The implication of a term of good faith in commercial leases

Much has been written in the past decade on the subject of the implication of a term of good faith in contracts in Australia, particularly since the judgment Priestley JA in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234. Except for an early article by Rachael Mulheron, 'Good Faith and Commercial Leases: New Opportunities for the Tenant' (1996) 4 APLJ 223, very little else has been written with respect to the possible application of the doctrine to the commercial leases.With the advent of two later New South Wales Supreme Court decisions Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 and, more recently, Advance Fitness v Bondi Diggers [1999] NSWSC 264, the question of the application of the doctrine in the commercial leasing context has been examined. This article briefly considers the nature and substance of the doctrine against the background of the relationship of lessor and lessee and examines in some depth the Australian decisions on commercial leases where it has been sought, unsuccessfully, to apply the doctrine. The article concludes by suggesting that as a standard commercial lease usually covers the field of agreement between lessor and lessee and as a lessee has a high degree of statutory protection derived from equitable principles, there may be little room for the operation of the doctrine in this legal environment.

Early land grants and reservations : Any lessons from the Queensland experience for the sustainability challenge to land ownership

Environmentalists have called for a new property paradigm premised on the idea of land ownership as a delegated responsibility to manage land and resources for the public benefit. An examination of Crown freehold grants from the beginnings of settlement until the 1890s in Queensland shows that fee simple titles were granted subject to express conditions and reservations designed to reserve useful natural resources to the Crown, and to promote public purposes. Over time, legislative regulation of landowner’s rights rendered obsolete the use of express conditions and reservations in grants. One result of this change was that the inherently limited nature of fee simple ownership, and the communal obligations to which it is subject, are less transparent than in colonial times.

Behavioural biases and information disclosure laws relating to residential property sales : narrowing the gap between existing laws and calls for future reforms

Market failures involving the sale of complex merchandise, such as residential property, financial products and credit, have principally been attributed to information asymmetries. Existing legislative and regulatory responses were developed having regard to consumer protection policies based on traditional economic theories that focus on the notion of the ‘rational consumer’. Governmental responses therefore seek to impose disclosure obligations on sellers of complex goods or products to ensure that consumers have sufficient information upon which to make a decision. Emergent research, based on behavioural economics, challenges traditional ideas and instead focuses on the actual behaviour of consumers. This approach suggests that consumers as a whole do not necessarily benefit from mandatory disclosure because some, if not most, consumers do not pay attention to the disclosed information before they make a decision to purchase. The need for consumer policies to take consumer characteristics and behaviour into account is being increasingly recognised by governments, and most recently in the policy framework suggested by the Australian Productivity Commission

Protecting the protectors : legal liabilities from the use of Web 2.0 for Australian disaster response

The traditional model for information dissemination in disaster response is unidirectional from official channels to the public. However recent crises in the US, such as Hurricane Katrina and the Californian Bushfires show that civilians are now turning to Web 2.0 technologies as a means of sharing disaster related information. These technologies present enormous potential benefits to disaster response authorities that cannot be overlooked. In Australia, the Victorian Bushfires Royal Commission has recently recommended that Australian disaster response authorities utilize information technologies to improve the dissemination of disaster related, bushfire information. However, whilst the use of these technologies has many positive attributes, potential legal liabilities for disaster response authorities arise. This paper identifies some potential legal liabilities arising from the use of Web 2.0 technologies in disaster response situations thereby enhancing crisis related information sharing by highlighting legal concerns that need to be addressed.

Constraints of nutrient availability on primary production in two alpine tundra communities

A nutrient amendment experiment was conducted for two growing seasons in two alpine tundra communities to test the hypotheses that: (1) primary production is limited by nutrient availability, and (2) physiological and developmental constraints act to limit the responses of plants from a nutrient-poor community more than plants from a more nutrient-rich community to increases in nutrient availability. Experimental treatments consisted of N, P, and N+P amendments applied to plots in two physiognomically similar communities, dry and wet meadows. Extractable N and P from soils in nonfertilized control plots indicated that the wet meadow had higher N and P availability. Photosynthetic, nutrient uptake, and growth responses of the dominants in the two communities showed little difference in the relative capacity of these plants to respond to the nutrient additions. Aboveground production responses of the communities to the treatments indicated N availability was limiting to production in the dry meadow community while N and P availability colimited production in the wet meadow community. There was a greater production response to the N and N+P amendments in the dry meadow relative to the wet meadow, despite equivalent functional responses of the dominant species of both communities. The greater production response in the dry meadow was in part related to changes in community structure, with an increase in the proportion of graminoid and forb biomass, and a decrease in the proportion of community biomass made up by the dominant sedge Kobresia myosuroides. Species richness increased significantly in response to the N+P treatment in the dry meadow. Graminoid biomass increased significantly in the wet meadow N and N+P plots, while forb biomass decreased significantly, suggesting a competitive interaction for light. Thus, the difference in community response to nutrient amendments was not the result of functional changes at the leaf level of the dominant species, but rather was related to changes in community structure in the dry meadow, and to a shift from a nutrient to a light limitation of production in the wet meadow.

Longitudinal investigation of wandering behavior in department of veterans affairs nursing home care units

Objectives To explore the extent of and factors associated with male residents who change wandering status post nursing home admission. Design Longitudinal design with secondary data analyses. Admissions over a 4-year period were examined using repeat assessments with the Minimum Data Set (MDS) to formulate a model understanding the development of wandering behavior. Setting One hundred thirty-four Veterans Administration (VA) nursing homes throughout the United States. Participants: Included 6673 residents admitted to VA nursing homes between October 2000 and October 2004. Measurements MDS variables (cognitive impairment, mood, behavior problems, activities of daily living and wandering) included ratings recorded at residents’ admission to the nursing home and a minimum of two other time points at quarterly intervals. Results The majority (86%) of the sample were classified as non wanderers at admission and most of these (94%) remained non wanderers until discharge or the end of the study. Fifty one per cent of the wanderers changed status to non wanderers with 6% of these residents fluctuating in status more than two times. Admission variables associated with an increased risk of changing status from non-wandering to wandering included older age, greater cognitive impairment, more socially inappropriate behavior, resisting care, easier distractibility, and needing less help with personal hygiene. Requiring assistance with locomotion and having three or more medical comorbidities were associated with a decreased chance of changing from non-wandering to wandering status. Conclusion A resident’s change from non-wandering to wandering status may reflect an undetected medical event that affects cognition, but spares mobility.

Regulating for Sustainability : Property Issues

All Australian governments recognize the need to ensure that land and natural resources are used sustainably. In this context, ‘resources’ includes natural resources found on land such as trees and other vegetation, fauna, soil and minerals, and cultural resources found on land such as archaeological sites and artefacts. Regulators use a wide range of techniques to promote sustainability. To achieve their objectives, they may, for example, create economic incentives through bounties, grants and subsidies, encourage the development of self-regulatory codes, or enter into agreements with landowners specifying how the land is to be managed. A common way of regulating is by making administrative orders, determinations or decisions under powers given to regulators by Acts of Parliament (statutes) or by regulations (delegated legislation). Generally the legislation provides for specified rights or duties, and authorises a regulator to make an order or decision to apply the legislative provisions to particular land or cases. For example, legislation might empower a regulator to make an order that requires the owner of a contaminated site to remediate it. When the regulator exercises the power by making an order in relation to particular land, the owner is placed under a statutory duty to remediate. When regulators exercise their statutory powers to manage the use of private land or natural or cultural resources on private land, property law issues can arise. The owner of land has a private property right that the law will enforce against anybody else who interferes with the enjoyment of the right, without legal authority to do so. The law dealing with the enforcement of private property rights forms part of private law. This report focuses on the relationship between the law of private property and the regulation of land and resources by legislation and by administrative decisions made under powers given by legislation (statutory powers).

Land Contracts in Queensland

This book provides a systematic and comprehensive account of the law relating to buyers and sellers of freehold land in Queensland. It analyses relevant clauses of the standard contracts in common use and the plethora of court decisions relating to the area.Its contents comprise a full transactional analysis of a conveyance from negotiation by a real estate agent through to completion. In addition, it contains chapters on special conditions, remedies, GST and stamp duty provisions.

The Law of Real Property Mortgages

This book examines the principles and practice of real estate mortgages in an easily accessible text referenced to all the Australian States. It specifically deals with the major theoretical and practical aspects of the land mortgage including vitiating factors in formation, mortgagees powers and duties and mortgagors’ rights both statutory and other, assignment, insurance and discharge. As a successor to Mortgages Law in Australia, this book adopts an exclusive focus on real estate mortgages in Australia and provides a thorough account of the law through analysis of the plethora of court decisions and statutory provisions in this area. Duncan and Dixon analyse the substance of the mortgage transaction from creation through to rights of enforcement. This analysis includes detailed consideration of the rights and obligations of both mortgagors and mortgagees covering topics such as priorities and tacking, insurance, variation and assignment, rights of discharge, entry into possession, foreclosure and power of sale. In addition, the book contains a separate chapter on factors that may affect the validity and enforcement of a mortgage together with separate consideration of a mortgagee’s right to enforce a guarantee provided on behalf of a mortgagor and the rights and liabilities associated with a receivership regime initiated by a mortgagee. Written for the national market, the book is one of the few substantial works on this subject for practitioners throughout Australia. It is a very accessible text which enables readers to decide whether or not they have a problem and provides primary guidance to its solution. The book has been deliberately, heavily referenced to incorporate statutory references from across Australia and contains extensive case analysis in order to satisfy both these objectives.

Land Contracts in Queensland [3rd ed]

Land Contracts in Queensland provides a thorough, user-friendly account of the law relating to buying and selling freehold land in Queensland. The authors analyse the substance of the transaction through the medium of standard contracts, and draw on a comprehensive range of court decisions relating to the area. There are chapters covering the role of the real estate agent, the disclosure regime for sellers and agents, the inclusion of special conditions, and stamp duty and GST implications.

The CDKN2A (p16) gene and human cancer

CDKN2A, the gene encoding the cell-cycle inhibitor p16CDKN2A, was first identified in 1994. Since then, somatic mutations have been observed in many cancers and germline alterations have been found in kindreds with familial atypical multiple mole/melanoma (FAMMM), also known as atypical mole syndrome. In this review we tabulate the known mutations in this gene and discuss specific aspects, particularly with respect to germline mutations and cancer predisposition.

CDKN2A mutation in a non-FAMMM kindred with cancers at multiple sites results in a functionally abnormal protein

The CDKN2A gene encodes p16 (CDKN2A), a cell-cycle inhibitor protein which prevents inappropriate cell cycling and, hence, proliferation. Germ-line mutations in CDKN2A predispose to the familial atypical multiple-mole melanoma (FAMMM) syndrome but also have been seen in rare families in which only 1 or 2 individuals are affected by cutaneous malignant melanoma (CMM). We therefore sequenced exons 1alpha and 2 of CDKN2A using lymphocyte DNA isolated from index cases from 67 families with cancers at multiple sites, where the patterns of cancer did not resemble those attributable to known genes such as hMLH1, hMLH2, BRCA1, BRCA2, TP53 or other cancer susceptibility genes. We found one mutation, a mis-sense mutation resulting in a methionine to isoleucine change at codon 53 (M531) of exon 2. The individual tested had developed 2 CMMs but had no dysplastic nevi and lacked a family history of dysplastic nevi or CMM. Other family members had been diagnosed with oral cancer (2 persons), bladder cancer (1 person) and possibly gall-bladder cancer. While this mutation has been reported in Australian and North American melanoma kindreds, we did not observe it in 618 chromosomes from Scottish and Canadian controls. Functional studies revealed that the CDKN2A variant carrying the M531 change was unable to bind effectively to CDK4, showing that this mutation is of pathological significance. Our results have confirmed that CDKN2A mutations are not limited to FAMMM kindreds but also demonstrate that multi-site cancer families without melanoma are very unlikely to contain CDKN2A mutations.

Haplotype analysis of two recurrent CDKN2A mutations in 10 melanoma families : evidence for common founders and independent mutations

Germ-line mutations in CDKN2A have been shown to predispose to cutaneous malignant melanoma. We have identified 2 new melanoma kindreds which carry a duplication of a 24bp repeat present in the 5' region of CDKN2A previously identified in melanoma families from Australia and the United States. This mutation has now been reported in 5 melanoma families from 3 continents: Europe, North America, and Australasia. The M53I mutation in exon 2 of CDKN2A has also been documented in 5 melanoma families from Australia and North America. The aim of this study was to determine whether the occurrence of the mutations in these families from geographically diverse populations represented mutation hotspots within CDKN2A or were due to common ancestors. Haplotypes of 11 microsatellite markers flanking CDKN2A were constructed in 5 families carrying the M53I mutation and 5 families carrying the 24bp duplication. There were some differences in the segregating haplotypes due primarily to recombinations and mutations within the short tandem-repeat markers; however, the data provide evidence to indicate that there were at least 3 independent 24bp duplication events and possibly only 1 original M53I mutation. This is the first study to date which indicates common founders in melanoma families from different continents.