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Inside track: Property & Real Estate

06 October 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Responsible lending vital for recovery and growth
The Property Council of Australia has welcomed the Federal Government’s move to simplify and clarify responsible lending obligations to ensure that Australians continue to have access to credit in a more timely and efficient way (25 September 2020).  More...

Planning reform quick wins could deliver $5.7 billion post COVID-19 stimulus
The Australian economy could benefit from a $5.7 billion per annum boost if each state and territory implements just one of the ‘quick win’ planning reforms identified in the Planning to Prosper report commissioned by the Property Council of Australia (24 September 2020).  More...

PCA: COVID-19 impact 0n population growth and housing powerful call to action
The latest research report from the National Housing Finance and Investment Corporation on the impact of COVID-19 on population growth and housing is a welcome contribution to policy thinking, and a powerful call to action for the Federal Government on stimulus and migration (21 September 2020).  More...

PCA: Foreign investment fee increases will hurt commercial property and economy
Proposed fourfold increases of foreign investment application fees would be an outrageous impost on safe institutional investment into commercial property and discourage the very investment Australia requires to support our economic recovery (18 September 2020).  More...

Australian Government backs better buildings for a low carbon future
More energy efficient buildings could deliver more than a quarter of Australia’s emissions reduction target and save $20 billion in energy bills for businesses and households. Recognising this potential, the Australian Government has announced funding to increase the energy productivity of our buildings (17 September 2020).  More...

Beware the booming industrial sector and its poor carbon profile
The booming industrial sector is going great guns under Covid with people shopping more online and forcing up demand for more logistics space, but will the low carbon profile of many of these buildings as flagged by the Green Building councils of Australia and New Zealand potentially lead to unintended consequences (17 September 2020).  More...

Victoria

A makeover for Melbourne’s laneways
The Victorian Government is backing revitalisation works in Melbourne’s iconic laneways, creating scores of new jobs and ensuring the city will be at its best when crowds return to the heart of the capital (22 September 2020).  More...

Fairer lease conditions for small and medium businesses
The Victorian Government is making it easier for small business owners to get their security deposits back faster and making leases easier to understand, under changes to the Retail Leases Act passed in Parliament (18 September 2020).  More...

REIV: Victorian government ignores pleas on retail leases during COVID-19
At a time when retail properties are suffering the most, with many unable to operate and many more severely restricted in how they can operate, the Victorian Government yesterday passed the Retail Leases Amendment Bill 2019 (16 September 2020).  More...

NSW

Jobs boom for Western Sydney Aerotropolis
A landmark rezoning will see 6,500 hectares of land rezoned to provide for employment, residential and environmental uses in the Western Sydney Aerotropolis, setting the State up for a strong economic recovery and paving the way for land to be developed before the first plane takes off in 2026 (13 September 2020).  More...

In practice and courts

Announcements, Draft Policies and Plans released 2020

NSW

Updates from Revenue NSW
Revenue NSW has made the following changes:
First Home Buyers Assistance Scheme – interim arrangements are no longer in place and applications must be processed on EDR.
The Duties document matrix now includes a more comprehensive list of transactions, with links to Legislation, Revenue Rulings, forms and other information.
Client Identification and Proof of Status page (September 2020).

NSW Revenue: Stamp duty changes for first home buyers
The  threshold above which transfer (stamp) duty is charged on new homes for first home buyers will increase from the current $650,000 to $800,000, with the concession reducing on higher values before phasing out at $1 million. The new transfer (stamp) duty threshold will be in place for 12 months and will apply to contracts executed from 1 August 2020 to 31 July 2021. For more information, visit the NSW Treasury website.

Cases

Long Forest Estate Pty Ltd v Singh & Anor [2020] VSC 604
REAL PROPERTY – Conveyancing – Section 32 statement – Gazettal of threatened species and ecological communities by Commonwealth Minister for Environment – referral of development application to Minister for approval – whether gazetted instruments and documents concerning development application under Commonwealth environmental legislation required to be contained in section 32 statement – whether purchaser entitled to rescind contract – whether any contravention ought reasonably be excused – Environment Protection and Biodiversity Act 1999 (Cth) ss 18, 67– 72, 74, 75, 77, 130, 131AA, 133, 170A, 178, 181, 184, 194; Sale of Land Act 1962 (Vic) ss 32, 32D, 32K
REAL PROPERTY – caveat – claim for compensation for lodging caveat without reasonable cause – whether honest belief based on reasonable ground for caveatable interest – where question of whether reasonable grounds existed was dependent on issues to be determined in the proceeding – Transfer of Land Act 1958 (Vic) s 118
STATUTORY INTERPRETATION – Legislative intention – disclosure required by section 32 of the Sale of Land Act 1962 (Vic) – Legislative history of section 32 – meaning of ‘directly and currently affecting’ land – whether State Parliament intended references to ‘public authority’ to include Commonwealth authorities – Interpretation of Legislation Act 1984 (Vic) s 48. 

Australia Kunqian International Energy Co Pty Ltd v Flash Lighting Company Ltd [2020] VSCA 239
CONTRACT – Sale of shares in target company whose principal asset was a coalmining tenement – purchase price payable by applicant to first respondent to be fixed by valuation of tenement – applicant paid part of purchase price – first respondent sought payment of balance – valuation fraudulent – whether obligation to pay purchase price did not arise due to fraud – fraud pleaded and argued – judge erred in not deciding question of fraud – appeal allowed
MISTAKE – whether applicant paid part of purchase price for shares in mistaken belief that fraudulent valuation was a valuation for purpose of contract and payment was required – whether applicant entitled to repayment of purchase price – judge erred in finding applicant did not have mistaken belief – appeal allowed
MISREPRESENTATION – fraudulent report on coal reserves in tenement – whether applicant and parent company relied on fraudulent report in paying part of purchase price for shares – no director of applicant with knowledge of transaction gave evidence – only one director of applicant’s parent company gave evidence – judge found that director not a truthful witness – judge found no reliance by applicant or parent company – no error by judge
AGENCY – judge found first respondent did not authorise fourth respondent to direct moneys payable by applicant to first respondent be paid to target company – no error by judge
CONTRACT – first respondent obliged to pay debts of target company not disclosed at time share sale agreement executed – judge erroneously found that all such debts had been forgiven by creditors – appeal allowed. 

Anderson v Stonnington City Council [No 2] [2020] VSCA 238
COSTS – unsuccessful appeal – applicability of planning scheme amendment to development works in progress – appeal raised issues of general significance to planning law – whether departure from ordinary rule as to costs warranted by public interest considerations – mere presence of public interest considerations does not compel costs result – any public interest tangential to appellants’ primary purpose of private gain – legal issues raised resolved by application of well-established principles – any public benefit diminished on appeal – no departure from ordinary rule warranted – Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, considered.

AE Brighton Holdings Pty Ltd v UDP Holdings Pty Ltd [2020] VSCA 235
REAL PROPERTY – caveat – arbitral award declared that a company held funds it received from first respondent on constructive trust for first respondent – award recognised by Court order – applicant not party to award – sole director of the company and applicant gave evidence at public examination that funds received from first respondent given to applicant and used by it to purchase properties subject to first respondent’s caveat – ahether first respondent established prima facie case of existence of caveatable interest – Transfer of Land Act 1958 s 90(3) – Application for leave to appeal refused
CONSTRUCTIVE TRUST – trust arising where recipient of funds has knowledge that funds were paid under mistake of fact – tracing – principles to be applied.

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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