Black v Garnock : implications for Queensland conveyancing practice

What was previously established as a fundamental principle, that a judgment creditor may take no interest beyond what the judgment debtor could give, has now been called into question by the decision of the High Court in Black v Garnock [2007] HCA 31. This article examines the implications of the decision of the High Court for conveyancing practice in Queensland. The relevant facts of Black v Garnock [2007] HCA 31 may be briefly stated: The Garnocks and the Luffs, as purchasers, entered a contract to purchase a rural property from Mrs Smith with settlement due on 24 August 2005. On 23 August 2005, a creditor obtained a writ against Mrs Smith from the District Court of New South Wales. No caveat was lodged on behalf of the purchasers prior to settlement (there being no equivalent, in New South Wales, of the Queensland settlement notice mechanism).

Qualified indefeasibility and the careless mortgagee

In recent years a great deal of case law has been generated in relation to mortgages where the mortgagee has not engaged in adequate identity verification of the mortgagor and the mortgage has subsequently been found to be forged. As a result, careless mortgagee provisions operate in Queensland as an exception to indefeasibility. Similar provisions are expected to commence soon in New South Wales. This article examines the mortgagee’s position with the benefit of indefeasibility and then considers the impact of the careless mortgagee provisions on the rights of a mortgagee under a forged mortgage, concluding that the provisions significantly change the dynamic between a registered mortgagee and registered owner who has not signed the mortgage. These provisions appear to give the mortgagee a conditional indefeasibility, with the intention of reducing the State’s exposure to the payment of compensation in the case of identity fraud. They are however, more successful in the case of forgery by a third party rather than forgery by a co-owner.

Unlocking risk allocation and equitable conversion : reform of the passing of risk in the sale of land

The principles relating to the passing of risk under a contract for the sale of real property would seem to have been long settled. The rule under the general law is that the risk of loss of the subject matter under a contract for the sale of real property passes to the buyer upon the creation of a valid and binding contract. This article considers the origin of that rule, how it developed with the growth of equity, and advances the view that it is anomalous in a modern context of property dealings. In doing so, the article adverts to the variety of statutory mechanisms used to subvert the rule, few of which are of practical value. It concludes that the rule is outmoded in many respects and suggests a number of reforms which might be implemented nationally to bring consistency and simplicity to the issue of damage or destruction of improvements which are the subject of a land contract.

Conveyancing manual Queensland

The book provides a detailed examination of conveyancing practice in Queensland.

A public asset management framework for Indonesian local governments

The decentralisation reform in Indonesia has mandated the Central Government to transfer some functions and responsibilities to local governments including the transfer of human resources, assets and budgets. Local governments became giant asset holders almost overnight and most were ill prepared to handle these transformations. Assets were transferred without analysing local government need, ability or capability to manage the assets and no local government was provided with an asset management framework. Therefore, the aim of this research is to develop a Public Asset Management Framework for provincial governments in Indonesia, especially for infrastructure and real property assets. This framework will enable provincial governments to develop integrated asset management procedures throughout asset‘s lifecycle. Achieving the research aim means answering the following three research questions; 1) How do provincial governments in Indonesia currently manage their public assets? 2) What factors influence the provincial governments in managing these public assets? 3) How is a Public Asset Management Framework developed that is specific for the Indonesian provincial governments‘ situation? This research applied case studies approach after a literature review; document retrieval, interviews and observations were collated. Data was collected in June 2009 (preliminary data collection) and January to July 2010 in the major eastern Indonesian provinces. Once the public asset management framework was developed, a focus group was used to verify the framework. Results are threefold and indicate that Indonesian provincial governments need to improve the effectiveness and efficiency of current practice of public asset management in order to improve public service quality. The second result shows that the 5 major concerns that influence the local government public asset management processes are asset identification and inventory systems, public asset holding, asset guidance and legal arrangements, asset management efficiency and effectiveness, and, human resources and their organisational arrangements. The framework was then applied to assets already transferred to local governments and so included a system of asset identification and a needs analysis to classify the importance of these assets to local governments, their functions and responsibilities in delivering public services. Assets that support local government functions and responsibilities will then be managed using suitable asset lifecycle processes. Those categorised as surplus assets should be disposed. Additionally functions and responsibilities that do not need an asset solution should be performed directly by local governments. These processes must be measured using performance measurement indicators. All these stages should be guided and regulated with sufficient laws and regulations. Constant improvements to the quality and quantity of human resources hold an important role in successful public asset management processes. This research focuses on developing countries, and contributes toward the knowledge of a Public Asset Management Framework at local government level, particularly Indonesia. The framework provides local governments a foundation to improve their effectiveness and efficiency in managing public assets, which could lead to improved public service quality. This framework will ensure that the best decisions are made throughout asset decision ownership and provide a better asset life cycle process, leading to selection of the most appropriate asset, improve its acquisition and delivery process, optimise asset performance, and provide an appropriate disposal program.

Caveats - Limited extensions effectively unlimited

The decision of Young J in McCosker v Lovitt (1995) 12 BCL 146 paces an interpretation upon s 74J of the Real Property Act 1900 (NSW) likely to surprise the unwary respondent to proceedings in New South Wales involving an application for an order to extend a caveat. Further, the similarity in critical respects between s74J and the legislation relating to lapse and extension of caveats in some jurisdictions when contrasted with other lapse provisions suggests that a court order extending a caveat for a specified period only may have very different consequences in different jurisdictions.

Valuers, liability and insurance obligations revisited

- Overview of negligence from the valuer’s perspective - Consideration of defences - Impact of lender conduct - Insurance obligations and impact for the valuer

Liability and statutory defence in Queensland

Context Increasing client awareness of valuer's duty of care - Webb Resolutions Ltd v E.Surv Ltd [2012] - Provident Capital Limited v John Virtue Pty Ltd (No 2) [2012] - Including disciplinary actions: Valuers Registration Board of Qld v Conroy [2013] QCAT 688 combined with Post-GFC ‘drops’ in value!

Property and valuation education : an analysis of UWS property students from 1994 to 2006

The valuation and property is an evolving industry and the participants within the industry are also changing. This change is due to improved technology and construction, global nature of business today, professional standards, legal and accounting issues and environmental matters. Throughout this change in the property industry, there has also been significant change in the structure and content of tertiary property courses in Australia. Over the past thirteen years each first year cohort commencing study in the property program at the University of Western Sydney have been surveyed in relation to their background, reasons for course selection and job expectations. This paper will review this annual survey and the profile of all first year students who commenced their studies in the Bachelor of Business (Property) degree [formerly Bachelor of Commerce (Property Economics) and Bachelor of Commerce (Land Economy)] for years commencing 1994 to 2006. The paper will also provide a detailed analysis of the type of student entering the property industry and their exposure to the valuation and property sectors prior to commencing their studies.

The true cost and performance of individual residential property investment and the implication on real estate agency practice

Investment in residential property in Australia is not dominated by the major investment institutions in to the same degree as the commercial, industrial and retail property markets. As at December 2001, the Property Council of Australia Investment Performance Index contained residential property with a total value of $235 million, which represents only 0.3% of the total PCA Performance Index value. The majority of investment in the Australian residential property market is by small investment companies and individual investors. The limited exposure of residential property in the institutional investment portfolios has also limited the research that has been undertaken in relation to residential property performance. However the importance of individual investment in residential property is continuing to gain importance as both individuals are now taking control of their own superannuation portfolios and the various State Governments of Australia are decreasing their involvement in the construction of public housing by subsidizing low-income families into the private residential property market. This paper will: • Provide a comparison of the cost to initially purchase residential property in the various capital city residential property markets in Australia, and • Analyse the true cost and investment performance of residential property in the main residential property markets in Australia based on a standard investment portfolio in each of the State capital cities and relate these results to real estate marketing and agency practice.

Implications of the National Rental Affordability Scheme on the valuation of residential property

The provision of shelter is a basic need and in Australia there has been a history of home ownership. However recent economic growth and rising construction costs, particularly over the past decade, has placed home ownership out of reach for some. In response to increased affordability pressures, the Australian Federal Government established the National Rental Affordability Scheme (NRAS) in 2008. The aim of establishing the NRAS initiative is to stimulate the supply of new affordable rental dwellings, targeting 50,000 new properties by June 2012, through the provision of a National Rental Incentive for each “approved” dwelling. To be approved the dwelling must be newly constructed and subsequently rented to eligible low and moderate income households at rentals no greater than 80 percent of market rates. There is a further requirement that the accommodation be provided as part of the scheme for no less than 10 years. The requirement to provide new residential accommodation at below market rentals for no less than 10 years has an impact on value and as such the valuation methodologies employed. To give guidance to valuers this paper investigates the scheme, the impact on value and expectations for the future.

Assessing the real value in residential property investment

One of the major fall outs from the Global Financial Crisis has been the decline in residential property construction, home lending and residential property prices. This has lead to some extent to a reduction in the number of small investors willing to commit funds to an investment market that is not seen to perform as well as other investment assets, particularly in relation to income return.With a decreasing supply of rental accommodation in the housing markets, less public housing being constructed by both State and Commonwealth Governments, there is the potential for the residential property market to provide more substantial returns than previous years.This paper will analyse the current residential housing market in Brisbane, Australia to determine if there are sectors in this market that are outperforming the average income and total return for residential investment property and the variation in investment performance across the various housing sub-markets. The results show that property investment in residential property provides opportunities to maximize returns based on geographic location and socio-economic economic status, with lower value areas showing the highest income returns and higher value suburbs showing greater capital returns

Education on plant and machinery valuation for the real market : Malaysian practicality

The purpose of this paper is to determine and discuss on the plant and machinery valuation syllabus for higher learning education in Malaysia to ensure the practicality of the subject in the real market. There have been limited studies in plant and machinery area, either by scholars or practitioners. Most papers highlighted the methodologies but limited papers discussed on the plant and machinery valuation education. This paper will determine inputs for plant and machinery valuation guidance focussing on the syllabus set up and references for valuers interested in this area of expertise. A qualitative approach via content analysis is conducted to compare international and Malaysian plant and machinery valuation syllabus and suggest improvements for Malaysian syllabus. It is found that there are few higher education institutions in the world that provide plant and machinery valuation courses as part of their property studies syllabus. Further investigation revealed that on the job training is the preferable method for plant and machinery valuation education and based on the valuers experience. The significance of this paper is to increase the level of understanding of plant and machinery valuation criteria and provide suggestions to Malaysian stakeholders with the relevant elements in plant and machinery valuation education syllabus.

Property cash flow studies : focusing on model consistency and data accuracy

The high degree of variability and inconsistency in cash flow study usage by property professionals demands improvement in knowledge and processes. Until recently limited research was being undertaken on the use of cash flow studies in property valuations but the growing acceptance of this approach for major investment valuations has resulted in renewed interest in this topic. Studies on valuation variations identify data accuracy, model consistency and bias as major concerns. In cash flow studies there are practical problems with the input data and the consistency of the models. This study will refer to the recent literature and identify the major factors in model inconsistency and data selection. A detailed case study will be used to examine the effects of changes in structure and inputs. The key variable inputs will be identified and proposals developed to improve the selection process for these key variables. The variables will be selected with the aid of sensitivity studies and alternative ways of quantifying the key variables explained. The paper recommends, with reservations, the use of probability profiles of the variables and the incorporation of this data in simulation exercises. The use of Monte Carlo simulation is demonstrated and the factors influencing the structure of the probability distributions of the key variables are outline. This study relates to ongoing research into functional performance of commercial property within an Australian Cooperative Research Centre.

Bwembya Chikolwa quoted by Mike Taylor for Money Management 7th September 2009, Thaw for listed property

Australian property bond markets are starting to improve, but don’t expect a return to the buoyant days of the past any time soon.