BARRISTERS BLOG : Property Law

Welcome to our Legal Blog Property Law with posts from expert barristers covering a vast range of jurisdictions, issues and updates in the law.

When does a deposit become a penalty?

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Practice Note - Contents of notice of default under s 27 of the RLA 2003

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Content of default notices under s27 of Retail Leases Act

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Practice note - Another application of the “ultimate consumer” test

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Are there any substantial amendments planned for the Transfer of Land Act 1958 (Vic)?

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Is a real estate agent an 'agent' for the purposes of a notice under the Sale of Land Act, 1962 (Part 2)?

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Court of Appeal dismisses appeal in the C B Cold Storage case – When is a lease for business-to-business services governed by the Retail Leases Act 2003 (Vic)? Part 4

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New definition of PPS Lease under the PPSA is now law

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New definition of PPS Lease under the PPSA is now law

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Luhan v Micallef [2017] VSC 246 - Equitable Remedies, Specific Performance, summarily grant of specific performance

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Scott-Mackenzie v Bail [2017] VSCA 108 (10 May 2017) - Step-child includes the child of a deceased’s domestic partner

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When will the PPSA be amended to extend the minimum duration of PPS leases to 2 years?

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The Tribunal’s power to make “any order it considers fair” is not unlimited

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Are there any proposed amendments to the Personal Property Securities Act 2009?

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Who will win in priority dispute between a mortgagee and a tenant (Part 5)?

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Who will win in a PPSA dispute over an unperfected security interest? Part two

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Practice note - When is a lease for business-to-business services governed by the Retail Leases Act 2003 (Vic)? Part 3

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Can parties to a Contract of Sale of Real Estate for a sale 'off the plan' agree to make the purchaser responsible for the costs of subdivision?

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ATO’s in-house facilitation: the good, the bad, the ugly

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Compensation Legislation Amendment Bill 2016

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Are there any recent cases about rent review clauses on the exercise of an option for a further term in Retail Leases in Victoria?

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Correcting errors on the plan of subdivision to change the boundary between two private lots

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Can a lender enforce its security if it breaches the Code of Banking Practice? - Part three

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Can a lender enforce its security if it breaches the Code of Banking Practice? - Part two

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Practice note: When is a road not a road?

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"Gross income from personal exertion” considered in Nicholson v Victorian WorkCover Authority [2016] VSCA 146

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Controversy resolved – but more tenants under 15 year leases lose protection of Retail Leases Act 2003 (Vic)

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‘or’ means ‘or’ in 15 year determination

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AirBnB guests occupied apartment under a lease

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Valuers must furnish detailed reasons for rental determinations under Retail Leases Act

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Andrew Sykes has been appointed to the panel of arbitrators for the Asian Domain Name Dispute Resolution Centre

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The power of FOI in negotiating repayment of arrears for PAYG, GST, SGC and income tax

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Tan v Russell now on austlii

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What are the new verification of identity provisions for non electronic land transactions in Victoria?

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Are there any recent cases about whether a builder is liable to an owner's corporation for defective building works?

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CASENOTE: ResMed Ltd v Australian Manufacturing Workers Union [2016] FWCFB 22 (18 January 2016)

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Can a landlord recover lease incentives from a defaulting tenant or its guarantor?

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Continuing problems with specialist retail valuers’ ‘no liability’ clauses

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Landlords’ ability to recover outgoings curtailed

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New VSBC guideline on ‘What are “retail premises”?’

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More on outgoings …

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Epping Hotel Pty Ltd v Serene Hotels Pty Ltd decision – the profits method and consideration of supplementary report approved

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Epping Hotel v Serene Hotels appeal

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Proprietary Estoppel and Reliance – Sidhu v Van Dyke

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Marathon for Bowel Cancer Australia

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Thank you

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ROOFTOP TERRACE REPLACED WITH?…AN APARTMENT.

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PLANNING AND THE VICTORIAN CHARTER OF HUMAN RIGHTS

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ANOTHER ROOF TOP. A DIFFERENT RESULT.

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TRIBUNAL CONSIDERS ITS JURISDICTION TO REVIEW 173 AGREEMENT

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Tenants should dispute rent nominated by landlord within time period specified in the lease

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When is electronic conveyancing going to happen in Victoria?

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Can an equitable interest take priority over a legal interest in Torrens law?

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Can a binding agreement to lease be created by email?

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Can a contract to purchase real estate be formed by email?

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QSC approval for amendment to trust vesting date

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Serene Hotels Pty Ltd v Epping Hotels Pty Ltd appeal dismissed

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Tribunal in error to draw new factual conclusion on review of private ruling

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Are there any recent Victorian Supreme Court cases about fraud under the Torrens legislation?

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Does a right to purchase an apartment off the plan in an undeveloped site create a caveatable interest?

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Vendor not entitled to interest on unpaid contract price where contract terminated

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Use of clinical records as evidence in serious injury applications – Court of Appeal update

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Can a landlord recover lease incentives from a defaulting tenant or its guarantor?

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Can a landlord recover lease incentives from a defaulting tenant or its guarantor?

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Is evidence by video link available to avoid arrest or departure prohibition orders?

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Noise from other lots

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Parking on common property

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Breach by a proxy holder and committee member’s immunity

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An OC fighting fund and resident’s action group

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OC responsibility for trees on common property

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Insurance obligations of an OC in multi-level buildings

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Unauthorised installation of private plant on common property

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Breach of OC Rules

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Which prevails – the OC rules or a licence over common property?

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Power of the OC to regulate the use of car spaces on private title

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Company Title (Home Units) Act 2013

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Removal of OC Manager

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An OC cannot make rules that discriminate against lot owners

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Altering the subdivision – the hoops have been removed

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Appointment of an administrator where the OC is dysfunctional

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OC not maintaining common property

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Latent defects and builder’s responsibility to the OC

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Where precisely are the lot boundaries?

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Neighbourhood disputes in company title properties

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Owners Corporation Amendment Bill 2013 – annual fees, special levies and the benefit principle

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Company Titles (Home Units) Act 2013 – enforcing duties of a service company

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Encroachment onto common propert

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Lot owner fined $10,000 for contempt

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Failure to pass a special resolution to commence legal proceedings

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Works to services and OC resolutions

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Maintenance charges for retirement villages

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Solicitor's Certificates - Tips and Traps

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OC Fees and bankruptcy

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Extraordinary items of expenditure requiring a special resolution

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Validity of proxies

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Retirement Village manager held in contempt

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Is the lot liability ‘just and equitable’?

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Leases over common property

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Unfair term provisions provide tenants with a new weapon

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CGT Event E1: Federal Court confirms breadth of meaning of creation of trust ‘by declaration or settlement’

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Small Business Commissioner’s application for advice heard, Justice Garde has reserved

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Is a student accommodation business a retail premises lease under the Retail Leases Act 2003 (Vic)?

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Are there any recent cases about whether a builder is liable to an owner's corporation for defective building works?

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Will NSW also adopt the Verification of identity requirements by mortgagees?

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“Claw back” of lease incentives thrown into doubt

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Date of termination confirmed as the date for assessing damages for breach of contract for sale of land

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Expert Opinion Evidence: Inquiry, Preparation, Admissibility and Weight

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Lost trust deeds

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Part 2 – Standard of repair under s 52 of the Retail Leases Act 2003 (Vic)

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Justice Legislation Amendment (Succession and Surrogacy) Bill 2014

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A general update for the leasing community…

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Mortgagor verification rules now in force in Victoria

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Second Notice to Complete Revives Terminated Agreement – Contract Sale of Land

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The main residence exemption is like a fairy tale!

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Charging Costs on a Recovery Basis

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Justice Legislation Amendment (Succession and Surrogacy) Bill 2014

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NSW Court departs from general rule on drawing down of bank guarantees

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What are the duties of a mortgagee to a borrower when exercising its power of sale under the Transfer of Land Act?

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Bill amending Part IV of the Administration and Probate Act 1958

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Franchisor’s internet trading breaches restraint clause

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Crimes, penalties and personal liability in the C to E suites

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Franchisees beware of arbitration clauses

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VCAT is a “court” and therefore arbitration clause effective

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Mortgagee lender does not have duty of care to ensure that a loan is appropriate for borrower

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Small Business Commissioner makes application for advisory opinion on the effect of s 251 of the Building Act

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When is a lease for business-to-business services governed by the Retail Leases Act 2003 (Vic)?

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More on Calderbank offers in the retail tenancies list

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Parties can agree to higher standard than that imposed by s.52 of Retail Leases Act

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Undertaking as to damages must not be a ritual or a formality

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Mortgagor fails in last minute bid to stop auction

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Can I obtain an injunction to restrain the imminent mortgagee auction of land?

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Landlord’s consideration of proposed assignment must be “reasonable”

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More on a mortgagee's duty to a mortgagor on a mortgagee sale

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Section 32 statements need not be attached to contract of sale

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“Terms contract” anomaly confirmed

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Mortgagee allowed to sell luxury mansion in Toorak - part of an ongoing saga

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Review of the PPS Act

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When can a borrower challenge the lender's legal costs?

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Lending to mature aged borrowers

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Proprietary estoppel – estopped party does not have to disprove reliance

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Entering Default Judgment - A Caution

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Tenants beware of onerous “make good” obligations

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Overstatement of amount owed does not make s.76 notice invalid

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Dispute resolution in Retail and Commercial Leasing

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Section 243 of Australian Consumer Law gives tenants a powerful weapon

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$1,000,000 in damages for loss of sperm even though purchaser not out of pocket

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A significant VCAT decision for rental determinations under the RLA

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New Australian edition of classic mortgage text

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Settlement terms caught by prohibition on payment of “key-money”

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The Abolition of Suspended Sentencing – The Stages

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When does the PPSA transitional period end?

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High Court visits waiver of privilege by inadvertent disclosure

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Landlord’s liquidator can disclaim tenant’s lease

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Willmott appeal dismissed – landlord’s Liquidators may disclaim leases

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VCAT applies general law principles in property partition under Part IV

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A how-to guide for small business break-ups

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VCAT not bound to refer matters to arbitration

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Management fees – Practice Note for LIV’s November 2012 lease revision

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Arbitration clause ineffective to oust VCAT’s jurisdiction

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Who will win in priority dispute between a mortgagee and a tenant (Part 3)?

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Who will win in a priority dispute between a mortgagee and a tenant (Part 2)?

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Who will win in a priority dispute between a mortgagee and a tenant (Part 1)?

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How to remove a trustee

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Costs of essential safety measures and s 251 of the Building Act

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Off the Plan Sales - How to Avoid Them & When to Enforce Them

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Is a stated intention to exercise an option sufficient to create a new agreement to lease? Part 2

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Service station leases – a Victorian perspective

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What is a retail premises? The ultimate consumer test.

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Strategic Use of Guarantees

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Wingfoot & Anor v Kocak and the Medical Panel

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Waving goodbye to waiver

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Are there any recent cases about PPS leases and the PPSA?

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Principles Of International Humanitarian Law co-authored by Kylie Weston-Scheuber

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Personal Property Securities Act - who will win a priority dispute between an equipment financier and a general financier?

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Update: Out of Pocket Legal Costs as a Head of Damages: Rosa v Galbally & O’Bryan

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When should a solicitor lodge a caveat, and what are the best ways to remove a caveat?

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Derek Percy and the rules of evidence in the Coroners Court

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Jury Trial in an OHS matter – Steelfield

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Advisers must consider registration of leases

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Disclaimer of a lease by a landlord’s liquidator – Growers granted special leave to appeal

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How can I obtain leave to appeal from VCAT on a question of law?

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Issuing in VCAT without mediating at the Small Business Commissioner – proceedings ‘in the nature of an injunction’

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Who will win in a priority dispute between a secured creditor and a judgment creditor?

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Retail Leases Regulations 2013 (Vic) commence today

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Be wary of unrepresented parties at mediations

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Landlord liable to pay compensation under s.54 of Retail Leases Act

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Who will win in a priority dispute between 2 defrauded lenders?

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What happens if a lender misleads a borrower or a guarantor?

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Are there any recent decisions about the priorities between mortgagees?

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Notice of Minister’s decision about the Retail Leases Regulations 2013 (Vic)

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Proportionate liability – the landscape has changed

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Free pass to the Legalwise Contracts Conference – 28 March 2013

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Submissions on the proposed Retail Leases Regulations 2013 and the Regulatory Impact Statement are invited

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Is there anything to gain from winding up a trustee company?

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Are there any recent cases about unconscionable conduct and infatuation?

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Damages assessed on breach of collateral contract to grant a new term

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Recovery of outgoings and the November 2012 LIV Lease

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Welcome to 2013

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Tenant cannot question the landlord’s title

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Latest on harm minimisation in liquor licensing

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Whether to issue in VCAT or Court for arrears of rent under a retail premises lease?

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When does a refusal of a further offer from a defaulting purchaser amount to a failure to mitigate?

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Are there any proposed changes to section 32 (vendor) statements?

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Can the sheriff sell land in Victoria without a reserve - part 2?

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Can the sheriff sell land in Victoria without a reserve - part 1?

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Managed Investment Schemes: The High Court says you can’t contract out of Chapter 5C protections

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New decision touching on s 251 of the Building Act – part 2

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Construction of Trust Deeds

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When a landlord can resist the exercise of an option by a retail tenant

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Are there any cases decided under the PPSA - part 2?

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Casenote: Warrell v Fair Work Australia [2012] FCA 267

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How does a court determine whether the negotiations for a lease have ceased and agreement has been reached?

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How does a court determine whether the negotiations for a lease have ceased and agreement has been reached?

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PPSR data migration issues update

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Can the Commissioner of Taxation receive the proceeds of sale of land in priority to a registered mortgagee?

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Mark Brennan appointed as inaugural Federal Small Business Commissioner

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Land area of no consequence in determining whether premises are “retail premises”

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More on the Willmott decision – disclaimer of a contract of sale of land?

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No easy answers to whether premises are “retail premises”

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Proof in tracing claims – build a compelling narrative

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Retail Tenancies Amendment Bill 2012

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In what circumstances can a liquidator of a landlord disclaim a lease?

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Oppression and unit trusts – Wain v Drapac

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The law of penalties – Andrews v ANZ Bank

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Can I see the notes?…..issues raised by enforcement proceedings.

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More on disclaimer of a lease – part 2

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The Mortgagee’s Power Sale 3rd edition out soon

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The Mortgagee’s Power of Sale out soon

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More on disclaimer of a lease

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Disclaimer of a lease by the landlord’s liquidator – part 2

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Can a landlord pass to the tenant the costs of complying with the Building Act?

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Farewell Landlord and Tenant Act

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Is a serviced apartment a retail premises lease? Part 2

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VCAT Adjournments……be ready to proceed.

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Are there any recent decisions about the enforcement of forged loan documents?

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Are there any recent cases on 'Severance of joint tenancies'?

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Are there any recent decisions clarifying unconscionable conduct by a mortgagee?

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Personal Property Securities Act further update

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What are a developer vendor's obligations to use its best endeavours to obtain registration of a plan of subdivision in a timely fashion?

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New information sheets from the Office of the Small Business Commissioner – options and assignments

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Is there a recent court decision finding lenders negligent?

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Is asset-based lending doomed in Victoria and Australia?

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Recovery of the cost of essential safety measures and s 251 of the Building Act part II

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Can the landlord pass on the costs of complying with the Building Act?

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Consequences of repeal of Fair Trading Act

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Farewell to the Fair Trading Act

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Recovery of the cost of essential safety measures and s 251 of the Building Act

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Retail Leases Seminar

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Is a serviced apartment a retail premises lease?

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“CONTROL” and its impact on the harmonization laws – Baiada Poultry

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Installation of Smart Meters not “works”

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Disclaimer of a lease by the landlord’s liquidator does not extinguish the tenant’s property – part II

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Developing the inner city – use of lane ways

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What is the effect of the Personal Property Securities Act on conveyancing and leasing?

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The PPSA – where does one start?

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Calderbank offers in the retail tenancies list

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More on s 251 of the Building Act

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Can the landlord require the tenant to pay the costs of complying with s 251 of the Building Act?

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The tenants’ new weapon – s.251 of the Building Act 1993

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VCAT approves energy project (Dual Gas Pty Ltd v EPA)

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Recent developments in Property Law

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“Standing” considered by VCAT

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Article on complaints about franchising laws in the Age

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New form of contract of sale of real estate

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Beware national lease registration system

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Article in thenewlawyer.com.au about uniform national Torrens System legislation

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Amendment of restrictive covenant in Ivanhoe East declined

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What's hot in mortgage enforcement?

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‘Use’ in an Alpine lease defined – part II

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New Ministerial determination excludes New Zealand companies from the Retail Leases Act 2003 (Vic) – Part II

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‘Use’ in an Alpine lease defined

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Deputy President MacNamara of VCAT appointed as a County Court Judge

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New Ministerial determination excludes New Zealand companies from the Retail Leases Act 2003 (Vic)

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More on the impact of online trading on retail rents

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Strict Liability for Native Vegetation Removal

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Section 172 of Property Law Act explained

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Meaning of “terms contract” examined

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Ancillary Use – The Tests discussed

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Summary judgment for possession easier under Civil Procedure Act 2010 (Vic) – Dattner v Wharton [2011] VSC 610

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Relief against forfeiture II – Lorgenredlich Pty Ltd v Cappadona (Retail Tenancies) [2011] VCAT 1668

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Recent cases on costs under the Retail Leases Act 2003 – Part II

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Swanton’s case doubted

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Recent cases on under the Retail Leases Act 2003 – Part I

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Landlords beat administrators and obtain possession under s.440C of Corporations Act

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Beware of lease variations

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Michael Redfern

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Surrender and re-grant leading to recovery of land tax

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Relief against forfeiture – V & O Princi Pty Ltd v Prestige Holdings Group Pty Ltd & Anor [2010] VSC 627

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Personal Property Securities Act commences 30 January 2012

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Major victory for tenants in landlord’s liquidation

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Proportionate Liability – Wheelahan v City of Casey & Ors

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Sub-tenant obtains relief against forfeiture of head lease

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How does a tenant obtain relief against forfeiture of its lease? (Part 2)

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Personal Property Securities start date may be deferred again!

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Disclaimer of a lease not possible by the landlord’s liquidator

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Applications for contempt of Tribunal

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Ministerial determination valid

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How does a tenant obtain relief against forfeiture of its lease? (Part 1)

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FEA decision – special leave application filed

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Will the new 'landholder' model of land tax in Victoria affect me?

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A warrant for possession can only be executed once

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Severance of joint tenancies update

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Third floor determination

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New Small Business Commissioner appointed

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Third floor determination part 3

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Ministerial determination not invalid

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Third floor determination – part II

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Third floor determination not a valid exercise of power

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Robert Hay’s post – Breach of s 52 can amount to repudiatory conduct

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Intensification of Use – update on Amendments to Planning Permits

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Existing Use Rights

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When will the Personal Properties Securities Act 2009 commence?

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Recent press over shopping centre leases

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Link to article on disclosure to WA retail tenants

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Adverse possession of disused laneways

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Can a landlord’s failure to comply with s.52 consitute repudiatory conduct?

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When can a landlord call on a bank guarantee provided by a tenant who defaults under the lease?

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What effect does the Personal Property Securities Act 2009 have on retention of title clauses?

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Put in repair obligations not contrary to s.52 of the Retail Leases Act 2003

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Relief from forfeiture of a franchise agreement

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Timing is everything! Start date for PPSA deferred (again!)

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How does the new Personal Property Securities Act 2009 affect me?

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When to demolish?

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Key-money and assignments under the Retail Leases Act 2003 (Vic)

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Standard of repair under s 52 of the Retail Leases Act 2003 (Vic)

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Paying rent “without deduction” – the Full Court decision in Norman; re Forest Enterprises Limited v FEA Plantations Ltd [2011] FCAFC 99

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Legal costs under s 92 of the RLA 2003 when lease less than 1 year

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Article – interview of Mark McInnes

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Some comments on the new disclosure statement under the Retail Leases Act 2003 (Vic)

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Liability of replacement RE for damages for breach of the lease. Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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Multi-scheme leases. Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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Relief would not have been granted in any event – Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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Managed Investment Scheme discussion paper

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Does the replacement RE take its claim subject to equities against the old RE? Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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Does a right to seek relief from forfeiture transfer under ss 601FS and 601FT of the Corporations Act? Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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Exercising an option out of time: Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] QCA 150 (24 June 2011)

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“Reasonable time” in a s 146 notice – Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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Termination of leases and relief from forfeiture – Lontav Pty Ltd v Pineross Custodial Services [2011] VSC 278

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Amendment to Retail Leases Act 2003 – definition of “accountant”

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Is the breach capable of remedy? Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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Part 2 – Cross-referencing error in s 62 of the Retail Leases Act 2003 (Vic)

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Timbercorp Almonds decision – BOSI Security Services Limited v Australia and New Zealand Banking Group Limited & Ors [2011] VSC 255

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Proof of events of default and an overarching breach? Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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The compensation requirement in a s 146 notice. Primary RE Ltd v Great Southern Property Holdings Ltd & Ors [2011] VSC 242

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Validity of s 146 notices? Primary RE Ltd v Great Southern Property Holdings Ltd

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Primary RE Ltd v Great Southern Property Holdings Ltd & Ors – enforceability of maintenance obligations

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Primary RE Ltd v Great Southern Property Holdings Ltd – are purported forestry rights in fact leases?

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“Hotel” does not require accomodation

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Business records provided to assignee – s 60(1)(d) of the Retail Leases Act 2003 (Vic)

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Withholding consent to assignment of a retail premises lease

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Cross-referencing error in s 62 of the Retail Leases Act 2003 (Vic)

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Can the costs of repair and maintenance be recovered as an outgoing?

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The danger of WorkSafe notices when repair and maintenance is required

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Setting off costs of capital works

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Is an eBay business a retail premises?

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New disclosure statement – Retail Leases Act 2003 (Vic)

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Section 146 notices, relief against forfeiture and ss 601FS and 601FT of the Corporations Act

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Rent payable “without deduction”

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Goods left on premises after the expiry or termination of a lease

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Further elaborations on s.52 of the Retail Leases Act

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Setting off damages claims against the rent

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Quirk in s.64 nothing to get excited about

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Deposits in sales of land

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Amending the “interest” claimed in a caveat

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What is a ‘tenant in possession”: s42(2)(e) of TLA

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s.42(2)(e) of Transfer of Land Act 1958

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Section 146 notices

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The fog is beginning to clear

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Is a purchaser of land bound by covenants in a lease?

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What is the effect of a nominee clause?

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Everything must be in writing

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What are the duties of a mortgagee to a borrower when exercising its power of sale under the Transfer of Land Act?

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What do I need to know about VCAT’s Exclusive Jurisdiction over Retail Leases?

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Section 52 – when is the lease “entered into”?

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A warrant for possession can only be executed once – Part II

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Chapel Street Signage – Limits on permit conditions

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Tenants wins claim for new 5 year term

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High Court refuses to consider a mortgagee's duties on sale of mortgaged land

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No s.146 notice required for contractual right to terminate

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Moreland Planning Scheme Amended

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Registrar of Titles fails to comply with Model Litigant Guidelines

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