In the Media

Ku-ring-gai heritage protection given a major boost

Heritage conservation in Ku-ring-gai has received a major boost with the NSW Government endorsing 37 new Heritage Conservation Areas across the council area. Under a new local environmental plan (LEP) approved by the Department of Planning andInfrastructure key areas of Killara, Lindfield, Roseville, Gordon, Wahroonga, Pymble,Turramurra and Warrawee will be given added protection (08 July 2013)

To read more, please click here.

Green light for first residential buildings at Barangaroo

The Department of Planning and Infrastructure  has granted planning approval to begin construction on Barangaroo’s first residential buildings, with a combined investment value of $100 million following the assessment of an application lodged by Lend Lease (05  July 2013)

To read more, please click here.

Announcements, Draft Policies and Plans released 2013

New planning process for small bars

Advisory note emailed to council general managers in July 2013 about the new process for small bar applications as a result of changes to the Liquor Act 2007(02 July 2013)

To read more, please click here.

Cases

Steele v Holmes [2013] NSWSC 875

REAL PROPERTY – Torrens Title – leases – plaintiff-tenant claims entitlement to life tenancy arising from alleged oral agreements with predecessors-in-title of defendant-registered proprietor – plaintiff’s claim failed on the facts

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Van Dyke v Sidhu [2013] NSWCA 198

ESTOPPEL – equitable estoppel – proprietary estoppel – promises by a man to a woman to give her a cottage property – where that property not separately transferable unless a plan of subdivision approved and registered – where the property is owned by the man and his wife as joint tenants – implications for proprietary estoppel claim of these preconditions to transferability – whether promisee acted to her detriment in reliance on the promises – inconclusive answers by her in cross examination to questions as to what she would have done if the promises had not been made – relevance of such answers to presumption of reliance – whether it was unconscionable for the man to resile from the promises – form of relief where third party interest subsists in promised property – equitable compensation to be rendered – appeal allowed

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Bardsley-Smith v Penrith City Council [2013] NSWCA 200

ENVIRONMENT AND PLANNING – planning schemes and instruments – validity of development consent relating to pharmacy – whether consent approved use of premises for prohibited purpose of a shop – whether use in accordance with development consent – whether retail business subordinate to principal purpose – whether continuing use for a prohibited purpose

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Hunters Hill Council v Gary Johnston [2013] NSWLEC 89

The Defendant is fined the sum of $40,000.

PROSECUTION – breach of s 125(1) Environmental Planning and Assessment Act 1979 – plea of guilty – sentence – removal of three trees and part removal of fourth tree required to be retained by conditions of development consent – condition of consent required protection and preservation of trees – removal of trees in foreshore scenic protection area, conservation area and in the vicinity of heritage items – mature grouping of pine trees – retention of trees to mitigate impact of new building from waterway – offence committed intentionally – strict liability offence – objective gravity – removal of trees secured improvement in personal amenity – subjective circumstances of offender – previous good character – no evidence of contrition and remorse.

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Contact Us

Lachlan Paterson  Partner

Direct Line: (02) 8289 5895

lpaterson@millsoakley.com.au

Catherine Hallgath  Partner

Direct Line: (02) 8289 5806

challgath@millsoakley.com.au

Vera Visevic  Partner

Direct Line: (02) 8289 5812

vvisevic@millsoakley.com.au

In the media

Multinationals and wealthy on ATO hit-list

Multinationals and big businesses that shift profit offshore to slash tax bills will receive more scrutiny than ever before. The ATO has more than 150 companies will face risk reviews and audits as part of the federal government’s crackdown on tax-avoiding multinationals and the broader global movement against the activity (16 July 2013)

To read more, please click here.

ASIC crackdown ‘won’t stop corporate leaks’, warn experts

Governance experts say a move by the Australian Securities and Investments Commission to crack down on the selective leaking of information by companies will not bring an end to market manipulation, as ASIC moves to sit in on stock analysts’ meetings with business leaders (08 July 2013)

To read more, please click here.

ACCC proposed new guidelines for review of mergers

ACCC has proposed to review its processes for assessing mergers. The process guidelines, which were last reviewed in 2006, provide guidance to businesses and legal practitioners with on the ACCC’s approach to informal reviews of mergers and acquisitions pursuant to s 50 of the Competition and Consumer Act 2010 (05 July 2013)

To read more, please click here.

ASIC charges anti-coal hoaxer

The corporate regulator has charged anti-coal campaigner over his release of a fake announcement from ANZ Bank about funding for Whitehaven Coal, that briefly wiped more than $314 million from the value of the mining company. ASIC confirmed last night Mr Moylan had been charged with one breach of section 1041E of the Corporations Act, covering the making of false or misleading statements (03 July 2013)

To read more, please click here.

Cases

Westpac Banking Corporation v Newey [2013] NSWSC 847

CONTRACT – construction – identification of ambiguity – known objective fact – textual anomaly

RECTIFICATION – best evidence of concurrent intention – contemporaneous prior consensus – more reliable than oral evidence at hearing

CONTRACT – commercial object – unresolved subjective evidence of divergent commercial purposes – no assistance – no need to resolve – Corporations Act 2001 (Cth); Trade Practices Act 1974 (Cth)

To read more, please click here.

Specsavers Pty Ltd v Luxottica Retail Australia Pty Ltd [2013] FCA 648

TRADE PRACTICES – misleading and deceptive conduct – whether advertising was comparative advertising or mere puffery – whether advertising was misleading or deceptive or likely to mislead or deceive – Competition and Consumer Act 2010 (Cth) Sch 2 ss 18, 29; Trade Practices Act 1974 (Cth) s 52

To read more, please click here.

Contact Us

Warren Scott  Partner

Direct Line: (03) 9605 0984

wscott@millsoakley.com.au

Daniel Livingston  Partner

Direct Line: (03) 9605 0965

dlivingston@millsoakley.com.au

Matthew Watson  Partner

Direct Line: (02) 8289 5884

mwatson@millsoakley.com.au

Martin Williams  Partner

Direct Line: (02) 8289 5861

mwilliams@millsoakley.com.au

Andrew Johnson  Partner

Direct Line: (07) 3228 0408

ajohnson@millsoakley.com.au

Summary

The recent Queensland Supreme Court decision of Agripower Australia Ltd v J & D Rigging Pty Ltd and Ors [2013] QSC 164 has called into question the application of the Building and Construction Industry Payments Act 2004 (Qld) (BCIP Act) to mining projects. Justice Margaret Wilson held that dismantling a mining plant on a mining lease did not constitute construction work for the purposes of the BCIP Act.

The Context of the Decision

Our readers may recall that in December 2012 the State Government released a Discussion Paper, seeking feedback from industry participants regarding the operation of BCIP Act. The findings and recommendations have not been released, however these are expected shortly.

One of the issues raised by the Discussion Paper was the application of BCIP Act to the resources industry, which is likely to involve a refocus of the definition of “construction work” and may erode the longevity of this decision.

BCIP Act currently excludes the following from constituting construction work – the drilling or excavation of oil or natural gas[1] and the extraction of minerals or constructing underground works for that purpose.[2] However these activities are construed narrowly.[3]

The Facts

In June 2012 the respondent, the holder of a mining lease under the Mineral Resources Act 1989 (Qld) (MRA) over part of the Cape York Skardon River Mine, entered into a contract with the applicant, which concerned the dismantling and removal from the mining lease land of the mining plant by the respondent.

A dispute arose as to the obligations of the parties and in November 2012 the respondent delivered a payment claim under BCIP Act. The applicant contended in their payment schedule that it was not liable under the BCIP Act for want of jurisdiction as the works set out in the contract did not fall within the definition of “construction work” within s 10 of the BCIP Act. The Adjudicator did not accept the applicant’s submissions and proceeded to adjudicate the matter.

The Decision

Her Honour in considering the parties’ submissions, determined that the main issue for consideration was whether “the mining plant to be dismantled consisted of structures or works ‘forming part of land’ within the meaning of s 10(1) paras (a) and (b) of the BCIP Act.”[4]

Her Honour held that because a mining lease does not create an interest in the land, it cannot be “land.” The mining plant existed for the purpose of carrying out the activities permitted by the mining lease. In addition the MRA required that the mining plant be removed prior to the expiry of the mining lease, further supporting the contention that the plant did not form part of the land. Although Her Honour noted that a structure need not be permanent under the BCIP Act[5] it still must form part of the land.

Her Honour found that the affixation of the structures comprising the mining plant was to “stabilise the plant and allow its efficient operation rather than to add some additional feature to the land on which it rested”[6] led to Her Honour’s conclusion that “the mining plant may have formed part of the mining lease, but it did not form part of the land…”

As the plant “did not ‘form part of the land’ within the meaning of s 10,” the relevant contract did not involve the carrying out of construction work under BCIP Act. The adjudicator’s decision was therefore void for want of jurisdiction.

As a result, works on mining leases may not be subject to the BCIP Act regime in Queensland.

Ramifications of the Decision

The security of payments legislation of New South Wales, Victoria, South Australia and the Australian Capital Territory Act, incorporate substantially the same definition of construction work as BCIP Act. The meaning in Western Australia and the Northern Territory is slightly narrower, by excluding the construction of the plant itself from the definition of “construction work” when that plant is for the purpose of discovering, extracting or processing oil, natural gas or any mineral.

It will be interesting to see whether Her Honour’s reasoning will be extended to petroleum authorities or pipeline works under the Petroleum and Gas (Production and Safety) Act 2004 (Qld) due to its similarities with the MRA.

The decision is currently on appeal. As such, this new jurisdictional ground of challenge for resources proponents to the BCIP Act may be short-lived.

The 26 July 2013 edition of the Queensland Government Gazette included a notification that a new version of Form 14 (Information Sheet) under the Body Corporate and Community Management Act 1997 will come into force on Thursday 1 August 2013 (version 11).

From 1 August 2013 the current Form 14 (version 10) will be withdrawn and the new Form 14 (version 11) must be used.

Is there a transitional period?

There is no transitional period. This means that contracts currently in the process of being signed or issued will need to be carefully managed.

The current Form 14 (version 10) still has to be used for contracts issued and fully signed and dated up to and including 31 July 2013.

However, any contract bundle which has been issued but is unsigned by the buyer and seller must be fully executed by 31 July 2013 or withdrawn and reissued on or after 1 August 2013 with the new Form 14 (version 11).

What are the consequences of using the old form?

Failure to comply with the new Form 14 (version 11) requirements may enable the buyer to terminate the contract.

What about current contract bundles with clients?

Any contract bundle issued to a buyer with the current Form 14 (version 10) must be fully executed by buyer and seller on or before 31 July 2013.

Any contract bundles issued but not executed by buyer and seller on or by 31 July 2013 must be withdrawn and reissued on or after 1 August 2013 with the new Form 1 (version 11).

Where to from here?

Any contract bundle to be issued between now and 1 August 2013 should not be issued until August 1 2013 when the new Form 14 (version 11) can be included.

From 1 August 2013 all contract bundles will include the updated Form 14.

Any contract bundles currently issued will be withdrawn and reissued after 1 August 2013.

A copy of the new Form 14 (version 11) can be downloaded here

For further information please contact:

Andrew Johnson, Partner
Ph: (07) 3228 0408
Email: ajohnson@millsoakley.com.au

Michael Nixon, Partner
Ph: (07) 3228 0450
Email: mnixon@millsoakley.com.au

In the media

Emissions trading draft will be ready soon

Climate Change Minister Mark Butler says draft laws to dump the carbon tax and begin an emissions scheme will be ready before the election, with the Prime Minister Kevin Rudd announcing yesterday Australia will move to a market-based emissions trading scheme from July 1, 2014 – one year earlier than planned (23 July 2013)

To read more, please click here.

Property rights and the ETS

Emissions trading schemes are a regulatory imposition to achieve reductions in greenhouse gas emissions, not a free market solution built on private property, according to the Institute of Public Affairs (19 July 2013)

To read more, please click here.

Australian floating carbon start price tipped at $9 by analysts

An early move to an emissions trading scheme (ETS) in 2014 will see Australia’s carbon price fall to $9/tonne from the $25.40/t fixed price, according to leading analysts. As it stands Europe and Australia have agreed to an interim, one-way link in 2015 with a full two-way link implemented by July 1, 2018 (17 July 2013)

To read more, please click here.

Australia to move to a floating price on carbon pollution in 2014

The Government announces Australian households will benefit from a reduction in the cost of living worth around $380 to an average household next financial year after the nation moves to a floating price on carbon emissions from July 1 (16 July 2013)

To read more, please click here.

Investors reveal impact of timber schemes collapses as they fight for compensation

More than a decade after being left out of pocket by a multi-billion-dollar timber scheme collapse thousands of investors are still seeking compensation. Victoria’s Supreme Court is currently hearing Australia’s largest class action against Great Southern (16 July 2013)

To read more, please click here.

Researchers say carbon storage not quick fix

Carbon farming will not work, according to the University of Melbourne. The new study found the current scientific findings indicate that storing carbon in Australia soils will not be the quick fix it has been promoted, and farmers are unlikely to make any money out of it (17 July 2013)

To read more, please click here.

ACCC negotiates removal of misleading ‘organic’ water claims

The ACCC announces seven suppliers of bottled water will remove ‘organic’ claims from labelling and marketing material. An eighth supplier has withdrawn its product from sale. This followed negotiations between the ACCC and the manufacturers and has avoided resorting to enforcement action (16 July 2013)

To read more, please click here.

EGA report: power sector transition well underway

Australia’s power sector began a major shift to reduce greenhouse emissions from the end of last decade, new industry data released by the ESAA has revealed. Planning and investment in new power stations began shifting towards renewable energy from 2007 (11 July 2013)

To read more, please click here.

Landholders have their say on vegetation management codes

The Newman Government is giving landholders their say on the development of self-assessable codes that are the centrepiece of Queensland’s new common sense vegetation management laws (23 July 2013)

To read more, please click here.

Public housing tenant ordered to pay almost $66,000 after illegal renovation

A public Housing tenant who turned his unit into a danger zone after cutting through asbestos and removing walls has been ordered to pay almost $66,000 compensation (20 July 2013)

To read more, please click here.

Chief Inspector of Coal Mines for Queensland announced

The Minister for Natural Resources and Mines announces  the appointment of Gavin Taylor in Queensland’s new Chief Inspector of Coal Mines (18 July 2013)

To read more, please click here.

Queensland puts a forensic focus on growth

The State Government has today released a framework to develop an economic roadmap for Queensland with the release of the Governing for Growth: Enabling A Stronger Queensland Economy built upon the findings of the Commission of Audit Final Report (17 July 2013)

To read more, please click here.

Newman Government cuts resource project red tape

As part of the changes, the Coordinator-General and Department of Environment and Heritage Protection has formulated new risk-based, generic terms of reference for EIS processes conducted under the State Development and Public Works Organisation Act 1971  (17 July 2013)

To read more, please click here.

Plans to protect the Great Barrier Reef

The Australian and Queensland governments confirmed their commitment to protecting the Great Barrier Reef with today’s release of the 2013 Reef Water Quality Protection Plan and the 2011 Great Barrier Reef Report Card (10 July 2013)

To read more, please click here.

Westfield shops seek rent cut compensation for centre works affecting business

Retailers are seeking rent relief from Westfield as compensation for loss of business following the start of a $400 million redevelopment at Garden City and the Distributive and Allied Employees’ Association has SDA) has launched action that, if successful, would force employers to cover the cost of staff parking (10 July 2013)

To read more, please click here.

Published – articles, papers, reports

Managing the impacts of major projects in resource communities / QLD Department of State Development, Infrastructure and Planning

Details : This framework provides consistency between the state’s strategic direction (to reduce red tape, to strengthen the resource sector as a key pillar of the Queensland economy and empower local government) and its approach to industry, workforce and regional development (16 July 2013)

To read more, please click here.

Starting Emissions Trading on 1 July 2014: Policy Summary / Australian Government

This change will establish binding annual limits (pollution caps) on Australian industry’s greenhouse gas emissions from 1 July 2014 onward and ensure that Australia meets its international emissions reduction targets under the second commitment period of the Kyoto Protocol (2013 to 2020) and under the United Nations Framework Convention on Climate Change (released 16 July 2013)

To read more, please click here.

Electricity Gas Australia 2013 (EGA) / Energy Supply Association of Australia (ESAA)

This includes a ten-year review of energy industry planning for new power stations which revealed a major shift in energy business planning at the end of last decade. Wind farms accounted for around half of all new large-scale generation investment in 2012-13, with a growing number of hydro, geothermal and solar plants now in active planning. (11 July 2013)

To read more, please click here.

In practice and courts

Streamlining reporting under the National Greenhouse and Energy Reporting Scheme

The consultation process and associated legislative amendments to streamline reporting under the National Greenhouse and Energy Reporting (NGER) Scheme have been finalised with statistical data outlined here (22 July 2013)

To read more, please click here.

Government’s proposal to start emissions trading from 1 July 2014: policy summary

A policy summary outlining the Australian Government’s proposal to start emissions trading on 1 July 2014 has been released on the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education website. The policy summary outlines the proposal to end the fixed-price period of the carbon pricing mechanism and move to an emissions trading scheme on 1 July 2014 (19 July 2013)

To read more, please click here.

Announcements, Draft Policies and Plans released 2013

Queensland Plan 2013 : submissions

Your chance to contribute to the 30-year vision for Queensland closes at midnight 30 August 2013. The Queensland Plan will be released in late 2013  (July 2013)

To read more, please click here.

QCA issue paper:  Coal Seam Gas regulation

The Authority has released an Issues Paper for its investigation into coal seam gas regulation (submissions are required by 22 August 2013) (18 July 2013)

To read more, please click here.

CMS disclosure changes commence 01 August 2013

The Body Corporate and Community Management and Other Legislation Amendment Act 2013 (ss 6 to 9). provisions change the section 206 information to be given by a seller to a buyer and omit the requirement to disclose a copy of a community management statement on the sale of an existing lot. Commenced from 1 August 2013 are also transitional provisions (ss 420 to 425) dealing with termination and cancellation rights arising from the disclosure amendments.

To read more, please click here.

Reminder: Draft Darling Downs regional plan: Consultation

The draft Darling Downs Regional Plan includes the local government areas of Balonne Shire Council, and the Goondiwindi, Maranoa, Southern Downs, Toowoomba and Western Downs regional councils. Submissions close on 20 September 2013.

To read more, please click here.

New Public Ruling for first home owner grant

The Commissioner has issued Public Ruling FHOGA015.2.1—Residence requirements—Commissioner discretions. The arrangement allows the Commissioner to exercise the relevant discretions whether or not the period for compliance with the residence requirement at issue has expired (16 July 2013)

To read more, please click here.

Cases

Hope & Anor v Brisbane City Council [2013] QCA 198

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – GENERALLY – where the applicants’ land was taken by the respondent under the Acquisition of Land Act 1967 (Qld) – where the applicants served the respondent with a notice of appeal out of time – where the applicants apply for leave to appeal a decision of the Land Appeal Court – where the applicants contend that the Land Appeal Court made an error or mistake of law in construing the Land Court Act 2000 (Qld), s 64, s 65 and s 57(c) – whether an appeal to the Land Appeal Court is incompetent if the applicants fail to serve the notice of appeal on the respondent within 42 days after the order was made – whether serving the respondent with a notice of appeal out of time can be cured by an order of the court under the Land Court Act 2000 (Qld), s 57

To read more, please click here.

Lipovsek v Brisbane City Council [2013] QSC 185

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – OBJECTIONS – where the Council’s resolution records that the Council had considered the objections – where the evidence does not support the proposition that the objection, the substance of its grounds, or the delegates report were considered – whether the council had given “due consideration” to the objections

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – POWERS OF ACQUISITION – PURPOSE OF ACQUISITION – where the Council made an application to the Minister to take land under s 9 of the Acquisition of Land Act 1967 (Qld) – where the decision of the Council to take land was for environmental purposes – whether the headings of the separate parts of a schedule constitute purposes – whether the Council’s purpose was an authorised purpose for taking land

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the Council’s resolution records that the Council had considered the objections – where the evidence does not support the proposition that the objection, the substance of its grounds, or the delegates report were considered – whether procedure required by law to be observed or not observed.

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Scott v Tablelands Regional Council [2013] QPEC 033

ENVIRONMENT AND PLANNING – APPLICATION –application to change certain conditions of development approval – whether change to the approval would be likely to cause a person to make a properly made submission objecting to the proposed change

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MC Property Investments Pty Ltd v Sunshine Coast Regional Council [2013] QPEC 032

PLANNING AND ENVIRONMENT – Originating Application seeking declarations that a proposed plan of development to increase the size of one building on a heavily developed site was “generally in accordance” with a Plan attached to a rezoning approval over the site under the superseded Plan as “Special Facilities Zone (Architecture and Building Gallery…)” – whether site was developed in accordance with the rezoning approval; where development of site now is substantially different from development proposed in Plan associated with rezoning; whether new proposal involved any “pre-existing lawful use” as at 30 March 1998

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McConnell v Zenalee Pty Ltd [2013] QCAT 249

TREES – overhanging neighbour’s yard – minor tree debris falling on neighbour’s property –– whether substantial, ongoing and unreasonable interference – costs of removal where poisoning alleged

Barker v Kyriakides [2007] NSWLEC 292 Thomsen v White [2012] QCAT 381

To read more, please click here.

Cases to 16 July 2013

Truckstop Pty Ltd v Coastal Haulage Pty Ltd & Anor [2013] QDC 149

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – AGREEMENT CONTEMPLATING EXECUTION OF FORMAL DOCUMENT –Where agreement to lease signed by Second Defendant on behalf of First Defendant – Where agreement to lease also included a term that the parties would subsequently execute a formal lease containing the terms and conditions the parties had agreed upon – Where agreement to lease included the normal terms and conditions applying to leases of similar buildings – Where execution of formal lease subject to approval of the lessor and lessee and their respective legal advisors –Whether agreement to lease constituted a binding contract

CONTRACT – BREACH OF CONTRACT – Where Defendants failed to pay rent and outgoings to Plaintiff – Whether breach of contract by First Defendant – Loss and Damage – Where Defendants allege that certain representations and undertakings were made by the Plaintiff – Whether these representations and undertakings formed oral terms under the agreement to lease

CONTRACT – BREACH OF GUARANTEE – Where agreement to lease contained the term ‘Personal Directors guarantee is to be provided by the lessee’ – Where Second Defendant did not sign the formal lease containing a guarantee – Whether Second Defendant is estopped from denying that a guarantee was entered into –Whether breach of guarantee under the agreement to lease and the contemplated lease by Second Defendant – Loss and Damage

AUSTRALIAN CONSUMER LAW – MISLEADING AND DECEPTIVE CONDUCT– Whether alleged representations were made by First Defendant within the meaning of s 18 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) – Whether First Defendant made representations as to future matters under s 4 of the Competition and Consumer Act 2010 (Cth) when the agreement to lease was entered into – Whether Damages and/or compensation under ss 82 and 87 of the Competition and Consumer Act 2010 (Cth) should be awarded to the Plaintiff – Whether Second Defendant was knowingly concerned in and a party to any contravention under s 75B of the Competition and Consumer Act 2010 (Cth)

AUSTRALIAN CONSUMER LAW –MISLEADING AND DECEPTIVE CONDUCT – FALSE OR MISLEADING REPRESENTATIONS ABOUT SERVICES – Whether representations and undertakings were made by the Plaintiff to the Defendants prior to entering into the agreement to lease – Whether these representations are in contravention of s 4 and ss 18 and 29 of Schedule 2 of the Competition and Consumer Act 2010 (Cth) – Whether these representations induced the Defendants into entering into the agreement to lease – Whether the Defendant has suffered loss and damage as a consequence – Whether any offset should be made against any award of damages if made in the Plaintiffs favour

CHATTELS – DETINUE – CONVERSION – LOSS AND DAMAGE – Where Defendants removed Plaintiffs property from leased premises – Value of chattels – Cost of replacement

To read more, please click here.

Legislation

Commonwealth

Agricultural and Veterinary Chemicals Legislation Amendment Act No 125 of 2013.  An Act to amend laws relating to agricultural and veterinary chemicals, and for related purposes Approvals, registrations, permits and licences, enforcement and data protection (11 July 2013 Date of Assent 29 June 2013)

To read more, please click here.

Agricultural and Veterinary Chemicals Code Instrument No. 4 (MRL Standard) Amendment Instrument 2013 (No. 4)

This instrument amends the Agricultural and Veterinary Chemicals Code Instrument No. 4 (MRL Standard) 2012 to set new and varied MRLs and make other changes to the tables with respect to certain residue definition, commodities and substances.  Registered  22 July 2013

To be ceased 24 Jul 2013  Repealed under Division 1 of Part 5A of the Legislative Instruments Act 2003

To read more, please click here.

National Greenhouse and Energy Reporting Amendment (Streamlining Reporting) Regulation 2013 SLI 2013 No. 175

Registered Commencement 1/07/2014 Schedule 2; 16/07/2013 Schedule 1 The day after this regulation is registered; 16/07/2013 Sections 1 to 4

This regulation amends the National Greenhouse and Energy Reporting Regulations 2008 to streamline the reporting requirements under the National Greenhouse and Energy Reporting Scheme, reducing the compliance costs for many reporters – Registered  15 July 2013

To read more, please click here.

Greenhouse and Energy Minimum Standards (Authorisation Requirements for Testing GEMS Products) Instrument 2013

This standard specifies the requirements that must be satisfied for persons to be authorised to test GEMS products under section 125 of the Greenhouse and Energy Minimum Standards Act 2012.

Administered by: Resources, Energy and Tourism – Registered 17 July 2013

To read more, please click here.

Queensland

Regulations

No 136: Rural and Regional Adjustment Amendment Regulation (No. 4) 2013 – 12 July 2013 – Amends the Rural and Regional Adjustment Act 1994

No 137:  Aboriginal and Torres Strait Islander Land Legislation Amendment Regulation (No. 1) 2013 – 12 July 2013 – Amends the Aboriginal Land Act 1991; Torres Strait Islander Land Act 1991

No 139:  Economic Development Amendment Regulation (No. 3) 2013 – 19 July 2013 – Amends the Economic Development Act 2012 – to declare land at Maroochydore City  Centre as a Priority Development Area and to introduce an Interim Land Use Plan for that area.

No 141 Plant Protection Amendment Regulation (No. 4) 2013 – 19 July 2013 – Amends the Plant Protection Act 1989 with Amendment of sch 1 (Prescribed pests) and sch 12 (Cape York Peninsula targeted pests)

No 142 Aboriginal Land Amendment Regulation (No. 4) 2013 – 19 July 2013 – Amends the Aboriginal Land Act 1991

No 143:  Plant Protection Amendment Regulation (No. 5) 2013 – 19 July 2013 – Amends the Plant Protection Act 1989 with Amendment of sch 1 (Prescribed pests) and sch 2 (Notifiable pests)

No 144:  Land Amendment Regulation (No. 1) 2013 – 19 July 2013 see Explanatory Memorandum – Amends the Land Regulation 2009 by introducing a rental ceiling for residential permits to occupy being used as shacks which are used for short term accommodation. This regulation is taken to have commenced on 1 July 2013

Current reprints

Aboriginal Land Regulation 2011 12 July 2013

Rural and Regional Adjustment Regulation 2011 12 July 2013

Torres Strait Islander Land Regulation 2011 12 July 2013

Queensland legislation can be accessed at www.legislation.qld.gov.au

Contact Us

Andrew Johnson  Partner

Direct Line: (07) 3228 0408

ajohnson@millsoakley.com.au

Michael Nixon  Partner

Direct Line: (07) 3228 0450

mnixon@millsoakley.com.au

In the media

Melbourne’s western harbour town to grow  

Minister for Planning Matthew Guy has given approval for the expansion of a redevelopment in Melbourne’s west by announcing extensions to the Wyndham Harbour project (18 July 2013)

To read more, please click here.

Reforming Victoria’s planning framework  

Minister for Planning Matthew Guy has announced a full review of the State Planning Policy Framework (SPPF)  in order to deliver on the state’s new Metropolitan Planning Strategy and its Regional Growth Plans (18 July 2013)

To read more, please click here.

Coalition Government funding to bust Brooklyn’s dust problems  

Environment and Climate Change Minister Ryan Smith today announced funding of $900,000 from the Victorian Coalition Government’s Sustainability Fund to Brimbank City Council to support sealing and other improvement works to Brooklyn’s dustiest roads (17 July 2013)

To read more, please click here.

East-worst: heavy toll for Parkville apartments  

Investors with Evo apartments in Parkville thought they were purchasing views of “sublime parklands and leafy streetscapes”. Instead, the 175 off-the-plan luxury apartments will be completely surrounded by freeway, according to Victorian government east-west toll road plans (17 July 2013)

To read more, please click here.

Church takes legal action on property feud  

The Presbyterian Church of Victoria has become embroiled in a fight with the trustees of one of its property portfolios, launching a lawsuit that alleges its commercial holdings in the CBD have been mismanaged. The dispute has broken out over control of the income from a 99-year lease of a prime Russell Street property (16 July 2013)

To read more, please click here.

In practice and courts

Reformed residential zones advisory note   

The Department of Planning and Community Development has released a new advisory note on the reformed residential zones. The note provides information about the General Residential, Neighbourhood Residential and Residential Growth Zones, which replace the Residential 1, 2 and 3 zones (18 July 2013)

Bushfire disclosure for property sales effective from 31 July 2013   

Section 32 of the Sale of Land Act 1962 will be amended to require a seller to disclose if a property for sale is in a bushfire-prone area and and require a Bushfire Prone Area property report to be included with the Vendor Statement (09 July 2013)

To read more, please click here.

Cases

Cases to 16 July 2013

Fitzroy Dental Pty Ltd v Metropole Management Pty Ltd & Anor [2013] VSC 344   

LANDLORD AND TENANT – Whether retail premises lease – Provision of conference and function centre services by tenant of premises – Whether the services are retail services for the purposes of the Retail Leases Act 2003 – Whether the premises are “open to the public” – “Ultimate consumer” test applied with respect to services – Scope of retail leases legislation as remedial or ameliorating legislation – 536 Swanston Street Pty Ltd v Habrut Pty Ltd (1998) V ConvR 54-323 – Wellington v Norwich Union Life Insurance Society Limited [1991] VicRp 27; [1991] 1 VR 333 – FP Shine (Vic) Pty Ltd v Gothic Lodge Pty Ltd [1994] 1 VR 191 – Collector of Customs v Chemark Services Pty Ltd [1993] FCA 291; (1993) 42 FCR 585 – Hitech Pathology Pty Ltd v Bankberg Pty Ltd (1999) V ConvR 58-536 – Peppercorn Nominees Pty Ltd v Loizou (1997) V ConvR 54-560 – Retail Leases Act 2003 ss 3, 4(1), 81 and 89

To read more, please click here.

Melbourne CC v Kingfish Victoria Pty Ltd & Anor (Includes Summary) (Red Dot) [2013] VCAT 1130   

Difference in considerations between the gaming and planning approvals for electronic gaming machines

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE LAW – Discussion of the different considerations between the necessary gaming and planning approvals for the proposed installation of 54 gaming machines.

APPLICATION – Discussion of issues and problems arising where it is proposed to install 54 gaming machines adjacent to an existing specialist social housing facility providing supported housing for disadvantaged, often previously homeless elderly residents. Consideration of how these issues are to be resolved in terms of the gaming assessment process compared to the planning one, including whether the problems arising are made acceptable by the presence of existing gaming facilities within ready walking distance and/or the management of the proposed gaming machines having a strong commitment to ‘responsible gaming’ and ‘harm minimisation’.

To read more, please click here.

Thomson v Boseley (Retail Tenancies) [2013] VCAT 1079   

Retail lease – Landlord’s covenant to repair – obligation is to repair upon notice of want of repair – failure to maintain roof in watertight condition – evidence that roof did not leak for six years before the tenancy – finding that roof was water tight at time tenancy entered into – extent of repair required sufficient to ensure compliance with covenant and no further

To read more, please click here.

Contact Us

James Price  Partner

Direct Line: (03) 9605 0824

jprice@millsoakley.com.au

In The Media

Crown Unsolicited Proposal for Barangaroo

Crown Limited has advised the Department of Premier and Cabinet it will accept the NSW Government’s conditions on its ‘unsolicited proposal’ at Barangaroo. This means the Crown Limited ‘unsolicited proposal’ has now formally moved to Stage 3 (19 July 2013)

To read more, please click here.

Wentworth Point  homes and open space for prime harbour side site

The Department of Planning and Infrastructure has released draft plans to revitalise 18.6 ha of government land at Wentworth Point over 20 years. These plans will help turn this site into a community and open space close to transport, infrastructure and jobs (17 July 2013)

To read more, please click here.

Strengthening landholder rights

The NSW Premier Barry has announced a strengthening of laws to give landholders a right to legal representation during arbitration. While the current legislation only allows a legal practitioner to represent a party during arbitration if both parties agree, a more level playing field will allow landholders to choose to have legal representation then the licence holder cannot object  (17 July 2013)

To read more, please click here.

Heritage buildings protected

The NSW Government confirmed today that heritage and planning controls will ensure the unique nature of these two landmark buildings is respected and protected. The new planning system reforms are completely unrelated to the sale of the two buildings (09 July 2013)

To read more, please click here.

New plaza to become iconic Sydney CBD meeting place

Minister for Transport Gladys Berejiklian said a new public space in Sydney’s CBD will become an iconic meeting place, and play a key part in the NSW Government’s Wynyard Walk project, linking Barangaroo with Wynyard Station (09 July 2013)

To read more, please click here.

Published Articles

Government’s proposal to start emissions trading from 1 July 2014: policy summary

A  policy summary outlining the Australian Government’s proposal to start emissions trading on 1 July 2014 has been released on the Department of Industry, Innovation, Climate Change, Science, Research and Tertiary Education website. The policy summary outlines the proposal to end the fixed-price period of the carbon pricing mechanism and move to an emissions trading scheme on 1 July 2014 (19 July 2013)

To read more, please click here.

Broader Western Sydney Employment Area (WSEA)

The Broader Western Sydney Employment Area (WSEA) draft Structure Plan was released in June 2013. The draft Broader WSEA Structure Plan is now on public exhibition until 26 August 2013. (20 June 2013)

To read more, please click here.

Cases

Mamfredas Investment Group Pty Limited (formerly known as MAM Marketing Pty Ltd) v PropertyIT and Consulting Pty Limited & Ors [2013] NSWSC 929

PROPERTY – restriction as to user over parking spaces in strata building – use limited to owners or occupiers of adjoining building – restriction registered before adjoining building developed – adjoining building ultimately developed with its own parking spaces – owner of parking spaces seeks extinguishment of restriction under Conveyancing Act 1919 s 89 – all but three of the owners benefiting from restriction signed releases – three remaining owners filed submitting appearances.

COSTS – plaintiff successful on its application under Conveyancing Act 1919 s 89 – plaintiff and defendants involved in lengthy negotiations before proceedings commenced – defendants’ filed submitting appearances “save as to costs” under UCPR r 6.11 – whether plaintiff should pay defendants’ costs – or whether defendants should pay plaintiff’s costs on an indemnity basis -   Conveyancing Act 1919 s 89(a), s 88(2)(d), s 88(3A), s 88B; Uniform Civil Procedure Rules 2005 r 6.11, 42.1

To read more, please click here.

Blakeney v Mosman Municipal Council(No 2) [2013] NSWLEC 100

DEVELOPMENT APPLICATION – proposed provision of on-site car parking area and construction of an access driveway along an unformed road – whether that road was a ‘public road’ within the meaning of the Roads Act 1993 – whether the Court had the power to consent under s 138 of the Roads Act to construct the access driveway on that road – application of s 39(2) of the Land and Environment Court Act 1979 – impact of driveway construction for private use of land zoned for public recreation purposes – long-term pedestrian use of unformed road for access to harbour side bushland reserve and beach – development inconsistent with objectives of planning controls and bushland management plan – application refused – Environmental Planning and Assessment Act 1979

To read more, please click here.

Australia and New Zealand Banking Group Limited v Apollo Valley Pty Ltd [2013] NSWLEC 108

CAVEAT – application for extension of operation of a caveat under Schedule 1A of the Water Management Act 2000 – power of Land and Environment Court to extend operation of caveat – caveat lapsing notice issued by Registrar General – equitable interest in water access licence – balance of convenience favoured extension of caveat – operation of caveat extended

PROCEDURE – order under s 31(2)(b) of the Land and Environment Court Act 1979 that proceedings be dealt with under Class 2 – implication of assigning proceedings to Class 2 – conduct of proceedings and way evidence may be received – right of appeal from a decision limited to question of law – importance of matters being assigned to the correct class of jurisdiction

To read more, please click here.

NSL Pty Ltd v 2 Roslyn Street Pty Ltd [2013] NSWSC 930

Verdict and judgment for the first plaintiff against the first defendant for $110,600 together with interest at Court rates from 15 July 2004 until 15 July 2013, assessed in the sum of $90,000.

LESSOR & LESSEE – lease of premises used for conduct of a nightclub – re-entry by lessor following breach – where lessee’s fixtures, chattels and equipment remained upon premises following re-entry – whether lessor failed to give lessee reasonable opportunity to remove goods – whether lessor converted lessee’s goods.

To read more, please click here.

Contact Us

Lachlan Paterson  Partner

Direct Line: (02) 8289 5895

lpaterson@millsoakley.com.au

Catherine Hallgath  Partner

Direct Line: (02) 8289 5806

challgath@millsoakley.com.au

Vera Visevic  Partner

Direct Line: (02) 8289 5812

vvisevic@millsoakley.com.au

In the media

Franchisors must now bargain in good faith and outline risks, under Franchising Code

Franchisors will be mandated to give prospective franchisees a document outlining the risks of business and give information on their rights to benefit from online sales in an overhaul of the industry’s national code, under changes announced by Small Business Minister Gary Gray (25 July 2013)

To read more, please click here.

Legal pressures muzzle directors

The nation’s most powerful directors have warned they are reluctant to tell the market about the prospects for their companies and instead let “mountain of lawyers” draft boilerplate statements that frustrate investors because of “enormous legalistic pressure”  (24 July 2013)

To read more, please click here.

D&O — claimant’s charge over policy does not extend to prevent payment of defence costs

The much-anticipated judgment in Chubb Insurance Company of Australia Limited v Moore [2013] NSWCA 212 (the Great Southern case) has been delivered, finding that a charge under s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (LRA) over directors’ and officers’ (D&O) insurance policies does not extend to costs spent in the defence of a claim (18 July 2013)

To read more, please click here.

Phone company and directors fined $51,000

A West Australian telecommunications company and two of its directors have been fined a total of $51,000 in the Noosa Magistrates Court yesterday (17 July) for illegally sending phone bills to a Queensland consumer they had never provided services to, and sending a debt collector after him (18 July 2013)

To read more, please click here.

Cases

Isles v Australian Partners Management Pty Ltd, in the matter of Australian Partners Management Pty Ltd (in liq) [2013] FCA 688

CORPORATIONS – s 461(1)(k) Corporations Act 2001 (Cth) – winding up on just and equitable grounds – quasi-partnership – breakdown in mutual trust and confidence between members – sole director unresponsive to member requests – company money missing

Corporations Act 2001 (Cth) ss 109X, 461(1)(k), 462(2)(c)

To read more, please click here.

Bradley Phillip Ingram -v- Y Twelve Pty Limited [2013] NSWSC 928

EVIDENCE – PRIVILEGE – common interest legal privilege – whether directors of companies party to proceedings have a common interest with companies in legal advice given to the companies – held there was no common interest but only a single interest and no disclosure to the directors because in so far as the communications were with directors, they were no more than the guiding mind and will of the companies.     Conveyancing Act 1919 (NSW); Evidence Act 1995 (NSW)

To read more, please click here.

Perpetual Custodians Ltd as custodian for Tamoran Pty Ltd as trustee for Michael Crivelli v IOOF Investment Management Ltd;Murray v Perennial Investment Partners Ltd [2013] NSWCA 231

COMPANIES – Compromises and arrangements – Scheme of arrangement – Transfer scheme conferring authority on target to transfer members’ shares to acquirer in exchange for shares in acquirer – Statutory majority of members voted in favour of scheme – Whether target company and its members who voted in favour of scheme “associates” – Whether relevant agreement between target and members voting in favour of scheme for purpose of controlling or influencing composition of acquirer’s board or conduct of acquirer’s affairs – Whether target and members voting in favour of scheme acting in concert – Whether target and members voting in favour of scheme proposing to become associated – Whether target and members voting in favour of scheme had “together become entitled” to shares in acquirer

CONTRACT – Construction and interpretation – Definitions – Whether definition displaced by context

WORDS AND PHRASES – “Associated” – “Acting in concert” – “Together become entitled”

Competition and Consumer Act 2010 (Cth); Corporations Act 2001 (Cth)

To read more, please click here.

Contact Us

Warren Scott  Partner

Direct Line: (03) 9605 0984

wscott@millsoakley.com.au

Daniel Livingston  Partner

Direct Line: (03) 9605 0965

dlivingston@millsoakley.com.au

Matthew Watson  Partner

Direct Line: (02) 8289 5884

mwatson@millsoakley.com.au

Martin Williams  Partner

Direct Line: (02) 8289 5861

mwilliams@millsoakley.com.au

Andrew Johnson  Partner

Direct Line: (07) 3228 0408

ajohnson@millsoakley.com.au

In the media

Colliers International: demand from global retailers ramps up  

Retail landlords can prepare themselves for an influx of overseas retailers, with estimates indicating a potential increase of another 230 stores, totalling 220,000 sqm in major CBDs in the next five years (05 August 2013)

To read more, please click here.

Melbourne logistics costs to grow  

The cost of occupying prime logistics space in Melbourne will grow by 3.4 per cent over the next five years on the back of solid tenant demand and limited quality stock, according to a recent DTZ report (05 August 2013)

To read more, please click here.

Lend Lease lands Docklands deal  

The right to develop the last undeveloped site at Melbourne’s Docklands precinct has been won by Lend Lease, which signed a deal with the Victorian government last week (05 August 2013)

To read more, please click here.

Bushfire regulation changes to reduce red tape  

Thousands of homes across Victoria will have their bushfire risk status removed or updated following a statewide bushfire regulatory review, Planning Minister Matthew Guy announced today (02 August 2013)

To read more, please click here.

Key Docklands gateway project gets green light  

Docklands continues to cement its position as Australia’s premier urban renewal precinct with Planning Minister Matthew Guy announcing planning approval for a $130 million hotel and housing development to be constructed (30 July 2013)

To read more, please click here.

In practice and courts

FSPL reminder for landlords  

Landlords are reminded to check their standard leases carefully to ensure that the FSPL is recoverable from tenants. In addition, where the Retail Leases Act (2003) (Vic) applies, landlords: should now be using the new form of disclosure statement under the Retail Leases Regulations 2013 which provides for a separate head for the FSPL which must be completed  (031 July 2013)

To read more, please click here.

Cases

Bunnings Properties Pty Ltd v Kingston CC [2013] VCAT 1257  

Section 18 Subdivision Act 1988. Considerations relevant to determination of public open space contribution. Subdivision of land having an area of 8.12ha. into two allotments, one of 3.646ha. and the other of 4.474ha. Application under section 80 Planning and Environment Act 1987 to review Condition 4 of Planning Permit No. KP-172/2012 Business 4 Zone

To read more, please click here.

Cases to 29 July 2013

Doherty v Murrindindi SC (Includes Summary) (Red Dot) [2013] VCAT 1185  

Development of a dependent person’s unit on a property in a bushfire risk area.

LOCATION OF PASSAGE OF INTEREST [1] to [7] and [45] to [62]

REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE

This decision is likely to be of interest to authorities and others assessing building and planning applications in areas subject to bushfire risks. The decision raises particular issues about the difference between the assessment of a bushfire hazard under building approvals and assessments undertaken for planning approvals.

The decision highlights that there is a clear and undesirable disparity between the assessment of bushfire hazard under the building approval for the applicant’s rebuilt dwelling and the preferred approach for considering the present planning application.

To read more, please click here.

Contact Us

James Price  Partner

Direct Line: (03) 9605 0824

jprice@millsoakley.com.au

In the media

Colliers International: demand from global retailers ramps up

Retail landlords can prepare themselves for an influx of overseas retailers, with estimates indicating a potential increase of another 230 stores, totalling 220,000 sqm in major CBDs in the next five years (05 August 2013)

To read more, please click here.

$6.4 million to tackle Australia’s deadly asbestos legacy

The Minister for Workplace Relations has announced an additional $6.4 million for the new Asbestos Safety and Eradication Agency to implement the National Strategic Plan for Asbestos Awareness and Management  (31 July 2013)

To read more, please click here.

Surplus Commonwealth Land should be used for Housing

Tens of thousands of new homes could potentially be accommodated on underutilised Commonwealth Government land across Australia’s major cities, according to the UDIA, calling on the Government to undertake thorough, regular auditing of its land assets (30 July 2013)

To read more, please click here.

NSW MPD Monitor: Sydney home approvals highest in a decade

According to the latest housing figures in the NSW Metropolitan Development Program (MDP) Monthly Monitor, home approvals and completions in Sydney are continuing to track at the highest levels in nearly a decade (27 July 2013)

To read more, please click here.

Published

State of Australian cities 2013 / Department of Infrastructure and Transport

This report brings together current research, including newly released data from the 2011 Census, to present a comprehensive snapshot of Australian cities (30 July 2013)

To read more, please click here.

CPI June quarter 2013 / Australian Bureau of Statistics

The Consumer Price Index (CPI) rose 0.4 per cent in the June quarter 2013. The most significant price rises in the June quarter 2013 were for medical and hospital services (+3.4%), tobacco (+3.0%), new dwelling purchase by owner-occupiers (0.9%), furniture (+4.8%) and rents (+1.1%) (24 July 2013)

To read more, please click here.

In practice and courts

Green Building Day 2013: megatrends for the property sector

This week’s Green Building Day keynote speech by GPT’s sustainability manager Bruce Precious summed up six key trends that will shape the property sector over the coming decades (25 July 2013)

To read more, please click here.

Cases

Tan v Hii [2013] NSWDC 118

Order the plaintiff pay 70 per cent of the defendant’s costs.

CONTRACT – negligence – pre-purchase inspection – apartment – common property defects – causation – damages – Civil Liability Act 2002, s 5D

To read more, please click here.

Walker v Siasat [2013] NSWLEC 123

DECLARATIONS AND INJUNCTIONS: injunction to halt construction work on residential dwelling – construction alleged to impact on views of neighbour – whether a serious question to be tried – whether balance of convenience favours granting of injunction – injunction granted – mediation ordered. Kiama Development Control Plan 2012

To read more, please click here.

Pittwater Council v Gerard [2013] NSWLEC 112

APPEAL – appeal available only on a ground that involves a question of law alone – construction of that appeal limitation – appeal by Council prosecutor from Local Court’s dismissal of summary charge that defendant carried out development other than in accordance with development consent because of alleged non-compliance with sediment control condition – construction of that condition – whether error on a question of law alone or in Local Court’s decision that Council had not discharged its onus of proving that the condition was not complied with – Crimes (Appeal and Review) Act 2001 s 42; Environmental Planning and Assessment Act 1979 ss 76A, 125(1); Land and Environment Court Act 1979 s 21A

To read more, please click here.

Contact Us

Lachlan Paterson  Partner

Direct Line: (02) 8289 5895

lpaterson@millsoakley.com.au

Catherine Hallgath  Partner

Direct Line: (02) 8289 5806

challgath@millsoakley.com.au

Vera Visevic  Partner

Direct Line: (02) 8289 5812

vvisevic@millsoakley.com.au

In the media

Investors taking note of climate risks: report

Global climate change investor groups have published a report finding that asset managers are taking note of climate change risks when making investment decisions. The report found a majority of investors view climate change as a material risk and have largely retained or advanced their commitment to addressing climate change in investment activities (06 August 2013)

To read more, please click here.

Colliers International: demand from global retailers ramps up

Retail landlords can prepare themselves for an influx of overseas retailers, with estimates indicating a potential increase of another 230 stores, totalling 220,000 sqm in major CBDs in the next five years (05 August 2013)

To read more, please click here.

Native title law inquiry terms of reference announced

The Attorney-General  has announced the final terms of reference for the ALRC inquiry into specific areas of native title law, to ensure that the native title system continues to meet the needs of indigenous people well into the future (03 August 2013)

To read more, please click here.

A New Standard for Adapting Settlements and Infrastructure to a Changing Climate

ISCA welcomes the release of this new Australian Standard AS 5334 Climate Change Adaptation for Settlements and Infrastructure, congratulates the committee on its work and recognises the benefits this will bring to the infrastructure industry (01 August 2013)

To read more, please click here.

$6.4 million to tackle Australia’s deadly asbestos legacy

The Minister for Workplace Relations has announced an additional $6.4 million for the new Asbestos Safety and Eradication Agency to implement the National Strategic Plan for Asbestos Awareness and Management  (31 July 2013)

To read more, please click here.

Surplus Commonwealth Land should be used for Housing

Tens of thousands of new homes could potentially be accommodated on underutilised Commonwealth Government land across Australia’s major cities, according to the UDIA, calling on the Government to undertake thorough, regular auditing of its land assets (30 July 2013)

To read more, please click here.

Draft Legislation released to bring forward Emissions Trading

The Rudd Government has released an exposure draft of legislation to implement an earlier start to emissions trading, after the 16 July announcement indicating it would terminate the carbon tax and bring forward the emissions trading  scheme to 1 July 2014. An early start to emissions trading is expected to result in a lower carbon price (25 July 2013)

To read more, please click here.

Federal court halts Tarkine mine development

The development of Shree Minerals’ proposed Nelson Bay iron ore mine in the Tarkine region of Tasmania has been halted by last week’s Federal Court’s decision that federal environmental approval was erroneously granted. The court’s decision was based on law that any conservation advice is required to be specifically referenced as per s 139(2) of the Environment Protection and Biodiversity Conservation Act 1999 (24 July 2013)

To read more, please click here.

New ecotourism framework for Queensland national parks

The National Parks Minister said the Queensland Eco and Sustainable Tourism (QuEST) policy would support development of new and innovative ecotourism ideas, helping position Queensland as the number one ecotourism destination in Australia  (30 July 2013)

To read more, please click here.

Proposed levee management to boost flood resilience

Queensland’s flood resilience will be strengthened by proposed new rules regarding the management of levee banks, releasing a Regulatory Impact Statement about a new regulatory framework for community consultation (26 July 2013)

To read more, please click here.

Feedback on future agricultural research plan

Agri-businesses and communities are encouraged to have their say on the Queensland Government’s agricultural Research Development and Extension (RD&E) plan, which will support the Government’s target of doubling the State’s agricultural production by 2040 (26 July 2013)

To read more, please click here.

Brisbane business wins Supreme Court case over stormwater insurance

A Supreme Court decision has overturned an insurance company decision not to pay out. In a ruling last week, a judge found that damage from water that backed up from swamped stormwater drains was covered by a Milton business’s insurance policy, rejecting its insurer’s bid not to pay (25 July 2013)

To read more, please click here.

Published – articles, papers, reports

State of Australian cities 2013 / Department of Infrastructure and Transport

This report brings together current research, including newly released data from the 2011 Census, to present a comprehensive snapshot of Australian cities (30 July 2013)

To read more, please click here.

Energy Use, Electricity Generation and Environmental Management2011-12/ ABS

This publication presents estimates of energy consumption and generation by Australian businesses for 2011-12. These estimates were compiled from the Energy, Water and Environment Survey conducted by the Australian Bureau of Statistics (ABS) (30 July 2013)

To read more, please click here.

CPI June quarter 2013 / Australian Bureau of Statistics

The Consumer Price Index (CPI) rose 0.4 per cent in the June quarter 2013. The most significant price rises in the June quarter 2013 were for medical and hospital services (+3.4%), tobacco (+3.0%), new dwelling purchase by owner-occupiers (0.9%), furniture (+4.8%) and rents (+1.1%) (24 July 2013)

To read more, please click here.

In practice and courts

AASB updated staff paper on Accounting for Carbon Tax by Emitters

The updated version of staff paper titled “Possible Financial Reporting Implications of the Fixed Price Phase of the Carbon Pricing Mechanism for Emitter Entities”  is designed to assist AASB constituents in identifying the key general purpose financial reporting issues that may arise for emitter entities during the fixed price phase of the Carbon Pricing Mechanism (CPM) (29 July 2013)

To read more, please click here.

Green Building Day 2013: megatrends for the property sector

This week’s Green Building Day keynote speech by GPT’s sustainability manager Bruce Precious summed up six key trends that will shape the property sector over the coming decades (25 July 2013)

To read more, please click here.

Department of Climate Change: public comment on draft emissions trading legislation

The Department is seeking public comment on the draft legislation to start emissions trading on 1 July 2014. The draft bills make amendments to the Clean Energy Act 2011, the Australian National Registry of Emissions Units Act 2011, the Fuel Tax Act 2006, and the Excise Tariff Act 1921. See Documents include Explanatory material and draft bills (23 July 2013)

To read more, please click here.

Announcements, Draft Policies and Plans released 2013

Changes under the Body Corporate and Community Management Act 1997

A new version of the Form 14 (Information Sheet) under the Body Corporate and Community Management Act 1997 is effective from Thursday 1 August 2013 (version 11), which includes strict requirements for presentation of prescribed warning statements and information sheets. Failure to comply may result in cancellation of the contract (01 August 2013)

See Office of the Commissioner for Body Corporate and Community Management and BCCM Form 14 here.

EHP: Draft eligibility criteria and standard conditions for prescribed environmentally relevant activities (ERAs) available for consultation 

Standard environmental authority applications for certain lower-risk activities are subject to eligibility criteria and standard conditions.  EHP has released the proposed eligibility criteria and standard conditions for 19 prescribed ERAs—including screening, small sewage treatment plants and meat processing—for public consultation.  Refer to the Consultation information sheet for further information on preparing your submission.  Submissions close 19 August 2013.

To read more, please click here.

EHP: Model mining conditions 

A model mining conditions guideline is now available for site specific mining activities.  The model conditions may be used as a basis for proposing environmental protection commitments for site specific mining activities (July 2013)

To read more, please click here.

Cases

Westlink Pty Ltd atf Westlink Industrial Trust v Lockyer Valley Regional Council & Ors (No 4) [2013] QPEC 035

Integrated Planning Act 1997 s3.5.14(2)(b) – development application for a natural gas-fired electric power station in a rural area near Gatton – use inconsistent with purpose of zone – further conflict (considered minor in light of other development existing, approved and possible under the planning scheme) with the “overall outcome” desired of rural landscape character – need for proposal established – it would assist meeting and add competition in respect of peak hours demand in South East Queensland for electricity, using relatively clean fuel in a favourable location, conformably with what the South East Queensland Regional Plan 2009-2031 called for – relevance of falling overall demand for electric power – respondent Council argued proposal was not viable.

To read more, please click here.

Dennis John Couper and Anita Clarie Couper v Valuer-General [2013] QLC 49

Practice and Procedure – onus of proof Valuation – valuation methodology – use of relevant sales best evidence – relativity of valuations of other blocks only relevant if those valuations are shown to be correct –“top down” or “bottom up”valuation approach –assessment of disabilities.

To read more, please click here.

LMT Surgical P/L v Allianz Australia Insurance Ltd [2013] QSC 181

INSURANCE – PROPERTY AND PECUNIARY LOSS INSURANCE – CONDITIONS, WARRANTIES AND EXCEPTIONS – FLOOD DAMAGE – where the plaintiff had insurance in relation to a property in Milton – where plaintiff’s premises was inundated by water from local run-off and from a back-flow of water from the Brisbane River through two local storm water drainage pipes – where the insurance policy contained a clause that exempted the insurer from being liable if “damage occasioned by or happened through flood” – whether water overflowed from the normal confines of a natural watercourse – whether insurer liable to indemnify plaintiff

To read more, please click here.

Legislation

Commonwealth

Australia New Zealand Food Standards Code — Standard 1.4.2 — Maximum Residue Limits Amendment Instrument No. APVMA 4, 2013

This Instrument amends the Australia New Zealand Food Standards Code – Standard 1.4.2 – Maximum Residue Limits (Australia Only) to include or change maximum residue limits pertaining to agricultural and veterinary chemical products (01 August 2013)

To read more, please click here.

Greenhouse and Energy Minimum Standards (Television) Determination 2013 (No. 2)

The determination covers the Greenhouse and Energy Minimum Standard (GEMS) requirements for televisions that are ordinarily supplied for personal, domestic or household use (01 August 2013)

To read more, please click here.

Greenhouse and Energy Minimum Standards (Registration Fees) Instrument 2013 (No. 2)

This instrument specifies registration fees payable in relation to applications under section 41 of the Greenhouse and Energy Minimum Standards Act 2012 (01 August 2013)

To read more, please click here.

Clean and Renewable Energy Legislation Amendment (Various Measures) Regulation 2013 SLI 144/2013

Commencement 29/07/2013-  This regulation provides for the gradual phasing out (from 2017) of the upfront certificate allocations for eligible small-scale renewable energy systems, removes the requirement to provide out-of-pocket cost data in relation to eligible small-scale generation systems, and reduces documentation requirements for small-scale generation returns

To read more, please click here.

Competition and Consumer Act 2010 Prices, Costs and Profits Relating to Supply Unleaded Petrol

Competition and Consumer Act 2010 – Monitoring of the Prices, Costs and Profits Relating to the Supply of Unleaded Petroleum Products in the Petroleum Industry in Australia (15/07/2013): This direction gives effect to the ACCC to monitor the prices, costs and profits relating to the supply of unleaded petroleum products in the petroleum industry in Australia for one year, effective from 17 December 2013 (25 July 2013)

To read more, please click here.

Marine Order 98 (Marine pollution – anti-fouling systems) 2013  AMSA MO 2013/13

This order gives effect to those provisions of the Convention that provide for controls on anti-fouling systems and for the survey, inspection and certification of ships for those systems, and prescribes survey and certification requirements and forms to be used to report happenings (24 July 2013)

To read more, please click here.

Queensland

Regulations

No 145: Liquor Amendment Regulation (No. 1) 2013-  26 July 2013 – Amends the Liquor Act 1992 with Prescribed criteria for show or exhibition—Act, s 4, definition small regional Show, the prescribed criteria for a show or exhibition including dates, liquor trading hours and duration of show

No 147: Aboriginal Land Amendment Regulation (No. 5) 2013 – 26 July 2013 – Amends the Aboriginal Land Act 1991

No148: Local Government Legislation Amendment Regulation (No. 3) 2013 – 26 July 2013 – Amends the City of Brisbane Act 2010; Local Government Act 2009 with preparation and content of budget for local government and City of Brisbane

No 150: Transport and Other Legislation Amendment Regulation (No. 1) 2013 – 26 July 2013 – Amends the State Penalties Enforcement Act 1999; Transport Operations (Road Use Management) Act 1995

No 151:  Sustainable Planning Amendment Regulation (No. 4) 2013 – 02 August 2013 – Amends the Sustainable Planning Act 2009 with excluded matters for SCL or potential SCL concurrence agency jurisdiction) and clearing of native vegetation—not assessable development

No 152:  Foreign Ownership of Land Register Regulation 2013 – 02 August 2013 – Amends the Foreign Ownership of Land Register Act 1988 – new fees schedule effective from 01 September   -  Computer printout of the details, recorded in the register,of interests in land held by a person (Act, s 14) – $14.90

Contact Us

Andrew Johnson  Partner

Direct Line: (07) 3228 0408

ajohnson@millsoakley.com.au

Michael Nixon  Partner

Direct Line: (07) 3228 0450

mnixon@millsoakley.com.au

In the media

Employee share schemes back on the agenda

The government has issued a discussion paper looking to reinvigorate discussions on the policy settings for employee share schemes (ESSs).  ESSs were largely discarded by companies following the introduction of the Corporations Amendment (Improving Accountability on Termination Payments) Act 2009(the termination benefits legislation), which amended the Corporations Act 2001 (13 August 2013)

To read more, please click here.

New dark pool transparency rules introduced

New rules affecting dark pools and high frequency trading (HFT) have been introduced in a bid to improve transparency. Minister Assisting for Financial Services and Superannuation announced a package of market integrity rules just prior to parliament being pro-rogued that directed at better protecting investors and the stability of Australia’s financial markets (06 August 2013)

To read more, please click here.

Published – articles, papers, reports

‘Company directors as “super-fiduciaries” / Michael Pearce: ALJ (2013) 87(7) p464

This article traces the development of the law of directors’ duties through its successive statutory formulations to the present provisions of the Corporations Act. It considers how, the courts have used s 180(1) of the Corporations Act to impose liability on company directors for the wrongs of their companies in circumstances where the director has done no more than cause or permit the company to break the law irrespective of any dishonesty or conflict of interest of the director.

In practice and courts

Directors’ and officers’ liability insurance

Section 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) (LRMP Act) prevented an insured dispersing or distributing insurance moneys other than to a third party claimant and prevents an insurer and an insured making a corrupt bargain

Chubb Insurance Company of Australia Ltd v Moore (2013) 17 ANZ Insurance Cases

Cases

W & K Holdings (NSW) Pty Ltd v Laureen Margaret Mayo [2013] NSWSC 1063

CONTRACTS – relief from obligations – whether personal guarantees “unjust” within the meaning of the Contracts Review Act 1980.

CONTRACTS – variation – whether alleged variations are supported by consideration – whether consideration was provided by way of a “factual benefit” or the avoidance of a “disbenefit”.

EQUITY – unconscionable conduct – whether debenture deed should be set aside – whether the defendant engaged in unconscionable conduct in procuring the debenture deed.

EVIDENCE – alleged medical condition – no medical or expert evidence – extent to which a trial judge can make findings about an obvious or apparent incapability.

TRADE PRACTICES – unconscionable conduct under s 51AC(2) – whether debenture deed should be set aside – whether defendant acted unconscionably – whether defendant’s conduct involved moral obloquy – whether the defendant engaged in misleading and deceptive conduct.

Contracts Review Act 1980; Corporations Act 2001 (Cth); Trade Practices Act 1974 (Cth)

To read more, please click here.

In the matter of Ashington Bayswater Pty Limited (in liq) [2013] NSWSC 1008

CORPORATIONS – whether transactions liable to be set aside as preferences, uncommercial transactions and insolvent transactions under Part 5.7B of the Corporations Act – whether the company was insolvent at relevant times – whether a presumption of insolvency based on a failure to maintain adequate financial records is established – whether the grant of a charge was an unfair preference or an uncommercial transaction – whether an assignment of rights in litigation was an unfair preference or an uncommercial transaction – whether payments made to the defendant were unfair preferences.

To read more, please click here.

Commonwealth of Australia v Davis Samuel Pty Ltd and Ors (No 7) [2013] ACTSC 146

CORPORATIONS – Director – means of becoming – acting in position of – officer – decisions affecting corporation – maker of or participant in

EQUITY – Fiduciary duty – breach of – Barnes v Addy – receipt and assistance – liability for – third party – participatory liability – receipt liability – company – knowledge of – imputation to

EQUITY – Fiduciary duty – breach of – Barnes v Addy – remedies – In rem – In personam – constructive trust – imposition of – discretionary – occasion for – tracing – multiple fiduciary duty breaches – multiple claims

EQUITY – Breach of confidence – fundamental or operative mistake – ultra vires payment of public money

TRADE PRACTICES ACT – misleading and deceptive conduct

To read more, please click here.

Wain & Ors v Drapac & Ors (No. 2) [2013] VSC 381

CORPORATIONS – Oppression – Orders for purchase of shares and units – Complex corporate structure – Entities to be taken into account in setting price to be paid – Corporations Act 2001 (Cth) ss 232, 233. PRACTICE AND PROCEDURE – Pleadings – Necessity to plead matters to be taken into account for fair valuation of shares and units in oppression proceeding – Prayer for relief seeking orders for purchase of specific shares and units at fair value.

To read more, please click here.

Contact Us

Warren Scott  Partner

Direct Line: (03) 9605 0984

wscott@millsoakley.com.au

Daniel Livingston  Partner

Direct Line: (03) 9605 0965

dlivingston@millsoakley.com.au

Matthew Watson  Partner

Direct Line: (02) 8289 5884

mwatson@millsoakley.com.au

Martin Williams  Partner

Direct Line: (02) 8289 5861

mwilliams@millsoakley.com.au

Andrew Johnson  Partner

Direct Line: (07) 3228 0408

ajohnson@millsoakley.com.au

In the Media

Climate Commission: Australia has undergone a “quiet” solar revolution

A new report says that “a quiet energy revolution” has been taking place in Australia, with over one million households now getting energy from solar panels. The explosion in solar PV was due to a number of factors, including reducing costs and government policies including the renewable energy target, the carbon price and feed-in tariffs  (07 August 2013)

For more information, please click here.

 Could Australia follow NZ on property damage definition

Insurers could end up paying more claims in the future after legal experts said it was possible that Australian law will adopt New Zealand’s definition of property damage (07 August 2013)

For more information, please click here.

 UDIA: hidden Government charges destroying Australian home ownership

Exorbitant charges levied by governments on new housing are adding as much as $65,000 to the cost of a new home, worsening the housing affordability crisis and locking young families out of home ownership, according to the UDIA,  calling for the establishment of an inter-governmental agreement to ensure that local infrastructure charges are benchmarked between jurisdictions (06 August 2013)

For more information, please click here.

 Published articles

 House Price Indexes: Eight Capital Cities, Jun 2013 / Australian Bureau of Statistics

Preliminary estimates show that the price index for established houses for the weighted average of the eight capital cities rose 2.4% in the June quarter 2013. The capital city indexes rose in Sydney (+2.7%), Melbourne (+2.4%), Perth (+3.4%), Brisbane (+1.9%), Canberra (+1.0%), Adelaide (+0.3%) and Darwin (+2.9%) and fell in Hobart (-1.0%) (06 August 2013)

For more information, please click here.

Cases

 Valuer-General v Perilya Broken Hill Ltd [2013] NSWCA 265

APPEALS – appeal from valuation decision limited to question of law – scope of appeal – error of law in failure to bring to account cashflow – no error of law in arithmetic error

COURTS AND JUDGES – statement of reasons for decision – appeal limited to question of law – extent of duty to give reasons – no error in giving short reasons

MINES AND MINERALS – operation and history of mining legislation – nature of rights conferred by mining lease – nature of rights of owner of privately owned minerals

VALUATION – methods of valuation – hypothetical fee simple of mine – valuation by discounted cashflow of hypothetical mine – application of royalty provisions in Mining Act 1992 as generally applicable public law – parties’ cashflows included royalty payments as expenses but did not include receipts of royalty for privately owned minerals – valuation set aside and proceeding remitted – appeal allowed

For more information, please click here.

CCM Holdings Trust Pty Ltd v Chief Commissioner of State Revenue; CCT Motorway Company Nominees Pty Ltd v Chief Commissioner of State Revenue [2013] NSWSC 1072

[TAXES AND DUTIES] – [STAMP DUTY] – where duty assessed pursuant to land rich provisions of the Duties Act 1997 – review/appeal from decision of Chief Commissioner of State Revenue – whether the land holder was land rich at the time of the relevant acquisitions – whether transfers exempt from land rich duty – Corporations Act 2001 (Cth);  Duties Act 1997 (NSW)

For more information, please click here.

Filmlock Pty Limited v Nissi Investments Pty Limited (No 2) [2013] NSWSC 959

Judgment for the plaintiffs

CONTRACT – purchaser’s failure to complete contract for sale of land – minor inaccuracy in description – no uncertainty of subject matter

CONTRACT – alleged defect in title – rights of carriageway and restrictions on use created after contract – limited rights to make objection, requisition or claim for compensation or rescission – purchaser obliged to complete the contract

Conveyancing Act 1919 (NSW)

For more information, please click here.

Arida v Arida & Ors [2013] NSWSC 1051

CONTRACTS – general contractual principles – construction and interpretation of contracts – agreement required valuation of property as at a particular date be obtained – valuer made valuation as at a later date, then subsequently made valuation as at requested date – whether valuer’s task was complete upon making first valuation – whether term can be implied into agreement that valuer entitled to make new valuation For more information, please click here.

Contact Us

Lachlan Paterson  Partner

Direct Line: (02) 8289 5895

lpaterson@millsoakley.com.au

Catherine Hallgath  Partner

Direct Line: (02) 8289 5806

challgath@millsoakley.com.au

Vera Visevic  Partner

Direct Line: (02) 8289 5812

vvisevic@millsoakley.com.au

In the media

Savill: big shopping centre deals back on the table

Savills latest research highlights that shopping centre transactions across the country hit $5.3 billion in the 12 months to June 2013, up from $3.9 billion the previous year (12 August 2013)

To read more, please click here.

New building plan to cut energy use in half

Beyond Zero Emissions releases the Building Plan, a nation-wide plan to retrofit Australia’s existing buildings, and both residential and non-residential buildings can expect to cut energy use in half if all recommendations are taken up (07 August 2013)

To read more, please click here.

 Could Australia follow NZ on property damage definition

Insurers could end up paying more claims in the future after legal experts said it was possible that Australian law will adopt New Zealand’s definition of property damage (07 August 2013)

To read more, please click here.

 Coonooer Bridge locals win with wind farm

The first wind farm to pass Victoria’s myriad planning obstacles for two years has just won approval at Coonooer Bridge. Project director Luke Osborne said the project was now waiting on a power contract to be agreed on, and hopes Coonooer Bridge will be the first of many other small projects involving groups of farmers (16 August 2013)

To read more, please click here.

Clubs aim high with city tower build plans

Freemasons Victoria, with joint venture partner Mirvac, has sought permission from Planning Minister Matthew Guy to replace its parkside Dallas Brooks Hall site in East Melbourne with two towers of 17 and 11 levels (10 August 2013)

To read more, please click here.

Published articles papers and reports

VCAT Decisions

Jarman v Campaspe SC (Including Summary) (Red Dot) [2013] VCAT 1292 (31 July 2013): Discrepancy between the text in a Schedule to a Heritage Overlay and what is shown in the corresponding overlay map.

John Gurry & Assoc Pty Ltd v Moonee Valley CC & Ors (Includes Summary) (Red Dot) [2013] VCAT 1258 (12 July 2013): Affirmation of the Chen v Melbourne CC recommendation that there be a proper statewide statutory assessment framework for planning decision makers to utilise, in terms of what constitutes ‘acceptable impacts’ where a proposed development might cause overshadowing of existing adjacent solar panels

Cases

Summit Grain Investment Australia Pty Ltd v Attorney-General for the State of Victoria & Anor [2013] VSC 383

STAMP DUTY – Assessment – Declaration sought by plaintiff that items on land are chattels and not fixtures for tax purposes in accordance with Court of Appeal authority – Commencement of action before issue of assessment by Commissioner – Statutory powers and functions of Commissioner – Jurisdiction to grant declaratory relief sought – Extent of jurisdiction – Relevant principles – Applicable test – Discretionary considerations – Effect of Civil Procedure Act 2010 – Oil Basins Limited v Commonwealth of Australia [1993] HCA 60; (1993) 178 CLR 643 – Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 – Cuming Campbell Investments Pty Ltd v Collector of Imposts (Victoria) [1938] HCA 53; (1938) 60 CLR 741 – Lucas v O’Reilly (Federal Commissioner of Taxation) (1979) 9 ATR 540 – Young v Commissioner of Taxation [2000] FCA 122 – Commissioner of Taxation v Futuris Corporation Ltd [2008] HCA 32; (2008) 237 CLR 146 – Vopak Terminals Australia v Commissioner of State Revenue [2004] VSCA 10; (2004) 12 VR 351 – Commissioner of State Revenue v Uniqema (2004) 9 VR 523 – Taxation Administration Act 1997 Pt 9 Div 2, Pt 10 – Duties Act 2000 (including s 273) – Civil Procedure Act 2010 sub-ss 7(1), 9(1) – Supreme Court (General Civil Procedure) Rules 2005 Or 47.04

To read more, please click here.

Purple Tangerine Pty Ltd v Australian Financial Loan Management Pty Ltd [2013] VSC 411

LANDLORD AND TENANT – Application for interlocutory injunction – Claim by tenant for substantial interference with quiet possession and derogation of grant against landlord – Serious issue to be tried – Balance of convenience – Lower risk of injustice – Interlocutory injunction granted – Costs reserved.

To read more, please click here.

Contact Us

James Price  Partner

Direct Line: (03) 9605 0824

jprice@millsoakley.com.au

In the media

Overwhelming business support for carbon price

A new AECOM report shows overwhelming business support for a price on carbon. The report, commissioned by Businesses for a Clean Economy, found that 88 per cent of the 180 businesses surveyed wanted a price on carbon to address climate change, with 65 per cent favouring an emissions trading scheme, and 29 per cent favouring a fixed price (19 August 2013)

To read more, please click here.

Coastal city floods to cost $1 trillion a year by 2050

New research has found that the cost of flooding in coastal cities is set to surpass $1 trillion a year globally unless significant investment in adaptation is made (19 August 2013)

To read more, please click here.

ACCC does not object to Sydney Airport’s proposed charges for regional airlines

The Australian Competition and Consumer Commission has issued its decision not to object to Sydney Airport Corporation Limited’s proposed charges for regional airlines that serve passengers travelling within New South Wales. The ACCC’s decision on Sydney Airport’s proposal is available at http://transition.accc.gov.au/content/index.phtml?itemId=1120997 (15 August 2013)

Pathway to a more productive Australia with Government $2 billion a year boost

The Green Building Council of Australia (GBCA) says improving the rating performance of the federal government’s building stock has the potential to boost public sector productivity by almost $2 billion a year (12 August 2013)

To read more, please click here.

Savill: big shopping centre deals back on the table

Savills latest research highlights that shopping centre transactions across the country hit $5.3 billion in the 12 months to June 2013, up from $3.9 billion the previous year (12 August 2013)

To read more, please click here.

Report claims signs of new climate ‘normal’ in hot 2012

Meant to be a guide for policymakers, the report did not attribute the changes in climate to any one factor, but made note of continued increases in heat-trapping greenhouse gases including carbon dioxide, methane and nitrous oxide (08 August 2013)

To read more, please click here.

Climate Commission: Australia has undergone a “quiet” solar revolution

A new report says that “a quiet energy revolution” has been taking place in Australia, with over one million households now getting energy from solar panels. The explosion in solar PV was due to a number of factors, including reducing costs and government policies including the renewable energy target, the carbon price and feed-in tariffs  (07 August 2013)

To read more, please click here.

Future of Government’s Mineral Resource Rent Tax decided in High Court

Mr Forrest and his Fortescue Metals Group (FMG) had argued the tax discriminated between states and interfered with the rights of states to control their own mineral resources. The court unanimously rejected the challenge, saying the act does not give preference to one state over another, and ordered Mr Forrest to pay costs (07 August 2013)

To read more, please click here.

Could Australia follow NZ on property damage definition

Insurers could end up paying more claims in the future after legal experts said it was possible that Australian law will adopt New Zealand’s definition of property damage (07 August 2013)

To read more, please click here.

UDIA: hidden Government charges destroying Australian home ownership

Exorbitant charges levied by governments on new housing are adding as much as $65,000 to the cost of a new home, worsening the housing affordability crisis and locking young families out of home ownership, according to the UDIA,  calling for the establishment of an inter-governmental agreement to ensure that local infrastructure charges are benchmarked between jurisdictions (06 August 2013)

To read more, please click here.

Groups call for federal regulation of sand mining on North Stradbroke Island

A new report claims sand mining on North Stradbroke Island off Brisbane should be regulated by federal not state environmental laws (20 August 2013)

To read more, please clieck here.

 
Grazing stations under receivers in Queensland

Receivers have been appointed to three major cattle stations owned by grazing company Dunrossie in central west Queensland after mortgage payments were not met (19 August 2013)

To read more, please click here.

State review to modernise Queensland Property Law

The Newman Government is partnering with the Queensland University of Technology to review the State’s property law to ensure a more streamlined and common sense approach to how Queenslanders buy, sell and manage property  (15 August 2013) To read more, please click here.

Regional tourism organisations to receive $3 million in tourism grants

Queensland tourism will receive a major boost with 22 regional projects sharing almost $3 million, as part of the Queensland Government’s Regional Tourism Organisation (RTO) Contestable Grants Funding Scheme (13 August 2013)

To read more, please click here.

Government boosts security of tenure on rural leases

The Newman Government has unveiled changes to leasehold land renewals and committed to setting clear pathways for farmers and graziers to upgrade from leasehold to freehold land (13 August 2013)

To read more, please click here.

Coordinator-General assessment of Galilee Coal project completed

The Queensland Coordinator-General today released his evaluation report on the environmental impact statement and approved the $6.4 billion mine and rail components of the Galilee Coal Project (Northern Export Facility) in central Queensland. The project is also being assessed in a parallel EIS under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (09 August 2013) To read more, please click here.

Published – articles, papers, reports

Understanding the Impact of a Carbon Price on Australian Business: A Survey of Business Perspectives / AECOM Australia Pty Ltd

45 per cent reported that uncertainty around the future of the carbon price had changed investment decisions, while 48 per cent reported that carbon uncertainty was having a negative impact on business. For those actively involved in the clean economy, 78 per cent said that the uncertainty around carbon pricing was having a negative effect on business, with 60 per cent saying it had delayed expansion into new markets, products, services or investment  (19 August 2013)  To read more, please click here. 

 Coalition climate policy and the national climate interest / Erwin Jackson, Climate Institute

This paper outlines the results of an analysis of both the Government’s legislated policies and a range of approaches the Coalition could take to implement its policy platform (15 August 2013)

To read more, please click here.

 House Price Indexes: Eight Capital Cities, Jun 2013 / Australian Bureau of Statistics

Preliminary estimates show that the price index for established houses for the weighted average of the eight capital cities rose 2.4% in the June quarter 2013. The capital city indexes rose in Sydney (+2.7%), Melbourne (+2.4%), Perth (+3.4%), Brisbane (+1.9%), Canberra (+1.0%), Adelaide (+0.3%) and Darwin (+2.9%) and fell in Hobart (-1.0%) (06 August 2013)

See http://www.abs.gov.au/ausstats/abs@.nsf/mf/6416.0?OpenDocument

 The Critical Decade: Australia’s future – solar energy / Climate Commission

Identifies the enormous, but largely underutilised, potential for solar generation in the world’s sunniest continent. This report provides an overview of the rapidly changing solar industry, including international developments and opportunities for Australia to better utilise and benefit from solar resources in the future (released 07 August 2013)

To read more, please click here.

In practice and courts

Announcements, Draft Policies and Plans released 2013

 Reminder: Queensland Plan submissions close 30 August

Queenslanders only have two more weeks to contribute to The Queensland Plan and join more than 33,000 people who have provided their views to date on where they want their state to be in 30 years’ time. Visit the Queensland Plan website at www.queenslandplan.qld.gov.au (16 August 2013)

To read more, please click here.

 Queensland Property Law Review 2013

The first two issue papers include seller disclosure requirements and body corporate lot entitlements will be released early in the New Year. To keep track of this review on the website at To read more, please click here.

Cases

Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 038

Planning and Environment – Applicant appeal against refusal of development application seeking a preliminary approval overriding the planning scheme – Proposed supermarket based shopping centre on land in Residential 2 Area – Whether achievement of relevant DEO’s would be compromised – Whether conflict otherwise with the planning scheme and/or Regional Plan – Need – Whether facilities could be accommodated in the designated town centre to the east – Likely impact in the District Centre – Likely impact on a vacant Local Centre site to the west – Social impact – Amenity and urban design http://www.sclqld.org.au/qjudgment/2013/QPEC/038

Mahoney v Corrin [2013] QCAT 318

STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – INTERPRETATION – where applicants purchased property with view of the city prior to the commencement of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 – where trees in respondent’s property allegedly now interfere with the applicant’s view – where s 66 of the Act provides that QCAT may make orders to remedy, restrain or prevent substantial, ongoing and unreasonable interferences with the use and enjoyment of land – where interference includes obstruction of a view – where common law presumption that legislation does not operate retrospectively – whether s 66 of the Act may apply to a view that existed before the commencement of the Act http://www.sclqld.org.au/qjudgment/2013/QCAT/318

Modi & Clements v SDW Projects Pty Ltd & Ors [2013] QCA 221

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNING AND LIKE MATTERS – where the appellants were solicitors retained by the first respondent to assist in conveying units in a proposed development – where buyers under the contracts of sale withdrew their offers to purchase, arguing that they were not bound because of non-compliance with s 365(2A)(c)(ii) of the Property Agents and Motor Dealers Act 2000 – where the first respondent obtained a declaration that letters sent by the appellants to the buyers’ solicitors, returning executed contracts with warning statements and information sheets, did not direct the buyers’ attention to the warning and information sheet, as required by s 365(2A)(c)(ii) – whether reference in the letters to the “Contract of Sale” could be regarded as encompassing the warning statement and information sheet – whether the context in which the letters were received or the form of the documents obviated the need to make specific reference to the relevant documents – whether the letters met the requirements of s 365(2A)(c)(ii)

Fabcot Pty Ltd v Cairns Regional Council [2013] QPEC 038

Planning and Environment – Applicant appeal against refusal of development application seeking a preliminary approval overriding the planning scheme – Proposed supermarket based shopping centre on land in Residential 2 Area – Whether achievement of relevant DEO’s would be compromised – Whether conflict otherwise with the planning scheme and/or Regional Plan – Need – Whether facilities could be accommodated in the designated town centre to the east – Likely impact in the District Centre – Likely impact on a vacant Local Centre site to the west – Social impact – Amenity and urban design To read more, please click here.

 Mahoney v Corrin [2013] QCAT 318

STATUTES – ACTS OF PARLIAMENT – OPERATION AND EFFECT OF STATUTES – RETROSPECTIVE OPERATION – INTERPRETATION – where applicants purchased property with view of the city prior to the commencement of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 – where trees in respondent’s property allegedly now interfere with the applicant’s view – where s 66 of the Act provides that QCAT may make orders to remedy, restrain or prevent substantial, ongoing and unreasonable interferences with the use and enjoyment of land – where interference includes obstruction of a view – where common law presumption that legislation does not operate retrospectively – whether s 66 of the Act may apply to a view that existed before the commencement of the Act To read more, please click here.

Modi & Clements v SDW Projects Pty Ltd & Ors [2013] QCA 221

CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – PROTECTION OF PURCHASERS – OBLIGATIONS ON VENDOR: DISCLOSURE, WARNING AND LIKE MATTERS – where the appellants were solicitors retained by the first respondent to assist in conveying units in a proposed development – where buyers under the contracts of sale withdrew their offers to purchase, arguing that they were not bound because of non-compliance with s 365(2A)(c)(ii) of the Property Agents and Motor Dealers Act 2000 – where the first respondent obtained a declaration that letters sent by the appellants to the buyers’ solicitors, returning executed contracts with warning statements and information sheets, did not direct the buyers’ attention to the warning and information sheet, as required by s 365(2A)(c)(ii) – whether reference in the letters to the “Contract of Sale” could be regarded as encompassing the warning statement and information sheet – whether the context in which the letters were received or the form of the documents obviated the need to make specific reference to the relevant documents – whether the letters met the requirements of s 365(2A)(c)(ii) To read more, please click here.

Legislation

 Commonwealth

Water Efficiency Labelling and Standards (Registration Fees) Determination 2013

This determination sets the registration fees (as a tax) for applications to the WELS Scheme, and the rules for registration of ‘minor products’. This determination commences on 15 September 2013 (15 August 2013) To read more, please click here.

Water Efficiency Labelling and Standards Determination 2013 (No. 2)

This determination sets the registration requirements and rules for products that are covered by the WELS Scheme. Administered by: Sustainability, Environment, Water, Population and Communities (15 August 2013) To read more, please click here.

Migration Regulations 1994 – Specification under regulation 5.19B – Eligible Managed Fund Investments – July 2013

This instrument specifies eligible managed fund investments. These include infrastructure projects in Australia; cash held by Australian deposit taking institutions; bonds; term deposits; real property in Australia;  Australian Agribusiness; annuities; derivatives This instrument, IMMI 13/092, commences on 23 November 2013 (13 August 2013)

To read more, please click here.

 Energy Efficiency Opportunities Amendment (Assessments and Reporting) Regulation 2013 SLI 227/2013

This regulation commences on the day after it is registered. This regulation amends the Energy Efficiency Opportunities Regulations 2006 to streamliance compliance and reporting requirements (06 August 2013) To read more, please click here.

 Carbon Credits (Carbon Farming Initiative) Amendment (Additionality Test and Other Measures) Regulation 2013 SLI 2013 No. 223

This regulation amends the Carbon Credits (Carbon Farming Initiative) Regulations 2011 by inserting additional provisions and making minor amendments to existing provisions (08 August 2013)

To read more, please click here.

 Queensland

 No 56: Duties Regulation 2013 – 16-08-2013

Amends the Duties Act 2001 for declared public unit trusts, activities for prescribed business and fees payable for administrative function

 No 57: Rural and Regional Adjustment Amendment Regulation (No. 5) 2013 – 16-08-2013

Amends the Rural and Regional Adjustment Act 1994

 No 58: Environmental Protection (Water) Amendment Policy (No. 1) 2013 – 16-08-2013

Amends the Environmental Protection Act 1994 ss 16 on Development and implementation of environmental plans and sch 1 Environmental values and water quality objectives for waters

 No 59: Local Government (Aboriginal Lands) Amendment Regulation (No. 1) 2013 – 16-08-2013

Amends the Aurukun and Mornington Shire Leases Act 1978

Contact Us

Andrew Johnson  Partner

Direct Line: (07) 3228 0408

ajohnson@millsoakley.com.au

Michael Nixon  Partner

Direct Line: (07) 3228 0450

mnixon@millsoakley.com.au

In the media

ASA reveals the key issues for the upcoming AGM season

The Australian Shareholders’ Association has released a policy discussion paper on the key areas of interest for its members during the upcoming AGM season (21 August 2013)

To read more, please click here.

Hybrids must better convey risk: ASIC

ASIC Commissioner John Price said: “We have responded to the increased issuance and popularity of hybrids by working with issuers and their advisers, as gatekeepers, to help improve prospectus disclosure and ensure selling messages are not misleading”  (20 August 2013)

To read more, please click here.

 APRA seeks disqualification of former Trio director David Millhouse

APRA has commenced proceedings in the Federal Court of Australia seeking the disqualification of former Trio Capital Limited (Trio) director, David Millhouse. APRA alleges that Mr Millhouse failed in his duties as a director of Trio and did not act in the best interests of members (13 August 2013)

To read more, please click here.

Full Federal Court declares Lux conduct unconscionable

The Full Federal Court handed down its decision in relation to ACCC’s appeal against the judgment in ACCC v Lux Distributors Pty Ltd. This is a significant decision for the ACCC as it provides important clarity regarding the scope and operation of the unconscionable conduct provisions in the Australian Consumer Law (ACL) (15 August 2013)

To read more, please click here.

 CSA to rebrand as Governance Institute of Australia

On 20 September 2013, over 7,000 members of Chartered Secretaries Australia (CSA) will vote on a major rebrand that will see CSA renamed, if approved by members, the Governance Institute of Australia — more accurately reflecting the organisation’s role as the only professional association with a sole focus on the practice of governance in public, private and not-for-profit organisations (14 August 2013)

To read more, please click here.

Published – articles, papers, reports

Queensland’s Top 50 Rich List 2013

Source: Sunday Mail 25 August 2013

Outlines current year list for all industries

To read more, please click here.

Cases

Heperu Pty Ltd & Ors v Patricia Belle (No. 3) [2013] NSWSC 1088

PROCEDURE – costs – departing from the general rule – plaintiff seeks tracing orders against four defendants in respect of misappropriated funds – plaintiff settles with two defendants – other defendant bankrupt – plaintiff fails to prove fourth defendant knowingly concerned in fraudulent misappropriation of funds – plaintiff’s claim for approximately $2.7 million against all defendants – plaintiff recovers judgment for $89,970.01 against the fourth defendant as a volunteer – whether the fourth defendant should pay the plaintiff’s costs of the proceedings or some part of the proceedings.

To read more, please click here.

Russell Gould Pty Limited v Ramangkura [2013] NSWSC 1114

EQUITY -  Fiduciary duties  – Breach – Director and company – Alleged misapplication of company’s funds – Whether money paid to defendant by director belonged to plaintiff company – Whether money paid to defendant constituted a misapplication of company funds to actual or constructive knowledge of defendant.

EVIDENCE – Proof – Burden or onus – Whether plaintiff able to discharge onus on case alleged – Availability of Presumption of Undue Influence – Rebuttal of presumption.

REMEDIES – Declarations – Onus of Proof – Depends on substantive character of contest – Proceedings on cross claim ancillary to principal proceedings.

PROCEDURE – Civil – Parties – Standing – Corporation – Internal disputation – Affect on third party claim.

CORPORATIONS – Directors – Implied actual authority

To read more, please click here.

Re Krypton Nominees Pty Ltd [2013] VSC 446

CORPORATIONS – Sale of shares – Misleading and deceptive conduct – Whether plaintiff relied on misrepresentations – Judgment for plaintiff – Corporations Act 2001 ss 1041E, 1041H and 1345.

CORPORATIONS – Sale of shares – Failure to provide Product Disclosure Statement – Whether plaintiff a “sophisticated investor – Sale of shares on terms – Whether total amounts payable satisfied exemption in s 708(8)(a) – Corporations Act 2001 ss 50AA, 707 and 708(8)(a).

CORPORATIONS – Whether the defendants conduct was unconscionable within the meaning of the unwritten law – Whether the plaintiff was at a special disadvantage – Claim rejected –ASIC Act 2001 s 12CA.

AGENCY – Contract for purchase of shares made by a company in a group of companies pending nomination of a member of that group by group’s accountant as the appropriate purchasing company – Contract negotiated by  director  who controlled group of companies – Whether company nominated by the accountant entitled to ratify contract of sale and become the purchaser – Whether nominated company entitled to rely on representations made to the  director  who negotiated the contract in seeking to have contract of purchase set aside for misleading and deceptive conduct and failure to provide a Product Disclosure Statement – Nominated company entitled to ratify contract and exercises remedies available to initial contracting company.

EQUITY – Whether the defendants owed a fiduciary  duty  to the plaintiff – Relevant applicable principles – Whether inequality of bargaining power – Claim rejected.

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YARA AUSTRALIA PTY LTD -v- OSWAL [No 2] [2013] WASCA 187

Appeal – Interlocutory appeal from trial of preliminary questions – Proper construction of company shareholders deeds and other contractual instruments – Proper construction of phrase ‘holder of shares’ within contractual instruments – Proper construction of contractual clauses granting special voting rights to company  directors  – Proper construction of pre-emptive rights provisions within contractual instruments

Corporations law – Proper construction of phrase ‘holder of shares’ at law – Effect at law of notation of non-beneficial shareholding on company register of members – Reference in company register of members to shareholding as trustee

Trusts law – Effect of resolution to appoint trust property for benefit of beneficiaries of a discretionary trust – Whether appointment of trust property for benefit of beneficiaries of a discretionary trust creates a separate trust

Corporations Act 2001 (Cth), s 140(1), s 168, s 169(5A), s 1070A(1)(b), s 1071B(2), s 1072E(9), s 1072F(1), s 1072H(6)

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Contact Us

Warren Scott  Partner

Direct Line: (03) 9605 0984

wscott@millsoakley.com.au

Daniel Livingston  Partner

Direct Line: (03) 9605 0965

dlivingston@millsoakley.com.au

Matthew Watson  Partner

Direct Line: (02) 8289 5884

mwatson@millsoakley.com.au

Martin Williams  Partner

Direct Line: (02) 8289 5861

mwilliams@millsoakley.com.au

Andrew Johnson  Partner

Direct Line: (07) 3228 0408

ajohnson@millsoakley.com.au

In the media

Connection project moves ahead

The Victorian Government has announced the details of the next stage of its plan to connect 15 country towns to natural gas supplies (03 September 2013)

To read more, please click here.

VCAT upholds housing subdivision snub

A plan to subdivide land near the Bendigo wastewater treatment plant has been rejected because of concern about the facility’s smell (30 August 2013)

To read more, please click here.

Point Lonsdale development set to tee off

Minister for Planning Matthew Guy has approved a planning scheme amendment that will allow for the expansion and redevelopment of the Lonsdale Golf Course at Point Lonsdale (27 August 2013)

To read more, please click here.

Cases

Wedgewood Road Hallam No 1 v Diamond [2013] VSC 447

TRADE AND COMMERCE – contract for sale of lot 9 in proposed plan of subdivision of land – seller made oral pre-contractual promise that level of lot would be very close to buyer’s adjoining land – formal contract conferred power on seller to amend plan of subdivision, subject to notice to buyers and their right to rescind – among other things, level of lots on plan amended on notice to all buyers – buyer of lot 9 did not exercise right to rescind – that buyer failed to settle contract and pay balance of purchase price – whether seller entitled to rescind contract and obtain damages for breach – whether buyer induced by promise to enter contract– whether mere non-performance of pre-contractual promise can constitute misleading or deceptive conduct – whether seller intended to perform promise and had reasonable grounds for making it – whether seller’s conduct misleading or deceptive in totality of circumstances – ‘misleading or deceptive’ – Trade Practices Act 1974 (Cth) s 52, Fair Trading Act 1999 (Vic) s 9.

To read more, please click here.

Putt & Anor v Perfect Builders Pty Ltd [2013] VSC 442

VENDOR AND PURCHASER – Sale of land – Summary procedure under s 49 Property Law Act 1958 – Contract for sale of apartment conditional on loan of specified amount being obtained from designated lender – Right to terminate contract conditional on purchasers’ immediate application for loan – Right to terminate conditional upon purchasers doing everything reasonably required to obtain loan approval – No evidence of circumstances justifying return of deposit in exercise of discretion under s 49(2) Property Law Act 1958

To read more, please click here

Contact Us

James Price  Partner

Direct Line: (03) 9605 0824

jprice@millsoakley.com.au

In The Media

Brisbane leads August recovery as Melbourne and Perth record weakest monthly change

Brisbane dwelling prices bounced back 1.5% over the month of August, according to RP Data. The median dwelling price in Brisbane is currently at $429,000 – up 1.7% for the quarter and 2.5% for the year (02 September 2013)

To read more, please click here.

New legislation for alternatives for accessibility

Since the introduction of the Disability (Access to Premises – Buildings) Standards 2010, the property industry has been awash with misinformation about how existing property assets must be upgraded to comply with the new legislation (31 August 2013)

To read more, please click here.

City Tattsersall club enters new development

One of the largest clubs in central Sydney has released an indicative development option for its CBD premises, proposing a 48-floor building with mixed-use potential. Colliers International will commence a six-week ‘expressions of interest’ campaign to attract a developer specialising in large-scale, high-rise development projects (02 September 2013)

To read more, please click here.

Government changes planning rules for smaller houses and land in Sydney

The Urban Taskforce say the NSW Government proposals to change planning rules to allow smaller lot sizes, studios and townhouses in Growth Centres will help housing affordability in Sydney. The new Dwelling Density Guide issued by the government demonstrates many examples of successful designs of smaller homes (29 August 2013)

To read more, please click here.

Government offers city renters $7000 grant to buy in regions

As part of an overhaul of the NSW government’s underperforming regional relocation grant scheme, city renters will be offered $7000 to buy property in rural areas. New rules for the scheme include a minimum relocation distance of 100 kilometres to end rorting of the grant (28 August 2013)

To read more, please click here.

Housing construction at a ten year high: new homes up 35% on last year

The number of new homes being built in Sydney has jumped by more than a third in a year hitting a ten year high, indicating the NSW Government’s policies to boost the housing sector are working, according to the NSW Premier (24 August 2013)

To read more, please click here.

Planning approval for new major event facilities at Darling Harbour

Deputy Premier welcomes planning approval for the development of new convention, exhibition and entertainment facilities and a major upgrade to the public realm at Darling Harbour. Lend Lease is developing the hotel and a residential/commercial development under two commercial agreements that are separate to the PPP (24 August 2013)

To read more, please click here.

Wynyard ‘unsolicited proposal’ moves to stage two

The NSW Premier announces an ‘unsolicited proposal’ from Brookfield to combine its One Carrington Street development with improvements to the public access areas for Wynyard Station has moved to Stage Two. The proposal includes a 21 year extension of the existing 99 year land leases, which would then run to 2110 (22 August 2013)

To read more, please click here.

Cases

Cong Xu v Austino Property Development Pty Ltd [2013] NSWSC 1177

CONVEYANCING – Non-compliance with condition – purchaser’s remedies – rescission – pursuant to condition giving right to rescind – loss of right – election between inconsistent rights – whether entry into negotiations for early occupation of property was conduct inconsistent with the right to rescindCONTRACTS – general contractual principles – election – loss of right to rescind – whether entry into negotiations for early occupation of property was conduct inconsistent with the right to rescind a contract for the sale of land

To read more, please click here.

Wang v Garland Lot 3 Pty Ltd [2013] NSWSC 1112

Plaintiff is entitled to an award of damages against the first defendant for breach of contract of $113,000 plus interest to be calculated.

CONTRACTS – disagreement as to purchase price – wrongful termination of contract – whether inclusion of powder room express or implied term – counterpart contracts contained different amendments – whether parties agreed to be bound by terms in defendants’ counterpart that were not included in plaintiff’s counterpart – First Home Owner Grant Act 2000

To read more, please click here.

Great Lakes Council v French [2013] NSWLEC 141

CIVIL ENFORCEMENT – section 121B order served by the Council requiring work to be done not complied with – construction of numerous buildings without development consent – use of land not in accordance with development consent for educational bush camp for school children – exercise of discretion to make orders restraining breach

Environmental Planning and Assessment Act 1979 s 76A, s 121B, s 124

Great Lakes Local Environmental Plan 1996

State Environmental Planning Policy No 14 – Coastal Wetlands

To read more, please click here.

Modern Motels Pty Limited v Fairfield City Council [2013] NSWLEC 138

APPEAL – appeal against Commissioner’s decision on a question of law – refusal of development application concerning proposed construction and use of two buildings for takeaway food premises and associated works – development with frontage to classified road – whether Commissioner erred in construing the relevant criteria governing approval of development on land with frontage to a classified road – “where practicable, vehicular access to the land is provided by a road other than a classified road” – Commissioner did not err in finding in that vehicular access be provided by a road other than the classified road, but did err in construing the requirement that such vehicular access be “where practicable” – whether it was fair and reasonable for an order for costs to be made in favour of appellant – not fair and reasonable to make costs order – appeal allowed – matter remitted

To read more, please click here.

The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270

Appeal allowed. STRATA PLANS – duty of owners corporation to renew or replace mechanical exhaust ventilation system pursuant to Strata Schemes Management Act 1996, s 62(2) – whether duty extended to installing additional system to service plaintiff’s lot – whether proprietary right of plaintiff in common property imposed such a duty – validity of special resolution pursuant to s 62(3) of the 1996 Act determining that it was inappropriate to renew or replace system – whether special resolution constituted a fraud on the minority

To read more, please click here.

Contact Us

Lachlan Paterson  Partner

Direct Line: (02) 8289 5895

lpaterson@millsoakley.com.au

Catherine Hallgath  Partner

Direct Line: (02) 8289 5806

challgath@millsoakley.com.au

Vera Visevic  Partner

Direct Line: (02) 8289 5812

vvisevic@millsoakley.com.au

In the media

Brisbane leads August recovery as Melbourne and Perth record weakest monthly change

Brisbane dwelling prices bounced back 1.5% over the month of August, according to RP Data. The median dwelling price in Brisbane is currently at $429,000 – up 1.7% for the quarter and 2.5% for the year (02 September 2013)

To read more, please click here.

Disaster-struck regions take years to recover economically

The Regional Australia Institute (RAI) report has found communities hit by natural disasters are still recovering more than five years later, due to long-term economic impacts (29 August 2013)

To read more, please click here.

GBCA announces green star to adopt life cycle assessment

The Green Building Council of Australia has announced new credits available for life cycle assessment as part of its Green Star 2014 program. Up to eight points can be claimed under the updated Innovation category, with the maximum points in the category being raised from five to 10 (28 August 2013)

To read more, please click here.

New legislation for alternatives for accessibility

Since the introduction of the Disability (Access to Premises – Buildings) Standards 2010, the property industry has been awash with misinformation about how existing property assets must be upgraded to comply with the new legislation (31 August 2013)

To read more, please click here.

Patent Shows Promise for Improved Method of Carbon Capture

According to a United States patent based on research by Dr. Jason Bara, an innovative method for stripping greenhouse gases such as carbon dioxide from industrial emissions is potentially cheaper and more efficient than current methods (27 August 2013)

To read more, please click here.

Queensland council financial probe launched

The Queensland government will instigate a ministerial probe into the financial operations of the Fraser Coast Regional Council and the Wide Bay Water Corporation (WBWC) after highly publicised board sackings, resignations and a $73.5 million debt created between the council and the WBWC (30 August 2013)

To read more, please click here.

University of Queensland’s Zero energy, carbon neutral Global Change opens

The University of Queensland’s $32 million, 3865 square metre building  zero energy, carbon neutral Global Change Institute has officially opened (29 August 2013)

To read more, please click here.

Queensland national parks set to shine

Visitors to Queensland could soon be swapping humdrum hotels for secluded shearers quarters and homesteads, under a new plan to repurpose facilities through outback Queensland’s national parks (28 August 2013)

To read more, please click here.

Livestock dominates Queensland land use, but residential land is worth more

The first land account for Queensland has found that livestock grazing is the largest use of the state’s land, using 102 million hectares or 59 percent of the state, according to a report released today by the Australian Bureau of Statistics (ABS) (28 August 2013)

To read more, please click here.

Queensland Ecotourism Plan released

Queensland’s future as Australia’s top nature-based tourism destination is all mapped out, with the release of the Ecotourism Plan 2013–2020. The Ecotourism Plan proposes 43 actions to be delivered over three years to ensure Queensland is a world leader in ecotourism (27 August 2013)

To read more, please click here.

Queensland liquor red tape slashed

The Newman Government continues to deliver on its commitment to slash red tape with a range of liquor licensing reforms approved by Cabinet. Queensland’s restaurants, cafes and small community clubs as licensed venues will no longer require an approved manager to be on site if they don’t operate past midnight (27 August 2013)

To read more, please click here.

Ports back to pre-GFC coal volumes

Queensland’s coal passing through the major ports has returned to pre-GFC and pre-flood production in a further sign of a strengthening economy. The 16.257 million tonnes (Mt) of coal that moved through Queensland ports last month was the highest July total ever recorded  (22 August 2013)

To read more, please click here.

Published – articles, papers, reports

On Track; Implementing High Speed Rail in Australia / High Speed Rail Advisory Group Report

Major recommendations include: Formally commit to high speed rail and settle arrangements; Protect the corridor (initially through national legislation) and Refer high speed rail to Infrastructure Australia for initial assessment (26 August 2013)

To read more, please click here.

Coal and gas mining in Australia: opportunities for national law reform / The Australia Institute (TAI)

This report identifies existing Commonwealth law and policy relevant to the regulation of coal mining and unconventional gas exploration and production in Australia (21 August 2013)

To read more, please click here.

In practice and courts

Australian National Conference on Resources and Energy 2013

The conference in Canberra, 03-04 October,  will provide an opportunity to showcase leading-edge Australian and international research on key issues such as the global gas revolution, China’s growth prospects, the community licence to operate, Indigenous communities and mining, renewable energy developments and also energy efficiency.

To read more, please click here.

Greenhouse Conference 2013

The conference to be held 08-11 October 2013 in Adelaide, South Australia, will feature briefings on the contents of the IPCC 5th Assessment Report. The Working Group 1 (science). Dr. Thomas Stocker (co-chair of IPCC’s Working Group 1) will be speaking at the conference

To read more, please click here.

Announcements, Draft Policies and Plans released 2013

State Planning Policy 1/03: Mitigating the adverse impacts of flood, bushfire and landslide

The SPP 1/03 expires on 01 September 2013. Local governments will not be able to make any new designations of natural hazard management areas (flood) for an interim period from 1 September 2013. Designations made prior to 1 September 2013 will continue to apply

To read more, please click here.

City Centre Master Plan 2013 launch

The new  City Centre Master Plan 2013 sets out how Council will guide the future economy, cultural and transport systems of Brisbane’s CBD over the next 20 years. The Master Plan will set new directions for architecture and public spaces in the city centre (02 September 2013)

To read more, please click here.

OSR updates

Updated Public Ruling for transfer duty

The Commissioner has issued Public Ruling DA000.7.2—Transfer duty relief on acquisition of rural properties for farm rationalisation purposes.  The Ruling has been amended to clarify that relief under the Ruling is only available (provided all other conditions are met) for transactions entered into on or before 31 August 2013.  This is consistent with the discontinuance of the scheme published under the Ruling from 1 September 2013, as announced on 18 July 2013 (20 August 2013)

Recent approvals and opportunities to object to Mining Lease and Environmental Authority Applications

GVK and Hancock Coal’s Kevin’s Corner coal mine – Mining Lease and Environmental The proposed by Hancock Galillee Pty Ltd near Emerald is open for public objection. The project proposes 40 years of coal mining. View the public notice of the application here: http://www.edo.org.au/edoqld/wp-content/uploads/2013/08/2013-08-Kevins-Corner-EA-and-ML.jpg The last day to file an objection is 6 September 2013.

To read more, please click here.

Cases

Clift Investments Pty Ltd v Valuer-General [2013] [2013] QLC 56

Valuation – site value – single unit residential lot – vacant (or lightly improved) sales best evidence of value – rationale – preferred to improve d sales or applied values to other properties – need to assess added value of improvements. Valuation – mortgagee sales – many passed in at auction – whether evidence of falling market – countered by sales evidence showing improved trend

To read more, please click here.

Bruce and Cheryl Gatfield v Valuer-General [2013] [2013] QLC 55

Valuation – site value of single residential property – scarcity of unimproved sales for basis – whether sufficient to establish market – whether premium attached to sales – evidence necessary – none provided – onus of proof on appellant. Valuation – site value of single residential property -  relationship between land size and value per m² – need to consider all features – size, aspect, topography, location, shape of block, zoning – area comparison not proper valuation practice. Valuation – site value – single residential property – sub- market established for prestige area – relativity between properties desirable – but sales key comparison.

To read more, please click here.

Cases to 27 August 2013

Orsay Holdings Pty Ltd v Mecanovic & Ors [2013] QCA 232

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – JURISDICTION GENERALLY – where tenant brought action against landlord for damages for breach of the covenant for quiet enjoyment – where tenant alternatively sought compensation under s 43 of the Retail Shop Leases Act 1994 (Qld) – where damages and compensation sought for periods before and after the expiry of the lease – where landlord argued QCAT did not have jurisdiction to award compensation under s 43 after expiry of the lease – where lease remained a “retail shop lease” after its expiry – where tenant’s claim for damages for breach of covenant was a “retail tenancy dispute” – whether QCAT has jurisdiction to award compensation under s 43 after expiry of the lease – whether QCAT has jurisdiction to award damages for breach of covenant for quiet enjoyment after the expiry of the lease

LANDLORD AND TENANT – RETAIL AND COMMERCIAL TENANCIES LEGISLATION – JURISDICTION, POWERS AND APPEALS OF COURTS AND TRIBUNALS – APPEALS – where tenant brought action against landlord in QCAT for breach of covenant for quiet enjoyment – where tenant was successful – where landlord appealed unsuccessfully to the QCAT appeal tribunal – where landlord applies for leave to appeal from the decision of the appeal tribunal – where landlord argued appeal tribunal overlooked legal principle – where legal principle had been considered in original QCAT decision – whether question of law or fact – whether application for leave to appeal should be granted

To read more, please click here.

Reeves v O’Riley [2013] QCA 229

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – AGREEMENTS CONTEMPLATING EXECUTION OF FORMAL DOCUMENT – WHERE CONCLUDED CONTRACT – where tenants in common corresponded through their solicitors with a view to the transfer of the interest of one to the other – where the proposed transferor died without having signed the transfer documents, leaving a will in which he devised his interest in the property to his son – whether the trial judge erred in finding that the letters exchanged constituted offer and acceptance – whether the letter from the transferor’s solicitors constituted a memorandum of the contract as required by s 59 of the Property Law Act – whether the transferor’s solicitor had authority to sign the letter

To read more, please click here.

Legislation

Commonwealth

Marine Order 97 (Marine pollution prevention — air pollution) 2013

AMSA MO 2013/16 – This order repeals Marine Order (Marine pollution prevention — air pollution) 2007 and gives effect to Annex VI of MARPOL, which deals with prevention of air pollution from vessels (02 September 2013)

To read more, please click here.

Queensland

Regulations

No 162:  Statutory Instruments Amendment Regulation (No. 1) 2013 – 23-08-2013 – Statutory Instruments Act 1992-2013 – Instruments mentioned in this part expires on 31 August 2014

No 164:  Nature Conservation Legislation Amendment Regulation (No. 1) 2013 – 23-08-2013 – Nature Conservation Act 1992

No 165:  Proclamation commencing certain provisions of the Land, Water and Other Legislation Amendment Act 2013 (part 13, division 3 of the Act) on 23 August 2013

No 166: River Improvement Trust Regulation 2013 – 23-08-2013 – River Improvement Trust Act 1940 – register and numbering of improvement notices

No 167: Valuers Registration Regulation 2013 – 23-08-2013 – Valuers Registration Act 1992 – code of professional conduct and schedule of fees

No 168:  Sustainable Planning Amendment Regulation (No. 5) 2013 – 30-08-2013 – Sustainable Planning Act 2009 – for development for the G20 component of the Government Wireless Network Project necessary to provide a radiocommunications network to support the G20 events in Queensland in 2014

No 170:  Mineral Resources Regulation 2013 – 30-08-2013 – Coal Mining Safety and Health Act 1999; Mineral Resources Act 1989 and  Petroleum and Gas (Production and Safety) Act 2004  -  for mining  tenements, licences, leases and royalties

No 173:  Plant Protection (Approved Sugarcane Varieties) Amendment Declaration (No. 1) 2013 – 30-08-2013 – Plant Protection Act 1989

Contact Us

Andrew Johnson  Partner

Direct Line: (07) 3228 0408

ajohnson@millsoakley.com.au

Michael Nixon  Partner

Direct Line: (07) 3228 0450

mnixon@millsoakley.com.au

The recent decision of the New South Wales Supreme Court of Appeal (“NSWCA”) in The Owners – Strata Plan No. 50276 v Thoo has provided some interesting guidance on the obligations of owners corporations to maintain the common property (in the context of a retail and commercial strata), as well as associated issues relating to upgrading shared facilities and services.

The Basic Facts

The Appellant was the Owners Corporation (“the Owners”) of a commercial strata scheme known as “Hunter Connection” beneath Wynyard Station. The lot occupants ran businesses cooking and selling food to the public. The Respondent, Dr Thoo, purchased a lot property and sought to subdivide the lot into 3 shops and connect each to the mechanical ventilation exhaust system (“MEVS”). He requested that the Owners guarantee him an exhaust ventilation capacity of 3,600 litres per second, which would require an upgrade to the current ventilation system.

The Owners unanimously passed Special Resolution 7, resolving that it was inappropriate for the Owners to renew or replace the MEVS pursuant to section 62(3) of the Strata Schemes Management Act 1996 (“SSMA”).

Section 62 provides as follows:

What are the duties of an owners corporation to maintain and repair property?

(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

The Owners Duty to Maintain and Repair

Dr Thoo brought proceedings seeking a mandatory injunction, amongst other orders, that the Owners repair or replace the MEVS to provide him with the requested 3,600 litre capacity.

At first instance, Slattery J found that the MEVS was in a good and serviceable state of repair, but the Owners were in breach of its statutory duty to renew or replace the MEVS to provide Dr Thoo with a reasonable level of exhaust capacity. Accordingly, Slattery J ordered the Owners to “modify, or add to, repair, or replace the MEVS to ensure that Lot 17 receives a reasonable supply of exhaust ventilation capacity from the MEVS of not less than 3,600 l/s.”

The Owners then brought an appeal in the NSWCA.

The NSWCA, per Tobias J at [118], held that:

“where a system is operating as expected and a new user demands a level of future performance which an owners corporation cannot guarantee, that is not a case in which the system is no longer operating efficiently or effectively. It is in substance a demand for an improvement or enhancement of the system…Accordingly, mere incapacity to service future lot owners over and above capacity of the system as designed is insufficient to engage the duty in s 62(2).”

And at [130]:

“Once it was found, as [Slattery J] did that the system has not fallen into disrepair but was operating according to its original design capacity, there could be no breach of s 62(2) by reason of the Owners Corporation to replace the system.”

The Lot Owner’s Proprietary Rights

Dr Thoo also pleaded that he had the right to use and enjoy the common property MEVS as an equitable tenant in common, and the Owners had a positive general law duty to provide that right.

The NSWCA found that the duties and functions imposed on an owners corporation by the SSMA are positive duties. Negative duties (such as the duty not to benefit from the trust) are imposed on an owners corporation by general equity law, and do not extend to the positive enforcement of the right of a lot owner to use and enjoy the common property. As such, “any complaint that the activities of one owner impair another owner’s enjoyment of the common property is a dispute to which the owners corporation, as trustee, is a stranger.”

The Requirements of a Valid Section 62 Resolution

Dr Thoo submitted that Special Resolution 7 was invalid because the Owners had failed to form an opinion in respect of the requirements at sections 62(3)(a) and 62(3)(b), and without a proper basis to form that opinion a “determination” cannot be made by the Owners.

The NSWCA held that there was no requirement that an owners corporation provide reasons for its determination, and it is clear that section 62(3) require that the Owners form an opinion in respect of the requirements set out in sections 62(3)(a) and 62(3)(b) as a precondition to making a “determination” under section 62(3).

Furthermore, the Owners were correct in finding that a fire safety risk (per section 62(3)(b)) did not arise because the occupants of Lot 17 were not permitted to connect their exhaust systems to the MEVS under the Australian Standards or Building Code of Australia, and thereby could not overload the system and create that risk.

The individual lot owners were entitled to find it “inappropriate” to replace the MEVS per section 62(3)(a) because of the high cost and lack of benefit to them personally.

Fraud on the Minority

Dr Thoo also claimed that by resolving not to upgrade the MEVS, there was a fraud on the minority who could not access the system.

The NSWCA found at [196] that there was no fraud on the minority because:

“the negative impact that such a determination may have upon the minority, if otherwise the resolution is valid, is, at least inferentially, contemplated by s 62(3) itself, as it has the effect of negativing what would otherwise be a breach of duty on the part of an owners corporation in declining to renew or replace an item of common property that would no doubt benefit lot owners otherwise entitled to its use and enjoyment. But that is the nature of the legislation.”

Finally, the NSWCA expressed support for McColl JA’s reasoning in Ridis v Strata Plan 10308 [2005] NSWCA 246 that a breach of section 62 of the SSMA by an owners corporation does not give rise to a claim in damages.

Conclusion

At first glance the decision seemed to absolve the Owners from providing a lot owner with an upgrade that was required to service their lot(s) properly.  However, under closer scrutiny the case was more in the nature of a dispute between an owners corporation and a lot owner trying to have the owners corporation bear the costs associated with providing services required as part of changes in their lot(s) to their benefit. Whilst the relevance of the case (like many) will depend on the specific facts, it does provide some useful guidance for owners corporations as to how the courts are likely to deal with such issues in the future.

For more information, please contact:

Paul Jurdeczka | Partner
pjurdeczka@millsoakley.com.au

Deliang Chin | Lawyer
dchin@millsoakley.com.au