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Our flagship,"The Plain Truth", covers changes in the law that affect the majority of clients and businesspeople, as well as issues of simplicity in communication.

See links below for our current articles or scroll to the end and click on the folders to access archived issues.

Click here "Home Truths" for our property industry newsletter.

Labor's Last Budget (Hopefully)
Sons of Gwalia
Have you ever wondered.... what to do about the neighbours overhanging tree?

2010 July

Labor's Last Budget (Hopefully)

We are not trying to show our colours but even the most ardent of our Labor supporters are losing the faith somewhat and would most probably accept that a period in the wilderness will be the best thing that can happen to the NSW Right. Nevertheless the Government has managed to produce a budget which delivers both record spending (as if creating a record is something to be proud of) of $56.9 billion, and a surplus (maybe).

The Government has introduced a raft of vote getting measures most of which are aimed at the property industry. They include;

• Zero stamp duty for off the plan purchases of new homes worth up to $600,000 in the pre-construction stage.

• 25% stamp duty cut on newly constructed homes.

Benefits of up to $29,490 to first home buyers if they buy off the plan in the pre-construction stage.

Zero stamp duty for over 65 (empty nesters) who sell the family home and downsize to a newly constructed home worth up to $600,000.

Details of the new schemes can be obtained from the Office of State Revenue’s website.

2010 July

Sons Of Gwalia

Our title sounds like a B grade Hollywood movie, in fact it refers to a decision of the High Court which decided that claims by shareholders in the liquidation of a company ranked equally with claims by other unsecured creditors. That decision reversed the earlier law which provided that shareholders ranked in terms of their rights, after all other claims.

The Federal Government has introduced an amendment to the Corporations Act. The Bill;

• Firstly amends Section 563A of the Corporations Act to provide that all claims in relation to the buying, selling, holding or otherwise dealing with shares are to be ranked equally and after all other creditors claims

• Secondly to streamline the treatment of shareholder claimants in an external administration. Persons bringing claims relating to shareholdings will not vote as creditors in a voluntary administration or a winding up unless they receive permission from the court, and will not receive reports to creditors unless they make a request to the external administrator.

• Thirdly the Bill eliminates certain residual common law restrictions on the capacity of the shareholder to recover damages against a company which related to an 1880 decision of the House of Lords which determined that a person who had subscribed to shares in a company could not while they retained those shares recover damages against the company on the ground that they were induced by the company to subscribe for those shares by fraud or mis-representation.

Shareholders will now be able to sue in such circumstances.

2010 July

Have You Ever Wondered.... What To Do About The Neighbours Overhanging Tree?

In 2006 the Trees (Disputes Between Neighbours) Act came into force. We reported on that earth shattering event in our December 2006 newsletter.

With the passage of time disputes between neighbours have not completely disappeared and as a result the Act has been amended, last month, to provide the resolution of disputes about high hedges that block sunlight or views and to make further provision in relation to the enforcement of orders and the jurisdiction of the Land and Environment Court.

The Act when first introduced was intended to provide a simple, inexpensive and accessible process for resolving neighbour disputes about trees. The Act itself provided that it should be reviewed 2 years after its commencement to determine whether the policy objectives of the Act were valid and whether the terms of the Act remained appropriate for securing the objectives of the Act.

That review has led to the amendment. The Act as originally proposed affected trees which caused, were causing or were likely to cause damage to property or injury to a person. The Act has now been extended to cover trees that block sunlight and views.

The Minister when speaking to the House indicated that the scope for Applications would be limited to the most serious cases. Neighbours would not be able to make an application in relation to a single tree. There had to be two trees or more that formed a hedge. The trees had to rise to a height of at least 2.5metres. We are not sure what distance there has to be between the trees before one assumes that the intention is to form a hedge.

There will have to be extreme obstruction of sunlight or views to a window of a neighbour’s dwelling.

Because we live in a feel good type of society, the Court will not make an Order unless the neighbours have attempted to resolve their dispute without resorting to court action.

If a Court does have to deal with the issue there is a complex range of factors to be taken into account. The first of which no doubt is whether or not there was any intention to form a hedge. The Court has to take into account the contribution of trees to the natural landscape and the scenic value of the land or locality. The impact of trees on soil stability, the water table and other natural features of the land have to be taken into account. The contribution of the trees to privacy, landscaping, garden design, heritage values and protection from the sun, wind, noise, smells or smoke or the amenity of the land on which they are situated are all to be taken into account. All this of course means that you will need a horticultural degree to conduct your court case, or in the absence of a horticultural degree you will need to engage landscaping and arborial experts at huge costs to fight your court case.

The Act also appears only to cover trees that are planted. That implies some positive act by the land owner. Many of our plants of course self seed but hopefully not in hedges!

In 2009 there were 96 decisions of Commissioners in relation to trees. So far in 2010 there have been 32.

Look for an increase once the amendments to the Act come into place.