A Clause in the Building Law - Assignment Example

Name: Word Count: Unit Title: LS480 Advanced Research, Writing and Advocacy Student Number: Unit Coordinator: Mr Paul Akon Extension Granted Ask UNE reference number: 130731-000995 (I) IN WHAT CIRCUMSTANCES, IF ANY, IS THE BUILDER IN NSW CONSTRUCTING A HOME ON RESIDENTIAL LAND PERMITTED TO LODGE A CAVEAT AGAINST THE LAND IN ORDER TO SECURE PAYMENT FOR THE WORK DONE? I focused on the valid definition of a caveat as stated under the Real Property Act 1900, so as to determine under what circumstances the caveat can be lodged. The New Builders Licensing Legislation for NSW was considered relevant for this question. Steps taken: -I defined a caveat based on the Real Property Act 1900; -Focused the analysis on caveats in home building to explain the decision taken in the circumstance where a party may have the intention to lodge a caveat but owed money by a property owner; -I analyzed the case of Lee and Ors v Ross and Ors (No.2) [2003] NSWSC 507 so as to determine the decision of the court on unfavorable costs awards and awards on damages against persons who lodged without a valid basis. A caveat is one of the statutory orders provided under the Real Property Act 1900. The provision requires a person to lodge a caveat only if he or she has an estate or interest in that particular land that cannot be protected through registration of other dealings such as a transfer or mortgage. If a person lodges a caveat without a reasonable cause, then he or she would be held liable for compensation payments to another person that may suffer any pecuniary loss caused1. A) Caveats In Home Building In the circumstance where a party may have the intention to lodge a caveat but owed money by a property owner, such a person is permitted to seek the security that a caveat can offer as a way of preventing the owner of the home from handling the property in a manner that dissipate the asset and could in future hinder the party’s ability to get paid. From this legal provision, it can be noted that builders use caveats to protect themselves by acquiring contractual license related to land ownership and building contracts. In case of a non-payment by the land owner, the builder can easily object all proposed dealings and litigate against the owner2. The New South Wales (NSW) case of Lee and Ors v Ross and Ors (No.2) [2003] NSWSC 507 is a relevant example of how unfavorable costs awards and awards on damages against persons who lodged without a valid basis. In this case, the test upheld that the caveator was required to have genuine and reasonable belief that he or she posses a caveatable interest. This means that the concerned parties were not required to lodge caveats without proper basis. Section 74P of the NSW Real Property Act, explicitly state that compensation must be paid by a person who did not have a reasonable cause but lodges the caveat that causes another party to suffer the financial loss3. It can be concluded that caveats are basic tools and offer the critical protection particularly to unregistered interest holders who could otherwise be punished under Torrens System. (II) WHAT LIMITS, IF ANY, ARE THERE ON THE AWARD OF COSTS IN THE NSW LOCAL COURT WHEN SITTING IN ITS SMALL CLAIMS DIVISION? The analysis was focused on the New South Wales Bar Association document, in particular the Local Court Practice under the Local Court Act 2007 NSW (LCA). Steps taken: -I explained what small claims are; -Selected the relevant section of the Local Courts Act 2007; -Subsection 70(1) of the Local Courts Act 2007 provided proceedings of how the small Claims Division proceedings are managed; -I discussed how to recover debts in the NSW Local Courts. All State and Territory courts within Australia provide a small claims division as their local court that determine a simple procedure for debt recovery. In a small Claims Division proceedings are managed with less formality and technicality. However, careful consideration is paid on the matter at hand as required under s 70(1) of the Local Courts Act 20074. The legal definition of a claim here relates to the labor, money, goods purchased or delivered and to a certain amount ranging between $2,000 and $10,000 based on the State or Territory from which a particular legal action is practiced5. This indicates that if a debt exceeds the limit for a given small claims division, then a party concerned would be allowed to bring a case against the debtor but after seeking legal advice. Although there are general limitations on awards of costs within the Small Claims Division as stated in s.4 CPA, r 1.6 and Sch 1UCPR, certain costs can be recovered. For instance, a party is permitted to recover fixed costs stated under s 112 of the Legal Profession Regulation 20056. A) How To Recover Debts In The NSW Local Courts The NSW Court in its General Division provides allowance of hearing claims that ranges between $10,000 and $100,000. However, in certain circumstances where a given procedure has been followed and no objection is made, the Court extends the limit of its claim hearing to $120,000. It is important to point out that a person’s whose claim ranges between $100,000 and $120,000 must seek legal advice from the appropriate Court as well as on the procedures that need to be followed7. (III) BRIEFLY EXPLAIN WHETHER EITHER OF THE FOLLOWING HAS EFFECT AS A LAW OF AUSTRALIA. I researched for relevant information on the International Covenant on Civil and Political Rights (ICCPR) and the Convention for the Unification of Certain Rules for International Carriage by Air to determine the legal concerns rose in the two conventions. Steps taken: -Reviewed the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and Warsaw Convention 1929 and the 1999 Montreal Convention; -The objective was to determine when the International Covenant on Civil and Political Rights (ICCPR) and The Convention for the Unification of Certain Rules for International Carriage by Air came into force. -The information obtained helped to explain whether if or not the two have effect as a law of Australia. (A) The International Covenant On Civil And Political Rights The International Covenant on Civil and Political Rights (ICCPR) is the main international legal tool that protects civil and political rights. In 1972, Australia became a member to the ICCPR but ratification was made in 1980. Although the ICCPR is not officially incorporated into Australian domestic law, it is considered as an attachment program to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Through this program, the Australian Human Rights Commission is empowered to investigate all the claimed violation of rights considered under the ICCPR8. However, the commission’s findings seem not binding. In May 2009, the Human Rights Committee expressed a number of concerns. The committee issued its concluding remarks on Australia as follows; that the indigenous people were not sufficiently consulted during decision-making processes, an issue that could have been solved if a national indigenous representative body had been formed9. Based on the Human Rights Committee’s concluding observations, it can be concluded that the International Covenant on Civil and Political Rights (ICCPR) has not made great improvements to promote the civil and political rights in Australia. (B) The Convention For The Unification Of Certain Rules For International Carriage By Air The Convention for the Unification of Certain Rules for International Carriage by Air was signed in May 28 1999 under the 1999 Montreal Convention. The convention applies to the entire international carriage of persons, including luggage carried by aircraft for reward. Article 17 of the Civil Aviation (Carrier’s Liability) Act 1959 and the Damage by Aircraft Act 1999 and under the Montreal Convention provides that limited carrier’s liability is given to only death or bodily injury10. From the Montreal Convention information on the nature and timing of the suggested Treaty Action, it can be noted that Australia agrees to the Convention for the Unification of Certain Rules for International Carriage by Air, signed at Montreal on 28 May 1999 (Montreal Convention)11. Article 53 of the Convention also indicates that the Montreal Convention planned to enter into force for Australia after six days after the date of deposit of mechanism of agreement with the international Civil Aviation Organization (ICAO)12. Therefore, it is relevant to conclude that the (CUCRICA) has effect as a law of Australia because Australia agreed to take the proposed Treaty Action of the Warsaw System at the Montreal Convention. As a result, Australia became a member of the Uniform International Treaty Framework, particularly on liability rules that govern the commercial international aviation travel, including documentation of the tickets and air way bills. (IV) THE FEDERAL AGRICULTURE MINISTER HAS BEEN LOBBIED TO SUSPEND LIVE CATTLE EXPORTS TO EGYPT, A SUSPENSION THAT WAS LAST IMPLEMENTED AGAINST INDONESIA IN 2011. I reviewed the report on the carriage of livestock on seas voyage to ports outside Australia to find the relevant law on livestock export. Australian Government ComLaw also provided relevant information on Export of Live-stock to the Republic of Indonesia Repeal) Order 2012, in particular Subsection 17 (1). Steps taken: -The Australian Meat and Livestock Industry Act 1997, was considered relevant for this question; -I explained when the statute came into force and analyzed the conditions that were imposed on the resumption of trade. (A) Under What Law(s) Did The Federal Agriculture Minister Suspend The Trade In Live Cattle To The Republic Of Indonesia In June 2011? It was Under the Australian Meat and Live-stock Industry Act 1997, that the Federal Agriculture Minister was ordered to suspend the trade in live cattle to Indonesian Republic in June 2011. The report on the carriage of livestock on all seas voyage to ports outside Australia were supposed to be tabled in respective Parliament in a period of every 6 months13. It can be argued that supposing the Australian government signed off on the exports to Indonesia then it is not quite clear whether if or not the government of Indonesia would contract for the imports from Australia14. (B) What Conditions Were Imposed On The Resumption Of Trade? On 7 July 2011, the Livestock Trading to Indonesia resumed under The Australian Meat and Livestock Industry (AMLI) under Export of Livestock to the Republic of Indonesia Repeal Order 2012 repealed the Australian Meat and Livestock to Indonesian Republic under Order 2011(No.2) and subsection 17(1) of the Act. The 2011 Order allowed the resumption of trade in circumstances where the holders of livestock license could be able to give adequate assurance that the animal welfare feedbacks would be addressed during the transport, slaughter and handling associated operations. This was to enable animal welfare issues associated with the export of livestock to Indonesian Republic to be regulated under the Act of Export Control of Animals15. (V) WHAT PROVISION AUTHORIZES THE COMMONWEALTH TO APPROPRIATE MONEY FOR THE MAKING OF AN AUSTUDY PAYMENT? In order to respond to this question, I reviewed the Commonwealth Consolidated Acts, in particular the Social Security Legislation Amendment-Youth Allowance Consequential and Related Measures Act 1998-Schedule 11. Steps involved: -Selected specific sections and subsections of the Act to understand how the AUSTUDY came into force; -Subsection 3(1) was selected because it provided a valid definition of AUSTUDY scheme the Act; -Subsection (1AA), The Consolidated Revenue Fund of Part 2 of Schedule 11 to the Social Security Legislation (Youth Allowance Consequential and Related Measures) Act 1998 was discussed in detail. -Subsection (3A), (3B) and (3C) of the Social Security Act 1991 was also considered relevant for this question. -Section 131 of the Student Assistance Act 1973 (SA) was used to explain the transitional provisions for AUSTUDY payment. The AUSTUDY scheme came into force before 1st July 1998 under the Social Security Legislation Amendment of the Youth Allowance Consequential and Associated Measures Act 1998-Schedule 11, subsection (1AA) of the Act allows money to be appropriated for social Aids such as the payment of benefits provided under the AUSTUDY Scheme in the period after 1st July 1998. This came into effect after reviewing the transitional provision in that particular Part of the Schedule16. Section 131 on transitional provisions AUSTUDY payment for the 3rd July 1998 financial-Allowance ending period provides that: if the payment of a given benefit under the AUSTUDY scheme and the advance payment was offered prior to the commencement day to student and that particular payment was supposed to be lawfully made under Student Assistance Act 1973 but not amended by the schedule. Such a payment was considered to be lawfully made during the period when SA Act was in force immediately before the starting day had passed while in force. A person in receipt of any benefit under the AUSTUDY scheme was considered to have been lawfully made with student’s assistance only if the payment was made between the commencing day- 1st July 1998 and ending period-3rd July 199817. (VI) WHAT IS THE CURRENT STATUS OF THE NORTHERN TERRITORY ACT AND PRECISELY HOW DID THAT STATUS EVENTUATE? I conducted a brief research on the Rights of the Terminally III Bill 1995 (NT) to identify the date it was incorporated into the Northern Territory Legislative Assembly. The Australian Law in an International Context in Part 2: Active Voluntary Euthanasia provided relevant information on the relationship between the Rights of the Terminally III Bill 1995 (NT) and the Northern Territory Act. The steps taken: - I discussed the background of the Terminally III Bill 1995 (NT) and how it was introduced into the Northern Territory Legislative Assembly; -Explained why it was criticized and eventuated. On 22nd February 1995, the Rights of the Terminally III Bill 1995 (NT) was incorporated into the Northern Territory Legislative Assembly but as a Private Member’s Bill. As a result, the Northern Territory emerged as the first jurisdiction across the world to pass a legislation that permitted active voluntary euthanasia. Following the decision made on 23 November 2011 on the Bill entitled developing stronger futures within the Northern Territory Bill 2011 and incorporated in the House of Representatives, it can be argued that the Northern Territory Act focuses on building stronger futures, specifically for Aboriginal people living in the Northern Territory18. The passing of the this legislation received extensive criticism from the health care professional, academic, the media, religious groups as well as members from the general public. Therefore, the opponents of this new legislation instantaneously obligated for its repeal by the Northern Territory Legislative Assembly. Suggestions were made which required the Governor-General of Australia to completely disallow, and thus he was ordered to repeal the legislation by applying his powers based on the Northern Territory (Self-Government) Act 1978 (Cth)19. (VII) WHAT IS THE LEGAL STATUS OF? (A) Teori Tau v Commonwealth (1969) 119 CLR 564 I researched the relevant information about the two cases; Teori Tau v The Commonwealth (1969) 119 CLR 564 and Giannarelli v Wraith (1988) 165 CLR 543. LexisNexis site helped me to locate the first case, while the Queensland Parliamentary Library’s information on Lawyers’ Immunity provided adequate information to analyze the second case. Steps taken: -To identify the subject matter in each case; -determine the statutes applied in the case and conclude on the legal status of the two cases. In the case of Teori Tau v The Commonwealth (1969) 119 CLR 564, acquisition of property is the subject matter. It was held by the High Court that the Constitution s 51 of the acquisition of the property in regard to just terms guarantee was not effective to restrict s 122 of the Constitution under the territories power. The acquisition of property considered to be on just terms guarantee was a complete and plenary power expected to give the Commonwealth the mandate to legislate for a territory on a given subject matter. Thus, there was no constraint by any constitutional restriction and without taking into consideration whether the just terms on acquisition of the property by the Commonwealth were relevant for the federation where the territories were excluded20. Based on the understanding of this case, it can be argued that Teori Tau may not be overruled by the majority of the new conservative High Court. It seems the Commonwealth is not allowed under any constitutional obligation to compensate for the just terms in situations where it may acquire a property within the Commonwealth territory. (B) Giannarelli v Wraith (1988) 165 CLR 543 The case of Giannarelli v Wraith (1988) 165 CLR 543 concerns a legal discussion on the subject “getting rid of the Advocate’s Immunity from the Suit.” From the Queensland Parliamentary Library’s information on Lawyers’ Immunity, it can be noted that for long it has been accepted under the Australian common law that advocates are considered immune from being sued on the act of negligence by their own clients concerning their conduct of a given case. This includes even work done outside the courtroom but closely related to the conduct of a case presented in Court. In the case of Giannarelli v Wraith, it was held by Mason CJ that the immunity of advocates should be extended outside the work that can lead to any decision affecting the conduct of a given case presented in court. Mason emphasized that the immunity must not go beyond, and thus its existence should only be accepted in circumstances where a specific is closely related to the conduct heard in court. This was substantially agreed upon by a majority of the justices (p.5)21. (VIII) HOW THE CONSTITUTIONAL HURDLES OF A COOPERATIVE EFFORT BY THE STATE AND FEDERAL GOVERNMENTS WERE OVERCOME? In responding to the sections of this question, I researched for relevant information on specific institutions and Federal reports. The objective was to evaluate how constitutional hurdles related to uniform national legislation formed through a cooperative effort by the state and federal governments were addressed. Steps taken: -Selected relevant institutions that promote consumer protection through federal and state laws; - Analyzed policies that promote and control security for personal property; -Searched for reports with relevant information on Transportation and Federal Highway. Therefore, The Federal Deposit Insurance Cooperation (FDIC), the Civil Asset Forfeiture policy and the report on U.S. Department of Transportation and Federal Highway Administration provided relevant information that helped me to answer this question. (A) Consumer protection The Federal Deposit Insurance Cooperation (FDIC) provides the Federal laws and state laws that clearly states how the constitutional hurdles related to consumer protection were overcome. For example, FDIC educates and protects consumers, revitalizes communities as well as promotes the need to compliance with the Community Re-investment Act and the fair lending laws. Examples of the federal laws include Electronic Fund Transfer Act, the Federal Trade Commission Act, Real Estate Settlement Act, while state laws provide rights and solutions in consumer financial transactions22. Therefore, it can be noted that the Consumers’ financial rights are now protected by the federal and state laws, and regulations that cover a number of services provided through financial institutions. (B) Security For Personal Property The constitutional hurdles in the area of security for personal property were overcome by introducing the Civil Asset Forfeiture policy. In the Institute for Justice on policing for profit report, Holcom and Kovandzic observed that in the legal forfeiture actions, the forfeited property is one that has been taken by the government without considering compensating the owner. The federal and various state laws permit both civil and criminal asset forfeitures where in the former action is taken against the property or assets and not an individual, while in the latter action is made against a person following the conviction for the alleged criminal offense. Therefore, asset forfeiture is an important tool for fighting against financially motivated crimes such as gambling, organized crimes, drug trafficking and sales. In order to overcome the constitutional hurdles associated with this law, a standard of proof which shows how much evidence the government should present at trial as well as how compelling the evidence must be so as to successfully claim a property the asset forfeiture law must be determined23. (C) Road Rules The report on U.S. Department of Transportation and Federal Highway Administration in Chapter 2 of the Federal, State, Local and Transportation Roles in Evacuations shows that state and local transportation agencies play a significant role in the area of evacuation planning and operations. Emergence Support Function is a major component of the command structure under the Federal level response for transportation. The Intelligent Transportation Systems (ITS) is a Joint Program Office (JPO) of the DOT which supports the development of advanced technologies to enhance the safety and efficiency of transportation systems. It is quite clear that efforts are being made through revised initiatives to provide information to travelers and decision-makers involved in evacuations activities24. (IX) A CASE CHRONOLOGY OF STUBLEY V WESTERN AUSTRALIA Through online research of the High Court Bulletin Produced by the High Court of Australia Library [2011] HCAB 02 (18 March 2011), I located the case for Stubley v State of Western Australia p29/2010 [2010] HCATrans 269 to establish the background facts on the allegations made against Dr. Stubley. This helped to write a chronology of how the court ruled the case. Steps taken: -To research and locate documents with relevant information on the date and background facts of the case; -The main objective was to follow the relevant rules which authorized the initiation of each appeal proceeding; -This was to develop a brief annotation of each decision or hearing in the journey so as write a chronology of the case. The case of Stubley v State of Western Australia p29/2010 [2010] HCATrans 269, concerns Dr Alan John Stubley, a former psychiatrist who was charged with offences for involving in sexual activities with the two former patients25. On 20th October 2010, following the conclusion of the hearing of oral discussion on the appeal, the High Court mandated that the appeal of Stubley against his conviction for the different sexual offences committed be allowed. The High Court, therefore, decided to set aside his convictions to enable a new trial to be held. Later, the High Court made a publication of its reasons for obliging such orders as follows that: Dr. Stubley, a Psychiatrist by profession had been charged under the Criminal Code (WA) with about 14 offences including, rape, unlawful and indecent assault, sexual activity with two women who were patients and the alleged accident cases with JG and CL between 1975 and 1978 while having treatment session with Stubley. At trial Stubley accepted that he involved in sexual intimacy with two women, while he maintained that JG and CL consented on all the occasions. It was after trial in the Western Australian Supreme Court that Stubley was held guilty of 10 offences. However, the appeal that was made to the Court of Appeal against Stubley’s conviction did not succeed26. The issue regarding the appeal to the High Court concerned whether the prosecution was actually entitled to decided on the evidence of the three women who each claimed to have engaged in sexual activity with Stubley yet they were his real patients. Although the allegations were not considered as being the subject matter of the charges against the Stubley, but successful submission of the real evidence was provided by the prosecution at trial. The evidence was accepted as admissible against him because it was considered to be propensity evidence provided under s 31A of the Evidence Act 1906 (WA)27. Finally, it was held by a majority of the High Court that the significant probative value of the evidence provided on the three other women could not be traced as relationship evidence. As a result, such evidence was not supposed to be admitted during the trial. Therefore, the only issue that could be heard at trial was to determine whether the sexual activity committed between Stubley and JG and CL was truly consensual as well as if the evidence provided on the other three women did not have probative value in connection to whether JG or CL actually consented to the alleged sexual activity. (X) Bibliography A Articles/Books/Reports Australian Government ComLaw. Australian Meat and Live-stock Industry (Export of Live-stock to the Republic of Indonesia Repeal) Order 2012. Australian Law in an International Context- Part 2: Active Voluntary Euthanasia. The background to the Northern Territory legislation. Research Paper 4 1996-97. Arts Law Information Sheet. Debt recovery in the Local Court. Debt recovery-small claims procedure (NSW). Available at: Convention for the Unification of Certain Rules Relating to International Carriage by Air Signed at Warsaw on 12 October 1929 (Warsaw Convention). Convention for the Unification of Certain Rules for International Carriage by Air (CUCRRICA), signed May 28 1999 (the 1999 Montreal Convention). Commonwealth Consolidated Acts. The Social Security Legislation Amendment-(the Youth Allowance Consequential and Related Measures) Act 1998-Schedule 11. Federal Deposit Insurance Cooperation (FDIC).Consumer Protection and Consumer Financial Rights. Available at: Live Animal Export Trade. Australian Government Department of Agriculture, Fisheries and Forestry. Available at: Tony Cahill & Anthony Cahill & Co. New Builders Licensing Legislation for NSW. Released June 1997. The New South Wales Bar Association. Local Court Practice. Toni Bartush-Peek. Revised 21 March 2008. The High Court of Australia Library. High Court Bulletin-[2011] HCAB 02 (18 March 2011). The Queensland Parliamentary Library. Lawyers’ Immunity. Research Brief No 2005/13. The U.S. Department of Transportation, Federal Highway Administration. Chapter 2: Federal, State, Local, and Transportation Roles in Evacuations. Available at: Williams Holcom & Kovandzic. Institute for Justice. Asset Forfeiture Report: Part I: Policing for Profit. B Legislation Real Property Act 1900 Civil Aviation (Carrier’s Liability) Act 1959 and the Damage by Aircraft Act 1999 Human Rights and Equal Opportunity Commission Act 1986 (Cth) Australian Meat and Live-stock Industry Act 1997 (the Act) Northern Territory (Self-Government) Act 1978 (Cth) Evidence Act 1906 (WA) Local Court Act 2007 NSW (LCA). Legal Profession Regulation 2005 C Cases Giannarelli v Wraith (1988) 165 CLR 543 ('Giannarelli') Stubley v Western Australia [2011] HCA 7 Lee and Ors v Ross and Ors (No.2) [2003] NSWSC 507 Teori Tau v The Commonwealth (1969) 119 CLR 564 Read More