The Property Mill – New South Wales – 1 November 2013

November, 2013

In the media

ABS: rises in council rates and utility bills contribute to inflation

The quarterly figures released by the Australian Bureau of Statistics this week have revealed  Price rises in bills to consumers from council rates and state energy suppliers have helped nudge-up Australia’s official inflation rate (24 October 2013)

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Property developers need to factor law into climate change

A developer of a large resort and residential community was dealt a blow when its development application was overturned in the Queensland Planning and Environment Court earlier this year, after  not adequately taking into account climate change-related sea level rise (22 October 2013)

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ANZ analysis

While the near-term outlook for the Australian economy remains soft as it adjusts to the windback of mining investment, stronger Property Council-ANZ Property Industry Confidence Survey sentiment provides a positive outlook for the property market (17 October 2013)

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NSW planning bill 2013: White paper feedback report / NSW Department of Planning and Infrastructure

The review of NSW’s 33-year-old planning system has involved unprecedented consultation, receiving just under 5000 submissions on the White Paper and Exposure Bills (23 October 2013)

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Laws to prevent child falls from windows in force: Office of Fair Trading (NSW)

Owners corporations must have window safety devices installed above the ground floor that allow windows to open no more than 12.5cm when the lock is engaged. Owners corporations have until 13 March 2018 to install the devices (24 October 2013)

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Military Road No 158 Pty Limited v Lion Pacific Projects (Neutral Bay) Pty Limited (Controller Appointed) (In liq) [2013] NSWSC 1545

Injunction preventing the third defendant selling the properties refused. Orders the second plaintiff to withdraw the caveat on the properties with leave to lodge a caveat in the same terms immediately following completion of the sale.

EQUITY – application for an injunction to prevent the third defendant exercising its rights to sell the properties as mortgagee in possession on the basis that the second plaintiff’s equitable interest, arising out of a call option entered into with the first and second defendants, will not be adequately protected if the properties are sold – offer by the purchaser to the caveator of call option in almost identical terms –  Real Property Act 1990 (NSW)

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Australia and New Zealand Banking Group Ltd v Kavia Holdings Pty Ltd (Administrators Appointed) (Receivers and Managers Appointed) [2013] NSWSC 1532

REAL PROPERTY – possession of land – proper construction of mortgage – whether property a secured debt under the mortgage – whether a tenancy order ought to be made under s 125(4) of the Residential Tenancies Act 2010 – whether “special circumstances” exist – bank entitles to possession of property

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Stojanovski v Stojanovski [2013] NSWSC 1491

Grant leave to the plaintiff to file a further caveat pursuant to Real Property Act, s 74O(2).

REAL PROPERTY – application for extension of caveats – in the alternative an application for injunction restraining the defendant from dealing with two parcels of land – Family Provisions Act claim by a brother in law of the defendant in relation to the estate of his late mother, including a claim for designation of two of the properties currently held by the defendant as notional estate – defendant and her husband separated and entered in to a Deed of Settlement in relation to marital assets, including the properties he inherited from his late mother – conduct allegedly designed to remove the assets from the plaintiff’s reach without his knowledge – plaintiffs application for access to the terms of the Deed of Settlement refused by the Family Court of Australia – but plaintiff intends to appeal from that decision – whether plaintiff has a caveatable interest in the properties because of his Family Provisions Act claim or otherwise – whether the estate’s executor has a caveatable interest – whether the circumstances warrant the grant of an injunction in the nature of a freezing order – whether balance of convenience warrants the issue of an injunction.

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Burwood Council v Ralan Burwood Pty Ltd [2013] NSWLEC 173

JUDICIAL REVIEW: application by Council for (1) declarations of invalidity of construction certificates, (2) declarations that developer in breach of Environmental Planning and Assessment Act 1979, and (3) orders for remedial work – validity of certificates – do changes to a project agreed by a certifier make the development “inconsistent” with the consent – whether orders can be made against those not in breach of the Act – whether developer is vicariously responsible for acts of others – utility of declarations – discretion – costs

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Gamble v Wilson [2011] NSWDC 240

Judgment for the plaintiffs against the defendants on the claim in the sum of $24,438 inclusive of pre-judgment interest

Judgment for the defendants/cross-claimants against the plaintiffs/cross-defendants on the cross-claim in the sum of $32,001.52 inclusive of pre-judgment interest

CONTRACT -landlord and tenant – lease of premises for hardware business – claim in conversion by lessees consequent upon lessors terminating lease and retaking possession – whether lease validly terminated – whether lessor had right to retake possession – cross-claim for breach of lease by lessors – assessment of damages for conversion and breach of lease

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Contact Mills Oakley


James Price | Partner 
T: +61 3 9605 0824

Anthony Brearley | Partner
T: +61 3 9605 0810

Tom Cantwell | Partner
T: +61 3 9605 0958



Tony Butler | Partner 
T: +61 7 3228 0432



Lachlan Paterson | Partner
T: +61 2 8289 5895

Catherine Hallgath | Partner
T: +61 2 8289 5806

Tim L’Orange | Partner 
T: +61 2 8289 5816



Adam Peppinck | Partner
T: +61 2 6196 5203



Andrew Logan | Partner
T: +61 8 6167 9802


Patrick Thaung | Partner
T: +61 8  6167 9803

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