2. Can contributions be secured upfront?

Under s 34B of the Legal Aid Commission Act 1979 (NSW), Legal Aid NSW has the power to require a legally aided person to provide security for the costs of providing the legal service by requesting an equitable charge over real property.

A legally aided person will be required to give a charge over real property as a condition of the grant of legal aid:

• where a legally aided person owns real property, and
• the legal dispute is about the property, or
• the value of the property is $200,000 or more, and
• it is an expensive matter – this includes Commonwealth and state family law court proceedings, criminal indictable matters including EAGP, trials and higher court appeals, and higher court civil proceedings.

to secure the total costs and expenses of providing the legal service determined under s 46 of the Legal Aid Commission Act 1979 (NSW), unless it is a matter where the charge policy does not apply; see Contributions policy 5.

Note: The requirement for the legally aided person to give a charge over real property also applies to any financially associated person.

Note: There is discretion not to take a charge where Legal Aid NSW is satisfied there are exceptional circumstances. Directors have the delegation to exercise this discretion. See Delegation Instrument.

See Contributions policy 3: What is a contributions to legal costs?

See Contributions guideline 4 on securing contributions with a charge over real property.

See Means Test 2: Whose means are considered when applying the Means Test? and Means Test 5.2 Assets test in all other matters.