Getting more than the judgment debtor can give?

Prior to the decision of the High Court in Black v Garnock (2007) 230 CLR 438 it was an established principle in Queensland that a judgment creditor acting under an enforcement warrant could take no interest beyond what the judgment debtor could give. However, the decision of the High Court called this principle into question. This article examines the current position in the context of s 120 of the Land Title Act 1994 (Qld) , Queensland Titles Office practice and standard contractual provisions. This examination is further informed by the recent decision of Martin J in Secure Funding Pty Ltd v Doneley [2010] QSC 91.

An examination of the relationship between emotional intelligence, leadership style and perceived leadership outcomes in Australian educational institutions

In the field of leadership studies transformational leadership theory (e.g., Bass, 1985; Avolio, Bass, & Jung, 1995) has received much attention from researchers in recent years (Hughes, Ginnet, & Curphy, 2009; Hunt, 1999). Many previous studies have found that transformational leadership is related to positive outcomes such as the satisfaction, motivation and performance of followers in organisations (Judge & Piccolo, 2004; Lowe, Kroeck, & Sivasubramaniam, 1996), including in educational institutions (Chin, 2007; Leithwoood & Jantzi, 2005). Hence, it is important to explore constructs that may predict leadership style in order to identify potential transformational leaders in leadership assessment and selection procedures. Several researchers have proposed that emotional intelligence (EI) is one construct that may account for hitherto unexplained variance in transformational leadership (Mayer, 2001; Watkin, 2000). Different models of EI exist (e.g., Goleman, 1995, 2001; Bar-On, 1997; Mayer & Salovey, 1997) but momentum is growing for the Mayer and Salovey (1997) model to be considered the most useful (Ashkanasy & Daus, 2005; Daus & Ashkanasy, 2005). Studies in non-educational settings claim to have found that EI is a useful predictor of leadership style and leader effectiveness (Harms & Crede, 2010; Mills, 2009) but there is a paucity of studies which have examined the Mayer and Salovey (1997) model of EI in educational settings. Furthermore, other predictor variables have rarely been controlled in previous studies and only self-ratings of leadership behaviours, rather than multiple ratings, have usually been obtained. Therefore, more research is required in educational settings to answer the question: to what extent is the Mayer and Salovey (1997) model of EI a useful predictor of leadership style and leadership outcomes? This project, set in Australian educational institutions, was designed to move research in the field forward by: using valid and reliable instruments, controlling for other predictors, obtaining an adequately sized sample of real leaders as participants and obtaining multiple ratings of leadership behaviours. Other variables commonly used to predict leadership behaviours (personality factors and general mental ability) were assessed and controlled in the project. Additionally, integrity was included as another potential predictor of leadership behaviours as it has previously been found to be related to transformational leadership (Parry & Proctor-Thomson, 2002). Multiple ratings of leadership behaviours were obtained from each leader and their supervisors, peers and followers. The following valid and reliable psychological tests were used to operationalise the variables of interest: leadership styles and perceived leadership outcomes (Multifactor Leadership Questionnaire, Avolio et al., 1995), EI (Mayer–Salovey–Caruso Emotional Intelligence Test, Mayer, Salovey, & Caruso, 2002), personality factors (The Big Five Inventory, John, Donahue, & Kentle, 1991), general mental ability (Wonderlic Personnel Test-Quicktest, Wonderlic, 2003) and integrity (Integrity Express, Vangent, 2002). A Pilot Study (N = 25 leaders and 75 raters) made a preliminary examination of the relationship between the variables included in the project. Total EI, the experiential area, and the managing emotions and perceiving emotions branches of EI, were found to be related to transformational leadership which indicated that further research was warranted. In the Main Study, 144 leaders and 432 raters were recruited as participants to assess the discriminant validity of the instruments and examine the usefulness of EI as a predictor of leadership style and perceived leadership outcomes. Scores for each leadership scale across the four rating levels (leaders, supervisors, peers and followers) were aggregated with the exception of the management-by-exception active scale of transactional leadership which had an inadequate level of interrater agreement. In the descriptive and measurement component of the Main Study, the instruments were found to demonstrate adequate discriminant validity. The impact of role and gender on leadership style and EI were also examined, and females were found to be more transformational as leaders than males. Females also engaged in more contingent reward (transactional leadership) behaviours than males, whilst males engaged in more passive/avoidant leadership behaviours than females. In the inferential component of the Main Study, multiple regression procedures were used to examine the usefulness of EI as a predictor of leadership style and perceived leadership outcomes. None of the EI branches were found to be related to transformational leadership or the perceived leadership outcomes variables included in the study. Openness, emotional stability (the inverse of neuroticism) and general mental ability (inversely) each predicted a small amount of variance in transformational leadership. Passive/avoidant leadership was inversely predicted by the understanding emotions branch of EI. Overall, EI was not found to be a useful predictor of leadership style and leadership outcomes in the Main Study of this project. Implications for researchers and human resource practitioners are discussed.

'Attaching' warning statements by facsimile transmission

Section 366(1) of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMD’) provides that a relevant contract must have attached, as its first or top sheet, a statement in the approved form being a warning statement. Failure to comply with this statutory requirement entitles a purchaser to terminate the contract. The meaning to be attributed to the statutory reference to ‘attached’ will clearly be problematic where documentation is sent by way of facsimile transmission. This was the issue that arose for consideration by Newton DCJ in MNM Developments Pty Ltd v Gerrard [2005] QDC 10.

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.

Assignment of reversion on put option contained in a lease : what is the effect?

Justice Mullins of the Queensland Supreme Court recently considered the status of a put option contained in a registered lease in circumstances where there was an assignment of the reversion. The matter arose for determination in Denham Bros Ltd v W Freestone Leasing Pty Ltd [2002] QSC 307. The decision is of interest as a lease containing a put option, exercisable by a landlord, is perhaps less commonly encountered than a lease containing a call option, exercisable by a tenant.

'Attaching' warning statements by facsimile consumer protection prevails!

Section 366 of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) mandates that all contracts for the sale of residential property in Queensland (other than contracts formed on a sale by auction) have a warning statement ‘attached’ as the first or top sheet. Alternative judicial views have emerged concerning the possibility of attaching a warning statement to a contract sent by facsimile. In recognition of the consumer protection nature of the legislation, in MP Management (Aust) Pty Ltd v Churven [2002] QSC 320 Muir J favoured a restrictive view of the word ‘attached’ requiring physical joinder of the warning statement to the relevant contract. In contrast, in MNM Developments Pty Ltd v Gerrard [2005] QDC 10 Newton DCJ opined that the requirements of the PAMDA could be met where the warning statement preceded the contract of sale in a facsimile transmission sent in one continuous stream. Newton DCJ considered that this broader approach promoted commercial convenience. In an appeal from the decision of Newton DCJ, in MNM Developments Pty Ltd v Gerrard [2005] QCA 230 a majority of the Queensland Court of Appeal has held that the restrictive view propounded by Muir J is correct. Notwithstanding possible commercial inconvenience, it is not possible for a warning statement to be attached to a contract sent by facsimile.

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.

Beware the doctrine of election!

The operation of the doctrine of election, as it applies in a conveyancing context, was recently considered by the Queensland Court of Appeal (McMurdo P and White and Fryberg JJ) in Barooga Projects (Investments) Pty Ltd v Duncan [2004] QCA 149.

Black v Garnock : implications for Queensland conveyancing practice

What was previously established as a fundamental principle, that a judgment creditor may take no interest beyond what the judgment debtor could give, has now been called into question by the decision of the High Court in Black v Garnock [2007] HCA 31. This article examines the implications of the decision of the High Court for conveyancing practice in Queensland. The relevant facts of Black v Garnock [2007] HCA 31 may be briefly stated: The Garnocks and the Luffs, as purchasers, entered a contract to purchase a rural property from Mrs Smith with settlement due on 24 August 2005. On 23 August 2005, a creditor obtained a writ against Mrs Smith from the District Court of New South Wales. No caveat was lodged on behalf of the purchasers prior to settlement (there being no equivalent, in New South Wales, of the Queensland settlement notice mechanism).

Buyer's waiver of a special condition

A recent decision of the Queensland Supreme Court (McMurdo J) raises matters of interest for practitioners undertaking conveyancing. Woodward v Nagel [2003] QSC 100 was delivered on 11 April 2003.

Do we have a legally binding contract?

Legal advisers are often called upon to advise whether informal correspondence between clients may give rise to a binding contract. The decision of Mullins J in Teviot Downs Estate Pty Ltd v MTAA Superannuation Fund (Flagstone Creek and Spring Mountain Park) Property Pty Ltd [2003] QSC 403 provides general guidance as to matters that may be relevant when faced with this thorny issue.

The meaning of 'material prejudice'

As dictated by s 213 of the Body Corporate and Community Management Act 1997 (Qld), the seller of a proposed lot is required to provide the buyer with a disclosure statement before the contract is entered into. Where the seller subsequently becomes aware that information contained in the disclosure statement was inaccurate when the contract was entered into or the disclosure statement would not be accurate if now given as a disclosure statement, the seller must, within 14 days, give the buyer a further statement rectifying the inaccuracies in the disclosure statement. Provided the contract has not been settled, where a further statement varies the disclosure statement to such a degree that the buyer would be materially prejudiced if compelled to complete the contract, the buyer may cancel the contract by written notice given to the seller within 14 days, or a longer period as agreed between the parties, after the seller gives the buyer the further statement. The term ‘material prejudice’ was considered by Wilson J in Wilson v Mirvac Queensland Pty Ltd.