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.

Misleading and deceptive conduct at an auction

An unusual factual situation recently arose for consideration by Lindsay J of the Federal Circuit Court. In Carter v Delgrove Holdings Pty Ltd [2013] FCCA 783, an application was brought by the owners of a residential property in Western Australia, the Carters, for damages for misleading or deceptive conduct under s 18 of the Australian Consumer Law (“ACL”) and for damages for breach of contract arising from an auction of their house. Delgrove Holdings Pty Ltd was a trustee of a family trust with Mr Ilahi being a director and shareholder of the company as well as a beneficiary under the family trust. It was established that Delgrove Holdings Pty Ltd engaged in the business of property acquisition for the purposes of generating rental income...

The use of headings and marginal notes in interpreting Queensland legislation : appearances can be deceptive

This article considers the rules relating to the use of marginal notes and headings in interpreting Queensland legislation, both in its original form and in reprinted legislation. It also examines the application of the principles of construction as to the use of section headings in the interpretation of provisions of the Criminal Code 1899 (Qld). Finally, it suggests that amendments should be made to the Acts Interpretation Act 1954 (Qld) in order to clarify the position as to the status of marginal notes and headings in statutory interpretation.

Competition for pollination by the lesser short-tailed bat and its influence on the flowering phenology of some New Zealand endemics

The lesser short-tailed bat, Mystacina tuberculata, is the only native mammalian pollinator in New Zealand and the only fully temperate bat pollinator in the world. Although this unique status as a pollinator is well recognized, its reduced abundance and cryptic behaviour means little research has been undertaken to assess the contribution of the lesser short-tailed bat (hereafter ‘short-tailed bat’) to pollination in New Zealand. Accordingly, pollination by short-tailed bats has been assumed to be comparatively inconsequential, and the potential impacts of the bat's widespread extirpation have been overlooked. The recent discovery that the short-tailed bat is a major pollinator for at least some of the plants it visits emphasizes the importance of exploring this species' role as a pollinator. Here, our aim was to provide an assessment of the competition for short-tailed bat pollination through study of the temporal variation of flowering. Bats were sampled for pollen, and phenology surveys were conducted simultaneously. We found that the amount and type of pollen carried by the bats varied temporally, with one pollen type dominating samples at any given time. The two plants most consistently observed in the pollen samples flowered sequentially with little temporal overlap, suggesting that their flowering phenology may be adapted to minimize competition for the pollination services of the short-tailed bat.

Crossing the language and cultural divide : the challenges of educating Asian law students in a globalising world

In 2004, there were sweeping, radical changes made to the underlying legal framework regulating life in China. This reflected such things as the incorporation of basic international human rights standards into domestic law - not only in China but in countries worldwide which highlights the increasingly global nature of many important legal issues. China is not immune from this development of cross pollination of legal processes. This has led to an increase in the internationalisation of legal education and the rapid rise in the number of overseas students who undertake at least part of their university studies in a foreign country. Academics need to develop cross-cultural sensitivity in teaching these overseas students; there are important reasons why the educative process needs to meet the different set of needs presented by international students who come to study in Australia. This teaching note sets out the experiences of two particular situations, the teaching of Business Law to Asian students and an innovative Australian postgraduate program taught in Mandarin.

Individual differences in the visual control of intercepting a penalty kick in association football

Recent perceptual-motor studies have revealed variations in learning trajectories of novices. Despite such observation, relatively little attention has been paid to studying individual differences in experienced performers’ perceptual-motor behaviors. The present study examined individual differences for a visual anticipation task. Experienced association football goalkeepers attempted to intercept penalty kicks taken with deceptive and non-deceptive kicking actions. Data revealed that differences in the action capabilities of goalkeepers affected the timing and accuracy of movement response behaviors. Faster goalkeepers tended to wait until later before initiating movement in comparison with slower goalkeepers. The study of affordances in sport environments offers a theoretical framework with which to overcome some of the reported methodological limitations in the visual anticipation literature.

Section 64 of the Property Law Act 1974 (Qld) and the reluctant buyer

The decision of the Court of Appeal in Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200 arose from unusual circumstances associated with the flood in Brisbane earlier this year. Maris Dunworth (‘the buyer’) agreed to purchase a ground floor residential apartment located beside the Brisbane River at Tennyson from Mirvac Queensland Pty Ltd (‘Mirvac’). The original date for completion was 12 May 2009. In earlier proceedings, the buyer had alleged that she had been induced to purchase the apartment by false, misleading and deceptive representations. This claim was dismissed and an order for specific performance was made with a new completion date of 8 February 2011...

The rest flies down the wind : complexities of late style in the work of Christina Stead

Examining the late style of a writer is like skirting around quicksand. End-of-career reflection can subvert long standing critical accounts; revisionist publishing histories or newly minted archival work can do likewise. And, as Nancy J. Troy suggests, an artist’s last thoughts are rarely planned as such (15). In the case of Christina Stead any consideration of late style is made more difficult because, chronologically speaking, her ‘late’ works were written some 20 years before her death in 1983. Thus chronology can be deceptive, as Nicholas Delbanco points out in Lastingness: The Art of Old Age. Stead’s last novel, I’m Dying Laughing The Humourist, was completed, at least in rough draft form in 1966, when Stead was 64, but friends and readers suggested many changes. The book was published posthumously in 1986. Stead’s work is receiving increasing critical attention so a discussion of her ‘late style’ is important, particularly given that her fiction seems to refuse so many attempts at category-making. This perspective reveals two interesting aspects of her late work: first her consistent engagement with the problems of age for women, and in particular women writers, and second, the consequence of a life-long attention to the representation of dialogic sound in her novels, a preoccupation that results in what can be termed an aural signature. My discussion refers to Edward Said’s and Nicholas Delbanco’s ideas about late style by way of a focus on selective biographical issues and Stead’s engagement with radical politics before moving to an examination of what can be called an aural signature in several novels. Her fiction demonstrates one of the agreed markers of late style: she was constantly looking forward and looking back through innovation in form and content.

Sale of Businesses in Australia (2nd ed.)

The greater volume of businesses sold in Australia each year are small to medium enterprises. The administration of business contracts presents far different challenges than, for example, contracts for the sale of goods alone or contracts for the sale of land. The subject matter comprises both real and personal, and tangible and intangible property. Other considerations that do not affect those other commonplace contracts include dealing with employees who are both remaining and departing, taking account of restraints of trade, and the phenomena of the passing of property being different in respect of different forms of property being transferred in the same contract. In keeping with the format of the previous edition, the book is written with the busy practitioner in mind. It deals with the formation of business contracts, all aspects of disclosure both contractual and statutory, the role of agents, and detailed consideration of the different types of subject matter of small business contracts including, the lease of the premises, intellectual property, goodwill, licences, book debts and plant and equipment. It has up to date treatment of income tax implications of the sale and the impact of the latest Commonwealth legislation on dealing with employees of a business on sale. Consistent with the last edition, the book has chapters on time of the essence and completion, personal securities, restraint of trade clauses, special conditions and remedies for breach by both parties and misleading or deceptive conduct by the seller. In relation to personal securities, whilst the current State and Territory based law on Bills of Sale and other Chattel Securities has been the subject of commentary, the proposed national reform agenda has also been commented upon although that legislation is not due until May 2010 at the earliest

Functional monoecy due to delayed anther dehiscence : a novel mechanism in pseuduvaria mulgraveana (annonaceae)

Unlike most genera in the early-divergent angiosperm family Annonaceae, Pseuduvaria exhibits a diversity of floral sex expression. Most species are structurally andromonoecious (or possibly androdioecious), although the hermaphroditic flowers have been inferred to be functionally pistillate, with sterile staminodes. Pseuduvaria presents an ideal model for investigating the evolution of floral sex in early-divergent angiosperms, although detailed empirical studies are currently lacking. The phenology and pollination ecology of the Australian endemic species Pseuduvaria mulgraveana are studied in detail, including evaluations of floral scent chemistry, pollen viability, and floral visitors. Results showed that the flowers are pollinated by small diurnal nitidulid beetles and are protogynous. Pollen from both hermaphroditic and staminate flowers are shown to be equally viable. The structurally hermaphroditic flowers are nevertheless functionally pistillate as anther dehiscence is delayed until after petal abscission and hence after the departure of pollinators. This mechanism to achieve functional unisexuality of flowers has not previously been reported in angiosperms. It is known that protogyny is widespread amongst early-divergent angiosperms, including the Annonaceae, and is effective in preventing autogamy. Delayed anther dehiscence represents a further elaboration of this, and is effective in preventing geitonogamy since very few sexually mature flowers occur simultaneously in an individual. We highlight the necessity for field-based empirical interpretations of functional floral sex expression prior to evaluations of evolutionary processes.

Eye on the Street? Sensory Experience in Public Places

Research on the sensual experience of place is not a mainstream topic in the architectural debate; it is more common in other disciplines like landscape architecture or interior design. The curriculum sometime offers opportunities of cross-pollination between disciplines; students in architecture courses might be exposed to different theories of space more typical to other fields. This paper explore the teaching/research nexus within QUT Master of Architecture research stream; the focus of the discussion is students’ experimentation with people’s experience and navigation of the public space. Theories of placemaking in relation to urban design are first introduced; then the teaching/research nexus is discussed; finally students’ experience in approaching phenomenological research within the Master of Architecture are presented.

Applying maintenance strategies from the space and satellite sector to the upstream oil and gas industry : a research agenda

Practitioners from both the upstream oil and gas industry and the space and satellite sector have repeatedly noted several striking similarities between the two industries over the years, which have in turn resulted in many direct comparisons in the media and industry press. The two sectors have previously worked together and shared ideas in ways that have yielded some important breakthroughs, but relatively little sharing or cross-pollination has occurred in the area of asset maintenance. This is somewhat surprising in light of the fact that here, too, the sectors have much in common. This paper accordingly puts forward the viewpoint that the upstream oil and gas industry could potentially make significant improvements in asset maintenance—specifically, with regard to offshore platforms and remote pipelines—by selectively applying some aspects of the maintenance strategies and philosophies that have been learned in the space and satellite sector. The paper then offers a research agenda toward accelerating the rate of learning and sharing between the two industries in this domain, and concludes with policy recommendations that could facilitate this kind of cross-industry learning.

Gelatine : making coworking places gel for better collaboration and social learning

Public libraries and coworking spaces seek for means to facilitate peer collaboration, peer inspiration and cross-pollination of skills and creativity. However, social learning, inspiration and collaboration between coworkers do not come naturally. In particular in (semi-) public spaces, the behavioural norm among unacquainted coworkers is to work in individual silos without taking advantage of social learning or collaboration opportunities. This paper presents results from a pilot study of ‘Gelatine’ – a system that facilitates shared encounters between coworkers by allowing them to digitally ‘check in’ at a work space. Gelatine displays skills, areas of interest, and needs of currently present coworkers on a public screen. The results indicate that the system amplifies users’ sense of place and awareness of other coworkers, and serves as an interface for social learning through exploratory, opportunistic and serendipitous inspirations, as well as through helping users identify like-minded peers for follow-up face-to-face encounters. We discuss how Gelatine is perceived by users with different pre-entry motivations, and discuss users’ challenges as well as non-use of the system.

Forrest v ASIC : a ‘perfect storm’

The policy objectives of the continuous disclosure regime augmented by the misleading or deceptive conduct provisions in the Corporations Act are to enhance the integrity and efficiency of Australian capital markets by ensuring equality of opportunity for all investors through public access to accurate and material company information to enable them to make well-informed investment decisions. This article argues that there were failures by the regulators in the performance of their roles to protect the interests of investors in Forrest v ASIC; FMG v ASIC (2012) 247 CLR 486: ASX failed to enforce timely compliance with the continuous disclosure regime and ensure that the market was properly informed by seeking immediate clarification from FMG as to the agreed fixed price and/or seeking production of a copy of the CREC agreement; and ASIC failed to succeed in the High Court because of the way it pleaded its case. The article also examines the reasoning of the High Court in Forrest v ASIC and whether it might have changed previous understandings of the Campomar test for determining whether representations directed to the public generally are misleading.

Toward understanding social engineering

There is no doubt that social engineering plays a vital role in compromising most security defenses, and in attacks on people, organizations, companies, or even governments. It is the art of deceiving and tricking people to reveal critical information or to perform an action that benefits the attacker in some way. Fraudulent and deceptive people have been using social engineering traps and tactics using information technology such as e-mails, social networks, web sites, and applications to trick victims into obeying them, accepting threats, and falling victim to various crimes and attacks such as phishing, sexual abuse, financial abuse, identity theft, impersonation, physical crime, and many other forms of attack. Although organizations, researchers, practitioners, and lawyers recognize the severe risk of social engineering-based threats, there is a severe lack of understanding and controlling of such threats. One side of the problem is perhaps the unclear concept of social engineering as well as the complexity of understand human behaviors in behaving toward, approaching, accepting, and failing to recognize threats or the deception behind them. The aim of this paper is to explain the definition of social engineering based on the related theories of the many related disciplines such as psychology, sociology, information technology, marketing, and behaviourism. We hope, by this work, to help researchers, practitioners, lawyers, and other decision makers to get a fuller picture of social engineering and, therefore, to open new directions of collaboration toward detecting and controlling it.