21 October 2013

Buying a property: A ‘How-to’ Guide

Written by Joseph Antoun, Partner

Step 1: Negotiate a Price

For a private treaty sale, once you have found the home you wish to purchase, you can make an offer to the Vendor or their agent. Sometimes you can agree on a conditional offer. For example, you agree to purchase the home as long as the vendor enables you to obtain a property and pest inspection first.

Step 2: Arrange Conveyancing

Conveyancing is the process of legally transferring a property from the vendor to the purchaser. You can arrange this through your solicitor.

Before a vendor can offer a property for sale, they must have a Contract for Sale and have it available for inspection. Your solicitor or conveyancer should review this Contract. They should also conduct final checks on the property and make enquiries with the local authorities.

Step 3: Have the Property Inspected

Once you have found a property to purchase, you should arrange for a property and pest inspection before contracts are exchanged so that you are aware of any potential problems from the start.

You should also check with your council and state government roads and traffic authority regarding zoning issues and future property developments that may affect the property you are wishing to purchase.

Step 4: Exchange Contracts and pay the Deposit

After Uther Webster & Evans have reviewed the Contract for Sale, both you and the vendor sign a copy of the Contract and pass it on to each other. This is called ‘exchange of Contracts’.

If you purchase a home at auction, you will need to exchange Contracts and pay the deposit (usually 10% of the purchase price) at the auction. For a private treaty sale, you are required to pay a holding deposit (usually 1%) to indicate good faith and then pay the deposit when Contracts are exchanged. Even though a holding deposit has been paid, it doesn’t necessarily mean the property will be held exclusively for you.

Step 5: Cooling-Off Period

After the Contracts are exchanged in a private treaty sale, a legal cooling-off period may apply. During the cooling-off period you are able to withdraw from the Contract to purchase the property. The length of the cooling-off period varies from state to state.

Step 6: Settlement

Settlement occurs when you pay the balance of the purchase price and take ownership of the property. Final settlement normally takes place up to 6 weeks after Contracts are exchanged but this period can be negotiated between the parties.

The Certificate of Title (if any) will be handed to your bank (if the property is subject to a mortgage). The vendor’s agent will then provide you with the keys.



21 October 2013

Criminal Law – Your questions answered

Written by Justine Taylor, Senior Associate

Do I have to answer police questions?

This is a concern that many clients have and often this decision is made without having access to legal advice. The general position is that you do not have to answer police questions and in most cases, we would advise against answering police questions without first consulting a lawyer (subject to the offence and some important exceptions).

Having said that, common sense should prevail and in some circumstances where you have been a witness and where you are not under suspicion, it may be common sense to cooperate with police.

Some exceptions to not answering police questions include your obligation to provide police with a name and address. Failure to provide those details may be an offence under the Law Enforcement (Powers and Responsibilities) Act 2002, also known as LEPRA.

We would ordinarily advise against providing police with a recorded interview or a taped video before contacting your solicitor. In some cases you may also want your solicitor to be present with you during the interview.

Can police search my car or my person without a warrant?

Police may generally, without a warrant, stop, search and detain you, and anything in your possession, if they suspect “on reasonable grounds” that you may:

  1. Have in your possession something that has been stolen or unlawfully obtained;
  2. Possess anything that is intended to be used in connection with an offence;
  3. Have a dangerous article in connection with an offence;
  4. Have in your possession anything in contravention of the Drug Misuse and Trafficking Act 1985.

The police discretion of “suspicion” on “reasonable grounds” is generally broad under Section 21 of the LEPRA. The reasonable suspicion will ordinarily involve less than a belief, but more than a mere possibility. That means there must be some factual basis for the suspicion. For instance, police may assert that the nervous manner of a driver in combination with being located in an area which is a known area for drugs, justifies a “reasonable suspicion”.

What is an arrest?

You have been arrested if you have been advised as to the purpose of an arrest and informed that you have been charged with an offence which will be brought before a Magistrate of the Local Court. An arrest for the purpose of investigating whether or not you have committed and offence or obtaining more evidence, is not legal and police must have reasonable grounds to believe that an offence has or is about to be committed.

When the police decide to arrest you they must inform you of the basis of the arrest and provide certain cautions to you, in particular that you do not have to answer any questions. The reason for the arrest must be made clear unless it is obvious or there is another reason in which the relaying of information has been made impossible.

Once you have been arrested, you may be searched.

Do I have to give police fingerprints, DNA and photographs?

A police officer can take fingerprints and photographs for the purposes of identification of persons over the age of 14. It is common practice on arrest to be fingerprinted, particularly for more serious offences.

Orders for the destruction of fingerprints can be made if you are found not guilty. If you have been found not guilty or your charges dismissed and you are not sure whether your fingerprints, DNA and photographs have been destroyed, we suggest you obtain legal advice.

Any forensic procedure can be carried out with the informed consent of the suspect. Children or mental incapable persons cannot provide consent. The giving of this information to a suspect and the response must, if practicable, be recorded electronically.

If you are an Aboriginal or Torres Strait Islander, the police must notify the Aboriginal Legal Service.

How long can I be detained for?

You can be detained by police for the “investigation period” but this must be a reasonable time, which is usually no more than 4 hours.

Can police use listening device material without a warrant?

Generally, any recording of private conversation without consent is unlawful unless police have a warrant. Usually you will not know if police have a warrant which must contain certain particulars including the prescribed offence for which the warrant is granted, the name of the person who is intended to be recorded, the period (not exceeding 21 days) during which the warrant is enforced, the location of where the device has been installed and any conditions on the warrant.

We recommend contacting a solicitor if you have concerns in relation to a recorded conversation.

21 October 2013

Case update: King v The Queen [2012]HCA24

In King v The Queen, the majority of the High Court held that dangerous driving is not a species of negligent driving and that prior decisions were erroneous. It was held that dangerous driving is based upon the risk of danger posed to other persons and not upon the degree to which the driving falls short of the standard of care owed to the other road users.

The joint judgment stated:

“The ordinary meaning of dangerous is fraught with or causing danger; involving risk; perilous; hazardous; unsafe”. It describes when applied to driving, a manner or speed of driving which gives rise to a risk to others, including motorists, cyclists, pedestrians and the driver’s own passengers. Negligence is not a necessary element of dangerous driving causing death or serious injury. Negligence may and, many if not most cases will, underline dangerous driving. But a person may drive with care and skill and yet drive dangerously. It is not appropriate to treat dangerousness as covering an interval in the range of negligent driving which is of lesser degree than driving which is grossly negligent.”