The Property Mill – New South Wales – 21 October 2013

October, 2013

In the media

Boost in commercial property sales

Investment activity in the Australian commercial property sector is strengthening, with new data from CBRE showing that September quarter 2013 sales were up 51 per cent on the prior corresponding period in 2012 (04 October 2013)

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Office demand returns to positive territory

After recording a negative result in the second half of 2012, BIS Shrapnel’s underlying demand indicator for the office market has returned to positive territory, with employment cuts easing (04 October 2013)

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HSBC: Housing boom’ spells end to rate cuts

Amid talk of a housing ‘bubble’, capital city housing values rose by 3.7 per cent in the third quarter of the year to take prices to a record high. Capital city house prices rose by 1.6 per cent in September and by 3.7 per cent in the third quarter, resting at 5.5 per cent higher for the year (02 October 2013)

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NSW the happening state for new housing

The number of new houses approved in NSW continues to track at the highest levels in nine years, with approval rates continuing to rise in NSW despite falling nationally, according to data released by the ABS (02 October 2013)

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New standard contracts for retirement villages

The Minister for Fair Trading releases new streamlined standard contract and disclosure documents for retirement villages must be in place from today, with amendments to the Retirement Villages Regulation 2009. Operators must also give potential residents a detailed disclosure statement at least 14 days before they sign a village contract (01 October 2013)

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Albert Ling v Pan Pac Investment Pty Limited [2013] NSWSC 1481

REAL PROPERTY – Torrens title – caveats against dealings – removal – caveator – prima facie holds caveatable interest in form of equitable charge – balance of convenience favours extension of caveat – motion for removal dismissed.  Contracts Review Act 1980;  Real Property Act 1900

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Roads and Maritime Services v Devine Marine Group Pty Ltd [2013] NSWSC 1467

REAL PROPERTY – entitlement to possession of land – whether merely monthly licence – whether lease granted – whether there was a “grant” of interest in land by reason of consent to development application

CONTRACT – construction of licence and lease agreements – implied terms

CONSUMER LAW – misleading or deceptive conduct – Fair Trading Act 1987 – Australia Consumer Law – whether government body carrying on a business

EQUITY – unconscionability – bad faith

PRACTICE AND PROCEDURE – whether admission made – whether authority to make admission – whether reason to doubt admission

Competition and Consumer Act 2010 (Cth); Environmental Planning and Assessment Act 1979

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The Owners-Strata Plan 64282 v Patelis [2011] NSWSC 222

INTERIM RELIEF – injunction – where the defendant has undertaken significant building works to a unit in a strata plan without the consent of the Owners Corporation – where the Owners Corporation has issued a notice of breach of by-laws – where the defendant has sold the unit to a third party purchaser – where the transfer has been lodged at the Land Titles Office but not yet registered – whether the Owners Corporation is entitled to an interim injunction to preclude the defendant from taking further steps to complete the sale of the unit pending further order of the Court – discretion to exercise the Court’s jurisdiction, laches, utility and the adequacy of damages considered in the context of an interlocutory injunction

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Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156

JUDICIAL REVIEW – claim to prevent council selling land on basis that under Local Government Act 1993 it is classified as community land, which council has no power to sell – re land vested in council as at 1 July 1993, whether 1994 resolution classifying it as operational land beyond power because deemed to be community land under cl 6(2)(b) Sch 7 – whether presumption rebuttable and rebutted – whether advance public notice of 1994 resolution as required by s 34 – re land acquired by Council after 1 July 1993 by agreement as contemplated by local environmental plan and Land Acquisition (Just Terms compensation) Act 1919, whether 1998 resolution classifying it as operational land beyond power because inconsistent with terms of trust or instrument executed by transferor as provided in s 31(3)(b) – whether advance public notice of 1998 resolution as required by s 34 – whether resolutions invalid under Project Blue Sky principles – whether Council has defence under s 54 on basis of power to issue conclusive certificate as to classification given that s 53 land register records the subject land as operational – whether proceedings barred by time limitation in s 729 – whether relief should be refused in the Court’s discretion.

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National Australia Bank v David Clark & Ors [2013] NSWSC 1461

POSSESSION OF LAND – default judgment for possession of mortgaged property – refusal of registrar to set judgment aside – appeal from registrar’s decision – whether defendants have arguable defence to claim for possession – appeal dismissed

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John Allan Batty v Sharon Doherty and Anor [2013] NSWSC 1441

REAL PROPERTY – application for appointment of trustees for sale Conveyancing Act 1919 s 66G – property owned by six siblings in equal shares – whether service of the Summons on all co-owners proved – one of the co-owners bankrupt – whether, and if so how, the trustee in bankruptcy should be joined as a party – outstanding dispute between the parties in relation various property related payments made by two of the co-owners – potential promissory estoppel claim by one of the co-owners. Conveyancing Act 1919 s 66G

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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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