Seller compensated for loss caused through buyer’s misconduct

The decision of Roberts v Juniper [2012] QDC 140 relating to the obligation to rectify damage caused to property and pay mesne profits for use of a property occupied by a buyer under a contract of sale which was later terminated raises interesting points for consideration by property lawyers.

Adverse possession and Crown Leasehold in Queensland

The decision of Eckford v Stanbroke Pastoral Co Pty Ltd [2012] QSC 48 ,although a decision refusing summary judgement raises a very important question of the ability to claim adverse possession of a pastoral lease issued in 1956 under the Land Act 1962 (Queensland).Division 5 of Part 6 of the Land Title Act 1994 (Qld) which guarantees registered freehold title expressly deals with the right of adverse possession however, there is no such provision in the present Land Act 1994 unlike s 170 of the Crown Lands Act 1989(NSW) which expressly precludes claims for adverse possession of specified non freehold land. There is no mention of adverse possession in any version of the Queensland Land Acts and only s 6(4) of the Limitation of Actions Act 1974 makes it clear that “the right, title or interest of the Crown” in or to any land is not affected by any adverse possessor.It is against the background that the Court considered the right of an adverse possessor to a Crown lease.

The high price of hesitation where time of the essence

The decision of Lai v Soineva [2011] QSC 247 in relation to the operation of standard conditions in the Queensland REIQ contract highlights a very practical issue often overlooked in the heat of a transaction .The point is relatively simple. In this instance ,the case concerned the interpretation of the printed "Building and Pest Inspection Clause" but is of relevance to the printed "Finance Clause" in the same contract as the wording and principles are identical. It highlights the issue of knowing well what is in the standard contract and not making assumptions. The case also highlights the cost to a party of dithering in making an election in a time of the essence environment

Statutory right to rescind contract remained available to buyer subject to specific performance decree

The aftermath of the Queensland floods of January 2011 continues to be played out in the courts. The effect of the floods on such a large scale has awakened the use of some statutory provisions that have not previously been litigated .Section 64 of the Property Law Act 1974 (Qld) is such a section. A version of this provision appears as s 34 of the Sale of Land Act 1982 (Vic). Broadly speaking, these sections permit a buyer of a dwelling house which has been damaged or destroyed between contract and completion to rescind the contract and recover their deposit provided that the rescission notice is given prior to "the date of completion or possession". The Court of Appeal decision of Dunworth v Mirvac Queensland Pty Ltd [2011] QCA 200 appears to be the first litigation upon the application of the section since it came into force in 1975.

The legal effect of settlement statements

The decision of Carrapetta v. Rado [2012] NSWCA 202 raises a short but very practical point relating to the right to deliver a notice to complete or have otherwise called for completion where time is of the essence of the contract in circumstances where a settlement statement subsequently sent from the seller has overstated the amount owing under the contract. It was common ground , following the oft quoted High Court decisions of Neeta (Epping) Pty Ltd v Phillips(1974) 131 CLR 286 and Louinder v Leis (1982) 149 CLR 509 that a Notice to Complete which called for completion outside the terms of the contract would be invalid. These decisions also further confirm the long accepted principles that a seller who is not “ready willing and able” to perform all their obligations or who is otherwise in breach of contract at the time could not deliver a Notice to Complete (at[27]).The issue in this case did not so much concern the efficacy of the Notice to Complete at the time was delivered ,but the legal effect upon the Notice to Complete of the later delivery of a settlement statement for what the buyer considered to be performance beyond that required by the contract.

Compensation covenants for mining activities run with the land : a win for successive landowners

The Queensland Supreme Court case of Cape Flattery Silica Mines Pty Ltd v Hope Vale Aboriginal Shire Council [2012] QSC 381 provides guidance on the long-term ramifications of compensation agreements for mining activities. The central issue considered by the Court was whether compensation payments relate to land and run with the land pursuant to s 53(1) of the Property Law Act.

Caveats

This book examines the caveat from its inception to the present, exploring the practice in all the jurisdictions in Australia and New Zealand. Emphasis has been placed on providing numerous references to assist land law practitioners.

Issues in negotiating a Carbon Sequestration Agreement for a Biosequestration Offsets Project

Biosequestration of carbon in trees, forests and vegetation is a key method for offsetting greenhouse gas emissions. To facilitate it, the Commonwealth has introduced the Carbon Farming Initiative, a scheme whereby carbon credits can be earned for biosequestration offsets projects. The project proponent must acquire under state law a ‘carbon sequestration right’ which confers the benefit of the sequestered carbon on the land. Each State provides for an agreement associated with the carbon sequestration right between the landowner and the holder of the right (‘carbon sequestration agreement’). This article identifies some key risks and issues that must be considered in the drafting of a carbon sequestration agreement to support the successful operation of a biosequestration offsets project.

Living a managed community lifestyle : lessons from Queensland

Purpose - The paper aims to improve consumer awareness of the complexities of community living. It does this by clarifying how living in a managed community is different from a ‘traditional’ neighbourhood; and identifying matters that can become disputes Design/methodology/approach - The paper builds on research by other authors into strata scheme disputes by examining recent Queensland cases. Findings - Many disputes appear to result from a lack of understanding of the complexities of community living. Matters that should be able to be easily resolved are therefore escalated to formal disputes. Research limitations/implications - The paper considers law and cases from Queensland. The types of matters considered, however, are relevant for any managed community and therefore the research is relevant for all jurisdictions. The research will be of particular interest to jurisdictions looking to boost living density by increasing the development of managed communities. Practical implications - The research will assist in consumer transactions by providing guidance as to the matters to be considering prior to moving into a managed community. More informed decision making by prospective residents will lead to a decreased likelihood of disputes arising. Originality/value - The paper is an up-to-date consideration of the issues arising from community living. It highlights the benefits arising from increased consumer awareness of the complexities of community living and the potential for consumer education to reduce the number of disputes.

The consequences of not taking reasonable steps to obtain finance

In Hauff v Miller [2013] QCA 48 the Queensland Court of Appeal considered an issue that has not previously arisen at appellate level. The case concerned the interaction of the well-known subject to finance clause and other standard contractual provisions...

A matter of time

The Queensland Court of Appeal recently handed down its decision in Caprice Property Holdings Pty Ltd v McLeay [2013] QCA 120. The decision considers the operation of the standard REIQ contract for the sale of land as it impacts on the time for settlement and the respective obligations of the buyer and the seller. The decision highlights both practical and legal issues arising from a failure to render performance at the stipulated time...

The covenant for quiet enjoyment : a potential nuisance to lessors

Under Australian law, a tenant complaining of nuisance caused by another tenant traditionally had no recourse to the lessor unless the lessor actively participated in the nuisance. A recent Queensland Court of Appeal decision, Aussie Traveller Pty Ltd v Marklea Pty Ltd, has found that a lessor who fails to take steps to control a tenant's nuisance may be liable to other tenants for breach of the covenant of quiet enjoyment. This paper considers the recent decision in light of common law developments in Australia, England and the United States, including the American concept of constructive eviction.

Second Caveats and the Land Title Act 1994

This article analyses the key features of s129 of the Land Title Act 1994 with reference to pre-existing Queensland law, and relevant case law on comparable provisions in Australia and New Zealand. Its aim is to provide a practical guide on the circumstances in which the provision will apply, and the considerations likely to be weighted by the Court in determining whether to grant leave to lodge a second caveat.

"Improper" caveats and compensation - section 130 of the Land Title Act 1994

This article examines some questions of statutory interpretation as they apply to section 130 of the Land Title Act 1994 (Qld)