JUST CHAT PODCAST INTERVIEW WITH JAMES HORSBURGH
January 20, 2021
On 7 October 2004, James Horsburgh’s world turned upside down. A promising law student and rugby player at the time, he suffered an accident that left him quadriplegic. Now James, or Teddy to his close friends, is a successful lawyer, an Accredited Specialist in family law, a husband, and father to three beautiful girls.
The Law Society 'Just Chat' Podcast sat down with him to talk about the fateful day that changed his life forever, the hurdles he had to overcome, and what still needs to be done in the court system to support people with disability.
Listen to his story here.
Abolition of Paper Certificates of Title in NSW. As of 11 October 2021, the land titling and conveyancing systems in New South Wales experienced probably the biggest changes in their combined history. The Real Property Amendment (Certificates of Title) Act 2021 made provision for the cancellation of all paper Certificates of Title in New South Wales and mandated the electronic lodgement of all land dealings in the State. Traditionally, the owners of real estate held a physical Certificate of Title that was required to be produced to New South Wales Land Registry Services (LRS) to enable registration of any dealing. For example, if you granted a mortgage to a bank over your property you would have to hand to the bank your original Certificate of Title to enable it to register the mortgage on your property. In a conveyancing transaction, Certificates of Title would be handed over at settlement to allow the purchaser to register the transfer of the property into their name. Electronic conveyancing has been progressively introduced into New South Wales over the past few years, however Certificates of Title were still required in many instances. Since the cancellation of all Certificates of Title, your title will become a virtual record in an electronic register and your paper certificate will lose any legal validity. An obvious concern that you may have is that of identity theft and cyber fraud. Theoretically, a fraudster could present himself/herself to a solicitor or conveyancer with false identification and deal with your property without your knowledge. Another example of potential risk is for people with identical names, as there will be no distinguishing information recorded on the register to identify the true owner of the land. In order to allay concerns, the LRS has created a new dealing called a "Registered Proprietor's Caveat" that you can register against your property. In the event of anyone attempting to register a dealing (i.e. transfer, lease, mortgage) against your property you, as the holder of the caveat, will be provided with notice by the LRS prior to the dealing being registered. You will then have the opportunity to object to the registration of the document. It is recommended for any owner of unencumbered land to register a caveat to more securely protect their interest in the land. Please contact the team at McIntosh McPhillamy & Co should you have any questions with regard to the changes and to discuss the process of registering a caveat.
New COVID-19 commercial and retail leasing laws commenced on 15 July 2021. The Retail and Commercial Lease (COVID-19) Regulation 2021 and the Residential Tendencies (COVID-19 Pandemic Emergency Response) Amendment Regulation 2021 commenced on 15 July 2021. This legislation restrains landlords of commercial, retail and residential leases from taking action against an 'impacted lessee' or an 'impacted household' for a 'prescribed breach' that has occurred between 13 July 2021 and 13 January 2022 (the 'prescribed period'). At this stage, the legislation will cease to apply on 13 January 2022 but may be extended due to the ongoing impact of COVID-19. The laws apply to leases entered into before 26 June 2021. What is a prescribed breach? The non-payment of rent or outgoings, or for retail and commercial leases not trading during the prescribed period. What is an impacted lessee? An 'impacted lessee' is a tenant of a commercial or retail lease that qualifies for: A Micro-business COVID-19 Support grant; or A COVID-19 NSW Business Grant; or A Job Saver grant. Where a lessee qualifies for one of the above grants, that lessee must also demonstrate that their turnover in the 2020-2021 financial year was less than $50 million, and: Where the tenant is a franchisee, the relevant turnover is that of the business conducted at the premises or land concerned; Where the tenant is company that is a member of a corporate group, the relevant turnover is the turnover of that group; and In other cases, the turnover of the business conducted by the tenant. What is an impacted household? An impacted household includes all households where one or more rent paying member of the household: Has lost their job or income as a result of the COVID-19 pandemic; or Has had their working hours or income reduced as a result of the COVID-19 pandemic; or Has had to stop working or reduce their work hours because they are ill with COVID-19, another member of the household has contracted COVID-19 or they are caring for a family member ill with COVID-19. The impacted household member must show that as a result of one of these reasons, the weekly household income has been reduced by at least 25% based off the average household income for the previous 4 weeks. What can landlords do? Before a Landlord can take any form of action for a 'prescribed breach' by an 'impacted lessee' or 'impacted household' during the 'prescribed period', the parties are required to undertake mediation. It is a tenant's responsibility to provide landlords with information showing that they are an 'impacted lessee' or 'impacted household'. Do these laws apply if I haven't been affected by COVID-19? No. These regulations do not offer additional protection to tenants who have not been impacted by COVID-19. That means landlords are free to take the usual action for breaches of leases where the lessee has not been affected by COVID-19. Summary Both regulations offer temporary protection to lessees who have been struggling or unable to pay rent or trade due to the COVID-19 pandemic and resulting lockdowns. They restrain a lessor from evicting a tenant, terminating a lease or recovering the premises without having first made a genuine attempt to resolve the issue with the lessee in mediation. The regulations aim to ensure tenants have the opportunity to discuss any financial hardship they may be experiencing because of the COVID-19 pandemic with the landlord and provide an avenue for both parties to reach an understanding on how the tenancy will operate until 13 January 2022.
Anyone injured in a motor vehicle accident needs to be aware of the changes to the CTP scheme in New South Wales which applies to all motor vehicle accident personal injury claims on and from 1 December 2017. Some key takeaway points include: Everyone injured in a motor vehicle accident is entitled to statutory benefits for reasonable and necessary treatment and rehabilitation expenses and for weekly benefits by way of income support including the person at fault in the accident unless the injured person has committed a serious driving offence. A claim form must be lodged with the CTP insurer within 3 months of the accident (under the former scheme you had 6 months). To claim weekly benefits by way of income support from the day following the accident the claim form must be lodged with the CTP insurer within 28 days of the accident otherwise those benefits are only payable from the date the insurer received the claim form. Certificates of Fitness must be issued by a treating doctor and provided to the CTP insurer on a regular basis in order to obtain continuing weekly benefits. If you have suffered a "minor" injury you have no entitlement to any statutory benefits beyond 26 weeks from the date of the accident. A "minor" injury is an injury to soft tissue such as muscles, tendons, ligaments, menisci, cartilage, blood vessels and other soft tissues. Statistically about 90% of motor vehicle accident victims suffer only minor injuries and their entitlement to any benefits under the CTP scheme is limited to statutory benefits for up to 26 weeks only. Many people who have suffered soft tissue injuries still suffer from the ongoing symptoms and disabilities for well beyond 26 weeks and often for many years. The scheme provides no assistance to those accident victims. Anyone suffering a "minor" injury also has no entitlement to any damages for pain and suffering or loss of past or future earnings. Their only entitlement is to statutory benefits for up to 26 weeks. Injuries involving any kind of fracture or complete or partial tears to tendon, ligaments, menisci and cartilage are not "minor" injuries and statutory benefits are payable beyond 26 weeks and theoretically for life. Oddly enough, a soft tissue injury combined with a very minor fracture to a little finger which quickly heals without complication is not a "minor" injury and statutory benefits beyond 26 weeks and theoretically for life are payable. An injury to a vertebral disc is considered a "minor" injury, with some limited exceptions involving disc injuries with certain types of nerve root impingement. Some psychiatric injuries are classified as "minor" only. Common law damages are now limited to, firstly, non-economic loss (pain and suffering but only if the injured person suffers a degree of permanent whole person impairment greater than 10% and, secondly, to past and future economic loss or loss of earning capacity. No other damages can be claimed. There are caps or limits on the amount of damages which can be claimed. Statistically, only about 10% of accident victims suffer a permanent impairment greater than 10%. A damages claim must be made within 3 years of the accident but generally one can only be made after 20 months following the accident. Disputes with an insurer about the payment of statutory benefits are now determined by a new body which commenced on 1 March 2021 called the Personal Injuries Commission. Very few claims are now handled by the courts. For most disputes about statutory benefits, lawyers are prohibited from charging for their services in assisting a client in the dispute. Where legal fees are payable the amount is capped at a maximum and the client's legal costs are usually payable by the insurer. Insurer's have greater power to decide what treatment and rehabilitation is offered to an injured person and insurer's often override the recommendations of treating doctors. Disputes about treatment and care must be referred to the Commission. There is a complex procedure involved in making a claim including a thorough understanding of the legislation, the regulations, the guidelines and the Commission's practice notes. Changes to the way claims are handled occur frequently. There are forms and procedures for every aspect of making a claim. The object of the current scheme is to keep greenslip premiums relatively cheap but at the cost of reducing benefits to most accident victims. The law in this area is complex and despite the limitation on legal fees it is important that accident victims obtain proper and thorough legal advice about making a claim, disputing an insurer's decision and making a damages claim where that is possible. For any questions concerning a personal injury claim arising out of a motor vehicle accident please contact Michael Schwab , our accredited specialist in Personal Injury Law.
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