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Inside track: Property & Real Estate

12 February 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Immigration boosts Australian house prices by as much as $6500 a year: Study
New migrants moving to capital cities and major regional centres are helping to boost house prices by as much as $6500 each year, a new study has revealed (31 January 2020).  More...

Office perks to drive occupancy
Landlords will have to look at offering better perks and amenities to their tenants, with the latest figures showing a weak result in the take-up of office space across Australia's office markets last year,  according to CBRE’s latest occupier survey report (30 January 2020).  More...

The biggest court battles in property this year
Action returns to Australia’s courtrooms this year as some of the country’s biggest names in property and construction do battle in long-standing and significant disputes (27 January 2020).  More...

Before we rush to rebuild after fires, we need to think about where and how: A national policy
Before we rush to rebuild our homes, roads and infrastructure we need to review planning policies and bushfire hazard maps produced by state fire services and have their involvement in future decision making around this area (25 January 2020).  More...

ATO warns councils over property reporting
The Australian Taxation Office has issued a warning to local councils after finding “systemic” failures in reporting property sales. The ATO says under GST at Settlement requirements introduced in 2018 big and small government bodies are required by law to report GST in their business activity statements when they supply new residential property or potential residential land (22 January 2020).  More...

First home buyer ‘FOMO’ boosts demand
Just over half, 51 per cent, of first home buyers were planning to buy property in the next 12 months, compared to 38 per cent in the second quarter of last year, according to ME’s fourth quarterly property sentiment report (30 January 2020).  More...

PCA: Novel coronavirus
As governments step up their response to the Novel coronavirus outbreak, property owners and managers may also be receiving inquiries from tenants and building occupants on ways to prevent the spread of the virus (30 January 2020).  More...

PCA: Property Industry support for bushfire relief and recovery
Australia’s property industry is supporting emergency relief efforts and is also preparing to provide practical support for the long process of recovery and reconstruction for bushfire-affected communities (29 January 2020).  More...

How urban trend called 'Facadism' is taking over Australian cities
Critics of facadism - the process of demolishing all but the front of an old building to make way for a modern replacement - say the architectural trend 'tokenises' heritage. But heritage experts say the new form of historical preservation is on the rise as urban planners are forced into a corner by the needs of today's cities (28 January 2020).  More...

The biggest court battles in property this year
Action returns to Australia’s courtrooms this year as some of the country’s biggest names in property and construction do battle in long-standing and significant disputes (27 January 2020).  More...

30-year-old Lands Act to be reclaimed
The Department of Finance is to review the Lands Acquisition Act 1989, the key piece of legislation used by the Commonwealth to acquire and dispose of interests in land (27 January 2020).  More...

The weakest link: Back to the drawing board when building in the bush
Experts say more Australians must consider their home’s bushfire resilience and some communities should rethink their town plan (26 January 2020).  More...

Before we rush to rebuild after fires, we need to think about where and how: A national policy
Before we rush to rebuild our homes, roads and infrastructure we need to review planning policies and bushfire hazard maps produced by state fire services and have their involvement in future decision making around this area (25 January 2020).  More...

Approvals data highlights the need for medium density
Earlier this month, the Australian Bureau of Statistics released detailed dwelling approval data to November 2019.
Breaking down approved dwellings by local government area highlights a concentration of new development in south-east regional and metropolitan centres (23 January 2020).  More...

ATO warns councils over property reporting
The Australian Taxation Office has issued a warning to local councils after finding “systemic” failures in reporting property sales. The ATO says under GST at Settlement requirements introduced in 2018 big and small government bodies are required by law to report GST in their business activity statements when they supply new residential property or potential residential land (22 January 2020).  More...

New survey shows sustainability on the rise
A new survey from Stockland reveals evolving preferences among residential buyers for sustainability, especially environmental and community features (21 January 2020).  More...

Bushfire-destroyed homes should not be rebuilt in riskiest areas, experts say
Planning experts call for state governments to buy back land from people in most bushfire-prone areas (19 January 2020).  More...

NSW

Mirvac lodges new Darling Harbour development plans
Mirvac has scrapped plans for a commercial office tower at its Harbourside Shopping Centre in favour of an unsolicited proposal to the NSW government (30 January 2020).  More...

Sydney’s rental availability has increased as we head into 2020
Vacancy rates increased in Sydney during the month of December, rising 0.2 per cent to 3.4 per cent. This is particularly evident in Sydney’s Inner Ring where rates increased from 2.4 per cent to 3.4 per cent suggesting tenants are experiencing a rise in availability across the metropolitan areas (21 January 2020).  More...

Queensland

Springfield seeks development partner for $88bn masterplan
Maha Sinnathamby’s Springfield City Group has appointed Moelis Australia to lead the global search for a development partner for its $88 billion Springfield masterplan, west of Brisbane (30 January 2020).  More...

Final land sold in Woree Business and Industry Park
The last remaining blocks of land within the 48-lot Woree Business and Industry Park have now sold, as new investment fills the Cairns precinct (30 January 2020).  More...

$100 million Land Restoration Fund applications now open
Applications are now open for the Palaszczuk Government’s first round of investments in the flagship $500 million Land Restoration Fund (28 January 2020).  More...

Brisbane’s South Bank 2050 masterplan team announced
A consortium to deliver South Bank's 30-year masterplan has been appointed, as part of plans to transform the 42-hectare riverfront precinct in Brisbane’s inner city (28 January 2020).  More...

Developer submit plans for $150m Lamington Markets
A new development known as the Lamington Markets aims to transform a 7333sq m site in the Brisbane inner-ring suburb of Lutwyche, subject to approvals (24 January 2020).  More...

Developer lodges plans for $50m Broadbeach Tower
Gold Coast developer Andrews Projects has submitted a proposal for an 18-storey apartment building at Broadbeach (23 January 2020).  More...

Brisbane's ‘Central Park’ masterplan revealed
A masterplan for the transformation of Victoria Park golf course into a 45-hectare public parkland in Brisbane's inner north has been unveiled (21 January 2020).  More...

In practice and courts

Commonwealth

Federal Court of Australia – support to those impacted by bushfires
Support is available to those who have been affected by the disaster and require assistance in relation to a current or prospective matter before the Court. The Court has appointed a Judicial Registrar to act as the Court’s national bushfires relief coordinator.
Any requests for urgent assistance in particular by any necessary adjournment or variations to timetables or preparation for hearings should be made to the relevant duty judge, details of which can be found on the Court’s website.

API: Technical Information Paper (TIP) – Valuations for Mortgage and Loan Security Purposes released
The Australian Valuation Standards Committee has updated the API TIP Valuations for Mortgage and Loan Security Purposes (ANZVTIP 12) to incorporate NZIV requirements so that we have a combined Australian and New Zealand paper. This TIP is effective from 1 January 2020. The updated TIP replaces ANZVTIP 12 in Australia and New Zealand. To download a copy of this TIP, click here (22 January 2020).

Review of the Lands Acquisition Act 1989: Discussion paper
Details of how to make a submission are available on the Department of Finance’s website. Submissions close on 17 April 2020.

National Consumer Credit Protection Amendment (Small Amount Credit Contract and Consumer Lease Reforms) Bill 2019 (No. 2)
On 5 December 2019, the Senate referred the above inquiry for report by 6 April 2020. This Bill amends the regulatory framework for Small Amount Credit Contracts (commonly known as payday loans) and consumer leases (known as rent-to-buy schemes). Submissions close 21 February 2020.   More...

Department of Environment and Science Consultation: Draft South East Queensland Koala Conservation strategy
Open to 31 January 2020. Have your say on the draft SEQ Koala Conservation Strategy.  More...

Land Restoration Fund—applications opening soon
The State Government has announced the Land Restoration Fund to support farmers, landowners and traditional Owners develop carbon farming projects. Applications for the 2020 investment round will open on 28 January 2020 and include a financial support package to allow applicants to obtain professional advice, including legal advice. More information on the Land Restoration Fund and eligibility criteria can be found here (January 2020).

Implementation of the Spit Master Plan Bill 2019
State Development, Natural Resources and Agricultural Industry Development Committee
Consultation closes 07 February 2020.  More...

Cases

Miller v Martin [2020] VSCA 4
REAL PROPERTY – co-ownership of land – whether co-owned property held on resulting or constructive trust or as partnership property – whether power of sale under Property Law Act 1958 s 233 required consideration of entitlements upon dissolution of partnership – property had ceased to be partnership property – Property Law Act 1958 ss 228 and 233
PRACTICE AND PROCEDURE – application for reinstatement of appeal - Supreme Court (General Civil Procedure) Rules 2015 r 64.45 – Summons seeking production of respondents’ solicitors’ files devoid of merit and bound to fail – reinstatement refused
PRACTICE AND PROCEDURE – jurisdiction of Victorian Civil and Administrative Tribunal under Property Law Act 1958 s 234C – whether ‘the matter which is the subject of the application relates to a proceeding under the Partnership Act 1958’ – ‘Proceeding under’ an Act where authorised by, provided for, or in respect of a cause of action created by the Act – ‘proceeding’ where jurisdiction invoked by an initiating process – no ‘proceeding under’ Partnership Act 1958 – Property Law Act 1958 pt IV considered – Re Struthers (liq of Project Management, Architecture and Construction Interior Pty Ltd) (No 3) (2005) 56 ACSR 238; [2005] NSWSC 1113 applied

Wildlife of the Central Highlands Inc v VicForests [2020] VSC 10
PRACTICE AND PROCEDURE – interim injunction – whether serious question to be tried – whether balance of convenience favours granting injunction – timber harvesting of State forests – whether bushfires affect application of Code of Practice – threatened species of Greater Glider, Powerful Owl, Sooty Owl and Smoky Mouse – Conservation, Forests and Lands Act 1987 (Vic) – Flora and Fauna Guarantee Act 1988 (Vic) – Sustainable Forests (Timber) Act 2004 (Vic) – Environment East Gippsland Inc v VicForests [2009] VSC 386 – Environment East Gippsland Inc v VicForests [2010] VSC 335; (2010) 30 VR 1

Cooltime Solutions Pty Ltd v Viva Energy Australia Pty Ltd (Building and Property) [2020] VCAT 83
Service station lease – retail Lease – construction of lease term – market review clause – Landlord invoked process “out of time” – whether time of the essence in rent review clause – laches – delay – acquiescence – estoppel by convention – waiver – the parties are directed to file orders giving effect to the accompanying reasons by 11 February 2020

Paolini v Apostoleris (Building and Property) [2020] VCAT 37
Co-owned property – S.233 Property Law Act 1958 – adjustment of interests of co-owners – rejection of respondent’s claim that the lessee of the subject property was a corporate entity controlled by the respondent – finding that the respondent himself was lessee of the subject property and, as such, responsible for payment of rent and outgoings – compensatory adjustment of proceeds of sale made in favour of the applicant to account for rent not paid by the respondent and municipal rates paid by the applicant

In the Matter of Kornucopia Pty Ltd (No 4) [2020] VSC 7
CORPORATIONS – winding up – failure to comply with statutory demands – presumptions of insolvency enlivened – abuse of process – applications made under Corporations Act 2001 (Cth) s 459S – genuine disputes and offsetting claims – offsetting claim against landlord of property in relation to tenant being deprived of quiet enjoyment – genuine dispute in relation to professional fees charged by law firm to client – whether creditor has improper purpose in commencing winding up application – whether VCAT, Magistrates Court or Costs Court preferable forums for determination of disputes – no prospects of success in defendant’s grounds – no evidence of solvency – leave not granted – grounds cannot be raised but fail in any event – Australian Securities and Investments Commission v Lanepoint Enterprises Pty Ltd [2011] HCA 18; (2011) 244 CLR 1, applied – Fortuna Holdings Pty Ltd v Deputy Federal Commissioner of Taxation [1978] VicRp 9; [1978] VR 83, not followed – Perpetual Nominees Ltd v Masri Apartments Pty Ltd [2004] NSWSC 500; (2004) 49 ACSR 714, not followed
PRACTICE AND PROCEDURE – apprehended bias – statements made by Judge in directions hearing precluding defendants from making further application to file evidence – subsequent statement clarified that further application would need to rely on fresh evidence and new grounds – subsequent statement qualified earlier statement and negated reasonable apprehension of bias which might have otherwise arisen – Johnson v Johnson [2000] HCA 48; (2000) 174 ALR 655, applied.
PRACTICE AND PROCEDURE – application by defendants for leave to file evidence of solvency at trial after close of evidence and plaintiffs’ closing submissions – application by defendants to adjourn trial to new year – Numerous breaches of court orders by defendants preceding the trial – numerous indulgences and extensions given to the defendants – no sufficient explanation of delay – extensive breaches of overarching obligations – dishonest, underhanded, tactical and strategic conduct – Civil Procedure Act 2010 (Vic) ss 17, 18, 19, 20, 21, 22, 23, 24, 25, 28, 29 – Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 258 ALR 14, applied – Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625, applied.

Gregorich v Khouri & Ors [2020] VSC 5
PRACTICE AND PROCEDURE – leave sought to amend defences – Supreme Court (General Civil Procedure) Rules 2015, r 36.01 – Prejudice – loss of opportunity to take a step in the proceeding – Amcor Packaging (Australia) Pty Ltd & Ors v Australian Corrugated Box Co Pty Ltd & Ors [2013] VSCA 223 – failure to adequately explain or show good cause for change of position – McKenzie v Commonwealth of Australia [2001] VSC 361; Jeanes v Commonwealth of Australia [2005] VSC 488; Collie v Merlaw Nominees Pty Ltd (in liq) & Anor [2001] VSC 39 – Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
The terms of that agreement are in dispute but the investment was made in the form of an unsecured loan of funds to be applied (at least initially) to the development of a group of properties being constructed in Davey Street, Frankston

Hart v Commissioner of State Revenue (Review and Regulation) [2020] VCAT 68
Review and Regulation List – Land Tax Act 2005 (Vic), ss 54(1), 56(1) – principal place of residence exemption – whether ‘casual residency’ sufficient to establish that property used as principal place of residence – whether intention to resume ‘casual residency’ satisfies requirements of temporary absence provision

Body Corporate Scheme for Arila Lodge v Thompson [2019] QDC 272
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the defendant applied for the striking out of the whole of the plaintiff’s further amended statement of claim – where the further amended statement of claim contains allegations which relate to part of the claim upon which summary judgment has previously been awarded – whether the further amended statement of claim ought be struck out in its entirety – whether parts of the further amended statement of claim ought be struck out due to the relevant cause of action having merged in the summary judgment
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the defendant applies for summary dismissal of the plaintiff’s claim – where the basis for the defendant’s summary dismissal application was not pleaded – whether summary dismissal ought be awarded

Goldthorpe v Limcids Pty Ltd & Anor [2019] QDC 270
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – where the plaintiffs sold a bakery business and the land on which it operated to the first defendant – where the plaintiffs provided a loan to the first defendant to finance the sales – where the second defendant was guarantor to the loan agreement – where the plaintiffs allege that the first defendant breached obligations in the loan agreement to provide documentation and failed to remedy the breaches – whether the plaintiffs are entitled to sue for the loan amount and interest

Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd & Ors [2019] QCA 276
The Land Appeal Court dismissed appeals LAC006-18 and LAC007-18 from decisions of the Land Court ordering the disclosure, without redaction, of certain contractual provisions relating to take or pay elements of rail contracts. It is common ground that those documents are commercially sensitive
Order 3 made by the Land Appeal Court in appeal LAC002-19 be stayed pending determination of the application for leave to appeal and the appeal from the decisions of the Land Appeal Court in appeal LAC006-18 and LAC007-18 

Cases to 20 January 2020

Conlon & Ors v QGC Pty Ltd [2020] QLC 3
Application for injunction under the Land Court Act 2000

Deimel v Phelps [2020] QLC 2
ENERGY AND RESOURCES – MINERALS – COURTS AND TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – COSTS – where an application for a mining lease was referred to the Court for a mining objection hearing – where objection was withdrawn – whether costs can be awarded to a self-represented litigant – where the Court declined to award costs for the litigant’s time and for loss of mine production – where the Court awarded costs for out-of-pocket expenses incurred where the Applicant attended as a potential witness. Land Court Act 2000 Qld s 4(1), s 7, s 24, s 34, s 52A, s52B; Land Court Rules 2000 Qld r 4

Gulp! Catering Solutions Pty Ltd t/as Grill'd Chermside v Scentre Management Limited & Anor [2020] QCAT 11
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTION FOR LESSEES – INFORMATION REQUIREMENTS – where licensee seeks compensation from lessor – where licensee alleges false statements by lessor to lessee – whether licensee has right of action
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application by licensee to join lessee to proceeding – whether joinder appropriate
Queensland Civil and Administrative Tribunal Act 2009 Qld s 42(1); Retail Shop Leases Act 1994 Qld s 43AA(a)

Chief Executive, Department of Justice and Attorney General v Jones & Anor [2020] QCAT 10
PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – DISCIPLINARY PROCEEDINGS – whether grounds for disciplinary action – real estate agent not licensed – operated a trust account when not licensed – representations that tenant had paid rent when hadn’t – failure to pay bond money to Residential Tenancies Authority – continued to operate trust account when directed not to do so – audit of trust account 10 months and 8 days after due date – appointment of receiver – appropriate penalty
Agents Financial Administration Act 2014 Qld; Agents Financial Administration Regulation 2014 Qld; Property Occupations Act 2014 Qld; Queensland Civil and Administrative Tribunal Act 2009 Qld

Sorensen & Ors v Commissioner of State Revenue [2020] QCAT 7
TAXES AND DUTIES – STAMP DUTIES – EXEMPTIONS – CONVEYANCE OR TRANSFER ON SALE OF REAL PROPERTY – QUEENSLAND – where transfer from company to individual upon surrender of shares granting right of occupancy – whether community title schemes exemption applies
TAXES AND DUTIES – STAMP DUTIES – ASSESSMENT AND AMOUNT PAYABLE INCLUDING FINES – GENERALLY – QUEENSLAND – where five simultaneous transfers – where one transferor and three transferees – whether transactions to be aggregated. Duties Act 2001 Qld s 30, s 133

Fu Manchu Dining Pty Ltd v SP (Qld) Pty Ltd [2019] QCAT 394
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OTHER MATTERS – where tenant seeks compensation from landlord for costs incurred on account of landlord’s defaults – whether damage suffered – whether landlord liable
LANDLORD AND TENANT – RENT – BREACH OF COVENANT TO PAY – ACTIONS TO RECOVER RENT OR DAMAGES – ACTION TO RECOVER RENT – where landlord seeks order for payment of arrears of rent and outgoings – whether tribunal has jurisdiction. Retail Shop Leases Act 1994 Qld s 103

Aqualine Pty Ltd v Ponticello Properties Pty Ltd [2019] QCAT 393
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – OBLIGATIONS, PROHIBITED TERMS AND PROTECTIONS FOR LESSEES – OTHER MATTERS – implied right to compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) - where no implied right to compensation under a periodic tenancy existed prior to legislative amendment – whether a lessee on a periodic tenancy created by holding over is entitled to claim compensation under section 43 of the Retail Shop Leases Act 1994 for an action, failure to act or an event that occurred prior to the legislative amendment – whether the amendment operates retrospectively
Acts Interpretation Act 1954 Qld s 20; Legislative Standards Act 1992 Qld s 4; Retail Shop Leases Act 1994 Qld s 13, s 42, s 43; Retail Shop Leases Amendment Act 2016 Qld

Legislation

Commonwealth

Regulation

Taxation Administration (Remedial Power—Disclosure of Protected Information by Taxation Officers) Determination 2020
29/01/2020 – This instrument modifies the operation of the taxpayer confidentiality rules in Division 355 of Schedule 1 to the Taxation Administration Act 1953. The modification ensures that a taxation officer can disclose protected information of a deceased person to the registered tax agent, BAS agent, or legal practitioner of an executor or administrator of the estate of the individual who has died.

Queensland

Subordinate legislation as made
No 5 Rural and Regional Adjustment (2019–2020 Extraordinary Bushfires Disaster Recovery Funding) Amendment Regulation 2020

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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