Frequently
Asked Questions

Legal documents and contracts are confusing, full of legal jargon and generally contain complex legal terms and clauses that are difficult to grasp. Our job is to guide you through understanding these documents.

Most contracts entered into in WA do not have any cooling period, meaning they are binding before the ink dries on the paper. This emphasises the importance of understanding the terms and conditions of a contract before signing it.

Keep in mind that a contract is generally inclined in favour of the party who drafted it, and potential consequences may not be evident to you at first.

Most lenders will not enter into a financial agreement with you unless you have obtained Independent Legal Advice. This is to ensure that you cannot claim in future that you did not understand the financial agreement or documents at the time of signing.

The cost of obtaining Independent Legal Advice is usually much less than the costs that can arise from blindly entering a legal contract and the unfavourable consequences that may follow.

Obtaining Independent Legal Advice is neither a formality nor a charade.

Providing Independent Legal Advice and witnessing your signature are two completely different things. In fact, after receiving Independent Legal Advice, you may decide not to sign anything at all!

Lenders want to protect themselves and will require you to obtain Independent Legal Advice and, subsequently, an Independent Solicitor’s Certificate prior to signing legal documents.

This is so that after signing, you cannot turn around and say that you did not receive Independent Legal Advice and did not understand the legalities of the transaction.

This requirement was introduced by many Lenders after the decision of the High Court of Australia in Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 (12 May 1983) and in Garcia v National Australia Bank Ltd [1998] HCA 48; 6 CCL 81; 194 CLR 395; 155 ALR 614; 72 ALJR 1243 (6 August 1998).

In the above cases, the High Court held that mortgages were unenforceable by the Banks after the Banks failed to provide borrowers with sufficient advice and disclosures concerning the terms of the Contracts/loan documents prior to signing. Following these decisions, banks in Australia realised that they would now need an insurer to claim against when their mortgages suddenly became unenforceable.

Lenders now try to rely on a borrower’s Solicitor to:
a) explain the loan documents/Contract to the borrower/guarantor, and
b) identify the people signing the mortgage documents/Contract.

Your Lender will require you, as the borrower/guarantor, to obtain an Independent Solicitor’s Certificate to the effect that the Solicitor explained the documents/Contract to you and you appeared to understand them.

The Independent Solicitor’s Certificate is designed to defeat a claim by you against the Lender to the effect that you did not understand the documents/Contract.

In providing Independent Legal Advice, we will:

• carefully read, analyse and review the contract and allied documents;
• provide you with an explanation about the effect of the same, including your current and future legal rights and obligations, the securities being offered (if any) and consequences of default;
• ensure you understand the transaction you are entering into and our Advice; and
• if satisfied with the above, issue an Independent Solicitor’s Certificate.

This process generally involves hours of work.

The Lender sometimes trivialises the process and may not always inform you that the Independent Solicitor’s Certificate is totally different from just witnessing your signatures.

In preparation for your appointment, please read through all the documents as best as possible. Please do not sign any of the documents until you have received the Independent Legal Advice and are satisfied with the terms of the contract.

Please send through all relevant documents (via our website, post or email) at least 24 hours before your appointment to allow us time to review them before meeting with you.

Please ensure to bring a copy of the contract and any other relevant documents received.

You must also bring original identity documents to satisfy a 100-point identification check.

The identity documents for the 100-Point Identity Checklist are per the link below.

NPC Proof of identity | Western Australia Police Force

You will need to allow approximately 30 minutes to 1 hour for your appointment.

The time needed may vary as we must be satisfied that you understand the transaction and are not being coerced into signing.

Our foremost objective is to protect your interest.

We will issue an Independent Solicitor’s Certificate if we believe that:

• you have understood our Advice;
• you are executing the same out of your own free will and are not being coerced into entering the transaction; and
• there is no other reason which prevents us from issuing the Certificate.

In order to keep your legal costs down, please provide us with a copy of the relevant documents (in one go) so that we may provide you with a precise quote.

We do not charge for preparing a quote.

We cannot provide financial Advice to you, nor are we authorised to do so.

We cannot advise you concerning the financial aspect of the transaction or if it is the right financial decision for your particular circumstances.

We strongly recommend obtaining independent financial advice from an accountant or a financial advisor of your choice.

The National Credit Code (‘NCC’) protects persons who borrow money from credit providers, including banks, credit unions and private lenders.

The NCC only applies where the money is borrowed for non-businesses purposes, for example, home loans, credit card loans and investment property loans.

Some examples of the protections provided by the NCC include the following:

• A lender must assess a consumer’s capacity to repay a loan before entering into a loan agreement; and
• A lender must provide a comparison rate when advertising or promoting a fixed-term credit contract, including information about interest rates and relevant fees and charges.

Individuals entering into contracts for business purposes will not fall under the protection of the NCC, therefore should take caution when entering into such transactions.

To learn more about the National Credit Code, follow this link:
https://asic.gov.au/regulatory-resources/credit/credit-general-conduct-obligations/national-credit-code/

It is always a good idea to be sure of what you are getting into, especially because some of the clauses in a contract’s General Conditions are tricky and complex.

The seller’s agent may appear to be your best friend at this time but remember the seller engages them, and they owe no legal obligations to you, the buyer.

It is strongly recommended that you do so.

There are many cost escalation clauses in most building contracts, which are generally difficult to comprehend.

Getting Advice on these clauses so that you understand them can significantly enhance your ability to better negotiate the contract.

If you are unable to attend in person, we may be able to advise you remotely via video conference.

You will need access to Microsoft Teams or Zoom via a video-enabled device such as a computer, tablet or smartphone.

Please note that not all banks and lenders will allow remote Advice, so please check with your lender/finance broker first to see if they will accept the same.

• Our staff is professional and highly experienced.
• Our advice is precise, to the point, explained in simple English and customised to your situation.
• We offer a competitive fixed fee, ensuring that there are no surprises.
• We offer fast turnaround. In most cases, we will have appointments available within 1-2 business days. Consultations are also available after hours and on Saturdays (subject to availability and additional charges).
• Advice Express is conveniently located in North Perth, Western Australia.
• Sanjiv Sethi, the principal Solicitor of Advice Express, is a Senior Solicitor and Notary Public with over 34 years of experience.

Yes, we offer legal services in the following areas:

• Notary Services
• Commercial Law
• Contract Law
• Business Law and Settlements
• Wills and Estate Planning
• Probate
• Family Law