Issue 62 - April 2009

• Owner builders liability to subsequent purchasers
• Apprehended Violence Orders
• Licensing system reforms for senior drivers
• The importance of proper (and timely) advice
• The Verdict

Are you at risk? Owner builders liability to subsequent purchasers

Under the Home Building Act 1989 (Act), owner builders are liable to any person who purchases the property (and not just the person who purchases directly from the owner builder) for defective building works that are in breach of the statutory warranties contained in the Act. 

Accordingly, owner builders should carefully consider the warranties and their obligations under the Act prior to commencing any building works. In particular, owner builders should note that one of the warranties prescribed by the Act is that the work will be done in compliance with the Act or any other law (which includes the the Building Code of Australia (Code)).  The Code is very detailed and strict compliance to its terms may be difficult for owner builders with limited knowledge of the particulars of the Code.

Some of the other warranties prescribed under the Act include:

That the work will be performed in a proper and workmanlike manner in accordance with the plans and specifications in the contract;
That all materials will be good and suitable for the purpose for which they are used and unless otherwise stated will be new; and
That if the work is to be the construction or renovation of a dwelling, that after the works are completed, the dwelling will be fit for occupation.
The above warranties are implied in all contracts for the sale of a property where owner builder works have been undertaken and any express terms attempting to exclude the operation of those warranties will be void.  Penalties may be imposed under the Act for breach of those warranties.  Further, breach of those warranties may also result in any person who has purchased the property commencing proceedings against the owner builder for damages arising from the breach. 

If you have been an owner builder, are considering undertaking owner builder building works or have purchased a property from an owner builder and have any further questions please contact Rebecca Flynn or Melissa Grant or email rebecca@wmdlaw.com.au or melissa@wmdlaw.com.au.

How do AVOs work? Apprehended Violence Orders

If someone you know, whether it be a family member, friend, neighbour or co-worker is harassing, threatening, intimidating or causing you fear in anyway, then you then you should consider applying for an Apprehended Violence Order (AVO).

An AVO is an Order made by the Court to protect a person. An AVO protects a person by ordering defendants (the person that is causing you fear) not to do specific things. The AVO will list a number of things that the defendant must not do, including but not limited to behaving in any way that causes you fear, directing third persons to harass and/or intimidate you or coming within a certain distance of where you live or work.

You can apply for an AVO by making an appointment to see the Chamber Magistrate at your closest Local Court, through the NSW Police or your lawyer. If the incident involves children, you should contact the NSW Police first.

You will be required to attend Court after the AVO Application is filed with the Local Court and served on the defendant. When you go to Court, the Magistrate will consider whether the AVO should be made. If the defendant disputes the AVO, the Court may make an Interim AVO and set the matter down for a hearing to determine whether an AVO should be made on a final basis. If a final Order is made for an AVO, the Magistrate will decide how long the AVO will remain in force, which can be months or years.

If you decide that you no longer require the AVO, you can apply to the Court to have it cancelled. In some cases, the police have the power to proceed with the AVO on your behalf even if you tell them that you do not want an AVO.

You can also apply to the Local Court have an AVO revoked or varied any time after the Court makes a final Order for an AVO.

If you have any questions or would like us to assist you with the making of an Application for an AVO, please contact Kevin Dwyer or Kieran Haydon on 9525 8688 or email kevin@wmdlaw.com.au or kieran@wmdlaw.com.au.

Medical checks for all drivers from age 75 Licensing system reforms for senior drivers

The NSW Government has recently amended the licensing system for senior drivers, signalling the first major reforms since annual mandatory testing for over 85 year old drivers were introduced in the 1960s.

The changes now require that:From age 75 onwards, drivers require an annual medical check-up by a GP, lowering the previous age of medical testing from 80;
Drivers aged 85 + must sit a driving test every 2 years, rather than annually. However, senior drivers also have the option of obtaining a restricted licence permitting them to travel only within a 5-15km radius of their home without the need for bi-annual testing; and
Drivers aged 85+ are also now allowed to choose a private assessor on a fee for service basis to do the testing rather than the RTA as previously required.
With the senior driving population expected to increase from 23,000 to over 52,000 by 2023, these reforms have been put in place to balance the safety of road users and the general community with the continuing independence and mobility of senior drivers.

For more information on changes to NSW driving legislation or if you find yourself in trouble with the law on the road, please contact Kevin Dwyer or Kieran Haydon on 9525 8688 or email kevin@wmdlaw.com.au or kieran@wmdlaw.com.au.

Take care when selecting an entity for transactions The importance of proper (and timely) advice

It is important for anyone deciding to purchase an asset to obtain proper, professional and timely advice about who should be the legal owner of the asset. It is often the case that this type of advice may need to be sought from a range of professional advisers such as your lawyer and your accountant.

By way of illustration, if you were in the market to buy real estate, there are many different entities which you could decide should be the owner of that property. For example, the property may be purchased in your name personally, it may be purchased by a spouse or relative, by a company of which you may be a director or shareholder, by a superannuation fund, a family trust or a unit trust.

There are different advantages and disadvantages for each of these types of structures and you may find that one structure is the best choice for your home, whereas a different structure is the preferred entity for your investment property and that a third structure is better for the purchase of the premises from which you operate your business. Not only is it the case that different types of properties may be more (or less) suited to one structure than to another, it is also the case that the most appropriate structure will vary depending on your stage of life and your particular risk factors as at the date of acquisition and your forseeable future risk factors.

The laws which govern stamp duty, land tax, income tax, capital gains tax, inheritance and deceased estates, asset protection, bankruptcy and family law will not always coincide to give you a clear indication as to which structure is most appropriate. In fact, a compelling asset protection reason for the property to be purchased in one structure type may result in a land tax liability which would not be created if another structure type were used. In these cases, the final decision as to the chosen structure can only be made after a proper consideration of all the issues and you may decide to make the decision for asset protection reasons with an understanding of what the land tax consequences will be. Accordingly, it is very important to ensure that you have taken proper advice from a range of advisers before deciding on which structure is the best one for you.

The consequences of choosing the wrong structure can be very serious and they can range from an unexpected stamp duty or capital gains tax liability, to the risk of the asset being lost in a bankruptcy or a family breakdown to the requirement to pay additional stamp duty.

If you require any further advice or information in relation to the types of structures which are available, or in relation to any property related question, please contact Rebecca Flynn or email rebecca@wmdlaw.com.au.

Your questions answered  The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously, we are not able to provide specific legal advice or advice in relation to a current legal matter. If you have a question you would like us to answer, please submit it by email to melissa@wmdlaw.com.au.

Does my girlfriend have entitlements to seek a share in my property upon our separation?
Yes, in some circumstances a claim for a share in a de facto couple’s property can arise.

On 1 March 2009, changes to the Family Law Act 1975 (Cth) (Act) came into force. In essence, these changes enable de facto couples, including opposite-sex and same-sex relationships, to seek orders in relation to financial matters in a similar way to married couples.

In order to apply for orders in accordance with the Act, the de facto couple must meet the following requirements:the persons are not legally married to each other;
the persons are not related by family;
they have a relationship as a couple living together on a genuine domestic basis;
the period or total of the periods of the relationship is at least 2 years or there is a child of the relationship or the relationship was registered or the party to the de facto relationship who applies for the order made substantial contributions and failure to make an order would result in serious injustice; and
the application for financial orders is made within 2 years of the separation of the relationship.
In determining whether the persons have a relationship as a couple, the court will consider factors such as the duration of the relationship, the nature and extent of a common residence, whether a sexual relationship exists, the ownership, use and acquisition of property, the degree of financial dependence or interdependence and the degree of mutual commitment to a shared life amongst other things.

The Act acknowledges that a de facto relationship can exist concurrently with other relevant relationships including a concurrent marriage and/or a concurrent de facto relationship. Therefore, if a person is involved in more than one de facto relationship or is married and at the same time is involved in a separate de facto relationship, a party to the de facto relationship may qualify for orders in relation to the financial matters upon separation if the application is made within the required time frame.

Please contact Greg Dickson or Amanda Solomon or email greg@wmdlaw.com.au or amanda@wmdlaw.com.au if you require any advice as to whether these provisions apply to you.

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