Recently, the Supreme Court of South Australia has cast doubt on the execution requirements under section 127 of the Corporations Act 2001 (Cth) (Act). Section 127(1) provides for valid execution of a document by two of a company’s directors, one director and one secretary, or its sole director and secretary. This eliminates the need for a seal. A document executed by a party under section 127(1) allows a person to assume that a document has been duly executed under section 129 of the Act.

The case of Bendigo and Adelaide Bank Limited v Kenneth Ross Pickard & anor [2019] SASC 123 (KRP) illustrates how execution defects can cause the legal obligations within a deed to be made unenforceable, particularly how they may arise when purporting to execute a deed under section 127 of the Act.

A deed is a form of contract where consideration is not required to be given for the obligations on the parties to be legally binding, meaning there are stricter requirements for their execution than a regular agreement. A deed is intended to be a solemn promise from both parties that they intend to be bound as opposed to a general bargain. They are often used for guarantee of loans and settlement of litigation matters for this reason.

The Act and the Relevant Loan Deed

In KRP, a loan document was signed purportedly in accordance with the above section 127 requirements. The directors of KRP did not pass a resolution that detailed that the loan deed would be signed by e-signature, only that the document would be executed. An unknown person then affixed the directors’ digital signatures to the document.

The Court found that the loan document did not meet the requirements of section 127 of the Act, since the directors were not involved in the production or authentication of the document. The loan deed was accordingly ruled to be invalid, and the guarantee unenforceable by the plaintiff.

The case calls into question whether electronic signing is a valid method of signing on behalf of a corporation at all, and whether any document that may be signed in counterparts must still have both officers of a company signing the one hard copy document.

Justice Stanley said at [70] that ‘there is good reason to consider there must be a single, static document rather than a situation where two electronic signatures are sequentially applied to an electronic document… it is insufficient that two signatures appear on different counterparts or copies of the same document because no one counterpart or copy would be properly executed by the company under section 127(1).’

What about the Loan Taking Effect as a Standard Agreement?

For commercial agreements, there is a rebuttable presumption that the parties intend to enter into a legally binding relationship, and this is inferred through the parties’ conduct after signing of an agreement.

A deed that is not executed by a party can become binding as a regular commercial agreement (i.e. where there is consideration provided) in appropriate cases.

Justice Stanley considered this question and held that since the directors of the defendant:

(a) did not authorise the execution of the document as anything other than a deed; and

(b) did not provide any consideration except for the guarantees for the debt which had already incurred;

an agreement could not be made out.

Conclusions

As of KRP, it is now unclear as to whether a director signing and then emailing a scan of a document (i.e. signing the document in counterpart) is adequate for the purposes of section 127(1).

It is critically important that any deed is checked for valid execution. The ramifications of defective execution are more pronounced when the document is being executed as a deed. In general, the consequences of irregularities in signing a legal document can result in significant issues when disputes arise, as in the case of KRP.

In this regard, the following procedures should be undertaken by corporate parties to a deed:

(a) where possible, the signatures of each individual director or secretary of a company that is a party should be made on the same static document; and

(b) corporate resolutions for the entry into the documents should be drafted which resolve that the company will execute the document as a deed in accordance with section 127(1) of the Act, and authorising any electronic signatures or separate counterpart signatures as necessary.

Being sure to observe and pay attention to any signing processes is a key measure in deeds being enforceable by their parties and not being rendered invalid by a Court in future.

Good corporate governance is important for businesses of all sizes, from small businesses to large publicly traded companies. Most recently and notably, the financial services sector was subject to the Banking and Financial Services Royal Commission, which demonstrated many areas where the assessment for risk with certain non-financial practices was not adequate – leading to a large-scale review into potential misconduct of many institutions.

In light of that Royal Commission, a taskforce was instituted by ASIC to explore corporate governance measures taken by several companies. The Corporate Governance Taskforce (Taskforce) aimed to facilitate good corporate governance in the financial services sector for ‘a fair, strong and efficient system.’

ASIC have now published their first-year report on the Taskforce’s operation and specifically regarding non-financial risk and executive remuneration (Report). The Report recommends that non-financial risks to companies should be more emphasised and considered by company directors when determining the direction of the company.

Non-financial risks that companies may become exposed to as a result of their trading include:

(a) operational risk – any risk that arises as a result of inadequate processes, employee error, or vulnerabilities in any system;

(b) compliance risk – the risk of facing legal action or regulatory sanctions as a result of not complying with regulations applicable to the business (such as those relating to safety or ethics);

(c) conduct risk – the risk of illegal or unlawful behaviour being engaged in by the company’s employees or managers that are directly detrimental to its performance; and

(d) environmental risk – any adverse effects on the environment around the company as a result of its operations (such as emissions, pollutants, and resource depletion).

Failure to adequately account for the non-financial risks associated with a company’s operations will often result in greater exposure to negative consequences from regulators and a diminished ability to appropriately deal with adverse effects when they do arise.

Risk appetites

The Taskforce found that the boards of the companies surveyed did not adequately account for the non-financial risks described above (even with special risk evaluating committees), and that their processes for evaluating those risks were not prioritised or well resourced.

The Taskforce also found that the limits of the risk appetite levels set by the committees of the companies surveyed were often overstepped, particularly in relation to compliance risk, also due in part to the fewer metrics of quantification available for non-financial risks.

Information flows

Information flows relate to how the directors, employees and management communicate about risks affecting the business with each other.

The Report detailed how risk information was relayed to the directors of the surveyed companies and found that many companies were burying key risk information in large documents in an order that does not priorities their importance or the size of the risk. This meant that many risks were not addressed correctly or discovered by the company’s directors until consequences had arisen.

The Taskforce also discovered that many meetings that were held to discuss and consider risks that had been identified were occurring behind closed doors and were not minuted, creating information flow difficulties.

Risk committees

Committees for separate aspects of the direction of a company are often formed from the board of directors – including those dedicated to evaluating risk. This is a corporate governance measure as recommended by Recommendation 7.1 of the ASX Corporate Governance Recommendations.

The Report detailed how risk committee meetings did not occur frequently enough and under informal circumstances and without enough information (an issue linked to the information flow issue described above).

Conclusion

While the companies surveyed by the Taskforce were major financial services corporations (such as Westpac, NAB, ANZ and IOOF Holdings), the lessons that can be taken away from the Taskforce’s Report can be applied at any corporation’s size.

All company directors should make the effort to identify and quantify any risks associated with their business, be they financial or non-financial, and seek to minimise them as much as possible by seeking expert advice.

• Have you been appointed as an executor in someone’s Will?
• Are you aware of your duties and obligations when acting as an executor of an estate?
• Do you know how to protect yourself from claims by beneficiaries or third parties?

As an executor you are responsible for ensuring that the assets of a deceased estate are dealt with in accordance with the Will AND current legislation.

Executors have significant responsibilities and obligations which include  much more than simply distributing assets to beneficiaries. The executor has absolute control and management of the estate and its assets. Depending on the estate, there can be a lot of paper work involved in administering the  deceased estate, including an application to the Supreme Court for a grant of representation, disposing of or dealing with asset holders, and in some cases defend any claims made against the deceased estate.

For example, what do you do if a beneficiary in the will is bankrupted? What do you do when the beneficiaries want  to distribute the estate differently to the instructions provided in the Will?

A consideration of the current law and court cases is required to ensure that any solution or estate distribution protects the executor from any future claims.

The myth that a beneficiary has the same rights and responsibilities as the  executor of a Will is incorrect. An executor and a beneficiary of an estate have different roles, responsibilities and obligations. An executor is burdened with significantly more risks and responsibilities than a beneficiary. For example, a beneficiary may want the executor to distribute the assets of the estate immediately or distribute the estate in a particular manner. Blindly following a beneficiary’s request could expose an executor to a claim whilst the beneficiary faces minimal or even no consequences.

In addition, an executor is accountable to the beneficiaries of the estate and in some cases third parties. If a beneficiary or third party suffers a loss or if they have any grievances in the way the executor has administered the estate, the executor may be sued and may be held personally liable.

Understanding your obligations and the relevant law is extremely important as an executor. It is therefore important that an executor engages the services of the relevant professionals to help them administer the estate and to advise them of what an executor can or cannot do, should or should not do and how to protect themselves from future claims or liabilities.

 

Interested in learning more about Wills & Estates?

Click on our articles below to find out more:

The Fundamentals: Wills and Estates

Deceased Estates and Bankrupted Beneficiaries

Errors That People Can Make – Even When Using a Will Kit

Relationships are complicated and marriages even more so, but when they end, they have the potential to place your life in a stall.

Relationships mean different things to different people but it is important to understand the legal implications behind the classifications.

Divorce solicitors are your go-to professionals to ensure that an often heart-breaking and life changing process doesn’t get made worse by painful and tedious legal proceedings.

De-Facto Relationship?

A de-facto relationship under Australia Law is a relationship in which a couple of any make up (the notable exception being a couple that is related by family cannot be a de facto couple) lives together on a genuine domestic basis. This definition is uniform across all of Australia’s states and territories.

To make out a de-facto relationship, there are two chief indicia:

1. Be together for a period of two years without separation (However, if there are children or substantial contributions to joint property, exceptions are made to this rule); and
2. Be living together on a genuine domestic basis.
   1. This second indicia requires the considerations of multiple additional sub-factors including:
      1. Whether the relationship was sexual in nature;
      2. Financial dependency;

• Degree of mutual commitment to a shared life;

1. Whether the relationship was registered in a state or territories Registry of Birth, Death and Marriages;
2. Any ownership in property, whether joint or not and its use;
3. Children and their care and support; and

• Public aspects of the relationship, such as whether known individuals consider the parties to be in a genuine domestic relationship.

The laws surrounding de-facto relationships and their breakdown are dealt with under the Family Act 1975 (except in Western Australia which adopted the Family Law Act 1997 (WA)). The laws are designed to ensure that appropriate legislation protects those couples that are not yet married or do not intend to be married by ensuring that each matter is examined and assessed on in light of its specific circumstances.

Unlike marriage, de-facto relationships do not need to be mutually exclusive, meaning a person may be in two separate de-facto relationships. Again, unlike marriages, a de-facto separation does not need be registered and a de-facto couple does not get divorced.

What is Marriage in Australia?

Under the Marriage Act 1961, Australia defines marriage as the union of two people to the exclusion of all others, voluntarily entered into for life.

Divorce in Australia?

The definition of divorce is Australia is very plain – the termination of a marriage. What used to be called a divorce certificate is now referred to as a ‘divorce order.’

Australia’s divorce regime reflects the stance that the legal system should not further burden parties that are likely already experiencing emotional distress.

You may apply for a divorce order online as Australia employs a “no fault” regime, meaning that there does not need to be proof that one parties caused the breakdown of the marriage. More simply, there are two main indicia for a divorce order to be granted:

1. The parties must be separated for a period of 12 months (you may be separated but living together, however, you will still need to prove that the relationship is over); and
2. The parties must demonstrate that the marriage has broken down, not why it broke down.

If a couple has been married for a period less than two years, the courts will require they attend counselling first.

What is Annulment in Australia?

The term annulment is most commonly used in the USA and what most people believe annulment to be is not at all what it really is. Many people believe that divorce ends a marriage as if to close a chapter in a book, but an annulment somehow burns the book and gives you a brand new one.

Contrary to popular belief, an annulment is not a solution to hasty and impulsive elopers that wish to make it as if the marriage never happened.

In Australia, a decree of nullity declares a marriage null and void and is quite rare. There are few reasons that a marriage will be declared annulled:

1. One or both parties were already married;
2. The relationship is prohibited (e.g. the marrying of siblings);
3. The legal requirements were not met at the time of the marriage (e.g. the celebrant was unqualified);
4. One or both of the parties was under 17, and they did not have special court approval or there was no provision of informed consent by an appropriate third party; and
5. One or both of the parties was forced into the marriage.

The distinction between an annulment and a divorce brings out the legal contractual nature of marriages. A divorce represents the cessation of a contract whereas an annulment makes it that the marriage was never properly executed and therefore, any obligations under it are null and void.

There is no questioning, whether you’re in a de-facto relationship or marriage, the emotional distress of a relationship breakdown is compounded by the common disputes regarding the division of assets and parental arrangements for children.

Even in circumstances where divorcing or separating parties agree of all matters, it is essential that you engage a lawyer to review or draft the agreement as the courts will need to be satisfied that the agreement is ‘just and equitable.’ This is where the expertise of divorce lawyers is essential.

Relationships are one of the many joys in the world and the breakdown of a relationship, whether de-facto or a marriage is often met with great sadness and emotional turmoil. Even if it doesn’t relationships also form the basis of interpersonal contracts, whether discussed between partners or not.

The importance of not only capable and experienced solicitors, but passionate and empathetic professionals cannot be understated.

Finding the right guide to help you navigate such treacherous waters can be the key to you moving on from the breakdown of a relationship.

This article continues our series on motor accident compensation in Queensland. You can read about the modern motor accident compensation scheme in Part 2 found here.

Generally speaking, the procedural requirements under the Motor Accident Insurance Act 1994 (MAI Act Qld) are less onerous than under the newer personal injury reforms. Some of these requirements are:

s 34 – Time for Reporting Accident to Police

Unless a police officer attends the scene, a motor accident that gives rise to a claim must be reported to a police officer as soon as practicable, in accordance with s 34 of the MAI Act (Qld). This police accident report is required for the Notice of Accident Claim Form (NOAC), and a QP number is typically needed. Police may not attend unless there are serious injuries or multiple vehicles reported to 000. It is good practice to lodge a written report and obtain the police reference number.

s 37 – Time for and Notice of Making of Claims

1. A Notice of Accident Claim Form (“NOAC”) must generally be given within 9 months after the motor accident, or 1 month after consulting a lawyer, whichever occurs first.
2. A claim is made by giving notice:
   a. to the insurer of the at-fault vehicle, or
   b. to the Nominal Defendant when the at-fault vehicle is unidentified or uninsured.
3. The requirement to give notice to the driver does not apply where that person is deceased or cannot be located.

Late Claims (Equivalent to s 73)

1. A claim may be made later than the prescribed period if the claimant provides a reasonable excuse for delay. The explanation is provided in the first instance to the insurer.
2. Delayed onset of symptoms may be given in any such explanation.
3. If a late claim is made, the claim cannot proceed unless:
   a. the insurer accepts the explanation, or
   b. the claimant applies to the court for leave to proceed, or
   c. the Nominal Defendant’s requirements are satisfied (in unidentified vehicle cases).
4. The insurer loses the right to object if they do not, within the statutory timeframe, reject the claim for delay or request a further explanation.
5. If proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.
6. The application must be made within the time allowed under the Uniform Civil Procedure Rules and cannot be made if the insurer has already lost the right to reject for delay.
7. The court must dismiss the proceedings unless satisfied the claimant has a reasonable excuse for the delay.
8. A reference to the insurer includes the Nominal Defendant for unidentified or uninsured vehicle claims.

Approved Notice of Claim Form (Equivalent to s 74)

1. A Notice of Accident Claim Form must:
   a. be in the form approved by the Motor Accident Insurance Commission (MAIC), and
   b. set out or be accompanied by all particulars and information required by that form.

s 45 – Duty of Claimant to Provide Relevant Particulars

1. A claimant must provide the insurer with all relevant particulars about the claim as soon as practicable after the claim is made.
2. MAIC may approve a form for providing these particulars.
3. Relevant particulars include:
   a. details of injuries sustained in the motor accident,
   b. disabilities and impairments resulting from those injuries, and
   c. economic and other losses claimed as damages.

This allows the insurer to properly assess the claim.

s 46 – Medical and Other Examination of Claimant

A claimant must comply with any reasonable request by the insurer:

1. to undergo a medical examination by a medical practitioner nominated by the insurer,
   b. to attend functional or vocational assessments, or
   c. to undergo other assessments in accordance with MAIC guidelines,

so long as the examination or assessment is not unreasonable, unnecessarily repetitious, or dangerous.

Compulsory Conference Requirements (Equivalent to ss 89A–89C)

1. The parties to a claim must participate in a compulsory conference as required under the Personal Injuries Proceedings Act 2002 (Qld) before the claim can proceed to litigation.
2. A claim cannot be commenced in court unless the parties have:
   • held a compulsory conference, and
   • each made a mandatory final offer (“MFO”).
3. A party may still proceed if they were ready and willing but the other party refused or failed to participate.
4. A compulsory conference includes:
   • the claimant or a person authorised to settle on the claimant’s behalf, and
   • a person authorised by the insurer to settle.

 

Exchange of Documents Before the Compulsory Conference

1. Before the conference, each party must provide all documents on which they intend to rely.
2. Documents not exchanged cannot be relied upon in litigation unless the court is satisfied that their probative value outweighs any prejudice.
3. An insurer is not required to provide documents if they reasonably suspect the claim is fraudulent.

 

Time Limits for Starting Proceedings (Equivalent to s 91)

1. Proceedings may not be commenced until:
   • a compulsory conference has taken place, and
   • each party has made a mandatory final offer.
2. A claim may be exempted from the conference requirement where:
   • the insurer has refused to negotiate,
   • limitation periods are close to expiring, or
   • other statutory exceptions apply.

Regulation of Costs

Maximum costs for legal services and medico-legal services relating to motor accident claims are regulated under the Motor Accident Insurance Act 1994 and the Motor Accident Insurance Regulation 2018, to prevent excessive transaction costs affecting CTP premium levels.

Special Benefits for Children

Queensland’s CTP scheme provides early treatment and rehabilitation benefits for children injured in motor accidents through insurer-funded programs, regardless of whether fault is established. This replaced the former requirement to prove negligence before receiving support.

Catastrophic Injury Support (Equivalent to NSW LTCS)

The National Injury Insurance Scheme Queensland (NIISQ) was introduced to provide treatment, rehabilitation and attendant care services to people who suffer serious personal injuries in motor vehicle accidents in Queensland, regardless of fault.

Interaction With Statutory Benefit Schemes

Queensland’s scheme includes pre-court procedures, early rehabilitation programs, insurer obligations, and defined benefits. The no-fault rehabilitation model supports injured people in the early stages of recovery. As in NSW, the definition of injury categories can significantly affect entitlements.

Read more about motor accident compensation in Queensland in Part 4 of the series, “Specific Features of the MAI Act,” available here.

This article continues our series on motor accident compensation in Western Australia. You can read about the modern motor accident compensation scheme in Part 2 found here.

Generally speaking, the procedural requirements under the Motor Vehicle (Third Party Insurance) Act 1943 (WA) are less onerous than under newer national personal injury schemes. Some of these requirements are:

 

Reporting the Accident to Police (Equivalent to s 70)

Unless a police officer attends the scene, a motor accident that gives rise to a claim must be reported to a police officer as soon as practicable, as required under the Road Traffic Act 1974 (WA) and Road Traffic Code 2000 (WA).

Police usually will not attend a motor accident unless there are serious injuries or multiple vehicles reported to emergency services. It is not uncommon for Police not to enter details when a person attends a station to report an accident. It is good practice to lodge a written report and obtain the police reference number.

 

s 29 – Time for and Notice of Making Claims 

1. A claim must be made as soon as practicable after the motor accident.
2. A claim is made by giving notice:
   a. to the Insurance Commission of Western Australia (ICWA), which underwrites the WA CTP scheme, or
   b. to the relevant insurer or person if ICWA directs otherwise.
3. The requirement to give notice to the person against whom the claim is made does not apply if the person is deceased or cannot be located.

 

Late Making of Claims 

1. A claim may still be accepted late if the claimant provides a reasonable excuse for the delay. The explanation is provided first to ICWA.
2. Evidence as to delayed onset of symptoms may be included in any explanation.
3. A late claim cannot proceed unless:
   a. ICWA accepts the explanation,
   b. an appropriate authority grants leave to proceed, or
   c. the matter falls within a category open to exemption.
4. ICWA may lose the right to object to delay if it does not reject the notice or seek further clarification within the appropriate timeframe.
5. If court proceedings are commenced on a late claim, ICWA may apply to the court to have the proceedings dismissed due to delay.
6. An application to dismiss cannot be made if ICWA has already lost its right to object.
7. The court must dismiss the proceedings unless satisfied that the claimant has a reasonable excuse for delay.
8. A reference to the insurer includes ICWA.

 

Approved Notice of Intention to Claim

1. A Notice of Intention to Make a Claim must:
   a. be in the form approved by ICWA, and
   b. set out or be accompanied by all particulars required by that form.

 

Duty of Claimant to Provide Relevant Particulars 

1. A claimant must provide ICWA with all relevant particulars as soon as practicable after the claim is made.
2. ICWA may approve a form for providing these particulars.
3. Relevant particulars include:
   a. full details of injuries sustained in the motor accident,
   b. all disabilities or impairments arising from the injuries, and
   c. economic and other losses claimed as damages.

These particulars allow ICWA to make a proper assessment of the claimant’s entitlement.

 

Medical and Other Examination Requirements 

A claimant must comply with any reasonable request by ICWA:

1. to undergo a medical examination by one or more medical practitioners nominated by ICWA,
   b. to undergo rehabilitation, functional capacity, or attendant-care assessments, or
   c. to undergo assessments in accordance with ICWA guidelines,

so long as the examinations are not unreasonable, unnecessarily repetitious, or dangerous.

 

Pre-Litigation Conferencing Requirements

1. The parties to a claim must participate in a pre-litigation settlement conference as required under ICWA’s pre-action procedures.
2. A matter cannot proceed to litigation unless a settlement conference has occurred, except where:
   • one party was willing to participate and the other refused or failed, or
   • the matter qualifies for exemption.
3. A settlement conference includes:
   • the claimant or their authorised representative, and
   • a person authorised by ICWA to settle the claim.

 

Exchange of Documents Before Settlement

1. Before the settlement conference, each party must provide copies of all documents on which they intend to rely.
2. Documents not exchanged may be excluded unless the court accepts that the probative value outweighs prejudice.
3. ICWA is not required to disclose documents where it suspects the claim is fraudulent or not made in good faith.

 

Time Limits for Referring Claims

1. A claim cannot be referred to the court until the settlement conference has concluded and each party has made a settlement offer.
2. A claim may be referred at any time if:
   a. pre-litigation requirements do not apply,
   b. an exemption applies, or
   c. the matter is referred for limited judicial issues.

 

Regulation of Costs

Legal costs and medico-legal expenses are regulated under the Motor Vehicle (Third Party Insurance) Act 1943 (WA) and ICWA guidelines, to ensure that transaction costs do not unreasonably affect premium levels.

 

Catastrophic Injuries Support Scheme 

The Catastrophic Injuries Support Scheme (CIS Scheme) provides treatment, rehabilitation and lifelong care services for people catastrophically injured in motor vehicle accidents in Western Australia, regardless of fault. The scheme is administered by ICWA.

 

Interaction with Statutory Benefit Scheme

The WA scheme includes early treatment benefits, pre-litigation procedures, insurer obligations, and defined injury categories. As in NSW, the classification of injuries can significantly affect entitlements.

 

Read more about motor accident compensation in Western Australia in Part 4 of the series, “Specific Features of the WA CTP Scheme,” available here.

This article continues our series on motor accident compensation in the ACT. You can read about the modern motor accident compensation scheme in Part 2 found here.

Generally speaking, the procedural requirements under the Motor Accident Injuries Act 2019 (MAIA ACT) are less onerous than earlier ACT arrangements. Some of these requirements are:

 

s 55 – Time for Reporting Accident to Police

Unless a police officer attends the scene, a motor accident that gives rise to a claim must be reported to a police officer as soon as practicable, as required under s 55 of the MAIA (ACT).
Police generally only attend accidents involving serious injuries or multiple vehicles. It is common for police not to record details when a person later attends a station. It is good practice to lodge a written report and obtain a police reference number.

 

s 61 – 63 – Time for and Notice of Making of Claims

1. An injured person must give early notification of the accident within 13 weeks of the motor accident, and a full claim notification is generally required within 3 months.
2. A claim is made by giving notice:
   a. to the CTP insurer of the at-fault vehicle, or
   b. to the Nominal Defendant (ACT) if the vehicle is unidentified or uninsured.
3. The requirement to give notice to the driver does not apply if the person is deceased or cannot be located.

 

Late Making of Claims 

1. A claim may be made after the statutory periods if the claimant provides a reasonable explanation for the delay. The explanation is provided in the first instance to the insurer.
2. Evidence of delayed onset of symptoms may be included in any such explanation.
3. If a late claim is made, the claim cannot proceed unless:
   a. the insurer accepts the explanation, or
   b. the matter is reviewed, or
   c. an exemption applies for certain categories of claimants.
4. An insurer loses its right to object if it does not request further information or reject the explanation within the statutory timeframes.
5. If court proceedings commence on a late claim, the insurer may apply to have the proceedings dismissed on the ground of delay.
6. An application to dismiss for delay must be made within the time permitted under the ACT court rules and cannot be made if the insurer has already lost its right to object.
7. The court must dismiss the proceedings unless satisfied that the claimant has a reasonable explanation for the delay.
8. A reference to the insurer includes the ACT Nominal Defendant.

 

Approved Claim Notification Form (Equivalent to s 74)

1. A Claim Notification Form must:
   a. be in the form approved by the ACT Lifetime Care and Support Commissioner / MAIA Authority, and
   b. include all particulars required by that form.

 

s 80–82 – Duty of Claimant to Provide Relevant Particulars

1. A claimant must provide the insurer with all relevant particulars as soon as practicable.
2. The Authority may approve a form for providing these particulars.
3. Relevant particulars include:
   a. details of all injuries sustained in the motor accident,
   b. disabilities and impairments arising from those injuries, and
   c. economic and other losses being claimed.

These particulars allow the insurer to assess the claim properly.

 

s 101 – Medical and Other Examinations

A claimant must comply with any request by the insurer:

1. to attend a medical examination by a medical practitioner nominated by the insurer,
   b. to attend a rehabilitation, functional, vocational, or attendant-care assessment, or
   c. to undergo an assessment under the Motor Accident Injuries Guidelines,

provided the request is not unreasonable, unnecessarily repetitious, or dangerous.

 

Mandatory Conferencing 

1. The parties must participate in a compulsory conference before the claim can be referred for further assessment or litigation.
2. A claim cannot proceed unless the parties have participated in the conference, except where:
   • one party was willing and the other refused or failed to participate, or
   • an exemption applies.
3. A compulsory conference includes:
   • the claimant, the claimant’s guardian or authorised representative, and
   • a person authorised by the insurer to settle the claim.

 

Exchange of Documents Before the Compulsory Conference

1. Each party must provide the other with a copy of all documents on which they propose to rely.
2. Documents not provided cannot be relied upon unless the tribunal or court is satisfied that their probative value outweighs any prejudice.
3. The insurer is not required to provide documents if it reasonably suspects the claim is fraudulent.

 

Time Limits for Referring Claims

1. A claim cannot be referred for formal assessment or court proceedings until the compulsory conference has concluded and both parties have made settlement offers.
2. A claim may be referred at any time if:
   a. a statutory exception applies,
   b. the compulsory conference requirement has been waived, or
   c. the dispute concerns only an exempt matter.

 

Regulation of Costs

Legal costs and medico-legal expenses are regulated under the MAIA (ACT) to ensure that transaction costs do not unreasonably affect premiums or accessibility of benefits.

 

Special Benefits for Children

The ACT scheme offers treatment, rehabilitation and care benefits for children injured in motor vehicle accidents regardless of fault, providing support without requiring proof of negligence.

 

Lifetime Care and Support (ACT)

The Lifetime Care and Support Scheme (ACT) provides treatment, rehabilitation and attendant care services to people very seriously injured in motor vehicle accidents in the ACT, regardless of fault. The scheme is administered by the ACT LTCS Commissioner.

 

Interaction With Statutory Benefit Scheme

The ACT scheme includes early treatment benefits, insurer obligations, compulsory conferencing, injury categories, and defined no-fault supports. As in NSW, the definition of injury categories can significantly affect entitlements.

 

Read more about motor accident compensation in the ACT in Part 4 of the series, “Specific Features of the MAIA,” available here.

This article continues our series on motor accident compensation in NSW. You can read about the modern motor accident compensation scheme in part 2 found here.

Generally speaking, the procedural requirements under the Motor Accidents Compensation Act 1999 (MAC Act) are less onerous than under the new Motor Accidents Injuries Act 2017 (MAIA). Some of these requirements are:

s 70 – Time for Reporting Accident to Police

Unless a police officer attends the scene, a motor accident that gives rise to a claim must be reported to a police officer by or on behalf of the claimant within 28 days after the motor accident. This is the police accident report requirement. See section 70(1) of the MAC Act.

Police usually will not attend a motor accident unless there are serious injuries or multiple vehicles reported to 000. It is not uncommon for Police not to enter details at the Police station when a person attends to report an accident. It is good practice to lodge a written report and be sure to detail a COPS report number.

 

s 72 – Time for and Notice of Making of Claims

1. A claim must be made within 6 months after the relevant date for the claim. The relevant date is the date of the motor accident to which the claim relates unless the claim is made in respect of the death of a person, in which case the relevant date is the date of the person’s death.
2. A claim is made by giving notice of the claim as follows:

1. in the case of a claim against a person whose insurer is a third-party insurer, to the person’s insurer,
   b. in any other case, to the person against whom the claim is made.

1. The requirement under subsection (2) (only in so far as it is a requirement to give notice of a claim to the person against whom the claim is made and without affecting the requirement to give notice to the insurer) does not apply if:

1. that person is dead; or
   b. that person cannot be given notice.

 

s 73 – Late Making of Claims

1. A claim may be made more than 6 months after the relevant date for the claim under section 72 (in this section called a late claim) if the claimant provides a full and satisfactory explanation for the delay in making the claim. The explanation is to be provided in the first instance to the insurer.
2. Evidence as to any delay in the onset of symptoms relating to the injury suffered by the injured person as a result of the motor accident may be given in any such explanation.
3. If a late claim is made, the claim cannot be referred for assessment under Part 4.4 unless:

4. the insurer has lost the right to reject the claim on the ground of delay; or
   b. a Claims Assessor has, on the assessment of a dispute as to whether a late claim may be made in accordance with this section, assessed that the claimant has a full and satisfactory explanation for the delay in making the claim; or
   c. the claim is referred only for a certificate of exemption from assessment under Part 4.4.

1. The insurer loses the right to reject a late claim on the ground of delay if the insurer:

1. does not, within 2 months after receiving the claim, reject the claim on the ground of delay or ask the claimant to provide a full and satisfactory explanation for the delay; or
   b. does not, within 2 months after receiving an explanation for the delay, reject the explanation.

1. If court proceedings are commenced on a late claim, the insurer may apply to the court to have the proceedings dismissed on the ground of delay.
2. An application to have proceedings dismissed on the ground of delay cannot be made more than 2 months after the statement of claim is served on the defendant and received by the insurer and also cannot be made if the insurer has lost the right to reject the claim on the ground of delay.
3. On an application to have proceedings on a late claim dismissed on the ground of delay, the court must dismiss the proceedings unless satisfied that the claimant has a full and satisfactory explanation for the delay in making the claim.
4. In this section, a reference to an insurer includes a reference to the person against whom the claim is made.

Note: The combined effect of sections 72 and 73 is as follows:

A claim generally must be made within 6 months after the date of the accident or the date of death. If, however, a claim is made more than 6 months after the date of the accident or death, a full and satisfactory explanation for the delay in making the claim must be provided.

Section 96 provides that a dispute about whether a late claim can be made may be referred to a Claims Assessor.

 

s 74 – Form of Notice of Claim

1. A Notice of a claim under this Part must:

1. be in the form approved by the Authority, and
   b. set out or be accompanied by such particulars and information as may be required by that form.

 

s 85A – Duty of Claimant to Provide Relevant Particulars of Claim

1. A claimant must provide the insurer of the person against whom the claim is made with all relevant particulars about the claim as expeditiously as possible after the claim is made.
2. The Authority may approve a form to be completed by claimants in connection with the provision of particulars in compliance with this section.
3. For the purposes of this section, relevant particulars about a claim are full details of:

1. the injuries sustained by the claimant in the motor accident; and
   b. all disabilities and impairments arising from those injuries; and
   c. any economic losses and other losses that are being claimed as damages, sufficient to enable the insurer, as far as practicable, to make a proper assessment of the claimant’s full entitlement to damages.

 

s 86(1) – Medical and Other Examination of Claimant

A claimant must comply with any request by the person against whom the claim is made or the person’s insurer:

1. to undergo a medical examination by one or more medical practitioners nominated by that person or insurer, or
   b. to undergo a rehabilitation assessment, an assessment to determine functional and vocational capacity or an assessment to determine attendant care needs, by an assessor nominated by that person or insurer, or
   c. to undergo an assessment in accordance with Motor Accidents Medical Guidelines,

Not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.

 

s 89A – Parties Required to Participate in Settlement Conference

1. The parties to a claim must participate in a settlement conference as soon as practicable after the insurer makes an offer of settlement to the claimant under section 82.
2. A claim cannot be referred to the Authority for assessment under this Part until the parties have participated in a settlement conference.
3. A party can however refer a claim for assessment if a Claims Assessor is satisfied that the party is ready and willing to participate in a settlement conference but the other party has refused or failed to participate despite having had a reasonable opportunity to do so.
4. A settlement conference is a conference, the purpose of which is to settle the claim, in which the following persons participate:

1. the claimant, the claimant’s guardian or some other person authorised by the claimant to settle the claim on the claimant’s behalf,
   b. a person authorised by the insurer to settle the claim on the insurer’s behalf.

 

s 89B – Parties to Exchange Documents Before Settlement Conference

1. Before the parties’ settlement conference, each party to the claim must provide the other party or parties to the claim with a copy of all the documents on which the party proposes to rely for the purposes of the assessment of the claim under this Part.
2. If a party does not provide a copy of a document before the parties’ settlement conference, the document (and any information contained in the document) is not to be considered or otherwise taken into account by a Claims Assessor for the purposes of the assessment of the claim under this Part unless the Claims Assessor admits the document to assessment on being satisfied that the probative value of the document substantially outweighs any prejudicial effect it may have on another party.
3. An insurer is not required to provide a copy of documents under this section if the insurer suspects on reasonable grounds that the claim is fraudulent or otherwise not made in good faith.

s 89C – Settlement Offers to Be Made if Claim Not Settled

1. If the parties participate in a settlement conference but the claim is not settled, each party must make an offer of settlement within 14 days after the settlement conference concludes.
2. A claim cannot be referred to the Authority for assessment under this Part until each party has made the required offer of settlement.
3. An offer of settlement must include a schedule of damages sufficient to explain the manner of calculation of the damages to which the offer relates.
4. A party who has made the required offer of settlement can refer the claim for assessment if more than 14 days have elapsed since the settlement conference concluded and a Claims Assessor is satisfied that the other party has refused or failed to make the required offer of settlement.

 

s 91 – Time Limits for Referring Claims

1. A claim may not be referred for assessment under this Part unless a period of 28 days has elapsed after each party to the claim has made an offer of settlement as required by section 89C.
2. However, a claim may be referred for assessment under this Part at any time if:

1. Division 1A (Document exchange and settlement conference before claims assessment) does not apply to the claim (as provided by section 89E), or
   b. a provision of Division 1A allows the claim to be referred for assessment under this Part without the parties having participated in a settlement conference or without each party having made the offer of settlement required by section 89C, or
   c. the claim is referred for assessment by way of referring the claim for a certificate of exemption from assessment under this Part, or
   d. a Medical Assessor has (under section 132(3)) declined to make an assessment of the degree of permanent impairment of the injured person.

Regulation of Costs

Maximum costs for the provision of legal services and medico-legal services relating to motor accident claims are regulated under the MAC Act. These provisions seek to ensure that transaction costs associated with the Motor Accidents Scheme do not unreasonably contribute to the cost of CTP premiums.

Introduction of the Special Benefit for Children

The children’s special benefit provides the necessary treatment, rehabilitation and care to all children under 16, who are injured in car accidents, regardless of who was at fault. The introduction of the children’s special benefit was a significant change to the previous fault-based scheme where a child had to prove they were injured by the fault of the driver to be able to make a claim.

Lifetime Care and Support for the Very Seriously Injured

The Lifetime Care and Support Scheme was introduced in 2006 for children and in 2007 for adults to provide treatment, rehabilitation and attendant care services to people who are very seriously injured in motor accidents in NSW. Services are available regardless of who caused the accident. The scheme is administered by icare Lifetime Care and is funded by a levy collected through Green Slips.

The changes introduced by the MAIA give to the CTP scheme some of the features of the worker’s compensation scheme. The no-fault principle was introduced under the 1999 MAC Act in relation to blameless accidents. That principle was expanded under the 2017 MAI Act which is based on no-fault entitlement to limited statutory benefits, to which I shall return. Briefly, at-fault drivers are entitled to weekly compensation and treatment, for a maximum of 26 weeks post-accident. The same restrictions apply to innocent motor accident victims who suffer minor injuries. As we shall see, the devil is in the detail of the definition of Minor Injury. The traditional actor’s admonition to break a leg takes on a whole new meaning.

Read more about Motor Accident Compensation in NSW in part 4 of the series, “Specific Features of the MAIA”, available here.

The NSW State Government has recently introduced State Revenue Legislation Further Amendment Bill 2019 (Bill) into Parliament, which contains a number of provisions that could have a major impact on NSW property owners.

Currently, where a residential property in NSW is owned by a foreign person or foreign corporation, the owner is liable for an additional 8% surcharge purchaser duty and an additional 2% surcharge land tax. Until now this wasn’t a problem for most Australian citizens, however the new guidelines as to what counts as a foreign beneficiary contained in the Bill could change that.

The Changes

The Bill stipulates that unless a trust deed contains a clause that specifically excludes the distribution of income to foreign beneficiaries, that trust will be treated as foreign for the purposes of the surcharges. Furthermore, these surcharges taxes apply retroactively at a rate of 0.75% for the 2017 land tax year, and 2% from the 2018 land tax year onwards.

In order to be exempted from the surcharges, you need to provide the appropriate documentation confirming the foreign status of your discretionary trust by 31 December 2019. Failing to do this could result in any landholdings in your discretionary trust being liable for the additional surcharge tax which could be significant.

Recommendation

If you have a discretionary trust which either currently holds, or you plan to acquire property with, then we recommend you come see us as soon as possible to take the following actions:

1.  Review your trust deed to ensure the necessary exclusions clauses are contained within the deed;

2.  If required, update your trust deed to include these exclusion clauses; and

3.  Lodge a return along with a copy of your trust deed to the NSW Revenue office to confirm your foreign status.

Failing to meet the 31 December 2019 deadline could result in an immediate tax liability being created back to as early as 2017.

 

Interested in learning more on Corporate & Commercial Law? 

Click our recent articles below to find out more:

Principles To Remember When Interpreting Terms Of Commercial Contracts

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Making a Will is the best way to ensure your wishes are observed and to prevent potential disputes regarding your Estate and affairs. It also provides security for loved ones and can help avoid unnecessary and costly complications at the time of your death. However, there is more to ensuring your loved ones are provided for, and avoiding disputes, than just having a Will.

Just documenting your wishes without regards to the current law can lead to costly issues and disputes for your estate in the future. Therefore, it is important to consider your wishes together with the law around trusts and deceased estates. Understanding your unique circumstances is  essential to ensuring that your wishes are accurately and properly documented.

You may believe that what you want to happen to your estate is ‘simple’ and can easily be documented in your Will. However not all instructions and wishes are achievable without complex legal consideration and other supporting documents.

For example, a recent client wanted to leave his entire estate to one of his children and a nominal amount to the others. When questioned why, it was discovered the client believed that by leaving the other children a nominal amount in his will it would  prevent them from making a claim on his estate.  He was promptly advised that was not true. This client needed detailed advice and additional documents as part of his estate planning.

Accordingly, you may require the expertise of a lawyer in ‘planning your estate’ as opposed to just drafting a Will. If you have any of the following you may need estate planning advice in addition to a Will:

• Do you have a blended family?
• Are you excluding a child, spouse or dependent from your Will?
• Are you concerned about asset protection and taxation benefits for your beneficiaries?
• Do you have jointly held assets you want to gift to another person?

 

Interested in learning more about Wills & Estates?

Click on our articles below to find out more:

The Fundamentals: Wills and Estates

Deceased Estates and Bankrupted Beneficiaries

Errors That People Can Make – Even When Using a Will Kit