Compensation for logdment of caveat without reasonable cause

This article examines s130 of the Land Title Act 1994 (Qld) in detail, and includes an analysis of authorities which have interpreted comparable provisions in other Australian jurisdictions and in New Zealand. Its purpose is to provide a comprehensive guide as to the circumstances in which the court may now be expected to award compensation in respect of the lodgment or continuance of a caveat in Queensland. Finally, the author considers whether the changes which have been embodied in s130 may now be regarded as providing adequate protection for persons who suffer damage as a result of the lodgment or continuance of a caveat which cannot ultimately be sustained.

Removal of a valid caveat - how convenient?

This article analyses in detail the approaches which have been taken when the court has been called upon to order removal of a caveat, particularly in circumstances where the caveat in question is valid as to form and protects a recognisable caveatable interest in land. It examines the question in all jurisdictions, with a primary focus on Western Australia.

Electronic conveyancing in Australia: Is anyone concerned about security?

Three proof requirements as essential for a sustainable land registration system. These were proof of identity, proof of ownership, and authority to deal. Our attention in this paper is drawn to the latter two requirements and will ask whether the introduction of the Property Exchange of Australia (PEXA), and its underpinning regulatory regime will meet the concerns that we have in relation to proof of ownership and authority to deal. In drawing out some problems with PEXA, we then offer an innovative idea, sourced from the transfer of equities that could serve to generate discussion on how we can ensure the Torrens system of land registration is sustainable for another 160 years.

Legislative impact on the mortgagee’s exercise of power of sale : the need for rationalisation

Throughout Australia, regulation of the power of sale is highly inconsistent. In response to the uncertain nature of the mortgagee’s duty at common law, many legislatures have intervened. As a result, there has been a proliferation of statutory formula conferring varying degrees of protection on mortgagors. The differences in approach indicate a lack of consensus as to the best method of regulation. This article exposes the extent of the inconsistency and provides a comparative assessment of the various provisions with reference to the policy concerns that underpin legislative intervention. The article identifies a number of deficiencies associated with existing provisions and concludes that mortgagees and mortgagors alike would benefit from improved clarity and consistency. To that end, the article proposes a model provision that seeks to address the deficiencies identified.

Commercial Leases in Australia [7th ed.]

Commercial Leases in Australia is a comprehensive guide to understanding and drafting commercial leases agreements in Australia and to managing disputes when they arise.

Electronic conveyancing in Australia : is anyone concerned about security?

We have previously suggested that three proof requirements are essential for a sustainable land registration system. These were proof of identity, proof of ownership and authority to deal. Our attention in this article is drawn to the security framework that surrounds these requirements. We will ask whether the introduction of the Property Exchange of Australia (PEXA), and its underpinning regulatory regime will meet the concerns that we have in relation to them. In drawing out some problems with PEXA, we then offer an innovative idea, sourced from the transfer of equities that could serve to generate discussion on how we can ensure the Torrens system of land registration is sustainable for another 160 years. We also canvass some more incremental suggestions that evolve out of what we currently do, as well as outlining some comparative externally sourced ideas as to how the transfer and ownership of land can be made safer for all citizens. Such a goal is imperative when land transfer and secure property ownership is a critical component of the economic infrastructure of a modern society.

Going through the obstruction, the Torrens System Assurance Fund and contemporary solutions : a tale weaved from a story of a nun, a romantic triangle and sibling corruption

Private title insurance has been the subject of much debate by law reform bodies and academics. This article adds a new dimension to the discussion by analysing its role against a recent scenario where a nun was betrayed by the actions of her brother, and compensation payable from the assurance fund, after much challenge by the registrar, amounted to in excess of $4 million.We ask whether the slow burning of title insurance into the psyche of Australian home purchasers will see state-based assurance fundings looking to minismise their role in the Torrens system. We also query how the rather more immediate electronic establishment of electronic conveyancing will alter the balance between the assurance fund, private title insurance and the increasing responsibilities on stakeholdes involved in conveyancing.

Repeatability or reproducibility in Australian Patent Law

This article considers the extent to which a claimed process must be repeatable or reproducible in order to be patentable according to Australian patent law. It asks whether a process must yield identical or near-identical results each time the process is invoked, or if not, what degree of repeatability is required. The question is relevant when considering, among other things, the patentability of some methods of medical treatment and diagnosis, biotechnology inventions and business methods.

The defence of hardship to specific performance actions

The decision of Evans v Robcorp Pty Ltd[2014] QSC 26 is of interest as being an instance where the defence of hardship, in this case, financial hardship, was successfully pleaded in defence to a summary application for specific performance of a contract for the sale of land. Equity has always recognised the defence of hardship in response to an action for specific performance which, as an equitable remedy, might be refused in the discretion of the Court (Hewett v Court (1983) 149 CLR 639 at 664). However, whilst the remedy is discretionary, there are certain accepted principles which have guided the courts in their application of this defence to particular facts. It is not a blanket defence to a claim for specific performance where the buyer simply does not have the funds to complete the contract at the time when settlement is called for. Occasionally, a radical change in, say for instance, the health of the defendant between contract and completion, perhaps coupled with a long delay by a seller in calling for completion not being the fault of the buyer might enliven the defence (Patel v Ali [1984]1 Ch 283)

Is there such a thing as an “irrevocable authority”?

The Queensland Court of Appeal decision of FTV Holdings Cairns Pty Ltd v Smith [2014] QCA 217 analysed many issues concerning the enforceability of an “irrevocable authority” signed by clients directed to their solicitors regarding the payment of money to a third party. The action also drew those solicitors into the litigation as they acted contrary to that “irrevocable authority” by paying the money concerned directly to their clients but upon their clients’ later instructions. The result probably confirmed what many solicitors have believed to be the case for some time but which had never been considered in legal analysis in an appellate court. The facts of the case would be common to many day to day transactions.

Caveating a mortgagee sale - The need for a uniform approach

The ability of a mortgagor to lodge a caveat, where an allegation is raised of serious impropriety by a mortgagee in exercising power of sale, may be a critical protective tool for a mortgagor. The mortgagor’s capacity, as caveator, to lodge a caveat over the mortgagor’s own title and the nature of the interest necessary to support the caveat are contentious issues. This article examines the different judicial approaches that have been adopted to date and states a case for a uniform approach to this issue across Australia in the future.

Incentivising tenants to stay the term – will clawbacks be enforceable?

Incentives are commonly offered by commercial landlords to tenants in the form of short term rent deductions or contributions to the tenant’s fitout. Usually these incentives are conditional upon the lessee remaining in the premises for the term of the lease with an obligation on the tenant to repay a proportion of the fitout contribution and rent deductions upon early termination or assignment. While the enforceability of clawback provisions has always been unclear, there was commercial benefit to landlords in maintaining high rentals on the face of the lease and attracting good quality tenants through fitout contributions. The use of clawback provisions as part of these incentives was recently analysed by the Queensland Supreme Court through the lens of the penalties doctrine in GWC Property Group Pty Ltd v Higginson & Ors [2014] QSC 264, with a negative outcome for the landlord. Unless the decision is overturned on appeal, the salient message for landlords is that repayment of incentives for any reason, not just a breach of the lease, is unlikely to be enforceable.

Individuals, Innovation, and the Internet : Why Access is Essential

As each day passes, and as new and better devices and services are developed, more and more government and private services are being moved to an online format. This movement makes access to the internet an essential for 21st Century life. The internet has become so integrated in our lives that many of us cannot imagine how we could operate without it. This omnipresent ‘being’ affects all forms of ‘normal’ social and economic activity and does so in ways that we do not realize. Those with access are able to engage with government, business, and family and friends more easily, which can lead to an improved standard of living. For the disadvantaged, however – those with the desire but without the capacity – a lack of access can be socially isolating. "Between the idea And the reality Between the motion And the act Falls the Shadow – T. S. Elliott. “The Hollow Men” Engagement in the internet economy requires both physical access and the individual to have the necessary finances and skills to make and sustain their use. If governments and the international community want a fully functioning internet economy this requires that all individuals must be operating in it. That not all individuals do so means, very simply, that the internet economy is not fully functioning. The text contextualizes for policy makers and legislatures why it is essential to ensure that individuals have appropriate access to the internet and what can be done to achieve it. The interrelationship/overlap between why access is essential, how it can be achieved and the central role of the individual to the internet economy is explored and translated into the concept of connectedness. From this, solutions for ensuring connectedness for all individuals are developed. It is Dr Cradduck’s hope that in the not too distant future readers will puzzle over why texts such as this needed to be written.

Who gets the deposit when trustees for a bankrupt buyer disclaim a real estate contract?

The decision of Henry J in Majet v Goggin and Miller (as joint and several trustees of bankrupt estate of Brett-Hall) [2015] QSC 38 dealt with the fate of a deposit that was paid under a real estate contract that did not complete in unusual circumstances.