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Inside track: Property & Real Estate

21 May 2019

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

ICA app shares property hazard data
The Insurance Council of Australia (ICA) will introduce a mobile app giving residents access to the latest hazard data for their homes. ICA says MyHazards, available early next month, will help reduce “information asymmetry” between insurers and their customers, and increase pricing transparency (06 May 2019).  More...

Legaltech giant makes managing large-scale projects easier
GlobalX has made managing large-scale projects easier with the launch of Matter Centre Projects. The new service helps law firms and property developers efficiently manage the sale process of multi-lot developments and large-scale infrastructure projects (04 May 2019).  More...

Other countries around the world are planning new cities – so why aren’t we in Australia?
Future Australian city planning and development focuses largely on enlarging and intensifying the footprints of existing major cities. The current urban policy trajectory is in-fill development and expansion of the existing state capital mega-city regions, where two-thirds of the population live. But what is lost through this approach (02 May 2019).  More...

Growing cities must be federal policy priority
The Property Council of Australia has called for cities policy to be a priority for the next federal government. Ahead of the 18 May federal election, the Property Council has released a policy platform which includes several proposals to create great Australian cities (01 May 2019).  More...

The biggest ever change to building Green Star ratings
The Green Building Council of Australia (GBCA) is preparing to evolve its Green Star rating system, encouraging the built environment to achieve net zero carbon emissions (30 April 2019).  More...

Alleged false or misleading and unconscionable conduct by Quantum Housing
The ACCC has instituted proceedings in the Federal Court against Quantum Housing Group Pty Ltd (Quantum) alleging unconscionable conduct and false, misleading or deceptive representations to investors and property managers about its own rights, as well as the potential losses investors would face if they did not use Quantum’s approved property managers (29 April 2019).  More...

Construction, waste management facing tough time
Insurers are re-engineering portfolios and applying exclusionary language around cladding and aluminium composite material exposures following London’s Grenfell Tower disaster and a recent Victorian court case related to the Lacrosse building fire in Melbourne (29 April 2019).  More...

Investors caught up in messy battle with housing group
A housing group is facing allegations of unconscionable conduct and false, misleading or deceptive conduct relating to the National Rental Affordability Scheme (NRAS). According to the ACCC, the housing group also issued guidelines to investors and their existing property managers setting out how property managers could become approved by Quantum (29 April 2019).  More...

NSW

Private developers pay millions for Sydney's 'air rights' above heritage sites
As development and density reaches capacity in Sydney, purchasing the empty skies above heritage-listed sites remains one of the few avenues for developers to outgrow planning controls (02 May 2019).  More...

Queensland

Queen Street Mall pub site put up for tender by Brisbane City Council
Brisbane's Queen Street Mall is set to lose its Pig 'n' Whistle pub, after Brisbane City Council approved a decision to evict the popular watering hole and put out a tender to demolish the site and install a new tenant (08 May 2019).  More...

Inner Brisbane Apartment Market to Stabilise in 2019
Brisbane’s apartment market has been steadily declining since 2016, but as supply and demand rebalance, inner Brisbane’s apartment market is expected to stabilise this year and into 2020 (06 May 2019).  More...

Queensland Government’s Safer Buildings Program on track
The Queensland Government’s Safer Buildings Combustible Cladding Checklist program has cleared almost 14,000 private buildings, confirming they’re safe and secure for tenants and workers (05 May 2019).  More...

Plans to clear koala bushland at Belmont shelved
Queensland Government plans to clear 5.4 hectares of koala bushland under ministerial discretion for  a shooting range expansion in Brisbane have been shelved. A new plan now proposes to clear an extra 0.2 hectares instead (04 May 2019).  More...

Developer seeks approval for $1bn equestrian centre in Townsville
A Malaysian multinational logging corporation has set its sights on developing a $1 billion equestrian complex and resort just 30 kilometres north-west of Townsville targeted at Chinese tourists. The landowner Landmark Projects, which have owned the beachfront site north of Toolakea for over 25 years, are part of Rimbunan Hijau Group (02 May 2019).  More...

Build-to-Rent pilot project seeks industry interest
The Palaszcuk Government’s innovative Build-to-Rent Pilot Project is calling for Expressions of Interest to help deliver subsidised affordable rental housing (02 May 2019).  More...

PCA: Developer donation update
The High Court’s Spence v State of Queensland decision, contains two results with implications for property industry participants. Since the passage of the Bill, the Property Council has engaged with the ECQ to seek further clarity around who is a prohibited donor, and what is a prohibited donation (02 May 2019).  More...

Brisbane’s flat house prices ‘better than a fall’
Greater Brisbane house prices have stalled following six years of continuous annual growth, with prices flatlining over the year according to Domain Group's quarterly house price report (30 April 2019).  More...

Developer secures 100pc site ownership south of Brisbane
Residential property developer AVJennings announced the acquisition of the remaining 50 per cent of its greenfields residential development site south-west of Brisbane (26 April 2019).  More...

Published – articles, papers, reports

#WaterMates: The buyers and sellers of Australia’s most controversial water
Maryanne Slattery, Rod Campbell; The Australia Institute: 07 May 2019.
The Australia Institute has released this additional analysis of the controversial $80 million water deal between the Department of Agriculture and Water and a company domiciled in the Cayman Islands.  More...

Compound costs: How climate change is damaging Australia's economy
Will Steffen, Karl Mallon, Tom Kompas, Annika Dean, Martin Rice; Climate Council of Australia: 09 May 2019.
Australia’s financial regulators have recently made a call for action to deal with climate change, with the Reserve Bank of Australia, APRA and ASIC all citing risks posed by climate change as a central concern for the economy and financial stability.  More...

Climate cuts, cover-ups and censorship
Climate Council of Australia: 30 April 2019.
This publication provides a detailed overview of the Australian government’s approach to climate change since the election of the Liberal-National Coalition government in 2013. The period is characterised by cutting effective climate change programs, rejecting expert advice, ministers making publicly misleading claims, and a lack of a credible climate change policy.  More...

In practice and courts

Commonwealth

API & APIV Member Alert - Assigning Valuations
The purpose of this Member Alert is to provide Valuer Members with guidance regarding assigning Valuation Reports from one party to another party. As a general rule, assignment of a Valuation Report should not be undertaken (08 May 2019).  More...

API Member Alert: Update to the CoreLogic ‘Valuer Data Processing and Security Terms’ – Do not sign advice
This alert is directed to those Valuer Members and their Corporate Employers who undertake mortgage valuations via the ValEx/CoreLogic system. It is an update to previous alerts on this topic releases by the API on 11 March and 28 March 2019 (April 2019).  More...

Announcements, draft policies and plans released 2019

NSW

Community Participation Plan updated FAQs
The Environmental Planning and Assessment Act 1979 has been updated to make community participation central to the planning system. Supporting this objective is a new measure requiring all public authorities that have planning functions under the EP&A Act, including councils, to develop community participation plan (CPP). CPPs must be finalised and published on the ePlanning portal by 1 December 2019.  More...

Victoria

Planning Panels Victoria revised guide to expert evidence
PPV has undertaken a substantial revision of the Expert Witness Guide. Major changes include a 'plain English' review to minimise jargon; greater clarification between witnesses who have undertaken the background work and a witness who comes 'fresh' to a matter; an emphasis on electronic distribution of evidence; and recognition of other witnesses such as Government and Council staff and 'lay' witnesses. The new guidelines are in effect immediately (09 May 2019).

Complex land transfer transactions to be managed online
Land Use Victoria has mandated that complex land transfer transactions, currently managed via paper settlement, must be lodged and managed online from August 2019. This applies to conveyancers and lawyers acting for a party or for themselves.

Duties Online enhancements, which are scheduled to take effect from 17 June 2019, will: Lower administration costs; Improve settlement completion rates; Mean duty is calculated prior to settlement; Increase data security; Ensure information is viewed and agreed to by all parties before settlement

Queensland

Transcript - Public briefing - Consideration of subordinate legislation - Held on 1 May 2019
Proof transcript of the public briefing - Consideration of Subordinate legislation No. 011 of 2019, Water Plan (Condamine and Balonne) 2019, and No. 012 of 2019, Water Plan (Border Rivers and Moonie) 2019.
State Development, Natural Resources and Agricultural Industry Development Committee - Examination of Portfolio Subordinate Legislation inquiry.  More...

PCA: Government calls for Build-to-Rent EOIs
The Queensland Government has called for Expressions of Interest (EOI) for its Build-to-Rent Pilot Project, announced in December 2018. The call for EOIs follows the Registration of Interest process undertaken in early 2019. For more information on the Build-to-Rent pilot project, or to register an EOI, stage 1 closes on 24 May 2019.  More... 

Land title practice manual reminder: Paper certificates of title are changing
Please be aware that the way in which the Titles Registry deals with paper certificates of title (paper CTs) is changing. As of 1st October 2019, paper CTs will no longer have any legal effect. From 1st October 2019, there will no longer be the option to lodge a Form 19 - Application for certificate of title.
Similarly, a Form 17 – Request to Dispense (with production of a CT) will become redundant as of 1st October 2019. More...

Safer Buildings combustible cladding checklist ticks over to Part 2
The Part 1 deadline elapsed on 29 March 2019, with some buildings required to continue to Part 2.
Buildings that need further assessment following the conclusion of Part 1 will have until 29 May 2019 to file a building industry professional report to the QBCC.  More...

Consultation: Yeronga proposed development scheme for a mixed-use precinct in the Yeronga Priority Development Area (PDA).
The scheme establishes a planning framework to transform the site and sets out intended land uses, development criteria and infrastructure envisaged for the PDA. Submissions can be made between 1 April and 17 May.  More...

Cases

Victoria

McRae v Mackrae-Bathory [2019] VSC 298
CAVEAT – Removal of caveats – Application under s 90(3) of the Transfer of Land Act 1958 (Vic) for removal of caveats over two properties registered in the name of the plaintiff – Caveats lodged by person claiming interest by virtue of an implied, resulting or constructive trust – Caveat inhibiting settlement of sale of one of two properties the subject of the claimed interest – Defendant’s claim for a constructive trust in respect of both properties persuasive but uncorroborated – Balance of convenience favours the removal of the caveat at settlement on undertaking of the plaintiff to use the net proceeds of the sale of the property to reduce mortgage secured over both properties – Goldstraw v Goldstraw [2002] VSC 491; Piroshenko v Gosjman (2010) 27 VR 489; Percy & Michele Pty Ltd v Gangemi [2010] VSC 530; Sylina v Solanki [2014] VSC 2; Carbon Black Lab Pty Ltd v Launer [2015] VSCA 126 referred to.
TRUSTS – Implied, resulting or constructive trust – Whether a basis in fact and law for finding a resulting or constructive trust in favour of the caveator – Sufficient basis for such a finding on an application for removal of the caveats – Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583; Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137; Cressy v Johnson (2009) VSC 52 referred to.

Perpetual Limited v Myer Pty Ltd [2019] VSCA 98
LEASES – Rectification – Long-term commercial lease to anchor tenant in shopping centre – Formula for calculating tenant’s contribution to increases in variable outgoings contains alleged mistake – Applicants contend common intention evident from earlier draft heads of agreement – Where draft heads of agreement one step in continuing negotiation process – Applicants unable to provide alternative formulation which reflects alleged common intention – Necessary to prove true intention not merely that some mistake has been made – Energy World Corporation Ltd v Maurice Hayes & Associates Pty Ltd [2007] FCAFC 34 applied – No convincing proof provided to prove alleged common intention – Simic v New South Wales Land and Housing Corporation [2016] HCA 47; (2016) 260 CLR 85; Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 applied.
LEASES – Construction – Where the tenant’s bargaining position was strong – Where formula as written leads to peculiar result but unambiguous and capable of sensible operation – Alleged mistake not noticed for 12 years or acted upon for 16 years – Lease negotiated over long period by well-represented parties – Court not satisfied formula absurd or mistaken – Westpac Banking Corporation v Tanzone Pty Ltd [2000] NSWCA 25 considered – Seymour White Constructions Pty Ltd v Oswald Bros Pty Ltd (in liq) [2019] NSWCA 11; Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184; (2014) 89 NSWLR 633 applied.

Primrose Meadows Pty Ltd v River View Pty Ltd [2019] VSC 263
LEASES AND TENANCIES – Retail leases – Renewal of lease upon exercise of option by tenant – Landlord bound to grant and tenant bound to take lease upon terms stipulated in lease – Lease in equity arises upon tenant exercising option to renew even where rent to be applied for further term has not been agreed or determined – Tenant entitled to option to renew – No evidence of evidence of any notice of default – Todburn Pty Ltd v Taormina International Pty Ltd (1990) 5 BPR 11,173 – Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 – Retail Leases Act 2003, s 27.
AGENCY – Where agent authorised both to negotiate agreement and to enter agreement – Berkely Pty Ltd v Millbrook Finance Pty Ltd [2018] VSC 213 – Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Company Pty Ltd [1975] HCA 49; (1975) 133 CLR 72 – Where there is no disposition of interest in land there is no requirement that the agent be authorised in writing – Instruments Act 1958, s 126(1).
EVIDENCE – Failure to call witness – Rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 – Does not apply against a defendant until the plaintiff has proved a case for the defendant to answer – Does not require a party to give cumulative evidence – Tenth Vandy v Natwest Markets Australia [2012] VSCA 103; (2012) VConvR 64,366 – Does not directly apply to Victorian Civil and Administrative Tribunal proceedings – Maund v Racing Victoria Ltd [2016] VSCA 132 – Victorian Civil and Administrative Tribunal not compelled to apply rule – Manly Council v Byrne [2004] NSWCA 123 – Rule only applies where the missing witness would be expected to be called by one party rather than another – Payne v Parker [1976] 1 NSWLR 191 – An adverse inference may only be drawn where failure to call witness is not satisfactorily explained – Cadwallader v Bajco Pty Ltd [2002] NSWCA 328. 

Queensland

Reynolds v Body Corporate for Mount View Apartments [2019] QCAT 118
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INTERLOCUTORY PROCEEDINGS – preliminary question referred for separate determination – whether successful party should be awarded costs of determination – whether costs of determination should be reserved to the final determination of the proceeding. Queensland Civil and Administrative Tribunal Act 2009 Qld ss 100, 102.

Cases to 06 May 2019

Moramou2 Pty Ltd v Brisbane City Council [2019] QPEC 18
PLANNING AND ENVIRONMENT – APPEAL – appeal against the decision to give an enforcement notice in respect of a backpacker hostel – whether there has been an unlawful increase in the number of residents. Planning and Environment Court Act 2016 Qld.

Legislation

Queensland

Bills

Subordinate legislation as made
No 67 Planning and Environment Court (Mediation) Amendment Rule 2019 – 10 May 2019
No 68 Aboriginal Land (Girramay and Wulli Wulli) Amendment Regulation 2019 – 10 May 2019

Contacts:

Sydney
Robina Kidd, Partner
T: +61 2 8083 0454
E: robina.kidd@holdingredlich.com

Vanya Lozzi, Partner
T: +61 2 8083 0462
E: vanya.lozzi@holdingredlich.com

Cameron Sheather, Partner
T: +61 2 8083 0461
E: cameron.sheather@holdingredlich.com

Breellen Warry, Partner
T: +61 2 8083 0420
E: breellen.warry@holdingredlich.com

Melbourne
Chris Lovell, Chairman
T: +61 3 9321 9832
E: chris.lovell@holdingredlich.com

Lou Farinotti, Senior Partner
T: +61 3 9321 9861
E: lou.farinotti@holdingredlich.com

Chris Brodrick, Partner
T: +61 3 9321 9804
E: christopher.brodrick@holdingredlich.com

Lisa Cody, Partner
T: +61 3 9321 9872
E: lisa.cody@holdingredlich.com

Richard Skopal, Partner
T: +61 3 9321 9866
E: richard.skopal@holdingredlich.com

Joseph Monaghan, Partner
T: +61 3 9321 9857
E: joseph.monaghan@holdingredlich.com

Brisbane
Ron Eames, Partner
T: +61 7 3135 0629
E: ron.eames@holdingredlich.com

Katie Miller, Partner
T: +61 7 3135 0606
E: katie.miller@holdingredlich.com

Peter Nugent, Partner
T: +61 7 3135 0632
E: peter.nugent@holdingredlich.com

Gerard Timbs, Partner
T: +61 7 3135 0644
E: gerard.timbs@holdingredlich.com

John Wei, Partner
T: +61 7 3135 0688
E: john.wei@holdingredlich.com 

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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