The Property Mill – Victoria – 24 September 2013

September, 2013

In the media

Australian real estate leads in sustainability  

The Global Real Estate Sustainability Benchmark 2013 Report released last week in Amsterdam, indicates Australia is leading the charge in the global real estate sector’s bid to reduce its environmental impact (16 September 2013)

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Fishermans Bend lures $2bn facelift  

The Victorian government has unveiled a new “draft vision” for the City of Melbourne’s ambitious plan to revitalise the Fishermans Bend industrial district that the government hopes will attract $2 billion in new investment from the private sector (17 September 2013)

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State to spend millions buying apartments next to East West Link  

Treasurer Michael O’Brien said the options included Linking Melbourne Authority taking over an owners’ contract before settlement and returning their deposit, LMA buying the apartment from the owner at market value, or the owner keeping the apartment and applying for compensation for a portion of the common ground acquired for the tunnel (11 September 2013)

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Record month for Australian wind farms  

August had broken records for wind power across the country, with Victoria, South Australia, Tasmania and New South Wales all hitting new highs during the period and beating the previous national record by more than a third, the Clean Energy Council says (04 September 2013)

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Re Comdain Homes Pty Ltd [2013] VSC 487  

PROPERTY – Restrictive covenant – Application for modification – Applicable legal principles – Covenant restricting erection on the land of any building other than one house not to be used for any purpose other than as a private dwelling or as bank premises– Application to modify to include use as a display home for two years – Whether modification will not substantially injure the persons entitled to the benefit – Application granted – Property Law Act 1958, section 84(1)(c).

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KY Enterprises Pty Ltd v Darby [2013] VSC 484  

REAL PROPERTY – adverse possession – land between two shops – land enclosed with adverse possessor’s land by locked gates – consideration of access to the land by registered owner from a door in the registered owner’s shop – whether adverse possessor abandoned possession by absence of one year – whether use of land by registered proprietor amounted to retaking of possession – significance of adverse possessor granting permission to registered proprietor to use land – Limitation of Actions Act 1958 (Vic) ss 8,9,14, 16 and 18.

REAL PROPERTY – trespass – whether defendant liable for the trespass of his agent or his tenant.

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Zuzic v Honeybee Toys and Ors (Civil) [2013] VMC 22  

Landlord and tenant- option for further terms lease- exercise of option –whether expression of clear intention – meaning to be applied to “tick” placed next to expression for renewal option – surrounding circumstances- whether effective option to renew informed by conditions precedent or conditions subsequent- claim for damages including interest and pre litigation costs

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Qin v Smith (No. 2) [2013] VSC 476  

SALE OF LAND – Vendor and Purchaser – Whether contract requires vendors to give vacant possession at completion – Vendors intimate that they would not give vacant possession at completion – Whether purchaser must tender price on date for completion – Time of the essence – Intimation that vacant possession would not be given relieves purchaser from tendering the balance of the purchase price on the day for settlement – Vendors give notice of rescission – Whether notice valid – Notice not valid and contract remained on foot – Whether term requiring vacant possession a mistake – Whether rectification available – Basis for rectification not established.

PRACTICE AND PROCEDURE – Summary judgment – No real prospects of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 – S 63 Civil Procedure Act 2010

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Contact Mills Oakley


James Price | Partner 
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Anthony Brearley | Partner
T: +61 3 9605 0810

Tom Cantwell | Partner
T: +61 3 9605 0958



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T: +61 7 3228 0432



Lachlan Paterson | Partner
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Catherine Hallgath | Partner
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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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