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By Hayley Hitch, a Senior Associate of Matthews Folbigg Lawyers in our Insolvency, Restructuring and Debt Recovery Group.

There has been a minimal increase in the costs associated with filing documents in the State’s Courts over the past 3 years whilst the country was dealing with the financial ramifications of COVID-19. However, a rise has been imminent.

The NSW Attorney-General has now considered the costs associated with commencing and running proceedings within the Courts of New South Wales and upon evaluating such costs has enacted the Civil Procedure Amendment (Fees) Regulation 2022 (NSW).

As of 1 April 2022, a number of court fees for the Local, District and Supreme Court of New South Wales have increased substantially. For example:

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Fee Prior to 1 April 2022 From 1 April 2022
Statement of Claim in the General Division of the Local Court of NSW by an individual $ 259 $ 300
Statement of Claim in the General Division of the Local Court of NSW by a company
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Divorce lawyer advice after separation and the operation of the ‘clean break’ Principle

Engaging a divorce lawyer when separating from your partner can be daunting. It is important that you understand your legal rights relating to your financial position both in your relationship and moving forward.

The Principle

It is in the Court’s view that it should seek “as far as practicable (to) make such orders as will finally determine the financial relationships between the parties…and to avoid further proceedings between them.” This is referred to as the ‘clean break’ principle under s 81 of the Family Law Act or s 90ST for de facto parties. Specifically, a divorce lawyer will tell you that the general approach of the Court is to avoid issuing long term spousal maintenance orders. In other words, spousal maintenance is not and should not be ordered with the intent that it be payable for life. Instead, it is designed as a temporary order to allow parties to restructure their finances and or living expenses. For example, a spousal maintenance order can be made to cover a period where the party is completing coursework or training which enables him or her to re-enter the workforce.
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Environmental Planning and Assessment Regulation 2021

The Environmental Planning and Assessment Regulation 2021 (Regulation 2021) came into force on 1 March 2022 and replaced the Environmental Planning and Assessment Regulation 2000 (Regulation 2000). Regulation 2021 largely continues to reflect its predecessor, but has been designed to improve the planning system by removing unnecessarily complex provisions and simplifying the system for all users.

A number of the key changes are outlined below.

Development Applications

Regulation 2021 requires that all development applications must be made in the approved form, which is located on the NSW Planning Portal, and must include all the information and documents specified in the approved form or required by the Environmental Planning and Assessment Act 1979 (EP&A Act) and the Regulation. The development application (DA) may be rejected by the consent authority if it does not contain this information.

Applications to amend a DA which is still under assessment by the consent authority or to modify an approved DA are required to provide details of the proposed changes, including the name, number and date of any plans that have changed.
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New State Environmental Planning Policy for Housing Imminent

In December 2020, the New South Wales government announced its intention to introduce major reforms to the planning policies for housing.

The reforms were to be introduced in multiple phases. Phases 1 and 2 had been rolled out in late 2020 and early 2021. These reforms include amendments to the existing State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) and introduction of the State Environmental Planning Policy Amendment (Build-to-rent Housing) 2021 (BTRH SEPP). The BTRH SEPP, notably, introduced purpose-built rental apartment buildings as a new type of land use, and permits these build-to-rent apartments to be developed on any zone where multi dwelling house, residential flat buildings, and shop top housing are permitted.

Phase 3 of the housing reform was introduced on 26 November 2021 with the enactment of the State Environmental Planning Policy for housing (Housing SEPP), which replaces the existing ARH SEPP.

Notable differences between the Housing SEPP and the ARH SEPP include the treatment of boarding house developments. Under the existing ARH SEPP, boarding house developments are permitted on land zoned R2 Low Density Residential, irrespective of whether the relevant Local Environmental Plans (LEP) permits boarding houses to be built in the Low Density Residential zone.
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Contracts Involving Public Authorities

Summary

Case summary re: 123 259 932 Pty Ltd (123) v Cessnock City Council (Council(No 2) [2021] NSWSC 1329 (Cessnock case).

The decision of the Cessnock case demonstrates that public authorities, such as Councils should take reasonable action to ensure compliance with lease agreements and other related contracts. The case also highlights the importance of having knowledge of the assets held by another party, as expectation damages will not be awarded if there are no assets.

The Facts

In Cessnock Case, 123 sought damages against the Council for the breach of contract and unconscionable conduct.

Council was the landowner and developer. Council proposed to subdivide Cessnock Airport to include aviation and non-aviation uses. On 26 July 2007 an Agreement for Lease (AFL) was executed by the parties for one of the subdivided lots. To successfully lodge a development application on itself, the Council split its role as developer and its role as the regulator. As the developer Council lodged the DA, and using its planning authority it could then consider and approve the development. 123 proposed to occupy the suite to run adventure flights, a venue for hire and an aviation museum. The AFL provided that if the plan of subdivision was registered by 30 September 2011 Council would grant a 30 year lease to 123. 123 commenced occupation of the land and subsequently erected a 3.5 million dollar hangar on the site.
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A PERMANENT INCREASE OF THE BANKRUPTCY THRESHOLD

By Anica Cunanan, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Is having a judgment against a personal debtor enough to serve a bankruptcy notice and bankrupt the debtor? Can you make a debtor bankrupt by serving a bankruptcy notice? What else do you need to know to bankrupt a personal debtor?

A creditor serving a bankruptcy notice is the first step to potentially making a debtor bankrupt. The bankruptcy notice must be based on a judgment against a personal debtor in an Australia court and be less than 6 years old.

Can you bankrupt a debtor for a $5,000 judgment? Unfortunately for creditors, the debtor must owe $10,000 or more. This new permanent threshold may cause some confusion to creditors and debtors coming out of the COVID-19 pandemic. The debtor threshold had been $5,000 from 2010. However it was temporarily increased to $20,000 during the COVID-19 pandemic. This temporary threshold has since expired. The debtor threshold for bankruptcy notices has now increased to $10,000 from 1 January 2021.
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Minister’s Planning Principles and the Consolidation of SEPPs

On 2 December 2021 the Minister for Planning and Public Spaces released the Minister’s Planning Principles (‘Principles’) which have the following themes devoted to guiding future planning and development in New South Wales:

  1. Strategic and inclusive planning systems
  2. Well-designed places
  3. Natural environment and heritage preservation, conservation and management
  4. Resilience and hazards management
  5. Transport and infrastructure
  6. Safe, diverse and affordable housing
  7. Competitive and resilient economy
  8. Resources and renewable energy transitioning
  9. Protecting and supporting agricultural lands and opportunities for primary production

These Principles will apply through the existing statutory scheme under Part 3 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). Additionally, the Principles will align with the 11 new State Environmental Planning Policies (‘SEPPs’) created to consolidate and simplify NSW planning policies. From March 1 2022, the 45 SEPPs that currently exist will be consolidated into the following 11 SEPPs:

  • State Environmental Planning Policy (Biodiversity and Conservation) 2021;
  • State Environmental Planning Policy (Industry and Employment) 2021;
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COLLECTING MONEY!

By Anica Cunanan, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Finding trouble collecting money? Matthews Folbigg Lawyers understand how challenging and delicate collecting money can be – especially, when you are collecting money from someone you know or alternatively, collecting money from someone to whom you are still providing goods and/or services.

At Matthews Folbigg Lawyers, we have demonstrated experience with collecting money from debtors who have had a business relationship breakdown with a creditor or alternatively, collecting money from debtors who continue to have business relationships with their creditors. Collecting money, no matter the dynamic between the creditor and debtor, can be a very delicate situation.

At Matthews Folbigg Lawyers, we do not have a “one size fits all” approach when it comes to collecting money. We are happy to discuss and adopt strategies of collecting money that suits your relationship with the debtor.

We would be happy to assist you in collecting money from a debtor in the best way that suits you. We want to provide the best service to our clients for collecting money and are happy to personalise collecting money taking into account your preferences, situation and concerns. We understand that collecting money can be personal for different clients, when it comes to the choice of methods, language, processes and even the tone of communications for collecting money from a debtor. Engaging with Matthews Folbigg Lawyers will allow you to leave the job of collecting money to someone else whilst having the peace of mind that we are collecting money in a way suitable to you.
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