AICSA Conveyancer

South Australian Conveyancer Foster | Promote | Advance

July 2016

Let’s be creative, let’s diverge & differentiate

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South Australian Conveyancer

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PRESIDENT’s FORWARD & CEO’s WELCOME

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WHAT VALUE DO YOU PLACE ON YOUR PROFESSION?

RECRUITING FOR SUCCESS

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BUILDING A BRILLIANT BRAND (CONTINUED)

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CLOUD BASED

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AICSA NETWORKING EVENTS

ACCOUNTING: A LIFE CHANGER (CONTINUED)

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BUILDING A BRILLIANT BRAND

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PRIORITY NOTICES

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WITH NO SURVIVORSHIP

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RELATED TRANSACTIONS CONFLICT AND TEARS

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HAZARDS TO AVOID ON YOUR WAY TO SAFE

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FROM SA COURT: $2M IDENTITY FRAUD & FRAUDULENT USE OF DUPLICATE CTS

CHEAPER PI INSURANCE?

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CONFERENCE 2016 Tomorrow’s Firm: let’s be creative, let’s diverge and differentiate

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THE FEDERAL BUDGET AND YOUR RETIREMENT

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ADELAIDE'S FLY-IN-FLY OUT CONVEYANCER

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LTO STATISTICS

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MONSTERS INSIDE US

TIPS FOR RUNNING A SUCCESSFUL CONVEYANCING BUSINESS

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AICSA MOVIE AFTERNOON

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CLOUD BASED ACCOUNTING: A LIFE CHANGER

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South Australian Conveyancer

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Photo’s from this year

President’s Forward The last 6 months have proven to be a very busy and demanding time for the staff in the office of AICSA.

to have the contracts available when the presentation was given by HWL Ebsworth but matters were still being settled the day before the presentation.

Alignment Series

The Bill passed!

The main focus of attention has been

Pleasingly the E-Conveyancing bill

on the Real Property Act Alignment

passed through both Houses of

Series 2016 which were very well

Parliament swiftly with support from

attended, with a number of sessions

both sides of the House. I look forward

being fully booked. I would like to thank

to commencement in July!

and congratulate the staff of AICSA Super Fashion Affair brought to you by Mercer and Marsh in amalgamation with AICSA & REISA

and particularly Geoffrey Adam on the

A time of huge change is upon our

work done in bringing these sessions

doorstep and I am confident members

to fruition. Presentations were held

are prepared for the change and I

locally and in regional centres and in all,

encourage you all to embrace the

15 different sessions were presented.

change. AICSA will continue to conduct

Feedback from attendees has been

training sessions and support members

very positive and I am sure all who

through the transition process.

attended took a great deal out of the presentations.

Professional Development Seminar at Hood Sweeney.

Tim O’Halloran

Contract rewrite AICSA has also completed a rewrite of the land and business contracts with the release of the land contract imminent. Much work has been done by the contract committee in conjunction with HWL Ebsworth Lawyers in bringing the contracts together and I thank the committee members for their time and effort. Ideally we would have liked

Alignment Series 2016.

Magazine proudly printed by AICSA Sponsor:

MyConnect Mclarenvale Wine Tour.

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South Australian Conveyancer

11/07/2016 9:34:54 AM

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CEO’s Welcome ‘Tomorrow’s Business - let’s be creative, let’s diverge and differentiate’ – the theme of the AICSA’s 2016 Conference to be held in October1 at the Adelaide Oval.

We are all familiar with disruption – Uber

Land Brokers were created.

for taxi’s; Airbnb for hotels, Apple and

Disruption creates uncertainty, fear and

Spotify for music; Amazon for publishing

often fierce opposition, but disruption

and mail-order; Netflix for movies and TV

seems to happen anyway. The question

– to name just a small few.

is whether you embrace the disruption,

However, the process for disruption is

be creative and make something unique

nothing new. In the past, the illustrated

from it, or simply leave it to the handful

manuscripts industry was disrupted by

who do.

So why this theme? Easy, {Digital}

the printing press, later the weaving

Let’s look to Torrens and our Land Broker

Disruption. It’s impacting businesses and

industry was disrupted by the spinning

forefathers, the early disruptors – let’s be

industries everywhere and conveyancing

jenny . And at the turn of the 20th

creative, let’s diverge and differentiate.

is just one profession being affected.

century there came the Ford Motor Company and so flowed the famous

Disruption

adage from Henry Ford “If I had asked

What you do with disruption, how you

people what they wanted, they would

create or be creative through disruption

have said faster horses.”

is what will define you in today’s world.

In 1858, well before the Ford Model T,

It’s how you diverge and differentiate

in the small colony of South Australia,

yourself that ultimately sets you apart

the system of ownership of Land was

and we wanted to celebrate this

disrupted by a man named Robert

thinking.

Torrens and the introduction of a system

Rebecca Hayes

of ownership by registration; the lawyers 1 Full details on the Conference - pg 34

refused to use the new system!

South Australian Conveyancer

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What value do you place on your profession?

Conveyancing is a misunderstood profession. Many see it as purely administrative work. Filling in a few forms, making phone calls to banks and a daily trip to the Lands Titles Office to complete settlement.

However, as Conveyancers, we all know there is so much more to it than this and every conveyancing transaction has the potential to be a complicated process.

The job description is ever increasing While 20 years of conveyancing experience may not seem like a lot to many of my fellow Conveyancers, I have seen over this time that the job description is ever increasing. With the introduction of e-conveyancing, more and more responsibility is being placed on us. We are spending more time with our clients ascertaining their right to deal with the land as well as the verification of identity process before we can confidently certify our documents. In certifying documents, we are now certifying and confirming that we have complied with all of the new requirements that have come with the changes in legislation. This is a huge responsibility in itself. Geoffrey Adam uses the term “gatekeeper” in the alignment series seminars to describe Conveyancers and he is correct.

Essentially, we are confirming for the Registrar General that the documents we are lodging are true and correct and that we have ascertained the evidence to prove it. In addition, we are required to correctly store this vital evidence for seven years.

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Conveyancing fees Conveyancing fees are a sensitive subject and are coming under review by many businesses in light of the introduction of e-conveyancing and the added responsibilities it brings with it (including digital certificates, staff training and the PEXA fees).

Conveyancers will be carrying more of the burden going forward and if a modest fee is charged to clients, many Conveyancers might question whether the stress is worth it?

Recently a client insisted that we provide them with a detailed, itemised account with their settlement statement describing exactly what the conveyancing fee comprised of. This exercise was extremely beneficial to our practice as even we were surprised at the content. Not only was our client provided with an understanding of what their transaction involved behind the scenes, which resulted in a halt to her protests over our fee, but as a business owner, I could validate our professional fee with confidence.

I am continually surprised by the meagre fees I am hearing being quoted to clients within our industry. My team continually express concern that we are ‘overpriced in the market’. While I do agree that we are overpriced considering other practices fees, I don’t agree that we are over-charging our clients considering the expertise and labour involved in a property transfer today. I spend a significant amount of my time conditioning my team’s mindset so they deliver our professional fee with confidence, out of respect for themselves and our profession.

we could pay higher salaries to our team who work tirelessly to achieve a settlement? Perhaps our workload demands would decrease without affecting the bottom line? Perhaps our standard of service would increase because we feel valued for our efforts?

Perhaps we would have more time on our hands to spend with people we love rather than tirelessly networking to get the next deal?

If the general public understand conveyancing to be a basic clerical service, the industry is only going to attract mediocre workers. We need conveyancing to be recognised as a professional and challenging career.

If we as conveyancers do not value ourselves how can we expect the wider community to?

Tammy Edwards Tuckfield Conveyancing

Teamwork I urge you all as business owners to reconsider the professional fees you are charging. Place a higher value on yourself, your profession and the team you employ. Imagine if we all got on board with this? Imagine if we felt comfortable charging the fees that our Eastern seaboard friends do? Perhaps

South Australian Conveyancer

11/07/2016 9:34:56 AM

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working with you…

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Call or email Alison Thomas to find out how we can help.

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M 0427 096 123 T 08 8124 0000 alison@openbookhowden.com.au

Building a Brilliant Brand Your brand creates an immediate perception about your business, and you.

Any contact your clients have with your brand is an opportunity to demonstrate your brand’s value and build trust, and we all know people prefer to deal with businesses and people they trust. Negative experiences with your brand reduce trust. That’s why it’s so important to build strong brand assets, and maintain those assets, just like you would maintain your home.

At Algo Mas we believe the branding process can be broken up into 6 distinct phases.

Discovery The first step in the discovery phase is to figure out who you are. I turned 40 this year and found myself asking this question! It’s the same question you need to ask of your brand. Who are you?

What do you stand for? Try conducting a brand discovery workshop with your staff and clients. It will help develop your brand’s narrative and key messages.

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Choose your Champions To build a brilliant brand your brand vision needs to be embraced and understood by everyone involved in your business, including your staff and suppliers. By communicating your brand vision early in the process, you can develop brand ambassadors, or champions. Invite your brand champions to participate in your brand discovery workshop, help write your brand vision, and provide feedback on your logo concepts and marketing collateral style.

Brand champions will passionately take ownership of your brand once developed and help sell your brand story to your clients.

An Inspiring Vision Once you’ve figured out who you are or who you want to be, we’d recommend developing your brand vision and values. Your vision describes how you want the external world and your clients to see you. It should be inspiring but realistic and achievable, focus on your competitive advantage or unique proposition. Your brand values are the

reasons why clients will choose you over your competitors. They describe the feelings and experience clients have when they deal with you. For example, if you place a high importance on using the latest software in your service delivery, ‘innovation’ may be a brand value of yours.

Create Distinctive Assets A brilliant brand should have a well designed logo and identity but there are other elements to consider such as your brand name, font, colour, your brand’s story, key messages, a tagline, or even a sound like a jingle. Perhaps your marketing collateral can feature a unique font or colour that can become instantly recognisable, like the Cadbury purple, or the Coca-Cola font. Creating a strategy to develop and maintain distinctive brand assets, that may not just be visual, is smart branding.

Continued on page 16.

South Australian Conveyancer

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11/07/2016 9:34:56 AM

Priority Notices and the Reforms – should I put them on or recommend them to my client?

As conveyancers, we are protective of our client’s interests. Not only is it our legal and professional obligation but it is also in the conveyancing DNA. Conveyancers are also proud of their professional status. So the indication by some conveyancers that they don’t want to use Priority Notices is curious.

There has been considerable discussion about the usefulness of Priority Notices and to date few have used them because they are optional. However, the implementation of all Real Property Act Reforms fundamentally changes the preregistration processes and, in particular, the usefulness of Priority Notices.

Because Priority Notices provide some protection to a transacting party, it must be the client’s decision not to use a Priority Notice. Unfortunately, clients know little or nothing about these Notices.

We need to inform our clients of any measures, like Priority Notices, that may protect their interests if we are not automatically implementing them. Failure to do so means that we assume the risk. Hence, if automatic lodgement of a Priority Notice is not our default setting, we need to consider these Notice in this new conveyancing environment.

Plus an electronic lodgement does not automatically give priority over an unrecorded document lodged in paper. In the absence of the appropriate Priority Notice, priority of documents is determined by the order of lodgement (see Real Property Act section 56).

So, let’s look at Priority Notices afresh in the context of the Reforms.

Priority Notices are about fraud and protecting our clients Priority Notices have two main objectives, both intended to combat fraud. »» to give notice to anyone searching the Register of an impending transaction.

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»» to give priority to the listed documents over subsequently lodged documents in the absence of an operative prior notice.

Both become more relevant with the implementation of the Reforms.

As part of the RPA Reforms, Priority Notices support the removal of the duplicate Certificate of Title which have been relied upon as proof of the right to deal – not always successfully (for more information see page 32 - From SA Court: $2m Identity Fraud & Fraudulent Use of Duplicate CTs).

They are also integrated with the LTO pre-settlement processes for electronic conveyancing (see below).

Notice to anyone searching the Register A Priority Notice is lodged electronically through SAILIS or PEXA, thereby being immediately noted on the Register.

Anyone searching the Register will discover the impending transaction. If they are intending to settle a transaction (eg the sale of an interest or the granting of mortgage, easement or other encumbrance), they are unlikely to do so because they are likely to be unable to have their document registered.

For conveyancers, searching the Register (upon getting instructions) and check searches (before settlement) are automatic activities.

In addition, lodgement of the Priority Notice will trigger a notification to anyone who is a current subscriber to the LSG’s newly launched Title Watch service. If that person is unaware of the impending transaction, they are able to take steps to protect their interest.

Parties using an Electronic Workspace (ie an electronic conveyance) will also be notified automatically when the LTO conducts its next weekly and pre-settlement Title Activity Check.

A message will be posted in that Workspace that a Priority Notice has been lodged, alerting the parties to the proposed transaction.

The existence of a Priority Notice on the Register protects all transacting parties from possible fraud and is aligned with your professional obligation to preserve the integrity of the Register.

Priority of registration of listed documents A Priority Notice gives priority to the listed documents over subsequently lodged documents in the absence of an operative earlier notice. Essentially, the Priority Notice prevents competing interests from being registered. Some technical requirements and exceptions apply (see below).

There are various situations where a Priority Notice will protect the client.

Typically, it will prevent a registered proprietor, who may be located interstate or overseas (or soon to be), from secretly dealing with the land with another party (eg selling, mortgaging or granting an easement) as well as settling with our client. Hence all encumbrances that to be discharged, withdrawn or created (eg easements, ‘lift & replace’ restrictive covenants, etc.) must be included. This creates the Priority Notice as a useful checklist of all documents to be lodged.

It is critical to note that in future there will be no encumbrance panel on Transfers and other instruments and the transferee takes the interest in the land as described in the Certificate of Title at the time of the registration of their interest.

A fraudster will arrange to settle all transactions using different conveyancers – either both in paper or paper then electronic the following day.

Unless a Priority Notice or caveat has been lodged, a pre-settlement check of the Title will not reveal a document that has been lodged in paper but not noted on the Register: the registration gap for paper may be up to 2 working days at present.

Of course, your client may take out Title Insurance covering the registration gap.

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The risk is virtually non-existent if both transactions are conducted electronically because the registration gap is only a few moments.

Whether your client is successful in the ensuing litigation will depend on the circumstances. However, apart from substantial legal costs to run the litigation (perhaps a third of which is often not recovered, despite success), your client may also be unable to recover moneys paid out or may have land subject to an unwanted and burdensome encumbrance.

Should I seek instructions or simply lodge a Priority Notice at the earliest reasonable opportunity?

There is a cost to the client to lodge a Priority Notice. They must be lodged electronically, taking only a couple of minutes, through SAILIS for a $20 fee (for one CT). They will also be able to be lodged from 2017 through PEXA’s Electronic Workspace for a similar fee.

As conveyancers, we are obliged to look after our clients’ interests. Priority Notices give protection to our clients.

Lodgement must be considered because the risk lies in not lodging it. Our time and the SAILIS fee are recoverable from

our clients and the cost is relatively small. So we must decide whether to simply lodge a Priority Notice at the first reasonable opportunity (not as soon as possible, for reasons outlined below) or seek our client’s instructions.

Conveyancers cannot take a decision on behalf of a client not to lodge without getting instructions. Anyone who does so assumes the risk.

required in almost every case to be sure.

All that involves your time and a cost to the client.

We need to consider the time (ie cost to the client) and risk (to the client as well as to the conveyancer in the event of a claim) in seeking informed instructions versus simply lodging a Priority Notice at the first reasonable opportunity.

Getting instructions requires our client to adequately understand the advantages, disadvantages and risks. If those instructions are not to lodge, it will be essential to be able to demonstrate (in the event of a claim) that the client adequately understood such matters so that they could make a properly informed decision to take the risk.

Proving that the client understood when they deny that they did will not be easy.

Obviously, you will need to set out in writing the advantages, disadvantages and risks in simple and concise terms that the particular client will understand.

However, the explanation is likely to be embedded in a long letter providing information about other issues for which instructions are required. A follow-up discussion (noted on your file) in which you confirm the client’s understanding is

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South Australian Conveyancer

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If as a consequence of seeking instructions the client instructs you to lodge a Priority Notice, the client has the double cost of getting the advice and then preparation and lodgement of the Notice.

In my view, the better course of action on both cost (to the client) and risk is to simply lodge the Priority Notice without trying to extract and document detailed informed instructions.

A conveyancer would be unfairly criticised if they pre-emptively lodged a Priority Notice because it involves the lesser cost and risk. However, a conveyancer will be subject to severe criticism and liability if a claim arises and cannot prove fully informed instructions not to lodge.

The attitude of incoming mortgagees In recent weeks several mortgagees have indicated that, as a consequence of the removal of the duplicate certificate

of title, they will almost certainly require as an incoming mortgagee to be named in a Priority Notice that includes the Transfer and any discharge of mortgage.

Priority Notices are lodged with the large majority of Transfers in Queensland. Two Banks there refuse to provide finance at settlement as incoming mortgagee without that Priority Notice in place.

The major banks are meeting in June to discuss their position in SA. It appears likely that Priority Notices will not be optional where there is an incoming mortgagee.

Priority Notices v Caveats A caveat is an extremely useful tool in various circumstances. However, a caveat is a claim of an interest in the land and does not provide priority for unlodged documents: it merely stops registration whilst the priorities of the respective claims are resolved elsewhere, usually in expensive Court proceedings.

So a purchaser who lodges a caveat will be protected if their purchase contract has priority over the other interest.

But, by lodging an appropriate Priority Notice, you reserve priority for the documents no matter what order they were created.

Some people have expressed a preference for caveats over Priority Notices, often noting that caveats do not cease to be operative after the statutory period (60 days plus another 30 days if extended). Whilst a caveat will ensure priority in very limited circumstances, very few conveyancers lodge purchasers’ caveats and the cost of preparing, lodging and withdrawing a caveat is several times greater than for a Priority Notice. The reality is that a Priority Notice is a better and cheaper option than a caveat unless the settlement is scheduled beyond the period that may be protected by the Priority Notice.

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Who should lodge a Priority Notice?

The transacting party most at risk is the transferee. Hence, it makes sense that a Priority Notice is lodged on behalf of the transferee. However, any transacting party may lodge a Priority Notice.

Why the resistance?

For some, the resistance is very clearly about fees.

Some conveyancers have said that they cannot increase their fees. I do not share this view.

The government is requiring every conveyancer to perform the same additional tasks and bear the same additional costs – so every conveyancer is subject to the same pressure to increase fees.

Not increasing your fees as a consequence is effectively reducing your hourly rate and devaluing your professional responsibilities at a time when the government has publically identified and expanded them (eg VOI, VOA, signing the Transfer, etc.).

If we do not believe that we are entitled to a professional fee, our clients won’t believe that we give a professional service or respect us as professionals.

However, they will complain and sue if it goes wrong.1 In relation to Priority Notices, your professional obligation is to lodge it at the appropriate time unless you have informed instructions not to do so.

Either way, there must be a cost to the client.

Technical requirements and consequential issues There are some technical requirements to consider. All documents listed in the Priority Notice must be lodged together and they must be lodged in the order specified in the Notice. No other documents may be included in the bundle.

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How many file fees are required to cover your

PII excess? That is the number of files that you will effectively work for nothing to cover your excess. Given a file typically takes upwards of 6-7 hours, how many hours will you need to

If a document listed in the Priority Notice is not lodged with the others, none get any priority from the Notice.

If towards settlement it is determined that the documents that must be lodged include documents not listed in the Priority Notice, it may be necessary to withdraw and/or lodge a new Notice listing the appropriate documents.

Priority is not given over all documents.

Exceptions include caveats, workers’ liens, warrants of sale, Court orders, statutory charges & orders, various agreements with the Crown, other instruments lodged by the Crown and interests that, if registered, will not affect the interest the subject of the Priority Notice. These documents may be lodged notwithstanding any Priority Notice and operate as if no Notice has been lodged.

Where one of these documents has been lodged despite a Priority Notice, the Priority Notice continues to operate. Parties to the documents listed in the Notice should still consider lodging those documents after careful consideration of the consequences of the intervening lodgement.

Conclusion It is accepted that the likelihood of a fraud is small. However, the mobility and remoteness of parties is steadily increasing the risk and the financial consequences are huge, often exceeding the purchase price. These financial consequences will be visited on us as conveyancers unless we pre-emptively lodge the Priority Notice or are able to prove that we received fully informed instructions from our client not to do so.

Given the comparative costs and risks, the prudent course of action would appear to be pre-emptively lodge a Priority Notice at the earliest reasonable opportunity. And if incoming mortgagees choose to require a Priority Notice (as is highly likely), any argument is largely over.

Geoffrey Adam Electronic Conveyancing & Legislative Projects

work?

South Australian Conveyancer

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The Federal Budget and your retirement Federal Treasurer Scott Morrison introduced sweeping changes to Australia’s superannuation system when he handed down the Federal Budget on 3 May, targeting tax concessions that benefited high-income earners and retained assistance for the lowest paid.

Measures, including a $1.6 million cap on the amount of super that can be transferred to pension accounts, a $500,000 lifetime cap on after-tax (nonconcessional) contributions and a “catchup” clause on concessional contributions aim to ensure the system is fairer, more flexible and fit for purpose.

This Federal Budget has clearly stated that the purpose of superannuation is to supplement or substitute the Age Pension – not for estate planning.

Michelle Smith, Mercer Financial Advice Leader, says a lifetime approach to contribution caps offered an opportunity for Australians to engage in their super earlier.

“People can be more engaged in their wealth strategy earlier, rather than waiting to hit certain milestones closer to retirement,” Ms Smith says. “All of the good elements of super are still there but with incentive to start earlier.”

The ‘big ticket’ wealth creation values are untouched: the super concessional tax rate for most remains 15 per cent and pensions remain tax free for those aged over 60.

The budget proposes lowering the income threshold at which a higher 30 per cent tax rate kicks in, so earners of between $250,000 and $300,000 a year, including concessional contributions to super, will pay 30 per cent contributions tax from 1 July 2017. Currently, only those with an annual income of more than $300,000 pay the higher rate.

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Everyone else pays 15 per cent.

Concessional contribution caps will also be lowered to $25,000, from the current $30,000 for under-50s and $35,000 for those aged 50-plus. But the proposed rules will allow anyone with a super balance below $500,000 to carry over five years’ of unused concessional caps, a move that will benefit those who take breaks from paid work, including the self-employed and mostly women.

Support for workers earning less than $37,000 will continue in the form of a tax offset of up to $500 on concessional superannuation contributions, ensuring low-income workers don’t end up paying more tax on their super contributions than they do on their income.

Meanwhile, all individuals aged under 75-years will be able to make concessional contributions to their super and people aged 65-74 will be able to make contributions to their spouse’s account.

Because when women come together they thrive!

Enjoy the photos from the event.

Left to right (LR): Denise Mckay, Jodi Mastrangelo, Brittany Luks, Audra Homa and Rebecca Hayes - enjoying a beverage before the fashion parade.

DISCLAIMER: This communication has been prepared and sent by Mercer Financial Advice (Australia) Pty Ltd (MFAAPL) ABN 76 153 168 293, Australian Financial Services Licence #411766.

Mercer Superannuation (Australia) Limited (MSAL) ABN 79 004 717 533, Australian Financial Services Licence #235906 is the trustee of the Mercer Super Trust ABN 19 905 422 981.

Address: 727 Collins St Docklands, 3008. Tel: 03 9623 5555.

Any advice contained in this document is of a general nature only, and does not take into account the personal needs and circumstances of any particular individual. Prior to acting on any information contained in this document, you need to take into account your own financial circumstances, consider the Product Disclosure Statement for any product you are considering, and seek professional advice from a licensed, or appropriately authorised financial adviser if you are unsure of what action to take. Mercer financial advisers are authorised representatives of MFAAPL. The material contained in this document is based on information received in good faith from sources within the market and on our understanding of legislation and government press releases at the date of publication which we believe to be reliable and accurate. Forecasts are not guaranteed to occur. ‘MERCER’ is a registered trademark of Mercer (Australia) Pty Ltd ABN 32 005 315 917. Copyright 2016 Mercer LLC. All rights reserved.

An audience formed for the “Fashion Parade” showcasing Paige Rowe’s new range.

The girls receiving a round of applause after modelling Paige Rowe’s new range.

Mercer and Marsh in amalgamation with AICSA and REISA, brought the property industry together on the 12th of April for the Super Fashion Affair! - it’s mission to EMPOWER WOMEN!

South Australian Conveyancer AICSA Members Jeannette Dowling and Sue Kapor enjoying the day!

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Left to right (LR) STANDING: Stella Sinanis, Denise Mckay, Lara Paholski, Jodi Mastrangelo, Brittany Luks, Kathy Stolinski, Jess Caire, Lucy Cornes.

Left to right (LR) SITTING: Rebecca Hayes. Paige Rowe, Danielle Cormer, Audra Homa.

Left to right: Jess Caire, Stephanie Butto, Jodi Mastrangelo, Ash Taylor, Dani Seymour, Lara Paholski, Margie Hancock.

Marsh gave a outstanding presentation on Retirement Readiness for Women.

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Left to right: Tiffany Bennett, Emma Gryczeweski, Kathy Stolinski, Jackie Bayly, Mary Smith.

Left to right: Rebecca Hayes, Jon Wells, Rachel Sanderson MP, Jodi Mastrangelo.

11/07/2016 9:35:02 AM

Monsters inside us One of your most significant security vulnerabilities sits right in the heart of your organisation. You know it as your staff.

And no, we’re not talking about disgruntled staff with an axe to grind.

We mean your mild-mannered, everyday staff who are increasingly the targets of cyber criminals.

No matter how sophisticated a company’s processes and protocols might be, staff members remain individually responsible for managing threats to privacy. Now more than ever, they’re increasingly a source of risk. Security firm Symantec recently published a report highlighting an alarming surge in social engineering phishing attempts, preying on employees within certain departments.

Social engineering refers to psychological manipulation through highly developed and refined attacks that rely on human interaction. The scammers’ technique provides a deceptive sense of authenticity and attempts to build a relationship with an employee. They typically use insider knowledge such as executive staff names. They send malicious links or what look like official documents such as invoices or spreadsheets. They might also use what appears to be a reputable company email address or logo with hard-to-detect tweaks, say, with just one letter off. When unsuspecting staff click on this, malware is released onto computers and servers, rendering systems inoperable and sensitive information compromised.

By nature, humans tend to assume that these breaches will happen to ‘the other guys’—not to us, not to our business.

But while cyber threats are a now reality for us all, the good news is that there are several very effective, easily actionable measures that organisations can take to reduce their employees’ vulnerability.

Maintaining good privacy practices is good housekeeping for any organisation. But to consistently stay

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one step ahead of cyber criminals, it is no longer enough to rely on existing security measures. Instead, we must actively increase employee awareness.

At TIMG, we recommend rolling out a specific phishing training programme across your organisation. These programmes are designed to equip staff with the behaviours and skills that will reduce the threat posed by these attacks. As each team member goes through the training, their potential weaknesses are discreetly revealed, not to embarrass staff but to teach them.

Being entirely digitally smart should be seen as a continual area for growth for all!

What else can we do to protect ourselves and our businesses? Clearly, it’s important to have tight security measures implemented, as well as thoroughly trained staff. A range of security practices like the following should be implemented: »» Know the essentials for security.

Only give out information that you feel comfortable sharing. Ensure you are involved with a trusted party. Only click on links from reputable sources. »» Protect yourself online with strong passwords. How many of us are guilty of not doing this? Even if your company allows you to proceed with a weak password, don’t allow yourself to be tempted. Also, remember to frequently switch up passwords between accounts. You might have heard this a few times before, but keep it in mind, it’s only effective if you actually use a strong password and switch up passwords. »» Securely dispose of personal details. Don’t leave sensitive customer, client, patient or personal information lying around. Locked cabinets, password-protected files, shredding and Verification of Identity, are helpful measures to take.

Employees should typically only have (restricted) access to information that is needed to perform their particular role.

»» Does your business need a revamp of their privacy actions? Is it time to establish or revise procedures?

Consider how greatly technology has evolved over the past five years. Our privacy policies should reflect this! »» Encrypt, encrypt, encrypt. Ensure your network is secure and that Wi-Fi passwords remain complex and protected. Install encryption on mobile devices including laptops and tablets to protect against intrusion.

Each industry faces its own unique range of challenges when it comes to privacy.

Meanwhile, technology is developing at such a rapid rate that it sometimes seems that laws and privacy standards cannot keep pace with the dynamic and evolving complexities of the digital space. In such a risk-laden environment, a collective commitment and particular investment in employee vigilance should become a major priority for businesses today, as phishing attempts against employees are growing increasingly prevalent.

Ultimately, an investment in professional privacy and security measures buys you peace of mind, allowing you to conduct your business with the reassurance of knowing that there is a cushion of security around your operations. TIMG offers a variety of tailored information management and security products and services that are designed to keep businesses working with the utmost security and privacy.

For a complimentary review of your file management systems, contact Chris King, TIMG Business Development Manager, on 0421 396 701 or visit www.timg.com

»» Perform a quick audit. How does your team handle personal information? Have you assessed your risks and threats? Are your antivirus and antispyware up to date?

South Australian Conveyancer

11/07/2016 9:35:02 AM

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Cloud based accounting: a life changer New internet based software has the power to change the way your business operates and possibly even your life, says Hood Sweeney senior accountant and cloud accounting expert David Block.

Internet-based cloud technology which enables you to work remotely, say on mobile devices, has been a game changer in flexible work practices. For example, staff can access their roster via their mobile phone and enter their availability, while managers can approve leave or payroll remotely.

Cloud based applications can reduce the need for handling information twice, improve the accuracy of your data and enable managers to provide approvals on the go.

Using technology to improve customer experience and improve efficiency is critical to maintaining your market share in the internet age but it’s important to understand what you are buying and why.

Transformations in information technology are providing opportunities for businesses to improve the customer experience, reduce staff time spent on administrative tasks and increase the accuracy of their outputs.

Businesses with field staff are using tablets to provide job information and maps, while staff can enter data directly into business systems rather than take notes and re-enter it in the office. GPS tracking also provides another layer of transparency and potential security for staff in the field.

Cloud-based accounting applications significantly reduce double handling by enabling interaction between invoicing, payroll and reporting packages.

Automatic bank feeds mean that you can now connect your accounting system with your bank account and simply file transactions against income and expense accounts, rather than entering each transaction. Some cloud accounting systems can learn based on where you coded transactions last and automatically file them.

Whereas traditional accounting software requires compatible hardware and software and comes with high upfront costs and license renewals, cloud accounting can be accessed via any modern web browser on almost any device.

Continued on page 19.

Your whole life could change in the next 30 minutes.

As a fellow professional, you know we can’t distill our 40 years’ experience into half an hour.

But the free preliminary meeting we’d like to offer you as a member of the Australian Institute of Conveyancers (SA) could be the first step on your journey with us towards a more prosperous future. You’ll meet people who will listen to your story and convey some of the ways we could help you and your conveyancing business prosper (some of which are listed below).

For a no-obligation talk, email aicsa@hoodsweeney.com.au or call 1300 764 200 and join the journey we’re already on, growing and advancing businesses just like yours.

ACCOUNTING & BUSINESS ADVISORY CONSULTING & PERFORMANCE COACHING FINANCIAL PLANNING TECHNOLOGY SERVICES FINANCE T 1300 764 200 F 08 8232 1968 info@hoodsweeney.com.au www.hoodsweeney.com.au

■ Accounting & taxation compliance

■ Benchmarking & operational diagnosis

■ Corporate structuring

■ Risk mitigation

■ Management consulting

■ Leadership & development courses

■ Strategic planning

■ Cash-flow management

■ Performance coaching

■ IT planning & installation

■ Succession planning

■ Financial sourcing

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Building a brilliant brand (continued) A Guide to Trust When implementing your brand, consistency is key. Every time you are inconsistent, you diminish your brand’s strength and create doubt and mistrust. A great way of ensuring brand consistency is to develop Brand Guidelines. Brand Guidelines document all of your brand assets such as your brand vision, values and visual identity and even examples of implementation style such as how your business cards might look. Share your Brand Guidelines with everyone who is likely to use your brand and protect your brand consistency vehemently.

Measure and Manage My accountant often says to me, if you can’t measure it, you can’t manage it. A good way to determine if your brand assets are growing in awareness is to measure the awareness of those assets at the start of any new brand or rebranding process, and then measure them again after the process and implementation.

Your brand and brand attributes are one of the most important assets your business owns, and like your home, good management and maintenance will add value in the years to come.

Julie Wrobel AlgoMas

BRANDING & GRAPHIC DESIGN Whether you are rebranding or developing an entirely new brand, choose a strategic partner who will act as your Brand Ambassador throughout the process and beyond.

For a complimentary consultation, contact Julie Wrobel on 8232 2526 or juliew@algomas.com.au

algomas.com.au

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Cloud based accounting: a life changer (continued) And while some have been concerned about the security of data stored in the cloud, in reality most cloud data storage is significantly more secure than traditional methods.

Cloud accounting software stores data offsite in a secure data centre that is regularly backed up, reducing your risk of data loss.

Hood Sweeney’s preferred providers use security practices on par with internet banking including data encryption, two factor authentication, enterprise network firewalls, around the clock physical security at the data centre and regular security audits from independent professionals

Cloud accounting software also has the ability to help your business planning processes by providing advisors with real time access to data, enabling them to provide more accurate and timely advice.

For more advice on cloud accounting and other business technology contact Hood Sweeney senior accountant, David Block, on 1300 764 200 or email david.block@hoodsweeney.com.au

This advice is general advice only and has been prepared without taking account of your objectives, financial situation or needs; and because of that you

And unlike traditional software, it is continuously updated for a fixed monthly fee without any input from users.

should, before acting on the advice, consider the appropriateness of the advice, having regard to the your objectives, financial situation and needs.

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With no survivorship Is it needed?

When you hold land in a trust, the trust is not noted on the register at the Lands Titles Office or on the certificate of title for the land. Instead, the register and the title simply show that the land is held in the name of the persons who act as trustee of the trust. The reason for this is section 162 of the Real Property Act 1886 (“RPA”) which prohibits the Registrar-General from entering any particulars of a trust on the register.

For this reason, it has become common practice to note trustee capacity by noting on the register that the registered proprietors hold the land “with no survivorship”. While effective to indicate a trust holding, this technique can lead to a number of practical problems which are often not considered at the time the phrase is employed.

The words “with no survivorship” can be used where there are two or more registered proprietors who jointly hold the land as trustees. The effect of this is that it will not be lawful for any less number of joint proprietors than the number registered at the time that the notation is made to transfer or otherwise deal with the estate or interest in the land without first obtaining an order of the Court (section 165 of the RPA).

Alternatively, the notation can state that the above restriction as to transfer or other dealings with the land will not apply unless the number of persons registered as proprietors drops below a certain number. For example, the notation may operate such that the restrictions on dealings only applies once the number of proprietors drops below two, even if there were more than two proprietors at the time that the notation was made.

The notation acts to deny the operation of ordinary principles of survivorship that apply to joint proprietorship. This means that when one of the owners dies reducing the number of trustees to one or less than the specified number, title to the land does not vest in the survivor(s).

In practical terms, this means that if the number of trustees of the relevant trust drops below either the number existing at the time that the notation was made or the other number specified in the notation, a dealing with land to

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be registered by the Registrar General cannot be made without an order of the Court unless and until the requisite number of trustees is restored.

Consequently, in the event of the death, retirement or removal of a trustee which would cause the number of trustees to drop below the required number, the endorsement will compel the appointment of a replacement trustee and their registration as a proprietor of the land before any further dealing in respect of the land can be effected. This is so even if the terms of the relevant trust deed or the Trustee Act 1936 do not require the appointment of a replacement trustee and the surviving trustee or trustees are otherwise authorised at law to deal with the property.

It is common practice for trust deeds not to impose a minimum number of trustees. Ordinarily, therefore, where a trustee dies, retires or is removed, there is no need to appoint a replacement.

In fact, there may be any number of reasons why the remaining trustee or trustees may not want to appoint a replacement. The requirement to do so in order to comply with the provisions of the RPA can therefore impose an unnecessary burden on the surviving trustee or trustees.

The most obvious example of where this may cause difficulties is in a family trust.

For example, Mr and Mrs A, a married couple with 2 children, act as trustee of the A Family Trust and in that capacity purchase a piece of land. The title notes that they hold the land “with no survivorship”. Subsequently Mr A dies.

The trust deed does not require there to be more than one trustee at any time.

Accordingly, upon Mr A’s death, the trust deed provides that Mrs A becomes the sole trustee of the trust. However, as the ownership was noted as being “with no survivorship”, Mrs A cannot transfer or otherwise deal with the land in any way unless at least one further trustee is appointed. The logical thing to do would be to appoint Mr and Mrs A’s two children as additional trustees. However, this may not always be appropriate and can create its own practical difficulties if one child is not in harmony with the other or with Mrs A and refuses to agree to proposed actions or if the trust

deed allows decisions of a majority of the trustees to be binding on all, the children could potentially exercise powers of the trustee against the wishes of Mrs A. It is relevant to observe that there is no requirement for a trust holding to be noted with “with no survivorship” on the title. From an evidentiary perspective, the notation serves no purpose other than to notify that the land cannot be dealt with by a single surviving joint proprietor. It does not, by itself, provide any evidence of particular trusts that the land is held on. There are other ways that the trust holding can be indicated on an LTO panel form Memorandum of Transfer, for example by noting in the consideration panel that the consideration is paid by the transferee in its capacity as trustee of the particular trust. In addition to this, there are any number of ways to evidence the trust capacity through contracts or other documents recording the details of the transaction pursuant to which the transfer or other dealing occurs, but these do not achieve notation on the certificate of title and this limitation appears to be the genesis of the current preference for use of the term “with no survivorship”.

While there may be instances in which the use of “with no survivorship” and the resulting requirement for a minimum number of trustees to be maintained are justified, the perceived benefits from its use, as opposed to the practical problems that can arise from its use, warrant closer consideration than they appear to be receiving in current conveyancing practice.

For more information or assistance, please contact: Briony Hutchens Director DW Fox Tucker Lawyers P: 08 8124 1821 e: briony.hutchens@dwfoxtucker.com.au John Tucker Director DW Fox Tucker Lawyers P: 08 8124 1807 e: john.tucker@dwfoxtucker.com.au

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Hazards to avoid on your way to safe harbour VOI requires a safety-first approach. Through our extensive engagement with lawyers and conveyancers, we’ve identified 6 recurring risk areas for AICSA Members to avoid and ensure smooth sailing to VOI safe harbour.

1. No firm-wide policy A written policy on your firm’s approach should be a central pillar of your VOI compliance strategy. This policy will provide guidance and direction to all staff on how your firm and Identity Agents appointed by your firm will identify your clients for land dealings.

Professional Indemnity Insurers have noted that the existence and consistent application of a documented policy for handling VOI will be a relevant consideration if any fraud claims arise.

Similar guidance has been provided by AIC and AICSA to members as part of its member education.

2. Client pressures to make exceptions Adhering to your VOI policy should become a standard part of your firm’s conveyancing workflow. Bending on your VOI policy when the client shows urgency, raises unavailability as an excuse or otherwise applies pressure may seem to be helping your client at the time. However, the ramifications to your firm if a fraud claim arises can be extremely serious.

There are likely to be instances where you have an existing relationship of trust with a known client, based on prior dealings, when it may be reasonable for you to take a lower risk-based approach to their VOI.

steps” taken to identify a client ever be challenged or audited.

deal (e.g. under Power of Attorney, Company Directors or Trustees).

Best practice record retention covers elements such as:

For instance, checks should be made by you to ensure that the transaction is permitted under the Power of Attorney by sighting the grant document.

»» who has access to this personal information »» IT backups procedures »» removal of paper by digitisation where possible »» fireproofing of any paper storage Storing paper copies of ID documents, single server storage or relying on unsecured email may leave you without evidence of VOI or expose your client’s personal information to a privacy breach.

ZipID’s Agency and App solutions retain a fully secure archive of complete VOI evidence for the required period of 9 years (7 years plus the 2 year re-use period) at no additional cost to you or your client.

4. Offshore clients Failing to take reasonable steps may be exploited by fraudulent foreign parties or parties claiming to be offshore.

For many firms who have clients who are either resident offshore or are Australians travelling overseas, this presents a practical challenge.

Guidance on best practice for verifying clients who are overseas has been provided in the very helpful Guidance Note 2 prepared by ARNECC, available on ARNECC’s website.

3. Inadequate or insecure record retention

5. Failing to verify the client’s right to deal

It’s critical to satisfy the 7 year record keeping obligations outlined under the VOI Rules, should your firms “reasonable

It remains your responsibility to check the person whose identity has been verified also has the requisite right to

Similarly, when verifying Company Directors, it is prudent to conduct ASIC checks to confirm they are recorded as a current Director. Where the Company Seal is being used, the Company’s Constitution may be checked to confirm the authorisation to use the Company Seal.

6. Departing from the safe harbour Standard When the VOI Standard set out in Schedule 1 of the Rules is applied by you or your appointed Identity Agent, you are deemed to be in the “safe harbour”.

This status protects your firm against any challenges or claims unless you were on notice of any special individual circumstances giving rise to concern which may require taking additional reasonable steps (e.g. sighting additional documents).

It’s crucial that if you apply some other form of “reasonable steps” that depart from the safe harbour Standard you turn your mind to the most prudent and practical steps you can take in the individual circumstances to be confidently assured of your client’s identity.

ZipID’s specialised VOI solutions have been developed by a team of lawyers, identity fraud experts and software developers working in close consultation with ARNECC and peak professional industry bodies. Our solutions deliver safety, reliability and efficiency enabling firms to approach VOI with confidence and to deliver convenient and costeffective client service.

ZipID Team

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Cheaper Professional Indemnity Insurance?

Every year mostly the same people start saying that they can get cheaper professional indemnity insurance. Has AICSA not been listening to those people? Can it be cheaper? What’s the story?

In a nutshell, the professional indemnity insurance market is sourced every year and cheaper premiums are not available on the existing terms of the Scheme.

But you can take action to mitigate the premiums.

The Scheme The Government established the SA Registered Conveyancers Professional Indemnity Insurance Scheme and the Commissioner for Consumer Affairs must approve any changes. A claim may be made under the Scheme in relation to any conveyancing work performed in SA unless the work is covered by a legal practitioner’s professional indemnity insurance.

It is a requirement under the Conveyancers Act that a person carrying on business as a registered conveyancer is insured under the Scheme.

The Government’s policy objective is to ensure that a person may claim compensation for a loss that they have suffered from conveyancing work performed by a person carrying on that business – »» whether the person was insured at the time of the claim; and »» no matter when the event leading to the claim occurred.

In other words, the current insurer is liable for a legitimate claim made in on 1 June 2016 against a registered conveyancer who retired in 2008 in relation to events that occurred in 1998. Insurers refer to this type of cover as ‘claims made’ and it means that conveyancers do not need to take out ‘run-off’ insurance when they retire.

Simply put, the Scheme insurer must insure everyone and must meet all claims, even if they occurred before the period of insurance commenced (ie retrospectively).

Professional indemnity insurance is

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obviously much cheaper for individuals with a good claims history, who cannot make retrospective claims and do not get run-off cover. However, it does not satisfy the Government’s policy requirements. It also requires conveyancers to pay run-off insurance premiums annually after they retire to protect themselves from claims.

Is cheaper PII available?

We hear of the claims about the availability of cheaper PII every year.

Several times, I have spoken to persons who make these claims and have invited them to refer the insurance brokers to me.

On two occasions I was contacted (as then CEO) by insurance brokers who have been referred by the Member after a discussion about premiums. Neither was aware of the scope of the Scheme or the extended role of the insurance broker under the Scheme. Neither sought to pursue the matter further.

There are two reasons for them not pursuing the work. Firstly, a small number of (mostly international) insurers offer professional indemnity insurance in Australia – so every insurance broker must source quotes from the same insurers. Quotes are based on risk so an insurer simply will not give a cheaper quote to a new player: in fact, only major players in that type of insurance tend to have the presence and relationships with insurers to be able to leverage other work to negotiate better terms.

»» managing the claims data (critical because insurers undertake their risk analysis on extended claims history – which in earlier years was relatively good for conveyancers).

The insurance broker administering the Scheme requires substantial resources and experience in order to manage the renewal, deal with claims and various other processes over the course of the year.

Neither of the referred insurance brokers suggested that it could negotiate a cheaper premium for PII under the Scheme or administer the Scheme as required. Their failure to pursue the possibility has been drawn to the relevant conveyancer’s attention.

So it is sad that the same people seem compelled each year to make the same claims about cheaper PII. Kickbacks, AICSA’s re-imbursement and APRA The Scheme requires AICSA, on behalf of all conveyancers, to appoint, oversee and monitor an insurance broker (to manage the operation of the Scheme) and an insurer (to underwrite the Scheme). It also requires AICSA to propose and negotiate changes to the Scheme with the Commissioner for Consumer Affairs.

Secondly, the insurance broker must administer the Scheme involving such tasks as – »» sourcing the market and negotiating quotes and terms for consideration by AICSA; »» handling the renewal process (which must happen smoothly in a short space of time – ie it requires automation); »» managing the claims (to ensure confidentiality); »» reporting to and meeting with AICSA at least quarterly to review the performance of the Scheme; and

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The AICSA Council has always selected the insurer broker. The insurance broker administers the Scheme (see above).

AICSA calls for tenders for the role of insurance broker under the Scheme every few years. Only a handful of insurance brokers respond because only a handful deal with professional indemnity insurance scheme and have the resources to do administer a scheme. On the last occasion, the Council made selection based on a comparison of the tenders against selection criteria1: there was no significant variation in commissions sought by tenderers.

The AICSA Council has also always selected the insurer which must be done annually. It receives a report from the insurance broker that includes a comparison of the quotes and terms sourced from insurers. The tender delivering the lowest premiums has been chosen on every occasion except one. On that occasion, a slightly lesser quote came from an insurer but, as with selecting a conveyancer, price is not the only consideration and when the selection criteria were applied, the next lowest tenderer was selected.2 Both selection processes are transparent.

The Council makes the decision based on comparative data. It is deliberately structured in this way to ensure that there is no scope for any inappropriate payments. Any suggestion that kickbacks are paid to anyone is obviously unfounded and malicious.

AICSA receives an agreed re-imbursement for its supervision of the Scheme. The amount is clearly disclosed during the renewal process, has been openly discussed by AICSA and appears as income in AICSA’s annual accounts presented to the AGM. These types of payments are built into all such schemes where supervisory work is undertaken. In AICSA’s case, considerable work is performed (particularly in some years) when there are extraordinary claims, legislative change affecting risk 1 The selection criteria for insurance brokers include ability to manage renewal, proposed reporting, data management capability, commission sought, re-imbursement for AICSA, track record, flexibility, other terms and market presence.

2 The selection criteria for insurers include premium pool, other terms, track record (including attitude to claims and general ethical conduct), flexibility, use of technology and market presence. When the lowest tenderer submitted its quote in the following year, it was about twice the previous year’s quote and some hundreds of thousands above the successful tenderer in both years.

(eg the Reforms and electronic conveyancing) or changes to the policy wording or premiums.

AICSA has also been very proactive in suggesting changes to protect the Scheme and make it fairer – for example, excesses were introduced and tweaked, premiums adjusted to be fairer and reflect risk, rebates introduced for those undertaking significant professional development (reducing risk) and quarantining the Scheme from the ‘new’ business of preparing Form 1s for agents.

AICSA would need to do this work in any event (ie with Members bearing the cost) so it is appropriate that AICSA receives payment for that work. The amount was fixed in the early days of the Scheme as 20% of the insurance broker’s commission. There is no doubt in my mind that AICSA has more than earned these payments over the years.

Insureds who are not Members of AICSA also contribute to this payment, thereby bearing some of the cost.

The suggestion that APRA (the Australian Prudential Regulation Authority), which oversees banks and insurers, is or would be interested in the structure or operation of the Scheme (including payments to AICSA) is absurd and malicious. It was established by the SA Government and most years the same old people make the same old complaints to the Commissioner’s office: no action is taken because it is functioning as intended.

Are cheaper premiums possible under the Scheme?

There is one way that premiums can go down – by reducing the number and quantum of claims. That is where you have a major role to play. Your own activity and discussing the failings of others with them.

Premiums are determined by risk (primarily claims history). The premiums that you pay reflect the claims made.

The insurers have paid out (or anticipate paying out) considerably more than they have received over the past few years. A couple of years ago about 80 potential claims against one conveyancer caused premiums to rise by 55% across the board: even for the lowest fee bands, the increase was about $500. With a premium pool of about $1.1 million, one claim can wipe it out.

You can minimise premiums, even bring them down, by reducing claims. One way is to talk to a fellow conveyancer who does not appear to be doing the right thing. For example, some conveyancers are not up with the Reforms to the Real Property Act. Some conveyancers are still not requiring a VOI interview. We all need help from time to time: by having a collaborative conversation with the conveyancer, we may be able to assist them to avoid a claim that could blow our premiums skyhigh.

Conclusion The Scheme was established by the Government. Premiums under the Scheme are based on risk. With few professional indemnity insurers in the marketplace, any suggestion that cheaper premiums are available are ill-informed at best. The payment to AICSA for its supervision of the Scheme reflects the considerable work undertaken, the cost of which would otherwise be paid by Members. The selection by the AICSA Council of the insurance broker and insurer is rigorous and involves a comparison of all tenders against established selection criteria. Any suggestion to the contrary is mischievous.

However, cheaper premiums are possible by reducing claims. Helping other conveyancers to comply will greatly assist

Geoffrey Adam EC & Projects

South Australian Conveyancer

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Adelaide’s fly-in-fly-out conveyancer South Australia revolutionised property ownership in 1858 with the introduction of the Torrens Titles System. Fast forward to the 2016 e-commerce era and now the State is entering the digital marketplace by taking property transactions online.

For the owner of the Marshall Conveyancing Group, Jess Caire, electronic property exchange means greater efficiencies in handling her client’s transactions. Here she shares her personal anecdotes about change, resilience, operating a business without borders and her tips for running a dynamic, successful practice.

Flexibility is crucial in creating a harmonious workplace. I returned to work when my kids were really little (eight weeks and six weeks old), and I was fortunate to have a team that understood and supported that. This meant I was able to juggle running a business and family life. Our office is very adept at dealing with change.

E-conveyancing – let’s get started

I want to be a role model for my children, and show them that women can be strong workplace leaders as well as wonderful mums – these things are not mutually exclusive.

Our office is very adept at dealing with change A very large number of the State’s conveyancers are women and I think it’s a great profession for us. It requires us to draw on our empathy and our organisational and multi-tasking skills, which many women naturally have.

Being a business owner and a parent, I am aware that flexible working options are required in a modern age.

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With change always comes criticism and resistance – but I’m here to tell people that change is what you make of it, and it is an inevitable part of business (and life). Our clients are shocked that we still deal in bank cheques and line up in queues for settlement. I see the opportunity that e-conveyancing presents – especially for regional conveyancing firms.

An end to attending the Land Titles office, waiting in queues and dealing with bank cheque errors The time freed up by not attending the Land Titles office, waiting in queues and dealing with bank cheque errors will demonstrate that e-conveyancing is the start of something great.

FIFO conveyancing and workplace flexibility I call myself a ‘FIFO’ – or Fly-In-Fly-Out – conveyancer. Last year my husband’s work relocated him to Brisbane. After eight months of him being away from home for 12 days out of every 14, we made the bold decision to relocate our family to Brisbane. Currently I split my time between Brisbane, where my family lives, and regional South Australia, where I run the business I purchased eight years ago. We are an unconventional family and it helps that we are supportive of each other’s careers.

Electronic transactions will NOT disrupt face-to-face client dynamics

Airbnb and UBER were scary at first for many people. Now they’re the mainstay for their industries. Our industry will transition to e-conveyancing if we work together as a team. It’s the next logical step. I use technology to my advantage – some days I’m in Adelaide and other days I work remotely in Brisbane. I can log on from pretty much anywhere with our remote office set up. Our team already embrace a digital workplace and we’re active on social media, using it to share our milestones and ideas.

My only frustration with e-conveyancing is that it hasn’t started here yet I am hopeful that those fearing the change will embrace it and see it as a more efficient way of delivering a professional service. Successfully running a business is about staying focused on your vision and purpose while embracing the ever-changing nature of the environment in which we live. My only frustration with e-conveyancing is that it hasn’t started here yet!

Of course, embracing e-conveyancing doesn’t mean we shouldn’t build real relationships with our clients. When you run a regional practice in particular, relationships are critical. My clients are varied, ranging from first home buyers to third generation farmers. They want to get to know me and trust that I understand their needs.

Embracing technology AND emotional intelligence A large part of my business model is understanding my team and their respective strengths. As well as embracing technology, our team has spent a lot of the past two years focusing on emotional intelligence. Being able to play to our strengths and minimise our weaknesses means we see opportunities for innovation and change. Success looks different to everyone and a boutique regional firm can be as successful as a large operation with several shop fronts.

I believe there is enough work out there for all of us and our industry needs a range of business models. Embracing these changes may just mean we have to collaborate more, which I see as a positive as it lifts the quality of our profession.

To learn more and join your colleagues ready to transact online visit pexa.com.au

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Tips for running a successful conveyancing business I’m sharing these tips in the hope that you can learn from some of my own mistakes.

1. Hire the right person Pressure makes for rash decisions.

Prospective employees must align with your businesses values.

Remember, you’ve got a valuable entity and it’s a privilege to be part of your team. The wrong staff member can undermine years of hard work.

And the more I looked at my business this way, the more out of touch with my team I became. A few years ago everything collided – my health, resulting in a need for major surgery, my exhaustion and the vibe that had set in at the office. One of my long term staff left and it hurt like the first time a boy broke up with me. I did some soul searching and fast forward three years, I’m proud to say we’ve embraced emotional intelligence and mindfulness.

Bottom line: find your team members’ language, talk to them in that language and you’ll be surprised at what happens.

2. Look at your figures Many people hate talking about money! A clever lady once taught me to talk about it in a commodity you feel comfortable with. For me it was files.

Talking about a file increase per month to increase my profit by 10% was so much easier to work towards than a dollar figure. And find a simple and userfriendly accounting program such as Xero. Check your P&L at least fortnightly, and compare with the previous period.

3. Do your homework when you outsource Once upon a time I had a belief that if you were a professional you knew what you were doing. So I would happily outsource work vital to my businesses survival to a professional. But many times I hadn’t asked the right questions, so I didn’t know if these professionals were equipped to deal with my specific needs or if their businesses aligned with my core values. Make this mistake more than once and it can be game over.

4. Talk the same language as your team I used to live in a headspace where I compared my staff with myself: ‘I get it, why can’t you?’ Or ‘I can do ‘X’ during the day, why can’t you?’

5. Don't use business as a scapegoat Don’t hide behind your endless to-do list or your ‘busy’ life. Being self-employed means there’s no 9-5. But it doesn’t mean there’s no life. Your time is limited, so make it count. Spend it with people who make you happy and who love you for who you are.

6: Don't pretend you’re always OK Sometimes being a business owner is isolating. Some days or weeks are really hard. But you feel like you’ve got to be OK all the time, for your staff, your family and yourself. But you’re human. When things aren’t OK, seek support and don’t worry. Better days are ahead.

All because I didn’t have a plan. Make a plan, have a vision and break that plan down into bite-sized chunks that you achieve weekly or monthly that move you toward the end goal.

9. Celebrate your success Make sure you celebrate your successes - I'm not saying be an arrogant egomaniac, but I am saying if you achieve it celebrate it. Find a way that suits who you are, a self-high five, a dinner out, something that lets you have a moment to really enjoy how far you’ve come and what you have achieved.

This is something I'm still learning and something that still makes me a little uncomfortable. I love celebrating all of the wonderful women in my life successes and achievements - when they are killing it at life, I feel so pumped for them...Find people who do this for you.

My favourite quote of all time- one for all of us to remember - Her success is not YOUR failure. Not everyone in life will do this for you – so select your crowd carefully!

Find out more at jesscaire.com

7. Ask questions If you don’t ask questions, you’ll never move forwards. The more you ask, the more you learn. Ask – then listen. Your staff, your clients, your strategic partners have a wealth of knowledge that you can tap into.

8. Make a plan and set goals I bought a second business while not running my first business effectively and while trying unsuccessfully for a second baby (idiot!).

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Recruiting for success The recruitment process is something Adelaide Aspire knows a lot about.

market is key to happy, productive staff

Stand back and look at your organisation

2. Position Description - If this is a new

and ask yourself, what do you have to offer

role, what specifically will you require

a new team member?

this person to do? What tasks and duties

Gone are the days when people just

Undertaking this process is all about

will they perform? How will they be

look in the paper so consider the use

searching for and obtaining a pool of

measured? What industry experience,

of online advertising, job boards and

potential candidates with the desired

qualifications, licences will they need.

social media, as these are most definitely

knowledge, skills and experience which

If the role is being vacated, this is your

where candidates are looking for jobs.

allows your business to select the best

opportunity to review and revise,

Remember when advertising, that

person to meet the job requirements.

especially if the previous person was not

discrimination laws must be adhered

Getting the best applicants for a role

meeting your expectations.

to at every stage of the recruitment

can be a competitive advantage for

3. Who the role reports to - hiring is

process. Unnecessary requirements

a business. However, ineffective

also an opportunity to give current team

such as age, race, religion and sexual

recruitment and selection can result in

members the ability to manage others.

orientation could breach anti-

When advertising a position within a

discrimination laws.

company, most employers generally

In advertising the position, care must

go about writing up a long list of

be taken to ensure the widest pool of

Having a good recruitment strategy

things that they want! This is the first

applicants is made aware of the job. Not

is paramount to success. Ineffective

mistake. Advertising a vacancy for your

only will this ensure compliance with the

recruitment can become a costly and

organisation is like advertising Real

law, but it will allow employers to choose

inefficient process if not approached in a

Estate - the more interesting and inviting

the most suitable candidate

systematic and proactive manner.

the role is the more likely you are to

Once interest has started coming

turmoil – disruption to your workplace, reduced productivity and tensions amongst employees.

Before rushing into any decision to

through for the roles, ensure that you

recruit, firstly look at whether you can

screen applicants – this allows you to

you promote or develop existing staff

create a shortlist which saves un-

into the role. This will help to create an

necessary time on interviews that are

environment where staff feel valued

futile.

and it also creates career progression

When it’s time to commence the

and longevity. You should advertise the

interview process, make sure that you

role internally and interview the internal

have planned your recruitment/selection

applicants to ensure that your employee

process. Do work to a script and don’t

is actually suitable to undertake this role.

treat the interview like having coffee

Once having made the decision to look

with a friend. Ask relevant questions

outside the business, undertake some

in the first interview so that you can

preliminary work before commencing.

ascertain that the applicant can indeed perform the job role to a satisfactory

Consider: 1. Salary & Benefits – Make sure that you are being competitive. Paying people correctly and in line with the

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level. Focus on culture and team fit in get the right applicant. Always aim to attract a wide audience and then narrow in on specifics for the short list.

the second interview - we know the person can do the job but do they fit into my business?

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These questions should be behavioural

Again, avoid any questions that could be

Avoid asking any question that seeks

based, so how people behave in the past

perceived to be discriminatory; always

information about an applicant’s

is how they generally will behave in the

consider whether one applicant would

chosen gender, sexual preferences,

future.

be treated less favourably than another

physical or mental disabilities, age,

given a different answer to the same

familial responsibilities, pregnancy,

question.

religion or political opinions. The

It’s always good to get another person from your team to join you in the second interview - a second opinion offers some objectivity to the final decision.

Employers spend a great deal of time and money in the search for the perfect employee: someone who will excel in

most important question an employer should ask themselves before preparing to interview potential candidates is whether the answer to each interview

the demands of the role, whilst also

question will provide them with

fitting in with the company culture and

information needed to assess whether

ethos. It is understandable then, that

the applicant can perform the expected

employers want to know as much as

duties efficiently. If it doesn’t address this

they can about a prospective employee

issue, then don’t ask it.

before hiring them. However, some areas of enquiry are not acceptable under the law.

Once you have selected an applicant for the role, it is important to do your due diligence:

»» Do VEVO checks for employees on work visa’s/non-citizens – fines exist up to $55,000 »» Ensure you have copies of qualifications required – more and more there are instances of these being incomplete or never obtained »» Undertake reference checks – do at least two, ideally using a form which prompts you to ask the right questions and get the information you need. »» These should always be with previous managers or supervisors – never work colleagues »» Ensure you have a written contract of employment regardless of the nature of employment and ensure it is signed and returned before commencement Finally and importantly, keep the recruitment process moving along swiftly – the last thing you want is to leave the opportunity open for a great applicant to accept another job.

If you would like any assistance with your recruitment or would like to know more about how we can help with your HR needs, please contact us on 8212 2683.

Adelaide Aspire Team South Australian Conveyancer

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Left to right: Hasan Ulker, Grant Barkla, Tim O’Halloran, John Zollo, Glenys Jackson, Fiona Baverstock, Denise Mckay, Melanie Mugford, Denise Mckay, Nathan Hughes, Lina Psarros, Yvette Graetz, Sarah Benwell.

AICSA Networking Events I was recently invited to the AICSA and MyConnect McLaren Vale winery tour as part of the AICSA initiative to develop relationships between ourselves as industry members and our sponsors. I found that networking throughout the day with business owners, conveyancers and sponsors to be beneficial in developing relationships for mutual gain both personally and professionally. I would like to thank the AICSA and MyConnect for arranging the day and believe these events will benefit members.

Grant Barkla AICSA Member

Left to right: Hasan Ulker, Fiona Baverstock, Grant Barkla and Melanie Mugford.

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South Australian Conveyancer The group all ready to go on the bus.

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Tim O’Halloran and John Zollo enjoying a wine!

11/07/2016 9:35:13 AM

Left to right: Rebecca Hayes, Denise Mckay, Lara Paholski, Tori Hodgman, Penny Erskine.

Left to right: Lara Paholski, Audra Homa, Penny Erskine, Denise Mckay, Rebecca Hayes, Josie Lazzaro.

Left to right: Denise Mckay, Tori Hodgman, Anne McGlynn, Stella Sinanis, Josie Lazzaro, Fiona Baverstock, Audra Homa, Lara Paholski, Penny Erskine, Rebecca Hayes.

The riders kick off on the first stage of the Tour Down Under.

Left to right: Tori Hodgman, Fiona Baverstock, Rebecca Hayes, Audra Homes, Lara Paholski, Penny Erskine, Denise Mckay, Anne McGlynn.

Left to right: Audra Homa, Penny Erskine, Josie Lazzaro, Denise Mckay.

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Related party transactions – conflict and tears?

As professional advisers, we’ve all been there. Maybe it’s a good regular client coming in with mum and dad to transfer a significant asset to the client.

Maybe its clients who have separated their personal and/or business affairs who want the one adviser to effect the finalisation including transfers etc.

duties owed by the conveyancer to the other party to the transaction.4

I know it has happened many times in my professional life. These scenarios always pose a professional (and sometimes moral) challenge. Who is your client? What are your instructions?

Should the client do it? How far professionally do you need to go? Will it end in tears?

Proper Engagement

There is often an assumption on the part of the longstanding client that the transaction should be simple and “cost effective”( for which you should read “cheap”).

In this article I will endeavour to touch upon these issues and hopefully provide some guidance. None of this is legal advice of course. Don’t rely on it (sorry to sound like a lawyer).

Conflict of Interest What does the Act and the Regs say?

According to the Land and Business (Sale and Conveyancing) Act 1994 (“the Act”) a conveyancer must not act for both the transferor/guarantor and transferee/ guarantee1.

However the Land and Business (Sale and Conveyancing) Regulations 2010 (“the Regs”) states a conveyancer can act for both if they are related to one another by blood or marriage, domestic partners or in a business partnership (see section 29(1) of the Regs for comprehensive list).

The conveyancer must cease to act if a conflict of interest arises2, unless if both the parties agree in writing that the conveyancer may continue to act for one of them, the conveyancer may continue to act for that party3. A conflict of interest is defined as arising if the duties owed by the conveyancer to one party to the transaction conflict with the 1 Land and Business (Sale and Conveyancing) Act 1994 (Section 30(1)).

2 Land and Business (Sale and Conveyancing) Regulations 2010 (Section 30(1)).

3 Land and Business (Sale and Conveyancing) Regulations 2010 (Section 30(2)).

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So the Act and the Regs do allow you, subject to complying with the specified requirements, to act for both parties but do you want to do that? Is it worth the risk?

agreed to act for more than one person in relation to any matter (which is highly unlikely) then each person so instructing us declares: 29.5.1 That we have a potential conflict of interest as between them as their interests, directions, and instructions may not always be the same;

It is important to be very clear as to who you act for and what, if any, limitations are there to your instructions.

29.5.2 That they have each been warned to obtain independent legal, accounting, and taxation advice;

For example, I always advise and urge all clients to seek taxation, accounting and financial planning advice before committing to any transaction or agreement. There are often unintended capital gains tax, GST, Centrelink etc issues that need to be managed. I make it clear in writing that I am not giving such advice.

29.5.3 That at some point in the future if their instructions to us are not the same we will be in a position of actual conflict of interest and will need to cease to act for each of them in relation to this matter.

This will result in each of them needing to engage separate new lawyers which will then incur extra legal fees and expenses for each of them;

Are your instructions simply to effect the transfer without in any way giving any advice in relation to the above or the desirability of your client entering into the transaction? Dangerous if you can’t later prove your limited instructions. Written and signed terms of engagement and significant instructions are a must.

29.5.4 That whilst it is more expensive by way of legal fees each has been advised that they should have independent legal representation from the outset. Each has chosen not to do so in order to save legal fees and to minimise inconvenience.

My firm’s Terms of Engagement make these issues clear (hopefully): 29.

Conflict of Interest

29.1 We normally only act for one party or person in relation to any matter.

29.2 We recommend that each person obtains independent legal accounting and taxation advice.

29.3 Independent in this sense means independent of each and every other party or person involved in the matter.

29.4 The above applies even where for example members of the one family, partners in a partnership, co-directors of a company etc have engaged us. Please note however that it is our practice to only act for one client and not multiple clients in relation to the one matter.

29.5

If we have expressly in writing

4 Land and Business (Sale and Conveyancing) Regulations 2010 (Section 31(a)).

The above may apply when acting for one partner in relation to a partnership matter, the company (and not individual directors/shareholders) etc.

Some of the issues For example, if a 78 year old client, instructs you to transfer their only asset, being say an investment property to their adult children. This is often motivated by a desire to maximise possible pension entitlements and/or minimise contributions to nursing home care. , Do you feel obliged to discuss the desirability of doing so?

Rightly or wrongly, I will always ask clients to carefully reflect on what they are doing and possible future unforeseen consequences. What if the client needs the asset they are transferring away?

All clients (and all parties) should be given ample time to carefully consider what they are doing including reading all drafts, time to obtain advice etc. Not

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coming into our office and simply being asked to sign without that opportunity to read, consider, obtain advice etc.

Make sure you can prove that you did this.

As a general rule, the law recognises that individuals are free to enter into all sorts of transactions on the basis that they understand and approve the same. Does the transferor/grantor understand and approve? Can the transferee prove it?

Most of us have seen situations where a significant asset has been transferred to an adult child and then later that asset is subject to either bankruptcy claims, family law claims by separating spouses of the adult child, etc. Also where the adult child does not deal with the asset in a way the transferor parent might have expected or wished.

I do not, in this paper, propose to go through the law in relation to the above grounds for setting aside transactions.

There may be cause for concern as a result of: »» The nature of the transaction (ie: What is the cost or benefit to the transferor?);

If you are acting for the transferee, you may think that the transferee has little to lose (and much to gain) by the transaction however this is not always the case. What happens if the transaction is later challenged either by the transferor or other members of the family or the transferor’s executors? Will your transferee client point the finger of blame at you if the transaction is later challenged?

Too commonly, separating ex-spouses believe that the transfer of assets between them will finalise their family law matters. They will often approach one adviser to document and effect the transfer. As that adviser, what do you do to protect your clients (who is in fact your client?) and the parties themselves?

Likewise, with long term business partners (often both of whom are your long standing clients) who want to effect property or business transfers between them.

Obviously each client and each set of circumstances are unique. Some of the common issues and concerns with any “related” party transfers will include: 1.

2.

The need for independent advice (including advice in relation to the desirability of effecting the transfer); Determining true value (as opposed to assumed value of what is being transferred);

»» The value of the transaction. Is it significant? »» Does it represent a significant portion of the transferor’s assets? transaction (particularly common with elderly parties, business or life partners under emotional stress, where there are significant health issues); 9.

Future enforceability of the transaction ( family law settlements that have not been recorded in a manner consistent with the Family Law Act, need for writing, compliance with legal formalities etc);

10. Land Tax considerations; 11. Documentation and enforceability of ongoing / future obligations eg adult child transferee’s promise to “look after” transferor parent; 12. Payroll tax considerations (in relation to business structuring); 13. Numerous other transaction specific considerations Setting Aside Transactions There are a number of grounds upon which a transaction can be set aside.

These include: »» Unconscionable transactions;

3.

Taxation implications;

»» Undue influence;

4.

Centrelink implications;

»» Non est factum;

5.

Actual receipt of consideration if there is any element of vendor finance;

»» Statute based provisions including the Australian Consumer Law;

“Buyer Remorse” – where either party later regrets what they have done and attempts to challenge;

»» Estoppel;

6.

7.

“Seller Remorse” – see above;

8.

Capacity of parties to enter the

»» Equity based remedies; »» Duress; »» Unconscionable dealing; and »» Misrepresentation

»» Is the transferor truly able to “afford” the proposed transaction? »» Age and health of the transferor; »» The relationship to other parties; »» The apparent and actual independence of instructions etc; »» English as second language; »» Supposed urgency of the transaction; »» Lack of independent advice.

You may protect your client, the parties, the transaction and yourself by considering one or more of the following: »» Ensuring you clearly identify who your client is. This includes verifying identity (of all parties). See your client on their own. Always take instructions directly from the client. »» Ensure that all other parties are advised in writing as to who you act for. »» Carefully reality test the client’s instructions. Why are they entering the transaction? What does the transaction look like to third parties including other members of the family not involved? »» Look for any suggestion of undue influence (dependent relationships?

Mental/physical health issues? Who organised appointment? Available support to client?). »» Does your client/ parties need more time to consider or to discuss the proposed transaction with other family, independent advisers etc? »» Will there be tax, Centrelink, or financial implications of the

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transaction that must be discussed with other advisers? Do you, in effect, compel your client to seek that advice by refusing to continue with the instructions until the advice is obtained or personally arranging for the advice to be obtained? On numerous occasions I have done this by for example, arranging a meeting with the client’s accountant for tax and financial advice only to discover that as a result of the advice given, the client reconsiders their instructions including reconsidering proceeding with the transaction at all.

»» Do not allow one party to explain/ arrange for signing of documents in relation to other parties.

»» Is a medical assessment required to prove capacity? »» Are you comfortable with the transaction as the adviser? Does it ring any internal warning bells for you? »» Has your advice and warnings been committed to writing? »» Has the client/parties been given ample time to read and consider all material? There should not be any circumstances where any party is called into your office to simply sign a document put to them. Always give all parties ample opportunity to read and consider any document you prepare including obtaining all necessary advice that they may want. Do not leave yourself open to an accusation later that the document you prepared did not reflect the client’s instructions or a party did not understand the document. »» Is an interpreter required? Do you need an interpreter’s certificate in relation to the document? »» Are all parties separately represented?

Should this go beyond simply advising them to get independent representation to requiring documents to be witnessed by a separate lawyer acting for each party? »» Do you want to act at all? Is it worth some fees now being later lost in stress, lost productivity, legal fees, lost fees etc if the transaction turns sour and you are later sued or involved in court action in relation to the transaction? »» Should you declare you act for one party only – prepare all/most documents required and obligate other parties to obtain the necessary independent advice etc?

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Just don’t do it ! (Apologies to Nike) Notwithstanding all of the above, there are significant risks with acting for more than one party to any transaction.

My practice is simply not to do it.

I make it very clear from the very first contact that I cannot act for more than one party and I then clearly nominate who my client is. All other parties are advised in writing to seek independent legal, accounting, taxation and associated advice. This will always be recorded in the transaction documents.

On many occasions more than one party will attend at my office together.

They will all complete my terms of engagement and sign them. Where this occurs there will ideally be a signed acknowledgement that all revoked/ cancelled the joint engagement and that I am acting for one party only. I will ensure that early on I see my client separately to the others.

Hopefully my file will be very clear in relation to the above. I am a firm believer in “Res ipsa loquitur”. My apologies at my poor attempt of resorting to Latin. It’s amazing what you can find on Google. It means “let the thing speak for itself” or as I say, “let the document speak for itself”.

Most professional practices will from time to time have issues in producing a closed file some years after the file was closed. Accordingly, I attempt to build in my acknowledgements and warnings

into the relevant document itself. These sorts of clauses include that my firm is acting for party A only, that all parties (including my client) have been advised to obtain taxation and accounting advice, the non-client parties have been advised to seek independent legal advice etc. At some later stage if there are issues in relation to the matter and the documents, then some of the key elements of the engagement and the information/advice given will appear on the document itself. I am not having to rely on my firm producing the file in say 10 years’ time. I have even been known to record in the consideration panel of a Lands Titles Office document (after the monetary consideration) a mutual acknowledgement by the parties in relation to warnings given by me. That LTO document is on public record and readily available for the future. Please don’t mention this to the Registrar in case when I next attempt to do this the LTO reject or requisition!

Where a longstanding client comes to see me and requests that I carry out a transfer to their benefit and to the disadvantage of any related party, I point out the common grounds of challenges to such transfers later. These include lack of independent advice, language issues (if a party has English as a second language), and often issues of mental capacity or state of health where one party is elderly or unwell. Sometimes the safest answer is to refer my client on (particularly where I have also done work for the elderly relative). If I do act for my client as the transferee then to protect the transaction, and my client (and of course myself ) I will strongly recommend and sometimes in fact require that the other party execute relevant documents in front of an independent legal adviser, that an interpreter (including that an interpreter’s certificate be used to explain the transaction) and that a medical certificate be given by the transferor’s treating doctor in relation to capacity and health issues. Of course every matter is different. However, we are living in more litigious times and claims challenging transactions are becoming more and more common.

Hopefully my approach helps protect the parties (including my client of course and the transaction itself ).

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What if my client is the elderly relative looking to transfer a significant asset to a child or children?

I must admit I cannot help myself. I need to discuss with the client the desirability of the transaction to ensure that they have properly considered the full ramifications of what they are doing. This reflects my philosophy that part of my role is to assist clients to make informed choices. Yes I hear many of you say that we are not our client’s keepers and that ultimately it is up to them. I believe however that as a professional adviser to the client, it is part of my duty to ensure that they have considered, amongst other things:

Interestingly, many clients find this discussion easier to have if it is on the basis of assuming that their own child will of course not do the wrong thing but that it may be that a son or daughter in law may.

5.

Future Centrelink ramifications.

Often couple clients may consider transferring assets to maximise Centrelink entitlements and their calculations are on the basis of receiving a “couple’s pension”. At some point, one of them may die and the survivor will receive a singles pension. What is the real financial gain once that occurs?

Particularly where if the asset transferred away is incoming generating and the adult children have their own tax issues in any event.

1.

The true value of what they are transferring. Are they guessing its value or do they have independent assessment of what it is worth?

2.

The lack of certainty in relation to the future. What if a change in financial circumstances, health, or other circumstances, require financial resources they don’t have because they have disposed of an asset.

6.

On a number of occasions I have ensured that the client has had this advice by liaising directly with their financial planner and accountant. This may involve a joint meeting to ensure that there are no misunderstandings.

3.

Careful financial planning advice in relation to the Centrelink effect of the transfer. This advice should also extend to impact on nursing home fees etc.

7.

A very careful consideration of what they are proposing to do and why.

What are the underlying interests and concerns of the client?

8.

The effect on family relationships if a transfer is not of equal benefit to all adult children. Does this generate family tension and issues now or post death of the client?

4.

What if an adult child transferee suffers at some point in the future a messy divorce, bankruptcy, dies, has mental health issues etc. This is often a difficult topic to discuss with clients. I ‘normalise’ on the basis that I know that I would have never done the wrong thing (whatever that means) in relation to either of my late parents and their affairs however there is no way of any of us ever knowing what the future holds and how could I say in relation to myself that I would not in the future suffer some significant event such as bankruptcy, mental health issues, gambling addiction, alcohol addiction, a messy divorce (apologies to my lovely wife), death where there is some dispute in relation to my estate etc. I make the point to clients that the discussion should not be a reflection on their family or their children.

9.

The likelihood of future challenge by unhappy family members;

10. Desirability of a medical report if age or infirmity are an issue.

I have also been involved in transactions where, for whatever sad personal reasons, an older client is intending to transfer a significant asset to only part of a family pre death. This will result in a discussion about the high likelihood of a challenge at some point against that transfer. I see my role to include assisting clients to make informed choices and then after careful consideration if they decide to proceed with the transaction to assist them carry out their wishes. This includes helping to defend the transaction against later challenge. Depending on the circumstances, this will involve

obtaining a medical report, if health is an issue that may be later challenged, and also obtaining an interpreter’s support (and an interpreter’s certificate) where English may not be the client’s first language. Often clients will resist the inconvenience and expense of doing this. However I find that they will normally be guided on these points. If my advice in relation to this is rejected I will note that the advice was given and rejected in the transaction documents to ensure that at some point in the future I manage the risk of an accusation that more could have been done by myself as an adviser to ensure the enforceability of the transaction.

Just don’t do it? There have been a number of transactions where, upon review and consideration, I have strongly urged my client not to proceed and have declined the instructions. For example, an elderly client transferring their sole asset to one child where that child is in a high risk occupation. The client choosing to disregard my warnings and advice in relation to the possibility of the death or bankruptcy of that child, changed relationships with the child, the client’s future needs, etc. I felt so strongly about the risks my client faced and was not properly considering that I chose to decline the instructions. This hopefully causes the client to think even more carefully about what they are going to do.

So – ensure strict compliance with the Act and Regs, consider some of the issues above, and hopefully help the client (and you) avoid the tears.

Charlie Belperio Senior Solicitor cvb@bc-lawyers.com.au Emma Campbell Solicitor emma@bc-lawyers.com.au

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From SA Court: $2m identity fraud & fraudulent use of duplicate CTs Recent events in the SA District Court reveal –

The circumstances of the offences provide a timely warning for conveyancers.

»» VOI of clients in multiple transactions would have prevented large claims against the SA Conveyancers PII Scheme; and

Jones held various duplicate certificates of title. At least one he held without authority and it appeared to have been obtained as a substitute for a ‘lost’ duplicate. The land was mortgaged for substantial sums using mortgage documents on which he forged the mortgagors’ signatures. There was no apparent verification of identity.

»» duplicate certificates of title were fraudulently used by a third party to obtain registered mortgages amounting to several hundred thousand dollars.

Mortgage financier Malcolm Royce Jones admitted another 70 offences (involving about $2.2 m) in the District Court, many of which are or will the subject of claims against our PII Scheme and caused premium increases to pay for those claims (55% increase across the board) about 2 years ago.

Jones was previously convicted of similar offences involving another $4.8m.

The fraud could not have occurred if any reasonable steps had been taken by the certifying party to verify the identity or authority of the mortgagor.

The duplicate CT was relied upon as authority (right) to deal with the land.

Without that duplicate, other evidence would have been sought which is likely also to have uncovered the fraud.

The certification given (ie ‘correct for the purposes of the Real Property Act’) was also obviously given without regard for the responsibility that certifiers have under the Real Property Act. It is unclear whether the RegistrarGeneral’s VOI Requirements applied at the time. However, the case highlights the need for conveyancers to be vigilant and take reasonable steps (measured against the Standard) to verify their client’s identity and authority. If that rigour had been applied, some claims against the Scheme would have been avoided.

To read Judge Costello’s sentencing remarks in R v Jones (DCCRM-15-2525) 9 June 2016 Click here.

Geoffrey Adam Electronic Conveyancing & Legislative Projects

Australia Post’s VOI services help you comply with Land Title Verification of Identity requirements How it works in 4 easy steps: 1. Australia Post create a unique VOI form, which you provide your client.

2. Your client then visits a participating Post Office to be identified by our staff.

3. They check, scan and encrypt the relevant document, take the client’s photo and witness their signature.

4. They will digitally notify you when a VOI Report has been completed by your client.

5. You can access, view, download and print all your completed VOI reports through your Australia Post portal. And because its all taken care of online, you don’t have to worry about keeping track of and storing multiple VOI forms for records. Too easy!

Sign up today at auspost.com.au/landtitles If you have any questions about your bespoke form, contract, client in store experience please don’t hesitate to contact us on LandTitleVOI@auspost.com.au or 1300 364 543.

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South Australian Conveyancer

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First Title Case Study: Heritage – the ‘hidden’ treasure What happened?

The insured purchased an original 1950s style home in South Australia with the intent of demolishing it and building their dream home.

Contracts were exchanged in late January 2015, with settlement scheduled for August 2015.

A month before settlement, the insured contacted First Title and enquired about obtaining title insurance. First Title reviewed the Contract for Sale, which did not contain any suggestion that there were any heritage issues with the property. A title insurance policy was provided to the insured.

Settlement occurred in August. Shortly after settlement, the insured submitted plans to the Council to construct their dream home. Unfortunately, the plans were rejected by Council on the basis of a proposed heritage listing. The insured was in shock and immediately contacted their conveyancer. They then contacted First Title.

What did First Title do?

On assessment of the claim by First Title, it was revealed that the proposed heritage listing was lodged after exchange. As a result, the conveyancer and the insured were not on notice of the proposed heritage listing as the certificates from Council relied upon did not contain details of the newly proposed heritage listing.

submissions - allowing the lawyer time to prepare their detailed submissions opposing the heritage listing. The lawyer devised a lobbying strategy for the Council, Minister and Environment, Resources and Development Committee and to appear before the Local Heritage Advisory Committee.

What was the resolution?

First Title accepted the claim pursuant to its ‘heritage cover’ on the basis that the client was not on notice that the house was heritage listed. First Title paid for all costs associated with successfully overturning the proposed heritage listing, including legal and expert evidence fees.

Total payment exceeded $11,000.

Conclusion The above is a great example of two things. Firstly, that searches and certificates are a snapshot in time only – there are no guarantees that information contained in a search or certificate will never change. Secondly, it is a great example of the benefit of risk management products such as title insurance, not only as a practice risk management tool, but in adding value and protection for clients as well.

First Title engaged an expert heritage architect who prepared a high level review and an expert report in support of an application seeking to overturn the proposed heritage listing.

To find out more information about First Title and how they can assist, please contact 1300 362 178.

First Title also engaged a lawyer to obtain an extension of time from Council to make

Legal Counsel

Danny Wong

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Conference 2016 AICSA’s 2016 Conference is set to be a smash! Day 1 is focused on Innovating your Business followed by the welcoming ceremony - drinks and nibbles on the legendary Adelaide Oval 'Hill' with entertainment to be announced shortly...

Day 2 is all business! Inspiring and cultivating Business Leadership aswell as covering the Conveyancing fundamentals and diversities. Day 2 has it all!

Do not miss out on the 2016 Conference, it’s is one for the pool room.

MC’s & Speakers

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Andrew Costello

Lucy Cornes

Radio Host & SA Media Magnet

Entrepreneur

Cosi is a born and bred South Australian. His charisma and passion for life saw him see out a job in media for the past 14 years.

Lucy is a Homegrown Entrepreneur! She is also passionate about social justice, and is the SA ambassador for Heart Kids, for which she has raised tens of thousands of dollars.

Simon Starr

Charlie Belperio

Performance Coach

Mediation Expert

Simon works with organisations and leaders to establish clear planning and strong leadership as drivers for increased productivity and influential relationships

Charlie is experienced with the law related to the running of small businesses such as contracts, franchises and liquor licensing. He also works in the family law, wills and estates areas.

Richard Wood

Keith Rutherford

Insurance Law Specialist

IT Specialist

Richard is the Managing Principal of specialist insurance law firm Gilchrist Connell.

Richard has been practicing in insurance law for 26 years!

Keith has extensive experience working within, and consulting to, a range of Adelaide and national organisations to improve their use of technology and processes.

Geoffrey Adam

Steve Davis

AICSA’s Guru

Marketing Expert

An inaugural director of PEXA and author of a handbook on SA’s Verification of Identity Policy property lawyer Geoffrey Adam has been actively involved in the development of electronic conveyancing for a decade.

Steve Davis is the Marketing Director at Baker Marketing. Steve is out of the office more often than not, delivering workshops or consulting directly to business owners and boards about all manner of marketing challenges.

South Australian Conveyancer

11/07/2016 9:35:16 AM

SAVE THE DATE – AICSA State Conference

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Tomorrow’s Firm: let’s be creative, let’s diverge and differentiate Venue Adelaide Oval Date Friday 21 – Saturday 22 October 2016

Conference Major Sponsor:

FRIDAY An afternoon of Pre-Conference workshops looking at innovating your business…

Followed by a Welcome Function on the legendary Adelaide Oval ‘Hill’ with home grown hero Andrew ‘Cosi’ Costello on MC duties. Attendees have the chance to win a Rooftop climb over the glorious Adelaide Oval - Proudly brought to you by Vero & Marsh.

SATURDAY Business Leadership – Conveyancing Fundamentals – Conveyancing Diversities.

For Full Program details and to book online vist the website.

W: aicsaconference.com.au Tel: 08 8359 2090 Email: project@aicsa.com.au

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LTO Statistics

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South Australian Conveyancer

11/07/2016 9:35:17 AM

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AICSA Movie Afternoon Open to Family and Friends!

The AICSA Member Services Committee invite Members, Friends and Family to join them for a private screening of the action packed thriller Jason Bourne starring Matt Damon. This event is a fantastic opportunity to strengthen the Conveyancing Profession outside of work!

Venue: Palace Nova, Rundle Street Date: Sunday 7 August Time: 3pm for a 3:30pm start Investment: $24pp – includes ticket, drinks upon arrival (wine & soft) & a popcorn. There will also be door prizes to be won!

For more information Tel: 08 8359 2090 Email: membership@aicsa.com.au

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South Australian Conveyancer

11/07/2016 9:35:17 AM

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Contact us Australian Institute of Conveyancers South Australian Division Incorporated

CONTACT 6th Floor, 68 Grenfell Street Adelaide SA 5000 GPO Box 2402 Adelaide SA 5001 Tel: 08 8359 2090 Fax: 08 8232 8618 DX 58223 L.T.O. Email: assist@aicsa.com.au Web: www.aicsa.com.au

AICSA STAFF

COUNCILLORS

Rebecca Hayes Chief Executive Officer e: ceo@aicsa.com.au

Brad Eckermann Eckermann Group p: 8366 7900 e: brad@eckermanngroup.com

Geoffrey Adam E-Conveyancing & Legislative Projects Officer e: ecl@aicsa.com.au Glenys Jackson Business Development Manager e: business@aicsa.com.au Ashley Ireland Marketing and Communications Coordinator e: communications@aicsa.com.au Karen Holt Membership Specialist e: membership@aicsa.com.au Megan Whitford Professional Development Coordinator e: project@aicsa.com.au Janette Wale Finance & Administration Officer e: assist@aicsa.com.au Sonja Shirren Administration Assistant e: projectassist@aicsa.com.au PRESIDENT Tim O’Halloran O’Halloran Conveyancers p: 8212 4034 e: tim@ohalloran.com.au VICE-PRESIDENT Jennifer Raymond Laity Morrow p: 8429 1412 e: jenny.raymond@laitymorrow.com.au

Ben De Palma Optima Conveyancing p: 8418 5400 e: bdepalma@optimac.com.au Roger Scott Conveyancing Centre p: 0409 347 705 e: roger@conveyancingcentre.com.au Penny Erskine Conveyancing Matters p: 8232 6666 e: perskine@conveyancingmatters.com.au Denise McKay McKay Business Services p: 8333 3525 e: denise@mckaybusiness.com.au Jeff Stevens Stevens Partners p: 8232 8255 e: jeff@stevenspartners.com.au Stella Sinanis p: 8353 1856 e: stella.sinanis@bigpond.com Jess Caire Marshall Conveyancing Group p: 8366 7900 e: jessica@marshallcg.com.au EDITORS Ashley Ireland e: communications@aicsa.com.au Rebecca Hayes e: ceo@aicsa.com.au

Disclaimer The views expressed in this magazine are those of the author and not necessarily those of the publisher or editor. The material contained in this publication is of the nature of general comment only, and neither purports, nor is intended to be advice, legal or otherwise, on any particular matter. No subscriber or other reader should act on the basis of any matter contained in the publication without considering and, if necessary, taking the appropriate professional advice upon their own particular circumstances. The publisher, the authors and the editor expressly disclaim all and any liability to any person, whether a purchaser of this publication or not, in respect of anything set out in this publication and of the consequences of anything done or omitted to be done by any person in reliance, whether whole or partial, upon the whole or any part of the contents of this publication. No correspondence will be entered into in relation to this publication either by the publisher or the editor.

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Did you know almost one in three Australian homes have illegal structures*, such as decks or pergolas.

Take the stress out of property ownership Title insurance provides insurance cover to protect property owners against the hidden, and often complex, legal and title based problems that may not be apparent from traditional searches. These problems can be very costly and could place severe financial hardship on you and your family.

First Title provides insurance cover for a number of different risks, including: 1. To repair or demolish illegal or unapproved structures such as decks, pergolas or carports, where your local council issues an order to do so.

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2. To rectify incorrect boundaries, for example if you discover your fence is on your neighbour’s property and needs to be moved or vice versa.

3. Identity theft and fraud, which could result in your home being transferred to another owner or mortgaged without your knowledge.

4. To remove encroachments on your land (boundary issues), such as a neighbour building a structure which encroaches on your land.

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