Causing economic harm to property developers : damages for starting an incurably bad appeal?

A recent decision of the Queensland Court of Appeal involved an unusual statement of claim made on behalf of the developer of a proposed resort in Port Douglas. The decision is The Beach Club Port Douglas Pty Ltd v Page [2005] QCA 475. The issue The defendant had objected to a development application of the plaintiff developer and lodged an appeal in the Planning and Environment Court against the council decision granting a development permit. The main issue in the Planning and Environment Court was whether the site coverage of the proposed resort was excessive. In a separate action (the subject matter of the present appeal), the plaintiff developer claimed damages for ‘negligence’ alleging that the defendant had breached a duty of care not to appeal without properly or reasonably assessing whether the development qualified for a permit given that the resort qualified for the maximum allowable site coverage. It was alleged that the appeal lodged by the defendant in the Planning and Environment Court had no reasonable prospects of success and that any reasonable person properly advised would know, or ought reasonably to have known, that to be so. The defendant had been “put on notice” that the plaintiff would incur loss of $10,000 for every day there was a delay in starting construction of the resort. The claim made by the developer required the court to consider those circumstances where a person may lawfully and deliberately cause economic harm to another. Was a duty of care owed by the defendant for negligent conduct of litigation that caused economic loss to the plaintiff?

Waiver of statutory requirements : Property Agents and Motor Dealers Act 2000 (Qld)

One of the many difficulties associated with the drafting of the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’) is the operation of s 365. If the requirements imposed by this section concerning the return of the executed contract are not complied with, the buyer and the seller will not be bound by the relevant contract and the cooling-off period will not commence. In these circumstances, it is clear that a buyer’s offer may be withdrawn. However, the drafting of the Act creates a difficulty in that the ability of the seller to withdraw from the transaction prior to the parties being bound by the contract is not expressly provided by s 365. On one view, if the buyer is able to withdraw an offer at any time before receiving the prescribed contract documentation the seller also should not be bound by the contract until this time, notwithstanding that the seller may have been bound at common law. However, an alternative analysis is that the legislative omission to provide the seller with a right of withdrawal may be deliberate given the statutory focus on buyer protection. If this analysis were correct the seller would be denied the right to withdraw from the transaction after the contract was formed at common law (that is, after the seller had signed and the fact of signing had been communicated to the buyer).

Property Agents and Motor Dealers Act (Qld) : disclosure, cooling-off and marketeers

The Property Agents and Motor Dealers Act 2000 commenced on 1 July 2001. Significant changes have now been made to the Act by the Property Agents and Motor Dealers Amendment Act 2001 (“the amending Act”). The amending Act contains two distinct parts. First, ss 11-19 of the amending Act provide for increased disclosure obligations on real estate agents, property developers and lawyers together with an extension of the 5 business day cooling-off period imposed by the original Act to all residential property (other than contracts formed on a sale by auction). These provisions are expected to commence on 29 October 2001. The remaining provisions of the amending Act provide for increased jurisdiction and powers to the Property Agents and Motor Dealers Tribunal (“the Tribunal”) enabling the Tribunal to deal with claims against marketeers. These provisions commenced on the date of assent (21 September 2001).

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.

Critical gap estimation by numerical and statistical highest likelihood search

Many traffic situations require drivers to cross or merge into a stream having higher priority. Gap acceptance theory enables us to model such processes to analyse traffic operation. This discussion demonstrated that numerical search fine tuned by statistical analysis can be used to determine the most likely critical gap for a sample of drivers, based on their largest rejected gap and accepted gap. This method shares some common features with the Maximum Likelihood Estimation technique (Troutbeck 1992) but lends itself well to contemporary analysis tools such as spreadsheet and is particularly analytically transparent. This method is considered not to bias estimation of critical gap due to very small rejected gaps or very large rejected gaps. However, it requires a sufficiently large sample that there is reasonable representation of largest rejected gap/accepted gap pairs within a fairly narrow highest likelihood search band.

The psychosocial factors influencing aggressive driving behaviour

Many drivers in highly motorised countries believe that aggressive driving is increasing. While the prevalence of the behaviour is difficult to reliably identify, the consequences of on-road aggression can be severe, with extreme cases resulting in property damage, injury and even death. This research program was undertaken to explore the nature of aggressive driving from within the framework of relevant psychological theory in order to enhance our understanding of the behaviour and to inform the development of relevant interventions. To guide the research a provisional ‘working’ definition of aggressive driving was proposed encapsulating the recurrent characteristics of the behaviour cited in the literature. The definition was: “aggressive driving is any on-road behaviour adopted by a driver that is intended to cause physical or psychological harm to another road user and is associated with feelings of frustration, anger or threat”. Two main theoretical perspectives informed the program of research. The first was Shinar’s (1998) frustration-aggression model, which identifies both the person-related and situational characteristics that contribute to aggressive driving, as well as proposing that aggressive behaviours can serve either an ‘instrumental’ or ‘hostile’ function. The second main perspective was Anderson and Bushman’s (2002) General Aggression Model. In contrast to Shinar’s model, the General Aggression Model reflects a broader perspective on human aggression that facilitates a more comprehensive examination of the emotional and cognitive aspects of aggressive behaviour. Study One (n = 48) examined aggressive driving behaviour from the perspective of young drivers as an at-risk group and involved conducting six focus groups, with eight participants in each. Qualitative analyses identified multiple situational and person-related factors that contribute to on-road aggression. Consistent with human aggression theory, examination of self-reported experiences of aggressive driving identified key psychological elements and processes that are experienced during on-road aggression. Participants cited several emotions experienced during an on-road incident: annoyance, frustration, anger, threat and excitement. Findings also suggest that off-road generated stress may transfer to the on-road environment, at times having severe consequences including crash involvement. Young drivers also appeared quick to experience negative attributions about the other driver, some having additional thoughts of taking action. Additionally, the results showed little difference between males and females in the severity of behavioural responses they were prepared to adopt, although females appeared more likely to displace their negative emotions. Following the self-reported on-road incident, evidence was also found of a post-event influence, with females being more likely to experience ongoing emotional effects after the event. This finding was evidenced by ruminating thoughts or distraction from tasks. However, the impact of such a post-event influence on later behaviours or interpersonal interactions appears to be minimal. Study Two involved the quantitative analysis of n = 926 surveys completed by a wide age range of drivers from across Queensland. The study aimed to explore the relationships between the theoretical components of aggressive driving that were identified in the literature review, and refined based on the findings of Study One. Regression analyses were used to examine participant emotional, cognitive and behavioural responses to two differing on-road scenarios whilst exploring the proposed theoretical framework. A number of socio-demographic, state and trait person-related variables such as age, pre-study emotions, trait aggression and problem-solving style were found to predict the likelihood of a negative emotional response such as frustration, anger, perceived threat, negative attributions and the likelihood of adopting either an instrumental or hostile behaviour in response to Scenarios One and Two. Complex relationships were found to exist between the variables, however, they were interpretable based on the literature review findings. Factor analysis revealed evidence supporting Shinar’s (1998) dichotomous description of on-road aggressive behaviours as being instrumental or hostile. The second stage of Study Two used logistic regression to examine the factors that predicted the potentially hostile aggressive drivers (n = 88) within the sample. These drivers were those who indicated a preparedness to engage in direct acts of interpersonal aggression on the road. Young, male drivers 17–24 years of age were more likely to be classified as potentially hostile aggressive drivers. Young drivers (17–24 years) also scored significantly higher than other drivers on all subscales of the Aggression Questionnaire (Buss & Perry, 1992) and on the ‘negative problem orientation’ and ‘impulsive careless style’ subscales of the Social Problem Solving Inventory – Revised (D’Zurilla, Nezu & Maydeu-Olivares, 2002). The potentially hostile aggressive drivers were also significantly more likely to engage in speeding and drink/drug driving behaviour. With regard to the emotional, cognitive and behavioural variables examined, the potentially hostile aggressive driver group also scored significantly higher than the ‘other driver’ group on most variables examined in the proposed theoretical framework. The variables contained in the framework of aggressive driving reliably distinguished potentially hostile aggressive drivers from other drivers (Nagalkerke R2 = .39). Study Three used a case study approach to conduct an in-depth examination of the psychosocial characteristics of n = 10 (9 males and 1 female) self-confessed hostile aggressive drivers. The self-confessed hostile aggressive drivers were aged 24–55 years of age. A large proportion of these drivers reported a Year 10 education or better and average–above average incomes. As a group, the drivers reported committing a number of speeding and unlicensed driving offences in the past three years and extensive histories of violations outside of this period. Considerable evidence was also found of exposure to a range of developmental risk factors for aggression that may have contributed to the driver’s on-road expression of aggression. These drivers scored significantly higher on the Aggression Questionnaire subscales and Social Problem Solving Inventory Revised subscales, ‘negative problem orientation’ and ‘impulsive/careless style’, than the general sample of drivers included in Study Two. The hostile aggressive driver also scored significantly higher on the Barrett Impulsivity Scale – 11 (Patton, Stanford & Barratt, 1995) measure of impulsivity than a male ‘inmate’, or female ‘general psychiatric’ comparison group. Using the Carlson Psychological Survey (Carlson, 1982), the self-confessed hostile aggressive drivers scored equal or higher scores than the comparison group of incarcerated individuals on the subscale measures of chemical abuse, thought disturbance, anti-social tendencies and self-depreciation. Using the Carlson Psychological Survey personality profiles, seven participants were profiled ‘markedly anti-social’, two were profiled ‘negative-explosive’ and one was profiled as ‘self-centred’. Qualitative analysis of the ten case study self-reports of on-road hostile aggression revealed a similar range of on-road situational factors to those identified in the literature review and Study One. Six of the case studies reported off-road generated stress that they believed contributed to the episodes of aggressive driving they recalled. Intense ‘anger’ or ‘rage’ were most frequently used to describe the emotions experienced in response to the perceived provocation. Less frequently ‘excitement’ and ‘fear’ were cited as relevant emotions. Notably, five of the case studies experienced difficulty articulating their emotions, suggesting emotional difficulties. Consistent with Study Two, these drivers reported negative attributions and most had thoughts of aggressive actions they would like to take. Similarly, these drivers adopted both instrumental and hostile aggressive behaviours during the self-reported incident. Nine participants showed little or no remorse for their behaviour and these drivers also appeared to exhibit low levels of personal insight. Interestingly, few incidents were brought to the attention of the authorities. Further, examination of the person-related characteristics of these drivers indicated that they may be more likely to have come from difficult or dysfunctional backgrounds and to have a history of anti-social behaviours on and off the road. The research program has several key theoretical implications. While many of the findings supported Shinar’s (1998) frustration-aggression model, two key areas of difference emerged. Firstly, aggressive driving behaviour does not always appear to be frustration driven, but can also be driven by feelings of excitation (consistent with the tenets of the General Aggression Model). Secondly, while the findings supported a distinction being made between instrumental and hostile aggressive behaviours, the characteristics of these two types of behaviours require more examination. For example, Shinar (1998) proposes that a driver will adopt an instrumental aggressive behaviour when their progress is impeded if it allows them to achieve their immediate goals (e.g. reaching their destination as quickly as possible); whereas they will engage in hostile aggressive behaviour if their path to their goal is blocked. However, the current results question this assertion, since many of the hostile aggressive drivers studied appeared prepared to engage in hostile acts irrespective of whether their goal was blocked or not. In fact, their behaviour appeared to be characterised by a preparedness to abandon their immediate goals (even if for a short period of time) in order to express their aggression. The use of the General Aggression Model enabled an examination of the three components of the ‘present internal state’ comprising emotions, cognitions and arousal and how these influence the likelihood of a person responding aggressively to an on-road situation. This provided a detailed insight into both the cognitive and emotional aspects of aggressive driving that have important implications for the design of relevant countermeasures. For example, the findings highlighted the potential value of utilising Cognitive Behavioural Therapy with aggressive drivers, particularly the more hostile offenders. Similarly, educational efforts need to be mindful of the way that person-related factors appear to influence one’s perception of another driver’s behaviour as aggressive or benign. Those drivers with a predisposition for aggression were more likely to perceive aggression or ‘wrong doing’ in an ambiguous on-road situation and respond with instrumental and/or hostile behaviour, highlighting the importance of perceptual processes in aggressive driving behaviour.

The role of institutional rural property in diversified investment portfolios in NSW, Australia

The food and fuel crisis experienced in 2006 to 2008 has highlighted the importance of agricultural commodity production throughout developing and developed economies and has placed greater awareness and importance on rural property and rural property markets. These factors have led to an increased interest from major property investment institutions and property companies in the role of rural property in a mixed asset or mixed property investment portfolio. This paper will analyse rural property sales in New South Wales for the period 1990-2008, and will compare total return performance across a number of rural property sectors based on geographic location and land use type. These results show that the inclusion of rural property in an investment portfolio has benefits in relation to return and risk.