Australia: Property & Real Estate - What's News - 29 November 2016

Last Updated: 5 December 2016
Article by Chris Lovell, Lou Farinotti and Lisa Cody

Most Read Contributor in Australia, September 2018

In the media – National

Victoria, NSW need to pick up pace on Murray-Darling plan, SA says
Progress on the Murray-Darling Basin Plan is slow going, with the SA Water Minister saying Victoria and News South Wales are not holding up their end of the deal (18 November 2016). More...

Rising commercial property prices to finally slow: PwC
The long climb of ever higher commercial property prices may finally level off in the next year as bond yields rise, according to PwC (16 November 2016). More...

Woolies' landlords revolt over Masters deal
Woolworths' deal to sell 40 of its Masters freehold properties, plus 21 development sites and 21 leasehold assets to a consortium of wealthy private families in a transaction worth $830 million faces another test in the courts, this time from landlords who leased big-box stores to the supermarket chain (16 November 2016). More...

Record renewables now in the grid
Renewable energy supplied 21.7 per cent of grid energy in October, the highest figure since complete National Electricity Market data became available, according to the latest pitt&sherry CEDEX report (14 November 2016). More...

Australia ratifies Paris climate agreement
The Australian Government has officially ratified the Paris climate agreement formalising Australia's commitment to the global deal, alongside the 100+ countries that have already ratified (10 November 2016). More... The Prime Minister and two ministers released a joint statement.

In the media – Victoria

Court upholds noisy vehicle fine
A court has upheld Environment Protection Authority Victoria's (EPA) decision to fine a Broadmeadows woman for exceeding vehicle noise limits (17 November 2016). More...

Council Plan Changes puts Residents First
The Andrews Labor Government has unveiled its first major decision as part of the reform of the Local Government Act requiring all councils by law to develop four year plans with their communities. The change will give residents more say in their council's priorities, services and budgets (17 November 2016). More...

Horse numbers on Victorian beaches to be hobbled
Environmental groups are criticising a Victorian Government plan to cap the number of horses training on beaches along the state's far south-west coast (16 November 2016). More...

South East Water turns developer to prove technology
South East Water will this week unveil its $130 million showcase water-wise housing estate on the decommissioned Cranbourne water purification plant (16 November 2016). More...

New CBD Apartments to fund Homes For Homes
Minister for Planning Richard Wynne has approved a 64-storey development which will have 632 one, two and three-bedroom apartments, retail space, car and bike parking. Permit conditions include laneway upgrades and space dedicated to community use, such as a childcare centre (08 November 2016). More...

In the media – New South Wales

Agents to face new laws and requirements in 2017
Agents in New South Wales will face a raft of new educational requirements, increased fraud prevention measures and greater scrutiny after the government released its reform paper, which aims to "strengthen industry standards and better protect consumers" (07 November 2016). More...

In the media – Queensland

Fairer public housing rent policy to encourage work
The Palaszczuk Government has ended one of the cruellest policies introduced under the Newman-Nicholls Government with a new public housing rent policy to come into force on 5 December 2016 (19 November 2016). More...
The Palaszczuk Government has announced the first projects to be funded under the $12 million three-year Community Sustainability Action grants program (09 November 2016). More...

Cases – Victoria

Equal 54 Pty Ltd v Dennis Galimberti & Ors [2016] VSC 588
Negligence – Solicitor – Scope of solicitor's duty of care in relation to purchase of interest in hotel business, including shares, and signing of guarantee – whether solicitor breached duty of care - whether failure to advise of defects in the structure of the partnership deed executed in relation to purchase - whether failure to advise of defects in company search in alleged conversations immediately prior to the signing of the guarantee – Whether breaches caused losses – Part X of the Wrongs Act 1958 (Vic) - whether alleged losses suffered, in particular, whether alleged loss suffered by reason of finding of Emmett J in Frauenstein v Farinha [2007] FCA 1953 that the shares obtained were liable to be set aside - whether the causes of action are statute barred pursuant to s.5(1)(a) of the Limitation of Actions Act 1958 (Vic) - whether any liability should be reduced by reason of the provisions of Part IVAA of the Wrongs Act 1958 (Vic) - Contributory negligence.

Re Morihovitis [2016] VSC 684
REAL PROPERTY - Restrictive covenant - Restriction to 'not more than one dwelling house and outhouses' - Burdened land contiguous to unburdened land - Common ownership - Proposal to develop both lots as one - Proposal to erect three level block of 21 apartments - Presence of some multi-unit development in the greater neighbourhood - Whether modification to covenant to allow apartment development of proposed larger scale 'will not substantially injure the persons entitled to the benefit of the restriction' - No objectors joined as parties - Scale and imposition of proposed development exceeds degree of changes in neighbourhood - Onus not discharged - Application refused - Property Law Act 1958 (Vic), s 84(1)(c). REAL PROPERTY ? Application to remove restrictive covenant ? Beneficiaries expressing opposition out of court but not willing to attend court and be joined as defendants ? Function of the Court in unopposed applications ? Plaintiff's onus of proof ? Exposure of facts and opinion from town planner on ultimate issue ? Adoption of facts by Court ? Non-adoption of opinion from underlying facts.

Pascoe v Gianello (Building and Property) [2016] VCAT 1903
Co-ownership – Part IV of the Property Law Act 1958 (Vic), sale and division of property under s.225 of the Property Law Act 1958; objection to jurisdiction on the grounds that Tribunal must exercise jurisdiction under the Bankruptcy Act 1996 (Cth) and is not empowered to do so; s.75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - distinction between exercising jurisdiction and applying the Bankruptcy Act - alleged trust under a will - alleged life interest – whether unequivocally necessary to declare that the trustees in bankruptcy hold the property in trust - whether there is unequivocally a bankruptcy dispute.

Webster Investments Pty Ltd v Anderson and Webster Investments Pty Ltd v North Star Developments Pty Ltd [2016] VSC 620
LOAN AGREEMENTS—Construction of loan agreements—Nature of security agreed—Extent to which personal guarantees agreed to be provided.
MORTGAGES—Extent to which mortgages agreed to be supported by personal guarantees—Mistake in execution of mortgage documents by guarantor—Mortgagee's duty on sale of mortgaged property with respect to guarantors—Effect of sale of mortgage property by private treaty with no public advertising or advertising regime where specialised regime may be required for a hotel and motel property—Impairment of security—Sale of mortgage property without prior valuation—Significance or otherwise of post-mortgagee's sale valuation with respect to mortgagee's duty on sale.
GUARANTEES—Impairment of security—Discharge of guarantor.

Yarra Ranges SC v Bibiano (Red Dot) [2016] VCAT 1881
NATURE OF CASE - Whether deposit of clean fill on land in Green Wedge Zone a separate or ancillary use.
LOCATION OF PASSAGE OF INTEREST - Paragraphs [26]-[42].
REASONS WHY DECISION IS OF INTEREST OR SIGNIFICANCE - APPLICATION – interesting or unusual use or development; application of policy, provision or principle; or circumstances.
Test case run by Council to determine whether the disposal of clean fill of the scale and nature being undertaken on land used for a holiday house and hobby farm is a separate use of land, and one that requires a separate permit for 'use'.
CHANGE TO LEGISLATION OR VPPS - whether change to VPPs or statutory provisions is desirable.
Suggestion that it would be desirable for the EPA, Minister for Planning, and metropolitan fringe councils need to formulate a more sophisticated policy response to dealing with the increased disposal of clean fill on rural land in the Green Wedge Zone.

Ozzi Trade Pty Ltd v Hume CC [2016] VCAT 1876
Hume Planning Scheme; Section 77 of the Planning and Environment Act 1987; Green Wedge Zone; Melbourne Airport Environs Overlay MAEO1 and MAEO2; Education Centre; Islamic Primary School and Early Learning Centre; Compatibility with Airport; Impact on Airport Operations; Traffic; Parking; Social Cohesion; Vegetation Removal.

Cases – Queensland

Burtenshaw & Anor v Tablelands Regional Council [2016] QLC 68
MINING LEASE – renewal – referral – access – determination of compensation – absence of expert or valuation evidence – use of Court judgments for determination purposes.

McClymont v Solar Silicon Resources Group Pte Ltd [2016] QLC 67
ENERGY AND RESOURCES – MINERALS – MINING FOR MINERALS – TITLES – RIGHTS, PERMITS, LICENCES AND LEASES ETC. – EXTRACTION TITLES – OTHER MATTERS – where the applicant seeks a review of compensation payable to him under a mining lease – where the applicant also seeks relief for alleged trespass or nuisance by the respondent – where the respondent seeks orders striking out the claims for trespass or nuisance – where the respondent seeks summary judgment dismissing the applicant's claims for trespass or nuisance – where the respondent seeks summary judgment dismissing the applicant's claim for a review of compensation.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions