'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.

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.

Equitable mortgage by deposit of a Certificate of Title

In Theodore v Mistford Pty Ltd [2005] HCA 45, the High Court considered certain principles governing the creation of an equitable mortgage by the deposit of a title deed as first developed by the English courts of equity with respect to old system conveyancing. The decision will be of interest to Queensland practitioners as it concerned the application of these equitable principles to Torrens land regulated by the provisions of the Land Title Act 1994 (Qld) and, in particular, the operation of s 75 of the Land Title Act 1994 (Qld) which provides: (i) An equitable mortgage of a lot may be created by leaving a certificate of title with the mortgagee (ii) Subsection (1) does not affect the ways in which an equitable mortgage may be created.

Beware the second offer!

In conveyancing of all types, it is very common that a contract will only be formed after often lengthy negotiations which may involve a counter-offer or multiple counter-offers. At common law, the laws of contract that govern these arrangements are well known and well understood. However, the legislative overlay imposed by the requirements of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’) can create difficulties as illustrated by the result in Rice v Ray [2009] QDC 275.

Identity fraud and land registration systems : an Australian perspective

There is no doubt that fraud in relation to land transactions is a problem that resonates amongst land academics, practitioners, and stakeholders involved in conveyancing. As each land registration and conveyancing process increasingly moves towards a fully electronic environment, we need to make sure that we understand and guard against the frauds that can occur. What this paper does is examine the types of fraud that have occurred in paper-based conveyancing systems in Australia and considers how they might be undertaken in the National Electronic Conveyancing System (NECS) that is currently under development. Whilst no system can ever be infallible, it is suggested that by correctly imposing the responsibility for identity verification on the appropriate individual, the conveyancing system adopted can achieve the optimum level of fairness in terms of allocation of responsibility and loss. As we sit on the cusp of a new era of electronic conveyancing, the framework suggested here provides a model for minimising the risks of forged mortgages and appropriately allocating the loss. Importantly it also recognises that the electronic environment will see new opportunities for those with criminal intent to undermine the integrity of land transactions. An appreciation of this now, can see the appropriate measures put in place to minimise the risk.

Submission to discussion paper : Queensland retirement villages

This submission is directed to addressing Issue 4 only – Entering a village and closure – implications for residents; and one question only – What particular items do you consider should be particularly addressed as part of the disclosure requirements for prospective retirement village residents? The recommendations below are premised on the basis that information to enable informed choice needs to be clearly presented, easy to understand and, while legal advice and assistance remains essential for any form of ‘conveyancing��� process, should enable decision making by prospective residents independent of that legal advice.

Land fraud and inappropriate dealings in an electronic environment : An Australian and New Zealand perspective

The thesis presented in this paper is that the land fraud committed by Matthew Perrin in Queensland and inflicted upon Roger Mildenhall in Western Australia demonstrates the need for urgent procedural reform to the conveyancing process. Should this not occur, then calls to reform the substantive principles of the Torrens system will be heard throughout the jurisdictions that adopt title by registration, particularly in those places where immediate indefeasibility is still the norm. This paper closely examines the factual matrix behind both of these frauds, and asks what steps should have been taken to prevent them occurring. With 2012 bringing us Australian legislation embedding a national e-conveyancing system and a new Land Transfer Act for New Zealand we ask what legislative measures should be introduced to minimise the potential for such fraud. In undertaking this study, we reflect on whether the activities of Perrin and the criminals responsible for stealing Mildenhall's land would have succeeded under the present system for automated registration utilised in New Zealand.

Australasian Torrens automation, its integrity, and the three proof requirements

New Zealand and Australia are leading the world in terms of automated land registry systems. Landonline was introduced some ten years ago for New Zealand, and the Electronic Conveyancing National Law (ECNL) is to be released over the next few years in support of a national electronic conveyancing system to be used throughout Australia. With the assistance of three proof requirements, developed for this purpose, this article measures the integrity of both systems as against the old, manual Torrens system. The authors take the position that any introduced system should at least have the same level of integrity and safety as the originally conceived manual system. The authors argue both Landonline and ECNL, as presently set up, have less credibility than the manual system as it was designed to operate, leading to the possibility of increased fraud or misuse.

New sale and leasing requirements for owners of swimming pools and their application to strata schemes

This article considers the changes to the Swimming Pools Act 1992 (NSW)(Act) which established a State-wide online register of all private swimming pools in NSW requiring pool owners to register their pools by 19 November 2013. Amendments to the Act introduced changes to the conveyancing and residential tenancy regulations to require vendors and landlords to have a valid Compliance Certificate issued for their swimming pool before offering the property for sale or lease. This article provides a brief overview of the new sale and leasing requirements effective from 29 April 2014, focusing on its application to lot owners within strata and community title schemes and other owners of water front properties with pools on Crown Land Reserves.

Going through the obstruction, the Torrens System Assurance Fund and contemporary solutions : a tale weaved from a story of a nun, a romantic triangle and sibling corruption

Private title insurance has been the subject of much debate by law reform bodies and academics. This article adds a new dimension to the discussion by analysing its role against a recent scenario where a nun was betrayed by the actions of her brother, and compensation payable from the assurance fund, after much challenge by the registrar, amounted to in excess of $4 million.We ask whether the slow burning of title insurance into the psyche of Australian home purchasers will see state-based assurance fundings looking to minismise their role in the Torrens system. We also query how the rather more immediate electronic establishment of electronic conveyancing will alter the balance between the assurance fund, private title insurance and the increasing responsibilities on stakeholdes involved in conveyancing.

New laws for off the plan contracts in Queensland

The Land Sales Act 1984 regulates “off the plan” sales in Queensland in conjunction with several provisions in the Body Corporate and Community Management Act 1997. Together the Acts regulate sales in both unit developments and housing estates. From 2010 to 2013 the Queensland Government undertook a comprehensive review of the Land Sales Act 1984 to identify opportunities to modernise and improve the legislation. Significant changes were recommended by the Review to align the Land Sales Act 1984 (LSA) with current surveying and conveyancing practice and to overcome a number of practical issues faced by developers under the current legislation. A significant outcome of the review is the removal of provisions related to off the plan community title sales from the LSA to the Body Corporate and Community Management Act 1997 (BCCMA) and the Building Units and Group Titles Act 1980 (BUGTA). This article examines the Land Sales and Other Legislation Amendment Act 2014 due to commence in November 2014.

Balancing information disclosure and “Red Tape” : Queensland’s proposal of seller disclosure

The Queensland Property Law Review is currently reviewing seller disclosure laws in Queensland. The review will consider if the desire to provide consumers of real estate with valuable timely information about a property offered for sale can be effectively delivered with a minimum of red tape. This article examines the principles proposed by the first discussion paper on seller disclosure and their likely effect in practice.