In the media
Australian Retail rents reach a record high
Sydney, Melbourne and Brisbane are among the 10 most expensive cities in the world for prime retail rents, with Australia the only country to have more than one city in the top 10, according to CBRE’s quarterly survey (Q1 2013) (20 May 2013)
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ASIC sends warning to property spruikers
ASIC has revoked the credit licence of Money Choice Pty Ltd after an investigation found the company had failed to comply with credit laws. The Melbourne-based company’s director was banned from engaging in credit activities for eight years (16 May 2013)
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US private equity firm Denham invests in Australian wind power
Private equity firm Denham Capital Management has invested US$75 million in wind-power projects under development in Australia, where the Government has put policies in place to actively attract clean energy investment (15 May 2013)
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In practice and courts
Tax information for property transactions 2013 website
To make it easier for you to understand your property related tax obligations and entitlements, the ATO webpage contains links to tools, forms and outlines information on property topics including: Income Tax; Capital Gains Tax; Goods and Services Tax; Residential rental properties; Property used in running a business; Property development; Building and renovating.
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Cases
Kallena Pty Ltd v Darebin CC [2013] VCAT 715
The decision of the responsible authority to refuse to grant a permit is set aside and a permit is granted for the building to contain 40 dwellings with reduced car parking, waiver of on-site loading bay requirement and the deletion of access to a Road Zone Category 1 - Business 1 Zone and subject to a development contributions overlay under the Darebin Planning Scheme
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GADM Enterprises Pty Ltd & Anor v Indigo Cove Pty Ltd (Retail Tenancies) [2013] VCAT 699
Surrender, conversion of tenant’s plant and equipment, measure of damage in conversion, unconscionable conduct, s77 Retail Leases Act.
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Martlyn Pty Ltd v Bell Tower Investments Pty Ltd (Retail Tenancies) [2013] VCAT 698
Discovery, Accounting records, business loss
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Director of Consumer Affairs v Worldwide Scope Pty Ltd (Review and Regulation) [2013] VCAT 702
Estate Agents Act 1980 – ss25, 90(1), 91 (1)(b)(ii), s63, s28A(1)(a), s28A(1)(f) – Application for inquiry –– respondent company holder of a corporate estate agent’s licence – deficiency in trust account – failure to account for, deliver or pay rental monies received and to be held in trust – Residential Tenancies Act 1997 – s406 – failure to pay bonds received from tenants to the Residential Tenancies Bond Authority – where director and officer in effective control is unable to be located – contravention of the Estate Agents Act and/or Regulations, and the Residential Tenancies Act – respondent permanently disqualified from holding an estate agent’s licence and reprimanded
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Cases to 21 May 2013
Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd [2013] VSCA 106
LANDLORD AND TENANT – Retail premises lease – Renewal – Executory contract between tenant under retail premises lease and purchaser of reversion under uncompleted contract of sale of reversion for new lease of premises to commence upon expiration of existing retail premises lease – Whether executory contract a ‘renewal’ of lease within meaning of Retail Leases Act 2003 (Vic) – Whether executory contract valid and enforceable though not a ‘renewal’ – Assignment – Purported assignment by tenant to new tenant (‘assignee’) of both remainder of term of lease and executory contract for new lease – Whether assignment effective to convey both benefit and burden of executory contract for new lease – Later completion of contract of sale of reversion – Whether purchaser of reversion entitled to enforce executory contract for new lease as against assignee – Guarantee – Construction of guarantee – Whether guarantee of assignee’s obligations extending to assignee’s obligations under executory contract for new lease – Whether guarantee of obligations under executory contract for new lease a covenant running with land – Chan v Cresdon Pty Ltd [1989] HCA 63; (1989) 168 CLR 242, distinguished; P A Swift Investments v Combined English Stores Group Plc [1988] UKHL 3; [1989] AC 632, Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; (2008) 234 CLR 237, applied – Retail Leases Act 2003 (Vic), ss 3, 8, 9(b), 21(4); Property Law Act 1958 (Vic), ss 140, 141, 142 and 154; Transfer of Land Act 1958 (Vic), ss 40, 42(2)(e) and 66.
APPEAL – Practice and Procedure – Application for leave to appeal out of time from decision of Victorian and Administrative Tribunal (‘VCAT’) – Need to show good reason for delay – Retail premises lease – Application for leave to appeal granted but appeal dismissed – Picken v President etc of the Shire of Alexander [1890] VicLawRp 65; (1890) 16 VLR 309, 311; In the Marriage of J F and J E McAleese (1977) 3 Fam LR 11604, referred to – Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(2).
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Harofam Pty Ltd v Scherman [2013] VSCA 104
REAL PROPERTY – Sale of land – Contract – Interpretation – Time for Registration of Plan of Subdivision – Whether contract validly rescinded by purchasers – Construction – Whether Plan not registered on ‘relevant date’ – Period of time for extension – Whether date ‘fixed’ – Whether ‘other period’ specified – Solid Investments Aust Pty Ltd v Clifford [2010] VSCA 59; (2010) 27 VR 41, Harman Nominees Pty Ltd v Leighton Shores Pty Ltd [2012] WASCA 189 followed – Sale of Land Act 1962 (Vic) s 9AE(2).
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Bella Barista Pty Ltd v Glenview Place Pty Ltd (Retail Tenancies) [2013] VCAT 649
LANDLORD AND TENANT – Term of lease – whether fixed term or periodic tenancy – Section 4(f) and s 5 of the Retail Leases Act 2003 – whether lease excluded from operation of the Retail Leases Act 2003 – Determination by Minister under the Victorian Government Gazette S184 dated 23 August 2004 – meaning of term of which (excluding options for renewal) is 15 years or longer – Whether term of lease contrary to s 94 of the Retail Leases Act 2003.
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James Price Partner
Direct Line: (03) 9605 0824
jprice@millsoakley.com.au