Real estate agents, brochure and misleading or deceptive conduct

The decision of the High Court in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 involves issues that affect every person who is induced to buy real estate in Australia by statements in sales brochures distributed by real estate agents. One of these issues is the extent to which estate agents unwittingly engage in misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth) (‘the Act’) when they distribute sales brochures that contain untrue or misleading statements prepared by others. A further issue is the extent to which agents can escape liability by relying on disclaimers about the authenticity of false statements contained in brochures prepared by them.

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).

Equitable mortgage by deposit of a Certificate of Title

In Theodore v Mistford Pty Ltd [2005] HCA 45, the High Court considered certain principles governing the creation of an equitable mortgage by the deposit of a title deed as first developed by the English courts of equity with respect to old system conveyancing. The decision will be of interest to Queensland practitioners as it concerned the application of these equitable principles to Torrens land regulated by the provisions of the Land Title Act 1994 (Qld) and, in particular, the operation of s 75 of the Land Title Act 1994 (Qld) which provides: (i) An equitable mortgage of a lot may be created by leaving a certificate of title with the mortgagee (ii) Subsection (1) does not affect the ways in which an equitable mortgage may be created.

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.

Access to protection for 'Offshore Entry Persons' aka asylum seekers

In 2001, amendments to the Migration Act 1958 (Cth) made possible the offshore processing of protection claims. The same amendments also foreshadowed the processing of claims by ‘offshore entry persons’ in Australia according to non-statutory procedures. After disbanding offshore processing the then Rudd Labor Government commenced processing of protection claims by ‘offshore entry persons’ in Australia under the Refugee Status Assessment process (RSA). The RSA process sought to substitute well established legislative criteria for the grant of a protection visa, as interpreted by the courts, with administrative guidelines and decision-making immune from judicial review. This approach was rejected by the High Court in the cases M61 and M69. This article analyses these developments in light of Australia’s international protection obligations, as well as considering the practical obstacles that continue to confront offshore entry persons as they pursue judicial review of adverse refugee status determinations after the High Court’s decision.

Loss of chance in medical negligence claims now a lost cause?

The question whether the loss of chance of a better medical outcome in cases of medical negligence should be recognised as actionable damage is ‘a question which has divided courts and commentators throughout the common law world.’ In April 2010, the High Court handed down its anticipated decision in the case of Tabet (by her Tutor Sheiban) v Gett (2010) 240 CLR 537. The issue considered by the court was whether the appellant could claim in negligence for the loss of a chance of a better medical outcome. This issue had not been considered by the High Court previously, the most relevant cases being Rufo v Hosking (2004) 61 NSWLR 678 and Gavalas v Singh (2001) 3 VLR 404. Claiming for a loss of chance in a personal injury action raises questions as to recognised damage and causation, and the members of the High Court considered both of these.

Intent behind payments determines impact on assessment of damages

In Zheng v Cai (2009) 261 ALR 481 the High Court had to determine whether voluntary payments made to the appellant by a third party were to be taken into account when assessing a claim for damages for personal injury.

Uncetainty in claiming damages for defects in property

In Project Management Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102 the appellant sought leave to join its parent company party (Project Management Company No 1) as a plaintiff to the proceedings and to amend its statement of claim. It was argued that the parent company had suffered the loss claimed in the proceedings, rather than the appellant. Rule 69(1)(b)(ii) of the Uniform Civil Procedure Rules 1999 (Qld) allows a court at any stage of the proceeding to order that ‘a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding’ be include as a party. To determine this issue, the Court of Appeal had to review the law relevant to the proceedings – a claim in negligence for pure economic loss, in particular, the principles espoused by the High Court in Bryan v Maloney(1995) 182 CLR 609 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.

The defence of joint illegal activity must be looked at in context

In Miller v Miller (2011) 85 ALJR 480; [2011] HCA 9 the High Court examined the complex issue of joint illegal activity. The issue before the court was whether a plaintiff who had engaged in an illegal activity with the defendant may claim damages in negligence. In its decision the court analysed the cases of Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438, Smith v Jenkins (1970) 119 CLR 397, Jackson v Harrison (1978) 138 CLR 438 and Gala v Preston (1991) 172 CLR 243.

Insurance and the law of negligence : an influential or irrelevant persuader?

This article examines, from both within and outside the context of compulsory third party motor vehicle insurance, the different academic and judicial perspectives regarding the relevance of insurance to the imposition of negligence liability via the formulation of legal principle. In particular, the utility of insurance in setting the standard of care held owing by a learner driver to an instructor in Imbree v McNeilly is analysed and the implications of this High Court decision, in light of current jurisprudential argument and for other principles of negligence liability, namely claimant vulnerability, are considered. It concludes that ultimately one’s stance as to the relevance, or otherwise, of insurance to the development of the common law of negligence will be predominately influenced by normative views of torts’ function as an instrument of corrective or distributive justice.

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.

Charity law, advocacy and the aid/watch decision : compatibility of charitable purposes and political objects — the view from Australia

Introduction In 1952 the Nathan report stated that: Some of the most valuable activities of voluntary societies consist, however, in the fact that they may be able to stand aside from and criticize State action or inaction, in the interests of the inarticulate man in the street. Some 60 years later it remained the case that if a voluntary society wanted to gain or retain charitable status then, contrary to the Nathan report, the one thing it could not do was set itself up with the purpose of criticizing State action or inaction. This legal position was adopted by the authorities in Australia with the Australian Taxation Office (ATO) noting in Taxation Ruling TR2005/21: 102. An institution or fund is not charitable if its purpose is advocating a political party or cause, attempting to change the law or government policy, or propagating or promoting a particular point of view. So, why, if it is such a valuable activity, have governments steadfastly refused to allow charities to have as their purpose the freedom to advocate in this way and how has this situation been affected by the recent High Court of Australia decision in Aid/Watch v Commissioner of Taxation? This article proposes to address such questions. Beginning with some background history, it explains that, initially, the current constraints did not apply. Then it looks at the nature of these constraints: how does the law define what constitutes the type of political activity that a charity must not undertake? What is the rationale for prohibition? How has the judiciary contributed to the development of the law in this area in recent years? This will lead into a consideration of the Aid/Watch case and the implications arising from the recent final decision. The article concludes by reflecting on what has changed and why the view on this contentious matter now looks different from Australia.

The advancement of religion is still a valid charitable object in 2001

“The Relevance of Religion” is the title of a recent address delivered by The Honourable Chief Justice Murray Gleeson of the High Court of Australia.1 In making the point “about the continuing public importance of religion”, the Chief Justice referenced Lord Devlin’s contention that “no society has yet solved the problem of how to teach morality without religion”....

Taxing charities : reform without reason?

The proposal to tax the unrelated business income of charitable organisations was announced in the 2011 budget, but the course of events has overtaken the stated policy rationale. We identify and discuss the policy for the imposition of the new tax and demonstrate that the measure is unnecessary given a recent judgement by the High Court, establishment of a new charity regulator and a better understanding of the applicable tax theory.