Assessment of damages for property damage

In Gagner Pty t/as Indochine Café v Canturi Corporation Pty Ltd (2009) 262 ALR 691, the assessment of damages awarded for the rectification work to the premises of the respondent was in issue. The appellant operated a restaurant above the respondent’s jewellery store in Sydney. When the kitchen of the restaurant flooded, water escaped causing damage to the jewellery store’s fit-out. The escape of the water was held to be due to the negligence of persons for whom the appellant was vicariously liable. The trial judge awarded damages, measured by the amount required to return the premises as close as was possible to the condition prior to the flood damage as well as an allowance for interruption to the business for 10 days. The 10 day allowance reflected the number of days the store would have been closed for if it was to be returned to its previous condition. The evidence was that the flooding has only affected approximately 10% of the floor area of the store. However, instead of having work carried out to bring the premises back to its condition as before the water damage, the respondent closed the business for 29 working days for a complete internal refurbishment – at a cost substantially more than simple rectification. On appeal it was argued that the trial judge had assessed the damages incorrectly as by undertaking a complete refurbishment had the effect that the respondent did not suffer any loss as a consequence of the negligence in relation to the fit-out. It was asserted that the claim for damages was in the circumstances a claim for betterment. It was also argued that the damages should not include a component for GST. Campbell JA gave reasons, with Macfarlan JA and Sackville AJA agreeing.

Uncetainty in claiming damages for defects in property

In Project Management Company No 2 Pty Ltd v Cushway Blackford & Associates Pty Ltd [2011] QCA 102 the appellant sought leave to join its parent company party (Project Management Company No 1) as a plaintiff to the proceedings and to amend its statement of claim. It was argued that the parent company had suffered the loss claimed in the proceedings, rather than the appellant. Rule 69(1)(b)(ii) of the Uniform Civil Procedure Rules 1999 (Qld) allows a court at any stage of the proceeding to order that ‘a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding’ be include as a party. To determine this issue, the Court of Appeal had to review the law relevant to the proceedings – a claim in negligence for pure economic loss, in particular, the principles espoused by the High Court in Bryan v Maloney(1995) 182 CLR 609 and Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515.

Transfer of Title by a Non-Owner : Personal Property Securities Act 2009 (Cth) exceptions to the nemo dat quod non habet rule

The fundamental personal property rule – no one can transfer a better title to property than they had – is subject to exceptions in the Sale of Goods legislation, which aim to protect innocent buyers who are deceived by a seller’s apparent physical possession of property. These exceptions cover a limited range of transactions and are restrictive in their operation. Australia now has national legislation - the Personal Property Securities Act 2009 (Cth) - which will apply to many transactions outside the scope of the Sale of Goods Act and which includes rules for sales by non-owners which will provide exceptions to the nemo dat quod non habet rule for many common commercial transactions. This article explores the effect of the Personal Property Securities Act 2009 (Cth) on the Sale of Goods exceptions, explains that the new provisions are so wide that there is little continuing relevance for the Sale of Goods Act exceptions, and indicates where they may still apply.

The role of property law in environmental management

Market-based environmental regulation is becoming increasingly common within international and national frameworks. In order for market-based regimes to attract sufficient levels of stakeholder engagement, participants within such schemes require an incentive to participate and furthermore need to feel a sense of security about investing in such processes. A sense of security is associated with property-based interests. This article explores the property-related issues connected with the operation of environmental markets. Relevant property-related considerations include examining the significant role that market-based regulation is playing in connection with the environment; examining the links between property rights and markets; exploring the legal definition of property; analysing the rights and powers associated with environmental interests in land; advancing theory on the need for landholder responsibilities in relation to land and examining the legal mechanisms used to recognise environmental property rights, including the registration thereof.

Surviving the Personal Property Securities Act (2009) Cth

Australia has new national legislation - the Personal Property Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 – which is expected to commence operating in February 2012. Previous personal property securities legislation was very complex, with more than seventy pieces of legislation in the states and territories, and more than forty registers. This reform package is the culmination of a process that began many years ago and various drafts have been the subject of much investigation and consultation. This legislation rationalises previous laws and bring about substantial changes to this area of law. This paper seeks to explain the principal changes and their implications.

Pegasus Town : innovative marketing of a new property venture

Purpose – This paper aims to outline the challenges and tasks involved in a organising and marketing a new venture from conception to sales. It presents an interesting situation with which readers can identify and apply knowledge and skills associated with entrepreneurship and marketing and link this with the key learning objectives of a new venture marketing study unit. Design/methodology/approach – The case is constructed around key principles of marketing and entrepreneurship linked to a description of a contemporary venture written from a participant observer perspective supplemented with knowledge from interviews and archival research. Findings – The case shows how effective a diligent, creative approach to developing and selling a new venture can be. It demonstrates that effective marketing requires more than rote adoption of basic principles – it requires creative thinking and enterprising adaption of relevant principles to address the specific and well defined objectives of the venture. Research limitations/implications – The case is not intended to prescribe a particular marketing method or process; rather it is meant to stimulate creativity in the use of marketing knowledge and skills. Practical implications – The case represents an effective resource for both formal and informal teaching and learning. It demonstrates the requirement for innovative and creative adoption of marketing concepts to fit the demands of a new venture. Originality/value – The case specifically addresses an identified need for learning resources and information tailored to the area of entrepreneurial new venture marketing.

Section 64 of the Property Law Act 1974 (Qld) and the reluctant buyer

The decision of the Court of Appeal in Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200 arose from unusual circumstances associated with the flood in Brisbane earlier this year. Maris Dunworth (‘the buyer’) agreed to purchase a ground floor residential apartment located beside the Brisbane River at Tennyson from Mirvac Queensland Pty Ltd (‘Mirvac’). The original date for completion was 12 May 2009. In earlier proceedings, the buyer had alleged that she had been induced to purchase the apartment by false, misleading and deceptive representations. This claim was dismissed and an order for specific performance was made with a new completion date of 8 February 2011...

Property investment, construction and economic growth : the case of Malaysia

It is generally accepted that there is a close relationship between property investment and construction activity. The construction sector plays a crucial role in economic development, especially for a developing nation such as Malaysia. However, the volume of new properties added to the property market is only a fraction of the total volume of the property market. Is the conventional assumption of the relationship between property investment and construction supported by empirical data? This paper revisits the tripartite relationships between economic growths, property investment and construction activities with official Malaysian 2000Q1-2010Q4 quarterly time series data. The Granger causality tests are used to establish the causality runs from the GDP to the value of property transactions, and the growth of construction activities to GDP growth. The result is expected to be useful for policymakers and industrial practitioners in formulating industrial policies and corporate strategies.

Assessing the real value in residential property investment

One of the major fall outs from the Global Financial Crisis has been the decline in residential property construction, home lending and residential property prices. This has lead to some extent to a reduction in the number of small investors willing to commit funds to an investment market that is not seen to perform as well as other investment assets, particularly in relation to income return.With a decreasing supply of rental accommodation in the housing markets, less public housing being constructed by both State and Commonwealth Governments, there is the potential for the residential property market to provide more substantial returns than previous years.This paper will analyse the current residential housing market in Brisbane, Australia to determine if there are sectors in this market that are outperforming the average income and total return for residential investment property and the variation in investment performance across the various housing sub-markets. The results show that property investment in residential property provides opportunities to maximize returns based on geographic location and socio-economic economic status, with lower value areas showing the highest income returns and higher value suburbs showing greater capital returns

The Profiling of Property, Plant & Equipment (PPE) Contributions in Australia and Malaysia Public Listed Construction Companies

The purpose of this paper is to study the profiling of property, plant and equipment (PPE) contributions in Australia and Malaysia construction companies. A company’s worth is usually based on the listed share price on the stock exchange. In arriving at the net profit, the contribution of PPE in the company’s assets is somehow being neglected. This paper will investigate the followings; firstly the level of PPE contribution in the construction firms by comparing the PPE contributions to the company’s asset as a whole which includes fixed (non-current) assets and current assets. This will determine the true strength of the companies, rather than relying on the share prices alone. Secondly, the paper will determine the trend of company’s asset ownership to show the company’s performance of the PPE ownership during the period of study. The data is based on the selected construction companies listed on the Australian Stock Exchange (ASX) and Malaysian Stock Exchange, known as Bursa Malaysia. The profiling will help to determine the strength of the construction firms based on the PPE holding, and the level of PPE ownerships in the two countries construction firms during the period of study.

An analysis of NSW rural property market : 1990-2010

Rural property in Australia has seen significant market resurgence over the past 3 years, with improved seasonal conditions in a number of states, improved commodity prices and a greater interest and purchase of rural land by major international corporations and investment institutions. Much of this change in perspective in relation to rural property as an asset class can be linked to the food shortage of 2007 and the subsequent interest by many countries in respect to food security. This paper will address the total and capital return performance of a major agricultural area and compare these returns on the basis of both location of land and land use. The comparison will be used to determine if location or actual land use has a greater influence on rural property capital and income returns. This performance analysis is based on over 40,000 rural sales transactions. These transactions cover all market based rural property transactions in New South Wales, Australia for the period January 1990 to December 2010. Correlation analysis and investment performance analysis has also been carried out to determine the possible relationships between location and land use and subsequent changes in rural land capital values.

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

Energy efficiency and sustainability in residential property

The issue of a more sustainable environment has been the aim of many governments and institutions for decades. Current research and literature has shown the continuing impact of global development and population increases on the planet as a whole. Issues such as carbon emissions, global warming, resource sustainability, industrial pollution, waste management and the decline in scarce resources, including food, are now realities and are being addressed at various levels. All levels of government, business and the public now equally share responsibility for the continued sustainable environment in general. Although these issues of global warming, climate change and the overuse of scarce resources are well documented, and constantly covered in all media forms, public attitudes to these issues vary significantly. Despite being aware of these issues many individuals consider that the problem is one for governments to tackle and that their individual efforts are not important or necessary. In many cases individuals are concerned with sustainability, but are either not in the position to take action due to economic circumstances or are not prepared to offset sustainability gains with personal interests...

Place and Space: Community in the Internet Economy and What This Will Mean for Property

By 2020 Australia‟s National Digital Economy Strategy aims to increase household online participation and engage 12 per cent of all employees in teleworking arrangements. Achieving these goals is generally perceived as positive due to the reduced impact on the natural environment from less use of transport. However, this also will enable greater flexibility as to where people live and thus will impact upon the maintenance and formation of communities and on property use. This paper commences by clarifying what is Australia‟s internet economy before highlighting the impact of the internet on community formation and maintenance. The paper concludes by identifying what the achievement of these goals will mean for property use in the future.

Property, planning and purpose : legal concerns facing broadband rollout in Australia

The Australian government, and opposition, are committed to facilitating high-speed broadband provision. In April 2009 the (then) Labor government announced a proposal to facilitate provision by mandating “…the use of fibre optic infrastructure … in greenfield estates ….” Separately, the installation of (usually overhead) cables commenced in select brownfield areas throughout Australia. In the lead up to the 2010 federal election, the broadband policy focus of the (then) federal opposition was to enabling private investment rather than direct investment by government itself. High-speed broadband is essential for Australia’s economic future. Whether implementation is undertaken by government, government owned corporations or private investors, will impact on the processes to be followed. Who does what, also will determine the rights available to land owners. The next stage, of necessity, will involve the establishment of procedures to require the retrofitting of existing urban environments. This clearly will have major property, property rights and valuation impacts. As Horan (2000) observed “…preserving... unique characteristics … of…regions requires a compromise between economic ambitions and social, cultural, and environmental values”. The uncertainty following the federal election, and the influence of independants with individual agendas; presents unique challenges for broadband implementation. This paper seeks to identify the processes to be followed by various potential broadband investors as they work to establish a ubiquitous network. It overviews current legislative regimes and examines concerns raised by stakeholders in various government reviews. It concludes by plotting a clear way forward to the future, with particular regard to property rights and usage.