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Getting your Will drafted can feel like the most daunting and important part of the estate planning process. You have to make an appointment, provide your lawyer with personal details about your life and assets, and then review a legal document to make sure everything is correct – making another appointment to sign the final document is often inconvenient and procrastinated.

However, dying with a drafted, unsigned Will can cause significant complications during the administration of your estate, and risks leaving your executors with avoidable financial and emotional stress.

Wills Act 1997 (Vic)

In Victoria, for a will to be executed correctly and be held as valid, it must comply with the requirements of the Wills Act 1997. It must:

Be in writing and signed by the testator (the will maker), or by an authorised person in the testator’s presence and at their direction;
Be signed with the intention that the testator is executing a final will;
Be signed in the presence of at least two witnesses who are present at the same time; and
Be signed by the witnesses in the testator’s presence.

Unsigned Wills

The Supreme Court of Victoria can choose to admit a document to probate even when it doesn’t comply with the above requirements, however this is an involved process and is time-consuming and expensive, sometimes resulting in the will not being admitted to probate. The court will only admit a non-compliant document if it is satisfied that the document submitted was absolutely intended to serve as the testator’s last will, which can be difficult to prove where there is no compliance with the formal requirements for a valid Will..

Where there is no signature on the Will, the court has indicated a strong reluctance to admit the same for probate, particularly where there is no proof that the will was approved by the testator.

Robinson v Jones is a 2015 case concerning one such will. The solicitor was provided with instruction to draft a Will, and subsequently forwarded the draft to their client for approval. They advised the client that once approved, an appointment would be made to arrange for the signing of the same, however unfortunately, this client passed before providing their approval and signing the final document. The unsigned document was refused by the court due to the lack of approval, which it held indicated that the deceased did not intend for the document to be their final will.

By contrast however, the 2019 matter of Sultanova v Bungalow resulted in the unsigned will being successfully admitted to probate, due to the availability of evidence highlighting the testator’s intention that unsigned will be her final Will. Whilst the documents were unsigned, evidence was available to show the testator held an informed understanding of the document and had made arrangements to finalise the same. The court was therefore satisfied that the testator’s intentions were clear.

Regardless of the result, both matters listed above required additional time in the Supreme Court and Court of Appeal to ensure the correct conclusion was reached, and the estates were handled appropriately. This would likely have resulted in both costly legal fees, and avoidable emotional stress for the family members involved, and could have been easily solved by signing the Wills in a timely manner once the drafts were provided.

The lesson: don’t ignore your draft will! Get in quick and get it signed to avoid the need for lengthy court proceedings in future.

Time to pull the pin on planning your estate? Contact nevileco@nevile.com.au today.

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

If you, like many other people over the past few years, have decided to strike out on your own and start up a business, it can seem like a daunting task. Incorporation, GST, business names, trademarks – for at least the first few months you may find yourself doing just as much admin work as paid work. Below is a handy guide of things to consider.

Incorporation

Directors – who will be the director(s)? At least one must live in Australia.

Shareholders – how many shares, and who will own them? Are any shares held beneficially, such as for another person or Family Trust?

Director’s Identification Number

All Directors of companies now need to have Director IDs, for which you can apply here.

Trusts

If you think your company will end up generating healthy profits, it can often be wise to incorporate a Trust, whether that’s a Family (discretionary) Trust, or a Unit Trust, in order to maximise tax efficiency. We can set up a Trust for you while an accountant can advise you as to your financial planning.

Shareholders Agreement

A shareholders agreement is a pre-nuptial agreement for people looking to invest in a company together. It covers things such as what happens if one person wants to sell, or there is a dispute/deadlock between shareholders, or if one group of shareholders wants to sell the business, but another group doesn’t want to.

Names

Make sure your business name and company name(s) are available. Try using ABN Lookup in the first instance, as well as the ASIC website.

Trademarks

You’ll want to separate your business from your competitors. The first thing you should do is check IP Australia’s trademark register to make sure nobody else has registered a similar trademark in the same class of good or service as you.

We can advise on trademark registration and make the application for you.

Registering for an ABN, Business Name and GST

All businesses need to register for an ABN. You can do so with the ABR here.

You’ll want to register a business name, which can be done via ASIC.

For GST, head on over to the ATO’s website.

Asset protection

Now that the admin side of your business is up and running, you’ll want to make sure your hard earned profits are safe. Talk to us about developing a plan to keep your trading risks and your business assets separate.

Final word

Nevile & Co are experienced at helping small businesses with all stages of starting up. You should talk to us as soon as possible on your business journey so we can structure your business in a manner that protects it from potential risks and is tax-efficient. The earlier you chat to us, the better. If you’re thinking about taking the leap and starting your own business, contact Jack Nevile at jack.nevile@nevile.com.au

When organising an annual general meeting (AGM), the organiser must ensure that proper notice is given to each member of the owners corporation. The Owners Corporations Act states that this notice must be provided “at least 14 days before the AGM”. While this may appear straightforward, a closer inspection will reveal some curveball questions such as:

Does this period include the day of receiving the notice and the day of the actual meeting?
What if the notice was sent outside of business hours?
What if the notice was given on a public holiday?

It is important that these questions are carefully considered in order to ensure a fair and consistent process. Proper notification ensures that quorum requirements are satisfied, and the decisions reached in the meeting are valid.

By simplifying the governing legislation, this article aims to serve as a pocket reference guide to navigating the rules surrounding an AGM.

Part 1: What is an AGM?

An annual general meeting must be held with all lot owners if the owners corporation receives or pays out money during the financial year. This provides lot owners with the opportunity to discuss matters relating to their property as well as elect the committee members for the upcoming year. Other matters such as considering a maintenance program and allocating a budget are also brought to the AGM.

Members of the owners corporation also have the opportunity to vote on relevant matters and collectively reach decisions.

This is a formal meeting and requires significant preparation. This includes planning and structuring the meeting, preparation of reports, issuing an agenda and notices of the meeting to all members of the owners corporation.

Part 2: Giving Notice for an AGM

An AGM notice must be issued in writing and can be hand delivered, posted, or sent electronically. The Owners Corporation Act requires that notice is given at least 14 days before the AGM. To illustrate this, let’s say that the meeting is scheduled on the 16^th of June. The date of the AGM is not considered a part of the 14-day period. If the organiser were to count back 14 days starting from the day before the meeting (the 15^th of June) then they will arrive at the 2^nd of June. This is the latest date at which a notice must be given to an owner’s corporation member.

What if the notice is issued on a holiday?

According to the legislation, if the 2^nd of June is a public holiday, then the notice must be issued at next possible date (the 1^st of June).

When does a notice become effective if it is sent indirectly via post or email?

A notice becomes effective at the time which it is received by the member of the owners corporation. If it is sent electronically via email, it becomes effective the moment it reaches the receiver’s inbox, and the receiver is able to access it. This means that a notice may be sent outside of business hours and still be considered valid.

Alternatively, if the notice is sent via post, then it will be considered effective when it would be delivered in the ordinary course of the post and not at the time that it is sent.

To avoid confusion and a breach of your statutory obligations, make sure that you plan for the notice to be received 14 days before the AGM.

Like most things in life, sounds like a plan, however upon reflection, even a desert island has risks. Apart from exposure, hypothermia, malnutrition, insects, birds, sharks, not to mention mental issues like depression, it should be a breeze!

I was talking to an old friend of mine who is a farmer, and he was telling me about a conversation with one of his friends who is a high-pressure banker in town. The friend speculated that it must be very peaceful, relaxing, and stress-free to be a farmer. The farmer picked up a piece of grass and munched it quietly between his teeth, and then responded, ‘well, apart from the fire, floods, famine, drought, disease, and the bloody government and banks, yes it’s been quite a breeze.’ The reality is, there are risks in life and in business, and neither can be avoided.

However, perhaps one of our most important roles as lawyers is to help you identify, manage, and thereby minimise those risks. For example, in life, marriage is of course a risk, with the divorce rate exceeding 40%. Sickness is a risk. Financial stability is a risk. And death is a certain risk that we cannot avoid. In business, you only have to look at statistics for the failure of small businesses after 3 years. A very high proportion of small businesses or SMEs are no longer in existence after three years and generally the main reason is that they simply run out of cash, or have a lack of cash flow. They also say that people don’t plan to fail, they fail to plan, and I think that is another area I will address briefly.

Returning to risks in life, I guess, unpalatable as it may be, binding financial agreements or sorting out the financial situation in the event of a marriage failure in advance of your marriage while not particularly romantic is extremely practical. Similarly, understanding your needs upon an untimely death or simply a death from natural causes at the end of a long and fruitful life needs a Will and a degree of estate planning. As a plug for us, we are fortunate to have the services of Tracy Collins, an accredited Wills and Estates Specialist. Of course, if you’re not going to die then you don’t need a Will – but the reality is you will.

Not so many years ago, estates were often quite small. However, with extraordinary rises in property prices, estates exceeding one million dollars are becoming very much the norm. In addition, the situation is becoming even more complicated with blended families, and so while it is still possible to buy a ‘Will Kit’ they frequently have an immediate benefit of costing a lot less than a lawyer, but in the long term they cost a great deal more when it’s apparent that the testator’s (will maker’s) wishes are not actually reflected in the words chosen.

In business, the risks are probably generally less emotional but have greater financial consequences. As many of the risks are clearly identifiable, it’s important that steps be taken to address those risks. For example, many small businesses need to provide guarantees. They also have matrimonial home held in joint names. It’s important to separate your assets from your trading. Asset holding is not a risk. Trading does come with risks.

Accordingly, it’s sensible to quarantine your home, perhaps in your wife’s name, and leave her off all guarantees. There are also a variety of structures available to you, such as companies and trusts, joint ventures, etc. The worst thing you can ever do is go into a partnership where you are jointly and separately liable for the debts of the other party. This is not the place to go into great detail, but suffice to say it is much cheaper to pay legal fees upfront to identify, manage and minimise the risks than to sort out the failure of a business with all the financial and emotional consequences that flow.

We at Nevile & Co. have many years of experience in dealing with effectively risk management. For an obligation free consultation, please do not hesitate to contact us through our website www.nevile.com.au or on our telephone 9664 4700.

Peter Nevile

Do you know the correct way to respond to a yellow light? Getting it wrong may cost you dearly.

Understanding traffic lights are one of the most important road rules for motorists. Even as children, an integral part of road safety is knowing that ‘red means stop’ and ‘green means go’.

When it comes to amber or yellow lights, however, some confusion remains within the community about what the yellow light really means and the correct way to respond.

VicRoads states that at a yellow light, motorists must “must stop unless you can’t stop safely”, which has been described as meaning that motorists should view yellow lights as the start of red lights, not the end of a green light. When in doubt, stop! (unless suddenly braking would be likely to result in an accident)

Can I be fined for driving through a yellow light?

Simply put, yes. If you drive through a yellow light when you could have safely stopped prior to the intersection you are likely to be fined.

The penalties for driving through a yellow light in Victoria include the loss of three demerit points and up to 2.5 penalty units. For the 2022/2023 year, one penalty unit is equivalent to $184.92. This means you can be fined up to $462.30 for going through a yellow light.

If you choose to dispute the fine in court and lose, up to ten penalty units can be applied, translating to a $1,849 fine.

What should I do if I see a yellow traffic light?

If you are so close to the intersection that you need to slam on the brakes to stop, or that braking would have you stop in the middle of the intersection, then you should proceed through the yellow light. If you can stop without having to slam the brakes, then you should not proceed.

It’s also good to check your mirrors and be aware of surrounding traffic as you approach an intersection. How other vehicles are behaving around you may also influence your decision if the lights do turn yellow. If a car is tailgating you, the safest decision may be to proceed through a yellow light to avoid sudden braking that could cause a collision.

Depending on the local speed limit, yellow lights last for between three and five seconds (with higher speed limits requiring longer durations for safety reasons). Failing to respond appropriately to a yellow light risks not just financial penalties, but also collisions with other vehicles.

What do flashing yellow lights mean?

Occasionally you might come across an intersection where the traffic lights are flashing yellow. This usually indicates that the lights are not working. Police traffic controllers are usually quick to the scene to direct traffic when this occurs.

However, sometimes you may arrive at such an intersection before the police. In these circumstances you must follow the same rules as an intersection that features only a stop or a give way sign.

That includes giving way to any vehicle approaching the intersection from the right, as well as any oncoming traffic travelling straight or turning left if you yourself want to turn right. The safest option when faced with such an intersection is to make a left turn (which will have the least amount of intersecting traffic) and find an alternate route to your destination.

Yellow arrows

The same rules apply to yellow arrow traffic lights as they do for regular yellow traffic lights. That means you should not enter the intersection if you’re able to safely stop prior to it.

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

While a one star review may be frustrating for the business in question, unflattering reviews are unfortunately part of running a company focused on customer service. A one-star business review which is absent of accompanying text or elaboration will not be a sufficient ground for a defamation claim. This is predominantly due to the difficulty in establishing an objective defamatory imputation and that the publication caused serious harm.

Defamatory Imputation:

Firstly, the meaning that the impugned matter conveys to the ordinary and reasonable person must be identified. This meaning is determined:

(a) within the context of the publication; and

(b) with regard to the mode and manner of publication.

This meaning must then actually cause the ordinary and reasonable person to think less of the plaintiff. Namely, that the alleged conduct falls below the prevailing views and beliefs held by society at the time of publication.

Regarding Google reviews, the ordinary reader approaches the reviews with a “degree of caution,” as they would know that the reviews are largely expressions of personal opinion. The ordinary reader is therefore not surprised if there are “unflattering reviews” as these are common amongst businesses.

In this case, the readers are merely exposed to a comment that features a one-star review. The absence of any text accompanying the review renders the meaning of the stars a symbolic representation of consumer dissatisfaction. However, for the review to be characterised as more than merely “unflattering,” a more precise meaning must be determined. In Burrows v Houda, the Court held that emoji symbols were capable of carrying a defamatory meaning when considered in the context of the publication. This case featured a twitter thread where a reply to a comment with a single ‘zipper face’ emoji was held to imply that the writer knew some ‘secret’ concerning an allegation of guilt towards the plaintiff. Therefore, the Court will heavily rely on the surrounding context of the publication where the defamatory imputation is implied by a symbol and unaccompanied by text.

However, the chain of Google reviews is distinguishable from a Twitter thread as the submissions are not related or made in response to one another. Where there is no further engagement with the review (in the form of likes or comments from other users), it is unlikely that the ordinary and reasonable reader will regard the review as anything beyond a mere expression of opinion.

Having considered the context of the publication and the approach that the ordinary and reasonable person would take towards Google reviews, the derived meaning is that one particular customer was dissatisfied with the goods or services received from the business.

As previously stated, the Court acknowledges that one-star reviews are common and are approached by readers with caution. Whilst disparaging, the unsubstantiated review lacks the weight and specificity necessary to lower the business’ reputation in the eyes of the reader. Instead, a reader is likely to dismiss the review as merely “unflattering.” The claim will therefore fail in establishing that the alleged imputation was defamatory.

Serious Harm Element:

A recent amendment to the Defamation Act rendered proof of ‘serious harm’ a requirement to establishing a claim. ‘Serious harm’ is defined as harm to the corporation’s reputation that is, or is likely to cause, serious financial loss to the corporation.

It is unlikely that a single one-star review held such weight as to cause serious financial loss. Furthermore, the assertion that someone must have read the review because it was published online will not suffice. Instead, the plaintiff must correlate a loss in business or revenue with evidence (i.e., Google analytics) that the publication was actually read and received by a third parties.

It is unlikely that such a connection can be established here.

Honest Opinion Defence:

Finally, where the imputation is merely a statement of honest opinion a defence applies as to negate the publisher’s liability.

S 31 of the Defamation Act provides a defence for the publication of defamatory matter where the defendant proves that the publication was an expression of genuinely held opinion and not a statement of fact and related to a matter of public interest. This defence is provided to balance the policy interests of protecting the dissemination of free speech.

Therefore, the meaning conveyed by the symbolic one-star review is unlikely to form the basis of a defamation claim.

Please note: this entire article was written by an algorithm. Even the image generated above was generated by an algorithm. We take no responsibility for accuracy or grammar. If you want legal advice from a real human, contact us today at nevileco@nevile.com.au

Artificial intelligence (AI) has the potential to significantly impact the legal profession, including the way that law is practiced in courts and administrative matters. One example of AI in the legal field is ChatGPT, a natural language processing (NLP) tool that uses machine learning to generate text based on prompts provided by a user.

One way that ChatGPT and other AI tools could fundamentally alter the way that law is practiced is by streamlining the process of preparing court pleadings and other legal documents. Traditionally, this process can be time-consuming and requires a significant amount of research and drafting. However, with the help of AI, lawyers could potentially use ChatGPT and other tools to quickly generate high-quality legal documents, freeing up time for other tasks and potentially reducing the cost of legal services.

In addition to streamlining the preparation of legal documents, ChatGPT and other AI tools could also be used to assist with the analysis of legal cases and the identification of relevant precedents. This could allow lawyers to more efficiently review cases and make more informed decisions about the best course of action for their clients.

AI could also potentially be used to assist with the management of administrative matters, such as scheduling hearings and managing case files. This could lead to increased efficiency in the legal system and allow for more cases to be processed in a timely manner.

Overall, the use of AI tools like ChatGPT has the potential to greatly enhance the practice of law, by streamlining the preparation of legal documents, assisting with legal analysis, and managing administrative tasks. However, it is important to note that the adoption of AI in the legal profession will likely raise ethical concerns and could potentially lead to the displacement of some legal jobs. It will be important for the legal profession to carefully consider the implications of AI and ensure that it is used in a responsible and ethical manner.

If one picture contains 1000 words, imagine the power yielded by single emoji. One little icon (often used as poor substitute for grammar) has the ability to change the meaning, tone, and expression of a statement. Whilst often innocent, the case of Burrows v Houda [2020] NSWDC 485 has demonstrated that emojis are capable of carrying defamatory meanings. More broadly, this case reminds us that our screens and social media aliases are not a sufficient shield to protect us from the consequences of our remarks and comments on social media.

How are Emojis ascribed meaning?

In discussing social media posts, the Court regarded meaning as being constructed from pictures, words and dialogue. In Burrows, the plaintiff claimed that the words and emojis used in a thread to article posted on Twitter gave the impression that she was a criminal and had her professional character as a lawyer publicly deplored by a judge.

Whether the statements made in the post were defamatory depended upon the meaning that an ordinary and reasonable Twitter reader would gather from the emojis and the context within which they were used.

In particular “zipper mouth” emoji (🤐) was understood as implying that the writer knew more than what he revealed. This implication was reached by considering the context surrounding the emoji. Namely, that it was made in response to a comment asking what had happened to the plaintiff since the allegations made in the article were released. Having considered the surrounding circumstances, this emoji conveyed to the reasonable reader that the author was aware of some “secret” that he may have been reluctant to share concerning the plaintiff’s guilt. This implication was made at the time where the allegations of professional misconduct remained unconfirmed.

As the thread continued, a “clock face emoji” (⏰) preceding the words “Tick Tock” was interpreted as suggesting that “time is ticking” for the lawyer whose guilt will soon be revealed.

The court held that the emojis were in fact capable of conveying to the ordinary and reasonable Twitter user a presumption of guilt which had not been proven or established. Indeed, it was false and defamatory.

As communication continues to evolve across the internet with the rapid adoption of these modern hieroglyphs, defamation law has now increased its scope to include emojis in its consideration. It is therefore important to be vigilant in your social media presence in order to avoid inadvertently attracting a defamation suit. In mind of this recent court ruling, here are some suggestions on how to ensure safe and productive social media use.

Emoji Code of Conduct:

1. Be careful not to send or post emojis that are ambiguous in meaning. In defamation cases, it is of no importance what you intended to mean or what you thought the emoji meant, but rather what meanings the words and emojis are capable of giving rise to.

2. Be aware of your social media presence and whether the pictures posted, linked articles or comments you leave do not join in a constellation that may transform an innocent comment into a cause of legal action.

3. Do not take advantage of the protection offered behind your screen. If you are making false and defamatory statements, your iPhone may not be a secure method to shield you from legal consequences.

Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.

Whether you’re a commercial landlord leasing premises to a business, or the tenant who is renting a new property to begin a flourishing trade, you will need to have an understanding of the common clauses which appear to set out the obligations and liabilities of each party.

If you are the Landlord…

Quiet enjoyment of premises is crucial. A lease will not only require you to ensure that the tenant has the right to use and occupy the premises, but also to enjoy that right without substantial interference.

Insurance must be taken out and maintained for the life of the lease. This should account for any risk of damages and ensure you won’t be out-of-pocket should something go wrong.

Obligations of repairs and maintenance is another essential. For retail premises, section 52 of the Retail Leases Act 2003 (Vic) requires the landlord to maintain certain things such as the structure of the premises, fixtures, plant and equipment in the same condition as when the lease was entered.

Tenant’s default and landlord’s rights

You may have a right to terminate the lease if the tenant breaches any essential term of the lease, for example: tenant does not pay the rent, tenant does not fulfil its obligations or other events in respect of tenant’s non-payment, unpermitted use of the premises and failure of insurance obligations.

Damage to premises or building should be repaired quickly and if the premises or building becomes damaged and unfit for the permitted use, rent may be reduced in proportion to the extent of the damage until repairs are undertaken or, if the damage cannot be repaired, the parties may have rights to terminate the lease.

Landlord’s works is absolutely possible during the lease but needs to be carried out in consultation with the tenant. No works should disrupt the tenant’s business or affect their trade – and rightly so! They need to make that money to pay the rent on time!

If you are the Tenant…

Tenant’s payment should be made in full and on time and without deduction. This means you must pay rent in full even though you may other claims against the landlord.

Insurance should also be taken out by the tenant, especially public liability insurance. This is a very common requirement.

Lease transfers and subletting can only occur if the landlord consents to it.

Tenant’s use of the premises is restricted to the permitted use. It should go without saying that engaging in any illegal, noxious, offensive, or hazardous behaviours which affect the safety of the premises is a big no no. You may expose yourself to claims by occupiers of the neighbouring properties.

Tenant’s work can be undertaken with landlord’s consent. If you intend to make any alteration (including exterior signage), seek permission – not forgiveness! The landlord is entitled to impose some conditions for works, and even if consent is given, make sure you engage suitably qualified tradesperson to ensure the work is carried out properly.

Obligations of repairs and maintenance exist for the tenant to keep the premises clean and tidy for the duration of the lease, and to return the premises in the required condition by the end of the lease.

Tenants are responsible for the risks associated with the use and occupation of the premises. The landlord is not liable for any damages caused by the tenant, and tenants must indemnify the landlord against any claim relating to damages.

These are some of the common clauses found in most leases and they outline the essential obligations and responsibilities of each party undertaking the lease – and give the lease it’s effect. If you are leasing or renting a premises for businesses, or you are considering it, please do not hesitate to contact Nevile & Co Lawyers.

“The ordinary market price of land depends everywhere upon the ordinary market rate of interest. If the rent of land should fall short of the interest of money by a greater difference, nobody would buy land, which would soon reduce its ordinary price. On the contrary, if the advantages should much more than compensate the difference, everybody would buy land, which again would soon raise its ordinary price. When interest was at ten per cent, land was commonly sold for ten and twelve years’ [rent]. As interest sunk to six, five, and four per cent, the price of land rose to twenty, five-and-twenty, and thirty years’ [rent].”

Adam Smith in 1776

Higher interest rates mechanically reduce the price of land. Lower interest rates mechanically increase the price of land. This has been well documented since the 1600s and probably known since time immemorial. Notwithstanding, there are a lot of people running the country who are somehow unaware of this, the Reserve Bank of Australia being one of them.

Many buyers were lulled into the recent explosion of property prices, due to the manipulation of interest rates down to 0.1% by the RBA, and now suffer buyer’s remorse as mortgage rates hover around 7%.

Australians have discovered that house prices can go in a second direction. After previously stating prices would remain at a permanently high plateau, the RBA now forecasts a 20% decline. They may fall even further as unemployment increases, low fixed-rate mortgages revert to high variable rates, and higher food and electricity bills mean less money for mortgages.

With this backdrop, many clients approached us asking how they can get out of their Contracts. Below are some common ways to avoid going ahead:

The Cooling-Off Period

If you didn’t buy the property at auction, you have 3 clear business days in which to change your mind and back out of the Contract.

Unable to obtain finance

If you purchased your property “subject to finance”, you can withdraw from the contract without penalty before a certain date (written in the particulars) if you made reasonable efforts to get a loan. This is not a get-out-of-jail free card. Some have tried pretending they got rejected, and the Courts are very harsh on them, however others genuinely cannot obtain a loan now that interest rates have shot up.

Building/Pest inspections

If your Contract is conditional upon building or pest inspections, you normally have 14 days to obtain them. If the building inspection finds ‘a major building defect’, or the pest inspection finds a ‘major infestation affecting the structure’ (usually termites) then you can withdraw from the Contract without penalty.

Agreement

The magic of contract law means you can do just about anything by mutual agreement, including negotiating with the Vendor to release you from the Contract. If you don’t ask, you don’t get. You would probably have to make a very generous offer. This may include forfeiting your deposit, paying the agent’s fees and legals, or even money for the Vendor’s time. Ultimately, it’s up to the Vendor – they may want to move on in life, and have little patience for your change of mind.

Defective Vendor Statement

Finally, there is the Hail Mary – hoping their lawyer/conveyancer/agent has made a mistake. The Vendor must provide a Vendor Statement outlining the property, rates, notices, and other planning and zoning details. If the Vendor failed to disclose important information or provided misleading or deceptive information, you may be able to withdraw from the Contract without penalty.

If you would like advice on property matters, including conveyancing, contact us today on 9664 4700 or by email at property@nevile.com.au

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