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Queensland Government Bulletin

09 June 2021

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Queensland Government Bulletin

Put and call options on the rise in Queensland

Across Queensland, we are witnessing a surge in the property market. Regional Queensland, in particular, is experiencing greater demand than has been the case for many years. As a result, the use of put and call options is on the rise.

As most readers would be aware, a Put and Call Option Agreement is a contract where one party agrees to sell one or more properties if requested by the buyer (a call option) and the other party agrees to buy the same property if requested by the seller (a put option).

For both the buyer and seller, a properly drafted Put and Call Option Agreement can make a big impact on just how effective it is at protecting your needs.

In a rising market, buyers are being drawn to a put and call option as most agreements of this kind will include a right for the buyer to nominate a third party to be the buyer under the contract. This is the mechanism that, in theory, allows a buyer to on-sell property using an option agreement without ever having to settle on that property. This is attractive to a buyer in a market where prices are rising.

From the seller’s perspective, if you are minded to enter into a put and call option, it is important to consider the following items to safeguard the seller’s interest:

  • ensuring that the put option is appropriately drafted so that the seller then has the opportunity, if the seller does decide, to force the buyer to purchase the property by giving notice during the agreed put option period
  • the amount of any call option fee should be negotiated with the buyer. In a rising market, buyers are generally more willing to pay a higher premium for the upside of a put and call option
  • carefully reviewing the nomination provisions of the put and call to ensure that the nomination is not deemed to be an assignment of the put and call option which would then have the unintended consequence of triggering the transactional duty provisions of the Duties Act 2001 (Qld). The nomination clause allows the buyer to nominate another person to be the buyer of the property. The nomination clause may be deemed to trigger a duty liability if an ultimate buyer is being assigned and granted rights under the Put and Call Option Agreement
  • gaining visibility around the buyer’s intended use by having a series of carefully considered cascading provisions with strict obligations upon the buyer regarding any Development Approvals (DA) which may be required by the relevant Local Government. Such provisions for instance could require the buyer to provide copies of (any) development applications that the buyer intends to apply for being provided to the seller before the seller grants their consent.

In addition to such mechanisms, the time frames allowed by the seller is important. It is important to keep a buyer to specific time frames and have a right of termination accrue in the seller’s favour if a buyer fails to perform. This will prevent a speculative buyer looking to ‘sit’ on a put and call option for an extended period. For instance, the seller should consider incorporating separate conditions with due dates which require:

  •  a buyer to lodge a Development Application (where applicable) by a certain date
  •  further time frames for the Development Approval to be issued by the local authority.

Separate to the above to best help a seller negotiate terms of the put and call, it is important to understand the commercial drivers of a buyer. Buyers who are looking to develop the property will want to incorporate the following terms into the put and call:

  • access for the buyer and its consultants to the property to conduct due diligence and compiling the reports required in support of a development application will generally require access to the property for various reasons. From the seller's perspective, indemnities should be obtained from the buyer in the event of any damage being caused by the buyer to the property during such due diligence
  • a right to lodge a caveat on the property. A buyer is potentially expending significant sums of money undertaking the development approval process. As such, the buyer will look to protect their rights under the put and call. From the seller's perspective it is important that if the seller is minded to grant a caveat in favour of the buyer over the property that there is provision for the seller to either hold on escrow a release of such caveat and/or power of attorney provisions which allow the seller to sign on the buyer's behalf a withdrawal of the caveat in the event the put and call is terminated.

Author: Ranjit Singh

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25 May 2021—Law Council
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OAIC consultations

National Health (Privacy) Rules 2018 review
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QAO reports

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Queensland Courts: Practice Directions

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Department of the Premier and Cabinet Consultation

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Human Rights and Technology final report
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Impiombato v BHP Group Limited (No 2) [2020] FCA 1720
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HIGH COURT AND FEDERAL COURT – federal jurisdiction – whether Pt IVA confers jurisdiction on the Court or establishes powers and procedures by which the Court can exercise jurisdiction
Constitution ss 71, 77 Acts Interpretation Act 1901 (Cth) ss 9, 21(1)(b).

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The Action was to construct and operate the NGWS Project. Adani Infrastructure explained in its referral that the project:  Separate applications for State and  local government  approvals.

Urquhart; Chief Executive Officer, Services Australia and (Freedom of Information) [2021] AATA 1407
FREEDOM OF INFORMATION – whether practical refusal reason exists in accordance with section 24(1) of the Freedom of Information Act 1982 (Cth) – whether request consultation process engaged in pursuant to section 24AB of the Freedom of Information Act 1982 (Cth) - decision under review set aside
Freedom of Information Act 1982 (Cth).

Wilson Transformer Company Pty Ltd v Anti-dumping Review Panel (No 2) [2021] FCA 591
ADMINISTRATIVE LAW – application for judicial review of a determination of the Anti-Dumping Review Panel (the Panel) to affirm decisions of the Commissioner of the Anti-Dumping Commission to terminate anti-dumping investigations – whether each of the decisions involved an error of law – whether each of the decisions was not authorised by the Customs Tariff (Anti-Dumping) Act 1975 (Cth) (the Customs Act) – whether the decisions were affected by jurisdictional error – where the Panel did not err in law by adopting and applying an erroneous construction of the Customs Act – where the Court is satisfied that it was not impermissible for the Panel to have reasoned as it did.
ADMINISTRATIVE LAW – whether a breach of the rules of natural justice occurred in connection with the making of each of the decisions – whether the decisions were affected by jurisdictional error – where the Panel failed to comply with the requirements of  procedural fairness  by not advising the Applicant of its intended course to hold a conference and undertaking to provide the Applicant with an opportunity to respond to any relevant information it might obtain during that conference subject to its obligations of confidentiality – where the error made by the Panel was not material and thus not jurisdictional error.

Boensch v Somerville Legal [2021] FCAFC 79
BANKRUPTCY – appeal from orders made by the Federal ‍Circuit Court – where primary judge made a sequestration order against appellant’s estate – whether primary judge denied appellant  procedural fairness  – where appellant is self-represented – where primary judge did not advise appellant of his right to cross-examine – where appellant filed material with the Court – where material not before primary judge – where only single copy of material available between appellant and primary judge at hearing – where appellant required to make submissions without the benefit of his copy of the material – where no opportunity for trial judge to have fully read the appellant’s material – where appellant not informed at outset of hearing of time available to make submissions – where additional time to make submissions permitted on an ad hoc basis – appeal allowed.

LibertyWorks Inc v Commonwealth of Australia [2021] FCAFC 90
ADMINISTRATIVE LAW – challenge to validity of a determination made by the Health Minister under s 477(1) of the Biosecurity Act 2015 (Cth) – where determination prevented Australian citizens, permanent residents, or operators of outgoing aircraft or vessels from leaving Australian territory, unless an exemption applied – whether determination requires an individual to be subject to a biosecurity measure of a kind set out in Subdiv B of Div 3 of Pt 3 of Ch 2 of the Act and is therefore invalid by reason of s 477(6) – whether s 477(6) prevents a determination applying to a group or class of individuals
STATUTORY INTERPRETATION – whether s 477(3)(b) of the Biosecurity Act 2015 (Cth) refers to “places” outside Australian territory – whether Act displaces presumption that references to the singular include the plural.

Willmott v Assistant Commissioner Carless & Anor [2021] QCAT 185
POLICE – DISCIPLINE AND DISMISSAL FOR MISCONDUCT – QUEENSLAND – STAY OF PROCEEDINGS – OTHER MATTERS – where allegations of bullying and other workplace misconduct – where police officer demoted from Sergeant to Senior Constable, transferred and required to undertake professional development strategy
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Isles v State of Queensland [2021] QCAT 135
HUMAN RIGHTS – DISCRIMINATION LEGISLATION –– GROUNDS OF DISCRIMINATION – DISABILITY OR IMPAIRMENT – where police entered alerts, warnings and flags on QPRIME system – where QPRIME is internal information management tool for officer safety - where protected attributes of presumed mental illness and political beliefs – where comparator was person without presumed mental illness and stated beliefs but who had significant interaction with police – where relevant circumstances – whether treated less favourably – where alerts, warnings and flags reasonably necessary to protect health and safety of people at place of work - where treatment was not less favourable than any other citizen with whom police had significant interaction –- where Applicant not treated less favourably because of alerts, warnings and flags - where no evidence of bad faith – where no evidence of indirect discrimination or victimisation - where Respondent treated Applicant no less favourably than it would have for any citizen with significant interaction with police – where workplace health and safety exemption applies.




Liability for Climate Change Damage (Make the Polluters Pay) Bill 2021
HR 24/05/2021 - This Bill makes fossil fuel companies liable for climate change damage, giving victims of climate change, such as the 2019 – 2020 bushfire survivors, the right to bring an action against thermal coal, oil and gas companies for climate change damage.

Independent Office of Animal Welfare Bill 2021 
HR 24/05/2021 - Commonwealth statutory authority with responsibility for the development of animal welfare policy at the Commonwealth level. The Office will have a leadership role on matters of animal welfare, as well as the ability to conduct inquiries and reviews into the effectiveness and implementation of our animal welfare laws.

Acts compilation

Freedom of Information Act 1982 
27/05/2021 - Act No. 3 of 1982 as amended


Telecommunications (Statutory Infrastructure Providers—Circumstances for Exceptions to Connection and Supply Obligations) Determination 2021 
27/05/2021 - This instrument determines the circumstances where the connection obligation and the supply obligation do not arise in relation to requests for wholesale broadband services from a carriage service provider to a statutory infrastructure provider for the purposes of the Telecommunications Act 1997.



Residential Tenancies and Rooming Accomodation (Tenants' Rights) and Other Legislation Amendment Bill 2021
Stage reached: Referred to Committee on 26/05/2021
Amend Police powers and responsibilities

Subordinate legislation as made – 04 June 2021
No 52 Civil Liability and Other Legislation (Prescribed Amounts) Amendment Regulation 2021

Subordinate legislation as made – 28 May 2021
No 45 Proclamation No. 1—Criminal Code (Consent and Mistake of Fact) and Other Legislation Amendment Act 2021 (commencing certain provisions)
No 46 Penalties and Sentences (Penalty Unit Value) Amendment Regulation 2021


No 40 Proclamation—Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 (commencing remaining provisions)
The date of 5 July 2021 is fixed for the commencement of the provisions of the Act that are not in force.

No 41 Evidence (Intermediaries) Amendment Regulation 2021
This regulation commences on 5 July 2021. The purpose of the Amendment Regulation 2021 is to prescribe, commencing on 5 July 2021, Brisbane and Cairns as places for the operation of the Queensland Intermediary Scheme pilot. The aim of the pilot is to assist prosecution witnesses with communication needs to give their best evidence in child sexual offence prosecutions.

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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