Conveyancing over Christmas

December 20th, 2016

It’s that time of year again, the holiday season is upon us and the rush in finalising conveyancing contracts prior to the Cairns Christmas closures is ever present.

The trend in Cairns, and indeed elsewhere in Australia, is for conveyancing matters to increase exponentially leading up to the holidays and a push for settlements to go through before Christmas.  What many buyers and sellers do not realise is the impact of the holiday period on the critical dates in their conveyancing contracts.

Here are a few things to look out for and keep in mind for property settlements this time of year:

  1. Everyone wants their settlement to go through before going on holidays.  This puts increased pressure on Banks, often needing to deal with a huge influx of mortgage applications and release requests.  This is further complicated in Cairns, because Banks need extra time to mail or courier documents in readiness for settlement.  The key is to keep in contact with your bank and try to get in as early as possible.
  1. In the standard conveyancing contracts in Queensland, time is of the essence.  Accordingly it is essential that you meet finance dates, building and pest inspection dates and settlement dates.

If a finance date, building and pest inspection date or settlement date falls on a public holiday, in accordance with the standard conveyancing contracts, it will automatically pass to the ‘next business day’.  It is extremely important to keep this in mind when you are determining how much time you have to meet your obligations.  In standard conveyancing contracts, the days between 27-31 December inclusive are deemed not to be business days.  This means that a condition of the contract or the settlement date cannot be due on those days and will automatically fall due on the next business day.

For 2017, the next business day after 23 December 2016 is 3 January 2017.  The reason for this inclusion of deemed public holidays is that most law firms and the titles registry are closed in the period between Christmas and New Years. Prior to the change in the standard conditions for conveyancing contracts, it was common for parties to negotiate extensions or bring forward settlements to ensure that it would not fall on a date in this period.

  1. Somewhat confusingly the same does not apply in the case of cooling off periods.  As the cooling off period is imposed by statute, the period is not covered by the standard conditions in conveyancing contracts, but by legislation.

As a result the non-public holidays between Christmas and New Years are counted in the calculation of the 5 business day cooling off period.  If you are looking at signing a contract to purchase a property over the next week you should keep this in mind because it is likely that the cooling off period for your contract will expire during the time that most law firms and real estate agencies are closed.  If you are considering that you will need to terminate a contract in the cooling off period and the expiry of that period will fall in the holiday period, you should contact your lawyer or conveyancer to discuss your options now.

If you have any further questions or would like assistance with your property purchase, contact our conveyancing team today.


Queensland’s building and construction industry is set for major reform

December 2nd, 2016

The Queensland Government has released a “Queensland Building Plan” Discussion Paper on 30 November 2016, and is seeking public feedback on reforms to nine areas:

  1. security of payment scheme;
  2. the home warranty scheme;
  3. Plumbing and Drainage Act review;
  4. Queensland Housing Code/ Reconfiguring a Lot Code;
  5. building certification;
  6. livable housing design;
  7. licensing reforms;
  8. non-conforming building products; and
  9. sustainable buildings.

The announcement follows the release of a report by Deloittes into the economic and social benefits of reform to the security of payment regime (currently governed by the Building and Construction Industry Payments Act 2004 and the Subcontractors Charges Act 1974).

The Government proposes to introduce “Project Bank Accounts” (PBAs) to all government projects from 1 January 2018, and to the private sector from January 2019.

A PBA will be a trust account set up by the head contractor which operates as follows:

  1. subcontractor submits progress claim to the head contractor;
  2. head contractor submits payment claim to principal;
  3. principal’s superintendent approves (or rejects) payment claim submitted by a head contractor;
  4. principal pays approved sum into the PBA account; and
  5. bank directly pays the head contractor and the first tier of subcontractors.

A ‘one-stop-shop’ piece of legislation incorporating the proposed PBA legislation, the existing Building and Construction Industry Payments Act 2004 and the Subcontractors Charges Act 1974 is proposed. 

More information is available from the Department of Housing and Public Works

Discussion surveys will be released on 12 December 2016, and information sessions are to be held in February and March 2017.


Miller Harris Lawyers recognised in the ‘Doyles List’ of Leading Lawyers for 2017

December 2nd, 2016

The family law team at Miller Harris Lawyers has been recognised in the prestigious Doyles List of Leading Family and Divorce Lawyers – North Queensland for 2017.  Michael Keogh (Partner) and Julie Hodge (Senior Associate), both senior lawyers practicing exclusively in Miller Harris Lawyers’ Family Law division, have also been individually voted into the Doyles List, as leading family and divorce lawyers.

Doyles compile the list of leading lawyers through extensive independent research including online peer based surveys, as well as telephone and face-to-face interviews with clients, peers and relevant industry bodies.   This is the fourth year running that the Miller Harris Lawyers’ Family Law team has been recognised on the list, a result which underlines the firm’s commitment to providing high quality and practical advice on a range of family law matters.

“We’re delighted to be recognised on the Doyles List again for 2017” Partner Michael Keogh said.  “Getting this recognition through feedback from peers and others reinforces our philosophy of client service and achieving practical outcomes for the people we work with.  Family law can certainly be a challenging area of practice with relationships often strained, and the rights and obligations of the various parties involved needing to be considered. We aim to guide people through what is often one of the most difficult stages of their life in a sensitive and pragmatic way.  Every client’s circumstances are unique and I’d like to  think the fact we are able to adapt our approach to meet each client’s particular needs is one of the reasons we’ve made it onto the Doyles List again for 2017.  Whilst it’s obviously a welcome personal achievement for Julie and me, it also rewards the work all of our team members do to achieve positive results for our clients every day.”

Click here to find out more about the family law services offered by Miller Harris Lawyers.



Miller Harris Lawyers would like to acknowledge the appointment of Australia’s first female High Court Chief Justice

December 1st, 2016

Yesterday it was announced that Justice Susan Kiefel AC will be the next Chief Justice replacing retiring Chief Justice Robert French AC.

Justice Kiefel began her career as a secretary and after working for a group of barristers in Brisbane she took steps to study law.

From this time Justice Kiefel has pioneered the legal field for women in Queensland. Her Honour was appointed as the first female Queen’s Counsel in Queensland in 1987, in 1993 she was the first female judge appointed to the Supreme Court of Queensland and was one of the first women to be appointed to the Federal Court of Australia in 1994.

Upon receiving a phone call from Prime Minister Turnbull confirming her appointment it is reported the Prime Minister said it was a historic moment for women to which Justice Kiefel replied that she regarded it more as a natural progression.

Notably, Justice Kiefel was born in Cairns and we in the tropical north are very proud of Justice Kiefel’s appointment as our nation’s most senior judicial officer.

Photo: Robert Shakespeare



Partner Michael Keogh is now an accredited Family Dispute Resolution Practitioner!

November 24th, 2016

The family law system encourages parties to attempt to resolve disputes before instigating court proceedings, through dispute resolution processes. Mediation is a process in which parties willingly participate in a meeting, facilitated by a neutral person, to negotiate a mutually beneficial agreement.

Michael is able to issue certificates in child disputes to enable proceedings to be filed in the court.

Michael is able to deliver this service at Miller Harris Lawyers, and throughout many locations within Queensland.



Changes to the unfair contract laws for small businesses

November 22nd, 2016

The small business unfair contract laws are here.  From 12 November 2016, the existing unfair contract laws will be extended to protect small business.

The changes aim to assist small business with further rights for contract terms that are unfair.  Particularly as small businesses are regularly presented with standard form contracts on a ‘take it or leave it’ basis and often do not have the resources, time or bargaining power to negotiate these types of contracts.

The protections for unfair contract terms will only extend to standard form contracts and individually negotiated contracts will not be covered.  The types of contracts that are likely to benefit from the protections include franchise agreements, telephone services, motor vehicle purchases, leases and other service agreements.

Terms in these types of contracts will be void and unenforceable if they are found to be unfair.  Whether a term is unfair will depend on the circumstances, but the Competition and Consumer Act provides that a contract term is unfair if it:

  1. causes a significant imbalance in the parties’ rights and obligations under the contract;
  2. is not reasonably necessary to protect the legitimate interest of the party advantaged by the term; and
  3. would cause detriment to the consumer (now including a small business) if it was relied upon.

For example a term allowing one party to vary the contract without consulting the other may, in the circumstances, be considered unfair and void or a term that penalises one party to contract (but not the other) for breach or termination of the contract may be considered unfair.

The contract must also be a ‘small business contract’ to get the benefit of the protections.  This means the contract must:

  1. have at least one party to it who employs less than 20 people; and
  2. the upfront price of the contract does not exceed either:
    • $300,000.00; or
    • if the duration of the contract is more than 12 months, $1,000,000.00.

If you operate a small business and have questions about these new laws and how they will affect you, please contact our commercial department on 4036 9700.

Set of flat style vector business icons on blue background


Airbnb and your tenancy agreement

November 15th, 2016

A recent decision of the Supreme Court of Victoria has found in favour of a landlord who sought to terminate a residential tenancy because her tenants had been letting out the property on Airbnb without her consent.

At first instance, the application of the landlord to the Victorian Civil and Administrative Tribunal was dismissed.  The Tribunal found that the tenants were not ‘subletting’ the premises in breach of the lease, but merely granting a licence to occupy to Airbnb guests.  On appeal this decision was overturned with the Tribunal finding that the short term letting of the premises to Airbnb guests amounted to a sublease.  This was prohibited by the tenancy agreement unless the tenants obtained the landlord’s consent (which they had not).

Despite the Airbnb agreement referring to the occupancy of the guests as a mere licence, the court found that the tenants, through the Airbnb agreement with their guests, passed on the occupation of the premises with all its qualities (including exclusive possession) to the guests for the agreed period.

The court was careful to narrow the application of this decision to the present facts and made no ruling on the general legality of Airbnb agreements or similar factual scenarios.  For that reason landlords should consider inserting specific conditions prohibiting grants of licences to occupy as well as subletting if they are concerned about tenants utilising Airbnb for properties.

Read the full decision here.

Read the Sydney Morning Herald article here.



10 Things Every Landlord and Tenant Needs To Know About The Retail Shop Lease Act Amendments

November 10th, 2016

The long awaited amendments to the Retail Shop Leases Act (“the Act”) are here.  The commencement date for the Retail Shop Leases Amendment Act 2016 has recently been announced with the amendments coming into effect on 25 November 2016.

The amendments come as a result of an extensive statutory review of the legislation which began in 2011 and involved stakeholder consultation and feedback on the efficiency and effectiveness of the Act.  Some of the key aims of the amendments are to reduce red tape, improve tenant protections and bring the Queensland legislation into line with corresponding legislation in other states.

  1. Is it Still a Retail Shop Lease?

The amendments narrow the types of leases that will fall under the umbrella of the Act.  In particular:

  • Leases for premises that are more than 1000m² (whether or not the tenant is a listed company) are no longer considered retail shop leases under the Act. This is good news, as generally these types of tenancies host large tenants who do not require the protections of the Act and gives landlords more flexibility in negotiating leases.
  • Non-retail premises in multi-storey buildings on a floor where less than 25% of the premises are retail premises will not be considered a retail shop.
  • Leases or licences for ATMs and vending machines are now specifically excluded from the operation of the Act.
  1. Disclosure on Exercise of Options

From the commencement of the amendments, landlords will be required to provide tenants with a new lessor disclosure statement on the exercise of options.  From notice of an exercise of option, landlords have seven days to issue a disclosure statement.  Tenants will then have 14 days from receiving the new disclosure statement to withdraw their notice exercising option.

  1. Waiver of Disclosure Periods

One of the more welcomed amendments to the Act is that tenants can now waive seven day disclosure periods when entering into new leases, on exercise of options or on assignment.

Tenants will be able to provide a written notice to landlords waiving these periods.

  1. Mortgagee Consent Fees

Following the amendments, landlords will no longer be able to recover mortgagee consent fees from tenants, bringing the Queensland legislation into line with other states.  Existing provisions in leases allowing recovery of mortgagee consent fees will be void from the commencement of the Act.

  1. Costs in Preparation and Negotiation of Lease

Landlords will now be able to recover their reasonable expenses involved in negotiating and preparing a lease if the tenant calls for a final lease to be provided and subsequently pulls out.

  1. Release on Assignment

Presently, on the assignment of a retail shop lease, if the required disclosures are given the assignor (current tenant) must be released from their obligations pursuant to the lease from the assignment date.

With the amendments, the requirement for release will also extend to any existing guarantors of the lease.  However, there is no restriction on the landlord requiring the assignee to provide new guarantees.

  1. Relocation

There has been a drafting amendment for clarity on the application of the implied provisions for relocation of tenants.  At the moment, the implied relocation provisions only apply in certain circumstances.  Following 25 November 2016, the implied provisions on relocation will be included in any lease that provides for relocation of a tenant during the term.

  1. Refurbishment

The amendments also make it a requirement that clauses in leases requiring refurbishment specifically outline the:

  • general nature of the refurbishment required;
  • extent to which the premises must be refurbished; and
  • timing of the refurbishment or re-fit.

If a refurbishment clause does not comply with these requirements it will be void.  This amendment brings the Queensland legislation into line with other state equivalent legislation.

  1. Marketing and Promotion Contributions

In an effort to provide further transparency to tenants on the management and use of funds for marketing and promotion, following the amendments landlords will need to make available a marketing plan detailing the planned use of marketing or promotional fund contributions tenants may be required to make pursuant to their leases.

  1. Rent Review Restrictions

Major tenants will now have the option to opt out of the rent review restrictions (including those on ratchet rent) by providing a written notice waiving the protection of the provisions to landlords.

The amendments are comprehensive and are expected to apply (without much transition) from the commencement date.  Both landlords and tenants of retail shop premises will be affected by the changes and it is important that you familiarise yourself with the changes now.

For more information about this issue and all retail shop lease enquiries, please contact our partner, Melissa Nielsen, on 07 4036 9700.

London, UK - June 16, 2016: Neals Yard with unidentifed people. It is a small alley in Covent Garden with colorful houses. It contains several health food cafes and values driven retailers


A little bit of soap… please!

November 3rd, 2016

Partner Melissa Nielsen recently spoke to Murray Jones at 4CA radio about our Send Hope Not Flowers charity lunch and soap drive.

Click here to listen to the radio interview

Last call for soap donations!  We will be sending these off to Papua New Guinea shortly.  If you have anything further to be included, please deliver it to our office at Level 1, 14-16 McLeod Street, Cairns by Tuesday, 8 November 2016.




Trading Trusts: 556 Priorities and Remuneration Issues

October 18th, 2016

Tim McGrath, Partner in our litigation department, has recently penned an article discussing the liquidation of trading trusts.  An excerpt from the article is featured below.

“Considerable disquiet has arisen as a result of a series of recent authorities arising in the New South Wales Supreme Court.  The decisions involve the liquidation of companies which are (or were) trustee companies and the claims of creditors whose debts were incurred by the company, in its capacity as trustee of the relevant trust.”

Click here to read the full article.

For more information about this issue and all insolvency-related matters please contact Tim on 07 4036 9708.