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Inside track: Property & Real Estate

08 September 2020

#Property & Real Estate

Inside track: Property & Real Estate

In the media

PCA: Commercial tenancy code extension risks property company collapses
Extension of the commercial leasing code of conduct by state and territory governments would impose an extra $4.8 billion in costs on commercial property owners and potentially threaten the viability of many small and midsized commercial property businesses (21 August 2020).  More...

Corporate office is not dead, say landlords
The pandemic has accelerated trends already under way and stalled long-term decision making by tenants, as landlords race to stitch up leases (20 August 2020).  More...

Victoria

Pandemic prompts wild swings in land sales
Wild swings in land sales in Melbourne’s new housing estates are tracking the path of the pandemic and the $25,000 HomeBuilder boost designed to counter it (25 August 2020).  More...

New era dawns at Federation Square – our meeting place
The Victorian Government has unveiled the biggest upgrade in Federation Square’s history and a new vision for the iconic site as a civic and cultural hub that embraces the Yarra and showcases the best of Victoria to locals and visitors (22 August 2020).  More...

Victorian eviction moratorium extended
The Victorian Government has extended the eviction moratorium until the end of the year. Evictions continue to be banned for both residential and commercial tenancies, except under certain circumstances, until 31 December 2020. Rental increases continue to be banned for the same period (20 August 2020).  More...

Decades-old dispute over 'undevelopable' Ninety Mile Beach blocks ends with compulsory sales
Sold from the 1950s and inappropriate for development, Wellington Shire Council will compulsorily acquire the last 750 lots along a "slice of paradise on Victoria's Gold Coast" (18 August 2020).  More...

Supercharging planning critical to unlocking billions from Victorian precincts
A new report produced by the Property Council of Australia has revealed that billions of dollars of investment and thousands of jobs would be generated by advancing new precinct planning in Victoria but streamlining planning is the key (18 August 2020).  More...

NSW

Good news for local waterways as builders and renovators Get the Site Right
Builders, developers and home renovators are more successfully implementing erosion and sediment controls on building sites to protect our local waterways, according to results from the recent Get the Site Right education and compliance campaign (27 August 2020).  More...

Parramatta Square: Sydney’s second CBD takes shape
Parramatta Square, a multi-billion-dollar urban renewal project set to transform Parramatta’s city centre into Sydney’s second CBD, is beginning to take shape (20 August 2020).  More...

In practice and courts

Announcements, Draft Policies and Plans released 2020

NSW

NSW revenue: HomeBuilder program
HomeBuilder will provide eligible owner-occupiers (including first home buyers) with a grant of $25,000 to build a new home or substantially renovate an existing home where the contract is signed between 4 June 2020 and 31 December 2020. Construction must commence within three months of the contract date.  More...

Cases

Secretary, Department of Transport v Provan's Timber Pty Ltd [2020] VSCA 210
LAND ACQUISITION AND COMPENSATION – compulsory acquisition of land for East West Link tollway – land used for hardware business – where land owned by company and occupied by a related entity as tenant at will – compensation to owner based on highest and best use of land assuming vacant possession – whether compensation for disturbance losses to tenant available – whether cost of relocating business a ‘natural, direct and reasonable’ consequence of acquisition – relocation costs of tenant at will not compensable – whether Authority bound by initial offer to pay relocation costs – whether offer based on incorrect information – whether judge erred by permitting double recovery – Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41; (2019) 99 NSWLR 279, Peter Croke Holdings Pty Ltd v Roads and Traffic Authority (NSW) (1998) 101 LGERA 30 applied – Health Administration Corporation v George D Angus Pty Ltd [2014] NSWCA 352; (2014) 88 NSWLR 752, Rosenbaum v Minister for Public Works [1965] HCA 65; (1965) 114 CLR 424 considered – Land Acquisition and Compensation Act 1986 ss 30, 31, 40, 41, 41(2), 41(6), Valuation of Land Act 1960 s 5A.

Skabal Pty Ltd v Boroondara City Council [2020] VSC 532
LOCAL GOVERNMENT – Council granted permit to vary easement – plan of variation of easement registered on title – application for leave to appeal from Victorian Civil and Administrative Tribunal’s refusal of request to cancel permit, under s 87 Planning and Environment Act 1987 (Vic) – whether Tribunal had power to cancel permit under s 88 Planning and Environment Act 1987 (Vic) – Permit related to ‘any other development of land’, within s 88(b) – permit did not relate to the use of land, within s 88(c) – whether permit spent – development ‘substantially completed’ on registration of plan of variation of easement – Tribunal had no power to cancel permit – Planning and Environment Act 1987 (Vic), ss 6A(2), 47(1), 87, 88; Subdivision Act 1988 (Vic), s 23.

Devine v Bernstone [2020] VSC 507
REAL PROPERTY – caveat – first defendant lodged caveat on plaintiff’s title to land – application by plaintiff to remove caveat – no proper basis for caveat – consent to removal of caveat at hearing – application granted – Transfer of Land Act 1958 (Vic), s 90(3)
COSTS – whether costs to follow event – whether costs ordered on standard or indemnity basis – caveat lodged in wilful disregard of legal advice that no caveatable interest – caveat lodged for ulterior motive (as a bargaining chip in a commercial dispute) – indemnity costs ordered.

Emma Tait Nominees Pty Ltd v Laprese & Anor [2020] VSC 508
REAL PROPERTY – torrens System – fraudulent registered mortgage – where fraud admitted – loss or damage – entitlement to indemnity – Transfer of Land Act 1958 (Vic) s 110 – whether payment by plaintiff in consideration of the assignment of the mortgage sufficiently causally connected to be compensable or otherwise unreasonable
PRACTICE AND PROCEDURE – costs – Transfer of Land Act 1958 (Vic) s 110(3)(b) – whether plaintiff wholly or partially precluded from recovering an indemnity for legal costs – whether any costs to be awarded to be made on an indemnity or standard basis – whether costs of summons to restrain the mortgagee’s sale of property ought to be included in award of costs. 

The General Trader (Australia) Pty Ltd v Bourwell Pty Ltd (Building and Property) [2020] VCAT 867
Retail lease – leaking roof – landlord’s covenants – s52, s54 and s57 Retail Leases Act 2003 (Vic) – tenant carried out repairs – allegation premises not fit for permitted use and unsafe for occupation – water leaks causing mould, closure of premises – tenant claims loss and damage claim including loss of profits and repair costs alternatively abatement of rent. The respondent must pay the applicant sum of $18,500.

Owners Corporation RP01787 v Sandra Issa Investments Pty Ltd (Owners Corporations) [2020] VCAT 863
Principles applicable in contractual construction on a question of ambiguity: Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Contractual construction principles apply to construing an order of the Tribunal: Shout Rocks Cafes Pty Ltd & Anor v City of Port Philip & Ors [2018] VSC 120; Livingspring v Ng [2007] VSC 9
Tribunal’s power to conduct a collateral review of a previous consent order: The Big Apple Group Pty Limited v Melbourne City Council [2020] VSC 393. Found: no power vested in the Tribunal
Whether resort to extrinsic material to resolve ambiguity of a Tribunal consent order amounts to a collateral review of the order. Found: Such an enquiry amounts to a collateral review and is impermissible.

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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