How Does The Property Occupations Act 2014 (QLD) (“POA”) Affect The Contract?

Application of Property Occupations Act (POA)

Property Occupations Act 2014 (QLD) contains provisions relating to the sale of residential property. Those provisions apply to contracts for the sale of property that is used, or is intended to be used, for residential purposes but will not apply to a contract:

1. for the sale of property where it is used primarily for industry, commerce, or primary production;
2. formed on a sale by auction (directly on the fall of the hammer by outcry or directly at the end of another similar type of competition for purchase);
3. entered into, no later than 5.00 pm on the second clear business day after the Property was passed in at auction with a registered bidder for the auction;
4. formed because of the exercise of an option granted under an earlier agreement if the parties to the Contract are the same parties as in the earlier agreement;
5. where the Buyer is:

• a publicly listed corporation; or
• a subsidiary of a publicly listed corporation; or
• the State or a statutory body; or
• purchasing at least three lots at the same time (even if under separate contracts).

Cooling-off Period

If Property Occupations Act 2014 (POA) applies, you may be entitled to a five-business-day cooling-off period.

The cooling-off period starts on the day you receive from the Seller or their agent a copy of the contract signed by both parties or, if that day is not a business day, on the next business day. If the Seller signed the Contract before you did, the cooling-off period starts on the day you signed the Contract and communicated your acceptance to the Seller.

The cooling-off period ends at 5:00 pm on the 5th business day.

You are entitled to terminate the Contract during the cooling-off period. If you do, the Seller may retain a penalty of 0.25% of the purchase price from the deposit paid under the Contract. The balance of the deposit (if any) must be refunded to you within 14 days after termination.

If you terminate the Contract and later decide you would like to purchase the Property, there is a risk that the Seller will not enter into another contract with you.

If you decide to terminate the Contract during the cooling-off period you should tell us as soon as possible so we can give notice before the period ends.

You may shorten the cooling-off period or waive the benefit of it entirely by giving written notice to the Seller of the shortening or the waiver. It is up to you whether you wish to do this.

• Particular Words Must Be in the Contract

If Property Occupations Act (POA) applies, the Seller is required to ensure that, when they first give you the proposed Contract for signing, it contains a conspicuously written note (immediately above and on the same page where you sign to indicate your intention to be bound by the Contract) which draws your attention to the cooling-off period and the termination penalty. It must also include a recommendation that you obtain an independent property valuation and independent legal advice before signing the Contract.

If the required statement is not included in the Contract, the Seller or the Seller’s agent may have committed an offence under a Property Occupations Act (POA) and be liable to a fine. Please note that any non-compliance will not affect the validity of the Contract or give you a right of termination.

• Valuation

The note recommends that you obtain an independent valuation of the Property. We endorse this recommendation but do not provide valuation advice. The price is something you need to satisfy yourself about. The Contract is not conditional on a valuation. If you do not want to proceed without a valuation, you will have to obtain it before entering the Contract or expiry of the cooling-off period.

Visit our main article here: Property Occupations Act 2014 

No Further Stay Waiver Request Is This For Me?

Does your visa have a “No Further Stay” condition attached to it, and if so, what does it actually mean? Below we attempt to clarify this and how it is dealt with:

No further stay

There are many temporary visa holders in Australia who have got their visa conditioned as “no further stay.” The conditions include 8503, 8534, and 8535. This means unless there are specific
circumstances such as protection visa consideration, the holder upon expiry of his/her visa must leave Australia and will not able to apply for another visa.

My visa is attached with 8503 conditions, how can I avoid leaving Australia?

You can request the Department of Home Affairs to waive the condition attached to your visa but it must fall under either of the following categories;

(a) If you are unable to leave Australia due to medical reason;

(b) If there is a natural disaster in your home country;

(c) If there is a death or serious illness within your close family;

(d) There is a war or civil unrest in your home country; and

(e) The school in which you have registered cannot provide the course that you were approved for.

You cannot request the waiver simply because of the occurrence of a marriage or de facto relationship with an Australian citizen or permanent resident. Additionally, you cannot request the waiver simply because of pregnancy, unless your doctor advised you not to travel.

What happens when the condition of my visa is waived?

If and when, a “no further stay” condition of your visa is waived, you may apply for another visa without having to leave Australia. You need to be mindful, however, that there is no guarantee that
another visa is granted to you as it depends on the type of visa you apply for, and you must meet the requirements of that visa.

How long does it take to process my waiver request and how do I lodge my application?

You need to be mindful that the waiver is not automatic and it all depends if you have provided all the required documents. Under normal circumstances, it takes around 28 days to receive an outcome on your waiver request. However, a delay may be experienced if your provided information is deemed incomplete. As far as the form, you need to complete the Form 1447 ‘No Further Stay’ waiver request and provide a certified copy of the bio page of your passport and all documentary evidence in support of your waiver request. The information then should be emailed to NoFurtherStayWaiverRequest@homeaffairs.gov.au

Read More: Immigration Law

What if I request for a waiver of the “No Further Stay” condition after my visa is expired?

If you stay in Australia after your visa expires, you have breached condition 8531 which states: “You must leave before visa expiry.” This means even if your No Further Stay condition is waived and you are granted another visa, your sponsor will be penalized and any security bond lodged in support of that visitor visa or professional development visa application might also be forfeited.

What if my request for a waiver of the “No Further Stay” condition is refused? Can I appeal the decision?

No. The Department of Home Affair’s decision in respect to your waiver request is final and the decision cannot be reviewed by the Administrative Appeals Tribunal or by another Department. The
Minister also does not have any power to intervene.

Can you assist me to lodge my waiver request application from A-Z?

Yes, we can. It always pays to seek qualified immigration advice to ensure your application and documents are in order. In addition, you need to be mindful that you want to get your application
right first. We are happy to assist you.

By Abolfazl Moghadam

Article Source: 8503 No Further Stay 

Mental Illness in the Workplace

DID YOU KNOW?

Did you know that one in five (5) Australian adults experience some form of mental illness every year? This serious illness has increased over the past 5 years, which now have seen around 45% of Australians aged between sixteen (16) and eight-five (85) experiencing a mental illness at some point in their life. As we all know, unfortunately, mental illness or any form of illness doesn’t just stop at home. You live majority of your life at work and thus wherever you go your illness may shadow.

As an employee, you may develop a mental illness prior to your employment or during your current employment and without a good support system and ongoing work strategies you may be in a worse off position. As an employee, you need to know your rights and privileges at a workplace if it is affecting your day-to-day life. You deserve a workplace that ensures a safe and healthy environment.

EMPLOYERS AND MANAGEMENT ROLES

All employers and management roles require appropriate steps to be taken to minimise and eliminate any form of illness whether that be mental or physical that is impacting an employee. Employers and management staff are obliged to create and identify possible work practices, actions or incident procedures which may eliminate mental illness of their employees.

There are many reasons why an employer should help improve and support an employee’s physical and mental concerns, namely; because a safe and healthy workplace is good for business, it improves productivity thus increasing revenue but most importantly it’s because it’s the LAW.

An employer has a number of legal obligations in relation to the management of mental illness in the workplace; ensuring that Occupational Health & Safety is met, avoiding discrimination within the workplace both with employer-employee relations as well as employee-employee relationships and ensuring privacy has been kept between the employer and employee.

MENTAL ILLNESS AT WORK

The employer must provide, ‘reasonable accommodation’ to assist an employee to properly perform their duties whether that employee is physically or mentally disabled. Unfortunately, for an employer, supporting and facilitating a mental illness is of greater difficulty to suppress and support than that of a physical injury/disability. For example, an employer can support one of their staff members by enabling wheelchair access and assessable workspaces for a person of physical illness however, supporting an employee with a mental illness comes with greater challenges.

The Courts have focused on what is ‘reasonable’. The Court will require employers to go to all lengths to enable employees with mental illness to keep working but on the other hand an employer mustn’t go to such accommodation that is too much of an offset for an employer’s revenue and expenses.

In the principal case of Ambulance Victoria v M, [2012] the Full Bench determined that an employer cannot dismiss an employee or not reinstate an employee due to a lack of confidence in the employee’s ability to sustain and maintain good employment with a mental illness. There must be a reasonable based judgment in coming to this decision, momentary figures for example.

Article Source: Mental Illness 

Is The Bar Marginalising Mediators?

 

IN THE NEWS

Bar Marginalising Mediators

This is the name of an article that appeared in The Australian’s Legal Affairs section on Friday 22 July 2016.

Every Barrister when they start out, at least for a fleeting moment, aspire to the exalted rank of Silk. They yearn for those post-nominals, QC (Queens Counsel). Like the armed forces have the SAS, the law has the QC.

Perhaps the ambition is so fierce that they dream of a legal textbook bearing their name, the QC post-nominal and authoritatively on the inside cover ‘One of Her Majesty’s Counsel Learned in Law & Equity’.

Then reality takes a bite. Those post-nominals demand an increase in fees that price the poor QC out of the market, and they find themselves less busy. Maybe they are not elite enough to be a QC (not every Rugby player can play for the Wallabies or the All Blacks). Maybe they just do not want the post-nominals (there are many ‘Junior’ barristers on far more money than QC’s with heavier and higher profile caseloads).

On application by any interested Barrister, it is generally up to the State Bar Council and the State Chief Justice as to whom trades their cotton robe for a ‘silk’ robe – hence the name Silk.

The successful ones, and the soon-to-be-successful one’s chortle amongst each other ‘How many times have you been to the High Court?’, ‘Who is your favourite IP Judge?’, or ‘does your name appear in the CLR?’

Apparently though they don’t say ‘How’s your mediation practice going?’ At least this is the case in so far as Sydney Barrister Mary Walker is concerned.

In Walker v New South Wales Bar Association [2016] FCA 799 the protocol for appointing Silk was challenged, unsuccessfully, by Ms Waker. Justice Besanko’s judgment describes her complaint:

1. This is an application by Ms Mary Walker for declarations and an order pursuant to s 233 of the Corporations Act 2001 (Cth) against the New South Wales Bar Association (“the Association”), Ms Jane Needham SC and Mr Noel Hutley SC.
2. The applicant practises as a barrister predominantly in New South Wales and she is and has been a member of the Association since 20 May 1988. For some time prior to 2014, the applicant’s practice has been wholly or substantially comprised of the conduct of mediations, as a mediator. ..She is a member of the Outer Bar. …
3. In 2014 and again in 2015, the applicant applied for an appointment as Senior Counsel. On each occasion her application for Senior Counsel was unsuccessful. An unsuccessful applicant is not entitled to reasons for the refusal of his or her application. Under the Senior Counsel Protocol, an unsuccessful applicant may discuss their application with the President. The applicant exercised that option. As to her application in 2014, the applicant was told that her application was not considered because the Senior Counsel Selection Committee determined that it was not within the Protocol. As to her application in 2015, the applicant was told that her application was considered on its merits and that she did not have sufficient support. She was told that the Senior Counsel Selection Committee deferred consideration of the meaning of “practising advocate” (emphasis added) in the 2015 Senior Counsel Protocol.

KEY CRITERIA

The judgment goes on to state that key criteria for the selection of Silks are:

During this time it is expected (without being exhaustive) that the applicants’ practice will demonstrate some or all of the following:
(i) experience in arguing cases on appeal;
(ii) a position of leadership in a specialist jurisdiction;
(iii) experience in conducting major cases in which the other party is represented by Senior Counsel;
(iv) experience in conducting cases with a junior;
(v) considerable practice in giving advice in specialist fields of law;
(vi) experience and practice in alternative dispute resolution, including arbitrations and mediations; and
(vii) experience in sitting on courts or tribunals.

Applying impious and simplifying hands to His Honour’s reasons it seems that only one of the enumerated heads goes to Mediation. Therefore, a successful applicant for Silk needs to be arguing cases on their hind legs in Courts (and Superior Courts at that).

Again, our summary can only be described as a chaotic deluge in a tempest of legal wisdom, Ms Walker was not arguing cases in Court and therefore was ‘knocked back’ for Silk on two occasions. (Ms Walker had appeared in the High Court before turning to mediation).

The point of The Australian article is that mediators are ‘an entrenched part of the civil litigation system, and encouraged by the Court’ to quote the Chief Justice of Victoria. Mediators bring about less expensive and timelier solutions and free up judges for hearing weightier and more difficult trials and appeals.

Also the point of The Australian article is that the best barristers may be dissuaded from becoming mediators if that presents as an obstacle to the prized virtue of Silk. Maybe, we are not sure if the former Chief Justice of NSW, Sir Laurence Street, now in his 90th year and Australia’s foremost mediator would agree.

At Aylward Game, we encourage mediation over litigation.

Contact
United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005

Article Source: Marginalising Mediators

What Should Buyers Look Out For In a Property Contract?

Buying property is such a big purchase and commitment (one of the biggest most of us are likely to ever make) that the contract is not something you want to take lightly. It’s wise to go through it with a “fine-tooth comb” and equally as wise to discuss the finer details with both your agent and a legal representative who deals in property law and conveyancing.

Not only is it important to understand what the various clauses mean, but it’s also very important to understand what’s included in the contract and if there’s anything missing that should form a part of the contract.

Check the Details and Particulars

Even the most basic information on a contract is of vital importance. Check that your full name appears on the contract and that it’s spelled correctly. The name has to be identical to the name that will appear on your mortgage, otherwise, this could delay the finance process as well as requiring a contract amendment.

Is everyone purchasing the property included in the contract with the full name also spelled correctly? All parties must be listed on the contract if there are 2 or more purchasers.

Include Your Solicitor’s Details

Don’t wait for the contract to be signed to make reference to your solicitor. Include those details within the contract. It makes the entire liaison process much simpler.

Finance

If your ability to go through with the property purchase hinges on the approval of finance, then this must be stipulated in the contract. If you don’t, then you won’t be able to terminate the contract in the event that finance is not approved. Include finance amount, lending institution details, and finance date.

Building and Pest Inspections

This is also something that should be written into the contract. There is a section on the contract reserved for this, so be sure to insert the date for building and pest inspection. Failure to do so will likely mean you cannot terminate the contract if any building and pest issues arise upon property inspection. All contracts for property purchase should be the first subject to a satisfactory building and pest inspection.

Talk To A Legal Expert In Property Law

If you are located in and around Brisbane and need legal advice regarding your property contract, then get in touch with your local, experienced experts at Aylward Game Solicitors. We know property law, so you can contact with us.

Article Source: Property Contract