We take instructions from private and Legal Aid clients. 

A typical example of the latter - de-identified -  reads like the following:

File ID: ... ext 2   

Please quote this number when you contact us  

11 January 2023

Thomas Mcloughlin Mosman Lns Legal Service 6/12 MUSTON ST MOSMAN NSW 2088

Dear Practitioner Your client: Legal matter:  

• Court:   Court date:  Ms .... ....  Use Carriage Service To Harass/Menace  .
• Downing Centre Local Court  
• 22 February 2023  

LEGAL AID GRANT TRANSFERRED  AID EFFECTIVE DATE 23 JUNE 2022  

This client has a grant of legal aid which has been transferred and you are the newly  assigned lawyer.

 Terms of the grant  

The client’s grant of aid is effective from the date of the original grant – 23 June 2022.  The grant of legal aid was transferred to you on 11 January 2023 and you cannot claim for  any work done before that date. Legal Aid NSW will pay the client’s previous lawyer for work  done before 11 January 2023.  

Please arrange for any existing documentation to be transferred from the client’s previous  lawyer:  Inner City Local Courts  LEGAL AID NSW CRIMINAL LAW DIVISION ....   HAYMARKET NSW 1240  Phone 02....

Transferred Matters  

Aid is granted for representation in the Local Court to defend criminal proceedings.  Approval has been granted for a defended hearing of up to three hours.  This grant does not extend to the briefing of counsel.  You must advise Legal Aid NSW of the outcome of this matter.

PREPARATION AND DISBURSEMENTS

You will be paid a lump sum fee for preparation, which includes the initial conference with your client.   You may incur disbursements for the following items without further approval: filing fees for subpoenas, conduct money, agents fees, interpreters fees, legal notices, medical reports, experts reports, psychologist/psychiatrist reports, witness expenses and for photocopying, fax and STD phone calls.   Additional disbursements may not be incurred without prior approval from Legal Aid NSW. Receipts for disbursements other than travel and photocopying, faxes and phone calls must be retained with the file.   Where an interpreter is required, you must ensure that the court orders an interpreter for the hearing at the court's expense.

Transferred Work Items and Fees  

Code Work Item

PW01 COURT HEARING TIME  ...       

PW21 DISBURSEMENT GENERAL     ....  

PW21 PREPARATION              ...

Requests for further funding

If further funding is required you will need to submit an extension request in Grants Online.   Requests for further funding are not approved automatically but are separately assessed on the information provided with the request. 2

Your client’s obligations

 Your client must comply with any conditions of this grant including paying any contribution  amount imposed. Your client must co-operate with you and with Legal Aid NSW.  

You and your client must tell Legal Aid NSW about:

  anything relevant to your client's grant of legal aid  

 anything which may affect your client’s ongoing eligibility for legal aid, in particular  any change to your client's financial situation, and  

 any changes to your client’s circumstances or contact details.  

Your client must comply with these obligations.  A failure to comply could result in the grant  of legal aid being terminated.  

Changes to your client’s details can be made in Grants Online using the Client Update  function.  

Notify other parties  

In all matters other than criminal proceedings, you must promptly notify the other parties that  your client has a grant of legal aid.  The notice must be in writing and must refer to section  47 of the Act and the liability for costs ordered against legally aided persons.  

If section 47 is relevant to this matter please talk to your client about the impact of this  section.  For example, if your client has civil or family law proceedings they may be liable for  some or all of an adverse costs order particularly where proceedings are in the Federal  jurisdiction.  

Appeal rights  

Your client may have a right of appeal to the Legal Aid Review Committee (LARC) against a  condition of this grant.  An appeal should be lodged within 28 days of the date your client  receives notification of the condition. In special circumstances the 28 day period may be  extended.  You can lodge an appeal to LARC through the Review (LARC Appeal) function in Grants  Online.  Note: There is no right of appeal to LARC:

  where your client has not satisfied the Means Test in a Local Court criminal matter  

 against a contribution imposed in a Local Court criminal matter  

 against a decision by Legal Aid NSW to nominate a particular lawyer to represent  your client, or

  against the scope of funding approved by the Grants Division.  

Your invoice  

Proforma invoices for this grant can be accessed in Grants Online.  

You should submit your invoices for payment when the work item is completed or the matter  concluded. All fees stated are exclusive of GST.  3 Proforma invoices for counsel's fees should be reassigned in Grants Online to the barrister,  to enable the barrister to claim his or her fees directly from Legal Aid NSW.  

You should be aware that your claims and this file are subject to audit by Legal Aid NSW.  You must certify in your invoice/s that your claim/s are correct.  

Further information  

It is your responsibility to be aware of the legislation, policies and practice standards which  apply to this grant.  

Notification of the transfer of this grant has been sent to your client.  

Yours sincerely  Grants Division  Legal Aid NSW 

Mosman Legal Service provides full service including transfer / stamp duty lodgment, settlement and registration of new title via PEXA, and ancillary matters.

An example of an advice on an unusually big off the plan strata purchase follows, de-identified:

[

23 August 2023

[client]

[address]

By email:....

Dear ....

Re .... from Landcom ABN 79 268 260 688 and Mirvac Green Square Pty Limited ACN 131 815 079) (“Mirvac”): off-the-plan lot XX in ...... Zetland Avenue, (the “Property”)

You have asked me for legal advice on the sale contract for the above provided via online download from the vendor solicitor on 16 August 2023 (the “Contract” or “Sale Contract”), with covering letter of same date and bank guarantee for a deposit as one method of payment, (forwarded to you in 17 August 2023).

I note you have provided an initial list of questions in your email of Sunday 20 August 2023.

You have also asked me to carry out a conveyance if and when you decide to purchase the property (that is exchange signed contracts and pay the deposit) as early as 30 August 2023.

I expect to issue a retainer agreement to you soon following standard Law Society terms with a  quote at $1,500 – subject to variation at $200 per hour, given the 838 page size of the Sale Contract plus any outgoings (property searches) that may be necessary. 

A. Sale Contract – provenance and structure

Notably, as per head note at top of page 2, the contract for sale of the Property (the “Sale Contract” or “Contract”) is prefaced by the standard form of the NSW Law Society and Real Estate Institute, albeit then customised to a large off-the-plan strata plan and subdivision. 

That said, the standard printed terms are amended and subject to advice about that.

The Sale Contract is big at 838 pages including planning agreements with Sydney City Council (and variations), power of attorney for Landcom (as Vendor) and Mirvac (as Contractor), extensive (proposed/unregistered) strata related materials, and easments affecting the 28 Zetland Avenue – which itself may be a creation of the over arching subdivision(s) by the Vendor/Contractor.

However the fundamentals still apply as per any conveyance –

• what are the interests already on title verifying Venor ownership to sell – at page 425 (using pdf page counting),
• Noting 'Ausgrid' caveat though apparently redundant now and to be removed,
• what does the Council planning report say about any problems with the land or restrictions on uses – likely was an industrial area in the history of Sydney
• are any other precautionary searches justified given Landcom and Mirvac as the Vendor/Contractor in planning agreements with Sydney City Council – I am tending to think not needed.

Notably, Landcom as Vendor and Minter Ellison as legal firm are reputable in terms of legal documentation.

Accordingly you can be assured this Sale Contract is a very carefully written and nuanced Contract with valid and binding set of terms and conditions subject to any additional/special conditions (for these see further below).

As noted in other correspondence Sale Coontract is subject to copyright with a diagonal watermark – hence the address in diagonal across the document as purchased for this specific sale. A template address is being used which saves costs to the Vendor/Contractor up to say $4K, avoiding a new copyright for each lot to be sold.

I note the Sale Contract comprises:

1. Pages 2-8 are usual standard terms including 66W declaration (no cooling off period) – subject to later variation of printed terms (below) and new clause 84 for 5% deposit;
2. Pages 9-30 are the Power of Attorney delegations for signatures by Landcom as vendor and Mirvac Green Square  Pty Ltd as Contractor;
3. Pages 31-49 are standard contractual terms subject to amended of the printed terms below;
4. Pages 50-52 are a general scope or summary of the structure of the proposed development including subdivision and strata plan: Noting:
   • “ 
   M The Contractor may (subject to the Purchaser Rights) also make changes to

   • the area of the lots including an increase or reduction in the area of the  Apartment forming part of the Property up to 5% from that shown in the Disclosure Statement. .....

     
     

     DISCLOSURES AND THE DISCLOSURE STATEMENT

     
     

     T The Vendor and Contractor make the disclosures set out in Schedule 4 of this  contract and the Disclosure Statement.

     
     

     U The Disclosure Statement is attached to this contract in Attachment 3 as

     required by section 66ZM of the Conveyancing Act.”

5. Pages 53-106  are the off-the-plan additional/special conditions as conditions 33 to 83.
6. Page 107 defines the Sunset clause for the development at 30 June 2024, subject to variation in clause 51.4 at pdf p 81 but no longer than an extra 12 months.
7. Pages 108-109, has a table of schedules 2 and 3, as referred to at clause 49 (page 79), excluding from requisition various items imposed on the Property and  Common Property and give a wide power to the Vendor/Contractor  – see copy attached. These in turn reference:
8. Pages 110–136, as schedule 4 with “Vendor Disclosures” for the development – giving the Contractor Mirvac power essentially to do anything you could imagine for a big building development including variation of existing views, NBN connection (or not) and easement for public through line.
9. Pages 137-140 Contract, essentially agreeing to any private information being used by the Vendor and Contractor.
10. Page 141 index - “ATTACHMENTS”

1. Lot XX Layout plan p142 -143, includes  "Timber Flooring Waiver"

2. Disclosure Statement [pp 144-145  attaching:

a. Strata Plan  pp 146 - 188

b. Strata Plan Instrument pp 189 - 192

c. By-law Instrument pp 193 to 246

d. Strata Management Statement – pp  247 - 369

e. Schedule of Finishes pp 370 – 377

3. Stratum Plan – pp 378-387

4. Stratum Plan Instrument (s) – pp 388 - 424

5. Certificate of Title Folio Identifier for XXXXXXX – p 425

6. Easements & Encumbrances – (includes planning agreements and variations to the same) 426-813

7. Section 10.7(2) & (5) Certificate – Sydney City Council planning report - p 814-830

8. Sewer Service Diagram, Sewer Location Diagram – (not existing as presumably rezoned industrial land) – p 831-832

9. Law Society of New South Wales Requisitions for off-the-plan Property – p 833-836

10. Clearance Certificate – (not a foreign buyer declaration) - p 837

11. Adaptable Apartments – p 838 – lot XX is not designated as such

B-1. Parties – critical to use your full legal name

The owner of the Property on the sale contract Landcom ABN 79 268 260 688  matches the ownership on the title search at  p425 of the Contract.

The standard form Contract is amended to include as a party Mirvac Green Square Pty Limited ACN 131 815 079) (“Mirvac”)  as the “Contractor”.

It is critical that your full legal name be used when you sign the contract – such as found on your birth certificate or passport. It is this name that will be listed on the transfer document for lodgement with with the Land Registry Services (the privatised body operating on behalf of the NSW Government). That is your full legal name on the contract must match the transfer document which matches your identification documents.

B-2 – the Property

The Sale Contract is for the “land” which is an off-the-plan envelope of airspace, described at page 2 which becomes the “Property”, specifically:

“Address: Lot XX, The Frederick, 28 Zetland Avenue, Zetland (see Schedule 4

clauses 1.19 and 1.20)

Plan: Unregistered plan: Being Lot XX in an unregistered strata plan (copy attached).

The strata plan is a subdivision of proposed lot 1 in an unregistered stratum plan of

subdivision (copy attached), which is a subdivision of lot X in XXXXXX (copy

attached).

Title: Part folio identifierX/XXXXXX (copy attached).”

Clauses 1.19 and 1.20 referred to above allow for:

“1.19 Name of building

The Contractor may at the Contractor’s sole discretion, change the name of

any of the buildings intended to be constructed on the Development Site. The

Contractor may retain the rights to the name of any of the buildings intended to

be constructed on the Development Site.

1.20 Address of Property

The Contractor discloses that:

(a) the address of the Property at completion may be different from the

address of the Property shown in this contract; and

(b) the lot number may not be identical to the lot number for the Property

shown in this contract.”

C. Settlement period and finance to settle 

The second page of the Contract outlines the settlement “Date for Completion” (by cross-reference to clauses 15 and especially cl.33 at bottom of p56 of the Contract) as the later date of 3 possible scenarios relating to the off the plan development and registration of subdivisions and strata plans.

The relevant two possibilities are, whichever is the later of :

(a) 21 days after the date the Contractor serves notice of Registration of the

Strata Plan and a copy of the registered Strata Plan and any other document that was Registered with that Plan;

(b) 10 business days after the date the Contractor serves a copy of an Occupation Certificate on the Purchaser;

You advise inquiries with the Mirvac sales agent indicates this may be late in 2023, while the sunset clause is 30 June 2024, with up to 12 months extension.

The purchase price is $1,495,000. As you are aware you must ensure finance is ready at the time of settlement.

It is critical you have the finance, or can be sure to have the finance, BEFORE you sign and exchange Contracts, or be prepared to gamble on being sued for the lost income on the sale by the vendor (until a new buyer potentially at a lower price and looking to you for the difference).

There is no cooling off period in this contract which requires a 66W certificate waiving the rights under s.66S of the Conveyancing Act. For completeness I include a copy of those statutes.

By this letter I have provided the advice and can provide a signed copy of the 66W for the vendor solicitor, unsigned  copy attached.

D. Purchase price and transfer duty (formerly stamp duty)

The purchase price $1,495,000. You instruct you have paid an initial deposit of $5,000. The total deposit is varied to 5% at $74,750 down from$149,500 at new clause 84 (at pdf p5 of the Contract).

I presume this requires payment of a further $69,750 and exchange of signed contracts by 5 pm 30 August 2023 – refer vendor solicitor covering letter of 16 August 2023.

As previously advised time is of the essence for payment of the deposit unless for instance you arrange an extension.

Transfer duty may be calculated via the Office of State Revenue calculator at https://www.revenue.nsw.gov.au/help-centre/calculators

This indicates duty of $65,280.00 as attached.

I note Revenue NSW state:

"When to pay transfer duty

• You must pay transfer duty within three months of signing a contract for sale or transfer, except in the case of off-the-plan purchases.” 

Refer https://www.revenue.nsw.gov.au/taxes-duties-levies-royalties/transfer-duty/buying-off-the-plan (bold added)

• “If you buy off-the-plan and you intend to live in the property, you may be able to defer your transfer duty liability for up to 12 months.

….

• If you buy a home off the plan, which you intend to use as your main residence, you can defer your transfer duty for up to 12 months after you sign the agreement, or until the property is completed or handed over, whichever comes first.

How to apply

• Each purchaser can make a request by completing the mandatory Purchaser/Transferee Declaration - Individual (ODA 76I (PDF, 666 KB). Note: New interactive forms with declaration tick boxes in place of statutory declaration."

I include a copy of the application form with this letter attached. 

E. Status of property – refer section B-2 above.

F. Improvements, inclusions – refer section B-2 above.

Notably wooden floors are included here. I am aware that wooden floors can result in noise complaints of a neighbour below. This may be a question for the sales agent and Mirvac.

G. PEXA  electronic lodgment network 

The Contract at page 3 nominates electronic settlement. I presume PEXA is not specified because the vendor is a NSW Govt body and as such may not elect market competitors – such as rival Sympli -  though PEXA is the dominant provider.

Notably the definition of Electronic Workspace at clause 33 – from pdf p55 of the Contract -

Whereas previously payments – usually bank cheques - and other relevant documents were produced all together on settlement date after exchange of contract, since mid 2019, an electronic process is used by participating banks/financial institutions . More information is available here:

Econveyancing is now orthodox and arguably may better guarantee security of financial payments direct between banks, which is a good anti fraud measures for large sums of money.

H. Land tax

I have provided some preliminary references to Land Tax in the Sales Contract in previous email as follows:

At p64 of the Contract clause 36 amends the printed terms of the contract including at cl36(o) [meaning letter o before p], by deleting clause 14.4 relating Land Tax in the printed terms i.

New clause 55 (p82-83) then in theory will apply and deem an adjustment on completion by the purchaser for any Land Tax, unless by operation of clause 16.6 (as amended by way of cl.36 (q)) a notice is served by the Purchaser 7 days prior to completion for the Vendor to clear land tax by time of completion date.

So managing Land Tax requires some care and attention.

If the Land Tax is not cleared then clause 55 says:

“(b) The Purchaser must adjust $950 for 1 bedroom apartments (including 1 bedroom open plan apartments), $1,500 for 2 bedroom apartments, $2,500 for 3 bedroom apartments and $4,000 for 4 bedroom apartments in accordance with clause 14 and:

(i) no regard is to be had to the actual assessment when it issues; “

I am not a tax lawyer but the NSW Govt expressly states the purchaser is exempt from land tax for your principal residence. So it may be the Vendor does have a land tax liability but you do not, as a first home owner.

Refer more here  https://www.revenue.nsw.gov.au/taxes-duties-levies-royalties/land-tax

J. GST 

The Contract at page 3 states GST is payable. I am not a tax lawyer. There is reference to GST residential withholding payment or GSTRWP. I presume the headline purchase price in the Contract is inclusive of GST and therefore no change to your financing.

There a comprehensive clause 56 at page 83 of the Sale Contract, which replaces clause 13 of the printed terms (by way of clause 36 (n) at page 64)

K. Attachments to Sale Contract

You will note at page 4 a table of attachments to the Contract is tabulated – these items are properly included with the Contract.

You will note a further index of attachments is listed at page 141 and these are also attached (as listed with page numbers above) to the Sale Contract.

L. Cooling off period in place – s66W certificate exemption from cooling off period

As above there is no cooling off period.  Vendor / Contractor require a s.66W certificate waiving the cooling off.

M. Additional (aka Special) conditions

There are extensive additional conditions which are mostly covered in my email replies to your questions sent parallel or soon after this letter. First set of replies are attached.

N. Requisitions

Refer p 833-836 in the Contract bundle. These are formally submitted by the purchaser solicitor/conveyancer to the vendor conveyancer after exchange of signed Contracts for reply well prior to completion. 

There is a degree of artificiality about the process but the answers are legally binding and you may get atypical answers (in theory) – particularly say a floating charge on the assets of the Contractor (Mirvac) or some other potential financial threat to the land as an asset depending on the legal history of the Vendor/Contractor.

I note the clauses of the requisitions deal with various matters not repeated here.

N. Title search

This is at page 425 of the Contract bundle and is dated 10 August 2023, so recently and may be relied upon. If time for completion is extended then I recommend obtaining a new title search closer to the date of completion and not less than 6 months old.

As indicated previously,  the title search correctly names the vendor. It also reveals what appears to be a redundant caveat in favour of (trade name) Ausgrid, which should be removed by the vendor.

There are other easements and notations on title for the planning agreements of Sydney City Council and Landcom and Mirvac. I have not provided advice about the planning agreements here which I presume authorise the residential development and relate to the proximate Town Square and other suburb planning and amenity matters.

P. Survey and easements

The survey plan(s) are attached to the Contract at 147-188 for strata, and 380-387 for the proposed stratum. Level 13 is at page 178.

The easements for Lot 7 underlying the proposed strata are listed on the Title Search at p 425. A copy of those are either attached to the Sales Contract or can be purchased from Land Registry Services. Please let me know if you wish me to proceed with a purchase.

Q. Local Council Planning certificate – s.10.7(2)) under Environmental Planning & Assessment Act 1979 (NSW)

Refer attachments index above listed as “7. Section 10.7(2) & (5) Certificate – Sydney City Council planning report - p 814-830.

Notable items appear to be a listing for management for contamination in council's planning controls, but that the land is not listed with council or the State Govt as contaminated land: Refer at pages item 10 p 827.

My general experience is that lands such as this are remediated to a degree and capped. In particular the ground water flow means that contaminants could travel into, out of and through the sub surface but provided the property is capped then it is safe and suitable for its accommodation uses. I say this as former director amongst others of the Incinerator site in Zetland closed in 1997.

Other than this general comment, you may or may not wish to obtain more extensive reports or searches. However as a proposed resident on level 13 you may not be so concerned.

R. Drainage diagram

I am not aware of a drainage diagram attached to this Contract. However I note the Contract attaches a 37 page document of intention on drainage called overall:

• “Instrument setting out Terms of Easements or Profits à Prendre intended to be created or released and of Restrictions on the Use of Land and Positive Covenants intended to be created pursuant to Section 88B of the Conveyancing Act 1919.”

S. Sewer diagram

Refer attachments index above listed as “8. Sewer Service Diagram, Sewer Location Diagram – (not existing as presumably rezoned industrial land) – p 831-832”

Significantly there is no sewer marked for yet to be developed property as per letter of Sydney Water 28 April 2020. This does not concern me at this time.

That concludes my advice on this Contract.

Please contact this writer with any questions.

Yours faithfully,

Thomas McLoughlin, principal

MOSMAN LNS LEGAL SERVICE