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Inside track: Property & Real Estate

03 June 2019

#Property & Real Estate

Inside track: Property & Real Estate

In the media


RBA flags cut to interest rates
The Reserve Bank has signalled it may have to cut interest rates to historic lows next month to prevent unemployment rising, and regulators have proposed loosening lending restrictions and alter the serviceability hurdle rate to allow home-buyers to borrow more, suggesting an injection in the offing for the housing market and economy (22 May 2019).  More...

First home buyer market primed for growth: Report
Nationally, first home buyer activity declined 5.8 per cent over the 12 months to December 2018, while softening markets in New South Wales and Victoria saw first home buyer activity increase by 2.6 per cent and one per cent respectively, according to the latest PRDnationwide report  (22 May 2019).  More...

Property Council of Australia: APRA review of mortgage lending guidance
The Property Council of Australia has welcomed APRA’s announcement of a review of its residential mortgage lending guidance, including the possible removal of the seven per cent minimum interest rate floor (21 May 2019).  More...

APRA proposes amending guidance on mortgage lending
In a letter to ADIs issued last month, APRA has proposed removing its guidance that ADIs should assess whether borrowers can afford their repayment obligations using a minimum interest rate of at least seven per cent. Instead, ADIs would be permitted to review and set their own minimum interest rate floor for use in serviceability assessments (21 May 2019).  More...

Call to relocate population-crunched Aus cities
A city planning expert has called on the government to follow the lead of some Asian countries and consider relocating Australia’s most population-slammed cities to ease urban congestion. This includes giving serious consideration to relocating major cities or building brand new tech-powered metropolises (20 May 2019).  More...


Greater Sydney housing supply forecast: 191,550 new homes by 2023
Construction of 191,550 new homes in Greater Sydney is forecast in the next five years, a 22 per cent increase, or an extra 34,300 new homes, with Parramatta anticipated to become home to a vast majority of them (23 May 2019).  More...


Getting on with the Western Rail Plan
The Andrews Labor Government is keeping its promise and getting on with the vital planning needed to deliver fast rail to the regions and more metro services to our growing suburbs (24 May 2019).  More...

Major expansion approved for Westfield Doncaster
Minister for Planning Richard Wynne gave the stamp of approval for the $500 million redevelopment at Westfield Doncaster. This will provide an additional 43,000 square metres of retail and 18,000 square metres of commercial office space (20 May 2019).  More...

Proposed vision to revitalise Elizabeth Street
Elizabeth Street would become a safer, greener and more people friendly gateway to Melbourne’s retail and commercial heart under a proposal to be considered by City of Melbourne Councillors (16 May 2019).  More...  

Getting on with the Melbourne Park redevelopment
The Victorian Government is getting on with the $271.55 million Stage 3 redevelopment of Melbourne Park, with Lendlease appointed to manage delivery of the major project (16 May 2019).  More...

From plan to place: Shaping the future of Fishermans Bend’s precincts
Fishermans Bend is Australia's largest urban renewal project covering approximately 480 hectares in the heart of Melbourne. The transformation of Fishermans Bend is guided by the Fishermans Bend Framework (14 May 2019).  More...

Major investments in Melbourne’s parks, waste and water
The City of Melbourne will invest more than $19.1 million in capital works projects over the coming year to respond to the impacts of climate change, manage our parklands and urban forests, and conserve and recycle water (14 May 2019 ).  More...


Government signs off on Sunland’s Gold Coast marina
The state government has overturned regulation blocking extensions to Sunland’s $82 million masterplan community at Benowa’s Royal Pines Marina on the Gold Coast  (23 May 2019).  More...

Have your say on cultural heritage legislation
Indigenous communities and industry stakeholders are being encouraged to have their say on Queensland’s cultural heritage legislation (23 May 2019).  More...

New development, Capestone Village, spurs monorail wishes from public
News of a retail development at Capestone has been met with guarded optimism by business leaders and drawn extravagant wishes from the public. Capestone Village, an 1800sqm retail complex at Mango Hill, is scheduled to open by the end of next year (21 May 2019).  More...

Coordinator-General to set Adani timeline
Premier Annastacia Palaszczuk has instructed the Coordinator-General to set a timetable for the resolution of two outstanding approvals for Adani’s proposed Carmichael mine (22 May 2019).  More...

Opposition urges Brisbane City Council to speed up the go-slow
New go-slow zones through Brisbane’s suburban retail and shopping precincts do not go far enough, according to the council opposition. Brisbane City Council on Monday announced two new 40km/h zones on retail strips on Oxley Road at Corinda and on Old Cleveland Road at Stones Corner (20 May 2019).  More...

The luxury hotel boom preparing Brisbane for a tourism shift
In 2014 the council offered an infrastructure charge reduction for any four- or five-star hotels that committed to the city. Cr Adams said Brisbane had already seen some major conventions arrive in the city, when previously they might have gone to Sydney or Melbourne (18 May 2019).  More...

ScoMo’s court bill costs taxpayers hundreds of thousands
Mrs D’Ath said the High Court’s reasons showed how the LNP at State and Federal levels tried to work together to line their coffers and keep their donations secret by not just attempting to overrule Queensland’s developer donations’ ban, but $1000 thresholds and real-time disclosure. (16 May 2019).  More...

Safer Buildings Program deadlines extended
The Queensland Government has announced an extension to the compliance period for the next stages of its Safer Buildings Program, to give property owners and bodies corporate greater time to identify buildings that may have potentially combustible cladding (16 May 2019).  More...

Published – articles, papers, reports

REIA News – 23 May 2019
In this issue: Federal Election 2019; Fact sheets for foreign investors of Australian residential real estate.  More...

The business case for social housing as infrastructure
Todd Denham, Jago Dodson, Julie Lawson
Australian Housing and Urban Research Institute: 15 May 2019
This research investigated frameworks for funding social housing as infrastructure, including cost-benefit analysis and alternatives such as ‘avoided cost’ and ‘housing adjusted life years’, to develop stronger analytical methods.  More...

In practice and courts


AHURI:  Research Agenda 2020 announced
AHURI has released the research topics for the 2020 National Housing Research Program (NHRP) agenda which will contribute to the growing evidence-base in the housing, homelessness, cities, urban policy fields (13 May 2019).  More...

Announcements, Draft Policies and Plans released 2019


QLS: New duty exemption—section 141A Duties Act 2001
QLS is aware of some uncertainty around the operation of a new duty exemption regarding the mandatory buyback of an interest in a retirement village in the new section 141A of the Duties Act 2001. The new exemption was inserted by the Health and Other Legislation Amendment Act 2019. Members should consider the provisions relating to the exemption and whether this is relevant to their client’s matters. QLS is seeking clarification from the Office of State Revenue about the operation of this exemption (22 May 2019).

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...

Note: Safer Buildings: Parts 2 and 3a deadlines extended
Bodies corporate and building owners across Queensland have been given additional time to complete Parts 2 and 3a of the Safer Buildings combustible cladding checklist. The  new deadlines will be as follows:
Part 2: extended from 29 May 2019 to 31 July 2019
Part 3a: extended from 27 August 2019 to 31 October 2019.  More...



Andrews and Morrisy Developments Pty Ltd v Port Phillip City Council & Ors [2019] VSC 337
TOWN PLANNING – Application for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Effect of transitional exemption in planning scheme related to mandatory height control – No implication of words going beyond literal meaning – No exclusion of purpose of zone as a consideration relevant to the grant of a permit – Application refused.

Jafari v 23 Developments Pty Ltd [2019] VSC 333
PRACTICE AND PROCEDURE – Execution – Garnishee summons – Garnishee summons issued in respect of a debt that will or is likely to become due or accrue to the judgement debtor between the day an order for the filing and service of a garnishee summons is made and the day for hearing named in the summons – Whether at the date of the hearing the debt had become due or was accruing to the judgement debtor from the garnishee – No debt due or accruing to the judgement debtor as no sum certain due or accruing –– Construction of Order 71 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

Ran Bi v Yingde Investments Pty Ltd [2019] VSC 324
REAL PROPERTY – Purchaser executed binding nominations that nominated a third party as purchaser under land contracts – Whether there was an oral agreement to terminate the nominations.
CONTRACT – Whether agreement to terminate a joint venture was in writing; or partly in writing and partly oral.
EVIDENCE – Whether oral evidence admissible to determine whether agreement to terminate a joint venture was in writing; or partly in writing and partly oral.

Demetrios v Lehmann [2019] VSC 301
PRACTICE AND PROCEDURE – Application to dismiss or strike out defendant’s proportionate liability defence – Trespass – Whether ‘failure to take reasonable care’ has to be an element of the cause of action for the claim to be apportionable – Unsettled point of law – Inappropriate to summarily dismiss or strike out – Rules 23.01 and 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 – Wrongs Act 1958 (Vic), Part IVAA – Corporations Act 2001 (Cth), s 1041L –In this proceeding, the plaintiffs’ claim against the defendant is one of trespass to land, in that the defendant has constructed her house partly on the plaintiffs’ land and has permitted it to intrude into the airspace. The relief sought by the plaintiffs in the proceeding is an order that the defendant remove the encroachment, engage in no further trespass, and damages.

Quick v Lam-Ly Pty Ltd [2019] VSCA 111
PRACTICE AND PROCEDURE – Stay – Applicant unsuccessful at VCAT – VCAT orders stayed pending application for leave to appeal to Trial Division – Appeal to Trial Division dismissed – Application to Court of Appeal for leave to appeal from Trial Division – Subsequent granting of ex parte order by VCAT staying VCAT’s original order – Whether appropriate for VCAT to grant stay after appeal from VCAT to Trial Division dismissed – Whether applicant has arguable ground of appeal – Whether stay granted by VCAT should be continued – Stay terminated. Tenancy agreements

Owners Corporation 4 PS5398033E v Bensons Property Group Pty Ltd (Owners Corporations) [2019] VCAT 652
Ballot for special resolutions authorising the bringing of the proceeding – notice that interim special resolutions had become special resolutions – lot owner challenges the result – whether the result is amenable to challenge – Owners Corporations Act 2006 s 18(1).
Co-owners – ballot form signed by one co-owner only – whether the non-voting co-owner must authorise the voting co-owner to be a proxy – Owners Corporations Act 2006 s 87.
Ambiguous ballot form – whether chairperson may enquire of voter as to intention – whether chairperson was “functus officio”.
Notice of second ballot – whether 14 days’ notice given – Owners Corporations Act 2006 s 85(1).
Second ballot – applicants’ solicitors contact voters whose votes were invalid – ballot forms re-submitted – whether voter may change a vote before the ballot closes.
Ratification – second ballot ratifies decision by one applicant to bring the proceeding.

MG Pastoral Pty Ltd v Surf Coast SC [2019] VCAT 502
Surf Coast planning scheme; section 77 the Planning and Environment Act 1987; proposed service station and camping & caravan park; updated plans making food offerings smaller; proposal not supported by Council but taken on review to the Tribunal; CFA and Vic Roads do not object to the proposal; Tribunal oral finding that the ‘landscape character', bushfire risk and traffic aspects of the proposal are acceptable; Tribunal reserving its decision on the remaining matters of the ‘strategic support’ for the proposal; and (more by way of permit conditions) the proposed signage; permit approved.

Katranis v Bahrou & D'Azzena [2019] VCC 602
LANDLORD AND TENANT : Refusal by landlord to allow tenant to recover chattels after termination of lease – no right to distress for rent – conversion of chattels – value of chattels converted – calculation of interest on damages for conversion. Supreme Court Act 1986 (Vic), s59

Re Castlerea Carpenters Pty Ltd [2019] VSC 303
PROPERTY LAW – Order for modification of a restrictive covenant made and authenticated – Court subsequently alerted by a third party to an earlier failed application in respect of the same land – Whether order for modification can be re-opened of the Court’s own motion – Held: no. Bailey v Marinoff [1971] HCA 49; (1971) 125 CLR 529 and Burrell v R [2008] HCA 34; (2008) 238 CLR 218 applied.
PRACTICE AND PROCEDURE – Obligation of full and fair disclosure at an ex parte hearing – Whether this obligation applies at the initial hearing of an application for modification of a restrictive covenant – Garrard and ors v Email Furniture Pty Ltd (1993) 32 NSWLR 662; Redwin Industries Pty Ltd v Feetsafe Pty Ltd [2002] VSC 427; Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639 considered and observations made.
PRACTICE AND PROCEDURE – Overarching obligation not to engage in conduct that is misleading or deceptive or likely to mislead or deceive – Whether Court has jurisdiction to enquire of its own motion into potential breach of the obligation after proceeding concluded – Held: no – Civil Procedure Act 2010 (Vic) ss 21, 29, 30, 31.
LEGAL PRACTITIONERS – Obligations to the Court – Earlier application not disclosed by practitioners for the plaintiff – Inherent jurisdiction of the Court to enquire into breach of an obligation to the Court – Whether that jurisdiction enlivened – Held: no.


O’Neill v Commissioner for State Revenue [2019] QCAT 132
TAXES AND DUTIES – LAND TAX – LIABILITY FOR LAND TAX – OTHER MATTERS – objections and appeals to land tax – Exemption as a Primary Producer – Cattle raising and bee keeping – business or hobby – failure to keep records Land Tax Act 2010 Qld

Gorring v Uptempo Concepts Pty Ltd & Anor [2019] QCAT 128
LANDLORD AND TENANT – LEASES AND TENANCY AGREEMENTS – COVENANTS – AS TO REPAIR – where express exclusions on lessee’s repair obligations – whether creates an obligation on lessor – whether the implied covenant for quite enjoyment extends to repair and maintenance by a lessor.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – COSTS – RECOVERY COSTS – where lease contains special conditions indemnifying lessor against claims and expenses – whether costs payable on an indemnity basis. Retail Shop Leases Act 1994 Qld ss 42, 43; Queensland Civil and Administrative Tribunal Act 2009 Qld ss 100, 103

Coleman v Penfold [2019] QCA 98
REAL PROPERTY – PARTITION OF LAND – STATUTORY TRUST FOR SALE OR PARTITION – DISCRETION IN RELATION TO ORDERS – where the appellant and respondent are co-owners of a house – where the learned primary judge granted the respondent’s application for an order under s 38 of the Property Law Act 1974 (Qld) appointing statutory trustees for sale of the house – where the respondent was unrepresented at the hearing of the application – where the appellant sought an adjournment of the application to obtain legal advice and also due to medical issues – whether the primary judge erred in the exercise of the discretion not to adjourn the hearing of the application and therefore in granting the respondent’s application

Sunshine Coast Regional Council v D Agostini Property Pty Ltd & Ors [2019] QPEC 19
PLANNING AND ENVIRONMENT – APPLICATION – where there is a dispute about the use of residential allotments – where the applicant and represented respondents seek orders directed towards the determination of the dispute but are unable to agree on the form of such orders – whether lots can be used only for temporary accommodation – where determination involves interpretation of a clause in the Development Approval
Planning and Environment Court Act 2016 Qld s 11; Planning and Environment Court Rules 2018 Qld r 8(1)

Moramou2 Pty Ltd v Brisbane City Council (No 2) [2019] QPEC 22
PLANNING AND ENVIRONMENT – APPEAL – COSTS – appeal against enforcement notice – whether the discretion of the court to make an order for costs has been enlivened because of the respondent being frivolous or vexatious, an adjournment was necessary as a consequence of the introduction of new material; and it not properly discharging its responsibilities in the proceeding. Planning and Environment Court Act 2016 Qld

Cases to 20 May 2019

Fraser Coast Regional Council v Zacka & Ors [2019] QPEC 21
PLANNING AND ENVIRONMENT – APPLICATION – applications in pending proceeding – where the substantive proceeding seeks enforcement orders under the Integrated Planning Act 1997 – where the enforcement orders relate to alleged unlawful operational work being bulk earthworks and alleged unlawful tidal works by the respondents – where the respondents rely on discretionary reasons to avoid the relief sought – where the discretionary reasons contain allegations that BGM Projects Pty Ltd made representations that the Council ought to have known were not correct – where the Council applied for an order that BGM Projects Pty Ltd be included as a party – where the Council applied to have this proceeding heard together with Application No. 2312 of 2018, being a proceeding for enforcement orders commenced by BGM Projects Pty Ltd – whether the presence of BGM Projects Pty Ltd is necessary to enable the court to adjudicate effectively and completely on all matters in dispute in the proceeding – whether the presence of BGM Projects Pty Ltd would be desirable, just and convenient to enable the court to adjudicate effectively and completely on all matters in dispute in the proceeding - whether the proceedings should be heard together with the enforcement proceedings commenced by BGM Projects Pty Ltd
Planning and Environment Court Rules 2018 Qld r 4



Bills Updated

Natural Resources and Other Legislation Amendment Bill 2019
Introduced by: Hon A Lynham MP on 26/02/2019
Stage reached: Passed with amendment on 15/05/2019

Subordinate legislation as made – 24 May 2019

No 80 Natural Resources, Mines and Energy Legislation (Fees) Amendment Regulation 2019
No 81 Proclamation No. 4—Housing Legislation (Building Better Futures) Amendment Act 2017 (commencing certain provisions)
No 82 Manufactured Homes (Residential Parks) Amendment Regulation 2019
No 83 Building (Cladding) Amendment Regulation 2019


Robina Kidd, Partner
T: +61 2 8083 0454

Vanya Lozzi, Partner
T: +61 2 8083 0462

Cameron Sheather, Partner
T: +61 2 8083 0461

Breellen Warry, Partner
T: +61 2 8083 0420

Chris Lovell, Chairman
T: +61 3 9321 9832

Lou Farinotti, Senior Partner
T: +61 3 9321 9861

Chris Brodrick, Partner
T: +61 3 9321 9804

Lisa Cody, Partner
T: +61 3 9321 9872

Richard Skopal, Partner
T: +61 3 9321 9866

Joseph Monaghan, Partner
T: +61 3 9321 9857

Ron Eames, Partner
T: +61 7 3135 0629

Katie Miller, Partner
T: +61 7 3135 0606

Peter Nugent, Partner
T: +61 7 3135 0632

Gerard Timbs, Partner
T: +61 7 3135 0644

John Wei, Partner
T: +61 7 3135 0688

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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