Sapphire Legal & Conveyancing

14/02/2023

Had an interaction with the police and need to go to court? Call us today for an obligation free chat on your next steps. 5616 8413.

09/02/2023

The principal solicitor of a not-for-profit family law firm discusses the corrosive forces complying family law practices to act against the best interests of the families they are supposed to serve,

17/11/2022

Looking to buy or sell a property? Contact us for fixed price conveyancing where a solicitor handles your matter from start to finish.
Call us today on 5616 8413.

SLC is a full service law firm with a focus on quality legal support, client focus, communication and transparency and above all, cost effectiveness. Principal solicitor, Rob Taylor, has over 18 years of top tier and international legal experience.

14/11/2022

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Looking to buy or sell a property? Contact us for fixed price conveyancing where a solicitor handles your matter from start to finish.

Call us today on 5616 8413.

SLC is a full service law firm with a focus on quality legal support, client focus, communication and transparency and above all, cost effectiveness. Principal solicitor, Rob Taylor, has over 18 years of top tier and international legal experience.

11/11/2022

Property Developers Watch Out!

Property developers relying on artist impressions and marketing materials to sell off-the-plan developments, may find themselves in hot water after a recent decision in the Federal Court.

The decision in Ripani v Century Legend [2022] FCA 242 raises concerns for a developer’s liability in their marketing materials being a ‘misrepresentation’ under Australian Consumer Law (‘ACL’). The case has also highlighted the ineffectiveness of developers trying to rely on disclaimer or exclusion clauses to mitigate their liability to purchasers.

Key issue: Misrepresentation

A developer entered into a off-the-plan contract of sale with a purchaser for a luxury apartment in Melbourne. The marketing materials and artist impressions depicted a large free spanning opening between the inside and outside living areas. However, the developer was aware that the design was incapable of being delivered due to structural constraints.

The purchaser claimed that the marketing material relied upon to sell the apartment was a misrepresentation and deceptive under the ACL. The developer sought to rely on the exclusion clauses contained within the marketing material, to protect it from the purchaser’s claim.

The Court found that the purchaser was misled by the marketing materials provided, as it would not have entered into the contract if they did not believe the apartment was to be constructed as illustrated. This resulted in the court ordering the rescission of the contract of sale.

What does this means for developers?

Developers must be aware of ACL implications when they are marketing and selling off-the-plan and must ensure:

marketing materials don’t contain features or representations that are likely to mislead or deceive;
if a development contains bespoke or visual representations used to entice consumers, be satisfied that these designs are structurally achievable before being marketed; and
if relying on disclaimer or exclusion clauses, specifically alert consumers to any potential inaccuracies.

09/11/2022

Changes to unfair contract terms - Is your business in the firing line?

Significant changes to the unfair contract term provisions in the Australian Consumer Law (foreshadowed in our earlier article), including potential financial penalties, will soon apply. If you are doing business in Australia, you should consider reviewing your standard form contracts to ensure they comply with the much stronger provisions.

The new laws will take effect 12 months from the date they are formally enacted, which is expected to take place shortly – so an effective due date for compliance is end-of-month October 2023. This “grace” period is intended to provide businesses with reasonable time to review the terms of their standard form and small business contracts, and to make the necessary amendments.

Offences and penalties for unfair contract terms

Currently, a term which is found to be unfair is simply not valid or enforceable, and only a person who suffers loss as a result of the term is entitled to receive damages to compensate the loss. There is no penalty for including or relying (or purporting to rely) on such a term.

In contrast, significant fines may be incurred for breach of the new offence provisions as it will be prohibited tomake a contract which contains an unfair contract term; and/or, rely on, or purport to rely on, an unfair contract term.

For corporations, the maximum financial penalty for contraventions of the Australian Consumer Law (including unfair contract terms) will increase to the greater of:

AU$50 million (an increase from AU$10 million);
three times the value of the benefit to the company if able to be determined (unchanged); or
30% of the corporation’s turnover during the offence period (an increase from 10% of the annual turnover in the 12 months prior to the breach).
Individuals now face a maximum penalty of AU$2.5 million (an increase from AU$500,000). While penalties will not apply to existing contracts, an offence will be committed in respect of all new contracts and renewals or variations of existing contracts.

Expanded definitions of “small business contract” and “standard form contract”

A business commits a separate offence in respect of each unfair contract term identified in a “small business contract” or “standard form contract”. The definitions of these terms have also been clarified, and will now capture more businesses:

the ambit of a “small business contract” now extends to businesses with fewer than 100 employees (an increase from 20 employees) or a turnover less than $10 million will now be captured as “small business contracts”; and
the meaning of a “standard form contract” now expressly applies to contracts which provide the other party with an opportunity to negotiate insignificant changes, to choose a term from a range of specified options or for a party to a different contract to enter negotiations in respect of the terms of that other contract.
Key takeaways for businesses

Businesses should prepare to review their standard form agreements for use in Australia and remove or amend any unfair terms. For example, terms of sale or terms of use agreements, licensing agreements, distribution agreements, and service agreements (such as SaaS agreements), are all examples of agreements which may be considered “standard form agreements”, depending on the relevant circumstances, and may contain “unfair terms”.

03/11/2022

Are you a director of a company? If so, time is running out to obtain your DIN and avoid hefty penalties

If you are a director you need to apply for an Australian Director Identification Number (Director ID) before 30 November 2022. If you were a director but have resigned on or after 4 April 2021, you still need to apply for a Director ID by this date.

With the deadline fast-approaching, we answer some common questions to help you navigate the application process and how you can lodge your application. Find out more about the Director ID regime and its purpose here.

1. When do I need to apply for a director ID?

When you must apply for your Director ID depends on when you first became a director of any company, relevantly:

If you are unable to apply for a Director ID within the required timeframe, you can apply for an extension to the Registrar of Australian Business Registry Services (ABRS), by downloading and completing an application form here.

2. How do I apply for a director ID?

Directors who are living in Australia can apply online for a Director ID through the ABRS website. To apply online, you need to have a myGovID account set up. Alternatively, Australian based directors who are not able to apply online using the myGovID app can call the ABRS and register over the phone (on +61 2 6216 3440).

Directors who are living outside of Australia can download and complete an application form and provide certified copies of documents that verify your identity.

The ABRS also recently published a new demonstration video to guide directors through the steps needed to apply for their Director ID online.

3. Can my accountant apply for my director ID on my behalf?

Your authorised tax, BAS or ASIC agent can help you decide if you need to apply, but they can’t apply on your behalf. Only directors can apply for their own Director ID. The reason you need to apply personally is because you must verify your identity with ABRS. If you use a tax agent, they can assist you with your records, for example, by providing you with your notice of assessment details and bank account details used for ATO refunds.

4. ​I was previously a director of a company, but have since resigned. Do I still need to apply for a Director ID?

Yes, a Director ID may still be required. If you are a director that resigned after the new laws came into effect on 4 April 2021, but have since resigned, you should still apply for a Director ID.

5. What are the director ID offences and penalties?

It is a criminal offence if directors do not apply for a Director ID on time, and other significant penalties may apply. These include:

02/11/2022

Changes to the NSW Construction Industry

The New South Wales Government has recently introduced three new bills and one accompanying regulation which aims to improve the standards and accountability of participants in the construction industry within the state. The bills, which are currently in the consultation phase until 25 November of this year, are the:

Building Bill 2022;
Building Compliance and Enforcement Bill 2022;
Building and Construction Legislation Amendment Bill 2022; and
Building and Construction Legislation Amendment Regulation 2022.

The proposed legislation aims to restore the public’s confidence in the building industry, and seeks to improve consumer protection, whether for large, small, commercial or residential projects.

These bills will repeal existing legislation, create new obligations, and broaden liability for builders, developers and other people involved in the building process with the intention of creating ‘end to end accountability’ for building work in NSW.

The Building Bill 2022

The most significant changes stem from the proposed Building Bill 2022. This bill, which will repeal and replace the current Home Building Act 1989 (NSW), is the result of five industry roundtables, two focus groups and two written submission processes. It will regulate both the residential and commercial construction industry including, among other things, the:

expansion of the statutory duty of care under the recent Design and Building Practitioners Act 2020 (NSW) to include certification and inspection of building work;
mandating documentation for variations and maximum progress payments for stages for home building works;
expansion of the term ‘developer’ to include more parties to be potentially held liable for defective works;
extending consumer protections to manufacturers of construction materials off-site and pre-fabricated buildings;
consolidation of various works certificates currently required for building works into one system;
expansion of licencing requirements, meaning that designers, engineers and building inspectors of both residential and commercial building works will require a licence moving forward;
amendment of the definition of a ‘major defect’ for the purpose of enforcing the statutory warranties for home building work (and potentially extending the limitation periods in which owners may commence proceedings); and
greater supervision of non-licence holders in respect of owner-builder work.
The Building Compliance and Enforcement Bill 2022

As the name would suggest, this bill intends to fuse the various NSW construction compliance and enforcement legislation into one consolidated framework. It will also repeal and replace the recent Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW).

The bill’s central intention is to create greater enforcement powers for industry regulators including investigative powers granted to NSW Fair Trading and for the Building Commissioner to make rectification and stop-work orders to aged care premises and residential buildings (in addition to apartment buildings, which are already regulated).

The proposed legislation will create powers that grant further ability for regulators to ‘pierce the corporate veil’. Effectively, this will mean that a company’s director, in certain circumstances (for example, failing to comply with an undertaking or rectification order), can be held personally liable for the actions of the company if the director knows the offence is being committed (or is recklessly indifferent) and did not take all reasonable steps to prevent or stop the offence being committed.

The Building and Construction Legislation Amendment Bill 2022 & the Building and Construction Legislation Amendment Regulation 2022

Finally, this bill and regulation aims to strengthen the laws which currently regulate the building and construction industry, including amending:

the Building Projects (Safety) Act 2017 (NSW) to restrict the supply of non-conforming building products, require reporting on the use of such products, and to enable regulators to ban and recall such products;
the Strata Schemes Management Act 2015 (NSW) to enable strata inspectors to raise new defects in the final inspection report, allow owners corporations to have recourse to the building bond if defects are not rectified within 90 days, and extend the period for which the bond is held to 4 years;
the Building and Development Certifiers Act 2018 (NSW) to improve training for building certifiers;
the Building and Construction Industry Security of Payment Act 1999 (NSW) to allow for review of adjudication determinations by another adjudicator and a mechanism for payment of disputed sums into trust accounts while the review takes place; and
the Environmental Planning and Assessment Act 1979 (NSW) to harmonise the definition of ‘serious defect’ with the requirements of the National Construction Code, and to place a duty on building practitioners to avoid involvement in illegal phoenixing activity.
Conclusion

Interested parties are invited to make submissions on the proposed bills up until Friday, 25 November 2022, by completing a survey or submitting more detailed written submissions via the links on the NSW government website here.

The proposed reforms, assuming the Bills are passed, will radically change the existing systems of regulation of the building industry in New South Wales. We will provide further separate detailed updates regarding the new obligations sought to be imposed under each separate Bill.

11/08/2022

More than half of Australians don’t have a will, leaving their families in potential legal hell if they die suddenly.