The squeeze on Sydney industrial land is a boon for Melbourne and Brisbane
Industrial property occupiers forced out of the constrained Sydney market are flocking to Melbourne for space, and Brisbane is tipped to be next in line (21 November 2019). More...
Emergency, emergency: What are we waiting for
There are way too many similarities between California and Australia when it comes to fire risk. In the US, more than 12.7 million homes were built in the high-risk wild lands-urban interface in the 20 years to 2010. In 2011, Australia had 3.3 million people in similar outer metropolitan fringe areas – by 2021, that will rise to about 4.5 million people (12 November 2019). More...
Major update to Melbourne’s urban design policy
City of Melbourne councillors have endorsed a set of new urban design rules for central Melbourne, as well as a decades-long plan for improving design excellence in the city, at a meeting of the Future Melbourne Committee on 19 November (20 November 2019). More...
Developer paid $1.2m into the accounts of local councillors: Corruption probe
Companies linked to Ferrari-driving property developer John Woodman paid two councillors at Casey council more than $1.2 million in what a lawyer for the Victorian anti-corruption commission said was an attempt to win favourable planning decisions worth up to $100 million in one case (18 November 2019). More...
‘World’s most sustainable shopping centre’ takes root in the suburbs
A candidate for world’s most sustainable retail mall is nearing completion on the site of a former brickworks in Melbourne’s eastern suburbs. Property giant Frasers, hopes to be the first shopping centre in the world to be accredited under the Living Building Challenge standards (12 November 2019). More...
Stockland launches $2b business park in Melbourne’s west
Diversified developer Stockland has teamed up with landowner Mount Atkinson Holdings to launch a $2 billion business park in Melbourne’s west (12 November 2019). More...
Council push to deliver more affordable housing in Melbourne
A draft Affordable Housing Strategy is set to be released early next year by the City of Melbourne, which believes the city’s affordable housing shortage could increase by more than 23,000 by the year 2036 without changes to the planning scheme (11 November 2019). More...
Lack of information on apartment defects leaves whole market on shaky footings
The litany of defects, poor building standards and regulatory failures has serious implications for apartment owners, occupiers and buyers alike. Fears of a loss of confidence in the sector have unfortunately come true (21 November 2019). More...
Triguboff gets green light on Parramatta’s tallest tower
Despite Sydney’s slower residential property market in recent years, property tycoon Harry Triguboff will push on with plans to build Parramatta’s tallest residential tower after getting the go-ahead from the New South Wales Planning Panel (11 October 2019). More...
Re Young  VSC 755
REAL PROPERTY – restrictive covenant – covenant not to construct more than one dwelling – neighbourhood having homogenous residential conditions of single dwellings – no other instance of dual occupancy or more than one dwelling in the neighbourhood – absence of any objection to the modification by beneficiaries of covenant – onus of proof on applicants to show that proposed modification ‘will not substantially injure the persons entitled to the benefit of the restriction’ – precedential effect of allowing application as creating a ‘substantial injury’ – preservation of existing residential conditions– application refused – Property Law Act 1958 (Vic), s 84(1)(c)
Kinchington Estate Pty Ltd v Wodonga City Council  VSC 745
ADMINISTRATIVE LAW – Judicial review – Order 56 – Agreement under s 173 of the Planning and Environment Act 1987 (Vic) – applications by registered proprietor to amend s 173 agreement – Council refusal to agree in principle to s 173 amendment applications – refusal by Council to furnish statement of reasons – whether Council was acting as a ‘tribunal’ when decisions were made – definition of ‘tribunal’ considered – procedural fairness – No 2 Pitt Street Pty Ltd v Wodonga City Council (No 3)  3 VR 439; Muldoon v Melbourne City Council  FCA 994; (2013) 217 FCR 450 referred to and applied – Administrative Law Act 1978 (Vic) ss 2, 8(1) – Planning and Environment Act 1987 (Vic) ss 177, 178A, 178B, 178C-178I
S3 Sth Melbourne Pty Ltd v Red Pepper Property Group Pty Ltd (Building and Property)  VCAT 1794
Retail lease – assessment of damages – three categories of damages: costs associated with new lease – rent and outgoings forgone and difference between rent under termination lease and lease to new tenant
I declare the respondent’s damages on its counterclaim are $151,009.47
Italian Stuff Pty Ltd v K & N Company Pty Ltd (Building and Property)  VCAT 1783
Retail lease – tenant default – claim for damages for breach of lease – premises re-let at higher rent but for shorter period than original lease – quantum of bargain loss – I assess the loss payable by the applicant – first joined party and second joined party to the respondent as $202,950.09
Barfly's Nominees Pty Ltd v Kliger Partners (a firm)  VSCA 256
NEGLIGENCE – Solicitors – retail tenancies dispute – landlords’ repair obligations – solicitors’ advice to tenant to settle proceeding against landlords due to effect of retrospective amendments to retail tenancies legislation – whether judge erred in finding advice by solicitors to settle not negligent – whether judge mischaracterised case brought against solicitors and failed to have regard to tenant’s accrued contractual causes of action – whether judge misunderstood the operation of the retail tenancies legislation – reliance – whether judge erred in finding no reliance by tenant on advice – no requirement for advice to be sole basis upon which client acts – Henville v Walker  HCA 52; (2001) 206 CLR 459 applied – Retail Tenancies Reform Act 1998, ss 25, 26, 47 – Retail Leases Act 2003, ss 107, 118, 119 – Retail Leases (Amendment) Act 2005, ss 2(4), 43 – Interpretation of Legislation Act 1984, s 14(2)(e)
DAMAGES – loss of a chance to continue proceeding against landlords – whether judge erred in finding it was not possible to sufficiently, safely or accurately evaluate the prospects of success – whether ‘broad brush’ approach or a ‘trial within a trial’ required – Johnson v Perez  HCA 64; (1988) 166 CLR 351 and Rosa v Galbally & O’Bryan  VSCA 116; (2013) 42 VR 382 applied
Clementi v Rossi  VSC 725
TRUSTS – whether the defendant holds interest in a real property on resulting trust for the plaintiff – whether the defendant must account to the plaintiff for rental received from the property – where the plaintiff submits transfer to the defendant was to avoid future claim from wife – where the defendant submits transactions formed part of a ‘family joint venture’ – credibility of witnesses.
RESULTING TRUSTS – whether the defendant holds interest in the property on resulting trust for the plaintiff – whether presumption of resulting trust applies – Melbourne Orthopaedic Group Pty Ltd v Stamford Aus-Trade & Press Pty Ltd  VSCA 150 – Anderson v McPherson (No 2)  WASC 19 – Vlahos Pty Ltd v Vlahos  VSCA 166 – Australian Building & Technical Solutions Pty Ltd v Boumelhem  NSWSC 460 – whether presumption of advancement applies – Calverley v Green (1984) CLR 242 – Xiao v Perpetual  VSCA 124
CONSTRUCTIVE TRUSTS – whether the defendant holds interest in the property on constructive trust for the plaintiff – ‘Joint endeavour’ constructive trusts – Muschinski v Dodds  HCA 78; (1985) 160 CLR 583 – Australian Building & Technical Solutions Pty Ltd v Boumelhem  NSWSC 460 – ‘Common intention’ constructive trusts – McNab v Graham  VSCA 352; (2017) 53 VR 311 – Imam Ali Islamic Centre v Imam Ali Islamic Centre Inc  VSC 413
PROPRIETARY ESTOPPEL – whether the defendant is estopped from denying the plaintiff’s joint beneficial interest the property – Sidhu v Van Dyke  HCA 19; (2014) 251 CLR 505
LIMITATIONS – whether the plaintiff is estopped from contending that he has an interest in the property, or is otherwise barred from relief – Limitations of Action Act 1958 (Vic) ss 5, 11 and 21 – Doctrine of laches – Orr v Ford  HCA 4; (1989) 167 CLR 316 – CSR Ltd v Amaca Pty Ltd  VSCA 320 – waiver of rights to bring claim – RW Health Partnership Pty Ltd v Lendlease Building Contractors Pty Ltd  VSC 353
Leonello Service Centre Pty Ltd v Rany Pty Ltd (Building and Property)  VCAT 1752
Section 37 Retail Leases Act 2003 (Vic) – rental determination – adequacy of reasons – special nature of premises – confidential information about comparables – failure to disclose reasoning behind analysis of comparables – contradictory description of a key fixture - expert’s determination vitiated by error
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.