Barrister Blog & Case Law Updates
Tax Specialist Chris Wallis has written an article titled Life’s near certainties — nursing homes and blind-sided advisers for the March edition of the The Australian Tax Law Bulletin.
Leases commonly permit a landlord to terminate a lease if the landlord intends to demolish the building located on the leased premises. Section 56 of the Retail Leases Act 2003 (Vic) implies terms into a retail premises lease that provides for the termination of lease on the grounds that the building is to be demolished.
There have been many cases about whether a mortgage procured by fraud secured any money in circumstances where the mortgagee is innocent of the fraud. The latest case is Perpetual Trustees Victoria Limited v Xiao Hui Ying  VSC 21 (Ying) where Hargrave J refused to follow the Victorian decision of Solak v Bank of Western Australia  VSC 82.
Those following the debate on the operation of s 52 of the RLA and s 251 of the Building Act 1993 (Vic) may be aware that the Victorian Small Business Commissioner made an application to the President of VCAT seeking an opinion on the landlord's ability to pass on the act and/or cost of compliance with those sections (for more details, see here).
In the recent decision of Wang v Orion Holdings Australia Pty Ltd (Building and Property)  VCAT 812, VCAT held that premises let as student accommodation was a retail premises, even though most guests stayed for six months.
Are there any recent cases about whether a builder is liable to an owner's corporation for defective building works?
In October 2014, the High Court handed down a decision about the duty of care owed by builders to third parties (purchasers, including owners corporations) (see Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288  HCA 36).
Following on from Victoria and other states, in New South Wales, new requirements for verification of the identity of mortgagors will apply from 1 January 2015.
The NSW amendments (like the Victorian provisions) require a mortgagee of land to take reasonable steps to ensure that the person who executed the mortgage, or on whose behalf the mortgage was executed, as mortgagor, is the same person who is, or is to become, the registered proprietor of the land that is security for the payment of the debt to which the mortgage relates.
Landlords often offer incentives to a tenant to encourage the tenant to enter a lease. Common incentives are rent free periods and contributions to the fit out. The logic behind the inducement is that landlord will benefit because the tenant will occupy the premises for the term of the lease. Landlords sometimes require a “claw back” provision in the lease so that if the landlord terminates the lease before the expiry of the term the lease incentive (or part of the lease incentive) must be repaid.
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