Unreasonable withholding of consent?

In Cathmark Pty Ltd v NetherCott Constructions Pty Ltd [2011] QSC 86, Cullinane J was asked to consider whether a landlord had unreasonably withheld consent to a tenant’s proposed assignment of lease. In reaching a conclusion that the landlord had acted unreasonably, the decision provides useful guidance on an issue that is common in a proposed sale of business context.

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.

Ready willing and able or not?

A recent decision of the Queensland Court of Appeal (Keane JA, Fryberg and Applegarth JJ) will be of considerable interest to conveyancers. The decision is Davidson v Bucknell [2009] QCA 383.

Can compensation be claimed under the standard commercial land and building contract where the property sold has no legally enforceable vehicular access?

This was the question that confronted Wilson J in Jarema Pty Ltd v Michihiko Kato [2004] QSC 451. Facts The plaintiff was the buyer of a commercial property at Bundall. The property comprised a 6 storey office building with a basement car park with 54 car parking spaces. The property was sold for $5 million with the contract being the standard REIQ/QLS form for Commercial Land and Buildings (2nd ed GST reprint). The contract provided for a “due diligence” period. During this period, the buyer’s solicitors discovered that there was no direct access from a public road to the car park entrance. Access to the car park was over a lot of which the Gold Coast City Council was the registered owner under a nomination of trustees, the Council holding the property on trust for car parking and town planning purposes. Due to the absence of a registered easement over the Council’s land, the buyer’s solicitors sought a reduction in the purchase price. The seller would not agree to this. Finally the sale was completed with the buyer reserving its rights to seek compensation.

A superannuation fund as a buyer?

In Bennett v Stewart McMurdo J considered the operation of a contract where the buyer was described as a superannuation fund. The Bennetts signed a standard REIQ contract as buyers of the Stewarts’ house and land. However, the reference schedule to the contract document contained these words next to the word ‘buyer’: ‘Bennett Superannuation Fund’ The Bennetts wished to enforce the contract. In response, the Stewarts (the sellers) raised two issues: • As the ‘Bennett Superannuation Fund’ was a trust and not a distinct legal entity capable of making a contract, the contract did not specify who was the buyer, so that the contract was void for uncertainty; and • The contract was unenforceable as there was no sufficient note or memorandum for the purposes of s 59 of the Property Law Act 1974 (Qld) as s 59 requires, amongst other things, an identification of the parties. McMurdo J did not accept either of these arguments and made an order for specific performance in favour of the Bennetts. Looking at each issue separately:

The factor V HR2 haplotype: Prevalence and association of the A4070G and A6755G polymorphisms

Recently, a polymorphism was identified in exon 25 of the factor V gene that is possibly a functional candidate for the HR2 haplotype. This haplotype is characterized by a single base substitution named R2 (A4070G) in the B domain of the protein. A mutation (A6755G; 2194Asp→Gly) located near the C terminus has been hypothesized to influence protein folding and glycosylation, and might be responsible for the shift in factor V isoform (FV1 / FV2) ratio. This study investigated the prevalence of these two factor V HR2 haplotype polymorphisms in a cohort of normal blood donors, patients with osteoarthritis and women with complications during pregnancy, and in families of factor V Leiden individuals. A high allele frequency for the two polymorphisms was found in the blood donor group (6.2% R2, 5.6% A6755G). No significant difference in allele frequency was observed in the clinical groups (obstetric complications and osteoarthritis, 4.1-4.9% for the two polymorphisms) when compared with that of healthy blood donors. We confirm that the factor V A6755G polymorphism shows strong linkage to the R2 allele, although it is not exclusively inherited with the exon 13 A4070G variant and can occur independently. © 2001 Lippincott Williams & Wilkins.

Use of first nucleotide change technology to determine the frequency of factor V Leiden in a population of Australian blood donors

Activated protein C resistance (APCR), the most common risk factor for venous thrombosis, is the result of a G to A base substitution at nucleotide 1691 (R506Q) in the factor V gene. Current techniques to detect the factor V Leiden mutation, such as determination of restriction length polymorphisms, do not have the capacity to screen large numbers of samples in a rapid, cost- effective test. The aim of this study was to apply the first nucleotide change (FNC) technology, to the detection of the factor V Leiden mutation. After preliminary amplification of genomic DNA by polymerase chain reaction (PCR), an allele-specific primer was hybridised to the PCR product and extended using fluorescent terminating dideoxynucleotides which were detected by colorimetric assay. Using this ELISA-based assay, the prevalence of the factor V Leiden mutation was determined in an Australian blood donor population (n = 500). A total of 18 heterozygotes were identified (3.6%) and all of these were confirmed with conventional MnlI restriction digest. No homozygotes for the variant allele were detected. We conclude from this study that the frequency of 3.6% is compatible with others published for Caucasian populations. In addition, the FNC technology shows promise as the basis for a rapid, automated DNA based test for factor V Leiden.

Evidence for u.v. induction of CDKN2 mutations in melanoma cell lines

The CDKN2 gene, encoding the cyclin dependent kinase inhibitor p16, is a tumour suppressor gene involved in melanoma and maps to chromosome band 9p22. Mutations or interstitial deletions of this gene have been found both in the germline of familial melanoma cases and somatically in melanoma cell lines. Previous mutation analyses of melanoma cell lines have indicated a high frequency of C:G to T:A transitions, with all of these mutations occurring at dipyrimidine sites. Including three melanoma cell lines carrying tandem CC to TT mutations, the spectrum of mutations so far reported indicates a possible role for u.v. radiation in the mutagenesis of this gene in some tumours. To further examine this hypothesis we have characterised mutations of the CDKN2 gene in 30 melanoma cell lines. Nineteen lines carried complete or partial homozygous deletions of the gene. Of the remaining cell lines, eight were shown by direct sequencing of PCR products from exon 1 and exon 2 to carry a total of nine different mutations of CDKN2. Two cell lines carried tandem CC to TT mutations and a high rate of C:G to T:A transitions was observed. This study provides further evidence for the role of u.v. light in the genesis of melanoma, with one target being the CDKN2 tumour suppressor gene.