unless waived.
Developers must disclose “significant variation”, including changes to:
A variation is “significant” if it will adversely affect the purchaser. Buyers may rescind if materially disadvantaged.
Developers must give written notice and provide the registered plan and required documents before settlement can occur. A minimum notice period applies under ACT law or contract terms.
If a significant variation occurs, purchasers may:
Notice generally must be given within the timeframe specified in the legislation.
Deposits must be held in a stakeholder or trust account and cannot be released to the developer until settlement, in accordance with the Agents Act 2003 (ACT).
Sunset clauses are regulated. Developers cannot rescind simply because registration is delayed unless strict notice and consent requirements are met.
Get personalised assistance with ACT property matters by reaching out to our Canberra conveyancing professionals today.
Recently, amendments to Queensland’s Land Sales Act 1984 (Qld), the Body Corporate and Community Management Act 1997 (Qld) and associated regulations have introduced strengthened disclosure obligations for developers selling off-the-plan. These changes were designed to provide purchasers with greater transparency, updated remedies and enhanced consumer protections.
A Disclosure Statement in the prescribed form must be provided to a purchaser before they sign an off-the-plan contract. The Disclosure Statement must include:
Under the Land Sales Act, purchasers may terminate the contract if the developer fails to provide a compliant disclosure statement or provides misleading or incomplete disclosure.
Queensland maintains a statutory 5-business-day cooling-off period for residential contracts under the Property Occupations Act 2014 (Qld), which also applies to most off-the-plan sales.
Developments often change during construction. Queensland law requires sellers to notify buyers of “material changes”, including changes that adversely affect the buyer’s use, value or enjoyment of the lot, such as changes to:
Buyers may terminate if materially prejudiced by the change.
Developers must provide written notice that the plan has registered and provide copies of the registered documents. Off-the-plan contracts commonly require settlement to occur within 14 days of registration unless otherwise stated.
A purchaser may terminate if they are materially prejudiced by a significant change. Compensation may also be available where expressly provided in the contract.
Deposits and instalments must be held in trust by a law practice or agent under the Agents Financial Administration Act 2014 (Qld) and cannot be released before settlement.
Developers must comply with strict requirements when relying on sunset dates. Buyers may terminate if registration does not occur by the sunset date. Certain provisions restrict a developer’s ability to terminate without consent.
If you need clear guidance on QLD property dealings, our Brisbane conveyancing team is available to help.
Recently, there have been some changes to the Conveyancing Legislation (Amendment) Act 2018 (New South Wales) and the Conveyancing (Sale of Land) Amendment Regulation 2019 (NSW). The changes, which took effect from 1 December 2019, introduced additional vendor disclosure obligations to provide purchasers of off-the-plan contracts with greater transparency, new remedies and stronger protections.
A Disclosure Statement in the approved form must be attached to an off-the-plan contract prior to being signed by the purchaser. The Disclosure Statement must include the following:
The purchaser may rescind the contract within 14 days from the contract date if the vendor fails to attach a disclosure statement, or a document required to be attached to the disclosure statement.
The cooling-off period for off-the-plan contracts has been extended from 5 business days to 10 business days.
There are often changes that occur during development. The vendor must notify purchases of changes that make original disclosures inaccurate in a ‘material particular’. These include changes that would adversely affect the purchaser’s use or enjoyment of the lot and include changes to:
However, changes to proposed lot number or street names, changes to allocation of costs of shared expenses or changes to location or area of parking or storage areas are not considered to be ‘material particulars’.
The vendor must use the approved form to notify the purchaser of any changes of ‘material particulars’ at least 21 days before the date for completion.
It is common practice for vendors to require purchasers to complete the contract 14 days from the date the purchaser is notified in writing that the plan has been registered.
However, following the changes, vendors must provide purchasers with at least 21 days’ written notice from the date the plan is registered and the purchaser is provided with a copy of the registered plan and associated documents.
The purchaser may elect to rescind the contract if they receive a notice of change of ‘material particulars’ from the vendor or the registered documents reveal an inaccuracy in a material particular that the developer has not previously notified provided that they can prove that they are materially prejudiced by the inaccuracy and would not have entered into the contract has they been aware of the inaccuracy.
Alternatively, the purchaser may make a claim for compensation (up to 2% of the purchase price) for the change.
The purchaser must make any claim for compensation or serve a notice of rescission within 14 days from the date they are served with the notice of change of ‘material particulars’ or the registered documents.
Previously, developers would request the early release of the deposit or any other instalment paid to assist in funding the project. The changes now require the deposit or any other instalment paid to be retained by the deposit holder in a trust or controlled money account. The deposit holder is not authorised to release the deposit or any other instalment paid prior to completion.
These changes have been introduced to protect the purchaser in the event the developer’s insolvency.
The new conveyancing laws extend the definition of a sunset clause to include other events which may trigger termination of the contract including the issuing of an occupation certificate. The purchaser may rescind the contract should these events not occur by the date stipulated in the contract.
For tailored legal advice on NSW property transactions, contact our Sydney conveyancing solicitors or Newcastle conveyancing team today.
Chamberlains Law Firm can proudly announce the incorporation of Yeend and Associates, a specialised Family Law Firm, into its growing practice. Family Law is now a part of Chamberlains’ full-service offer along with an additional office in Newcastle, adding to an already dynamic presence across the Eastern Seaboard.
The acquisition of the firm was official as of January 7th, 2020 and will see the expansion of the firm’s insurance, family law and insolvency offerings to Newcastle. The expansion is one of several acquisitions made within a short period of time. Over 2018-19 the firm had a continuous growth through the integration of Shaw McDonald Lawyers (Sydney) and Backhouse Legal (Canberra).
“Yeend & Associates has a natural synergy with Chamberlain’s existing private wealth and property offerings amongst others. We are excited to have their specialised and experienced team join us.” Stipe Vuleta, Managing Director at Chamberlains Law Firm about the acquisition.
Gillian Yeend, director of Yeend & Associates, also declares her enthusiasm over the integration “Yeend and Associates has always prioritised offering constructive and commercial solutions to our Family Law clients. We are excited to join the experienced Chamberlains team to broaden the legal services available to our client’s and embracing their firm culture of offering dynamic pathways to resolution.”
Chamberlains now incorporates 46 employees and has a total of three offices in Canberra, Sydney and Newcastle, presenting a wide range of legal services across ACT and NSW.
This article continues our series on motor accident compensation in NSW. You can read about the procedural requirements of the motor accident compensation scheme in part 3 found here.
The 2017 legislation sets up a very different system for motor accident injury claims. There is now a hybrid scheme providing statutory benefits for injured road users, regardless of fault, coupled with modified common law damages for injured road users, who suffer more than minor injuries, where fault is established. For a detailed examination of the new system, it is necessary to refer to the Motor Accidents Injuries Act 2017 (MAIA), the Motor Accidents Guidelines and the Motor Accidents Injuries Regulation. The new scheme under the MAIA imports many of the features of the Workers Compensation scheme, including the procedural complexities of internal and external Merit Reviews.
The MAIA introduces statutory benefits for loss of income, treatment expenses and paid care for all claimants, regardless of fault, for up to 26 weeks, unless the claimant has been charged with or convicted of a serious driving offence. This is a considerable improvement on the scheme as it was under the Motor Accidents Compensation Act 1999 (MAC Act) where payment of the lost earnings and treatment expenses was restricted.
After 26 weeks, a claimant is not entitled to statutory benefits if the motor accident was caused wholly, or mostly, by the claimant’s fault. Mostly at fault is defined as contributory negligence greater than 61%. See s 3.11(2) of the MAIA.
Victims who suffer a minor injury, as defined by s 1.6 MAIA, are limited to statutory benefits for six months. A minor injury is a soft-tissue injury or a minor psychological or psychiatric injury. An injury to a spinal nerve that manifests in neurological signs (other than radiculopathy) is regarded as a minor injury.
The clear intention of the new scheme is to limit most road-accident returns to statutory benefits. Fractures are not included in the definition of minor injury.
No damages may be awarded to a claimant if the only injuries arising from the motor accident are minor injuries (s 4.4 MAIA). There is therefore no entitlement to non-economic loss, even if the injured person’s permanent impairment is greater than 10%, if they have suffered “minor injuries” only.
An exception to this rule: treatment and care after the 26 weeks will be authorised by an insurer where it meets certain criteria as set out in the Motor Accident Guidelines, cl 5.16, including where treatment and care will improve the recovery of the claimant.
The MAIA removes entitlement to damages for gratuitous attendant/domestic care provided to a claimant, otherwise known as Griffiths v Kirkemeyer damages, as well as damages for gratuitous services which the Claimant can no longer provide to dependants, otherwise known as Sullivan v Gordon damages. Those damages are still available as a MAC Act claim by virtue of s 15B of the Civil Liability Act 2002. They are not available under the MAIA as either a statutory benefit (s 3.25 MAIA) or common law damages (s 4.3 MAIA). However, the cost incurred by a claimant in employing someone to provide attendant care services to the claimant, or to their dependants, is recoverable as paid care.
Common law damages are now limited under s 4.3 MAIA to:
A claim for damages cannot be made before 20 months of the date of accident and cannot be settled within two years of the date of accident, unless permanent impairment is greater than 10% (s 6.14(1) MAIA). No claim for damages can be settled unless the claimant has legal representation, or the settlement is approved by the Dispute Resolution Service (s 6.23 MAIA).
As we are approaching two years since the introduction of the MAIA, a flood of such claims is anticipated shortly. Settlements should be the norm as, anecdotally, insurers are not equipped to deal with the volume of claims expected.
The following can now be the subject of medical assessment (Schedule 2 MAIA):
Any medical assessment may be referred for further assessment on one occasion only (s 7.24(3) MAIA).
The CTP insurer can refuse payment of statutory benefits on the grounds that workers compensation is payable, and can require a claimant to make a claim for workers compensation if they consider, on reasonable grounds, that such a claim is reasonable (s 3.35 MAIA).
As s 151Z recovery actions arise only where there is a liability “to pay damages”, recovery actions will therefore apply only where the claimant has a non-minor injury.
A claimant may request an insurer perform an internal review concerning:
The internal review must be conducted within 14 days of such request (s 7.9(4) MAIA).
Read more about Motor Accident Compensation in NSW in part 5 of the series, “Dispute Resolution Services”, available here.
This article continues our series on motor accident compensation in Western Australia. You can read about the procedural requirements of the motor accident compensation scheme in part 3.
Western Australia has a very different system for motor accident injury claims. The WA scheme operates primarily as a fault-based model, providing common law damages for injured road users where negligence is established. There is no statutory benefits scheme equivalent to the Motor Accidents Injuries Act 2017 (MAIA). For a detailed examination of the WA system, it is necessary to refer to the Motor Vehicle (Third Party Insurance) Act 1943 (WA), associated Regulations, and the Insurance Commission of Western Australia (ICWA) Claims Guidelines. The WA system does not adopt a hybrid statutory-benefits structure and continues to rely upon traditional common law principles.
Under the WA scheme, treatment and rehabilitation expenses are recovered as part of common law damages. In contrast to NSW, there are:
Unlike NSW, Western Australia has no statutory “minor injury” threshold. In WA:
Western Australia permits the recovery of gratuitous care and domestic assistance under traditional common law principles, including:
Common law damages remain the foundation of the WA motor accident scheme. A claimant may recover:
Medical and treatment issues in WA are determined through medico-legal evidence. There is:
Western Australia operates a Catastrophic Injuries Support (CIS) Scheme under the Motor Vehicle (Catastrophic Injuries) Act 2016 (WA). This provides lifetime treatment, care and support to people catastrophically injured in motor vehicle accidents in WA. The scheme covers:
WA does not have the statutory internal review processes found in NSW. Instead, disputes are resolved through:
Read more about Motor Accident Compensation in Western Australia in part 5 of the series, “Dispute Resolution Procedures”, available here.
This article continues our series on motor accident compensation in the ACT. You can read about the procedural requirements of the motor accident compensation scheme in part 3.
The ACT legislation sets up a very different system for motor accident injury claims. The ACT operates a pure common law motor accident compensation model, providing damages for injured road users where fault is established, without a separate statutory benefits scheme for income support or treatment as exists in other jurisdictions. For a detailed examination of the ACT system, it is necessary to refer to the Road Transport (Third-Party Insurance) Act 2008 (ACT), the Road Transport (Third-Party Insurance) Regulation 2020 (ACT) and the Guidelines issued by the ACT Lifetime Care and Support Commissioner. The ACT scheme does not incorporate the hybrid statutory benefits structure used in NSW.
Under the ACT scheme, treatment and rehabilitation expenses form part of the heads of damages recoverable in a common law claim. There is no statutory 26-week entitlement, nor a no-fault early benefit period. Instead, the claimant’s entitlement to recovery of medical, treatment and rehabilitation expenses depends upon proving that another person was legally at fault for the motor accident. Insurers may choose to fund reasonable treatment voluntarily during the claims process, but this is not mandated by statute.
Issues of contributory negligence are determined according to common law principles and may reduce the claimant’s damages.
Unlike NSW, the ACT scheme does not use the concept of “minor injury”, nor does it apply statutory limits based on impairment thresholds. There is no statutory definition equivalent to s 1.6 of the NSW MAIA.
Permanent impairment may be relevant for quantifying non-economic loss, but damages for pain and suffering are recovered under common law principles rather than statutory tests. There are no restrictions that limit most accident victims to statutory benefits, as the ACT scheme continues to operate as an unmodified common law model.
The ACT allows for the recovery of damages for gratuitous attendant care and domestic assistance under common law principles consistent with Griffiths v Kerkemeyer. Damages for services which the claimant can no longer provide to dependants are also recoverable, consistent with Sullivan v Gordon. The limitations adopted in other jurisdictions do not apply.
Common law damages remain the foundation of the ACT motor accident compensation system. Damages may be awarded for:
There is no requirement in the ACT for the claimant to have a degree of permanent impairment greater than 10% before being eligible for non-economic loss. There is also no statutory prohibition on commencing or settling damages claims within specific timeframes, except for limitation periods.
Medical issues in the ACT are determined through expert medical opinion obtained by the parties. There is no statutory medical assessment service or equivalent tribunal to determine impairment, causation or treatment disputes. The parties may agree on joint medico-legal examinations, or the matter may proceed to court for judicial determination.
Expert evidence addresses:
There is no statutory limit restricting referrals for further assessment.
The Lifetime Care and Support (Catastrophic Injuries) Act 2014 (ACT) provides treatment, rehabilitation and attendant care services to people who sustain catastrophic injuries in motor accidents in the ACT, regardless of fault. Such injuries include severe spinal injuries, traumatic brain injuries, major amputations, severe burns and permanent blindness.
Participation in the Lifetime Care and Support Scheme affects recovery of certain heads of damages, as the scheme pays for treatment and care services that would otherwise form part of a common law claim.
The ACT scheme does not include the internal review processes or external dispute resolution bodies found in NSW. There is no equivalent to merit review, miscellaneous claims assessment or medical assessment procedures under the NSW MAIA.
Instead, disputes are resolved through:
Claims progress directly under the Court Procedures Rules 2006 (ACT) once pre-litigation steps are complete.
Read more about Motor Accident Compensation in the ACT in part 5 of the series, “Dispute Resolution Procedures”, available here.
This article continues our series on motor accident compensation. You can read about the procedural requirements of the scheme in part 3.
The Queensland legislation sets up a different system for motor accident injury claims. Queensland retains a predominantly fault-based CTP scheme, providing access to damages for injured road users where fault is established, coupled with limited no-fault treatment and rehabilitation support administered by insurers after lodgement of a Notice of Accident Claim Form. For a detailed examination of the scheme, it is necessary to refer to the Motor Accident Insurance Act 1994 (MAIA (Qld)), the Motor Accident Insurance Regulation 2018, and the Motor Accident Insurance Guidelines. The Queensland scheme incorporates structured pre-court procedures similar to those used in workers compensation.
Under the MAIA (Qld), insurers must fund reasonable and appropriate rehabilitation for claimants as soon as they receive a properly completed Notice of Accident Claim Form. This differs from the NSW model, as Queensland does not impose a 26-week statutory benefit period. Instead, rehabilitation obligations arise under ss 51-58 MAIA (Qld). The scheme emphasises early treatment and support even before fault is finally determined.
A claimant’s entitlement to damages depends on proving that another party caused the accident. Queensland does not apply a statutory “mostly at fault” threshold. Instead, issues of contributory negligence are assessed under common law principles and may reduce the claimant’s damages.
Unlike NSW, Queensland does not use a “minor injury” definition for restricting access to benefits. Instead, assessment of permanent impairment is undertaken using the Injury Scale Values (ISV) under the Civil Liability Regulation 2014. A higher ISV rating reflects more serious permanent impairment.
The MAIA (Qld) works together with the National Injury Insurance Scheme (Queensland) Act 2016 (NIISQ), which provides lifetime treatment, rehabilitation, care, and support for individuals who sustain serious personal injuries in motor vehicle accidents, regardless of fault. Serious injuries include spinal cord injuries, traumatic brain injuries, major amputations, severe burns, and permanent blindness.
Claimants may still pursue common law damages in addition to NIISQ participation, but damages for treatment and care already funded by NIISQ will be reduced accordingly.
Queensland law allows for recovery of gratuitous care damages under the Civil Liability Act 2003 (QLD), subject to thresholds including a minimum of six hours per week for at least six months. These restrictions replace the Griffiths v Kerkemeyer and Sullivan v Gordon frameworks referenced in NSW law. Gratuitous care is therefore recoverable in Queensland if statutory thresholds are met and the claimant proves the injury necessitates such care.
Damages available under Queensland CTP laws include:
Unlike NSW, Queensland does not use a >10% WPI threshold for eligibility for non-economic loss. Instead, general damages are awarded according to the ISV number, with the maximum ISV 100 reserved for the most severe injuries.
In Queensland, a claim cannot proceed to court until the claimant completes the compulsory pre-court procedures under Chapter 2 of the MAIA (Qld), including exchange of information, compulsory conferences, and mandatory offers of settlement.
Queensland relies on independent medical examinations arranged by the parties under ss 45 – 46 MAIA (Qld). Issues that may require medical assessment include:
There is no formal “Medical Assessment Service” as seen in NSW, but medical evidence plays an equivalent central role in determining damages.
Where workers compensation is payable, Queensland CTP insurers may apply statutory refund and reduction provisions. The interaction between workers compensation and CTP damages is governed by ss 207B – 207C Workers’ Compensation and Rehabilitation Act 2003 (Qld), rather than the NSW s 151Z regime.
Offsets and refunds apply only where damages for economic loss or treatment overlap with payments already made by the workers compensation insurer.
Queensland does not use NSW-style internal merit reviews or external CARS/DMS dispute mechanisms. Instead, the MAIA (Qld) provides for:
A claimant must comply with all steps under Chapter 2 MAIA (Qld) before commencing court proceedings.
Read more about motor accident compensation in Queensland in part 5 of the series, “Dispute Resolution Procedures”, available here.