Author: baron + associates

Emails can result in a binding contract, so long as there is enough dialogue between the parties and the terms within the emails are sufficiently certain. In Universal Music Australia Pty Limited v Pavlovic [2015] NSWSC 791 the court held that an email from a lawyer stating that the client would sign a settlement deed, when combined with other communication and conduct, was enough to constitute a binding agreement.

If parties choose to negotiate via email but don’t want the exchange to constitute a binding contract, it must clearly state in the emails that ‘no binding agreement is formed unless and until a formal contract has been executed.’ If this is omitted, a court could find the correspondence is binding.

The Senate Legal and Constitutional Affairs Legislation Committee has endorsed the passing of the Bankruptcy Amendment (Enterprise Incentives) Bill 2017 that would reduce the current period of bankruptcy from three years down to one. This would bring Australia’s bankruptcy period in line with that of the United Kingdom.

In the digital era there is much uncertainty about whether documents executed electronically are valid, yet the practice is well established in many industries. Documents signed through cloud-based platforms will generally satisfy the legal requirements for signing and writing not only when electronic transactions law is applied but under general law as well.

E-Signatures have been gaining traction in recent years, especially since the American tech firm DocuSign entered the Australian market. The program simplifies the signing and execution of a wide range of documents, including rental agreements, work orders, subcontractor agreements and other contracts. While the validity of DocuSign is yet to be tested in Australian courts, it has withstood seven challenges in the United States with each case successfully upholding the agreements. However e-signatures would not be appropriate in some cases, such as wills requiring signature or leases longer than three years that must be lodged at the Land Registry.

A recent case in the Supreme Court has given an important warning to prospective home builders when it comes to home designs. In Milankov Designs & Project Management Pty Ltd v Di Latte [2018] WASC 14, the court found the Di Latte’s breached the copyright of Milankov Designs when they used his designs to build their house without permission.

Usually when an architect or design consultant prepares designs for a fee, there is an implied licence for their client to use the designs for the purpose for which it was sought. However in the Milankov case, the court held that an implied licence will not apply where it would be inconsistent with the terms of a written contract. The contract itself was only for the first stage of the building, and so there could be no implied licence that the Di Latte’s could use the designs to complete the building.

The NSW Government’s new e-conveyancing program will commence on 1 July 2018, aiming to increase the proportion of electronically lodged documents. By the 1/7/2018, all stand-alone transfers, caveats and mortgages must be lodged electronically and paper titles will begin to be phased out. The change will be facilitated by the network Property Exchange Australia (PEXA), and the Office of the Registrar General is holding workshops to help with the transition to the new system.

The NSW Government has committed to e-conveyancing for the State by July 2019, as it eliminates much of the human risks of error such as misplaced or incorrectly signed documents, immediately transmits settlement funds and saves time for lawyers and conveyancers.

The NSW Government has announced its plan to ban apartment owners from renting out their properties on Airbnb if they do not live there themselves. The current strata laws blocking Owners Corporations from regulating Airbnb will be replaced, giving Owners Corporations limited power to pass by-laws that stop short-term letting where the owner does not actually live in the unit. The plan targets investors who are purchasing apartments in order to lease them on Airbnb, but allows owner-occupiers to continue letting up to 180 nights a year.

In conjunction with the new legislation, the government will develop a mandatory code of conduct, and guests and hosts who commit two serious breaches of the code within two years could be banned from all short-term holiday platforms.

In the recent case of EB 9 & 10 Pty Ltd v The Owners SP 934 [2018] NSWSC 464, the Supreme Court has held that an Owners Corporation must allow reasonable entry into the common property by owners to park in their car spaces. In this case, the owner of a single car space underneath a strata building protested the installation of a chain along the boundary between his space and common property.  He argued that access to the already narrow space was made near impossible with the chain in place.

Despite his protests to the chain, the Owners Corporation passed further resolutions to build a bicycle storage area and a communal garden on the common property next to the owner’s lot that would impose even further impediments. The owner again protested and sought a declaration that the proposals be stopped. The court agreed with the owner and held that ‘a fundamental use of common property is to provide access to lots. The right to reasonably use the common property for that purpose cannot be taken away.’