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Inside track: Property & Real Estate

26 July 2021

#Property, Planning & Development

Inside track: Property & Real Estate

In the media


REIA is urging Government to improve supply planning around housing development
Real Estate Institute of Australia (REIA) is urging the Federal and State governments to improve planning approval times in a bid to address the diminishing housing supply (15 July 2021).  More...

Offshore investors step up activity in Australian commercial space
According to CBRE, Australia has led Pacific commercial real estate deal activity, with foreign investors pumping in $19.6 billion. The industrial and logistics sector remains Australia's most sought-after commercial investment sector, with offshore buyers purchasing $5.4 billion in Pacific assets in H1 (15 July 2021).  More...

Third of Australian homes cheaper to buy than rent
There is even more incentive for people to quit the big smoke— Sydney and Melbourne—with homes across the rest of the country generally cheaper to buy than rent (14 July 2021).  More...

Sensible approach to Royal Commission Reforms to benefit home owners and investors
Real Estate Institute of Australia has welcomed recent exemptions provided to real estate for both deferred sales models for home and landlord insurance as well as exemptions for property and insurance claim handling forms (13 July 2021).  More...

Industrial property take-up hits new high
A reshaping of Australia’s economy drove the biggest ever take-up of industrial space in the June quarter, as industries such as construction and manufacturing secured capacity in response to their growing need to hold stock on shore in response to pandemic-disrupted global supply chains (12 July 2021).  More...

Healthcare asset sales surge as REITs increase exposure
Healthcare asset sales volumes and prices are hitting record levels as new research shows investment by listed real estate investment trusts -increased 12-fold in the past 18 months (11 July 2021).  More...

Dwelling approvals decline in May
The number of dwellings approved fell 7.1 per cent in May, following a 5.7 per cent decline in April, according to data released by the ABS. Daniel Rossi, ABS Director of Construction Statistics, said: "The fall in the total number of dwellings approved in May was driven by a 10.3 per cent fall in private sector houses” (05 July 2021).  More...


Value-seeking tenants spur tightening of Melbourne vacancies
The number of empty rental properties in Melbourne has reduced rapidly during June as more tenants take advantage of cheaper rents in more central locations, figures from SQM Research show (13 July 2021).  More...

Research shows CBD economy will bounce back
New research by Deloitte Access Economics shows Melbourne’s CBD economy will grow by $6 billion in 2021 and is on-track to return to pre-COVID levels by late 2024 (12 July 2021).  More...

First existing Australian building to achieve WELL Platinum certification
A 48-year-old office tower in Melbourne CBD has become the first existing building in Australia to achieve WELL Certification at the Platinum level. Owned by private property group Kamirice, the building located at 500 Collins Street was awarded the highest-level certification under the IWBI’s WELL Building Standard (09 July 2021).  More...


Support for commercial tenants and landlords under COVID fighting fund
Eligible commercial tenants and landlords will receive greater support and certainty during the current restrictions with the NSW Government acting quickly to implement the Retail and Other Commercial Leases (COVID-19) Regulation 2021 as part of the $5.1 billion COVID-19 economic support package (15 July 2021).  More...

Certificates of title on their way out: Abolition date announced
New legislation that will enable 100 per cent electronic lodgement of land transactions in New South Wales will kick in on 11 October 2021. It’s part of a state government plan to “transition conveyancing into the digital age” and move away from paper-based processes (09 July 2021).  More...

Construction watchdog: Body corporates are not reporting known defects
Fewer than a fifth of new buildings in NSW with serious defects had been reported to the government officials charged with cleaning up the construction industry and restoring public confidence (03 July 2021).  More...


Government fines and bans letting agent for ripping off Queenslanders
A Brisbane letting agent has been fined more than $20,000 and banned from working in the real estate industry for five years after ripping off Queensland clients (16 July 2021).  More...

Evans Long secures tenants in Gold Coast Athletes Village project
Evans Long has secured tenants for the first private development within the former Gold Coast 2018 Commonwealth Games Athletes Village. Sanctuary Early Learning Adventure and Griffith University committed to tenanting the $80-million building within the renamed Lumina Precinct in Southport (15 July 2021).  More...

Native title recognised for Wangkamahdla people
A native title determination will “change the lives” of traditional owners the Wangkamahdla People in central west Queensland. Resources Minister Scott Stewart said a determination recognising the Wangkamahdla People’s rights under native title to more than 3 million hectares of land to the west and southwest of Boulia has been made in the Federal Court (15 July 2021).  More...

Gold Coast locals to meet over glut of 'bulky' high-rises approved in trendy suburb
Main Beach is the latest Gold Coast suburb mobilising to fight against the large number of high-rise towers being approved in the trendy suburb (13 July 2021).  More...

Plan to make it harder to kick tenants out a ‘breach of human rights’
Two bills are before Queensland Parliament to reform the state’s rental system and bring more certainty to Queensland’s 1.8 million renters and landlords. The Greens’ plan would cap rent increases to once every 24 months by no more than CPI, ban rental bidding, and end “no grounds evictions”, even when a fixed-term contract was due to expire or the owner wanted to sell the property (8 July 2021).  More...

Fears Queensland rental reform bills will deter investors
Rental reform bills to cap increases, ban rental bidding and scrap no ground evictions are being considered in Queensland. The bills, introduced to parliament in May and June, are open for public comment until July 13 (07 July 2021).  More...

Flood map update alters thousands of Brisbane property flood levels
More than 30,000 Brisbane properties are now deemed less likely to flood after Brisbane City Council recently updated its flood maps — but about 7,000 properties have had their flood levels increased (06 July 2021).  More...

Free help for builders and homeowners caught in COVID storm
Homeowners and builders caught in the “perfect storm” of rising prices and material shortages now have access to free help to get their homes built. The Accelerated Builder / Consumer Dispute service went live on July 1 with free professional mediators to help frustrated homeowners and embattled builders find a way to get their homes completed (05 July 2021).  More...

Published – articles, papers, reports

Australian Bureau of Statistics
05 July 2021 Building Approvals, Australia

In practice and courts


ATO Alerts - Granny flat arrangements and CGT
A granny flat arrangement is a written agreement that gives an eligible person the right to occupy a property for life. From 1 July 2021, capital gains tax (CGT) does not apply when a granny flat arrangement is created, varied or terminated.  More...

Announcements, Draft Policies and Plans released 2021

NSW Planning

NSW Revenue: 2021 land tax COVID-19 relief - Guidelines (1 July 2021 – 1 December 2021)
The NSW Government has introduced measures to provide relief to commercial and residential landowners, 1 July 2021 - 31 December 2021 (14 July 2021).  More...


Accelerated Builder/Consumer Dispute (ABCD) goes live
The Queensland Government has launched the Accelerated Builder/Consumer Dispute which can be used by individuals and builders, who have been unable to reach resolution on pricing through other channels. Our members who are QBCC members, affected by supply or trade shortages and have entered into a residential contract over $150,000, are eligible to use this framework to resolve disputes with their customers.
You can read Minister de Brenni’s media statement here.

Brisbane Industrial Strategy Review 
The Brisbane City Council has released Our Productive City: Brisbane Industrial Future, a draft industrial strategy which is open for public consultation until 16 August 2021.

Seeking public submissions for the Noosa Area Draft Management Plan
Open until 25 July 2021. Have your say on the future management of Noosa Area’s national park and conservation reserves.


K7 Developments Pty Ltd v Abbotsford Estates Pty Ltd [2021] VSC 422
CONTRACT – breach of contract of sale of land – delayed settlement of contract of sale –specific performance sought by purchaser - whether each party was ready, willing and able to settle the contract – agreement to extend settlement date at request of purchaser but settlement then requested on original date – whether terms of agreement to extend settlement period govern rights and obligations – counterclaim seeking damages arising from delayed settlement – construction of contract - whether purchaser in default or otherwise required to pay interest when settlement delayed – sale of land where supply made under the contract was Supply of a Going Concern pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) – Special and General conditions of contract – GST liability when vendor did not continue going concern for the whole of the property – Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104 – Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 – Catley v Watson (1981) V ConvR 54-003 – Foran v Wight [1989] HCA 51; (1989) 168 CLR 385 – Carrapetta v Rado [2012] NSWCA 202.

Lotus Oaks Pty Ltd as trustee for the Bozzo Family Trust v Commissioner of State Revenue [2021] VSC 388
TAX – land tax – exemption for primary production – trustee of a discretionary trust – definition of primary production – whether single integrated business or separate businesses – degree of connection and interdependence – commencement of residential subdivision of the land – whether the principal business of the trust is primary production of the type carried on on the land – whether one of the specified beneficiaries was normally engaged in a substantially full-time capacity in the business of primary production of the type carried on on the land – Land Tax Act 2005 (Vic) ss 64(1) definition of ‘primary production’, 67(1), 67(2)(d)(i), 67(2)(d)(iii)(A) – State Taxation Acts Further Amendment Act 2011 (Vic) s 32(1)(c).

Link and Connect Pty Ltd v Seng (Building and Property) [2021] VCAT 735
RETAIL TENANCY DISPUTE – whether to grant an interlocutory injunction to restrain the landlord from re-entering the demised premises and forfeiting the lease – whether a serious question to be tried arises – whether the balance of convenience favours the granting of an interlocutory injunction – whether the notice of default is unclear or inaccurate so as to be relied upon as a basis for terminating the lease – whether the demised premises are damaged, within the meaning of that term in s 57 of the Retail Leases Act 2003 (the RLA) – whether a claim for damages gives the tenant a right to set-off that claim against the payment of rent and outgoings – whether the failure to give an estimate of outgoings under s 46 of the RLA gives the tenant a right to refuse to contribute to any outgoings otherwise due under the lease.

Office of Fair Trading, Department of Justice and Attorney-General v SJ Pty Ltd & Anor [2021] QCAT 239
PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – DISCIPLINARY PROCEEDINGS - whether grounds for disciplinary action – where overcharging – where dishonestly converting trust money for own use – where failing to disburse rent to owners – where failing to provide true accounts – where receiving trust money after expiry of licence – where conduct significant because of dishonesty – where agent victim of coercive control by ex-partner – where ex-partner’s bullying, threatening and manipulative behaviour was significant contributing factor to conduct – where toxic relationship ended – where extended disqualification period not needed to protect public – where fines imposed for general and specific deterrence
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS – where not in interests of justice to depart from threshold position that each party pays their own costs
Agents Financial Administration Act 2014 Qld s 22, 23; Property Occupations Act 2014 Qld s 186
Queensland Civil and Administrative Tribunal Act 2009 Qld s 66, s 100, s 102, s 172

Van der Riet & Anor v Collison [2021] QCAT 238
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where trees have been removed – whether neighbour’s land affected by trees
Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 Qld s 46, s 66
Queensland Civil and Administrative Tribunal Act 2009 Qld s 102

CSR SPV 1 Pty Ltd & Anor v Brisbane City Council [2021] QPEC 35
PLANNING AND ENVIRONMENT – APPEAL – application for reconfiguring a lot (1 lot into 3 lots) – whether proposed lots too narrow. Planning Act 2016 Qld ss 45 and 60; Planning and Environment Court Act 2016 Qld ss 43, 45 and 46. Building Act 1975 Qld s 33

Clancy v Carlson [2021] QDC 33
CONVEYANCING – BREACH OF CONTRACT FOR SALE AND REMEDIES – VENDOR’S REMEDIES – DAMAGES – where the parties entered into contract for the sale of a property – where the defendant failed to pay the balance of the purchase price on or before settlement date or at all and was therefore in breach of an essential term of the contract – where the court was satisfied that the defendant was aware of the trial date and it was appropriate for the plaintiff to seek to establish its claim pursuant to r 476 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the market value of the property was $950,000.00 at the date of settlement and date of the breach – whether the plaintiff suffered damage between the contract price and the market value as at the date of settlement – whether the plaintiff incurred legal costs and has suffered loss and damage which he can recover from the defendant as a result of the difference in purchase price and market value – whether the plaintiff can claim the real estate agent commission fees of $25,000, retained by the agent, as loss and damage suffered – where the plaintiff claims pre-judgment interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) – whether the appropriate rate for pre-judgment interest is the rate prescribed under the Supreme Court Practice Direction No 7 of 2013 – whether the plaintiff is entitled to unpaid license fees, rates, water and body corporate fees – whether the plaintiff can claim for indemnity from the defendant for expenses or damages incurred by the plaintiff as a result of the defendant’s possession of the property – whether the plaintiff can claim interest on the license fees, bond cleaning, repairs, rates, water charges and body corporate fees pursuant to clause 9.9 of the contract – whether an order for the payment of the legal costs of the proceeding on an indemnity basis can be made against the defendant pursuant to clause 9.7 of the contract – whether the plaintiff can claim interest on the total amount of the judgment at the rate of 9.3 per cent per annum pursuant to clause 9.9 of the contract

Dunland Property Pty Ltd v Brisbane City Council [2021] QPEC 34
PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal of a change application to a preliminary approval – where the change application sought to include a condition of approval that specifies the minimum rate of on-site car parking for multiple dwelling use – where the effect would be to specify rates of on-site car parking corresponding with those that previously applied under the Transport, Access, Parking and Servicing Policy at the time when the preliminary approval was granted and also at the time the change application was made and decided – where those rates have subsequently changed to higher rates – whether the proposed change is of a kind that can be considered – whether the change is a minor change because it would not result in substantially different development – whether the change removes an integral component of the development – whether the change ought be granted in the exercise of discretion – where the traffic engineering evidence called by the respondent did not consider the merits of the proposed on-site car parking provision – where the traffic engineering evidence called by the appellant was to the effect that the proposed rates would be sufficient in the circumstances – whether fairness requires the holder of a preliminary approval to be protected from subsequent changes to development standards – whether the rights of submitters would be unduly compromised – whether the appellant ought be left to justify its proposed on-site provision when it applies for later approvals – where change justified on its merits
Planning Act 2016 Qld ss 49, 53, 78, 81A, 286, sch 2; Planning and Environment Court Act 2016 Qld ss 43, 45, 47
Sustainable Planning Act 2009 Qld

Cases to 12 July 2021

Young and Anor v Puck [2021] QCAT 231
ENVIRONMENT AND PLANNING – TREES, VEGETATION AND HABITAT PROTECTION – DISPUTES BETWEEN NEIGHBOURS – where land affected by a tree situated on adjoining land – where lot owners filed application for a tree dispute – where ‘tree keeper’ owns adjoining property – whether a lot owner subject to the Body Corporate and Community Management Act 1997 (Qld) is a ‘neighbour’ under s 49 of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 (Qld) - where removal of tree branch appropriate to prevent serious injury to a person or serious damage to property or land – Where agreement reached between parties as to the works to be undertaken – where it is necessary for the Tribunal to make an order relating to the cost of the work required – where the tree keeper has frustrated previous attempts to have the tree pruned and caused the neighbour to incur unnecessary expense
Body Corporate and Community Management Act 1997 Qld; Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 Qld; Queensland Civil and Administrative Act 2009 Qld

Maxwell & Perandis Pty Ltd ATF v Aztech Australia Pty Ltd [2021] QCAT 234
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – OTHER MATTERS – where parties entered into a commercial lease – where respondent issued the applicant with a Notice to Remedy Breach under the Property Law Act for non-payment of rent in 2021 – where the applicant sought and was granted an ex parte injunction restraining the respondent from entering into possession of the leased premises – where the applicant sought a final interlocutory injunction restraining the respondent from taking possession – where the arears of rent accrued during 2021 and not in 2020 – whether the QCAT has jurisdiction to grant the injunction pursuant to the Regulation made the Covid 19 Emergency Response Act 2020 – whether QCAT has jurisdiction under the QCAT Act to grant the injunction.
COVID-19 Emergency Response Act 2020 Qld s 23, s 25; Queensland Civil and Administrative Tribunal Act 2009 Qld s 59
Retail Shop Leases Act 1994 Qld s 5B; Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 Qld s 5, s 6, s 9, s 12, Schedule 1; Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Amendment Regulation 2020 Qld

Temple v Penney [2021] QCAT 233
LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – OTHER MATTERS – whether Tribunal has jurisdiction in absence of pre-proceeding mediation – whether a retail tenancy dispute or an eligible lease dispute - whether misconceived and lacking substance and should be dismissed
Acts Interpretation Act 1954 Qld s 38(1); COVID-19 Emergency Response Act 2020 Qld s 4A, s 19, s 20, s 23
Legal Profession Act 2007 Qld s 6; Queensland Civil and Administrative Tribunal Act 2009 Qld s 8, s 43
Retail Shop Leases Act 1994 Qld s 5A, s 5B, s 5C, s 55, s 56, s 63, s 64, s 97, s 103, schedule
Retail Shop Lease and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 Qld s 2, s 5, s 9, s 12, s 21, s 23, s 24, s 26, s 27, s 32, s 33, s 35, s 36, s 40, s 41, s 42, Schedule 1

Davies & Ors v Gold Coast City Council [2021] QDC 135
REAL PROPERTY – EASEMENTS – PARTICULAR EASEMENTS AND RIGHTS – OTHER EASEMENTS – where the servient tenement is subject to a utility easement for a stormwater pipeline – which structures are within the purview of the easement agreement
TORTS – NUISANCE – PRIVATE NUISANCE – WHAT CONSTITUTES AND GENERALLY – where the plaintiffs have been unable to use their backyard as contemplated when purchasing the property – the obligations in nuisance which attach to the right of use and maintenance of a utility easement
TORTS – NUISANCE – PRIVATE NUISANCE – REMEDIES – INJUNCTION – where a faulty stormwater pipeline within an easement has caused damage to the servient tenement – where sinkholes and subsidence have damaged the plaintiffs’ landscaping and accompanying structures – whether the plaintiffs are entitled to an injunction to for repair, remediation and/or removal works – whether, in the alternative, the plaintiffs are entitled to damages for their loss
TORTS – NUISANCE – PARTIES – WHO MAY BE LIABLE – OCCUPIER, OR CONTROLLER OF PREMISES, NOT CREATING NUISANCE – where Council did not construct the faulty pipeline but entered into an easement instrument with the owners of the servient tenement – whether persons who did not create, but fail to stop, a nuisance are liable
Local Law 17 (Maintenance of Works in Waterway Areas) 2013 Qld; Local Government Act 2009 Qld
District Court of Queensland Act 1967 Qld

Big River Group Pty Ltd v KDJ Constructions Pty Ltd & Anor [2021] QDC 122
REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – TRUSTEES – where plaintiff seeks an order for default judgment – where order sought for the sale of interest in land and appointment of trustees – where an equitable charge is created over the Land for the amounts owing by defendant – where no evidence as to extent of the entitlement of defendant as joint tenant – where joint tenant not personally served – whether power to order a sale under s 99 or s 38 of the Property Law Act 1974 (Qld) extends to a sale of a part interest in a property – whether order for sale can be made Property Law Act 1974 Qld s 38, s 99

Smits v Cugola & Ors [2021] QSC 164
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – GENERALLY – where the plaintiff and the first and third defendants orally arranged to purchase land in Yeppoon in 2007 – where Blue Chip Properties (Queensland) Pty Ltd (BCP) agreed to purchase the land and to borrow $7.24 million from the Bank of Queensland Limited (BOQ) under loan facilities secured by first mortgage over the land – where the plaintiff guaranteed payment of $3 million advanced under the loan facilities and lodged a $3 million deposit with BOQ – where each defendant guaranteed payment of the full principal amount of $7.24 million – where BCP borrowed $600,000 from the plaintiff under a loan facility agreement secured by second mortgage over the land – where the first and third defendants guaranteed the loan facility agreement - where BCP defaulted in 2008 in repayment of the BOQ loan facilities and in October 2008 BOQ appropriated the plaintiff’s $3 million deposit under his guarantee and subsequently appointed receivers and managers to BCP’s assets – where there was a settlement between the plaintiff and the third and fourth defendants in February 2012 – where the plaintiff purchased the land from BOQ selling as mortgagee – where there were settlements between BOQ and the plaintiff, between BOQ and the first and second defendants, and between BOQ and the third and fourth defendants between 2012 and 2014 – whether, on the plaintiff’s applications for summary judgment, the defendants have a real prospect of succeeding on their defences – whether, on the defendants’ applications for summary judgment, the plaintiff has a real prospect of succeeding on his claim
GUARANTEE AND INDEMNITY – RIGHTS OF SURETY – AGAINST CREDITOR – RIGHTS OF SUBROGATION – where the plaintiff purchased the land from BOQ selling as mortgagee and was released from further liability to BOQ in late 2012 and early 2013 – whether the plaintiff is entitled to stand in the place of BOQ under s 4(2) of the Mercantile Act 1867 (Qld) or by subrogation in equity for its rights at law as creditor against the defendants – whether the entitlement of a surety to stand in the place of the creditor against another surety, either under s 4(2) or in equity, is given to a surety where the full amount of the debt is paid, rather than part of the debt – whether the plaintiff’s claim is subject to the same defences that would operate upon a claim brought by BOQ as creditor against the defendants as sureties
REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – REMOVAL – PARTICULAR CASES – where the plaintiff lodged caveats over the first and second defendants’ home and against the third and fourth defendants’ home – where the first and second defendants apply for an order that the caveat over their home be removed – whether leave should be granted for the third and fourth defendants to apply for an order to remove the caveat over their home – whether the plaintiff as caveator satisfied the court that there is a serious question to be tried and the balance of convenience favours the retention of the caveats – whether the court can order amendment of the caveats – whether the caveat against the third and fourth defendants’ home lapsed because the proceeding against them was not started until 19 February 2021
Property Law Act 1974 Qld ss 84, 88, 199




Telecommunications (Fibre-ready Facilities — Exempt Real Estate Development Projects) Amendment Instrument 2021
06/07/2021 - This instrument amends the Telecommunications (Fibre-ready Facilities — Exempt Real Estate Development Projects) Instrument 2021 so that it will self-repeal on 1 January 2024, three years after commencement.


Subordinate legislation as made –15 July 2021
No 101 State Development and Public Works Organisation Amendment Regulation 2021
No 104 Nature Conservation (Protected Areas) (Heathlands and Jardine River Resources Reserves) Amendment Regulation 2021

Subordinate legislation as made – 09 July 2021
No 99 Nature Conservation (Protected Areas) Amendment Regulation (No. 2) 2021

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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