Property & Commercial Tips and Traps – September 2014

September, 2014

When not to flog a dead horse

Evans v Robcorp Pty Ltd [2014] QSC 26

It used to be that a party (usually the purchaser) who failed to complete a contract of sale for whatever reason could be compelled to complete if the other party applied in court to have them “specifically perform” the contract.

This decision answers the question of whether a court should order specific performance where such an order would cause great hardship to the non-performing party.

In this case, the purchasers failed to complete a contract of sale on the grounds that their financial circumstances had changed from when they first entered into the contract. Before this case, courts would ordinarily hold that “mere financial inability on the part of a purchaser is not a reason for refusing to decree specific performance”. However, this case is now authority for the position that “the courts will not require that to be done which cannot be done” and that “there is no reason…why a source of hardship should be ignored merely because it did not exist at the time when the contract was entered into.”

Of course, it will still be open to sellers in similar scenarios to terminate the contract and sue a defaulting purchaser for damages – they should not however, after this case, apply to court to require purchasers to complete a contract, where that purchaser is unable to complete the contract.

The team at Mills Oakley have extensive experience in acting for both sellers and purchasers in terminating contracts. Please contact us to discuss how we can assist with your circumstances.

Say what? Small businesses struggling to understand the Personal Property Securities Act 2009 (Cth) (PPSA)

The PPSA is one of the most important pieces of national legislation to be introduced in recent times. It provides a framework by which charges on personal property (as opposed to real property, commonly known as “land and its fixtures”) and the priority of those charges may be recorded on a searchable register.

A review of this legislation, the interim report of which was released on 31 July 2014, has clearly identified, among other things that small businesses:

We consider this to be a disturbing finding as most small businesses do not have adequate over draft facilities and rely strongly on their assets and cash flow to drive them. Furthermore, many don’t realise how they are impacted in the event a registration is made against those assets and cash flow, or if a lodging party of a registration decide to take that asset over.

If you’re a small business, and are confused, you are not alone. Contact us to discuss how the PPSA affects you and your assets and we will work with you to ensure that your business assets (which includes your lease, by the way) are protected.

Do it by email – a rehash of the Electronic Transactions (Queensland) Act 2001 (ETA)

Too often today, and given the growing complexity and mobility of businesses and business people, deals are delayed because parties have not agreed to a binding document and to send important information by email. This leads to a last minute rush of lawyers getting documents in the mail before the postie comes or nervously faxing documents to the other side in a transaction at 4:59pm to make a deadline.

Fortunately, the Electronic Transactions (Queensland) Act 2001 (the Act) provides that a party can, if required by a State law, give information in writing, provide a signature, produce a document, record information or keep a document by email (or any other form of electronic communication), provided the receiving party has consented to receiving that information by email.

The Act is extensive and is drafted to deal with all manner of issues that email correspondence throws up. For example, section 26C provides that a contract formed by the interaction of an automated message system and an individual is not invalid, void or unenforceable on the sole ground that no individual reviewed or intervened in each of the actions carried out by an automated message system.

Want to launch your transaction documents into the 21st Century? Contact us to discuss how you can utilise technology to save time and become more efficient.

Protecting consumers: changes to the Domestic Building Contracts Act 2000

The Queensland Government has released a new draft bill to amend provision in the existing Domestic Building Contracts Act 2000 (the Act). Changes to the legislation aim to enhance protection for consumers, such as building owners and contractors, while also reducing excessive red tape associated with domestic building contracts.

The new changes include:

Subject to further amendments to the draft bill, the legislation is likely to come into force in late 2014 or early 2015.

Mills Oakley’s Building, Construction and Infrastructure Team are experts in the application and understanding of this legislation. Please contact us to find out how we can assist you in ensuring you are prepared to comply with these changes.

Contact Mills Oakley 


Tony Butler  |  Partner
Property and Commercial
P: (07) 3228 0432



Tim Cox  |  Partner
Property and Commercial
P: (07) 3228 0442

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