Commercial vulnerability of tenant : a special disadvantage?

The Full Federal Court has once again been called upon to explore the limits of s51AA of the Trade Practices Act 1974 (Cth) in the context of a retail tenancy between commercially experienced parties. The decision is Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62.

Can compensation be claimed under the standard commercial land and building contract where the property sold has no legally enforceable vehicular access?

This was the question that confronted Wilson J in Jarema Pty Ltd v Michihiko Kato [2004] QSC 451. Facts The plaintiff was the buyer of a commercial property at Bundall. The property comprised a 6 storey office building with a basement car park with 54 car parking spaces. The property was sold for $5 million with the contract being the standard REIQ/QLS form for Commercial Land and Buildings (2nd ed GST reprint). The contract provided for a “due diligence” period. During this period, the buyer’s solicitors discovered that there was no direct access from a public road to the car park entrance. Access to the car park was over a lot of which the Gold Coast City Council was the registered owner under a nomination of trustees, the Council holding the property on trust for car parking and town planning purposes. Due to the absence of a registered easement over the Council’s land, the buyer’s solicitors sought a reduction in the purchase price. The seller would not agree to this. Finally the sale was completed with the buyer reserving its rights to seek compensation.

The source of the good faith obligation in the performance and enforcement of commercial contracts

There are many issues associated with good faith that will ultimately confront the Australian High Court and a number of these have been well canvassed. However, one significant issue has attracted relatively little comment. To date, a number of Australian courts (lower in the judicial hierarchy) have been prepared to hold directly, tacitly accept or assume (without making a final determination) that good faith is implied (as a matter of law) in the performance and enforcement of a very broad class of contract, namely commercial contracts per se. This broad approach is demonstrated in decisions from the Federal Court, the New South Wales Court of Appeal, the Supreme Courts of Victoria and Western Australia and has crept into pleadings in commercial matters in Queensland

Acquire a practical overview of 'good faith' in commercial contracting

The twists and turns in the ongoing development of the implied common law good faith obligation in the commercial contractual arena continue to prove fertile academic ground. Despite a lack of guidance from the High Court, the lower courts have been besieged by claims based, in part, on the implied obligation. Although lower court authority is lacking consistency and the ‘decisions in which lower courts have recognised the legitimacy of implication of a term of good faith vary in their suggested rationales’, the implied obligation may provide some comfort to a party to ‘at least some commercial contracts’ faced with a contractual counterpart exhibiting symptoms of bad faith.

The level and quality of Value-at-Risk disclosure by commercial banks

In this paper we study both the level of Value-at-Risk (VaR) disclosure and the accuracy of the disclosed VaR figures for a sample of US and international commercial banks. To measure the level of VaR disclosures, we develop a VaR Disclosure Index that captures many different facets of market risk disclosure. Using panel data over the period 1996–2005, we find an overall upward trend in the quantity of information released to the public. We also find that Historical Simulation is by far the most popular VaR method. We assess the accuracy of VaR figures by studying the number of VaR exceedances and whether actual daily VaRs contain information about the volatility of subsequent trading revenues. Unlike the level of VaR disclosure, the quality of VaR disclosure shows no sign of improvement over time. We find that VaR computed using Historical Simulation contains very little information about future volatility.

Retrofitting commercial office buildings for sustainability : tenants’ expectations and experiences

Introduction Buildings, which account for approximately half of all annual energy and greenhouse gas emissions, are an important target area for any strategy addressing climate change. Whilst new commercial buildings increasingly address sustainability considerations, incorporating green technology in the refurbishment process of older buildings is technically, financially and socially challenging. This research explores the expectations and experiences of commercial office building tenants, whose building was under-going green refurbishment. Methodology Semi-structured in-depth interviews with seven residents and neighbours of a large case-study building under-going green refurbishment in Melbourne, Australia. Built in 1979, the 7,008m² ‘B’ grade building consists of 11 upper levels of office accommodation, ground floor retail, and a basement area leased as a licensed restaurant. After refurbishment, which included the installation of chilled water pumps, solar water heating, waterless urinals, insulation, disabled toilets, and automatic dimming lights, it was expected that the environmental performance of the building would move from a non-existent zero ABGR (Australian Building Greenhouse Rating) star rating to 3.5 stars, with a 40% reduction in water consumption and 20% reduction in energy consumption. Interviews were transcribed, with responses analysed using a thematic approach, identifying categories, themes and patterns. Results Commercial property tenants are on a journey to sustainability - they are interested and willing to engage in discussions about sustainability initiatives, but the process, costs and benefits need to be clear. Critically, whilst sustainability was an essential and non-negotiable criterion in building selection for government and larger corporate tenants, sustainability was not yet a core business value for smaller organisations – whilst they could see it as an emerging issue, they wanted detailed cost-benefit analyses, pay-back calculations of proposed technologies and, ideally, wished they could trial the technology first-hand in some way. Although extremely interested in learning more, most participants reported relatively minimal knowledge of specific sustainability features, designs or products. In discussions about different sustainable technologies (e.g., waterless urinals, green-rated carpets), participants frequently commented that they knew little about the technology, had not heard of it or were not sure exactly how it worked. Whilst participants viewed sustainable commercial buildings as the future, they had varied expectations about the fate of existing older buildings – most felt that they would have to be retrofitted at some point to meet market expectations and predicted the emergence of a ‘non-sustainability discount’ for residing in a building without sustainable features. Discussion This research offers a beginning point for understanding the difficulty of integrating green technology in older commercial buildings. Tenants currently have limited understandings of technology and potential building performance outcomes, which ultimately could impede the implementation of sustainable initiatives in older buildings. Whilst the commercial property market is interested in learning about sustainability in the built environment, the findings highlight the importance of developing a strong business case, communication and transition plan for implementing sustainability retrofits in existing commercial buildings.

The Commercial Surrogacy Dilemma

In November 2009 the England and Wales High Court (Family Division) granted a parental order pursuant to s30 Human Fertilisation and Embryology Act 1990 in respect of twins who came to be in the custody and control of the applicants (Mr and Mrs A) through a surrogacy arrangement. The particularly unusual and interesting aspect of this case is that, on the evidence, Mr and Mrs A had paid expenses to the surrogate above and beyond those allowed by the legislation, thus creating a commercial surrogacy arrangement. Commercial surrogacy arrangements involve the payment of money to the surrogate mother in excess of those expenses which have been reasonably incurred pursuant to the surrogacy arrangement. This case is relevant to Queensland law because commercial surrogacy arrangements are also prohibited in Queensland and, as in the United Kingdom, the court cannot make a parentage order unless it is satisfied the surrogacy arrangement is not a commercial surrogacy arrangement.

When the shoe doesn't quite fit: Regulating large commercial airports with expanding roles

Airports, whether publicly or privately owned or operated fill both public and private roles. They need to act as public infrastructure providers and as businesses which cover their operating costs. That leads to special governance concerns with respect to consumers and competitors which are only beginning to be addressed. These challenges are highlighted both by shifts in ownership status and by the expansion of roles performed by airports as passenger and cargo volumes continue to increase and as nearby urban areas expand outward towards airports. We survey five ways in which the regulatory shoe doesn‟t quite fit the needs. Our findings suggest that, while ad hoc measures limit political tension, new governance measures are needed.

Estimation of energy saving of commercial building by living wall and green facade in sub-tropical climate of Australia

This paper investigates energy saving potential of commercial building by living wall and green façade system using Envelope Thermal Transfer Value (ETTV) equation in Sub-tropical climate of Australia. Energy saving of four commercial buildings was quantified by applying living wall and green façade system to the west facing wall. A field experimental facility, from which temperature data of living wall system was collected, was used to quantify wall temperatures and heat gain under controlled conditions. The experimental parameters were accumulated with extensive data of existing commercial building to quantify energy saving. Based on temperature data of living wall system comprised of Australian native plants, equivalent temperature of living wall system has been computed. Then, shading coefficient of plants in green façade system has been included in mathematical equation and in graphical analysis. To minimize the air-conditioned load of commercial building, therefore to minimize the heat gain of commercial building, an analysis of building heat gain reduction by living wall and green façade system has been performed. Overall, cooling energy performance of commercial building before and after living wall and green façade system application has been examined. The quantified energy saving showed that only living wall system on opaque part of west facing wall can save 8-13 % of cooling energy consumption where as only green façade system on opaque part of west facing wall can save 9.5-18% cooling energy consumption of commercial building. Again, green façade system on fenestration system on west facing wall can save 28-35 % of cooling energy consumption where as combination of both living wall on opaque part of west facing wall and green façade on fenestration system on west facing wall can save 35-40% cooling energy consumption of commercial building in sub-tropical climate of Australia.

Investigation of cooling energy performance of commercial building in sub-tropical climate through the application of green roof and living wall

This paper investigates cooling energy performance of commercial building before and after green roof and living wall application based on integrated building heat gain model developed from Overall Thermal Transfer Value (OTTV) of building wall and steady state heat transfer process of roof in sub-tropical climate. Using the modelled equation and eQUEST energy simulation tool, commercial building envelope parameters and relevant heat gain parameters have been accumulated to analyse the heat gain and cooling energy consumption of commercial building. Real life commercial building envelope and air-conditioned load data for the sub-tropical climate zone have been collected and compared with the modelled analysis. Relevant temperature data required for living wall and green roof analysis have been collected from experimental setup comprised of both green roof and west facing living wall. Then, Commercial building heat flux and cooling energy performance before and after green roof and living wall application have been scrutinized.

The adoption of residential sustainability programs : lessons from the commercial sector

The article explains and compares sustainability programs available for use by residential and commercial premises; as well as the respective legal tenure frameworks of commercial and residential tenancies. It identifies that while the desire of commercial tenants drive the participation by landlords in these programs, residential tenants appear to be ignorant of sustainable measures. The article contends that the reason for this difference is rooted in the legal and social status of residential tenants. It explores the impact that secure tenure may have in promoting residential sustainability programs and concludes by observing that the lack of involvement of residential tenants in programs stems from the absence of tenure security, which prevents any long term cooperation between the parties.