Estoppel in the face of consumer protection in land transactions- judicial reasoning or judicial intuition

Nationally, there is much legislation regulating land sale transactions, particularly in relation to seller disclosure of information. The statutes require strict compliance by a seller failing which, in general, a buyer can terminate the contract. In a number of instances, when buyers have sought to exercise these rights, sellers have alleged that buyers have either expressly or by conduct waived their rights to rely upon these statutes. This article examines the nature of these rights in this context, whether they are capable of waiver and, if so, what words or conduct might be sufficient to amount to waiver. The analysis finds that the law is in a very unsatisfactory state, that the operation of those rules that can be identified as having relevance are unevenly applied and concludes that sellers have, in the main, been unsuccessful in defeating buyers' statutory rights as a result of an alleged waiver by those buyers.

Information sharing with key suppliers : a contingency approach

This paper focuses on information sharing with key suppliers and seeks to explore the factors that might influence its extent and depth. We also investigate how information sharing affects a company’s performance with regards to resource usage, output, and flexibility. Drawing from transaction cost- and contingency theories, several factors, namely environmental uncertainty, demand uncertainty, dependency and, the product life cycle stage are proposed to explain the level of information shared with key suppliers. We develop a model where information sharing mediates the (contingent) factors and company performance. A mail survey was used to collect data from Finnish and Swedish companies. Partial Least Squares analysis was separately performed for each country (n=119, n=102). There was consistent evidence that environmental uncertainty, demand uncertainty and supplier/buyer dependency had explanatory power, whereas no significance was found for the product life cycle stage. The results also confirm previous studies by providing support for a positive relationship between information sharing and performance, where output performance was found to be the most strongly related

Determinants and effects of information sharing with key suppliers

This paper focuses on information sharing with key suppliers and seeks to explore the factors that might influence its extent and depth. We also investigate how information sharing affects a company’s performance with regards to resource usage, output, and flexibility. Drawing from transaction cost- and contingency theories, several factors, namely environmental uncertainty, demand uncertainty, dependency and, the product life cycle stage are proposed to explain the level of information shared with key suppliers. We develop a model where information sharing mediates the (contingent) factors and company performance. A mail survey was used to collect data from Finnish and Swedish companies. Partial Least Squares analysis was separately performed for each country (n=119, n=102). There was consistent evidence that environmental uncertainty, demand uncertainty and supplier/buyer dependency had explanatory power, whereas no significance was found for the relationship between product life cycle stage and information sharing. The results also confirm previous studies by providing support for a positive relationship between information sharing and performance, where output performance was found to be the most strongly related.

Unlocking risk allocation and equitable conversion : reform of the passing of risk in the sale of land

The principles relating to the passing of risk under a contract for the sale of real property would seem to have been long settled. The rule under the general law is that the risk of loss of the subject matter under a contract for the sale of real property passes to the buyer upon the creation of a valid and binding contract. This article considers the origin of that rule, how it developed with the growth of equity, and advances the view that it is anomalous in a modern context of property dealings. In doing so, the article adverts to the variety of statutory mechanisms used to subvert the rule, few of which are of practical value. It concludes that the rule is outmoded in many respects and suggests a number of reforms which might be implemented nationally to bring consistency and simplicity to the issue of damage or destruction of improvements which are the subject of a land contract.

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.

Termites did not undermine sale

The New South Wales Court of Appeal decision of Wood v Balfour [2011] NSWCA 382 presents an interesting factual matrix relating to the obligation of a seller to disclose significant latent defects in quality of title to a buyer, in this instance, severe termite damage. It offers insights into the difficulty of a buyer proving the existence of the element of deceit in the making of a representation with respect to quality and reinforces the importance of the rule caveat emptor as being an article of faith for every buyer of real estate.

Seller compensated for loss caused through buyer’s misconduct

The decision of Roberts v Juniper [2012] QDC 140 relating to the obligation to rectify damage caused to property and pay mesne profits for use of a property occupied by a buyer under a contract of sale which was later terminated raises interesting points for consideration by property lawyers.

The legal effect of settlement statements

The decision of Carrapetta v. Rado [2012] NSWCA 202 raises a short but very practical point relating to the right to deliver a notice to complete or have otherwise called for completion where time is of the essence of the contract in circumstances where a settlement statement subsequently sent from the seller has overstated the amount owing under the contract. It was common ground , following the oft quoted High Court decisions of Neeta (Epping) Pty Ltd v Phillips(1974) 131 CLR 286 and Louinder v Leis (1982) 149 CLR 509 that a Notice to Complete which called for completion outside the terms of the contract would be invalid. These decisions also further confirm the long accepted principles that a seller who is not “ready willing and able” to perform all their obligations or who is otherwise in breach of contract at the time could not deliver a Notice to Complete (at[27]).The issue in this case did not so much concern the efficacy of the Notice to Complete at the time was delivered ,but the legal effect upon the Notice to Complete of the later delivery of a settlement statement for what the buyer considered to be performance beyond that required by the contract.

Corporate social responsibility–oriented compliances and SMEs access to global market : evidence from Bangladesh

The convergence of corporate social responsibility (CSR) and corporate governance has immense impact on the participants in global supply chains. The global buyers and retailers tend to incorporate CSR in all stages of product manufacturing within their supply chains. The incorporated CSR thus creates the difficulty to small- and medium-sized manufacturing enterprises (SMEs). Incompetence in standardized CSR practices is an important issue that causes SMEs either losing their scope to access global market directly or serving as subcontractors to large enterprises. This article explores this issue by focusing on Bangladeshi SMEs under the CSR requirement of the important global buyer.

A matter of time

The Queensland Court of Appeal recently handed down its decision in Caprice Property Holdings Pty Ltd v McLeay [2013] QCA 120. The decision considers the operation of the standard REIQ contract for the sale of land as it impacts on the time for settlement and the respective obligations of the buyer and the seller. The decision highlights both practical and legal issues arising from a failure to render performance at the stipulated time...

Assessing the immediate and short-term impact of flooding on residential property participant behaviour

The past decade has seen an increase in the number of significant natural disasters that have caused considerable loss of life as well as damage to all property markets in the affected areas. In many cases, these natural disasters have not only caused significant property damage, but in numerous cases, have resulted in the total destruction of the property in the location. With these disasters attracting considerable media attention, the public are more aware of where these affected property markets are, as well as the overall damage to properties that have been damaged or destroyed. This heightened level of awareness has to have an impact on the participants in the property market, whether a developer, vendor seller or investor. To assess this issue, a residential property market that has been affected by a significant natural disaster over the past 2 years has been analysed to determine the overall impact of the disaster on buyer, renter and vendor behaviour, as well as prices in these residential markets. This paper is based on data from the Brisbane flood in January 2011. This natural disaster resulted in loss of life and partial and total devastation of considerable residential property sectors. Data for the research have been based on the residential sales and rental listings for each week of the study period to determine the level of activity in the specific property sectors, and these are also compared to the median house prices for the various suburbs for the same period based on suburbs being either flood affected or flood free. As there are 48 suburbs included in the study, it has been possible to group these suburbs on a socio-economic basis to determine possible differences due to location and value. Data were accessed from realestate.com.au, a free real estate site that provides details of current rental and sales listings on a suburb basis, RP Data a commercial property sales database and the Australian Bureau of Statistics. The paper found that sales listings fell immediately after the flood in the affected areas, but there was no corresponding fall or increase in sales listings in the flood-free suburbs. There was a significant decrease in the number of rental listings follow the flood as affected parties sought alternate accommodation. The greatest fall in rental listings was in areas close to the flood-affected suburbs indicating the desire to be close to the flooded property during the repair period.

The defence of hardship to specific performance actions

The decision of Evans v Robcorp Pty Ltd[2014] QSC 26 is of interest as being an instance where the defence of hardship, in this case, financial hardship, was successfully pleaded in defence to a summary application for specific performance of a contract for the sale of land. Equity has always recognised the defence of hardship in response to an action for specific performance which, as an equitable remedy, might be refused in the discretion of the Court (Hewett v Court (1983) 149 CLR 639 at 664). However, whilst the remedy is discretionary, there are certain accepted principles which have guided the courts in their application of this defence to particular facts. It is not a blanket defence to a claim for specific performance where the buyer simply does not have the funds to complete the contract at the time when settlement is called for. Occasionally, a radical change in, say for instance, the health of the defendant between contract and completion, perhaps coupled with a long delay by a seller in calling for completion not being the fault of the buyer might enliven the defence (Patel v Ali [1984]1 Ch 283)

The provision of visitable housing in Australia: Down to the detail

In response to the ratification of the United Nations Convention of the Rights of People with Disabilities (CRPD), Australian housing industry leaders, supported by the Australian Government, committed to transform their practices voluntarily through the adoption of a national guideline, called Livable Housing Design. They set a target in 2010 that all new housing would be visitable by 2020. Research in this area suggests that the anticipated voluntary transformation is unrealistic and that mandatory regulation will be necessary for any lasting transformation to occur. It also suggests that the assumptions underpinning the Livable Housing Design agreement are unfounded. This paper reports on a study that problematised these assumptions. The study used eleven newly-constructed dwellings in three housing contexts in Brisbane, Australia. It sought to understand the logics-of-practice in providing, and not providing, visitable housing. By examining the specific details that make a dwelling visitable, and interpreting the accounts of builders, designers and developers, the study identified three logics-of-practice which challenged the assumptions underpinning the Livable Housing Design agreement: focus on the point of sale; an aversion to change and deference to external regulators on matters of social inclusion. These were evident in all housing contexts indicating a dominant industry culture regardless of housing context or policy intention. The paper suggests that financial incentives for both the builder and the buyer, demonstration by industry leaders and, ultimately, national regulation is a possible pathway for the Livable Housing Design agreement to reach the 2020 goal. The paper concludes that the Australian Government has three options: to ignore its obligations under the CRPD; to revisit the Livable Housing Design agreement in the hope that it works; or to regulate the housing industry through the National Construction Code to ensure the 2020 target is reached.

A new approach to presales?

The traditional residential development process uses pre-sales to manage risk and lock in demand so that development financiers can be kept happy. However, obtaining the requisite level of presales is an expensive business, a cost that is ultimately borne by the new home buyer. With housing affordability at the front of everyone’s mind, we ask: is there a better way? How can housing be supplied more innovatively? A research collaboration between QUT, Swinburne Social Research Unit and the Office of the Victorian Government has been investigating this very issue.

Daubism: Copyright law and artistic works

An artistic controversy over a group of landscape painters called the Daubists provided impetus for copyright law reform in Australia in the early 1990's. In the first exhibition of Daubism in 1991 driller Jet Armstrong painted a crop circle over a painting of the Olgas by Charles Bannon - an artist, print-maker, and the father of the State Premier at the time, John Bannon. He called the resulting work, Crop Circles on a Bannon Landscape. Armstrong also inserted an inverted crucifix over a painting of the Flinders Ranges by Bannon, and renamed the work The Crop Circle Conspiracy Landscape. In response, Bannon took legal action against Armstrong in the Federal Court of Australia on the grounds of false attribution and defamation. He won an interlocutory injunction against Armstrong and the gallery, but then reached a settlement with the Daubists. An anonymous buyer purchased the work for $650 on the condition that it was returned to the painter. In his fight against the Daubists, Bannon received help and support from the National Association for the Visual Arts (NAVA). This professional group used the controversy to campaign for the reform of copyright law - in particular, the need for a moral rights regime. The artistic controversy over the Daubists was a catalyst for the introduction of the Copyright Amendment (Moral Rights) Act 2000 (Cth) in Australia. It offers an illuminating case study of the operation of copyright law in the visual arts.