Corporations Act 2001 s 459G : application to set aside statutory demand

The application before the court in Millerview Constructions Pty Ltd v Palmer Plumbing Pty Ltd [2008] QSC 005 raised a significant question regarding the appropriate construction of s 459G of the Corporations Act 2001 (Cth) (the Act). The decision emphasises the importance of ensuring that any application to set aside a statutory demand must be served in a timely way on the creditor at the creditor’s address for service as stated in the statutory demand, or in strict compliance with another manner authorised by the Act.

Application to set aside statutory demand

In C & E Pty Ltd v Corrigan [2006] QCA 47, the Queensland Court of Appeal considered whether r103 of the Uniform Civil Procedure Rules applied to the service of an application to set aside a statutory demand under s459G of the Corporations Act 2001 (Cth). The decision provides analysis and clarification of an issue that has clearly been one of some uncertainty.

Statutory protections from forfeiture of a leasehold estate following Apriaden Pty Ltd v Seacrest Pty Ltd

In Apriaden Pty Ltd v Seacrest Pty Ltd the Victorian Court of Appeal decided that termination of a lease under common law contractual principles following repudiation is an alternative to reliance upon an express forfeiture provision in the lease and that it is outside the sphere of statutory protections given against the enforcing of a forfeiture. The balance of authority supports the first aspect of the decision. This article focuses on the second aspect of it, which is a significant development in the law of leases. The article considers the implications of this decision for essential terms of clauses in leases, argues that common law termination for breach of essential terms should be subject to compliance with these statutory requirements and, as an alternative, suggests a way forward through appropriate law reform, considering whether the recent Victorian reform goes far enough.

Debate on statutory control of the surveying profession in Queensland : 1907 to 1975

This article was written in 1997. After a 2009 review the content was left mostly unchanged - apart from this re-written abstract, restructured headings and a table of contents. The article deals directly with professional registration of surveyors; but it also relates to government procurement of professional services. The issues include public service and professional ethics; setting of professional fees; quality assurance; official corruption; and professional recruitment, education and training. Debate on the Land Surveyors Act 1908 (Qld) and its amendments to 1916 occurred at a time when industrial unrest of the 1890s and common market principles of the new Commonwealth were fresh in peoples’ minds. Industrial issues led to a constitutional crisis in the Queensland’s then bicameral legislature and frustrated a first attempt to pass a Surveyors Bill in 1907. The Bill was re-introduced in 1908 after fresh elections and Kidston’s return as state premier. Co-ordinated immigration and land settlement polices of the colonies were discontinued when the Commonwealth gained power over immigration in 1901. Concerns shifted to protecting jobs from foreign competition. Debate on 1974 amendments to the Act reflected concerns about skill shortages and professional accreditation. However, in times of economic downturn, a so-called ‘chronic shortage of surveyors’ could rapidly degenerate into oversupply and unemployment. Theorists championed a naïve ‘capture theory’ where the professions captured governments to create legislative barriers to entry to the professions. Supposedly, this allowed rent-seeking and monopoly profits through lack of competition. However, historical evidence suggests that governments have been capable of capturing and exploiting surveyors. More enlightened institutional arrangements are needed if the community is to receive benefits commensurate with sizable co-investments of public and private resources in developing human capital.

Advance Directives and the Promotion of Autonomy: a Comparative Australian Statutory Analysis

Legislation regulating advance directives exists in six Australian jurisdictions. In all of these jurisdictions, legislation was enacted to enshrine the common law right of a competent adult to refuse treatment in advance, even if that treatment was required to sustain life. It was thought that enshrining the common law would also enshrine the principle of autonomy on which the common law was based. This article explores whether this is the case by examining the legislative restrictions that are imposed on a competent adult who wishes to complete an advance directive refusing treatment. The article reviews the legislation in all Australian jurisdictions and concludes that, while many of the legislative restrictions can be justified, many cannot as they effectively erode rather than promote the right of a competent adult to refuse treatment.

Beware statutory disclosure obligations

Great care is needed to ensure strict compliance with statutory disclosure obligations in conveyancing. The types of issues that may arise are well illustrated by the facts before the court in APM Property 3 Pty Ltd v Blondeau [2009] QSC 326, decision of Mullins J.

Cranes, claims and a statutory right of user

In larger developments there is potential for construction cranes to encroach into the airspace of neighbouring properties. To resolve issues of this nature, a statutory right of user may be sought under s 180 of the Property Law Act 1974 (Qld). Section 180 allows the court to impose a statutory right of user on servient land where it is reasonably necessary in the interests of effective use in any reasonable manner of the dominant land. Such an order will not be made unless the court is satisfied that it is consistent with public interest, the owner of the servient land can be adequately recompensed for any loss or disadvantage which may be suffered from the imposition and the owner of the servient land has refused unreasonably to agree to accept the imposition of that obligation. In applying the statutory provision, a key practical concern for legal advisers will be the basis for assessment of compensation. A recent decision of the Queensland Supreme Court (Douglas J) provides guidance concerning matters relevant to this assessment. The decision is Lang Parade Pty Ltd v Peluso [2005] QSC 112.

Statutory right of user imposed for landlocked land

The decision of McMurdo J in Pacific Coast Investments Pty Ltd v Cowlishaw [2005] QSC 259 concerned an application under s 180 of the Property Law Act 1974 (Qld) for a statutory right of user.

Statutory fraud or not?

The possibility of fraud lurks easily in the context of a mortgage transaction (as recently exemplified by the decision of the Queensland Court of Appeal in Young v Hoger [2001] QCA 461). A relatively novel issue, involving an allegation of fraudulent behaviour, arose for consideration by Justice Wilson in Unic v Quartermain Holdings Pty Ltd [2001] QSC 403

Waiver of statutory requirements : Property Agents and Motor Dealers Act 2000 (Qld)

One of the many difficulties associated with the drafting of the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’) is the operation of s 365. If the requirements imposed by this section concerning the return of the executed contract are not complied with, the buyer and the seller will not be bound by the relevant contract and the cooling-off period will not commence. In these circumstances, it is clear that a buyer’s offer may be withdrawn. However, the drafting of the Act creates a difficulty in that the ability of the seller to withdraw from the transaction prior to the parties being bound by the contract is not expressly provided by s 365. On one view, if the buyer is able to withdraw an offer at any time before receiving the prescribed contract documentation the seller also should not be bound by the contract until this time, notwithstanding that the seller may have been bound at common law. However, an alternative analysis is that the legislative omission to provide the seller with a right of withdrawal may be deliberate given the statutory focus on buyer protection. If this analysis were correct the seller would be denied the right to withdraw from the transaction after the contract was formed at common law (that is, after the seller had signed and the fact of signing had been communicated to the buyer).

Legislating for sustainability: a framework for managing statutory rights obligations and restrictions affecting private land

The ad hoc growth of administrative controls on land use has produced an information management problem. Land registries face growing demands to record on the Torrens register particulars of rights, obligations and restrictions created under public law statutes, in order to reduce information costs, promote compliance and inform planning. As sustainable management of land and natural resources will require more legislative regulation, this paper proposes a framework of principles for the more coherent and consistent management of public law controls on private land use.