Lawyers Estate Planning Group

Israel has always possessed the land, because the Church is Israel.

Property Development Structures – Asset Protection
Legislation/Other Material: Designers and Building Practitioners Act 2020, Designers and Building Practitioners Regulation 2021, Design and Building Practitioners Amendment Regulation 2022, Duties Act 1997, Income Tax Assessment Act 1936, Income Tax Assessment Act 1997
Designers and Building Practitioners Act 2020
The Designers and Building Practitioners Act 2020 (the Act) and the Designers and Practitioners Regulation 2021 (the Regulations) was enacted on 1 July 2021.
Retrospective effect
The Design and Building Practitioners Act 2020 (DBP Act) establishes a statutory duty of care for economic loss caused by defects in or related to a building. This duty applies to persons carrying out construction work and is owed to the owner of the land where the work occurs. Importantly, the duty has retrospective application, covering economic losses that became apparent within 10 years immediately before the DBP Act commenced (subject to relevant limitation periods). It remains in effect even if an action for breach of common law duty of care was initiated before the statutory duty came into force
Key components
Before the enactment of the Act, the prevailing common law stance, as established by several High Court cases, held that builders were not obligated to exercise a duty of care to prevent economic loss for subsequent property owners. However, under Part 4 of the Act, specific parties are now bound by a duty to current and future property owners. This duty requires them to exercise reasonable care to prevent economic loss arising from defects related to a building resulting from construction work. Here are some key features:
Parties Covered: The duty of care extends to individuals involved in construction work, including builders, designers, manufacturers, suppliers of building products, and supervisors, coordinators, and project managers.
Beneficiaries: The duty applies to both current and future property owners, and it is not limited to residential buildings.
Definition of Construction Work: While the Act currently defines construction work to include residential building work under the Home Building Act 1989, it allows for additional categories of work to be specified by regulation (although this has not yet occurred).
Strata Schemes and Community Land: If the land is subject to a strata scheme (as defined by the Strata Schemes Management Act 2015), the owner includes both the lot owner and the owner's corporation. Similarly, for land subject to a community, precinct, or neighbourhood scheme (as per the Community Land Management Act 1989), the owner encompasses the lot proprietor and the association for the scheme.
Leasehold Strata Schemes: The duty also extends to leasehold strata schemes, even though they currently lack statutory warranty rights.

For informal testamentary documents, context is everything.

In the estate of Dora Marleny Rodriguez Navarro [2024] ACTSC 211 was an application for a declaration pursuant to s 11A of the Wills Act 1968 (ACT) that the late Mrs Navarro intended a video, found on her phone after her death, to be her Will, and an order under s 9 of the Administration and Probate Act 1929(ACT) and r 3015 of the Court Procedure Rules 2006 (ACT) that Letters of Administration with the Will annexed be granted to her husband Chris the major beneficiary.

The video was taken by Mrs Navarro when she was in hospital awaiting surgery.

The transcript was as follows:

“Hello. This is Dora Marleny Rodriguez Navarro. I am 31 years old. I’m about to do an operation in an hour, however just so everything is clear – I’m alone here waiting for the doctor – I would like to give all my money to Chris so my daughters can have good – a good education. And Christopher will – I know he will manage great my money and – and my properties. Yeah, so everything to Chris. And then – yeah, and a portion – little – and a small portion for my parents, as they helped me so much.”

The circumstances of the making of the Will, in the absence of any other testamentary instrument, provided convincing support for the application, which succeeded.

The construction of what was intended by “a small portion for my parents” was not addressed.

A transcript of the Will was to be annexed to the grant of Letters of Administration. The basis of the grant was to be recorded by recital on the grant of representation: “The will is in the form of a video recording made on 26 December 2023. A transcript of the recording is annexed”.

On the need for a transcript see: Re Estate of Wai Fun CHAN, Deceased [2015] NSWSC 1107 at [25] - [27].

The Supreme Court of NSW ‼️🇦🇺👀 is set to implement a new regime for the management of Family Provision and Probate matters starting next week.

Under the revised system, the previously judge-managed lists will now be overseen by the newly appointed Registrar in Probate. Probate matters will be listed on Tuesdays, while Family Provision matters will be on Thursdays.

Further details will no doubt follow on the issuing of the new Practice Note SC Eq 7. ‼️🇦🇺👀