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Perpetual Trustee
Company Limited (ACN 000 001 007) v Smith
[2010] FCAFC 91
Contracts – respondents contracted with Money
for Living for the sale of their homes in
exchange for a lump sum payment, periodic
instalments and a lease for life – Money for
Living mortgaged property to appellant – Money
for Living wound up – mortgagee sought to
enforce rights under mortgage – whether lease
prior in time to mortgage. Equity – priorities –
general principles for determining priority of
equitable interests – relevance of time of
creation of interest – relevance of failure to
caveat
Real
property – Torrens Title – exceptions to
indefeasibility in s42(2) Transfer of Land Act
1958 (Vic) – whether tenants are tenants in
possession within the meaning of that term in s
42(2)(e) – whether mortgagee’s registered
interest takes priority over unregistered
interests of tenants for life where tenancy
entered into prior to execution of mortgage.
Real property – mortgages – tenants in
possession – registered proprietor mortgaged
property subject of lease – whether mortgagee
had notice of the fact that there were tenants
in possession – constructive notice – whether
necessary for tenants to caveat their interests
– whether tenants engaged in postponing conduct.
Real property – mortgages – time and creation of
lease and mortgage – whether mortgage created
before lease where contract of sale, mortgage
and lease executed on the same day – whether the
respondents were tenants in possession at the
time the mortgage was executed and registered.
Real property – contract for sale of land
executed at the same time as a deed of agreement
conferring to the vendor a lease for life –
whether purchaser was capable of granting a
lease to the vendor while vendor was still
registered proprietor Real property – leases –
whether lease for life void for uncertainty of
duration – whether certainty of duration rule
applies to periodic leases or leases for life.
Real property – equitable vendors’ liens –
whether respondents had vendors’ liens and
whether liens took priority over registered
mortgage – held that registered interest
prevails More...
Victoria
Fenelon & Anor
v Dove & Anor [2010] VSCA 187
Trespass to land – Unused road – Agricultural
licence to use unused road – Rights of members
of the public to pass over an unused road –
Nuisance – Obstruction over unused road –
Abatement of nuisance – Land Act 1958, ss 3A(3),
130, 130AB, 130AC, 349, 400, 401A, 402 and 407.
Pamamull v
Albrizzi (Sales) Pty Ltd [2010] VSCA 185
Practice and procedure – Application for
extension of time within which to file and serve
Notice of Appeal – Delay both short and
relatively inconsequential, with no prejudice to
respondent – Proposed grounds tenable –
Application for extension of time granted –
Application for stay of execution, or of
proceedings and/or orders made below – Stay
refused- Property sales – Contracts More...
Re McDonald
Family Trust No 1 [2010] VSC 324
Trusts – Variation –Trustee Act 1958, s 63A. The
trustee was Chateau Developments (No 2) Pty Ltd.
The trust was established to own units in a unit
trust which was to carry on a building business
on behalf of the McDonald family More...
Porter v Porter
(Real Property) [2010] VCAT 1206
Dispute between co-owners – whether timing of
sale a factor to consider in the exercise of the
Tribunal’s discretion – just and fair saleMore...
United Meridian
Pty Ltd v Kingston CC [2010] VCAT 1214
Section 79 Planning and Environment Act 1987;
Kingston Planning Scheme; Residential 1 Zone;
Design and Development Overlay; Heritage
Overlay; Major Activity Centre; Two-storey
building; Dwellings; Car parking; On-site
amenity More...
Parklea
Developments v Cardinia SC [2010] VCAT 1215
Application under section 80 of the Planning and
Environment Act 1987; Cardinia Planning Scheme;
Business 1 Zone; Permit issued for use and
development of a car wash; Permit application
sought 24 hour operation; Condition restricts
hours to 7.00am to 11.00pm; Impact of noise and
patron behaviour on surrounding residential
properties; Acoustic evidence requires works to
address nearby existing and future dwellingsMore...
SPEC Property
Development Pty Ltd v Boroondara CC [2010]
VCAT 1216
Section 87A of the Planning and Environment Act
1987; Boroondara Planning Scheme; Eighty-one
dwellings in a four storey apartment building;
Local residential street; Neighbourhood
character; Setbacks to boundaries; Site
coverage; Visual bulk; Overlooking;
Overshadowing; Traffic and parking More...
Brighton
Bowling & Sporting Club Inc. v Commissioner for
State Revenue (Taxation) [2010] VCAT 1208
Taxation List; Special Land Tax; Land Tax Act
2005 Section 30; Incorporated non-profit
sporting club liable; Arguments as to hardship
cannot avail in review proceeding More...
Omni Property
Group Pty Ltd v Port Phillip CC [2010] VCAT
1173
Sections 79 and 114 of the Planning &
Environment Act 1987; Port Phillip Planning
Scheme; Residential 1 Zone; Building used for
office; Existing use rights; Decking, amenities
and enclosed room on the rooftop; Built form and
character of neighbourhood; Large corporate
events on rooftop; Noise and amenity in
neighbourhood More...
Taip v East
Gippsland SC (includes Summary) (Red Dot)
[2010] VCAT 1222
Application of planning policy on climate change
and flooding to a three storey multi-dwelling
development in the coastal town of Lakes
Entrance. Reasons why decision is of interest or
significance. application – significant,
interesting or unusual use or development;
application of policy, provision or principle;
or circumstances. The vulnerability of
development to climate change impacts has been
considered against State policy and other
relevant planning materials More...
Graham v
Stonnington CC (includes Summary) (Red Dot)
[2010] VCAT 1224
Interpretation of the word “adjoining” in
section 52(1)(a) Planning and Environment Act
1987. Reasons why decision is of interest or
significance. legislation – interpretation or
application of statutory provision. In section
52(1)(a) Planning and Environment Act 1987 the
expression “adjoining the land to which the
application applies” means the land must be
contiguous, not opposite
More...
Tarwin Valley
Coastal Guardians Inc v Minister for Planning &
Anor (includes Summary) (Red Dot) [2010]
VCAT 1226
Secondary consent by the Minister for Planning
as responsible authority to increase the height
of wind turbines under condition 4 of permit
TRA/03/002. Reasons why decision is of interest
or significance. Law – issue of interpretation
or application. Whether condition 4 contained a
trigger for secondary consent. Whether the
giving of secondary consent was a precondition
to an amendment to the permit. Whether the
criteria of ‘no consequence’ referred to in
Westpoint Corporation Pty Ltd v Moreland CC
[2005] VCAT 1049 is a ‘jurisdictional fact’.
Whether the consent triggered the requirements
of the Environment Effects Act 1978 and whether
the applicants were denied procedural fairness
in not being able to make submissions regarding
the consent More...
Greater Bendigo
CC v Deborah Triangle Pty Ltd & Ors [2010]
VCAT 1221
Interim enforcment order. to avoid any further
or alternative enforcement proceedings, if the
respondents are certain they wish to rely upon
existing use rights, they should utilise the
procedures under s 97N or s 149 of the Planning
and Environment Act 1987 to have that matter
resolved More...
Queensland
Crowther v
Brisbane City Council [2010] QPEC 062
Uncertainty regarding court’s
jurisdiction to entertain application for
unspecified relief where applicant apprehends
that destruction is threatened of
heritage-listed trees - directions made for
identification of issues More...
Dinning v Gold
Coast City Council & Anor [2010] QPEC 056
Planning and environment – application to
dismiss appeal - appeal against deemed refusal
of a development application – where several
directions orders made over a period of
approximately five and a half months – where
orders were not complied with – where
application to dismiss consequently made– where
further order requiring affidavit material not
complied with – where limited correspondence
provided to solicitor and to the court providing
a reason for the non-compliance – where
non-compliance found to be intentional and
contumelious – application for costs – where
costs incurred because of the procedural default
of the appellant
More...
Wallace & Anor
v Logan City Council [2010] QPEC 066
Applicant developer fails to give plan (for
reconfiguration) to Council while development
permit still “has effect” - Council supportive
of application to allow extended time for that
step - substantial works done, no opposition
from local people.
Fletch Pty Ltd
v Gladstone Regional Council & Anor [2010]
QPEC 063
Developer appeal against refusal of application
for material change of use - by interlocutory
application, appellant seeks “full approval of
its development application”, alternatively
removal of the appeal to the Federal Court (as
having jurisdiction) - Commonwealth and State
Attorneys-General rejected or did not respond to
notices of an alleged constitutional matter - no
such matter or issue clearly identified -
arguments that planning controls were
unconstitutional, as inconsistent with
landowners’ common law rights, untenable in
light of High Court authority - appellant
ordered to pay costs of its application - appeal
to proceed to hearing in the usual course
More...