Roger brings to Nexus almost 20 years of experience as a lawyer, with over 12 years’ expertise in employment law.
Roger’s solution-focused approach to employment law issues and disputes allows him to secure early resolutions where possible. Roger is skilled at extracting the key points from the myriad issues that can arise between business owners and workers within the employment relationship.
Roger has acted as both Lawyer and Advocate for businesses in the Fair Work Commission, and the Federal Circuit Court.
The post Roger Lewis appeared first on Nexus Lawyers.

Colin brings to Nexus over 30 years of Australian and international legal expertise from both private practice and in-house. His practice focus is on Governance Risk and Compliance, which is the management of non-financial risk. He is highly experienced in delivering practical and commercial advice to clients facing increasing complexity in their compliance obligations.
Having spent over a decade in Asia, Colin provides a breadth of international experience and commercial understanding to his practice. His depth of experience as a financial services lawyer allows him to deliver deep insight into how compliance integrates into businesses.
Colin has advised on a broad range of Governance Risk and Compliance matters spanning a diverse range of businesses, including board level strategic decisions addressing compliance failures and how to best to mitigate liability and minimise reputational damage.
The post Colin Miller appeared first on Nexus Lawyers.

Hear on Lucy Dickens’ Doing Law Differently podcast (Ep 52) how being part of the Nexus Law Group has helped Group Principal Tara Lucke grow her practice, follow her career passions and find life balance.
 
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Jeremy’s experience over 38 years in practice includes numerous litigation matters in both State and Federal jurisdictions and non-litigious advisory & transactional work in trusts, estate planning, property law and commercial transactions.
His clients over the years have included corporates, banks, property developers/managers, financial advisory firms, representative bodies and private clients. His broad and diverse skill base allows him to identify and resolve a wide range of legal issues for a wide range of clients.
After many years as a partner in two Adelaide law firms, Jeremy began practice as a sole practitioner in 2007 to develop legal technology to assist in the more efficient delivery of legal services. This led to the development of his own automated online document assembly software which he uses extensively in his practice.
The post Jeremy Duffy appeared first on Nexus Lawyers.

Award winning NewLaw firm Nexus Law Group has announced the launch of its new Adelaide office with the appointment of Commercial Property and Estate Planning specialist and legal technologist, Jeremy Duffy, as its Principal.
Jeremy Duffy is a highly experienced and well respected lawyer with over 30 years’ experience in delivering commercial and succession planning services to the South Australian market. Jeremy is also experienced in legal technology, having created his own online document generation platforms EstateWise and YOOConnect, which he has used to deliver cost and time efficient legal services to clients, such as in the delivery of estate planning and commercial leasing services.
“With his technology background, Jeremy is a great asset to Nexus and we are very excited to have him join us in setting up a formal base in Adelaide. This is part of a longstanding plan to implement our business model nationally with great lawyers who are aligned with our cultural values and innovative practice structure,” said Nexus Law Group Managing Principal Marcus McCarthy, “I am particularly excited about working with Jeremy on some of our technology platforms, including OpenLaw, and targeting quality senior lawyers in South Australia looking for a better working environment for their practice.
“Nexus is a positive revision to the law firm structure that connects independent expertise as one law firm. We are focused on creating a law firm of depth and a solid base upon which our ‘dedicated contract’ lawyers can build a successful and rewarding career for themselves. Jeremy will form part of the leadership team as Nexus expand our teams nationally,” he added.
Prior to joining Nexus, Jeremy was interested in legal innovation globally and looking to build a peer group of like-minded lawyers. “Nexus offered me the platform to implement my vision for a better form of legal practice in South Australia. I believe Nexus offers lawyers the best of both worlds – the flexibility of sole practice with all the benefits and peer support of a large firm,” said Jeremy on joining Nexus. “Its approach to delivering client-first legal support and practice innovation was of great attraction. Being able to access a national network of experienced specialist peers will also allow me to provide a new level of legal support and expertise to my clients in South Australia.”
The post Nexus Law Group opens new Adelaide office appeared first on Nexus Lawyers.

Nexus Law Group is excited to announce the launch of a new division, Nexus Expedite, focused on Corporate Secondments and Legal Project Management.
Nexus created this new division in response to growing client demand for managing complex multidisciplinary projects and placement of highly qualified lawyers and compliance professionals for supporting existing in-house legal functions.
Nexus has appointed San Shim as Director to lead Nexus Expedite, who formally established and ran KPMG’s Flexible Legal Resourcing lawyer secondments and projects service.  San is also a qualified lawyer specialising in Corporate and Employment Law; with a unique background having spent over 18 years’ in Executive Search, Talent Management and Management Consulting. San joins Nexus Law Group after successfully executing and delivering several strategic initiatives at KPMG over the past five years.
“We are very proud to launch Nexus Expedite in such capable hands and are excited to be able to offer our clients a much more cohesive legal project management and secondments service,” said Nexus Law Group’s Manager Director Marcus McCarthy, “Our structure is perfectly geared to offer secondments and we have done multiple placements over the years but we have never had someone with the unique skills required to grow and build that division properly. San adds a whole new dimension to our business and we are lucky to have him”.
“Our unique operating model was built to provide clients with direct access to senior specialist lawyers who, unlike many of the other secondment businesses, are fully interconnected and supported by the wider group membership – simply because we operate a full service law firm that stands behind our contracting lawyer network. Our lawyers have always enjoyed the flexibility of independent practice with all the benefits, resources and peer support of a large national firm. Clients using Nexus Expedite enjoy the same benefits and this allows us to deliver this same point of difference in the growing secondments market. It was always the next logical step in our business progression.”
Nexus Expedite Director San Shim observed that clients are demanding more than just traditional legal services from their law firms, “Clients need trusted advisors who understand their pain points and act as a true business partner, offering simple and quick solutions to complex problems and resourcing issues.”
“Clients do not want to just hire a lawyer these days, they want manage how they engage external professional services in a way that best suits their ultimate business goals,” said San, “From the moment a client engages with Nexus Expedite, they are speaking to a management consultant and qualified lawyer, experienced in procuring external legal functions and delivering projects. This ensures that from the very start, their brief is properly understood and allows us to effectively and efficiently deliver the right set of skills to meet their needs at any given time.”
“Nexus was always committed to changing the way legal services are delivered and experienced,” said Marcus, “Our mission is three-fold: Firstly, to deliver top level services at a significant costs saving; to build a more common-sense and rewarding structure for the practice of modern law; and lastly, deliver clients direct access to the right expertise at the right time. Nexus Expedite allows us to do this in a much more cohesive way for a growing segment of the market.”
The post Nexus launches legal projects and secondment division, Nexus Expedite appeared first on Nexus Lawyers.

San has enjoyed a unique multi-disciplined career, spanning over 18 years in professional services as a management consultant, commercial director and a lawyer. San joins Nexus Law Group after having spent five years with KPMG to combine his legal and commercial expertise to continue to work with his clients as a genuine trusted advisor.
Nexus appointed San to lead its Corporate Secondments and Legal Project Management division, Nexus Expedite. Through Nexus Expedite, San partners with clients to procure relevant legal resources as and when required, allowing businesses to scale up their legal capability and capacity to meet internal customer demands.
In his leadership roles, San has successfully executed and delivered several strategic initiatives for clients over the past five years. He has delivered management consulting expertise in Legal, Human Resources and Talent Management and has helped clients of varying sizes across APAC, EMEA and The Americas.
San has a genuine passion for providing legal services in a holistic manner. His client-centric approach is keenly focused on delivering tangible outcomes and scalable solutions for his clients.
The post San Shim appeared first on Nexus Lawyers.

Keith has broad range of knowledge and over 30 years’ experience acting for individuals, business owners, families and large Institutions.
Keith has a particular interest in estate planning and works closely with financial advisors and accountants to provide holistic solutions.
The post Keith Spencer appeared first on Nexus Lawyers.

A constant problem in construction and procurement is parties arguing about whose terms apply when both have issued their standard terms.  When a dispute arises, the courts are faced with what is known as a ‘battle of forms’ and must decide whose terms, if any, should be preferred.
A contract is formed at a particular moment in time and, in the absence of any way to separate purchase terms form supply terms, the Court must choose between them. You can imagine the problem this causes in terms of uncertain arguments and additional legal costs when a dispute arises.
Best to avoid the problem entirely and thankfully there is a simple way to do it.
So what happens?
It is the speed of contracting that usually causes this problem. Supply arrangements for building and construction sites tend to work like this:

A party (the Contractor) issues a request for quotation (probably calls the supplier for prices);
Supplier issues quotation, often including its terms of trade;
Contractor settles further terms verbally, such as price, timing, availability, specifications or delivery requirements;
Contractor then issues a purchase order containing its own terms and conditions, which might also restate some details in the supplier’s quotation;
Neither party signs the other’s terms and the supplier commences manufacture and delivery;
Supplier invoices for the supply. Contractor is not happy with some aspect and applies its terms to deduct an amount, and the dispute begins.

In this circumstance it is likely a court will accept that both sets of terms apply and where there is an ambiguity (i.e. a clash between respective terms), the Court will simply decide for itself the intention of the parties and which particular term applies or takes precedence – the classic ‘battle of forms’ argument begins.
Each party probably believes (or hopes) that their terms apply, and has its own understanding of what was agreed over discussions and emails. The result is that the dispute becomes highly complex, costly and difficult to resolve.
There is a simple solution

Understanding the problem and basic principle of ‘battle of forms’ is a good start. It means you’ll not be lulled into a false sense of certainty just because your company has issued its standard terms of trade.
Get a signature or at least an acknowledgement from the other party that they are bound to your terms.
Insert an ‘order of precedence’ clause in all you contracts that ensures your terms sit above any terms to the contrary.
Watch for a similar clause in the other party’s conditions – you may just find yourself on the receiving end of such a clause.
If you suspect there might be a misalignment of expectation, say something. Although it could be a prickly upfront discussion, 99 times out of 100 it will be far easier and cheaper to resolve issues before delivery has occurred than once the goods or materials have been supplied and the project is in full swing.
Use a proper supply agreement that both parties sign for all higher value supplies, and save ‘purchase order contracting’ for small, one-off and low risk supplies.

This is one of a series of articles about finding the balance between adequate contractual protection and unnecessary cost and delay in the procurement process.
The construction team at Nexus lawyers helps manufacturers, suppliers, contractors and owners get the procurement process right. Feel free to reach out to Simon ([email protected]) for an initial discussion about issues you have experienced in your procurement processes.
The post The Eternal ‘Battle of Forms’ – Purchase Orders v Quotations appeared first on Nexus Lawyers.

In an interview with Levi Gardner from CRE Insurance, Simon Forsteling discusses whether current policies held by or readily available to builders and designers are likely to meet insurance requirements of the new Design and Building Practitioners Bill 2019. The interview helps clarify the position telegraphed in our article last week Bolstering Consumer Confidence – the practicalities of the Design and Building Practitioners Bill 2019.
https://nexuslawyers.com.au/tecset/wp-content/uploads/2020/06/Interview.mp4
The post An interview with Levi Gardner from CRE Insurance appeared first on Nexus Lawyers.

We understand that cashflow is difficult to maintain during this pandemic, particularly for the construction industry when site operations have been scaled down to comply with current social distancing measures.
Whilst other methods of recovering payments have been made less potent by recent legislative changes, the Security of Payment Act always provides a solid option for contractors seeking to maintain their cashflow and recoup outstanding amounts which have accrued over the course of a project. None of the rights under this legislation have been affected by recent Covid related regulatory changes in response to the pandemic.
It is worth remembering that SOP Adjudications, although still an interim solution for progress claims can be effectively used as a fast and cheap alternative to filing Court proceedings. Although not immune to subsequent Court challenge our experience is that in most instances they resolve disputes once and for all.
During this time, it would be beneficial for contractors to consider:

The amount and extent of the payment claim to be made – can and should it involve delay or scope change claims as a result of Covid implemented measures;
If you are on the receiving end of a payment claim, the urgency and requirements for serving a valid Payment Schedule within 10 business days;
The capacity to prepare or assist in preparation of an Adjudication Application, including the enforcement of it;
Is a Payment Withholding Request on the Head Contractor or Principal appropriate?; and
What evidence you will need to prove or defend your claims.

The Nexus construction team is highly experienced in this area and has conducted hundreds of Security of Payment matters over the years. If you require any assistance or advice in relation to a SOP claim, please contact Nicholas Achurch or Marcus McCarthy.
 
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The Design and Building Practitioners Bill (the Bill) has now been passed as of 3 June 2020 and assented on 11 June 2020.
An overview of the major reforms introduced by the Bill were discussed in our previous article here. This article digs deeper into the detail of the Bill, and looks at some of the more practical implications on builders and designers.
A quick re-cap
Consumer confidence in the construction industry has suffered as a result of a number of high profile building failures including Grenfell Tower in London, and more recently the Opal and Mascot Towers in Sydney. These cases brought to light both inadequate design and building practices, and questions around liability for defects, particularly where property had been on-sold.
At its heart, the intent of the Bill is to introduce and uphold a standard of competence, diligence and integrity that a member of the public is entitled to expect of a reasonably competent practitioner by introducing three keys elements:

Regulated designs;
Registration requirements for design and building practitioners;
Declarations of compliance for the design and building by practitioners.

A Statutory Duty of Care
Part 4 of the Bill builds on existing common law and statutory duties of care owed by designers and builders to property owners. There is now no doubt that builders and designers owe a duty of care to subsequent property owners. The Bill clarifies that the duty of care owed by builders and designers is to exercise reasonable care to avoid economic loss which is caused by defective design and building works.
Although the duty of care cannot be contracted out of, the defence under s 18F of the Home Building Act 1989 (NSW) is still available to contractors. The nature of the defence is discussed in detail in our previous article here.
Requirement for transparency
A core aspect of the bill is that all aspects of the construction process are laid bare and available, to prevent issues arising from unscrupulous contractors. To this end, the register of practitioners will be publicly available and may include details of prosecutions, penalties, warnings and conditions applicable to each registration.
Significantly, the bill also imposes upon builders the requirement to provide a list to Fair Trading of subcontractors and other third parties who have worked on the build. Provision of such a list will allow owners to easily identify all parties who contributed to the works, and hopefully minimise time and cost to investigate and identify the responsible party in the event of a defect.
Requirement for registration
Building and design practitioners must be registered in order to provide compliance declarations which effectively means that construction won’t be able to start, and an occupation certificate can’t be  issued without registration. Although the Bill specifies that, as a minimum, architects, engineers, drafts-persons and various designers will need to be registered as design practitioners, the Bill does not deal with exactly who will be able to or required to apply for registration, nor does it deal with recognition of current registrations and licences (licensed builders or architects for example).
The Bill is clear that should practitioners fail to register or keep current their registration whilst providing these services, they may be liable for a penalty from Fair Trading, or disciplinary action from the relevant professional body.
Requirement for Compliance Declarations
There will be three different types of compliance declarations:

A declaration from the design practitioner, to be given to the builder before building work starts, that the building has been designed in accordance with the Building Code of Australia and other applicable requirements, (design compliance declaration);
A declaration from the building practitioner, to be given before applying for an occupation certificate, that the building has been constructed in accordance with those certified designs (building compliance declaration); and
An optional declaration from a principal design practitioner that all relevant design compliance declarations have been provided (principal compliance declaration).

These declarations mean that for the first time, designers will need to ensure compliance of their designs, and builders will need to ensure that what they build complies with the design (including requirements of the Building Code of Australia).  The result is greater assurance to owners that building work will comply with the relevant laws and regulations.
The need for compliance declarations may have a number of time and cost impacts on projects including:

On larger projects with multiple facets of design, builders may be faced with additional costs of engaging a principal design practitioner, with responsibility for ensuring that design compliance certificates have been provided for each regulated design; and
The need for design compliance declarations to be obtained before starting work may result in delays to project commencement.

Requirement for insurance
The Bill provides that designers and builders must hold and maintain an adequate insurance policy, and if not, then they must not make a declaration that designs and built elements are compliant.
Although the regulations may introduce specific requirements for certain types of insurance that must be maintained, at a minimum, policies must cover liability which practitioners may become exposed to by providing declarations or doing the work.
Designers should have existing professional indemnity policies in place, and some builders may too. Existing policies should be reviewed to ensure that cover is sufficiently broad. Although details of requirements are scant, it seems likely that many current professional indemnity policies may not be adequate. Clearly builders who do not even have professional indemnity policy will need to purchase cover to meet the requirements of the Bill. It is not even clear that policies which meet the requirements of the Bill are available in the current market, so watch this space.
Implications of non-compliance
The Bill has included a suite of new and severe penalties should design and building practitioners fail to comply with the Bill. Such offences include, but are not limited to:

Failure to adequately insure works/designs;
Failure to provide adequate information;
Providing false and misleading information;
Failure to provide compliance declaration;
Providing compliance declarations unregistered;
Failure to build in accordance with regulated compliant designs;
Failure to carry out works or performance solutions in accordance with regulated designs;
Failing to provide information during and investigation; and
Providing false and misleading representations.

Penalties range from $10,000 to $330,000 per offence and up to 2 years imprisonment for some.  Disciplinary action may also include a requirement to undertake training, suspension or cancellation of registrations, and disqualification of practitioners.
Where to from here?
Much of the detail of the legislation has been left to the regulations, and timing for enactment of these is uncertain. Regulations will have the capacity to give the legislation very broad application, including significantly:

The types of building work to which the legislation applies;
What constitutes a regulated design; and
Who is a building contractor.

The passing of the Bill represents a new high in the level of industry regulation, which is driven by necessity to bolster public confidence in the industry and ensure that buildings are designed, built and certified correctly. If you would like to receive updates as to when the Bill will commence as an Act and enactment of regulations, please provide your email below, or reach out to Nick, or Simon  directly.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.

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“I don’t need a Will – I am young and I don’t own anything!”
I often hear this from young people and it worries me because it just isn’t right. Particularly considering current world events, I feel compelled to take a moment to set the record straight.
If you are over the age of 18, you need a Will and here are the reasons why:
Reason 1:  It isn’t just about what you own now
Firstly, if you think about it you probably have more assets than you realise, such as superannuation or your carbon mountain bike but that is not the point – it’s about what you own in the future.    
Even if you own very little now, a Will captures your new motorbike in 2 years’ time, the signed footy jersey, your first car and even the first house that you buy. What about the unexpected inheritance or lottery win – who is going to get that if you don’t have a Will?
A Will captures everything you have now and into the future and lets you say who gets what and who you want to manage all this. It may be great to think of these things after the event but even better to have all your future property sorted in case you get hit by a bus and can’t remember a thing.
Reason 2:  You are not bulletproof – by the time something happens, it may be too late
In many ways, a Will, a Power of Attorney and a Guardianship Appointment are the most important documents of your life, especially if you intend to travel or do risky things (like quad biking around sand dunes, or just simply crossing the road)…
A Will protects all of your current and future assets and tells people what you want, who you want to get what you own and who you trust to make that happen.
Don’t assume you will be able to make a Will at any time in the future.  A sudden loss of capacity due to illness or accident can make it harder if not impossible to get a Will made.
Your Will communicates your wishes and can tell people what your views are on organ donation, the location of your burial and the type of service you would like. It can also contain a direction for consideration by the trustee of your super fund as to where you wish your superannuation death benefits to be paid. Importantly, if you are a parent, a Will can say who you wish to be the guardian of your children and can include directions as to their upbringing.
Don’t leave such important matters in the hands of others to decide.
Reason 3:  Without it, you will likely create a nightmare of bureaucracy and costs for your loved ones who are left behind
If you die without a Will, an application may need to be made by your next of kin to the Supreme Court in order to manage your affairs. This process can be complex, time-consuming and expensive.
You can also imagine the costly disputes that can arise as to entitlement especially in cases of blended families.  No one wants to see their hard-earned assets squandered on lawyers.
Reason 4:  Do you want to see your assets in the hands of people you don’t like (or even the state)?
Dying without a Will is called “dying intestate”. If you die intestate it is not always clear who gets your assets and those with an agenda can try to make a claim on your estate which can result in a very nasty and expensive Court case. In many instances, the Court may even order that the legal costs are paid from your estate.  Maybe you want your brother to have your television. Maybe you hate your brother and want it to go to your best friend. Either way, help to prevent the drama by saying what you want in your Will.
The point is, without a Will, you are creating a ‘free for all’. Anyone with a provable link to you can try to make a claim on your assets, whether that is what you would have wanted or not, and the Court will decide between competing claims. Imagine having your family squabbling amongst themselves because they all truly believe you want them to have that painting of the dogs playing cards.
Importantly, if you die intestate without eligible relatives, then everything you own may pass to the State.  Even more reason to ensure your television goes to your best friend.
Reason 5:  It is easy to make a will and we can help
So, what does this all mean and how do you go about getting a Will? We recommend speaking to an experienced estates lawyer and they can guide you through the process to make a simple Will.
It can be quick and cheap if you stick to the basics, and maybe your parents will even help you get it sorted – the last thing they want is to see you die intestate, or have no powers in place to help manage your affairs if you are incapacitated.
If you have a job, if you have superannuation, if you care about someone and their welfare, if you want to give someone something special of yours or if you just don’t want to risk everything you own going to people you don’t like, then get a Will.
While it may not matter to you after you are gone, it will certainly affect the people you care about.
I hope you find this information helpful and you are welcome you to call our Estate Planning team on (02) 9016 0141 if you have any questions or you would like to get started on making a simple Will.
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NSW Emergency Measures Legislation – to address the COVID-19 pandemic (focus on retail and residential lease implications)

This alert is current as …

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There is a concerning trend in modern construction contracts to use the provisional sum mechanism as a buffer which can be …

The post Time and Delay Costs for Provisional Sum ‘Blow-Outs’ appeared first on Nexus Lawyers.

Maria is admitted as a lawyer in NSW and England and Wales and has 28 years’ experience in England and over 4 years’ experience in NSW in the areas of Wills and estate planning, probate, estate administration, trusts and advising on incapacity issues.
Maria simplifies the process of ensuring that her clients’ estate and succession planning are dealt with comprehensively, with empathy and with a focus on wealth preservation. She works with financial advisers and accountants to provide their clients with a holistic solution to their estate planning needs.
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This alert is current as at 30 April 2020 and will be updated when more information becomes available.  It is provided as general information only and not intended as legal advice.
SNAPSHOT: In our COVID-19 NEXUS Alerts #2 and #3, we looked at the Commonwealth and NSW legislative measures which had been introduced to mitigate the impact of COVID-19 pandemic on certain commercial and retail leases – with detail being proposed to follow via specific state and territory regulations being adopted. NSW has now enacted its regulations.
PURPOSE:
The Regulation (being the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW)) has been published to provide relief measures for certain retail and commercial leases, endorsing the Federal Government’s National Cabinet’s Code of Conduct (released on 7 April 2020).  The Regulation has been made under the Retail Leases Act 1994 (NSW) and the Conveyancing Act 1919 (NSW) (schedule 1 of the Regulation amends the Conveyancing (General) Regulation 2018).
JURISDICTION:
Applies in the State of NSW.
WHEN COMMENCE?
The Regulation came into effect on 24 April 2020 and will apply for a period of six months.
DOES THE REGULATION APPLY TO EVERY RETAIL AND COMMERCIAL TENANCY?
The Regulation only applies to the following (subject to the tenant being an ‘impacted lessee’):

Retail shop leases/agreements (see the Retail Leases Act 1994 (NSW) for applicable definition)
Leases/agreements of premises for commercial purposes

HOWEVER, the Regulation does not apply to new leases (excluding options/renewals) coming into effect after the date of commencement of the Regulation or leases under the Agricultural Tenancies Act 1990 (NSW).
WHO IS AN “IMPACTED LESSEE”?
It is important to note that the Regulation does not apply to every retail or commercial lease arrangement – it only applies to commercial/retail leases involving the following tenants (Impacted Lessee):

Eligible for the JobKeeper Scheme (See NEXUS COVID-19 Alert #3); AND
Who had a turnover for the 2018-2019 financial year which was less than $50M (there are qualifications for franchisees and corporate groups).

WHAT ARE THE PROHIBITIONS AND RESTRICTIONS ON COMMERCIAL LEASES UNDER THE REGULATION?
Under the Regulation, a lessor must exercise or enforce its rights (including termination, re-entry, seeking damages, requiring interest to be paid, recovering against a bond or any other remedy at law)  against an Impacted Lessee under a commercial lease during the prescribed six -month period for the following failures (to the extent they result from the economic impacts of the COVID-19 pandemic):

payment of rent or outgoings; or
business not being open during specified hours for business under the lease

It should be noted that after the expiry of the six-month period, a lessor cannot take enforcement action for the failures referenced above during the six-month period.
In addition, during the prescribed six-month period, rent payable by an Impacted Lessee must not be increased (other than increases based on turnover rent).
If, in respect of a premises the subject of a commercial lease with an Impacted Lessee, that lessee is required to reimburse or pay for land tax, statutory charges or Lessor insurances, and one or more of those expenses is reduced in the first instance, then the Impacted Lessee is entitled to the relevant reduction.
REQUIREMENT TO RENEGOTIATE RENT AND OTHER TERMS BEFORE TAKING ACTION
The Regulation sets out a process that is required to be followed prior to any action being taken against an Impacted Lessee for failure to pay rent.
The Regulation also provides for a mechanism that a Lessor and an Impacted Lessee must follow as a result of a request by either party to renegotiate the rent payable or other terms of the lease which includes the obligation to:

renegotiate in good faith; and
have regard to the economic impact of the COVID-19 pandemic and the leasing principles set out in the National Code of Conduct (See NEXUS COVID-19 Alert #2)

DOES THE REGULATION RESTRICT THE PARTIES FROM REACHING MUTUAL AGREEMENT ON MATTERS THE SUBJECT OF THE REGULATION?
The Regulation does not prohibit the parties from mutually agreeing an outcome concerning the relevant lease, including termination of the subject lease.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before acting in relation to any specific issues.
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Documents that require independent witnesses such as a Will and Power of Attorney were frustrated by the impact of social distancing measures and coronavirus.
To assist with this the NSW Government on 22 April 2020 have brought regulations under the Electronic Transactions Amendment (COVID-19 Witnessing of Documents) Regulation 2020 (NSW) to remove the requirement that a witness be physically present when witnessing the execution of these documents. As such, the following documents can now be witnessed by audio visual link like Zoom, WhatsApp, Skype and FaceTime:

a Will
a Power of Attorney or an Enduring Power of Attorney
an Appointment of Enduring Guardianship
a Deed or Agreement
an Affidavit (including an annexure or exhibit to the affidavit)
a Statutory Declaration.

Please do not hesitate to contact us for assistance with your estate planning and estate administration needs including assistance with using these new regulations to have your documents witnessed.

This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before acting in relation to any specific issues.

The post Covid-19 Update – New rules for signing your Will and Power of Attorney appeared first on Nexus Lawyers.

We all love trees and hedges in our gardens (and even our neighbour’s gardens).  What, however, can we do when our neighbour’s hedge grows a little too high and starts to impact on our views or access to sunlight?
The Trees (Disputes Between Neighbours) Act 2006, when initially introduced, did not provide for any remedy for hedges impacting on view or sunlight.  However, Part 2A was introduced into the Act in 2010 to specifically address this issue.  This new section allows an appeal to be filed with the Land & Environment Court to seek orders to remedy and restrain a painful hedge.
The relevant legal tests are:

A group of 2 or more trees that are at least 2.5 metres above ground level;
That are planted to form a hedge; and
There is a severe obstruction of sunlight and/or to views from a window.

Without getting bogged down in the detail of what is or is not a window, of importance to the Court’s consideration of whether orders will be made is the nature of the room, when the trees were planted, the amenity values of the trees and any heritage values of the trees.
The Court’s discretion in this regard in unfettered.
By way of example, the loss of sunlight to a window in a utility room is very unlikely to result in any order of the Court, whereas the opposite would apply to a room used regularly for daily activities (such as a dining room or kitchen).
Similarly, if the only view lost is from one dining chair, then the Court is reluctant to make any orders.
If the hedge was already causing the view or sunlight loss when the applicant purchased their property, then applying an analogous approach to that of the common law of nuisance, the Court will not make any orders.
The nature of any orders made by the Court will be for the owner of the hedge to trim it to a specific height between specific dates annually.
For further information, contact Grant at [email protected] or +612 4961 0002.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before acting in relation to any specific issues.
The post When good hedges go bad appeared first on Nexus Lawyers.

Every so often we receive a letter in the post from the local council advising that a development is proposed next door and that you may lodge a submission.
Whilst it may be tempting to throw such a letter into the bin, this would severely limit your options should you wish to object to the development further down the track.
Current planning policy is seeking to increase residential densities as well as increasing affordable housing stock.
This means that planning controls are now permitting higher density residential developments in what have been traditionally low density residential suburbs.
If a development is proposed next door that could have a negative impact on the amenity of your property, then it is essential that you use the opportunity to lodge an objection with the council prior to any decision being made.
Not objecting to proposed developments can narrow your options because following the issuing of a development consent, the only option to challenge that decision is by way of judicial review in the Land and Environment Court.
This means that you would have to prove that there has been a serious legal error in the decision-making process.
There are also significant costs in running such a case.  It would usually be the case that if you lose, you would have to pay the other side’s costs.
The other problem with judicial review is that is does not consider any of the merits of the proposed development.
So, next time you receive notification of a proposed development, it would be worthwhile getting an experienced team of professionals to review those plans and to advise you on the potential impacts of the proposal.
For further information, contact Grant at [email protected] or +612 4961 0002.
 

This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before acting in relation to any specific issues.

 
 
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