In the media
The squeeze on Sydney industrial land is a boon for
Melbourne and Brisbane
Industrial property occupiers forced out of the
constrained Sydney market are flocking to Melbourne for space, and
Brisbane is tipped to be next in line (21 November 2019).
More...
Commonwealth
Emergency, emergency: What are we waiting for
There are way too many similarities between California and
Australia when it comes to fire risk. In the US, more than 12.7
million homes were built in the high-risk wild lands-urban
interface in the 20 years to 2010. In 2011, Australia had 3.3
million people in similar outer metropolitan fringe areas –
by 2021, that will rise to about 4.5 million people (12 November
2019).
More...
Victoria
Major update to Melbourne's urban design
policy
City of Melbourne councillors have endorsed a set of new
urban design rules for central Melbourne, as well as a decades-long
plan for improving design excellence in the city, at a meeting of
the Future Melbourne Committee on 19 November (20 November 2019).
More...
Developer paid $1.2m into the accounts of local
councillors: Corruption probe
Companies linked to Ferrari-driving property developer
John Woodman paid two councillors at Casey council more than $1.2
million in what a lawyer for the Victorian anti-corruption
commission said was an attempt to win favourable planning decisions
worth up to $100 million in one case (18 November 2019).
More...
'World's most sustainable shopping centre'
takes root in the suburbs
A candidate for world's most sustainable retail mall
is nearing completion on the site of a former brickworks in
Melbourne's eastern suburbs. Property giant Frasers, hopes to
be the first shopping centre in the world to be accredited under
the Living Building Challenge standards (12 November 2019).
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Stockland launches $2b business park in Melbourne's
west
Diversified developer Stockland has teamed up with
landowner Mount Atkinson Holdings to launch a $2 billion business
park in Melbourne's west (12 November 2019).
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Council push to deliver more affordable housing in
Melbourne
A draft Affordable Housing Strategy is set to be released
early next year by the City of Melbourne, which believes the
city's affordable housing shortage could increase by more than
23,000 by the year 2036 without changes to the planning scheme (11
November 2019).
More...
NSW
Lack of information on apartment defects leaves whole
market on shaky footings
The litany of defects, poor building standards and
regulatory failures has serious implications for apartment owners,
occupiers and buyers alike. Fears of a loss of confidence in the
sector have unfortunately come true (21 November 2019).
More...
Triguboff gets green light on Parramatta's tallest
tower
Despite Sydney's slower residential property market in
recent years, property tycoon Harry Triguboff will push on with
plans to build Parramatta's tallest residential tower after
getting the go-ahead from the New South Wales Planning Panel (11
October 2019).
More...
Cases
Re Young [2019] VSC
755
REAL PROPERTY – restrictive covenant –
covenant not to construct more than one dwelling –
neighbourhood having homogenous residential conditions of single
dwellings – no other instance of dual occupancy or more than
one dwelling in the neighbourhood – absence of any objection
to the modification by beneficiaries of covenant – onus of
proof on applicants to show that proposed modification 'will
not substantially injure the persons entitled to the benefit of the
restriction' – precedential effect of allowing
application as creating a 'substantial injury' –
preservation of existing residential conditions– application
refused – Property Law Act 1958 (Vic), s 84(1)(c)
Kinchington Estate Pty Ltd v Wodonga City
Council [2019] VSC
745
ADMINISTRATIVE LAW – Judicial review – Order
56 – Agreement under s 173 of the Planning and Environment
Act 1987 (Vic) – applications by registered proprietor to
amend s 173 agreement – Council refusal to agree in principle
to s 173 amendment applications – refusal by Council to
furnish statement of reasons – whether Council was acting as
a 'tribunal' when decisions were made – definition of
'tribunal' considered – procedural fairness –
No 2 Pitt Street Pty Ltd v Wodonga City Council (No 3)
[1999] 3 VR 439; Muldoon v Melbourne City Council [2013]
FCA 994; (2013) 217 FCR 450 referred to and applied –
Administrative Law Act 1978 (Vic) ss 2, 8(1) – Planning and
Environment Act 1987 (Vic) ss 177, 178A, 178B, 178C-178I
S3 Sth Melbourne Pty Ltd v Red Pepper Property Group
Pty Ltd (Building and Property) [2019] VCAT
1794
Retail lease – assessment of damages – three
categories of damages: costs associated with new lease – rent
and outgoings forgone and difference between rent under termination
lease and lease to new tenant
I declare the respondent's damages on its counterclaim are
$151,009.47
Italian Stuff Pty Ltd v K & N Company Pty Ltd
(Building and Property) [2019] VCAT
1783
Retail lease – tenant default – claim for
damages for breach of lease – premises re-let at higher rent
but for shorter period than original lease – quantum of
bargain loss – I assess the loss payable by the applicant
– first joined party and second joined party to the
respondent as $202,950.09
Barfly's Nominees Pty Ltd v Kliger Partners (a
firm) [2019] VSCA
256
NEGLIGENCE – Solicitors – retail tenancies
dispute – landlords' repair obligations –
solicitors' advice to tenant to settle proceeding against
landlords due to effect of retrospective amendments to retail
tenancies legislation – whether judge erred in finding advice
by solicitors to settle not negligent – whether judge
mischaracterised case brought against solicitors and failed to have
regard to tenant's accrued contractual causes of action –
whether judge misunderstood the operation of the retail tenancies
legislation – reliance – whether judge erred in finding
no reliance by tenant on advice – no requirement for advice
to be sole basis upon which client acts – Henville v
Walker [2001] HCA 52; (2001) 206 CLR 459 applied –
Retail Tenancies Reform Act 1998, ss 25, 26, 47 – Retail
Leases Act 2003, ss 107, 118, 119 – Retail Leases (Amendment)
Act 2005, ss 2(4), 43 – Interpretation of Legislation Act
1984, s 14(2)(e)
DAMAGES – loss of a chance to continue proceeding against
landlords – whether judge erred in finding it was not
possible to sufficiently, safely or accurately evaluate the
prospects of success – whether 'broad brush' approach
or a 'trial within a trial' required – Johnson v
Perez [1988] HCA 64; (1988) 166 CLR 351 and Rosa v
Galbally & O'Bryan [2013] VSCA 116; (2013) 42 VR 382
applied
Clementi v Rossi [2019] VSC
725
TRUSTS – whether the defendant holds interest in a
real property on resulting trust for the plaintiff – whether
the defendant must account to the plaintiff for rental received
from the property – where the plaintiff submits transfer to
the defendant was to avoid future claim from wife – where the
defendant submits transactions formed part of a 'family joint
venture' – credibility of witnesses.
RESULTING TRUSTS – whether the defendant holds interest in
the property on resulting trust for the plaintiff – whether
presumption of resulting trust applies – Melbourne
Orthopaedic Group Pty Ltd v Stamford Aus-Trade & Press Pty
Ltd [2015] VSCA 150 – Anderson v McPherson (No
2) [2012] WASC 19 – Vlahos Pty Ltd v Vlahos
[2017] VSCA 166 – Australian Building & Technical
Solutions Pty Ltd v Boumelhem [2009] NSWSC 460 – whether
presumption of advancement applies – Calverley v
Green (1984) CLR 242 – Xiao v Perpetual [2015]
VSCA 124
CONSTRUCTIVE TRUSTS – whether the defendant holds interest in
the property on constructive trust for the plaintiff –
'Joint endeavour' constructive trusts –
Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583
– Australian Building & Technical Solutions Pty Ltd v
Boumelhem [2009] NSWSC 460 – 'Common intention'
constructive trusts – McNab v Graham [2017] VSCA
352; (2017) 53 VR 311 – Imam Ali Islamic Centre v Imam
Ali Islamic Centre Inc [2018] VSC 413
PROPRIETARY ESTOPPEL – whether the defendant is estopped from
denying the plaintiff's joint beneficial interest the property
– Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR
505
LIMITATIONS – whether the plaintiff is estopped from
contending that he has an interest in the property, or is otherwise
barred from relief – Limitations of Action Act 1958 (Vic) ss
5, 11 and 21 – Doctrine of laches – Orr v Ford
[1989] HCA 4; (1989) 167 CLR 316 – CSR Ltd v Amaca Pty
Ltd [2016] VSCA 320 – waiver of rights to bring claim
– RW Health Partnership Pty Ltd v Lendlease Building
Contractors Pty Ltd [2019] VSC 353
Leonello Service Centre Pty Ltd v Rany Pty Ltd
(Building and Property) [2019] VCAT
1752
Section 37 Retail Leases Act 2003 (Vic) – rental
determination – adequacy of reasons – special nature of
premises – confidential information about comparables –
failure to disclose reasoning behind analysis of comparables
– contradictory description of a key fixture - expert's
determination vitiated by error
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.