News
Ship owner must pay for Moreton Bay oil spill clean-up
Queensland Premier Anna Bligh has announced the State would seek compensation for the cost of the clean-up, which she predicted would take at least a week. The investigation would include allegations that the Environmental Protection Agency was too slow to respond to the oil leak (12 March 2009)
Farms to forests under emissions scheme: ABARE
A report says millions of hectares of farms could become timber plantations under an emissions scheme (12 March 2009)
PCA calls on parties to freeze land taxes to preserve jobs
In the lead up to the State election, the Property Council of Australia has called on all political parties to commit to freezing planned land tax rises. Queensland Executive Director Steve Greenwood says land tax increases planned for September 2009 will see land tax bills skyrocket by around $250 million to more than $1 billion, a massive increase of around 30 percent. (12 March 2009)
http://www.qbr.com.au/news.aspx?ArticleID=55090
Owner-occupiers underpin growth in finance commitments
Value of dwelling finance commitments excluding alterations and additions increased by 1.4 percent in January, according to new ABS data (11 March 2009)
http://www.qbr.com.au/news.aspx?ArticleID=55078
Commercial tenants beware of renovations
The High Court has ordered Tabcorp to pay its landlord damages, after the gaming giant renovated its premises
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8
Mandatory disclosure – coming to a building near you
As the Government moves towards mandatory disclosure of commercial office buildings’ energy efficiency levels will spread from big to small properties.
The government intends to progressively expand the scheme’s coverage to future and additional building types (09 March 2009)
http://www.propertyoz.com.au/Article/NewsDetail.aspx?p=56&mid=1562
ETS laws set to miss deadline
Articles and Reports
Mechanics for termination of lease and No obligation to trade from premises
Author: Peter Butt
Source: Australian Law Journal, Vol 83, No 2, February 2009: pp77
Accumulating lease terms
Author: Peter Butt
Source: Australian Law Journal, Vol 83, No 2, February 2009: pp78
The emissions trading enigma
Author: Zoe Lyon
Source: Lawyers Weekly, Issue 426, 6 March 2009: p8-9
The art of residential conveyancing: Part 2
Author: Jamie Brauer, Iain cCowie
Source: Proctor, Vol 29, No 2, March 2009: p39-40
Practice Notes / Directions
Carbon reduction draft legislation
The Government's exposure draft legislation for the Carbon Pollution Reduction Scheme has been released. The Government is seeking submissions from interested parties on the exposure draft legislation by close of business Tuesday, 14 April 2009. Copies of the draft legislation, commentaries, and details on how to make public submissions are available on the Department of Climate Change website: http://www.climatechange.gov.au/.(11 March 2009)
Improving sustainable housing in Queensland
From March 1 2009, all new houses and units in Queensland must achieve a minimum 5 stars (out of 10) energy equivalent rating under the new sustainable housing regulations. This is an increase from the current minimum rating of 3.5 to 4. (06 March 2009)
Emissions Trading inquiry, terms of reference
The Terms of Reference for the Senate Inquiry into emissions trading.
Legislation
Queensland
Current Reprints
Environmental Protection Act 1994 No.8E
Greenhouse Gas Storage Act 2009 No.1
Integrated Planning Act 1997 No.10
Integrated Planning Regulation 1998 No.8A
Land Act 1994 No.10D
Local Government Act 1993 No.12F
Marine Parks Regulation 2006 No.2A
State Penalties Enforcement Regulation 2000 No.9
Transport Operations (Marine Pollution) Regulation 2008 No.0C
Valuation of Land Act 1944 No.7B
Water Regulation 2002 No.6
Water Supply (Safety and Reliability) Act 2008 No.1B
Cases
Body Corporate for Aleutian at Seaforth & Ors v The Lot Owners for Each of the Applicant Bodies Corporate & Ors [2009] QDC 052
CORPORATIONS – BODIES CORPORATE – OTHER THAN COMPANIES AND ASSOCIATIONS – NATURE AND POWERS – IN GENERAL – Application to court to amalgamate community titles schemes – where special resolution required to bring application – where voting paper accompanying notice of meeting to owners failed to state a special resolution was required – where minutes record motion as a motion by ordinary resolution – requirement for quotations – where cost of giving effect to a proposal exceeds relevant limit for major spending
Collett v Robina Projects Australia Pty Ltd t/a Easy T Retail Centre & Ors [2009] QDC 053
DEEDS – Construction – general principles – effect of entire agreement or understanding (merger) provision
CONTRACTS – Not Read by Signatory – whether that person was bound by its terms
Amberley Aerospace Park P/L v Heartwood Architectural Timber & Joinery P/L [2009] QSC 044
REAL PROPERTY – TORRENS TITLE – CAVEATS AGAINST DEALINGS – WHO MAY LODGE AND WHAT INTEREST SUFFICIENT – PARTY TO MORTGAGE OR CHARGE – where first respondent lodged caveat over land claiming an interest as chargee – where registered owner of land is second respondent as trustee – where second respondent was replaced as trustee by applicant – whether there is a serious question to be tried as to whether second respondent gave first respondent a charge over its right of indemnity as trustee – whether caveat should be removed
EQUITY – TRUSTS AND TRUSTEES – POWERS, DUTIES, RIGHTS AND LIABILITIES OF TRUSTEES – INDEMNITY, LIEN AND REIMBURSEMENT – GENERAL PRINCIPLES – where second respondent held properties and carried on business in two distinct capacities – as trustee and in its own right – where second respondent acquired a business from first respondent in its own right – where first respondent provided vendor finance – where repayment was secured by a mortgage debenture between second respondent as mortgagor and first respondent as mortgagee – where second respondent as beneficial owner charged in favour of first respondent all its right, title and interest in the mortgaged property – where second respondent held land as trustee – nature of second respondent’s right of indemnity out of trust assets – whether second respondent charged its right of indemnity
Neray Holdings Pty Ltd v Spina (No 2) [2009] QSC 045
PROCEDURE – COSTS – GENERAL RULE - COSTS FOLLOW THE EVENT – COSTS OF WHOLE ACTION – GENERALLY – where substantive dispute was as to the proper interpretation of a provision of the lease between the parties – where applicant won the dispute – whether respondents should be ordered to pay applicant’s costs of and incidental to the application on the standard basis – whether the quantum of costs should be fixed under r 687(2)(c) of the Uniform Civil Procedure Rules 1999 (Qld)
http://www.sclqld.org.au/qjudgment/2009/QSC/045
Viclee Nomineees Pty Ltd v Team Venture Pty Ltd [2009] QSC 047
LANDLORD AND TENANT – TERMINATION OF THE TENANCY – FORFEITURE – RE-ENTRY AND PROCEEDINGS TO RECOVER POSSESSION – GENERALLY – where plaintiff is landlord of shop premises leased to defendant – where plaintiff alleges defendant in arrears of rent – where plaintiff served on defendant notice to terminate tenancy – where plaintiff applies for summary judgment – whether plaintiff should be entitled to possession of shop premisesTRADE AND COMMERCE – TRADE PRACTICES ACT 1974 (CTH) AND RELATED LEGISLATION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – CHARACTER OR ATTRIBUTES OF CONDUCT OR REPRESENTATION – RELIANCE, INDUCEMENT AND CAUSATION – where defendant alleges it was induced to enter into lease by representation of plaintiff’s property manager – whether representation was in substance a departure from terms of lease
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – SUMMARY JUDGMENT – where plaintiff applies for summary judgment – whether defendant has real prospects of successfully defending the proceedings – whether summary judgment should be granted under r 292 Uniform Civil Procedure Rules 1999 (Qld)
Kevroy P/L v Keswick Developments P/L; Keswick Developments P/L v Kevroy P/L & Ors [2009] QSC 049
EQUITY – GENERAL PRINCIPLES – PRIORITY AND NOTICE – PRIORITY GENERALLY – NOTICE – EXPRESS AND IMPLIED NOTICE – where competing equitable interests – where Plaintiff had express notice of Applicants agreement – where first in time has priorityREAL PROPERTY – – LEASES – SUBLEASES – EFFECT OF REGISTRATION – OPTION TO PURCHASE – OPTION TO RENEW – where sublease was registered in time prior to the head lease – where order for summary judgement sought under r 293 of the Uniform Civil procedure Rules 1999 (Qld) – where the Plaintiff in 12924/08 has no real prospects of success – where there is no need for a trial of the claim
CORPORATIONS – FORMATION – PRE-REGISTRATION CONTRACTS – ADOPTION OR RATIFICTION – where no interest in the land could be created by the contract expect in accordance with s 131 of the Corporations Act 2001 (Cth)
Baevski v Gladstone Regional Council & Ors; Sea Breeze (Qld) Pty Ltd v Gladstone Regional Council & Ors [2009] QPEC 005
ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONSENTS APPROVALS AND PERMITS – where preliminary approval given but development permit from local authority not applied for – whether residential house lacks proper approval from the local authority – whether preliminary approval makes the development self assessable rather than code assessable – whether further development should be declared unlawful or restrained
Fyna Holdings Ltd atf Boormakin Duckworth Family Trust & Terali Developments Pty Ltd atf Hayes Family Trust v Clifford Roger Maxwell (aka Christopher John Collins, aka Christopher Cicolini, aka Clifford Cicolini) & Pervan [2009] CCT PC041-06
Re-opening order of Tribunal –Commercial and Consumer Tribunal Act 2003, section 95
– defalcations from trust account through fraud of director of corporate real estate agent – Property Agents & Motor Dealers Act 2000 – sections 14, 36(3), 374, 470(1)(a), 470(1)(e), 488, 530, 591.
Claims against directors of corporate licensee – where a co-director has caused the loss – persons “liable” under section 488(3)(c) – whether respondent director liable without fault- whether liable under s 591-whether vicariously liable- requirements for liability under section 470(1)(e) When tribunal decision takes effect (CCT Act section 92) - service of decisions on absent parties- CCT Act sections 41 and 92 - Acts Interpretation Act sections 39, 39A - alternative or substituted service directed - form of order
The material contained in this publication is no more than general comment. Readers should not act on the basis of the material without taking professional advice relating to their particular circumstances
