The Property Mill – Victoria – 1 November 2013

November, 2013

In the media

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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ASIC warns consumers about ads recommending SMSFs purchase properties through government scheme  

The Australian Securities and Investments Commission (ASIC) has sounded a warning about people promoting self-managed super funds (SMSFs) encouraging consumers to invest in residential property via the government’s National Rental Affordability Scheme (NRAS) (22 October 2013)

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Eastland expansion to create new Ringwood town centre  

Construction on the massive Eastland Shopping Centre expansion is set to begin with 150 new stores and a restaurant precinct due to be open by Christmas in 2015, Premier Denis Napthine announced today (29 October 2013)

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A $120 million tower of investment in Southbank  

Minister for Planning Matthew Guy has approved a new $120 million residential complex in Southbank, boosting economic investment and liability in the central area (29 October 2013)  

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J Renee Nominees Pty Ltd – v – Mastrogiannis & Anor [2013] VCC 1381  

Trade Practices – claim for return of deposit following rescission of contract for sale of property – whether representations made to induce entry into the contract – whether representations would give rise to relief under 9 Fair Trading Act 1999 (Vic) / s18 Australian Consumer Law 2010 (Cth); for innocent misrepresentation; and/or for negligent misstatement – whether in the alternative there was a fiduciary relationship such as could give rise to a breach of fiduciary duty – whether alternatively the plaintiff was entitled to rescind pursuant to s27(8) of the Sale of Land Act 1962 (Vic) – counterclaim for damages for failure to complete – quantum of damages – whether director of proprietary company also liable under contract.

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Burnet v Yarra CC (Includes Summary) (Red Dot) [2013] VCAT 1753  

NATURE OF CASE Abuse of process

PRACTICE OR PROCEDURE – consideration of individual instance or systemic issues

Application for review by objector struck out for abuse of process pursuant to section 75(1) Victorian Civil and Administrative Act 1998 – attempt by objector to secure a commercial advantage for the person bringing the proceeding – importance of third parties acting bona fide

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ZX Group Pty Ltd v LPD Corporation Pty Ltd [2013] VSC 542  

VENDOR AND PURCHASER – Contract for sale of land – Prior sale – Pre-contractual and contractual warranties that land not previously sold – Breach of warranty – Previous sale – Whether warranty essential term – Whether serious breach of intermediate term –Purported termination by purchaser under contractual default provisions – Breaches of s 32 Sale of Land Act 1962 – Purported rescission under s 32(5) Sale of Land Act 1962 – Rescission denied under s 32(7) Sale of Land Act 1962 – Fraudulent misrepresentation – Whether rescission for fraudulent misrepresentation – Whether contract affirmed – Service of notice to complete by vendor – Rescission notice – Repudiation by purchaser – Election by vendor – Alleged rescission on alternative ground – Misleading or deceptive conduct under s 52, s 53A Trade Practices Act 1974 (Cth) – Damages under s 82 Trade Practices Act 1974 (Cth) – Rescission and order for repayment of deposit under s 87 Trade Practices Act 1974 (Cth).

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Trewarne Antique & Fine Jewellery Pty Ltd v Perpetual Limited (Retail Tenancies) [2013] VCAT 1743  

Letter of offer – acceptance invited – agreement stated to be subject to approval of Landlords – limited time for communication of approval specified – no notice of approval given within time – interpretation of letter – intention of the parties – letter expressed in terms of a concluded agreement – performance required by Tenant – offer accepted – terms performed by tenant – Landlords purporting to refuse approval after time expired – condition of approval not a condition precedent to the formation of a contract but a condition precedent to performance – agreement unconditional upon expiration of time for communication of approval

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Ierardi v Morrison (Retail Tenancies) [2013] VCAT 1742  

Retail Lease – option for further term – whether exercised – whether tenant estopped from denying existence of further term or of new lease – overholding – increases in rental – how made and when effective – re-entry when no arrears unlawful

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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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