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.
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.

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