Property & Projects 30 September 2010

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Latest news

National

Developed nations should invest in sustainable building in developing world
13 September 2010
The Chairman of the World Green Building Council has called on developed nations to invest in sustainable buildings in developing countries using voluntary means, such as the United Nation’s Clean Development Mechanism. Mr
Arnel said buildings in urban areas of the developing world are the single largest source of global greenhouse emissions
More...

REA house price growth in the June quarter 2010
15 September 2010
The Real Estate Institute of Australia (REIA) has released the Mortgage Choice Real Estate Market Facts report for the June quarter 2010, with figures recording a better performance from the Australian residential property market than the previous quarter
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Burke and Crean take on future planning
14 September 2010
Councils and developers have welcomed the appointment of Simon
Crean and Tony Burke to the two portfolios critical for planning Australia’s future communities
More...

Planners Support Green Star Communities: MOU
14 September 2010
The Green Building Council of Australia and Planning Institute of Australia have signed a memorandum of understanding which will see both organisations work together on the development and delivery of the Green Star Communities rating tool
More...

Victoria

Double bonus lifts state’s finances
16 September 2010
The Brumby government has declared Victoria “the economic engine room of the nation”. This is due to the federal government’s stimulus packages and a booming property market that have helped the government significantly increase its surplus to $644 million from its May budget estimates
More...

Massive cost for desal plant revealed
17 September 2010
A Department of Sustainability and Environment report tabled in the Victoria parliament this week suggests taxpayers would fund the
Aquasure Consortium to the tune of at least $15.8 billion to run and maintain the Wonthaggi desal plant, the largest in the southern hemisphere, from the end of 2011
More...

Job opportunities grow from desalination green roof
16 September 2010
Victoria’s new desalination plant will feature a living ‘green roof’ larger than the MCG and the biggest in the southern hemisphere. Mr Brumby said construction of the desalination plant green roof would be among the largest coastal revegetation projects in Victoria’s history and would deliver major environmental benefits to communities in the region
More...

Planning and developing prosperous communities
16 September 2010
Planning for Victoria’s population growth and helping create prosperous and sustainable communities were the focus of the Department of Planning and Community Development (DPCD) as outlined in the 2009-10 Annual Report released today
More...

Conditional use permit issued for King David School
16 September 2010
Armadale’s King David School will able to use its new education centre with restricted opening hours and student numbers and limited parking under a mediated decision announced today by Planning Minister Justin Madden. The Victorian Government had called the hearing in from VCAT to ensure swift resolution to concerns over the use of the building which is nearly ready for use
More...

Regional jobs boost under string local content rules
16 September 2010
A policy helping local manufacturers secure contracts on major Government projects created a record 2300 jobs in regional Victoria last financial year, a new report has found. Industry and Trade Minister Jacinta Allan today welcomed a report showing that 2009/10 had been the Government’s most successful year yet for creating new jobs in regional Victoria through its Victorian Industry Participation Policy (VIPP)
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Land justice achieved for traditional owners
15 September 2010
Landmark legislation that achieves land justice for traditional owners was passed by Parliament, paving the way for the first native title settlement under the new framework. Elements of this legislation – Aboriginal title, land use activity agreements and opportunities for joint management of some national parks
More...

Victoria’s Mining Laws modernised
14 September 2010
The Brumby
Labor Government has modernised Victoria’s mining laws to ensure that Regional Victoria benefits from more jobs and extra investment with changes to licensing and land owner and mining private compensation. Further amendments to the MRSDA are proposed for 2011 and 2012 after consultation with industry, experts and other government agencies
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New rules against false affiliations
13 September 2010
Students living away from home are set to benefit from tighter regulation of accommodation affiliated with a university or educational institution according to Consumer Affairs Victoria Director, Dr Claire
Noone
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Feds look to Victoria as regional development model
13 September 2010
The Federal Government will look to Victoria as a model for regional development in recognition of the State’s strong leadership in building stronger regional economies and communities. Regional and Rural Development Minister Jacinta Allan welcomed Simon
Crean’s appointment as Federal Minister for Regional Australia and said Mr Crean had signalled he would look to Victoria as a model for implementing the Gillard Labor Government’s regional policies
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Common sense prevails on helicopter ban
13 September 2010
The Brumby Government has buckled to pressure from Victorian farmers and the Victorian Liberal Nationals Coalition, agreeing to amend regulations preventing helicopters from landing more than once in a farming zone without a permit. Shadow Minister for Agriculture and Deputy Leader of The Nationals Peter Walsh said the changes, which will come into effect on Monday (September 13), represented an important win for farmers
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Illegal brothel busted and owner ordered to pay $14000
9 September 2010
A Doncaster man has been convicted and ordered to pay more than $14,000 for operating an illegal brothel in Melbourne’s eastern suburbs, following a joint operation between Consumer Affairs Victoria and the City of Whitehorse
More...

New port plan could be good for Williamstown and Newport
7 September 2010
Freight giant
Asciano, which owns National Rail and Patrick Stevedores, has put forward a bold plan to move Melbourne’s port operations from Swanson Dock to expanded ports at Geelong and Hastings by 2040. The Victorian Government is keen to get a third stevedore into Melbourne to increase competition. The Port of Melbourne Corporation is seeking submissions from industry before presenting its final plan to the Victorian Government, possibly early next year. The deadline for submissions, which are confidential, closes September 30
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No go for Woolworths on Geelong golf course site
7 September 2010
Planning Minister Justin Madden rejected the combined planning permit application and rezoning of land for the proposed Woolworths hardware store on the corner of Thompson Road and Ballarat Road, North Geelong. Mr Madden said his decision to reject the permit application and rezoning request was based on the recommendations of an independent Advisory Committee. The Advisory Committee report is available from www.dpcd.vic.gov/planning.

Regional Rail Link reduces land acquisition
7 September 2010
Delivery of the $4.3 billion Regional Rail Link project has moved to the next stage with the Department of Transport lodging documentation for an environmental effects referral to the Department of Planning and Community Development. The Environment Effects referral and maps showing the proposed project area are available on the Regional Rail Link website www.transport.vic.gov.au/rrl
More...

Australian families spared a rate rise
7 September 2010
The Reserve Bank of Australia’s decision to leave official interest rates on hold is good news for Australian families, said Real Estate Institute of Australia (REIA) President, Mr David
Airey. This decision is timely with the release of the REIA Deposit Power Housing Affordability Report for the June quarter on 8 September
More...

New South Wales

Clarity for councils and developers on contributions
16 September 2010
Planning for more than 6,000 housing lots is expected to resume following the NSW Government’s decision to outline which councils across NSW are eligible to apply infrastructure levies of up to $30,000 per lot. Minister for Planning, Tony Kelly, said following the announcement of the revised contributions arrangements on August 31, 30 councils nominated areas to be considered under the new system, 24 were successful Clarity for councils and developers on contributions.

$5.4 million announced for community water and energy upgrades
13 September 2010
The Minister for Climate Change and the Environment Frank
Sartor opened a new round of the NSW Government’s Climate Change Fund Community Savers and encouraged not-for-profit organisations across the state to apply
More...

Promise of a ‘metropolitan parking policy’ a concern for older people and families
13 September 2010
The Urban Taskforce’s chief executive, Aaron
Gadiel, said such a policy was foreshadowed in the state government’s draft City of Sydney Subregional Strategy, but will deny many families and older people the chance to live in the City of Sydney. The intention of the Metropolitan Parking Policy is to prevent newly built housing, workplaces and retail outlets from having adequate access to car parking
More...

Business cautious on CBD transport MoU
13 September 2010
The Sydney Business Chamber said business would be cautious about changes to CBD transport as a result of a Memorandum of Understanding between the NSW Government and Sydney City Council but said a partnership between the two tiers of governments on CBD transport was long overdue
More...

Transport strategy a welcome step - now for consultation and implementation
13 September 2010
The Property Council of Australia said it hopes the new agreement signed between the State Government and City of Sydney reduces congestion in the CBD. It is essential the State Government and City of Sydney have a clear, collaborative and deliverable agreement to manage the flow of transport, cars and people around the CBD, NSW Executive Director Glenn Byres said
More...

SMSF stamp duty costs slashed
9 September 2010
SMSF trustees now only have to pay a flat $50 stamp duty fee when transferring business real property under new NSW State regulation, according to chartered accountancy firm
Nexia Court
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Busy time for leasing agents
8 September 2010
Leasing deals are being worked on across the Sydney central business district as long-term contracts near expiry and agents are appointed to garner the best deals for tenants
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Queensland

New template agreements to help landholders protect legal rights
16 September 2010
Template legal agreements to help landholders in compensation and land access negotiations with resource companies were released by the Queensland Government. Minister for Natural Resources, Mines and Energy Stephen Robertson said his department has prepared two template agreements to assist landholders: a Standard Conduct and Compensation Agreement and a Standard Deferral Agreement
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Queensland Pools made safer
15 September 2010
The Queensland Parliament has passed the final stage of the Bligh Government’s toughest swimming pool safety laws, according to the Minister for Infrastructure and Planning Stirling Hinchliffe. Stage two of the new laws would see mandatory pool safety inspections and compliance certificates required for all privately owned Queensland pools. The new laws will also see Queensland’s 11 pool safety standards, with different regulations for pools built at different times, replaced with a single uniform approach
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Brisbane residents sign up on Energy reduction program
14 September 2010
About 30,000 Brisbane residents have signed up to the
EzyGreen energy reduction program, only eight weeks into its launch date. Launched in July this year, the program offers residents a range of energy saving options, as well as sustainable energy options such as GreenPower and discounted solar hot water and power systems
More...

Cross River Rail’s new Yeerongpilly entrance will resume 66 properties in Brisbane’s south
15 September 2010
The new $8.2 billion Cross River Rail project will resume 66 properties to make way for the southern entrance in Yeerongpilly, Transport Minister Rachel Nolan announced, compared to the 197 properties (376 land owners) that would have been required if the tunnel was to surface in Fairfield
More...

Two more Government assets set for sale
14 September 2010
The Queensland Government says three of the state’s five public assets up for sale will have be sold off by the end of the year. The government also plans to lease the Abbot Point Coal Terminal and Queensland Motorways’ tolling rights
More...

Australian families spared a rate rise
7 September 201
The Reserve Bank of Australia’s decision to leave official interest rates on hold is good news for Australian families, said Real Estate Institute of Australia (REIA) President, Mr David
Airey. This decision is timely with the release of the REIA Deposit Power Housing Affordability Report for the June quarter on 8 September
More...

Articles

National

Termination for breach of essential term: did Homer nod?
Author:
Butt, Peter
Source: Australian Law Journal, 2010, Vol 84, No 9 September, pp596

No caveatable interest in proceeds of sale of land / But caveatable interest in signed caveat form
Author:
Butt, Peter
Source: Australian Law Journal, 2010, Vol 84, No 9 September, pp597-598

No estoppel in face of statute
Author:
Butt, Peter
Source: Australian Law Journal, 2010, Vol 84, No 9 September, pp598

Prescriptive easements
Author: Butt, Peter
Source: Australian Law Journal, 2010, Vol 84, No 9 September, pp598

Indefeasibility neutralises right to rectification
Author: Butt, Peter
Source: Australian Law Journal, 2010, Vol 84, No 9 September, pp599

Proposed changes to lease accounting
Author:
Knubley, Rachel
Source: Journal of Property Investment and Finance, Volume 28, 2010, Number 5, pp. 322-327(6)

The International Accounting Standards Board (IASB) is proposing a fundamental change to the way lease contracts are accounted for by both lessees and lessors
Accounting for leases: telling it how it is

Author: Lyon, Julian
Source: Journal of Property Investment and Finance, Volume 28, 2010, Number 5, pp. 328-332(5)

The almost arbitrary treatment of leases has never been satisfactory but dealing with the shortcomings has proven awkward to the International Accounting Standards Board (IASB)
Need for disclosure regarding property valuations in financial reports according to IFRS
Author:
Nordlund, Bo
Source: Journal of Property Investment and Finance, Volume 28, 2010, Number 5, pp. 333-353(21)

Practice notes/directions

Victoria

Announcements

The national Local Government Urban and Planning and Development Summit will be held in Sydney, 19-20 October.
The Victorian Government response to the Victorian Bushfires Royal Commission was released on 27 August 2010. The planning and building recommendations begin at Recommendation 37.

Growth Area Framework Plans
Interested parties are invited to make a submission in respect to development opportunities and issues within the revised Urban Growth Boundary. Submissions close 3 November 2010.

WestLink project
The WestLink project involves the proposed construction of a new freeway standard road link between West Melbourne and the Western Ring Road. The Draft Scoping Directions are currently on exhibition. Submissions close 21 September 2010.

New South Wales

Renting laws are changing
10 September 2010
The Residential Tenancies Act 2010 was passed by Parliament in June 2010. The Act is not yet law. It will not come into effect until later in 2010, after the necessary supporting regulations have been made. Until this happens the existing laws continue to apply More...

Transforming Sydney a city/state partnership: A Memorandum of Understanding between the NSW State Government and the City of Sydney Council 2010 – 2015
The NSW State Government and the City of Sydney Council will deliver a City Centre that:

  • supports economic development, jobs growth and Sydney’s role as a global city;

  • is an attractive place to live, work and play; and

  • - is integrated and connected through effective public transport, pedestrian, cycling and road links. More...

The NSW economy in 2020: NSW Business Forum Discussion Paper
Author: Access Economics, 2010
This outlines the major changes that will occur in the economy to 2020 and identifies the opportunities and implications for NSW business sectors More...

Legislation

Commonwealth

Murray-Darling Basin Agreement (Schedule D - Adjusting Valley Accounts and State Transfer Accounts) Protocol 2010 Legislative Instrument - F2010L02475
This Protocol sets rules for adjusting valley accounts and State transfer accounts (14/09/2010) More...

Murray-Darling Basin Agreement (Schedule D - Conversion Factors and Exchange Rates) Protocol 2010
This Protocol determines conversion factors of water entitlements and exchange rate trade (14/09/2010) More...

Murray-Darling Basin Agreement (Schedule D - Permissible Transfers between Trading Zones) Protocol 2010
This Protocol sets permissible transfer of water between States and valleys (14/09/2010) More...

Murray-Darling Basin Agreement (Schedule D - Processing Interstate Exchange Rate Transfers) Protocol 2010
This Protocol sets processes and principles for transfers of entitlements of water by exchange rate trade (14/09/2010)

General Comments: (1) All previous protocols made under paragraph 6 (1) (f) of Schedule D to the Agreement before 1 December 2009 that apply only to transfers of a kind mentioned in section 4 are revoked. (2) A protocol made under paragraph 6 (1) (f) of Schedule D to the Agreement before the commencement of this Protocol that deals with: (a) transfers of a kind mentioned in section 4; and (b) other transfers; has no application to the extent that it deals with transfers of a kind mentioned in section 4 More...

Murray-Darling Basin Agreement (Schedule D - Processing Interstate Transfer of Water Allocations) Protocol 2010
This Protocol sets processes and principles for interstate transfers of water allocations (14/09/2010)

General Comments: (1) All protocols made under paragraph 6 (1) (f) of Schedule D to the Agreement before 1 December 2009 that apply only to interstate tagged trade are revoked. (2) A protocol made under paragraph 6 (1) (f) of Schedule D to the Agreement before the commencement of this Protocol that deals with: (a) transfers of a kind mentioned in section 4; and (b) other transfers; has no application to the extent that it deals with transfers of a kind mentioned in section 4. More...

Murray-Darling Basin Agreement (Schedule D - Tagging Entitlements for Extraction in another State) Protocol 2010
This Protocol sets processes and principles for interstate tagged trade of water entitlements (14/09/2010)

General Comments: All protocols made under paragraph 6 (1) (f) of Schedule D to the Agreement before 1 December 2009 that apply only to interstate tagged trade of entitlements are revoked. A protocol made under paragraph 6 (1) (f) of Schedule D to the Agreement before the commencement of this Protocol that deals with: (a) interstate tagged trade of entitlements; and (b) other matters; has no application to the extent that it deals with interstate tagged trade of entitlements.

Victoria

Acts Assented to

No. 54 Climate Change Act 2010
Assent: 14/09/2010 SG (No. 370) 14/9/2010 p. 1
Commencement: NYP Not yet in operation: Ss 1-81

No. 55 Energy and Resources Legislation Amendment Act 2010
Assent: 14/09/2010 SG (No. 370) 14/9/2010 p. 1
Commencement: Ss 36, 85 on 15/09/2010: s. 2(2)
Not yet in operation: Ss 1- 35, 37-84, 86-90

No. 57 Liquor Control Reform Amendment Act 2010
Assent: 14/09/2010 SG (No. 370) 14/9/2010 p. 1
Commencement: NYP Not yet in operation: Ss 1-31

No. 58 Local Government and Planning Legislation Amendment Act 2010
Assent: 14/09/2010 SG (No. 370) 14/9/2010 p. 1
Commencement: NYP Not yet in operation: Ss 1-50

No. 59 Mineral Resources Amendment (Sustainable Development) Act 2010
Assent: 14/09/2010 SG (No. 370) 14/9/2010 p. 1
Commencement: NYP Not yet in operation: Ss 1-54

No. 60 Plant Biosecurity Act 2010
Assent: 14/09/2010 SG (No. 370) 14/9/2010 p. 1
Commencement: NYP Not yet in operation: Ss 1-143

Victorian Legislation can be viewed online at: www.legislation.vic.gov.au

Cases

Victoria

Commissioner of State Revenue v Australian Property Custodian Holdings Ltd [2010] VSCA 228
Duties – Aged care facility – Transfer of dutiable property to taxpayer – Unencumbered value of property – Special arrangement between taxpayer and third party included lease at above market rental – No evidence as to premium paid to obtain lease – Commissioner valued property subject to lease – Judge in Trial Division correct to hold Tribunal erred in taking into account lease – Appeal dismissed More..

Bovino Pty Ltd v The Casey Group Holdings Pty Ltd [2010] VSC 391
Contract – Sale of land – Misleading or deceptive conduct – Estate agent – Specific performance – Impossibility of performance - Trade Practices Act 1974, s 52, s 87 More...

Will v Nillumbik SC & Anor [2010] VCAT 1492
Section 82 of the Planning & Environment Act 1987; Nillumbik Planning Scheme; Residential 1 Zone; Significant Landscape Overlay (SLO2); Three Double Storey Dwellings; Neighbourhood Character; Impacts on Amenity of Adjacent Property More...

Sulieman v Knox CC [2010] VCAT 1490
Section 149A – Planning and Environment Act 1987 – declaration – characterisation of use of land – accommodation – residential building in dwelling More...

Nyhuis & Anor v Momcilovic & Anor (Retail Tenancies) [2010] VCAT 1467
Retail lease – whether tenant entitled to goods left in demised premises after vacating premises – reasonable value of un-recovered goods More...

Orange Peel Pty Ltd v Stonnington CC & Ors [2010] VCAT 1475
The construction of a six storey tiered dwelling building including a basement carpark and associated car parking dispensation, in accordance with the endorsed plans. It would comprise 46 apartments, 6 at-grade basement visitor car spaces and 44 basement parking spaces provided using car stackers More...

Joseph v Melbourne Water & Anor (includes Summary) (Red Dot) [2010] VCAT 1414
Nature of case - validity of annual melbourne water waterways charge. legislation – interpretation or application of legislative or regulatory provision. Water Act 1989 s 266; extent of Tribunal jurisdiction to review tariff; whether tariff properly set in accordance with regulatory order under Water Industry Act 1994; whether services provided to justify tariff; principles of statutory interpretation relevant to reference to repealed Act in a subordinate instrument, Interpretation of Legislation Act 1984 ss16 & 31. Application - significant, interesting or unusual application Decision reported for public interest More...

Queensland

Turrisi Properties P/L v LJ & BJ Investments P/L; Turrisi Properties P/L v McVicar; Turrisi Properties P/L v Mulcahy (No 2) [2010] QSC 349
Procedure – costs – general rules – departing from the general rule – order for costs on indemnity basis – where claim dismissed – where plaintiff ordered to return bank guarantee and pay bank fees and legal fees on the counterclaim – where defendant made two Calderbank letters of offer, expressed as "without prejudice" save as to costs, wherein defendant notified plaintiff that if it achieved a result in court equal to or more favourable than the offers it would apply for indemnity costs from the date of the letter – where the second letter was also expressed as pursuant Uniform Civil Procedure Rules 1999 (Qld) r 353 – whether there was a basis for awarding indemnity costs – Uniform Civil Procedure Rules 1999 (Qld) rr 360, 361 and 681. Procedure – costs – general rules – departing from the general rule – order for costs on indemnity basis – where claims dismissed – where one defendant made final offer to forgo cash deposit of $50,000 if released from the contract – where another defendant made further offer to terminate the contract on the basis that the plaintiff waive any claim over the deposit – whether there was a basis for departing from the general rule about costs in Uniform Civil Procedure Rules 1999 (Qld) r 681 More...

Mirvac Queensland Pty Ltd v Tyan Pty Ltd ATF Tavakol Investment Trust [2010] QSC 333
Trade and commerce – trade practices act 1974 (cth) and related legislation – consumer protection – misleading or deceptive conduct or false representations – misleading or deceptive conduct generally – generally – where the plaintiff agreed to sell to the defendant an apartment in a building to be constructed on the riverfront – where the defendant alleges that the plaintiff made certain representations as to the view to be expected from the apartment – whether there were statements made in contravention of s 52 of the Trade Practices Act 1974 (Cth) More...

Burrell v Body Corporate for Boulevard North [2010] QDC 352
Home and commercial units – Body Corporate – By laws – exclusive use of common property – car park –space incorrectly allocated – whether correctable by ordinary resolution of general meeting. Home and commercial units – Management agreements – termination – requirements for – dispute over Home and commercial units – Adjudication – obligation to comply with natural justice – adjudicator decided on issue not raised, and on ground not agitated. Home and commercial units – Adjudication – scope of jurisdiction of adjudicator – whether equitable relief of rectification available More...

Contact details

Melbourne

Chris Lovell
National Managing Partner
T: +61 (0)3 9321 9832
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Lou Farinotti
Managing Partner - Melbourne
T: +61 (0)3 9321 9861
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Helen Scott
Partner
T: +61 (0)3 9321 9836
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Steve Aitchison
Partner
T: +61 (0)3 9321 9836
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Margot Sharpe
Partner
T: +61 (0)3 9321 9912
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Lisa Cody
Partner
T: +61 (0)3 9321 9872
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Sydney

Richard Abbott
Partner
T: +61 (0)2 8083 0421
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Neville Allen
Partner
T: +61 (0)2 8083 0488
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Carolyn Chudleigh
Partner
T: +61 (0)2 8083 0440
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Robina Kidd
Partner
T: +61 (0)2 8083 0454
E: robina.kidd
@holdingredlich.com.au

Robert Moses
Partner
T: +61 (0)2 8083 0422
E: robert.moses
@holdingredlich.com.au

Brisbane

Michael Byrom
Partner
T: +61 (0)7 3135 0616
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Disclaimer

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.