Titance Legal Newsletter No.3
A message from us
Dear friends,
Titance Legal would like to thank you for continuing to allow us to assist you in your legal needs. For this month of September, we have some updates on the new duty exemptions, unfair contract terms and a reminder of the new au. direct domain priority registration date.
New transactions exempt from transfer duty in New South Wales
The NSW Government introduced a new Regulation prescribing a new type of transaction that are not liable to transfer duty.
Effective from 19 May 2022, the Duties Act 1997 (NSW) (“the Act”) was amended to provide that transfer duty is also chargeable on any transaction of dutiable property that results in a “change in beneficial ownership”, with the exception of certain “excluded transactions”.
Change in beneficial ownership
The new section 8(1)(b)(ix) of the Act provides a list of dutiable transactions that result in a change in beneficial ownership. These include:
the creation of dutiable property;
the extinguishment of dutiable property;
a change in equitable interests in dutiable property;
dutiable property becoming the subject of a trust; or
dutiable property ceasing to be the subject of a trust.
Some transactions are now dutiable as a result of the introduction of this section including the grant of an option.
Excluded transactions
However, certain transactions that result in a change in beneficial ownership are excluded by the Act. These include any or a combination of the following:
Trusts
a change to the default beneficial interests of the default beneficiaries in a discretionary trust;
the addition or removal of a default beneficiary in a discretionary trust;
a change in a trustee’s right of indemnity;
the purchase, gift, allotment or issue of a unit in a unit trust scheme;
the cancellation, redemption or surrender of a unit in a unit trust scheme;
the abrogation or alteration of a right relating to a unit in a unit trust scheme; and
the payment of an account owing for a unit in a unit trust scheme.
Real Property
the grant, renewal or variation of a lease for no consideration;
the grant of an easement for no consideration;
the grant of a profit a prendre for no consideration; and
a change, for no consideration, in the holding of property from joint tenants to tenants in common in equal shares; or vice versa.
Interests
the grant, creation, variation or extinguishment of a mortgage, charge or other security over land;
the provision of a security interest pursuant to the Personal Property Securities Act 2009 (Cth);
the surrender of a security interest for no consideration pursuant to the Personal Property Securities Act 2009 (Cth); and
the creation of an interest in dutiable property by statute.
Life Estates
the grant or termination of a life estate in dutiable property for no consideration;
a transaction of a kind prescribed by the regulations; and
the grant, variation, cessation, revocation or cancellation of a water right.
Please contact Titance Legal if you wish to seek advice on transactions that are exempt from transfer duty in NSW.
Unfair contract terms - Australian Competition and Consumer Commission v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928
In a recent case, the Federal Court found that 11 of the small business contract precedents used by Fujifilm Business Innovation Australia and Fujifilm Leasing Australia (Fuji) to have breached the unfair contract term provisions of Parts 2-3 of the Australian Consumer Law (ACL) and Part 2, Division 2 of the Australian Securities and Investments Commission Act 2001 (Cth).
The court held the terms that breached the unfair provisions to be void and unenforceable and ordered Fuji to undertake corrective action.
Unfair contract provisions
Part 2-3 of the ACL deals with unfair provisions. Section 23 provides:
(1) A term of a consumer contract or small business contract is void if:
(a) the term is unfair; and
(b) the contract is a standard form contract.
(2) The contract continues to bind the parties if it is capable of operating without the unfair term.
Meaning of unfair
Section 24 provides the meaning of unfair:
(1) A term of a consumer contract or small business contract is unfair if:
(a)it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and
(b)it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
(c)it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.
When drafting a contract, it is extremely important to ensure that the terms do not breach the unfair provisions. If deemed unfair, that clause of the contract may be held void and unenforceable. Please contact Titance Legal if you are looking to draft new contracts or wish to seek advice on your existing contracts.
“.au direct” domain names
Since 24 March 2022, Australia’s newest range of domain names “.au direct” was launched.
Until 20 September 2022, individuals and entities with existing domain names such as “.com.au” or “.net.au” will have priority to register the “.au direct” version of their domain names.
However, after the end of this priority registration period, the unallocated domain names will be available to the public.
It is highly recommended by the Australian Cyber Security Centre (ACSC) that any individual or entity with an existing domain name should take advantage of the priority registration period.
Registering will help protect against individuals from potentially impersonating your business.
You will need to apply for Priority Status before 9:59AM AEST 21 September.