Australia: Property & Real Estate News - 4 September 2017

In the media – National

Low housing turnover signalling 'warning bells' for housing industry
The latest data from CoreLogic shows that house sales over the last 12 months have been trending low. Experts say that this low amount of demand is due to affordability issues. Over the last 12 months, every state and territory has recorded low demand, even in high-performing suburbs (25 August 2017). More...

City-building is federal government business
As Australia is confronted with significant long-term challenges, the Australian Government must elevate its role in city-shaping. The GBCA's submission to the inquiry outlined the GBCA's five key policy priorities which advocate a coordinated approach to city-shaping (22 August 2017). More...

In the media – Victoria

Community Open Space Consultation Report
An expert panel has released proposals for the 11 MCGs of open space that will be created by the Victorian Government's Caulfield to Dandenong level crossing removal project. The Community Open Space Expert Panel was created by the Victorian Government to guide the development of new public space created underneath the elevated rail line, and oversee its maintenance (25 August 2017). More... (Media) More...

Experts recommend significant changes to West Gate Tunnel project
A panel of architects, landscape architects and urban designers has recommended that the Victorian government make significant changes to its plans to connect central Melbourne to the city's west via a major road and cross-river tunnel and bridge system (23 August 2017). More...

Demand in Victoria set to outnumber supply
Released by the Urban Development Institute of Australia (UDIA), the residential development index (RDI) for Victoria reveals that the state is at an index of 112, with extremely high levels of new housing activity, which are not going to be met with adequate new supply (23 August 2017). More...

Renewable energy a jobs boom for Victoria
Premier Daniel Andrews joined Minister for Energy, Environment and Climate Change Lily D'Ambrosio to announce the introduction of legislation for Victorian Renewable Energy Targets (VRET), the largest renewable energy auction in Australia and the awarding of contracts for two large-scale solar plants to power Melbourne's tram network (23 August 2017). More...

Victoria must plan for population boom, Auditor-General finds
The Victorian Auditor-General's office this morning released a report examining whether the state was effectively planning for its rapid population growth. The state's Department of Environment, Land, Water and Planning has forecast Victoria will increase from just over 6.1 million to 7.7 million by 2031, with over 6 million of those living in greater Melbourne (23 August 2017). More...

In the media – New South Wales

$8 million funding boost for innovative low emission technology
The brightest minds in the resources and power generation sectors have been awarded more than $8 million in funding for their research ideas (25 August 2017). More...

New Macquarie Park commercial precinct a step closer
Infrastructure and property group, John Holland, is the successful proponent to develop a new commercial precinct at 45-61 Waterloo Road, Macquarie Park. Minister for Finance, Services and Property Victor Dominello said the $170 million deal for the 3.2ha site was a win for the community and another great example of the Government's asset recycling policy at work (16 August 2017). More...

In the media – Queensland

Second casino under consideration for Gold Coast
Just weeks after the Queensland Government rejected plans for a $3 billion casino on the Southport Spit, a new development is being considered by the Gold Coast Mayor on the other side of the Broadwater (18 August 2017). More...

Announcements, Draft Policies and Plans released 2017

Lexon has also reiterated concern regarding people who attempt to pass themselves off as someone else. Conveyancing practitioners should read the Conveyancing Protocol and check the Land Titles Practice Manual for ID requirements including paragraphs [60-0390] and [60-2000].

New QLS/REIQ contract – Commercial Tenancy Agreement
Queensland Law Society and the Real Estate Institute of Queensland have jointly endorsed a new Commercial Tenancy Agreement for use by members (17 August 2017). More...

Department of Housing and Public Works: Smoke alarm installation
The Department will replace smoke alarms in all social housing residential properties to comply with new smoke alarm legislation in Queensland. The new laws came into effect on 1 January 2017, and require all homes to have interconnected photoelectric alarms installed in all bedrooms, hallways and living areas, and on every storey of the property (18 August 2017). More... More...

Published – articles, papers, reports

Effectively planning for population growth
Victorian Auditor-General's Office: 23 August 2017
Victoria has experienced strong population growth since 2011, with the population forecast to grow from 6.1 million in 2016 to 7.7 million by 2031. Rapid growth is creating unprecedented challenges for infrastructure and service delivery, especially in growth areas where services are limited.

Cases - Victoria

Touvanna v Melton SC [2017] VCAT 1301
The application for costs by Melton City Council against the applicants is disallowed. The application for costs by Androulla Touvanna and Edward Gruszewski against Melton City Council is disallowed.Application P1941/2015 is struck out under section 76 of the Victorian Civil and Administrative Tribunal Act 1998 for want of prosecution due to the non-payment of the hearing fee for Day 2 of the proceeding.

Carvalho v Commissioner of State Revenue (Review and Regulation) [2017] VCAT 1295
Taxation – Land Tax Act 2005 (Vic), section 54(1) – Principal place of residence exemption – Failure to satisfy onus of proof – Denial of application for leave to raise additional ground at conclusion of hearing.

Secretary to the Department of Justice and Regulation v Century 21 Australia Pty Ltd [2017] VSCA 205
CONTRACT – Franchise agreement – Construction of franchise agreement – Whether franchise agreement was a 'franchising agreement' within meaning of s 43(5) of Estate Agents Act 1980 – Whether franchisee authorised to carry on business under name franchisor entitled to carry on business under – Estate Agents Act 1980, s 43.
ESTATE AGENTS – Franchise agreement – Whether franchise agreement within statutory definition – Compensation fund for victims of estate agent's defalcations – Payments out of fund by Secretary to victims of defalcation – Joint and several liability of franchisor – Estate Agents Act 1980, ss 43, 72, 73, 75, 79 and 84.
STATUTES – Statutory interpretation – Text, context and purpose of statute – Extrinsic materials – Use of extrinsic materials – Statutory provision both punitive and beneficial – Principles to be applied – Estate Agents Act 1980, s 43 – Interpretation of Legislation Act 1984, ss 35(a) and 35(b).
WORDS AND PHRASES – 'Franchising agreement' – Meaning of 'franchising agreement' – Estate Agents Act 1980, s 43(5).

Sim Development Pty Ltd v Greenvale Property Group Pty Ltd (No 2) [2017] VSC 456
COSTS – Calderbank offers – Whether capable of acceptance – Whether Calderbank offers were reasonable – Whether presumptive entitlement to indemnity costs.

Gembrook Views Estate Pty Ltd v Greater Cardinia SC [2017] VCAT 1261
The fees reimbursement and costs totalling $34,658.65, inclusive of GST, must be paid by Gembrook Views Estate Pty Ltd to the Council within 60 days of the date of this order.
The applicant (Gembrook Views) had unsuccessfully contended that a permit and section 173 agreement required it to act unlawfully pursuant to ss 50 and 52 of the Equal Opportunity Act 2010 (EO Act) on the basis of age, and that the restrictions in the permit and section 173 agreement had the effect of unlawfully discriminating against potential owners and/or occupiers under the age of 55. The application was dismissed in part for want of jurisdiction, and in part on substantive and discretionary grounds.

Mornington Peninsula SC v Coleus Investments Pty Ltd [2017] VCAT 1241
Section 87 Planning and Environment Act 1987 – cancel or amend permit – material mis-statement or concealment of fact in relation to the application of a permit – material mistake in relation to the grant of a permit - The application to amend permit P15/2068 is disallowed.
The Applicant/Responsible Authority, Mornington Peninsula Shire Council is ordered to pay the costs of the Respondent, Coleus Investments Pty Ltd fixed in the sum of $12,826.

Cases - Queensland

MSD Securities Pty Ltd v MFB Properties (NQ) Pty Ltd (No 2) [2017] QSC 168 CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – where the applicants agreed to purchase several lots of real property from the respondents for $4 million – where settlement did not occur and the contracts were varied – where performance of the contracts as varied led to part payment of $2 million – where title to the lots would not be conveyed until a subsequent payment was made – whether the contract was an instalment contract within the meaning of s 73 of the Property Law Act 1974 (Qld).
CONVEYANCING – STATUTORY OBLIGATIONS OR RESTRICTIONS RELATING TO CONTRACT FOR SALE – where the applicants agreed to purchase several lots of real property from the respondents for $4 million – where s 73 of the Property Law Act 1974 (Qld) provides that a purchaser under an instalment contract may avoid the contract if the vendor, without the consent of the purchaser, mortgages the land the subject of the contract – where the vendors mortgaged one of the lots of real property – where the vendors allege that a conversation occurred more than a year earlier in which the purchasers consented to the mortgage – whether the conversation occurred – whether the conversation amounted to consent within s 73.
EQUITY – EQUITABLE REMEDIES – SPECIFIC PERFORMANCE – GENERALLY – where the applicants agreed to purchase several lots of real property from the respondents for $4 million – where the purchasers sought and obtained an order for specific performance of the contract – where the purchasers subsequently became aware of facts which entitled them to avoid the contract pursuant to s 73 of the Property Law Act 1974 (Qld) – where the purchasers purported to exercise the right – whether the order for specific performance affected the purported exercise of the statutory right to avoid the contract.
CIVIL PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – GENERAL PRINCIPLES – where the applicants agreed to purchase several lots of real property from the respondents for $4 million – where the purchasers sought and obtained an order for specific performance of the contract – where r 667(2)(f) of the Uniform Civil Procedure Rules 1999 (Qld) allows for the setting aside of an order for specific performance where the court considers it appropriate for reasons that have arisen since the order was made – where the purchasers subsequently exercised their right to avoid the contract pursuant to s 73 of the Property Law Act 1974 (Qld) – whether the purchasers should be relieved of their obligation to complete.
RESTITUTION – CLAIMS ARISING OUT OF INEFFECTIVE CONTRACTS – UNENFORCEABLE OR VOID CONTRACT – VOID CONTRACT – GENERALLY – where the applicants agreed to purchase several lots of real property from the respondents for $4 million – where settlement did not occur and the contracts were varied – where performance of the contracts as varied led to part payment of $2 million – where title to the lots would not be conveyed until a subsequent payment was made, but the purchasers were permitted to enter into possession – where the purchasers subsequently exercised their right to avoid the contract pursuant to s 73 of the Property Law Act 1974 (Qld) – whether the purchasers have a right of recovery at law of the $2 million part payment.
EQUITY – EQUITABLE REMEDIES – OTHER REMEDIES – where the applicants agreed to purchase several lots of real property from the respondents for $4 million – where settlement did not occur and the contracts were varied – where performance of the contracts as varied led to part payment of $2 million – where title to the lots would not be conveyed until a subsequent payment was made, but the purchasers were permitted to enter into possession – where the purchasers subsequently exercised their right to avoid the contract pursuant to s 73 of the Property Law Act 1974 (Qld) – whether, if the purchasers do not have a right of recovery at law, they are entitled in equity to relief against forfeiture of the instalments – whether the purchasers have a right of recovery in equity of the $2 million part payment.

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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Chris Brodrick
Katie Miller
Gerard Timbs
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