The Use of Listening Devices and Admissibility of Pre-recorded Evidence

Privacy is important to everyone in a civil society. NSW Parliament in 2007 enacted the Surveillance Devices Act 2007 (the ‘SDA’) to regulate the use of surveillance devices, including the installation, use and maintenance of listening devices.

Surveillance Devices Act 2007

Under section 4 of the SDA, a “listening device” means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation. The most common listening devices nowadays are mobile phones.

The SDA prohibits the use of listening device without the consent of the person whose conversation is recorded.

Section 7(1) provides that a person must not knowingly install, use or cause to be used or maintain a listening device to:

(a) Overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) Record a private conversation to which the person is a party.

Section 11 prohibits communication or publication of private conversations or recordings of activities.

It should be noted that section 7(3) of the SDA provides two exceptions to the prohibition.

Firstly, all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used.

Secondly, a principal party to the conversation consents to the listening device being so used and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party or is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

Admissibility of Pre-recorded Evidence

Generally speaking, the pre-recorded evidence obtained by a surveillance device is not admissible as it contravenes the SDA. But there are three ways by which the recording evidence may be successfully admitted.

1. “Reasonably necessary for the protection of the lawful interests”

By arguing that the application of ‘reasonably necessary for the protection of the lawful interests’ under s 7(3) of the SDA, the recording evidence may be admitted as lawfully obtained evidence.

For instance, in Dong v Song [2018] ACTSC 82, the recording made by the plaintiff as to confirming the content of previous talks immediately before the commencement of a civil proceeding was held to be reasonably necessary to protect the plaintiff’s lawful interests and thus was admissible.

2. The court’s statutory discretion under evidence legislation

The party that unlawfully obtains the evidence may still be able to rely on the evidence if the court exercises its statutory discretion to admit it under the evidence legislation across all Australian jurisdictions.

For example, section 138 of the Evidence Act 1995 (NSW) allows the court to admit the unlawfully obtained evidence if the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Family law authority indicates that for the purpose of determining important family issues, the court may exercise its discretion and admit the pre-recorded evidence even though the SDA has been contravened (see for example Gin & Hing [2019] FamCA 779 at [61] per Wilson J).

However, in the context of family law, whether or not the evidence occasioned by surveillance device will be admitted by the court with the exercise of its discretion depends on the facts of each case. Factors such as the relationship between the partners when the evidence is occasioned, the nature of the surveillance device, the occasion where the private conversation happens and the location of the surveillance device may play a role in the court’s decision (see for example Gawley & Bass [2016] FCCA at [70]-[73] per Baker J).

3. Evidence obtained by a lawful search warrant

If an unlawful recording leads to a lawful search warrant, then subsequent evidence is obtained legally and admissible unaffected by the previous illegality.

In Kadir v The Queen [2020] HCA 1, the High Court held that the evidence obtained by the execution of a lawful search warrant is admissible although the search warrant was issued following an unlawful recording which contravened the SDA.

The Counsel for one of the appellants, Ms Grech, argued that the Court of Criminal Appeal read s 138(1)(b) of the Evidence Act too narrowly. According to Ms Grech, the ‘way’ evidence is obtained is to be understood as referring to the entire chain of causation and not merely the final link in the chain. (Kadir at [39]).

The High Court rejected that argument, holding that the US jurisprudential theory of ‘fruit of the poisonous tree’ is not reflected in Australian evidence legislation (Kadir at [40]). Thus, the evidence obtained by a lawful search warrant is not the consequence of the contravention of the SDA, and is admissible.

Therefore for criminal proceedings, if the evidence is obtained by lawful procedure, the unlawful method which reveals the existence of illegal facts will not affect the admissibility of the final evidence.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Recognition and Enforcement of Foreign Judgements at Common Law Precedents in Victoria

The year of 2019 has seen two significant cases concerning Australian Courts recognising and enforcing Chinese civil judgements. In Suzhou Hainshun Investment Management Co Ltd v Yue’e Zhao & Ors [2019] VSC 110 and Xu v Wang [2019] VSC 269, Cameron J of the Victoria Supreme Court handed down two decisions which treated two Chinese civil judgements differently. In Suzhou Haishun, her Honour granted summary judgement for the plaintiff though the defendant argued that the Chinese judgement was of a penal nature and denied the defendant’s access to natural justice. On the contrary, in Xu v Wang, her Honour refused to recognise and thus to enforce a Chinese civil judgement on the ground of abuse of process on the part of the applicant.

The General Rule and Exceptions

As we talked about in the previous article, four conditions must be satisfied before a foreign judgement is recognised by common law. Nonetheless, there are several exceptions that might hamper a foreign judgement’s recognition and enforcement in Australia. These exceptions are briefly summarised by Cameron J in Suzhou Haishun [2019] VSC 110 at [93]. Namely:

(a) granting enforcement of the foreign judgment would be contrary to Australian public policy;

(b) the foreign judgment is obtained by fraud (including equitable fraud) by the parties or by the foreign court;

(c) the foreign judgment is penal or a judgment for a revenue debt; and

(d) the enforcement of the decision would amount to a denial of natural justice.

What you should know as a respondent in a case of a foreign judgement’s recognition and enforcement?

First, it is difficult for you to argue that enforcing the foreign judgement would be contrary to Australia’s public policy. In fact, the public policy argument is the least favourable approach.

Second, the argument that the foreign judgement is obtained by fraud is not as easy as it seems to be. In Doe v Howard [2015] VSC 75, J Forrest J citing the New South Wales decision Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 said that although there might be exceptional cases, ordinarily perjury is not enough to set aside the judgment (at [107]).

Third, in case of monetary judgement concerning debt recovery, it is hard to argue that the foreign judgement is penal in nature even though the damages or interest granted may be punitive. Cameron J in Suzhou Haishun confirmed that for a foreign judgement to be penal in nature, there must be some public element (at [97]). Whether there are sufficient public elements to generate a penal nature depends on the facts of each case, regards are to be had to the attitudes of the foreign courts, the category of the cause of cation of that foreign judgement and the purposes of relevant foreign laws (United States of America v Inkley [1989] 1 QB 255, 265).

Following Bleby J’s statement in Benefit Strategies Group Inc v Prider (2005) 91 SASR 544, 565-6 Cameron J held that if an Australian court finds that part of a foreign judgment is penal in nature, or relates to a law that is penal in nature, this does not necessarily render the judgment unenforceable in its entirety (at [101]). In fact, her Honour said that if part or all of the interest ordered to be paid by the Chinese court is held to be penal in nature, it will be entirely possible to sever those remedies from the Chinese judgments, and to enforce the remainder. As to the particular facts of Suzhou Hainshun the defendant argued that the interest rate granted by the Chinese court (quadruple the benchmark interest rate released by the People’s Bank of China for loans of the same type at the same period) was penal in nature, and Cameron J held that even though such interest rate was penal in nature, the judgement of repayment of debt was not affected and is enforceable by an Australian court.

Fourth, denial of nature justice may be the best approach to challenge the recognition and enforcement of a foreign judgement, but it will not be the case if you deliberately evade the foreign court’s lawful jurisdiction and service. In Xu v Wang, the essential reason why the Court refused to recognise the foreign judgement was that with the knowledge of the respondent’s Australian residence and contact information, the applicant instituted a proceeding in China against the respondent by substituted service, i.e., public announcement which was allowed by Chinese law. Therefore, the respondent’s right to fair trial was sacrificed.

Nevertheless, the public announcement was considered to be fair and reasonable in Suzhou Hainshun because the applicant did not know the respondent’s whereabout when the Chinese proceeding started. The respondent evaded the Chinese court’s jurisdiction, and the applicant had reasonably attempted to service the notice.

What you should know if you are the applicant?

Do not waste Australian courts’ time and judicial resources. International legal shopping is loathed by Australian courts. In Xu v Wang, after the case was listed by the Victoria Supreme Court, the applicant went to China and instituted proceedings despite the fact the respondent resided in Australia and the disputed issues took place in Australia as well. The Chinese judgement was made quickly in favour of the applicant. Cameron J noted that the applicant could have informed the Court of the Chinese judgement. This fact contributed to the finding of abuse of process.

You must reasonably fulfil your procedural obligations under the foreign law to guarantee the respondent’s right of natural justice. Reasonableness depends upon the facts of each case, and regardless of the lawfulness of the foreign legal procedures. The applicant must genuinely and reasonably ensure that the respondent’s right of natural justice is not violated.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Case summary: Hua v Minister for Home Affairs [2019] FCAFC 158

Facts:

Van Phat Hua, the Appellant, a Vietnamese national, had an extensive criminal record dating back 30 years including drugs and violent crime offenses for which he was convicted multiple times, including armed robbery, cannabis cultivation, heroin trafficking, arson and assault. On 30 July 2014, he was convicted of arson, reckless conduct endangering life, making threats to kill, recklessly causing injury, intentionally destroying property, theft, and cultivation of cannabis. This resulted ultimately in a 3 and a half-year custodial (jail) sentence.

The Appellant’s temporary visa was subsequently automatically cancelled on 4 January 2016 pursuant to s 501CA of the Migration Act 1958 (Cth) . The Appellant made submissions to the Minister to revoke the mandatory cancellation. Among the documents submitted to the Minister in the course of the Minister’s decision were:

  • a Statutory Declaration submitted by the Appellant concerning his remorse at his actions (This Statutory Declaration was submitted in relation to a further incident for which the Minister invited submissions, where the Appellant got in a fight with another prisoner); and
  • The Appellant’s submissions in relation to the prison incident also included a letter from his assigned prison officer (‘the Leggett Letter’).

The Minister issued a decision not to revoke the mandatory cancellation on grounds that the Appellant’s threat to the community, having regard to all the facts, outweighed the counter- considerations of his ties to the community, the evidence of his wife (whom the Appellant had abused) that he had reformed, the needs of his disabled child, and his own expressions of remorse. Part of the Minister’s reasons mentioned that the Appellant did not make ‘direct expressions of remorse’ to the Minister.

The Appellant attempted to have the failure of the Minister to revoke the mandatory cancellation of his visa judicially reviewed on the grounds that the Minister had not considered the Statutory Declaration and the Leggett Letter, and that this failure to consider that evidence amounted to jurisdictional error.

The primary judge concluded that it was not made out that the Minister had no regard for the Statutory Declaration. The Primary judge also found that even if the Statutory Declaration was overlooked, it was not material. A similar conclusion was reached in respect of the Leggett Letter: the better explanation for the failure of mention was not a failure of consideration, but even if it was, there was no jurisdictional error.

This matter was appealed to the Federal Court of Australia, and further review was sought on the basis that the Primary Judge erred in regarding the Statutory Declaration and the Leggett Letter as not significant in the circumstances of the case.

Held by the Judge:

The failure of the Minister to consider the particular evidence of the Statutory declaration was found to be not material, as the underlying issue was whether the Appellant was remorseful, and even stronger evidence than the statutory declaration, namely the testimony by the Appellant’s wife, was considered, and the remorse was implicitly accepted in the Minister’s reasons. Moreover, the Appellant’s remorse was implicitly granted, and as just one factor in a multi-factor assessment of whether to revoke the visa cancellation, and unlikely to change the Minister’s decision in any event. This was sufficient for the judge to find that the Statutory Declaration was not material. The risk to the Australian Community was an overriding concern in the Minister’s decision, and would have overridden even good evidence of the Applicant’s remorse.

The Minister was held to have had due regard to the Leggett Letter implicitly, as part of the evidence for the Appellant’s behaviour in custody.

The appeal was dismissed with costs.

An important lesson to draw from these proceedings is that visa cancellations, especially for weighty considerations like threat to the Australian public, are difficult to appeal on technical points, because any point significant enough to invite judicial review as jurisdictional error must be capable of producing another result that what was actually decided.

Law Applied

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at 263, [45].- helped to find that ‘A breach is material to a decision only if compliance could realistically have resulted in a different decision.’

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Recognition of Foreign Judgments in Australia

Persons or organisations seeking to recognise and enforce a Judgment made by a Court within the People’s Republic of China into an Australian state jurisdiction may be able to do so in certain circumstances. Our team, acting on behalf of Judgment Creditor, was recently successful in attaining Court Orders granting recognition of two Judgments made by a Chinese District Court, including the Judgment of the proceedings at First Instance and ‘the Enforcement Verdict’ into the State of Victoria jurisdiction. This recognition has now enabled our clients to enforce the outstanding Judgment Debt in Victoria through subsequent enforcement procedures, such as obtaining a Warrant of the Seizure and Sale of Land, which otherwise would not have been permissible.

In addition to attaining status of the foreign judgment, our clients were also able to recover reasonable legal costs incurred in commencing such Court proceedings as well as interest accrued up to the date of registration. Notably, the Court calculated the accrued interest in accordance with the higher interest rate stipulated by the foreign judgment at First Instance, rather than the interest rates stipulated by Victorian legislation.

Relevant Law

Recognition and enforcement of foreign judgments in Australia are usually possible pursuant to the Foreign Judgments Act 1991 (Cth). However, this statutory regime does not apply to judgments of all foreign jurisdictions. For example, as China is currently not within the scope of the Foreign Judgments Act 1991 (Cth), a person or organisation seeking to recongise and enforce a Chinese judgment in Australia may rely upon common law principles.

Four Conditions

For an Australian court to make orders for the recognition and enforcement of a foreign judgment under common law principles, the party seeking to rely upon the foreign judgment must establish the following four conditions:

1. The foreign court must have exercised jurisdiction that Australian courts recognise.
The foreign court must have had jurisdiction over the defendant at the time when the jurisdiction of the foreign court was invoked. The defendant (a natural person), therefore, must have been domiciled or ordinarily a resident in the foreign jurisdiction, have voluntarily submitted to the jurisdiction of the foreign court or needed to have been physically present in the foreign jurisdiction when served with the originating process for the foreign proceedings. Similarly, a defendant corporation, at the time of service, must have carried on business within the jurisdiction of the foreign court.

2. The foreign judgment must be ‘final and conclusive’.
The matters within the foreign proceedings must be concluded prior to commencing court proceedings in Australia. The key test of finality is whether the foreign court treats its judgment as res judicate, meaning there has already been a final judgment of the issues in dispute as between the parties. This condition is not negated by the fact that the Judgment Debtor may appeal the decision of the foreign court or that appellate proceedings are pending. However, the status of foreign judgment proceedings are likely to be stayed until the outcome of such an Appeal is made by the foreign court.

3. The identity of the parties to the foreign judgment must be the same as the parties to the Australian enforcement proceedings.

4. The foreign judgment must be for a debt or definite sum of money. The debt must, however, not be for a Revenue Debt.

Defence

In circumstances where a party is able to establish the four conditions, the other party may challenge the recognition of the foreign judgment only on limited grounds. A defence may be raised on such grounds, including, but not limited to:

  • The foreign judgment is contrary to Australian public policy
  • The foreign court acted contrary to natural justice
  • The foreign judgment was obtained by fraud
  • The foreign judgment is penal

The formal requirements and procedure applicable to commence court proceeding in status of foreign judgment matters pursuant to common law principles does vary between state jurisdictions within Australia. Generally, the originating process must be accompanied by a supporting Affidavit which must annex the following documents:

  • A copy of the foreign judgment certified by the proper officer of the foreign court and authenticated by its seal; and
  • If the foreign judgment is not in English, a translation of the judgment certified by a Notary Public.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Immigration Limit At 10-year Low; New Regional Pathways To Permanent Residency

The Australian Department of Home Affairs have released the latest figures and reports on permanent residency visas granted under Australia’s skilled migration programme. All potential applicants to Australia should pay heed to the trends we summarise below:

The Australian immigration System

The Australian immigration system divides applicants into various ‘streams’- the ‘Skill’ Stream focuses on applicants with particular skills, but there is also the ‘Family’ stream and the ‘Child’ stream, which are more relevant to family immigration. The ‘Skill’ stream is the largest stream, accounting for 68.4 percent of the total Migration Programme outcome.

Most Frequently Granted Countries

People from India, China and the United Kingdom made up the top three nationalities granted permanent residency visas in the skill stream between 2017 and 2018. In this period, a total of 162,417 permanent residency visas were granted.

Most Frequently Granted Professions

The professions most frequently granted permanent residency visas in the period between 2017-2018 are as follows, in order of most numerous to least.

  • Accountants
  • Software Engineer
  • Registered Nurses
  • Developer Programmer
  • Cook

Immigration is getting tougher

However, the immigration environment in general is getting tougher, as new statistics for the 2018-2019 period reveal fewer permanent residencies were granted in the 2018-2019 period under the Permanent Migration Program (160,323 visas out of a ceiling of 190,000) than at any time in the last 10 years. In turn, migration for the 2019-2020 period has been capped at 160,000 places. Going forward permanent residency visa applications in the skill stream seem like they will be more more competitive than ever.

The Australian Government’s regional focus

Migration to regional Australia remains a priority for the Australian government. According to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, David Coleman,

“We’re also dedicating 23,000 places for regional skilled migrants and have announced two new regional visas to help fill some of the tens of thousands of job vacancies in regional Australia.

“We’re directing migration to those smaller cities and regional areas that are crying out for more people and those regional economies that simply cannot fill jobs with local workers.”

The Australian Government’s focus on regional migration is emphasised by the introduction of new visas focused on regional migration.

The Skilled Employer-Sponsored Regional (Provisional) visa will be for skilled migrants sponsored by an a regional employer while the Skilled Work Regional (Provisional) visa will cover migrants nominated by a State or Territory government or sponsored by an eligible family member.

The visas will be for a period of five years, with the possibility to apply for Permanent Residency only after living in the region for three years.

Applicants for permanent residency in Australia would do well to consider whether regional migration is right for them, if they want to improve their chances of a successful immigration application.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Legal Protections for off-the-plan property purchasers – Sunset Clause

We note that the NSW Government passed the Conveyancing Amendment (Sunset Clauses) Act 2015 on 17 November 2015 and that this act grants further protections for off the plan purchasers.

This act is now found in Division 10 of the Conveyancing Act 1919 and is titled, ‘off-the-plan contracts’. Division 10 of this act raises apprehension about the fact that some developers use the ‘sunset clause’ in order to terminate an off-the-plan contract and thereby gain financial benefits from such termination. As addressed in the government bill, some are concerned that developers take advantage of the sunset clause by intentionally delaying a building project. When this occurs, essentially, the purchaser receives their deposit back but will not be able to recover their legal fees; this may leave them out of pocket and unable to purchase a replacement property.

The purpose of an off-the-plan contract is to sell vacant land or strata property before it is actually built. Therefore, these contracts do not allocate separate titles at the time they are entered into but rather, on completion of the building; lots will be identified for each prospective purchaser. Off-the-plan contracts are conditional contracts and must ensure there is a clause catering to a scenario where for whatever reason, the development does not reach completion. The clause delivering such protection is referred to as the ‘sunset clause’.

The sunset clause provides for rescission of the contract if the lot has not been completed and built by the sunset date as per the contract. The sunset date is the last date on which the lot can be completed and have its own title allocated to it. The sunset clause will allow either party to rescind the contract if the development is not completed within the final contract date.

As we have noted above, Division 10 of the Conveyancing Act 1919 inhibits developers from unfairly calling of the off the plan contracts for residential property. Residential property has the same meaning within the act and covers, a parcel of land (less than 2.5 hectares) on which no more than two dwellings exist (or are undergoing construction), vacant land on which construction of one place of residence is not prohibited by law, a lot or lots (including proposed and not yet developed lots) and a lot or more than one lot (including proposed lots once again) under the strata schemes development legislation intended to be utilized as a single place of residence.

Under the new protective laws, vendors intending to rescind an off-the-plan contract must give each purchaser, being a party to that contract, 28 days written notice prior to rescinding the contract and thereby exercising the sunset clause. The notice is required to outline why the vendor wishes to rescind and the notice must also give reasons for the delay.

In order for the vendor to successfully rescind under a sunset clause, we note that the lot must have not yet been created and the vendor can only rescind if the purchasers give written consent to the vendor’s rescission, or the rescission is permitted by reason of regulations (this is yet to be seen as no regulations have been developed) or the vendor obtains an order from the Supreme Court allowing the rescission.

Whether or not the Supreme Court will be inclined to allow the vendor to rescind the contract depends on a variety of considerations. These considerations include but are not limited to:

  • Terms of the Contract;
  • Whether or not the vendor has acted unreasonably or in bad faith;
  • The reasons for the delay;
  • Whether the lot subject to the contract under proposed rescission has increased in value;
  • Any other matter the court considers as being relevant.

As a general rule, the vendor will be liable to pay the purchaser’s costs of any application made to the Supreme Court, unless there is evidence to show that the purchaser was unreasonable in refusing to consent to the rescission.

We note, the above new laws and protective provisions apply to any proposed rescissions taking place on or after 2 November 2015.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Vendor Statement and Breach of Section 32 of the Sale of Land

Here, at Legal Point Lawyers & Attorneys, we place great emphasis on conducting a thorough conveyancing process from beginning to end, whether we are acting for the vendor or purchaser whether located within or outside New South Wales.

Taking an example from Victoria, we focus on Section 32 of the Sale of Land Act that has received recognition Australia wide. Section 32 of the Sale of Land Act requires the vendor to provide a ‘vendor statement’ disclosing particular items of information in relation to the property they are selling. This in turn protects the purchaser from any unforeseen surprises in relation to their purchase.

Many cases now refer to Section 32 of the Sale of Land Act and a case of great relevance to this section is that of Nicolacopoulos v Khoury [2010] VCC 1576.

In this case, the conveyancer for the vendor, in preparing a ‘vendor’s statement’ failed to attach to it an Owners Corporation Certificate issued per Section 151 of the Owners Corporations Act 2006. The reason for this being that the conveyancer was of the opinion that the property was not affected by an owners corporation as they believed that there was no common property. This view was formed in reference to the fact that the subdivision was divided by separate road access. However, the property was on a subdivided plan and the Court found it to be affected by the Owners Corporation. Accordingly, per Section 32(5) of the Sale of Land Act, failure to attach the Owners Corporation Certificate allowed the purchaser to rescind the contract pursuant to Section 32(5). There was found to be a breach of Section 32(3A) and a right to rescind following from such breach, once again, per Section 32(5).

The vendor, in rebuttal, argued that Section 32(7) was to apply. In order for the vendor to argue this, effectively, the vendor had to prove that;

  • That the vendor had acted “reasonably” and
  • That the purchaser was “substantially in as good a position as if all the relevant provisions had been complied with”.

The first issue being point (a), raised the question whether or not the vendor was liable in relation to statements within the vendor statement. This issue has been subject to great debate over the years. Cases such as Payne v Morrison [1991] V ConvR 54-428 held the vendor to be vicariously liable for negligent conduct of their lawyer or conveyancer. One the reverse side, Paterson v Batrouney [2000] VSC 313 held that vicarious liability would not apply; rather the court held that personal liability was attributable.

There have been other cases addressing the issue without coming to a decisive view on the matter. Similarly in this case, the judge found that vicarious liability was not of issue and accordingly did not need to form an opinion. Instead, the judge found the vendor liable for personal negligence. The case turned here as the vendor should have been aware of the owners corporation and therefore should have disclosed so to the purchaser. The outcome in this case may differ to other cases as in determining vendor liability as courts consider what the vendor ought to have reasonably known and thus disclosed to the purchaser. It appears as though, if a fact or feature is so plain, fundamental or obvious to the vendor, there is no reason for failing to provide adequate disclosure, even if the error was made by the vendor’s representative, whomever that may be.

The second issue being point (b) addresses the effect of a vendor breaching the disclosure requirements and ultimately considers where it leaves the purchaser. Here the vendor argued that no misrepresentations were made under the ‘vendor statement’ and that the purchaser had not been affected adversely in any way. However, lawyers acting for the purchaser argued that the purchaser was interested in the property because the sale brochure stated, “say good-bye to the body corporate”. At the time of the proceedings, the purchaser had owned a strata property (subject to an owners corporation) and the purchaser did not want her new property to be also subject to an owners corporation. The vendor argued that the purchaser liked the brochure as a whole and that it would not have made a difference to the purchaser.

The vendor also argued that the owners corporation was dormant or inactive. The vendor gave evidence to the effect that the owners corporation had never convened meetings and that it had not issued any levies. However, the court was quick to dismiss this argument and held that just because the owners corporation had been inactive, that did not give sufficient rise to the assumption that it would never be active in the future. The owners corporation was held to be in existence.

Upon considering all the evidence, the Court held that if all the required information had been included as required by Sub-section 3(A) in the Vendor Statement, then there was a strong possibility that the purchaser would have not purchased the property. Accordingly, in this case the purchaser was able to establish that the breach occurred under Sub-section 3A.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Building Quality Defects in Off-the-Plan Purchase

The quality defects issue appears more often in an off-the-plan purchase.

A central issue surrounding quality defects is one where the purchaser is unhappy with the final product as built by the developer. Generally, the purchaser envisions the development to turn out as commercially advertised, but in reality, the development may not live up to its lavish advertising.

Reasons for difference in final product vs product as advertising

On the one hand, the purchaser is attracted to advertising surrounding the development and the lifestyle associated with buying into such a development. Conversely, the developer is busy working on a structured blueprint design of the building and is also working towards a strict budget. Therefore, often there is a discrepancy between what the purchaser envisioned and what the developer was able to provide.

How the developer may deal with the purchaser’s disappointment in regards to the final product of development.

In their contracts for sale, developers often insert an ‘entire contract’ special condition. This special condition operates to protect the developers from unreasonable purchaser expectations. The ‘entire contract’ condition does this by noting that any marketing tools surrounding the development may not exactly reflect the final product.

Nifsan Developments P/L v Buskey

In Nifsan Developments P/L v Buskey [2011] QSC 314, the purchaser addressed the marketing publications and stated that although the developer asked for payment to be made by the following week, the finished product was nothing like what the purchaser expected it to be. The developer had promised panoramic views but did not deliver. Another complaint of the purchaser was in relation to the size of the development being smaller than agreed. Here, the court acknowledged the ‘entire contract’ special condition but noted that it may not always be effective in protecting the developer. One can imagine a reason for this is that the ‘entire contract’ condition is overreaching and can potentially operate to protect the developer even where the developer’s final product has deterred greatly from the original advertised development.

A key issue with final developments: The actual size of the building

This is one of the key disappointments that purchaser’s face. Often, the final development built is much smaller than what the purchaser had originally agreed to. However, this can be as a result of architectural and structural issues arising during the construction process. It is to be noted that there are approximately three methods of measuring the area of a building. Usually, the developer opts to measure the area of a building according to the ‘external walls’ method. The purchaser will opt to utilize the ‘internal walls’ method, allowing for more space. Lastly, the purchaser’s financier will adopt the ‘minimalist’ method, which centres around useable space.

Birch v Robek Aust

In Birch v Robek Aust P/L [2014] VCC 68 the purchaser successfully avoided a contract where the building was much smaller than originally anticipated. In this case, the vendors were engaged in trade and commerce, therefore, the Australian Consumer Law was applicable. The Australian Consumer Law provides the purchaser with a list of rights reaching far beyond any rights under common law. In this case, the court applied the Australian Consumer Law and held that the architectural plans (with dimensions of the apartment) entitled the purchaser to expect that the final development would be reflective of those exact plans.

When calculating dimensions, it was shown that in one method, there was a deficiency of 16%, on another the deficiency was at 12% and on the developer’s calculation, there was a deficiency of only 2%. The court considered that the discrepancy exceeded 5% and thus applied the principle founded in Flight v Booth (1834) 131 ER 1160 in order to reach a decision favourable to the purchaser.

It was also noted by the court that the developer may have intended the measurements shown on the plans to be external, whereas the purchaser may have expected them to be internal dimensions. Nevertheless, the court concluded that intention as to external and internal dimensions was irrelevant in this case, as the end product, with its dimensions, was substantially less than what the plans had shown.

It is important to note that sometimes courts may hold opposing views on the issue of dimension measurement. For example, in the case of Sivakriskul v Vynotes P/L [1996] VicSC 479, the court denied the purchaser’s claim and decided to apply the ‘external walls’ method (utilized by the developer). We note that this case has not received acclaim by other courts and is yet to be cited. In coming to its decision, we also note that here, the court may have taken other factors into account and the circumstances of this case may have been very different from the cases discussed above.

Conclusion:

When purchasing a new off the plan development, it is important for purchasers to research the proposed developer, their company, and any buildings previously constructed by that same developer. It may be helpful to clarify the method by which dimensions are to be measured. Lastly, purchasers would be wise to keep in mind that often, advertisements are created to generate interest and that although the foundational elements of development should be present; some final products may not truly and wholly reflect the advertised product.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Land Tax Policies in NSW

If you own land in New South Wales and the value is above the land tax threshold, you may have to pay land tax unless you are exempt.

One main exemption is called the Principal Place of Residence (‘PPR’) exemption. Each family can only claim the PPR exemption for one property and the land should generally be used for residential purposes.

You need to continuously use and occupy the land as your PPR from 1 July to 31 December before the relevant tax year. In the case of joint owners, then at least one person needs to satisfy the requirement. The question of whether the land was continuously used and occupied is assessed objectively. That means, although your intention to live in the property is relevant, it will be considered against the actual number of nights you spent living in the property.

For people who spend a lot of their time overseas for work or other reasons, it is likely that if you spend more time in the overseas property then the Australian property will not be considered to be your PPR. You might allow your family to use the property, but to claim the exemption your family member should be a joint owner of the property.

There are many concessions for the requirement to use and occupy the land as your PPR. For example, if you live in your property continuously for at least six months and then leave, you can claim the PPR exemption for up to six years. However if you own or occupy another place of residence in those six years, then the concession will not apply.

If you disagree with the land tax assessment, you may submit an objection to the Chief Commissioner of State Revenue. There are also options for further review.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

An Introduction to the First Home Buyers Policies

First Home Buyer Assistance Scheme (FHBA) and First Home Owners Grant (FHOG) are the current national schemes introduced by the government to benefit the first home buyers. It is funded by the States and Territories and administered under their own legislations.

First Home Buyer Assistance Scheme (FHBA)

This scheme provides an exemption or concession on stamp duty. An exemption from transfer stamp duty for eligible first home buyers purchasing a new home or existing home valued up to $650,000 and vacant land up to $350,000. Concessions are available on stamp duty for homes valued between $650,000 and $800,000 and vacant land valued between $350,000 and $450,000.

To be eligible for the Scheme, a home buyer (applicant) must satisfy the following requirements:

  • The Contract for sale of land is entered into after 1 July 2017
  • The applicant is an individual over 18 years old
  • The applicant and the spouse (including de facto spouse) have never owned any residential property in Australia
  • At least one applicant is an Australian citizen or permanent resident
  • At least one applicant will move in within 12 months after settlement for a consecutive period of 6 months

First Home Owners Grant (FHOG)

This scheme provides a one-off grant payable to the eligible first home owners. The amount of subsidy on stamp duty and the grant varies in each State and Territories. In NSW, the grant amount has been revised to $10,000 if the transactions was made on or after 1 July 2017.

To qualify, the purchase price of your new home must be no more than $600,000. If you’re buying land to build a new home, the total price – including the land and home – must be no more than $750,000.

To be eligible for the Scheme, a home buyer (applicant) must satisfy the following requirements:

  • The home is a new home (including renovated home)
    • which has not been previously occupied – this includes occupation by the builder, a tenant or other occupant; and
    • which has never been sold as a place of residence and it must be the first sale of that home; or
    • which has been substantially renovated or the home has been built to replace a demolished premises
  • The applicant is an individual over 18 years old
  • The applicant and the spouse (including de facto spouse) have never owned any residential property in Australia prior to 1 July 2000
  • At least one applicant is an Australian citizen or permanent resident
  • At least one applicant will move in within 12 months after settlement or completion for a consecutive period of 6 months

However, an applicant may be eligible if he/she or his/her spouse, including de facto spouse, have owned any residential property in Australia on or after 1 July 2000 and the applicant has not resided in that property for a continuous period of at least 6 months.

If application is made through the applicant’s financial institution, the grant will be made available for settlement or for the first draw down on contract to build. If application is made after completion, it must be made within 12 months of completion. It is an offence to apply for the Scheme if the applicant is not an eligible person.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Who is Liable to Pay Vacancy Fees

What is a Vacancy Fee?

A Vacancy fee is an annual fee which must be paid by certain ‘foreign’ owners of real residential property in Australia if the property that they own is unoccupied for more than half of the year (183 days). The purpose of this fee is to discourage holding empty properties and improve access to housing for native Australians. This fee is administered by the Australian Tax Office (ATO). All foreign owners of residential dwellings are required to file a ‘Vacancy Fee Return’ so that the ATO can assess whether a Vacancy Fee needs to be paid.

Who is liable to pay vacancy fees?

Anyone liable to pay a Vacancy Fee must have all of the following characteristics:

  • They are a‘Foreign’ owner: A person who is not an Australian citizen and is not ordinarily resident in Australia (i.e., who has not stayed in Australia for 200 days out of the last year), who is
  • The owner of Residential property, which
  • Is not occupied or genuinely available on the market for at least 183 days out of the year, and who
  • Applied for FIRB (Foreign Investment Review Board) approval in buying the property.

Those to whom the Vacancy Fees apply will have received notice from the ATO with their FIRB approval.

Note that the criteria do not include people who did not have to apply for FIRB approval. As permanent residents typically do not have to apply for FIRB approval, someone who is a permanent resident at the time of purchase of their property, and thus who did not need to seek FIRB approval, is typically not required to pay Vacancy Fees or lodge Vacancy Fee Returns.

How to file a Vacancy Fee return?

All foreign owners of residential property who applied for FIRB approval in purchasing the property are required to file a Vacancy Fee Return annually. The Vacancy Fee Return is a document which records the details of the property and helps the ATO decide whether a Vacancy Fee is payable.

All foreign owners of residential property need to file this return regardless of whether the property is occupied for 183 days out of the year. If the ATO determines that no vacancy fee is payable based on the Vacancy Fee Return, no amount will be required.

The electronic form for the Vacancy Fee Return is available at: https://www.ato.gov.au/FIRBvacancyfee/

Filling out the form requires information provided in an email reminder to pay the Vacancy Fee, which the ATO sends to the email in the FIRB application.

The Return must be filed within 30 days after the end of every 12 month period you own it. The time when you own it is the time from which you gained the right to occupy the property- usually, the completion date.If you complete a property purchase on 1 Jan, you have to file a Vacancy Fee Return by 30 Jan every year. Friendly reminder to all foreign owners of property- keep an eye on the anniversary of your purchase, and remember to file the return every year! Late payments may result in fines or interest payments.

After lodgement of the Vacancy fee return, you will see a confirmation page containing reference details, any amount you need to pay and how to pay. The amount of payment and the payment due date will also be contained within an email sent in response to lodgement .

Are there any exceptions to paying a Vacancy Fee?

Even if one is a person who has to file a Vacancy Fee Return, there may be an exception to paying the Vacancy Fee if the property was unable to be occupied. If you meet the following conditions or similar, you may be able to waive the Vacancy Fee, but you will still need to file a Vacancy Fee Return to claim this exception, along with supporting evidence.

Criteria for exemptions due to unsuitability for occupation include:

  • the dwelling is damaged, unsafe or is otherwise unsuitable to be occupied as a residence
  • the dwelling is undergoing substantial repairs or renovations
  • occupation of the dwelling as a residence is prohibited or legally restricted, by an order of a court or tribunal or a law of the Commonwealth, state or territory; or
  • a person (who may or may not be the foreign person) who ordinarily occupies the dwelling was absent from the dwelling due to receiving long-term, in-patient, medical or residential care.

FURTHER INFORMATION:

For more information, please visit https://www.ato.gov.au/General/Foreign-investment-in-Australia/Annual-vacancy-fee/#Vacancyfeeexemptions

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Statutory Remedies for Oppression of Minority Shareholder

In companies controlled by a share structure, minority shareholders, who do not have a controlling stake in the Company, are often to a large degree at the mercy of the majority shareholders who hold a controlling stake. Often, special protections for minority shareholders can be found within the Company Constitution or a Shareholders Agreement.

However, there are also legal protections for shareholders are also built into Australian statute law, in particular, the provisions governing ‘oppressive conduct’ in Part 2F.1 of the Corporations Act 2001 (Cth) (‘The Corporations Act’). These provisions set out the grounds on which a shareholder may make an application for a court order, who may make a court order, and what remedies are available. As Commonwealth law, these protections apply to all companies subject to an Australian jurisdiction.

Standing

In order to apply for a court order, a person must have standing to apply. Typically, a person applying for a court order must be a member of the Company, or a person who has been removed as a member who is applying for a court order in respect of his removal, or any other person which ASIC (the regulatory authority for companies in Australia) deems appropriate. The full list of possible applicants can be found in Section 234 of the Corporations Act.

Grounds

A person who meets the requirements above can apply on grounds in section 232 of the Corporations Act for a court order on the grounds that the conduct of the company’s affairs, or any actual or proposed omission by or on behalf of the company, or any resolution or proposed resolution, is either:

  • contrary to the interests of the members as a whole; or
  • oppressive to, or unfairly prejudicial to, or unfairly discriminatory against, other members of the company, whether in capacity as a member or in any other capacity.

The case law has further developed tests for when conduct is ‘unfair.’ The test for unfairness is whether the ‘reasonable person’ would consider it unfair.The criteria for what a reasonable person might think are not clear cut, and each case must be considered on the individual merits.It is not enough for unfairness that one party is disadvantaged by an action; there must be an element of ‘unfairness’in the act which is more than the mere disadvantage.

Examples of unfair conduct can include but are not limited to:

  • Excluding minority shareholders
  • Redirecting business opportunities to oneself or one’s associates
  • Failure to consider minority shareholders’ requests and provide information due to them.

Unfair or oppressive conduct can include conduct technically permitted under the constitution of the company, so if you feel that you have been treated unfairly by a company of which you are a member, even if it is technically within the company constitution, it is still prudent to seek legal advice.

Available Remedies

The remedies available to a court under section 233 of the Corporations Act to assist oppressed parties are varied to address a variety of circumstances, and include but are not limited to:

  • that the company be wound up;
  • that the company’s existing constitution be modified or repealed;
  • for the purchase of shares with an appropriate reduction of the company’s share capital;
  • restraining or requiring a person to do a specific act

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.