This Christmas might be the last one before new short-term letting rules apply. 

The NSW Government has announced its policy on short-term lettings and has asked for feedback from the public and industry participants by 16 November 2018. 

Christmas is always a time for giving and receiving gift cards or vouchers.  How many times have you received gift cards and then when you get around to using them they have expired? 

Section 12 of the Succession Act 2006 (NSW) provides that a will is revoked by marriage unless that will was made in contemplation of marriage.  Practically, a will made in contemplation of marriage usually contains an express statement to that effect.  This was not the case in the recent Supreme Court case, Re Estate Grant, deceased [2018] NSWSC 1031 and the Court needed to determine whether the testator had made his will in contemplation of marriage.

An interesting question has recently appeared in estate planning.  Can an attorney under an enduring power of attorney make, alter or revoke a superannuation binding death benefit nomination (“BDBN”) for their principal if the principal lacks mental capacity?   By analogy to wills some people may think that an attorney cannot do such acts.  While it is settled in law that a principal cannot delegate to their attorney a power to make, alter or revoke a will, the recent Supreme Court of Queensland decision of
Re Narumon Pty Ltd [2018] QSC 185 shows that in some circumstances an attorney may make or alter a BDBN.  

As advised in our December 2016 Newsletter the Competition and Consumer Act 2010 (Cth) (“the Act”) has been amended to prohibit businesses from imposing excessive credit charge surcharges on consumers.  These amendments came into effect for all businesses on 1 September 2017. 

Surcharge purchaser duty and land tax surcharge (“the surcharges”) is currently operating in respect of a foreign person purchasing and owning a residential land in NSW.

Determining who is a foreign person is less straightforward than it might seem, particularly with respect to discretionary trusts.

If you have a customer who is tardy with paying your invoices then you’ll need to be careful you don’t SHOUT when demanding that they pay.  The recent decision of Trenfield v HAG Import Corporation (Australia) Pty Limited (No. 2) in the Queensland District Court involved the question of whether a creditor reasonably suspected that a debtor was insolvent.  The creditor wrote in an email to the debtor that they were unable to pay their debts and in a follow up email the creditor demanded payment “in a much larger font, which I suspect is the email equivalent of shouting”, so said Justice McGill in his judgment.  In this case the shouting email worked against the creditor.

Employers and employees need to be aware that an employment contract can include “implied” terms which are not expressly written or spoken about between the parties.  Two recent cases have addressed implied terms regarding suspension and “gardening” leave.

Airbnb has undoubtedly changed the short-term leasing market in Australia and many Owners Corporations are unhappy with the change.  In response, one Owners Corporation in Woolhara passed a by-law which had the effect of banning short-term letting in the building.  In a landmark decision by the NSW Civil and Administrative Tribunal (“NCAT”), it held that the Owners Corporation did not have power to make such a by-law.

The recent increase in young buyers using funds from mum and dad was sharply in focus in recent NSW Court of Appeal decision which highlighted the importance of parents having a properly written agreement with their children, particularly in the case of marriage breakdowns.  In Chaudhary v Chaudhary [2017] NSWCA 222, a father signed a statutory declaration as part of a bank loan obtained by his son and daughter-in-law stating that the funds he advanced towards the purchase were a gift that would not be recalled.  The father later paid the stamp duty and advanced a further amount, meaning that he advanced over $1.2 million in total as part of the transaction.