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Inside track: Property & Real Estate

17 June 2019

#Property & Real Estate

Inside track: Property & Real Estate

In the media

Commonwealth

Ghost shops haunt new apartment blocks as 'perfect storm' hits suburban retailers
An expansion in so-called 'hard-top' shopping centres and 'big box' retailers has taken anchor tenants - plus cash and other tenants - from smaller centres and shopping strips. Massive apartment developments on, and on the periphery of, the strip have added thousands of residents. But it has not stopped a slow rise in vacancy rates (06 June 2019).  More...

Australia’s new rail projects will deliver $28b+ in property development: CBRE
Real estate developments near rail projects will reach at least $28 billion over the next decade in Australia, according to new research (05 June 2019).  More...

Property cooling has wider implications, says HIA
Analysis of new data from the Australian Bureau of Statistics has found that a slowdown in housing approvals is being felt in the economy at large. Data from the Australian Bureau of Statistics has shown that housing approvals have declined, with approvals for new dwellings for April declining by 0.6 of a percentage point (04 June 2019).  More...

LandMark White requests new trading halt after banks pull the plug
Embattled valuer LandMark White has requested its second trading halt in five months after being suspended by its banking clients (04 June 2019).  More...

LandMark White under pressure as industry body hits back
The Australian Property Institute has hit back at its member, LandMark White, saying the latest data security leak is an internal corporate failure, not industry wide (03 June 2019).  More...

Developers seek non bank finance amid lower presales
Tighter finance conditions and less investor activity in the market continues to challenge developers as the retreat of major banks from commercial real estate lending gives way to a rise in demand for alternative lending (03 June 2019).  More...

RICS: The case for a global fire safety standard
Questions are now being raised about whether it's time to establish a global set of fire safety standards for built environment professionals and what a standardisation of this scale would look like in practice (30 May 2019).  More...

NSW

RBA rate cut gives confidence to the housing sector – NSW Government must add support
The housing sector in NSW and particularly in Sydney has been struggling over recent months.” says Urban Taskforce CEO Chris Johnson. “House prices in Sydney have been dropping and this has constrained spending and kept potential purchasers out of the market." (04 June 2019).  More...

Victoria

If it’s voluntary for developers to make affordable housing deals with councils, what can you expect?
In contrast, the state of Victoria has very few regulations that encourage or enforce affordable housing or other community benefits in return for development permissions. Victoria’s plan for negotiations Local councils can now ask for affordable housing as part of planning approval processes (07 June 2019).  More...

Plan to link and protect Melbourne’s urban forests
A bold new plan to improve the connectivity and extent of greater Melbourne’s urban forests has been launched to mark World Environment Day 2019. Living Melbourne has been formally endorsed by 41 organisations, including the City of Melbourne (05 June 2019).  More...

Mirvac pounces on Queen Victoria Market site in build-to-rent bid
Property giant Mirvac will transform a key site next to the historic Queen Victoria Market into Melbourne's first build-to-rent complex after striking a deal with developer PDG Corporation (03 June 2019).  More...

What you need to know about Victoria’s stamp duty changes
In an effort to fill the $5.2 billion shortfall left by dwindling stamp duty receipts in a falling property market, the Victorian government has re-written tax on development agreements and, in doing so, widened the pool of who can be taxed (03 June 2019).  More...

Strengthening Victoria’s recycling industry
The Andrews Labor Government is tackling the challenges facing the recycling industry and helping to reduce plastic pollution with a new $34.9 million package of recycling reforms. A further review of the Landfill Levy will consider the current and future effectiveness as an economic instrument for influencing waste management practices, including reducing waste to landfill (02 June 2019).  More...

Strong growth in Melbourne’s commercial property market stretches to the horizon
In the past 10 years, a gross average of 120,000 square metres of new office supply has been added to Melbourne’s market each year, predominantly in Docklands. And this space has not been sitting empty: Melbourne has had the highest net absorption of any state capital in the past three years, at 309,000 square metres, Knight Frank data shows (31 May 2019).  More...

Queensland

Cbus property plans $600m North Quay tower
Cbus Property will partner with local Brisbane developer Nielson Properties to deliver a $600 million riverfront commercial building in the city’s CBD (06 June 2019).  More...

PCA: Townhouse TLPI refused
The State Government has rejected Brisbane City Council’s Temporary Local Planning Instrument (TLPI) aimed at restricting townhouse development and has instead placed consultation conditions on Council progressing its Major Amendment Package H (31 May 2019).  More...

A breach of trust - agent sentenced to three months’ imprisonment, wholly suspended, and permanently disqualified from the industry
Former Shailer Park and Gold Coast real estate agent Robert Ian Campbell was convicted in the Beenleigh Magistrates court after being charged by the Office of Fair Trading (OFT) for misusing clients’ trust account money (31 May 2019).  More...

Gladstone solar farm charges ahead with major milestone
Gladstone is closer to hosting one million solar panels with the independent Coordinator-General approving a development application for a 762-hectare solar farm in the city’s State Development Area (SDA), subject to conditions (29 May 2019).  More...

Gladstone solar farm generates manufacturing job opportunities
The Department of State Development has approved Acciona Energy’s proposed 762-hectare Aldoga solar farm in Gladstone, Queensland. Acciona Energy signed a 30-year agreement in April 2018 with the Queensland Government to lease its land for the Aldoga renewable energy project (29 May 2019).  More...

Spit master plan delivers $145 million investment for the Gold Coast
The Queensland Government has joined with Village Roadshow and the City of Gold Coast to announce a $145 million investment in the future of The Spit (28 May 2019).  More....

Developers, government and council ink $1.2bn infrastructure deal
A $1.2 billion deal to secure the infrastructure needs of two priority development areas over the next 45 years has been made between Queensland government, Logan City council and nine property developers (28 May 2019).  More...

In practice and courts

Commonwealt

API: Opinion shopping for valuation metrics
In response to ‘opinion shopping’ for valuation metrics, the Australian Valuation Standards Committee (AVSC) regards requests of these types as inappropriate and recommends that Members do not comply with provision of the requested information. The AVSC reminds Members that the respective International Valuation Standards 2017 (IVS) and API Code of Professional Conduct protect the interests of the public and the industry (05 June 2019).  More...

API: Risk rating to be assigned to flammable cladding buildings
Inconsistent approaches to flammable cladding across the country has prompted the Australian Property Institute (API) to lead the way with a valuation protocol which will assign a risk rating on properties that appear to be clad, is known to be clad or is known to have non-compliant cladding (03 June 2019).  More...

Successful 2019 National Housing Research Program commences
The research will be undertaken by collaborative teams from AHURI’s eight national university research partners. The successful projects include two Inquiries. For more details of the 2019 NHRP projects please visit the research in progress page of the AHURI website (28 May 2019).  More...

Victoria

Sale of Land Amendment Act 2019 - Legislation update
The Victorian Government has passed new laws that will remove the ability of developers to use sunset clauses to intentionally delay building projects and exploit buyers (05 June 2019).  More...

The 2019-20 Victorian State Budget
Published: 27 May 2019.The 2019-20 Victorian State Budget has been handed down in parliament by the Treasurer, Tim Pallas MP. The budget papers are available on the Victorian Budget 2019-20 website. Including budget highlights including solar in homes and the North East link

Announcements, Draft Policies and Plans released 2019

Queensland

Revised Queensland titles registry fees
The new fees for the 2019–2020 financial year are prescribed in the Natural Resources, Mines and Energy Legislation (Fees) Amendment Regulation 2019 which is available on the Office of the Queensland Parliamentary Counsel website. The Titles Registry online fee calculator will be updated on 1 July 2019 to reflect the revised fees that commence on that date.  More...

Note: Safer Buildings: Parts 2 and 3a deadlines extended
Bodies corporate and building owners across Queensland have been given additional time to complete Parts 2 and 3a of the Safer Buildings combustible cladding checklist. The new deadlines will be as follows:
Part 2: extended from 29 May 2019 to 31 July 2019
Part 3a: extended from 27 August 2019 to 31 October 2019.  More...

DMRME consultations
Proposed Yarrenlea Solar Farm
Closes: 24 June 2019 - We are seeking feedback on a proposed project near the Pittsworth township, 40km south-west of Toowoomba.

Land title practice manual reminder: Paper certificates of title are changing
Please be aware that the way in which the Titles Registry deals with paper certificates of title (paper CTs) is changing. As of 1st October 2019, paper CTs will no longer have any legal effect. From 1st October 2019, there will no longer be the option to lodge a Form 19 - Application for certificate of title. Similarly, a Form 17 – Request to Dispense (with production of a CT) will become redundant as of 1st October 2019.  More...

Cases

Victoria

Toma v Olcorn [2019] VSCA 116
CONTRACT – Sale of land – Unilateral mistake – Vendor entered into contract for sale of land under mistaken belief as to adjustment at settlement for rent pre-paid – Whether purchaser was aware of mistake – Trial judge found purchaser was aware of mistake and opportunistically sought to take advantage of it – Contract rescinded – Leave to appeal granted but appeal dismissed – Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422, Leibler v Air New Zealand Ltd [No 2] [1999] 1 VR 1 applied. 

RW Health Partnership Pty Ltd v Lendlease Building Contractors Pty Ltd [2019] VSC 353
ARBITRATION – Whether dispute resolution clause required expert determination or arbitration – Principles for the construction of dispute resolution clauses considered.
CONTRACT – Whether the parties correspondence in preparation for an arbitration constituted an ad hoc agreement to arbitrate.
ELECTION – Whether by its correspondence the first defendant had elected to arbitrate the relevant dispute – Whether to choose arbitration rather than expert determination was to elect between inconsistent substantive rights.
WAIVER – Principles of waiver considered – Whether by its correspondence the first defendant has unequivocally abandoned its right to expert determination.

Begovic v Northpark Berwick Investments Pty Ltd (Civil Claims) [2019] VCAT 772
Misleading and deceptive conduct, representations made on fuel consumption label as to vehicle’s fuel consumption, sale of new vehicle, vehicle fuel efficiency testing, label requirements under Australian Design Rules, s18 Australian Consumer Law, remedy for breach, defect in vehicle, guarantee as to quality, s 54 ACL, whether major defect, entitlement to reject vehicle and recover purchase price. The first respondent must pay the applicant the sum of $39,500.

DJM Group Pty Ltd v Calypso Sports Pty Ltd (Building and Property) (Costs) [2019] VCAT 808
RETAIL LEASES–applicant landlord failed to prove at the hearing that the third respondent signed a guarantee in respect of the tenant’s obligations to the landlord–claim against the third respondent dismissed, but upheld against the tenant and the co-guarantor.
COSTS–Section 92 Retail Leases Act 2003–whether the proceeding was conducted by the applicant in a vexatious way that unnecessarily disadvantaged the third respondent–such a conclusion not open on the facts–claim for costs by the third respondent against the applicant dismissed–quare whether it remained open for the third respondent to seek its costs against the second respondent under a Sanderson order.

GDV Developments Pty Ltd v Surf Coast SC [2019] VCAT 771
Section 40 of the Subdivision Act 1988; failure to certify plan of subdivision; staged subdivision.
Strike out – failure to issue statement of compliance -  Pursuant to section 75 of the Victorian Civil and Administrative Tribunal Act 1998 the application for review lodged under section 40 of the Subdivision Act 1988 with respect to the failure by the Surf Coast Shire Council to issue a statement of compliance is struck out for want of jurisdiction and on the basis that it is misconceived. The Surf Coast Shire Council is directed to certify plan of subdivision PS812298T (Version 5) pursuant to section 6 of the Subdivision Act 1988.

Queensland

Lake Laurel Pty Ltd & Ors v Nichols Constructions Pty Ltd & Ors (No 2) [2019] QSC 145
CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where the parties were involved in a project to subdivide land – where the first plaintiff and the first defendant entered into a loan agreement, with the second defendants as guarantors, which was secured by a registered mortgage, under which the first defendant agreed to pay the principal sum of $3,775,000.00 to the first plaintiff, by incremental instalments on the sale of each lot in the proposed subdivision, with the balance to be repaid 12 months from registration of the plan(s) of subdivision – where the debt under the loan agreement and mortgage were later assigned to the third plaintiff – where the third plaintiff claims the debt has become due and payable, as a consequence of the first defendant’s breach of express and implied terms of the loan agreement and mortgage, by allowing the development approval for the land to lapse, and failing to obtain registration of the plan(s) of subdivision within a reasonable time – where the defendants do not challenge the contention that the first defendant breached the loan agreement and/or the mortgage in the ways contended by the third plaintiff, but argue the principal sum has not become payable because of an earlier breach by the first plaintiff of the implied obligation under the loan agreement and the mortgage to cooperate – whether the implied obligation to cooperate required the first plaintiff to take steps to ensure that plan(s) for subdivision of the land were registered, or not to hinder or obstruct the first defendant’s efforts in that regard – whether such a breach, even if established, could be relied upon to defend the claim by the third plaintiff, as assignee, to recover the principal sum – whether the first plaintiff breached the implied obligation to cooperate – whether the principal sum under the loan agreement is due and payable to the third plaintiff

Wilkes & Anor v D.C. Construction Services Pty Ltd [2019] QSC 117
MORTGAGES – MORTGAGE CONTRACT – LIABILITIES SECURED – OTHER PARTICULAR CASES – where the applicants entered into a contract with the respondent – where the contract provided for the undertaking of construction works for subdivision of the applicants’ land – where the applicants entered into a loan agreement with a third party for the purpose of undertaking the subdivision – where the loan was secured by a number of transactions, including a registered mortgage executed by the applicants over the land subject of the subdivision – where the construction works were carried out by the respondent and the respondent alleges that the applicants have not paid a sum due and payable under the contract for those works – where the loan agreement was assigned to the respondent – where the land was then sold and two sums, paid into court, are alleged by the respondent to be payable by the applicants to it in respect of the loan agreement and the contract – whether the registered mortgage, in respect of which the applicants are mortgagors and the respondent is the assignee of the original mortgage, secures the pre-assignment liability under the contract alleged to be owing by the mortgagors to the assignee – whether money advanced under the loan agreement is so secured by the mortgage
Property Law Act 1974 Qld s84.

Lake Maroona Pty Ltd v Valuer-General [2019] QLC 23
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where appellant objects to valuations – where site value is the basis of valuation – whether a conditional contract is a “sale” for the purposes of s 18 of the Land Valuation Act 2010 – where there are constraints on the development potential of the land – where land is zoned for limited development – where the subjects are wholly below the Q100 flood line – where access is restricted on one subject – whether the subjects can legally have a dwelling on them – where a valuer contends land should be valued at a nominal value – where appellant argues that there is no market for sale of the subjects
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – NOTICE OF APPEAL – evidence – burden of proof – whether the appellant has met the onus of proof – where appellant makes submissions on grounds not in its notice of appeal

Pfeiffer Nominees Pty Limited v Chief Executive, Department of Transport and Main Roads [2019] QCA 101
REAL PROPERTY – VALUATION OF LAND – OBJECTIONS AND APPEALS – QUEENSLAND – where the applicant’s land was adjacent to a highway – where some of that land was resumed for the purpose of widening the highway – where a declaration from the Commissioner of Main Roads impeded access to the highway unless the Commissioner consented to the removal of the impediment – where the giving of such consent had not occurred and was unprecedented – where the applicant was entitled to compensation for the resumption based on the value of the resumed land – where the value of the resumed land was assessed as affected by the declaration – where the relevant scheme was said to be the specific instance of road widening that required the resumption, rather than some broader scheme for the maintenance and upgrading of the highway – whether the relevant scheme was properly determined – whether the value of the applicant’s land should be assessed without regard to the declaration. Acquisition of Land Act 1967 Qld s 20(2)

Ant Projects Pty Ltd v Morgan Brooks Direct Pty Ltd & Ors [2019] QDC 81
LEASES – where a notice to remedy breach was served by email – whether the notice was not served
LEASES – where a notice to remedy breach – where breach remediable by payment of $18,353.64 – whether 11 and 14 days were reasonable times to remedy
LEASES – where a notice to remedy breach specified one amount claimed in respect of five covenants – where it failed to specify an amount claimed in respect of each covenant – whether it failed to comply with s 124(1) of the Property Law Act 1974
LEASES – where the lessor had access to the lessee’s security deposit – where the lessee was in arrears – whether there was no breach if the security deposit exceeded the arrears – whether the lessee was obliged to use the security deposit before providing a notice to remedy breach
LEASES – INTERPRETATION – where the lease referred to a plan attached – where the plan was marked “Cancelled” – whether the lease is interpreted by reference to the plan
LEASES – whether the lessee repudiated or the lessor
LEASES – quantum of damages for repudiation – whether the lessor mitigated its loss
Property Law Act 1974 Qld ss 117, 118 and 124(1)
Residential Tenancies and Rooming Accommodation Act 2008 Qld
Residential Tenancies and Rooming Accommodation Regulation 2009 Qld

Legislation

Queensland

Subordinate legislation as made – 7 June 2019
No 85 Liquor (Rural Hotels Concession) Amendment Regulation 2019

Contacts:
Sydney
Robina Kidd, Partner
T: +61 2 8083 0454
E: robina.kidd@holdingredlich.com

Vanya Lozzi, Partner
T: +61 2 8083 0462
E: vanya.lozzi@holdingredlich.com

Cameron Sheather, Partner
T: +61 2 8083 0461
E: cameron.sheather@holdingredlich.com

Breellen Warry, Partner
T: +61 2 8083 0420
E: breellen.warry@holdingredlich.com

Melbourne
Chris Lovell, Chairman
T: +61 3 9321 9832
E: chris.lovell@holdingredlich.com

Lou Farinotti, Senior Partner
T: +61 3 9321 9861
E: lou.farinotti@holdingredlich.com

Chris Brodrick, Partner
T: +61 3 9321 9804
E: christopher.brodrick@holdingredlich.com

Lisa Cody, Partner
T: +61 3 9321 9872
E: lisa.cody@holdingredlich.com

Richard Skopal, Partner 
T: +61 3 9321 9866
E: richard.skopal@holdingredlich.com

Joseph Monaghan, Partner 
T: +61 3 9321 9857
E: joseph.monaghan@holdingredlich.com

Brisbane
Ron Eames, Partner
T: +61 7 3135 0629
E: ron.eames@holdingredlich.com

Katie Miller, Partner
T: +61 7 3135 0606
E: katie.miller@holdingredlich.com

Peter Nugent, Partner
T: +61 7 3135 0632
E: peter.nugent@holdingredlich.com

Gerard Timbs, Partner
T: +61 7 3135 0644
E: gerard.timbs@holdingredlich.com

John Wei, Partner
T: +61 7 3135 0688
Ejohn.wei@holdingredlich.com 

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.

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