GLOSSARY OF TERMS
| A | |
| abstract of title | a document setting
out details of all deeds, and other relevant documents, facts, and
events showing a chain of title reaching back to a good root of title
to old system land |
| accused person | a person formally accused of criminal conduct
in respect of which a penalty may be given, or a person formally charged
following arrest |
| acquisition | obtaining ownership or possession
of a thing |
| acquittal | court finding that an accused
in not guilty of a charge |
| action | any
proceeding in a court |
| actionable | providing
grounds for an action at law |
| admissibility | in
relation to evidence, the quality of being capable of being received
by a court or tribunal |
| admission of facts | a voluntary
statement made as to the existence of the truth of certain facts |
| affidavit | a written statement, made by a person who has sworn or affirmed before a person who is authorised to administer the oath that the contents of the statement are true |
| agreement | in
contract law the stage at which the negotiations at which the negotiations
between the parties are complete |
| applicant | the
person or persons making an application to the court |
| apprehended violence order (AVO) | an
order obtained from a local court that protects a person who has reasonable
fears of violence or molestation or harassment from a specified person |
| arbitration | the
system of determining disputes by a private tribunal constituted for
that purpose |
| B | |
| bankrupt | a
person against whose estate a sequestration order has been made or
who has become bankrupt by presenting s debtor's petition to the registrar
in Bankruptcy |
| bankruptcy notice | a
notice served on a debtor requiring the payment of a judgment debt
default whichentitles the person serving the Notice to proceed with
a Bankrupty Petition |
| beneficiary | a
person who, by being in a particular kind of legal relationship, receives
or is entitled to receive a benefit, profit, or advantage |
| bequeath | to
give or dispose of personal property by will |
| bill of costs | a
detailed account of legal services rendered showing the specific items
of work done and the specific charges allocated to each of those |
| body corporate | a
controlling body (or owners corporation) constituted under strata
titles legislation |
| bond | an
instrument which binds a person to another to pay a specific sum of
money on demand |
| breach of contract | the
failure of a party to a contract to perform a contractural obligation |
| breath test | a
preliminary test by means of an approved device carried out by a police
officer on a person who has been driving or is in charge of a motor
vehicle to determine whether the blood alcohol content is above a
prescribed limit |
| brief | a
set of documents given to a barrister retained to appear, advise,
or draft documents in a matter |
| building approval | approval
to carry out building work under building regulations by a local government
authority |
| C | |
| capacity | the
power, ability, or competence of a person or body |
| care proceedings | court
proceedings held for the purpose of safe-guarding children who are
in need of care |
| caveat | in
real property, a notice recorded on the folio of the register for
a parcel of Torrens title land to protect an interest that effects
that title but is either not registered or is not registrable |
| caveator | a person who has lodged a caveat on land |
| certificate of title | an
instrument evidencing the estate in fee simple or other estate or
interest in any land, executed by the Registrar of Titles in the prescribed
form |
| charge over land | an
encumbrance on real property to secure payment |
| claim | the
assertion of a right to property or to a remedy, or cause of action |
| client | any
person who, either as principal or on behalf of another person, consults
or retains a solicitor and who is liable to pay a solicitor's costs |
| conduct money | a
sum of money paid in advance to meet reasonable expenses when a party
in court proceedings subpoenas a third party to attend court to give
evidence |
| conference | a
meeting between client, counsel and/or solicitors |
| consent order | a
court order made with the consent of the parties to the proceedings |
| contact order | an
order which provides for contact between a child and another person
or persons in Family law |
| contract | a
legally binding promise or agreement |
| contract for sale of land | a
contract between a vendor and purchaser to buy and sell specified
real estate |
| conviction | the complete orders made by the court after finding an accused person guilty of an offence including both the finding of guilt and the sentence passed as a consequence |
| cooling off period | a
period of days which commences immediately after entry into certain
contracts during which the pruchaser or other person assuming a financial
responsibility may rescind the contract usually subject to a monetary
payment to the other party |
| costs | the
professional fees and disbursements incurred in relation to legal
work |
| costs agreement | an
agreement between a solicitor and client for work |
| counsel | a
person who appears as an advocate before a court |
| court order | a
direction or command of the court which, if not complied with is enforceable
by the person for whose benefit is was made |
| D | |
| damage/s | loss or injury
suffered by a plaintiff as the foreseeable consequences of a defendant's
negligent act or omission/compensation for damages suffered |
| dangerous driving | in criminal
law, the driving of a vehicle by a person under the influence of intoxicating
liquor or a drug, or at a speed dangerous to others, or in a manner
dangerous to others |
| de facto marriage | a relationship
between a man and a woman who are living together (or have lived together)
as husband and wife on a bona fide domestic basis although not married
to each other |
| death benefit | payment to dependants
of a deceased person in compensation for the loss incurred as a result
of the death of that person |
| debt/debtor | an obligation
to pay, or a sum of money owed/someone who owes money to a creditor |
| debt servicing | payment of interest
and principal on a debt |
| debtor's petition | the procedure
by which a debtor asks to be made bankrupt by the court |
| decree absolute | in Family Law,
a final order in relation to the dissolution of a marriage |
| deed | an intrument
that has been signed, sealed and delivered that passes an interest,
right, or property, creates an obligation binding on someone, or is
an affirmation of something that passes an interest, a right, or a
property |
| default judgment | a discretionary
judgment or verdict given in favour of a plaintiff by virtue of the
defendant's failure to comply with the procedural requirements of
the court after having been served with an originating process |
| defence | the evidence
offered by the accused to defeat a criminal charge |
| defence to Statement of Claim | the response
offered by the responding party in an action or suit as the reason
why the plaintiff should not recover or establish what is sought |
| demand | the assertion
of a legal right, requiring the receiver to do something, refrain
from doing something or give something |
| deponent | the person who
gives sworn evidence in an affidavit |
| development application | a formal application
by a developer to the local consent authority or planning body for
a permit or consent to construct and operate a facility or plant,
to undertake land subdivision, housing construction or other works,
or carry out a use of property |
| discharge | to be relieved
of an obligation or liability, generally a mortgage |
| disclaimer | a repudiation
of liability, interest, or benefit |
| disclosure | making information
available |
| dismissal of proceedings | an order for
the termination of the plantiff's action in favour of the defendant |
| dispute resolution | a means of settling
a conflict between parties without going to court |
| E | |
| easement | a right enjoyed
by a person with regard to the land of another person, the exercise
of which interferes with the normal rights of the owner or occupier
of that land |
| entity | a natural person
or Company, association or body |
| estate | the assets of
a deceased person |
| evidence | any statment,
record, testimony, or other things, apart from legal submissions,
which tend to prove the existence of a fact |
| exchange of contracts | a conveyancing
practice in which the vendor and purchaser physically exchange counterpart
identical contracts for the sale of land, each receiving a copy executed
by the other party, thus entering into a contract |
| executed document | a document upon
which the required acts of execution such as signing and sealing have
been performed |
| executor/executrix | the person appointed
by a person making a
will to manage, administer and distribute that person's estate |
| existing use rights | rights under
planning legislation to continue previously lawful activites on land
which would no longer be permitted following introduction of changes
to environmmental planning instruments |
| F | |
| facts in issue | in relation
to any disoute or hearing, those facts on which the parties do not
agree |
| Family Provision application | an application made by an eligible person for provision of the estate of a deceased person for the eligible person's maintenance, education, or advancement in life |
| Family report | in family court
proceedings concerning children, a report prepared by a court counsellor
or a welfare officer, at the direction of the court, that addresses
all relevant issues about the children who are the subject of a dispute |
| filing of documents | the lodgment of documents with a court and having them accepted by the court |
| finding | a conclusion
reached by a court following an enquiry of fact |
| folio identifier | a computerised
Certificate of Title |
| foreclosure | a mortgagee's
right to take absolute title and possession of mortgaged land in satisfaction
of the mortgage debt, extinguishing the mortgagor's equity of redemption |
| franchise | a business arrangement
which allows an individual, partnership or compnay to operate under
the name of an already established business useually under stringent
guidelines |
| full disclosure | the presentation
and disclosure of all significant and material information in financial
statements |
| G | |
| good behaviour bond | an
undertaking given by the offender to a court to be of good behaviour
for a certain period |
| good repair | a
term used in relation to leased premises which requires the lessee
to keep the premises, including the fixtures, in good repair usually
subject to their condition at the beginning of the lease, but allowing
for reasonable wear and tear |
| goodwill | the
benefit and advantage of the good name, reputation attached to a business |
| H | |
| hardship | adverse
repercussions (usually financial) |
| harsh, unjust or unreasonable | a
term used to describe the dismissal of an employee without valid reason/s,
not connected with the employee's capacity, or conduct |
| hearing | a
proceeding conducted by a court or tribunal with a view to resolving
issues of fact or law |
| I | |
| inadmissable | not
allowed into evidence; evidence not relevant to a fact in issue in
proceedings |
| incapacity | physically,
mentally or legally unable |
| indemnity | security
or protection against financial loss through breach of a legal obligation |
| indictment | information
presented or filed, as provided by law, for the prosecution of a serious
offence |
| instruct | to
retain or brief a legal practitioner to provide a legal service |
| instrument | a
formal legal document |
| interest | rights,
advantages, duties, title and liabilities with respect to a specific
thing; the charge for borrowing |
| interim billing | the
practice of charging costs propr to the completion of the work the
legal practitioner is retained to perform |
| interim residence | an
order made concerning the care and control of a child pending the
final hearing of the competing custody claims in the Family Court |
| intestate | a
person who dies without having made a valid will |
| irretrievable breakdown of marriage | where
the marital relationship between the paries has come to an end. Parties
must live 'separately and apart' for 12 months, and there must be
no reasonable likelihood that they will resume cohabiting |
| issue | in
succession, refers to a person's children, grandchildren or other
lineal descendants |
| J | |
| joint application | in
family law, an application usually for the dissolution of a marriage,
filed by both parties, where the parties seeking an order are in agreement
as to all facts and issues |
| joint tenant | a
person owning land with another person, or other persons where that
person'sinterest pass by law to the survivor/s on the death of that
person |
| joint venture | an
association of persons for particular trading, commercial or other
financial undertakings or endeavour with a view to mutual profit |
| judgment | the
determination of a court in legal proceedings |
| judgment debtor | a
person who has a judgment against them that orders them to pay a sum
of money to the judgment creditor |
| jurisdiction | the
scope of the court's power to examine and determine the facts, interpret
and apply the law, make orders and give judgment in a particular matter |
| just and equitable | in
corporations law, a ground upon which the court may be petitioned
to compulsorily wind up a company; otherwise fair and equitable |
| K | |
| L | |
| land improvements | all
works actually effected to particular land |
| land tax | a
tax levied on the unimproved value of taxable land |
| Land Titles Office | the
body responsible for keeping a register of interests in real estate |
| landlord | in
general, an owner of land (including a leasehold estate) who lets
premises to another person under a tenancy arrangement; the Lessor |
| lease | an
interest in land given by a landower (landlord or lessor) to another
person (lessee or tenant) for a fixed duration so that the lessee
has exclusive possession of the premises |
| Letters of administration | an
order of the court granted when a person dies without having left
a legal will that confers on the administrator the powers and duties
necessary to fully administer and distribute the deceased estate |
| licence | less than a lease; a similar right but with no exclusivity of possession |
| limited title | a title created by the Registrar General when converting old system land to Torrens title |
| M | |
| mortgage | a
lender's interest in land, secured over the land of the borrower;
a charge on property to secure the repayment of money |
| mortgagee | the lender in a mortgage |
| mortgagor | the borrower in a mortgage |
| motion | an
application made to a court to obtain a ruling or order directing
some act to be done |
| mutual wills | corresponding
wills with interdependent testamentary directions and reciprocal benefits
often made by two or more persons who have agreed that the wills are
not to be revoked by either without notice to the other and the testamentary
instrument so executed is evidence of their agreement |
| N | |
| negligent driving | driving
without the standard of care and attention reasonably expected bythe
ordinary prudent driver |
| notice to complete | in
contracts for the sale of land, the notice given (served) by a promisee
when a promisor breaches a non-essential time stipulation. The effect
of the notice is that time becomes of the essence, and failure to
comply with the notice confers a right to teminate the contract with
other legal consequences |
| O | |
| opinion | the
advice or opinion of a lawyer expressed in conference or in writing |
| order | a decision or direction issued by a court or tribunal capable of being enforced |
| P | |
| parenting order | an
order made by the Family Court which deals with mattes such as with
whom a child is to live, the maintenance of the child and any other
aspect of parental responsibility |
| particulars of title | the
formal description of the subject title of land and the vendor's interest
in it contained in a contract for the sale of land including tenancies,
easements and encumbrances which the transferee will be required to
accept or observe |
| partnership agreement | a
mutual agreement between two or more parties that they will carry
on business jointly on the terms stated in the agreement |
| party | a person or entity who enters into an agreement with another person or entity |
| petition | a formal application for a court order |
| plaintiff | a
person who seeks relief against any other person by any form of proceedings
in a court |
| planning scheme | a
systematic plan for the future development of a local government area
devised so that the development of an area of land may be subject
to direction or restraint; now a local Environmental Plan |
| pleadings | written
or printed statements which are filed in court by the parties to a
dispute and define the issues to be decided in an action |
| power of attorney | a
formal instrument authorising a person to act for another, to sign
legally binding documents on behalf of the give of that authority |
| prejudice | to harm or injure another's rights |
| probate | an
order made by the Probate Division of the Supreme Court that the will
of the deceased has been proved as valid and that authority to administer
the deceased's estate has been granted to the executor |
| proceeding | an action commenced in a court |
| process server | a
person who effects service of a court document or legal process of
behalf of another person |
| proprietor | the
owner of something |
| public authority | a
person executing a function in the public interest and for the public
benefit |
| purchaser | a
person who acquires an interest in property for valuable consideration
by conveyance |
| Q | |
| qualified title | the
intermediate form of old system title where the qualification will
lift in the passage of time resulting in full Torrens title |
| quiet enjoyment | undisturbed
occupation and possession of land |
| R | |
| real property | land |
| rebut | dispute, counter, refute or take away the effect of |
| receivership | the
state resulting when a companay has a receiver appointedto collect
or protect property for the benefit of the creditors of that company |
| register of titles | in
real property, a register that records information as to lots of land
or strata lots, the registered proprietors of such lots, and any interests
or other dealings in the property which can be registered |
| rescind | to cancel, revoke or repeal |
| rescission | to
put an end to a contract |
| resolution | a formal expression of the collective will |
| respondent | a party to court proceedings against whom relief is claimed by an applicant or appellant |
| restraining order | a court order preventing a party from doing something |
| restrictive covenant | a
covenant affecting land restricting the uses to which the land may
be put |
| resumption | the
procedure by which the Crown compulsorily re-acquires land that was
previously alienated, generally for public purposes pursuant to a
statutory power |
| right of way | a right to pass over private land |
| S | |
| sale of land | a disposition of land, or an interest in land for consideration |
| seal | an
impression or mark attached to a formal document as an authorisation
to agreement by a body corporate |
| searches | the
process of identifying the title to land and ascertaining if there
are any identifiable problems in regard to that title |
| separation agreement | a
formal written document made by parties to a relationship which acknowledges
the end of their relationship and stipulates how financial and non-financial
matters are to be dealt with between them |
| settle | to resolve a dispute or proceedings |
| settlement | a disposition of property |
| settlement sheet | a
financial record of the details of the completion of a contract for
the sale of land, which sets out all amounts owing by one party to
the other party, and includes all adjustments to be made for services
to the land such as water and council rates |
| special conditions | in
real property transactions, the specific or special matters agreed
between the parties which vary the provisions of the standard form
of contract for sale of land, or covering additional matters not covered
in the contract of sale |
| stamp duty | a
tax imposed on documents or transactions that affect or record the
transfer of the ownership of assets or the creation of rights in respect
of assets |
| statement | an oral or written declaration, allegation, or assertion of matters of fact |
| statement of claim | a
method of commencing proceedings which consists of a written statement
by the plaintiff to an action showing the basis of the claim against
the defendant |
| statutory declaration | a
declaration made in writing for the purpose of allowing a person to
say something on oath; like an affidavit but not filed in a court
or used in proceedings |
| strata title | a type of land title providing Torrens title to parts of buildings and/or land |
| supboena | a documentt by which the court compels a person to attend court to give evidence or to produce documents within that person's possession |
| surety | a
person who makes himself/herself liable to monetary penalties for
another's default |
| sworn evidence | verbal
information provided to a court upon an oath or affirmation |
| sworn statement | a
written statement by the deponent sworn or affirmed before any justice
of the peace, notary public, lawyer, or commissioner for taking affidavits
for use in a court |
| T | |
| tenants in common | a
type of co-ownership where two or more persons own distinct interests
in the same piece of property possessing the property in common and
without exclusive possession of any part of it but where the title
passes by will or law on death |
| testamentary capacity | the
mental capacity required to make a valid will |
| testator/testatrix | a
person who makes a will |
| testify | a
witness' act of giving evidence on oath |
| time of the essence | a phrase which, when used in relation to time in a contract, refers to a condition, the breach of which allows the innocent party to treat the contract as at an end |
| Torrens title | a
system of land title where a register of land holdings maintained
by the State guarantees title to the land on the register |
| transmission | the
passing of property as a reesult of the death, will, intestacy, or
bankrupcty of a proprietor |
| trust | a fiduciary relationship where a person holds tsomething for the benefit of another or others |
| U | |
| undischarged bankrupt | a
bankrupt who has yet to be discharged |
| unliquidated damages | damages
for a loss whose existence is certain, but whose worth in money cannot
be stated exactly, only estimated until they are determined |
| unregistered interest | an
interest in land that is not registered either under the deeds registration
system or under the Torrens system. In the Torrens system, in some
cases a caveat may be lodged on the titile in respect of an unregistered
interest so as to give notice of it to others and perhaps to preserve
its priority against a bona fide purchaser for value or other claims |
| urgent application | a
request to a for the court to make immediate orders beause of pressing
factors |
| use | in
real property the nature of the activity carried out on land |
| V | |
| vacant possession | where
a property is free from occupation by the vendor or a third party
such as a tenant |
| vendor | a
seller; most a commonly used in relation to selling land |
| Voluntary winding up | a
winding up of a company which is initiated by members rather than
by creditors |
| W | |
| will | a
legal document providing for disposition of property by a living person
to take effect on death by which a person an executor is appointed
to administer the estate after death, to discharge liabilities and
to distribute as directed to beneficiaries as specified |
| without prejudice | a
statement made without an intention to affect the legal rights of
any person |
| writ | a
written order issued by the court commanding the person to whom it
is directed to do or refrain from doing a specified act |
| XYZ | |
| zoning | a
way of controlling land development by designating areas for specific
land purposes. A feature of local environment plans, zoning divides
an area into parts specifies permitted uses for each part. It controls
future development of property |

