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A fair go for subcontractors – BIF Act amendments 2020

September 29th, 2020

Subcontractor late payments Queensland

Working in the building industry with or as a subcontractor?  This year has seen significant changes made to building industry payment laws that may affect you.

In July the Building Industry Fairness (Security of Payment) Act (“BIF Act”) was amended in the hope of improving the process for dealing with late and non-payment of subcontractors in Queensland.  The changes aim to:

  1. introduce new protections for monies in dispute;
  2. simplify trust account frameworks; and
  3. strengthen the regulatory oversight of trust accounts.

So, how is the new BIF Act achieving those goals?

  1. New protections for monies in dispute in business

The new legislation introduces security of payment reforms to better protect monies in dispute.  Now where an adjudicated amount is not paid within the timeframes required by the BIF Act, subcontractors may have recourse to a “payment withholding request”, issued to a party above the respondent in the contractual chain, in order to protect money that may be payable.  If that party does not withhold the adjudicated amount they could be liable for the amount owed to the subcontractor.

The updated BIF Act also enables a head contractor to lodge a statutory charge over the property where construction work occurred, if owned by a BIF respondent who does not pay an adjudicated amount in the required timeframe.

  1. Simplified trust account frameworks

Changes to the BIF Act promise to simplify trust account frameworks in a number of ways.  Prior to the amendments, head contractors were required to open three bank accounts for each eligible contract, including a retention account.  The changes reduce the number of accounts required to one single “project trust account”.  If a retention trust is required, a contractor is now able to hold all retentions across a number of projects in a single account.  The former “disputed funds account” has been abolished in favour of added protections for subcontractors.

The new project trust regime will be rolled out in stages to allow time to adjust to the changes, a plan that has been temporarily affected by COVID-19.  Provisions dealing with project trusts and retention trusts will not commence until “a day to be fixed by proclamation”, wording that provides the government with flexibility to work around the changing pandemic situation.  We do not expect to see full implementation of the project trust regime until at least 2023.

  1. Strengthened oversight of trust accounts

Though responsibility for oversight of project bank accounts previously lay with the principal, they have no oversight role in the new project trust regime.  Instead, the Queensland Building and Construction Commission (“QBCC“) will monitor the trust regime.  To this end, changes to the BIF Act increase the QBCC’s regulatory functions, including audit powers over trust accounts.  QBCC will, among other things, be empowered to “freeze” trust accounts, and request the provision of information about trust accounts in cases of noncompliance.  Retention trust accounts will be subject to regular independent audits.

To further assist QBCC in its monitoring and oversight role, legislative amendments to the QBCC Act have also been proposed to take effect on 1 October 2020.  These changes will introduce new penalties, including for provision to the QBCC of false and misleading information about a licensee’s financial situation, and for failure to provide a supporting statement that states all subcontractors have been paid when requested.

The changes to building industry payment laws, as they are implemented over the next few years, will significantly impact the conduct of disputes involving subcontractors.  If this is you, our experienced legal team is here to help, contact us on 4036 9700.

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Making the transition to retirement living – 4 questions you might have about manufactured home parks

April 23rd, 2020

Cairns is soon to introduce its newest (and first) land lease community, also known as a manufactured home park.  The Botanica Lifestyle Resort is the first of its kind in Cairns and a new option for those looking to make the transition to retirement living.

There are a number of options for those wanting to move into retirement living including moving into a retirement village (and the various iterations of retirement villages) or a manufactured home park.

What is a manufactured home (or a land lease community) and how is it different from other retirement living options?

One of the main differences between a manufactured home (or land lease community) and regular home ownership is that you do not own the land on which your house is placed, you rent it.

You do however own the home that you reside in, which differs from most retirement villages where you lease or licence the unit or villa that you live in.

Depending on how the home is constructed, one of the features of a manufactured home park is that you can physically move the home to another location if you wish.  That may not be practical however depending upon the characteristics of the house.

What is included?

There are a number of benefits to purchasing a home in a manufactured home park over traditional land ownership, including:

  1. the access to a community of people of a similar age and with similar interests; and
  2. various community facilities including sporting areas, parks, restaurants, pools and event spaces.

Because you actually own the home you will live in, you also have more freedom in how you keep and manage it, subject to the rules of the park.

A manufactured home is also a capital asset that you can sell in the future, and as you will own the home in the park you will be able to leave it as an asset in your will.

What rights do I have?

Manufactured home parks are governed by the Manufactured Homes (Residential Parks) Act 2003, and that act contains numerous protections for those wishing to adopt that style of living.

Among the protections is an indefinite lease period in most cases, meaning that not only can you reside at the property for as long as you want,  you have the flexibility to terminate the arrangement whenever you are ready to move on.

The legislation also requires that the operator of the park allow cooling off periods and provide extensive disclosure to you about the costs involved in living in the park, the facilities that will be provided, and your obligations when living in the park.

What happens when I am ready to move on?

When the wander bug strikes again and it is time to move on, a manufactured home can present more options than a traditional retirement village.

Depending on the construction of the home, you may choose to terminate the rental arrangement with the operator and move your home somewhere else.  You also have the option, and it may be a more  practical one, to sell the property.  Such a sale will need to involve the park operator though as they will need to consent to any new owner.

You are entitled to receive any capital gain on the sale of your property as you own it and unlike exit from a retirement village, there is no exit entitlement or lump sum payment that you need to pay to the operator when you move on.

If you wish to move on but cannot sell the property, and it is not practical to physically move the property to another location, questions may arise as to what may be done with the property.  You should carefully consider the terms of your site agreement with the operator as this will largely determine what your obligations on exit will be.

Entering into an agreement to reside in a home in a manufactured home park is a big decision and there are a number of different factors that you should consider before signing on the dotted line.  Seeking legal advice on the agreement is a must!

Our experienced commercial lawyers are able to assist with any enquiries about manufactured home parks or retirement villages so call us today on 07 4036 9700.

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Building covenants and solar panels – are there restrictions on maximising energy efficiency?

January 17th, 2020

Building covenants are common features of contracts for the purchase of properties in new residential estates.  Property developers use them to ensure that houses, fences and other improvements to be constructed by the buyer conform with the landscaping and design of the estate.  The intention is that by doing so, the developer maintains control of the product which it is selling, and buyers can buy with confidence that the other houses in the neighbourhood will be of a similar standard.

The content of building covenants varies dramatically from estate to estate.  Some are very basic and some are highly detailed and prescriptive.  Many of them control the design of houses, materials used, colour schemes and the location of solar panels and solar hot water systems.  Generally building covenants are legally binding, however, the Building Act 1975 (the “Act”) contains provisions which were introduced to encourage developers and homeowners to implement sustainable buildings and designs.  Covenants which restrict the use of energy efficient design features, such as solar hot water systems or light coloured roofs, in favour of unsustainable aesthetic designs can be unenforceable under the Act.

The  Court of Appeal recently considered the enforceability of a building covenant relating to solar panels in the case of Bettson Properties Ptd Ltd & Anor v Tyler.

The facts

In Bettson a building covenant required the buyer to obtain the seller’s consent before installing solar panels.  The purpose of this condition was to prevent the installation of visually unpleasing solar panels.

Without the seller’s prior consent, the buyer installed the solar panels on a highly visible portion of the roof.  The seller’s request to relocate the solar panels to a more discrete location was rejected by the buyer, as the alternative location would render the solar panels 20 per cent less efficient.

The seller consequently sought to enforce the building covenant in the court.

Section 246S(2) of the Act provides that where a building covenant requires a person to obtain consent before installing solar panels on a building, consent cannot be withheld if doing so would prevent the person installing the solar panels.

The question in this case was whether the seller’s restriction on the location of the solar panels prevented the buyer from installing the solar panels within the meaning of section 246S.  This question relied heavily upon the meaning of “prevent”.

At first, the buyer succeeded, with the lower court deciding that “prevent” meant ‘hinder’ or ‘impedes’ and consequently the seller’s requirement to relocate the solar panels to a less energy efficient location prevented the buyer from installing the panels.

However the Court of Appeal did not agree with the lower court and held that ‘prevent’ has the traditional meaning of ‘to stop from happening’.  Section 246S was held to only apply where withholding consent makes it ‘impossible’ or ‘impractical’ to install the solar panels, which was not the case here.

Consequently, the buyer was ordered to relocate the solar panels as required by the seller.

Implications

The decision of the Court of Appeal means that developers can impose building covenants which prevent a buyer from installing solar panels in the most efficient location on the roof.  Arguably, this is not consistent with the policy behind the housing sustainability measures in the Act, which generally prefer energy efficiency over aesthetics.  It may be that the government will change the Act in this regard.

If you are considering buying a property in a new residential estate, it is wise to ask the seller for a copy of any building covenants before you make a decision to commit to the purchase.  You should consult with your building designer or builder about the building covenant requirements to ensure that they can be met in a way which you are happy with.  Failure to consider the building covenants before you sign a contact can mean that you will be unable to build the house the you want, with the features you want after you have bought the land.

Please feel free to contact our property law department on 07 4036 9700 if you have any queries in relation to building covenants.

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A gift for consumers in time for Christmas

November 5th, 2019

With the holiday season quickly approaching, legislation extending the expiry period on gift cards to a minimum of three years provides a welcome gift for consumers across Australia.

The changes will come into effect on 1 November 2019, and as a result, new obligations will be imposed on businesses that supply gift cards (see below implications for businesses).

The key changes are that:

  1. the expiry date must be a minimum of three years;
  2. the expiry date must be clearly displayed on the gift card; and
  3. a majority of ‘post purchase fees’ are banned including activation and account keeping fees.

The expiry date must be displayed as a full date or as a period of time with the date of supply e.g. ‘this card expires 5 years after supply, supply date 01/11/2019” or “valid for 3 years from 11/19″.

These changes will come in force on 1 November 2019 and if the terms and conditions of a gift card purchased on that date do not comply with the new requirements, the terms and conditions will be voided and the new requirements automatically imposed by law.

Cards and vouchers sold before 1 November 2019 will continue to have the same expiry period and applicable fees as stated at the time of purchase.

The three year expiry period does not apply to a number of gift cards or vouchers that are:

  • able to be reloaded or topped up;
  • for goods or services available for a limited time (e.g. for a temporary pop up art exhibition);
  • supplied as part of a temporary marketing promotion (e.g. a voucher valid for one month supplied as a free bonus with a purchase);
  • donated free of charge for promotional purposes (e.g. a voucher supplied on the opening day of a store to be spent on that day);
  • sold for a particular good or service at a genuine discount (e.g. a $50.00 voucher for a service worth $100.00);
  • part of an employee reward scheme;
  • part of a customer loyalty program; or
  • second-hand gift cards.

Implications for businesses

To ensure that businesses comply with these new gift card laws, the Australian Consumer Law Commission recommends that businesses should:

  • update gift card terms and conditions on the cards themselves, any promotional material and websites;
  • update internal systems, training, manuals and policies;
  • place signage on gift card displays and at the counter; and
  • note the changes on the receipt issued with the purchase of a gift card.

Penalties

There are substantial fines for non-compliance of up to $6,000.00 for individuals and $30,000.00 for businesses and companies.

If you have any doubt about your compliance obligations, or whether these new laws will apply to you, please do not hesitate to contact our experienced team on 07 4036 9700.

Happy holiday shopping!

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Lost trust deeds – a forgotten saviour?

August 20th, 2019

Lost, destroyed or missing trust deeds can sometimes lead to tears, misery and heart attacks.  But is the situation as dire as it seems if a document, crucial to organising your financial affairs, disappears?

Maybe it is the advent of trusts as a useful financial planning structure, or the rise of the self‑managed super fund (“SMSF”) (read our previous article on self-managed super funds here), but in recent times, well recent for the law, there have been a number of cases which are resurrecting a seemingly forgotten principle of law, the presumption of regularity.

The presumption of regularity is that deeds and other documents will be presumed to have been validly executed and made, unless there is some contrary evidence.  The cases below illustrate the point, and highlight that the presumption is only applied in very limited circumstances, often where there is a substantial lack of evidence.

Sutherland v Woods[1]

In Sutherland v Woods there was a question as to whether a SMSF had been validly established.  The trust deed could not be located, and because there was no deed, Woods claimed that it was not a valid SMSF.

Sutherland sought to rely upon the presumption of regularity and contended that despite the absence of the deed, the fund was valid.  The subsequent conduct of the parties, including their bank and the ATO, led to the conclusion that the SMSF must have been correctly established, even if the deed was now missing.

Importantly, the parties did all they could to locate a signed copy of the original deed, contacting Westpac, the ATO and titles office to see if any of those entities held a signed copy.  These enquiries were unsuccessful, and the parties were forced to rely upon an unsigned copy of the alleged deed.

The court ultimately agreed with Sutherland, and held that although a true signed copy of the deed was unavailable, that did not prevent the inference that the trust had been validly created.

The missing deed would have been conclusive evidence that the SMSF was established correctly.  In absence of the deed, Sutherland was instead required to prove the validity of the SMSF through other means, such as subsequent dealings.

It was apparent that through the actions of the parties, and third parties, relying upon the existence of the deed, the trust had always been intended as a superannuation fund and had been validly created as such.

The absence of the missing document did not invalidate the fund, and indeed the evidence in the circumstances led to the presumption that the establishing deed must have existed at some point.

Re Thomson[2]

In Re Thomson, the deed establishing the trust was not an issue.  Instead, there were two subsequent amending deeds, one was missing and the other unsigned.

The first deed, which was missing entirely, purported to remove two of the original trustees.  The second deed, which was unsigned, referred to the first deed and amended the trust so that if both of the remaining trustees were to pass away, the trust would vest in the estate of whomever survived the longest.

The dispute arose around the validity of the two amending deeds. If they were not valid, then the two trustees who were allegedly removed would be entitled to the property of the trust.  If both were valid, then the trust would vest in the estate of Thomson.

Such matters around the validity of documents when it comes to the administration of an estate are not uncommon, and is the context in which the presumption is commonly applied.

In determining the validity of the irregular deeds, the court again looked at similar factors as in Sutherland.

In particular, the court relied on the fact that since the removal of the trustees, only the two remaining trustees had been signing off on the trust’s financial reports, indicating that the deed existed, and the parties had been acting as if it were the true state of affairs.

The court found that the two irregular deeds could be presumed to be regular because the evidence indicated that was probably the correct and true situation.  The executor was therefore entitled to include the trust property in the deceased’s estate.

So what is the presumption?

So now that we have reviewed a couple of examples of the presumption, when should you be considering relying upon it?

The presumption will only apply in limited circumstances, it should not be considered a cure-all for any trust problems you have.

The courts have held that before applying the presumption:

  1. a considerable amount of time must have passed since the event happened;
  2. there is no other way to prove the existence or validity of the missing deed;
  3. there is some other extrinsic evidence indicating the deed, or missing instrument was valid and people have since acted as if it were valid; and
  4. the presumption must only be applied to a procedural or formal detail.

Point 3 above is clearly identified in the two cases.  The evidence from the bank, the ATO, and financial reports all indicated the legitimacy of the actions being undertaken, even where the deed was not located.

The presumption should not be thought of as applying in all situations, indeed, its limited application throughout the last 50 years suggests it should only be thought of as a last resort.

In many circumstances, simply claiming the deed is lost, without exhausting all possibilities will not be enough.

Before relying on the presumption, consideration should be given to some of the following alternatives:

  1. preparing a deed of rectification;
  2. relying on the trustee powers in the Trusts Act;
  3. for a SMSF, where practicable, rolling the assets over to another SMSF which does not have any issues with documentation; and
  4. last but certainly not least, no effort should be spared in locating the original deed.

Of course, these options are not always available, some may rely on the original trustees still being available, or simply be inapplicable in the circumstances.

Lost or irregular trust documents often have circumstances unique to each case.  For that reason, when irregularities are detected, efforts should immediately be made to correct them.

In most cases involving the presumption, it is not raised until there is a crisis, for example the breakdown of a marriage or the administration of a deceased estate.  By taking proactive steps, most of these situations, and possibly expensive litigation, can be avoided.

The experienced team at Miller Harris can help you, or your clients in dealing with lost or irregular deeds.  Many situations will require a bespoke solution, and our experience across many areas of the law enable us to come up with the right solution to your problem.

Should you have any questions or enquiries, please do not hesitate to contact Ashley Jan on 07 4036 9700, or ashleyjan@millerharris.com.au.

[1] Sutherland v Woods [2011] NSWSC 13 ( http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2011/13.html ).

[2] Re Thomson [2015] VSC 370. ( http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSC/2015/370.html )

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How to separate your property and finances following separation

June 12th, 2019

One of the first questions that we are often asked by clients going through a separation is, how do we separate our property and finances and protect ourselves?

It is important for separating couples to understand that there are only two ways in which you can finalise your financial relationship, so that it is binding and recognised by the courts, namely:

1. by court order; or

2. by entering into a binding financial agreement.

Separating couples are able to obtain a court order to record any agreement they reach by consent, by submitting an application for consent orders. This is a relatively inexpensive way to formally end your financial relationship. Consent orders will only be made if the judge considers that they are just to both parties. A court order may also be made during court proceedings, if one party commences proceedings because the parties are unable to reach an agreement. The majority of our matters are resolved through negotiation or mediation and then finalised through the consent order process.

The other option is a binding financial agreement, which must be drafted and executed in accordance with the family law legislation and regulations.

If you do not formalise your property settlement using one of the methods mentioned above, then the Family Courts will not recognise your agreement and it will not be binding. This is true even if the agreement has been recorded in a deed or statutory declaration or other alternative legal form. For this reason it is important that you have an experienced family lawyer assist you in formalising your property settlement agreement. There are other benefits for couples in finalising their property matters, including receiving an exemption on paying transfer duty on the transfer of any property between spouses.

If you are going through a separation and require assistance in separating your finances and property, contact our expert Cairns and Mareeba family lawyers today on 07 4036 9700 or 07 4092 3555 to book in for an initial consultation where we will discuss how to finalise your property matters and the four step approach used by courts when determining the overall division of your assets and liabilities.

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Certificates of title – soon a thing of the past

April 16th, 2019

An exciting development in property law has been announced.  After much anticipation, the Queensland Government has now passed legislation which will mean that from 1 October 2019, original paper certificates of title (also known as title deeds) for property in Queensland will no longer have any legal effect.

The titles of property in Queensland have been maintained electronically for many years and the dispensation of paper certificates of title marks one of the final changes to fully electronic titling.  While older certificates of title can be retained for historical value, many a grey hair is likely to be avoided from the stress of trying to locate lost certificates after many years or explaining the inadvertent destruction of certificates.  Currently the process for dispensing with a paper certificate of title is a fairly arduous process involving extensive enquiries, advertising and declarations.

Prior to 1994, every property in Queensland had a paper certificate of title issued for it.  This certificate was required in order to deal with property, by sale, transfer, mortgage or otherwise.  However, from 1994 the Queensland Titles Registry converted to an electronic titles register and has not automatically issued paper titles for property since then.  A paper certificate could only be obtained on request and for a fee.

Where a paper certificate of title is issued, it must be produced when any dealings with the land are to be registered with the Queensland Titles Registry.  Without it, a dealing affecting land (where a paper certificate is issued) cannot register.  It is an important document, that by itself, evidences ownership of property.  As a result, lost or stolen certificates can (and historically have been) a huge concern for owners of property, particularly when trying to complete a sale of their property within the time frames of a standard conveyance.

More recently, the Titles Registry has been working to phase out the paper certificate of title.  When a certificate of title has been issued for a property and a dealing lodged for registration (such as a transfer of ownership which required the deposit of the original paper title), the original certificate would be destroyed and not reissued.

As a result many properties no longer have paper certificates issued today.

Please feel free to contact us on 07 4036 9700 if you have questions about how these changes will affect your property if you have a paper title for your property issued.  Miller Harris Lawyers would be happy to assist you with all your property law questions.

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Online business and retail shop leasing – is it a retail shop?

March 26th, 2019

If a tenant conducts an online retail business, but uses premises predominantly for producing or storing goods, is it a retail shop?  The Victorian Civil and Administrative Tribunal (“VCAT”) recently considered this question.

The Retail Shop Leases Act in Queensland and its equivalent across other states in Australia (“Retail Shop Legislation”) imposes additional tenant protections in leases of retail shop premises.  These additional protections do not apply to premises that are not considered retail shops under the legislation.  The concept of what is a retail shop is not always a straightforward determination to make, as illustrated in the decision of VCAT in Bulk Powders Pty Ltd v Seicon Pty Ltd (Building and Property).

Bulk Powders Pty Ltd v Seicon Pty Ltd (Building and Property) [2018] VCAT 2000

Bulk Powders Pty Ltd (the tenant) leased premises in an industrial area in Victoria where it developed and produced sports nutrition and supplement products.  While the tenant sold the items it produced as a retail business, the sales were mostly online, except in limited circumstances where some customers could collect products by appointment.  The tenant sought a declaration from VCAT that the premises was a retail shop.  The reason the tenant did this was that the lease included outgoings which would not be permitted to be recovered by the landlord if the premises were a retail shop.

The Retail Shop Legislation defines retail premises as premises that are “used wholly or predominantly for the sale or hire of goods by retail or the retail provision of services”.

Upon reviewing the law on this point, VCAT considered that to be retail premises, it was necessary that the premises have a retail characteristic of being open to the public, which in this instance, it was not.  The premises were used for predominantly production and storage of products and even though those products were sold online, that did not make the premises retail premises.

With so many businesses being conducted online today, this is an important clarification for both landlords and tenants about when the Retail Shop Legislation will apply to a leasing arrangement.  The consequences of the Retail Shop Leases Act applying to a lease are significant, for example, as illustrated in this case, the inability of the landlord to recover certain types of outgoings and charges.  There are also further disclosure obligations on the landlord that, if not complied with, can give the tenant extensive rights to terminate a lease.  This decision also goes to show that what does constitute a retail shop is not always a straightforward answer and there are a number of considerations in making a determination about this.

You can access the full decision of VCAT here.

Our team at Miller Harris Lawyers has extensive experience in commercial and retail leasing in Cairns and surrounding areas.  We would be happy to assist you with all of your leasing requirements.  Please contact our office on 07 4036 9700.

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It’s not just the purchase price – costs to consider when buying a house

January 10th, 2019

One of the most important questions for buyers to ask when considering purchasing a house is – can I afford it?

When purchasing a property and planning your budget, it is more than just the purchase price that you should anticipate.

You should keep in mind the following costs:

  1. Transfer duty (stamp duty)

If you are buying a property for the first time, or buying a property to live in, there are concessions available for transfer duty.  However, in many instances duty will be payable on the transaction and it is not cheap!

You can calculate a cost estimate of how much duty you will need to pay using the online calculator from the Office of State Revenue.  This will tell you how much you should be setting aside.

The calculator can be accessed here.

  1. Bank fees and charges

It is common for banks to approve a loan and then take their fees from the amount of the loan.  This means the amount they will actually provide for you to purchase the property, may be less than the amount you have been approved for.

Loan fees vary from bank to bank and can depend a lot on what type of loan you are taking out.  You should ask up front for an estimate of the bank fees associated with the loan to make sure you have enough to cover all the costs at settlement.

You may also be required to pay for a valuation for the property.  In some instances your bank may require a valuation to decide whether they will lend you money for the purchase and how much they are willing to provide.

  1. Land registry fees

The Queensland Government charges a fee (which changes based on purchase price) to register the change of ownership of a property and to register a mortgage.  This fee is paid by the buyer so don’t forget to factor this in to your budget as well.

You can calculate the lodgement fees here.

  1. Adjustments

Usually in a conveyancing matter, the outgoings for the property, such as council rates, body corporate levies, rent and water usage, are apportioned at settlement.  For outgoings already paid, this means the buyer makes a further payment to the seller (by way of an adjustment at settlement) to cover their share of costs.

Depending on the time of year you are purchasing and the particular outgoings, this could add a few hundred dollars to the overall amount required for settlement.

  1. Insurance

Under most contracts, the risk in the property passes to the buyer from the day after the contract is entered into, not when settlement actually happens.  This means that buyers need to take out insurance as soon as the contract is signed, not when it’s time to move in.

This is another upfront cost that is important to remember.

  1. Legal fees

We always recommend that you engage a lawyer to assist you with the conveyancing process.  While this is an additional cost, buying a house is often the biggest financial investment you will make in your life, so it pays to engage a professional to assist you through the process, so it is done right.

At Miller Harris Lawyers we have an experienced property law team that can assist you with the conveyancing process.  Please feel free to contact us for further information.

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BIF Legislation has commenced!

December 20th, 2018

A reminder that chapter 3 and chapter 4 of the Building Industry Fairness Act 2017 (“BIF”) commenced on 17 December 2018.  BIF now applies to all payment claims for construction work, regardless of the contract date.  BCIPA only applies to claims made before 17 December 2018.

Key changes:

  1. No requirement to include the words “This is a Payment Claim under the… Act”; an invoice or a ‘request for payment’ which describes the construction work and states the amount sought will be a valid payment claim.
  2. A respondent who receives a payment claim must either:
    • pay the claim in full by the due date; or
    • issue a payment schedule by the due date.
  1. A fine may be imposed for a failure to respond or pay.
  2. No ‘second chance’ to issue a payment schedule.
  3. New time limits for payment schedules and adjudication applications.

A snapshot of the important timeframes:

Payment schedule

Payment due date

The earlier of the period in the contract or 25 business days.

As provided for in the contract[1] or 25 business days.

Adjudication application 1. Payment schedule less than payment claim:  30 business days from payment schedule.
2. No payment schedule: 30 business days from the later of payment due date or payment schedule due date.

3. Failure to pay full amount scheduled: 20 business days after due date.

Particularly around the Christmas period, take care to calculate your dates correctly by checking your contract and the definitions of a business day in BIF.

For further details or assistance with giving or responding to a payment claim, or making or responding to an adjudication application, please contact our Senior Associate, Rowan Wilson on 4036 9700.

[1] Caution : A provision in a construction management trade contract or subcontract providing for payment of a progress payment later than 25 business days (QBCC Act 67U), or a provision in a commercial building contract providing for payment of a progress payment later than 15 business days (QBCC Act 67W) will be void, making the due date for payment under BIF 10 business days.

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