Sale of property gifted under a will by an attorney acting under an enduring power of attorney : does the gift adeem and what is the attorney's duty?

The authors examine Moylan v Rickard and how the case illustrates the effectiveness of the Powers of Attorney Act 1998 (Qld) to provide remedies and other possible avenues of redress

Regulating the cost of small loans : overdue or overkill?

Small-amount short-term lending began in 1994 in response to the initial exemption of such loans from consumer credit regulation. Growing demand for such loans now produces industry turnover of approximately $800 million each year. Regulators recognised early the need for consumer protection due to the vulnerability of borrowers and the emergence of various predatory practices. This led to reforms designed to regulate these loans, prevent particular misconduct and provide remedies against injustice. Some were enacted as part of the National Consumer Credit Protection Act 2009 (Cth), which also imposed licensing and responsible lending requirements on lenders and increased consumer access to remedies. The Government has now introduced the Consumer Credit and Corporations Amendment (Enhancements) Bill 2011 which limits the price that can be charged for credit and restricts access to small loans. This article examines the extensive reforms which have taken place in this sector, and compares these regulatory approaches with the “bright line approach” of the Enhancements Bill. The article argues that the repercussions of this step will require careful monitoring to ensure that further harm is not suffered by those least able to bear it, and that the government will also need to facilitate other, more sustainable, solutions to the problem that small loans are currently used to solve. After we wrote this article, the Report of the Parliamentary Joint Committee on Corporations and Financial Services and the Report of the Senate Economics Legislation Committee on the Enhancements Bill were released. These are referred to in a postscript.

Unfair terms in residential land contracts : will the Australian consumer law improve a buyer’s bargaining position?

The prohibition on unfair contract terms in standard form consumer contracts has the potential to significantly impact on the terms of contracts for the sale of land. The definition of ‘consumer contract’ includes contracts for the sale or grant of an interest in land to an individual wholly or predominantly for personal or domestic use. Therefore, a contract for the purchase of a residence for personal occupation by the buyer, as opposed to a purchase for investment purposes, will be a consumer contract potentially attracting the application of the unfair terms provisions. Significant consumer protection mechanisms already exist in most state jurisdictions requiring disclosure of relevant matters to the buyer and providing remedies for the provision of misleading conduct. Minimal evidence of unfair terms in land contract was presented to the Productivity Commission Inquiry into the Australian Consumer Policy Framework raising the question as to whether there is an identified problem of unfair terms in real estate contracts and if so, whether the same economic and ethical rationales justify regulatory intervention. This article examines what effect if any the introduction of the unfair contract provisions will have on the enforcement of residential land contracts and the viability of previously accepted conditions if challenged as being “unfair terms”. The article concludes that despite the existence of several potentially unfair terms in some land contracts, the intervention of the rules of equity to overcome perceived hardship or unfairness to buyers from strict enforcement of terms means the unfair terms provisions are only likely to operate on terms untouched by those principles. In the authors’ view the scope for operation of the unfair terms provisions will be limited to terms untouched by the principles of equity and consumer protection legislation making it unlikely that there will be any significant realignment of the contractual obligations and rights of buyers and sellers of land.

Inquiries, empirical research and regulatory failure

The paper reveals that regulatory failure, often chronic, has characterised the regulatory environments of charities across time and locale. The analysis of the primary literature identifies common issues and suggested remedies pertaining to the regulatory failures of charities. These issues may well be appropriate for consideration by the commission and participants given their persistence in various inquiries for nearly four centuries. Such inquiries also considered other issues not directly referred to in this paper, to also include them would exponentially increase the already unwieldy size of this paper.

Editorial : promoting integrated development for smart and sustainable built environment

Purpose – This purpose of this paper is to introduce the new Smart and Sustainable Built Environment (SASBE) journal to readers by discussing the background and underlying principles of its establishment, the editorial visions, and the range of papers selected in this first issue. It will encourage readers and potential authors to consider the need for integrated approaches to sustainability problems, to take on emerging challenges in the built environment and to join the SASBE journal in finding and promoting optimum solutions. Design/methodology/approach – This paper explores the evolving nature of sustainability, the recent trends of sustainability endeavours in built environment and the current knowledge gaps. The need to bridge these gaps is then discussed in the context of suggested remedies and justifications. This leads to the development of a smart and sustainable built environment as a R&D philosophy for world researchers as part of their interactions with professional bodies and agencies such as CIB, UNEP and iiSBE, and the establishment of the SASBE journal. Findings – Sustainable development in the built environment requires holistic thinking and decision making and innovative solutions that enhance sustainability and result in mutually beneficial outcomes for all stakeholders. A dedicated forum, through the journal of SASBE, is much needed for the exploration, discussion, debate, and promotion of these integrated approaches. Originality/value – Through presenting an overview of the current issues and identifying gaps in the understanding and pursuit of sustainability in the built environment, this paper suggests potential areas for future research and practice as well as possible topics for authors to make new contributions.

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

A waste management system for small and medium enterprises engaged in office building retrofit projects

Waste management and minimisation is considered to be an important issue for achieving sustainability in the construction industry. Retrofit projects generate less waste than demolitions and new builds, but they possess unique features and require waste management approaches that are different to traditional new builds. With the increasing demand for more energy efficient and environmentally sustainable office spaces, the office building retrofit market is growing in capital cities around Australia with a high level of refurbishment needed for existing aging properties. Restricted site space and uncertain delivery process in these projects make it a major challenge to manage waste effectively. The labour-intensive nature of retrofit projects creates the need for the involvement of small and medium enterprises (SMEs) as subcontractors in on-site works. SMEs are familiar with on-site waste generation but are not as actively motivated and engaged in waste management activities as the stakeholders in other construction projects in the industry. SMEs’ responsibilities for waste management in office building retrofit projects need to be identified and adapted to the work delivery processes and the waste management system supported by project stakeholders. The existing literature provides an understanding of how to manage construction waste that is already generated and how to increase the waste recovery rate for office building retrofit projects. However, previous research has not developed theories or practical solutions that can guide project stakeholders to understand the specific waste generation process and effectively plan for and manage waste in ongoing project works. No appropriate method has been established for the potential role and capability of SMEs to manage and minimise waste from their subcontracting works. This research probes into the characteristics of office building retrofit project delivery with the aim to develop specific tools to manage waste and incorporate SMEs in this process in an appropriate and effective way. Based on an extensive literature review, the research firstly developed a questionnaire survey to identify the critical factors of on-site waste generation in office building retrofit projects. Semi-structured interviews were then utilised to validate the critical waste factors and establish the interrelationships between the factors. The interviews served another important function of identifying the current problems of waste management in the industry and the performance of SMEs in this area. Interviewees’ opinions on remedies to the problems were also collected. On the foundation of the findings from the questionnaire survey and semi-structured interviews, two waste planning and management strategies were identified for the dismantling phase and fit-out phase of office building retrofit projects, respectively. Two models were then established to organize SMEs’ waste management activities, including a work process-based integrated waste planning model for the dismantling phase and a system dynamics model for the fit-out phase. In order to apply the models in real practice, procedures were developed to guide SMEs’ work flow in on-site waste planning and management. In addition, a collaboration framework was established for SMEs and other project stakeholders for effective waste planning and management. Furthermore, an organisational engagement strategy was developed to improve SME waste management practices. Three case studies were conducted to validate and finalise the research deliverables. This research extends the current literature that mostly covers waste management plans in new build projects, by presenting the knowledge and understanding of addressing waste problems in retrofit projects. It provides practical tools and guidance for industry practitioners to effectively manage the waste generation processes in office building retrofit projects. It can also promote industry-level recognition of the role of SMEs and their performance in on-site waste management.

The International regulation of persons displaced by climate change

It is certain that there will be changes in environmental conditions across the globe as a result of climate change. Such changes will require the building of biological, human and infrastructure resilience. In some instances the building of such resilience will be insufficient to deal with extreme changes in environmental conditions and legal frameworks will be required to provide recognition and support for people dislocated because of environmental change. Such dislocation may occur internally within the country of original origin or externally into another State’s territory. International and national legal frameworks do not currently recognise or assist people displaced as a result of environmental factors including displacement occurring as a result of climate change. Legal frameworks developed to deal with this issue will need to consider the legal rights of those people displaced and the legal responsibilities of those countries required to respond to such displacement. The objective of this article is to identify the most suitable international institution to host a program addressing climate displacement. There are a number of areas of international law that are relevant to climate displacement, including refugee law, human rights law and international environmental law. These regimes, however, were not designed to protect people relocating as a result of environmental change. As such, while they indirectly may be of relevance to climate displacement, they currently do nothing to directly address this complex issue. In order to determine the most appropriate institution to address and regulate climate displacement, it is imperative to consider issues of governance. This paper seeks to examine this issue and determine whether it is preferable to place climate displacement programs into existing international legal frameworks or whether it is necessary to regulate this area in an entirely new institution specifically designed to deal with the complex and cross-cutting issues surrounding the topic. Commentators in this area have proposed three different regulatory models for addressing climate displacement. These models include: (a) Expand the definition of refugee under the Refugee Convention to encompass persons displaced by climate change; (b) Implement a new stand alone Climate Displacement Convention; and (c) Implement a Climate Displacement Protocol to the UNFCCC. This article will examine each of these proposed models against a number of criteria to determine the model that is most likely to address the needs and requirements of people displaced by climate change. It will also identify the model that is likely to be most politically acceptable and realistic for those countries likely to attract responsibilities by its implementation. In order to assess whether the rights and needs of the people to be displaced are to be met, theories of procedural, distributive and remedial justice will be used to consider the equity of the proposed schemes. In order to consider the most politically palatable and realistic scheme, reference will be made to previous state practice and compliance with existing obligations in the area. It is suggested that the criteria identified by this article should underpin any future climate displacement instrument.

Future of the Haze Agreement : is the glass half empty or half full?

"In 1997–98, the ASEAN (Association of Southeast Asian Nations) region suffered an unprecedented health and environmental catastrophe due to choking haze created by a massive forest !re in Indonesia. It is estimated that the total losses from the fire could be US$5–6 billion after taking into account the loss of trees and other natural resources as well as the long-term impact on human health. This unprecedented anthropogenic disaster not only created a severe health and environmental hazard but also raised a question mark about the credibility and effectiveness of the ASEAN regional grouping. Against this background, ASEAN took a number of regional initiatives to try and solve the problem and finally adopted a new treaty for regional cooperation to combat forest fire and haze in 2002. This paper assesses the future success of this agreement from the perspectives of the legal, institutional and geopolitical reality of the region. Since numerous studies have examined state responsibility for transboundary environmental harm under international law and its implications on the ASEAN haze problem, this article will not touch upon that general debate nor the remedies that are possibly available to victim states. Rather, it will focus on the ASEAN regional legal and institutional initiatives to combat the haze pollution and compare them with a similar European regional agreement. Regarding the following analysis, it is important to recognise the uncertainty arising from Indonesia’s status (presently a non-party to the Agreement). A primary indication of the future effectiveness of this agreement can be drawn from an analysis of the principles involved in this agreement, bearing in mind the inherent difficulty of enforcing norms in the international environmental legal system as a whole, and the geopolitical reality of the region."

Overstepping the fiduciary mark

The decision of Justice Boddice in The Public Trustee of Queensland (as Litigation Guardian for ADF) v Ban & Anor is the latest in a series of Supreme Court actions arising out of Ms Ban’s management of the affairs of her long-time elderly friend, ADF. Following on from an earlier decision in which it was determined that Ms Ban held her share of funds in a joint bank account with ADF on trust for him, this most recent case concerned a claim for an account of funds withdrawn from that account on the basis that as trustee Ms Ban owed fiduciary duties to ADF. The purpose of the accounting was to determine whether any withdrawals had been made in breach of trust, which would give rise to equitable remedies. The primary question for determination was therefore whether the withdrawals were applied for the benefit of ADF. Having regard to all the circumstances of the case, his Honour found that although some transactions were for ADF’s benefit, substantial withdrawals, (including a significant portion of a $700,000 transfer), were not applied for his benefit, and were therefore made in breach of fiduciary obligation, giving rise to equitable rights and remedies.

Subsidies of the Australian clean energy package

The Australian Clean Energy Package has been introduced to respond to the global challenge of climate change and reduce Australia’s greenhouse gas emissions. It includes legislation to establish an emissions trading scheme. In support of the entities that are liable under this Package, there are a number of assistance measures offered to alleviate the financial burden that the Package imposes. This paper considers whether these assistance measures are subsidies within the context of the law of the World Trade Organization. In order to do this, the rules of the Agreement on Subsidies and Countervailing Measures are examined. This examination enables an understanding of when a subsidy exists and in what circumstances those subsidies occasion the use of remedies under the law.

Equity and Trusts in Principle [3rd ed.]

Equity and Trusts : in Principle, 3rd edition is updated and revised throughout. It addresses the principles of equity and trusts and provides a clear analysis of this area.

Lexis Nexis Questions and Answers : Equity and Trusts [4th Ed.]

"LexisNexis Questions and Answers: Equity and Trusts provides students with a clear and systematic approach to successfully analysing and answering assessment questions on equity and trusts. Each chapter commences with a discussion of key principles and issues including a summary of relevant leading cases and legislation for effective revision. Examples of written questions with fact scenarios follow, each with a suggested answer plan, sample answer and comments on how the answer might be viewed by an examiner. Readers are provided with advice on common errors to avoid when answering questions and practical hints and tips on how to achieve higher marks. Features • Summary of key issues helps students revise key areas before attempting problem questions • Sample questions with model answers assist students with effective exam study preparation"--publisher website

The effects of the indoor environment of residential care homes on dementia suffers in Hong Kong : a critical incident technique approach

Dementia is an irreversible and incurable syndrome that leads to progressive impairment of cognitive functions and behavioural and psychological symptoms such as agitation, depression and psychosis. Appropriate environmental conditions can help delay its onset and progression, and indoor environmental (IE) factors have a major impact. However, there is no firm understanding of the full range of relevant IE factors and their impact levels. This paper describes a preliminary study to investigate the effects of IE on Hong Kong residential care homes (RCH) dementia residents. This involved six purposively selected focus groups, each comprising the main stakeholders of the dementia residents’ caregivers, RCH staff and/or registered nurses, and architects. Using the Critical Incident Technique, the main context and experiences of behavioural problems of dementia residents caused by IE were explored and the key causal RCH IE quality factors identified, together with the associated responses and stress levels involved. The findings indicate that the acoustic environment, lighting and thermal environment are the most important influencing factors. Many of the remedies provided by the focus groups are quite simple to carry out and are summarised in the form of recommendations to current RCHs providers and users. The knowledge acquired in this initial study will help enrich the knowledge of IE design for dementiaspecific residential facilities. It also provides some preliminary insights for healthcare policymakers and practitioners in the building design/facilities management and dementia-care sectors into the IE factors contributing to a more comfortable, healthy and sustainable RCH living environment in Hong Kong.