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.

Consumers’ intentions to adopt 3G in regional cities in China : a comparative study

Rapid mobile technological evolution and the large economic stake in commercial development of mobile technological innovation make it necessary to understand consumers' motivations towards the latest advanced and updated technologies and services. 3G (the third generation of mobile communication technology) recently started its commercial development in the world‘s largest mobile communication market, China, after being delayed for a few years. Although China fell behind in commercially developing 3G, it is difficult to ignore studying this area, given the size of the market and promising future developments. This market deserves focused research attention, especially in terms of consumer behaviour towards the adoption of mobile technological innovation. Thus, the program of research in this thesis was designed to investigate how Chinese consumers respond to the use of this newly launched mobile technological innovation, with a focus on what factors affect their 3G adoption intentions. It aimed to yield important insights into Chinese consumers‘ innovation adoption behaviours and to contribute to marketing and innovation adoption research. Furthermore, it has been documented that Chinese consumers vary widely between regions in dialect, lifestyle, culture, purchasing power and consumption attitudes. Based on economic development and local culture, China can be divided geographically into distinctive regional consumer markets. Consequently, the results of consumer behaviour research in one region may not necessarily be extrapolated to other regions. In order to better understand Chinese consumers, the disparities between regions should not be overlooked. Therefore, another objective of this program of research was to examine regional variances in consumers' innovation adoption, specifically to identify the similarities and differences in factors influencing 3G adoption, contributing to intra-cultural studies. An extensive literature review identified two gaps: current China-based innovation adoption research studies are limited in providing adequate prediction and explanation of Chinese consumers' intentions to adopt 3G; and there was limited knowledge about the differences between regional Chinese consumers in innovation adoption. Two research questions therefore were developed to address these gaps: 1) What factors influence Chinese consumers' intentions to adopt 3G? 2) How do Chinese consumers differ between regional markets in the relative influence of the factors in determining their intentions to adopt 3G? In accordance with postpositivist research philosophy, two studies were designed to answer the research questions, using mixed methods. To meet the research objectives, the two studies were both conducted in three regional cities, namely Beijing, Shanghai and Wuhan, centred in the three regions of North China, East China and Central China respectively, with sufficient cultural and economical regional variances. Study One was an exploratory study with qualitative research methods. It involved 45 in-depth interviews in the three research cities to gain rich insights into the research context from natural settings. Eight important concepts related to 3G adoption were generated from analysis of the interview data, namely utilitarian expectation, hedonic expectation, status gains, status loss avoidance, normative influence, external influence, cost and quality concern. The concepts of social loss avoidance and quality concern were two unique findings, whereas the other concepts were similar to the findings in Western innovation adoption studies. Moreover, variances in 3G adoption between three groups of regional consumers were also identified, focusing on the perceptions of two concepts, namely status gains and normative influence. The conceptual research model was then developed incorporating the eight concepts plus the dependent variable of adoption intention. The hypothesized relationships between the nine constructs and hypotheses about the differences between regional consumers in 3G adoption were informed by the findings of Study One and the literature reviewed. Study Two was a quantitative study involving a web-based survey and statistical analysis procedure. The web-based survey attracted 800 residents from the three research cities, 270 from Beijing, 265 from Shanghai and 265 from Wuhan. They comprised three research samples for this study and consequently three sets of data were obtained. The data was analysed by Structural Equation Modelling together with Multi-group Analysis. The analysis confirmed that the concepts generated in Study One were influential factors affecting Chinese consumers' 3G adoption intention, with the exception of the concept external influence. Differences were found between the samples in the three research cities in the effect of hedonic expectation, status gains, status loss avoidance and normative influence on 3G adoption intention. The two Studies undertaken in this thesis contributed a better understanding of Chinese consumers' intentions to adopt advanced mobile technological innovation, namely 3G, in three regional markets. This knowledge contributes to innovation adoption and intra-cultural research, as well as consumer behaviour theory. It is also able to inform international and domestic telecommunication companies to develop and deliver more effective marketing strategies across Chinese regional markets. Limitations in the research were identified in terms of the sampling techniques used and the design of the two Studies. Future research was suggested in other Chinese regional markets and into consumer adoption of other types of mobile technological innovations.

Manufacturing Yield Improvement by Clustering

Dealing with product yield and quality in manufacturing industries is getting more difficult due to the increasing volume and complexity of data and quicker time to market expectations. Data mining offers tools for quick discovery of relationships, patterns and knowledge in large databases. Growing self-organizing map (GSOM) is established as an efficient unsupervised datamining algorithm. In this study some modifications to the original GSOM are proposed for manufacturing yield improvement by clustering. These modifications include introduction of a clustering quality measure to evaluate the performance of the programme in separating good and faulty products and a filtering index to reduce noise from the dataset. Results show that the proposed method is able to effectively differentiate good and faulty products. It will help engineers construct the knowledge base to predict product quality automatically from collected data and provide insights for yield improvement.

Structural and thermal performance of cold-formed steel stud wall systems under fire conditions

Cold-formed steel stud walls are a major component of Light Steel Framing (LSF) building systems used in commercial, industrial and residential buildings. In the conventional LSF stud wall systems, thin steel studs are protected from fire by placing one or two layers of plasterboard on both sides with or without cavity insulation. However, there is very limited data about the structural and thermal performance of stud wall systems while past research showed contradicting results, for example, about the benefits of cavity insulation. This research was therefore conducted to improve the knowledge and understanding of the structural and thermal performance of cold-formed steel stud wall systems (both load bearing and non-load bearing) under fire conditions and to develop new improved stud wall systems including reliable and simple methods to predict their fire resistance rating. Full scale fire tests of cold-formed steel stud wall systems formed the basis of this research. This research proposed an innovative LSF stud wall system in which a composite panel made of two plasterboards with insulation between them was used to improve the fire rating. Hence fire tests included both conventional steel stud walls with and without the use of cavity insulation and the new composite panel system. A propane fired gas furnace was specially designed and constructed first. The furnace was designed to deliver heat in accordance with the standard time temperature curve as proposed by AS 1530.4 (SA, 2005). A compression loading frame capable of loading the individual studs of a full scale steel stud wall system was also designed and built for the load-bearing tests. Fire tests included comprehensive time-temperature measurements across the thickness and along the length of all the specimens using K type thermocouples. They also included the measurements of load-deformation characteristics of stud walls until failure. The first phase of fire tests included 15 small scale fire tests of gypsum plasterboards, and composite panels using different types of insulating material of varying thickness and density. Fire performance of single and multiple layers of gypsum plasterboards was assessed including the effect of interfaces between adjacent plasterboards on the thermal performance. Effects of insulations such as glass fibre, rock fibre and cellulose fibre were also determined while the tests provided important data relating to the temperature at which the fall off of external plasterboards occurred. In the second phase, nine small scale non-load bearing wall specimens were tested to investigate the thermal performance of conventional and innovative steel stud wall systems. Effects of single and multiple layers of plasterboards with and without vertical joints were investigated. The new composite panels were seen to offer greater thermal protection to the studs in comparison to the conventional panels. In the third phase of fire tests, nine full scale load bearing wall specimens were tested to study the thermal and structural performance of the load bearing wall assemblies. A full scale test was also conducted at ambient temperature. These tests showed that the use of cavity insulation led to inferior fire performance of walls, and provided good explanations and supporting research data to overcome the incorrect industry assumptions about cavity insulation. They demonstrated that the use of insulation externally in a composite panel enhanced the thermal and structural performance of stud walls and increased their fire resistance rating significantly. Hence this research recommends the use of the new composite panel system for cold-formed LSF walls. This research also included steady state tensile tests at ambient and elevated temperatures to address the lack of reliable mechanical properties for high grade cold-formed steels at elevated temperatures. Suitable predictive equations were developed for calculating the yield strength and elastic modulus at elevated temperatures. In summary, this research has developed comprehensive experimental thermal and structural performance data for both the conventional and the proposed non-load bearing and load bearing stud wall systems under fire conditions. Idealized hot flange temperature profiles have been developed for non-insulated, cavity insulated and externally insulated load bearing wall models along with suitable equations for predicting their failure times. A graphical method has also been proposed to predict the failure times (fire rating) of non-load bearing and load bearing walls under different load ratios. The results from this research are useful to both fire researchers and engineers working in this field. Most importantly, this research has significantly improved the knowledge and understanding of cold-formed LSF walls under fire conditions, and developed an innovative LSF wall system with increased fire rating. It has clearly demonstrated the detrimental effects of using cavity insulation, and has paved the way for Australian building industries to develop new wall panels with increased fire rating for commercial applications worldwide.

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.