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Amendments to the Conveyancing Act: Sunset Clauses - Jan 2019

The Conveyancing Legislation Amendment Act 2018 (NSW) (Amending Act) has been passed by both houses of Parliament in a bid to improve the level of protection afforded to consumers who purchase residential property off the plan.

Partner, Timothy Coleman, and Lawyer, Brianna Smith, consider how these changes will make it more difficult for vendors to rely on sunset clauses to rescind contracts for sale.

New Directors’ and Officers’ exposure to personal liability under Security of Payment Legislation in NSW - Dec 2018

Last week the Building and Construction Industry Security of Payment Amendment Act 2018 (Amending Act) was passed by both houses of NSW Parliament. The suite of changes cover many aspects of payment behaviour on construction and related procurements in the Premier State. Partner, Robert Riddell and lawyer, Brianna Smith consider the new exposure this presents to Directors and Officers of construction companies.

Proposed amendments to South Australia’s retail lease legislation - Jan 2018

Following an extensive review process, the Retail and Commercial Leases (Miscellaneous) Amendment Bill 2017 (SA) has passed through the House of Assembly and is presently awaiting consideration in the Legislative Council of the South Australian Parliament.

Circumstances in which a real estate agent may be liable for misrepresentations to a purchaser - Sep 2017

The decision of the Supreme Court of Queensland in Makings Custodian Pty Ltd & Anor v CBRE (C) Pty Ltd & Ors [2017] QSC 80 relates to a dispute concerning the sale of a shopping centre. The decision is relevant to real estate agents, vendors and property managers and provides authoritative commentary as to the limited effectiveness of disclaimers in erasing the effect of the representations which are later found to be incorrect. Senior Associate, Adam Rinaldi discusses.

Case Update – Diakou Nominees Pty Ltd v Gouger Street Pty Ltd & Ors [2017] SASC 72 - Jun 2017

Can the Retail and Commercial Leases Act 1995 (SA) (Act) start to apply to a lease part way through the term when it did not apply to the lease at the start of the term and can the Act cease to apply to a lease part way through the term when it did apply at the start of the term?  In particular, how does the increase in the annual rent threshold from $250,000 under the Act to $400,000 which came into force on 4 April 2011 impact on a lease which exceeded the threshold at the time it was entered into, but which is now under the threshold following the 4 April 2011 amendment? Adam Rinaldi, Senior Associate and Tony Britten-Jones, Partner consider the decision of the Supreme Court of South Australia in Diakou Nominees Pty Ltd v Gouger Street Pty Ltd & Ors [2017] SASC 72 and the consequences this decision has in respect of leases which were previously excluded from the operation of the Act.

Government Targets “Phoenix Operators” with Direct GST Payment - May 2017

To close the gap on “phoenix operators” and property developers that do not remit GST to the ATO following the completion and sale of their property development, the Federal Government has announced that it will implement a measure which will require purchasers to pay GST directly to the ATO. Senior Associate, Adam Rinaldi looks at the issues associated with the implementation of this measure and summarises the potential impact that other measures announced in the Budget will likely have on property related transactions and the property industry.

Pulse gets Pummelled – Body Corporate Ordered to Pay Thousands to former Caretaker - Mar 2016

Pulse [2016] QBCCMCmr 43

A recurring theme of these alerts is that all Bodies Corporate have a statutory obligation to act reasonably. Usually, identifying what actions are or are not reasonable can sometimes be difficult to discern. However, the starting point should always be complying with the relevant legislation. Unfortunately, in the case described below, it appears as if the Body Corporate for Pulse overlooked this fundamental starting point. As a result, they received one of the most scathing decisions in recent memory. Partner, Warren Jiear and Senior Associate, Mario Esera, look at this decision and what other Bodies Corporate can do to avoid some of the mistakes made in this case.

Probably the most expensive Balcony in Queensland – A warning to Bodies Corporate about acting Reasonably - Feb 2016

Albrecht v Ainsworth & Ors [2015] QCA 220 (6 November 2015)

Bodies Corporate have a statutory obligation to act reasonably. But what does that actually mean? The Body Corporate for Viridian Noosa Residences probably thought that meant acting strictly in accordance with all relevant legislation. Unfortunately, a recent decision of the Queensland Court of Appeal has underlined that this may not always be the case, at least when it comes to approving a balcony. Partner, Warren Jiear and Senior Associate, Mario Esera, look at this case and its likely implications for Bodies Corporate and lot owners in the future.

Management Rights Update: Lender dodges a bullet in financed contract dispute - Sep 2015

Management rights are big business in Queensland. There are real estate agents specialising in buying and selling them, solicitors specialising in advising on them, and financiers specialising in lending money to purchase them. One lender is Suncorp-Metway Ltd and, like any financier, they desire security. The Body Corporate and Community Management Act 1997 provides a certain level of security to financiers, but clearly not as much as Suncorp believed, as they discovered recently in a case heard before the Queensland Civil and Administrative Tribunal.

Partner, Warren Jiear and Senior Associate, Mario Esera, look at this case and its likely implications for financiers and Bodies Corporate in the future.

A Very Expensive Typo – Body Corporate pays dearly for Drafting Defect - Sep 2015

Disputes between Bodies Corporate and their caretakers are not uncommon. Typically they are resolved promptly and inexpensively. Unfortunately, that was not the case for the Body Corporate for The Rocks Resort. Their dispute with their caretaker started in 2010 and continued over several years, culminating in a trial heard over ten days between 19 June 2014 and 30 October 2014. The result? The Body Corporate lost. Why? They used the word “within” when they should have used the words “not less than”.

Partner, Warren Jiear, and Senior Associate, Mario Esera, explain how a typo cost this Body Corporate hundreds of thousands of dollars in legal fees not to mention future costs orders that may yet be made against them.

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