Property and Commercial – Tips and Traps

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By Tony Butler, Partner

The “Pokies” Defence

Lenders take note. The Supreme Court of NSW has recently decided that the National Australia Bank could not enforce its security and indeed, that that there was no default by the borrower in circumstances where funds had been fraudulently withdrawn from the loan account by the borrower’s wife.

The court held that there was no evidence the borrower had negligently or deliberately disclosed his PIN or password to his wife, thus enabling her to withdraw money to fund her gambling addiction.

As a result the bank was unable to recover the funds withdrawn by the borrower’s wife from the borrower, or take possession or and sell the borrower’s house.

Compulsory Drug and Alcohol Testing on Construction Sites

Building contractors are advised to review their policies and procedures as a result of amendments to the Building Code 2013 (Building Code) taking effect on 16 October 2015. These amendments require the implementation of drug and alcohol testing policies on construction sites.

While the requirements only apply to Commonwealth funded building work above certain values, they will no doubt have a more far reaching impact with regard to expectations of industry best practice.

The full article explaining these requirements can be found here.

Updated POA Forms

New Form 6 Appointment of Property Agent and a Form 8 Disclosure to Prospective Buyer are effective from 1 October 2015. We are not aware of any transition period, which means the new forms must be used going forward.

Retail Shop Leases Amendment Bill 2015

The Retail Shop Leases Amendment Bill 2015 (Bill) which was introduced into the Queensland Parliament on 13 October 2015 contains a hidden trap for Landlords.

In particular, under the proposed amendment to the Retail Shop Leases Act, a disclosure regime has been inserted to apply on exercise of an option by a tenant. The disclosure process includes the tenant having a right to withdraw its notice exercising its option if the disclosure regime is followed. If the disclosure regime is not strictly complied with, the tenant has a right to terminate the option lease and claim compensation from the Landlord at any time within 6 months of entering into the new lease.

For more information on the amendments proposed by this Bill, please see our publication earlier this year titled “Amendments to the Retail Shop Leases Act” here.

PPSA – Serial Numbered Goods

From 1 October 2015, businesses leasing out serial numbered goods (e.g. motor vehicles, aircraft, watercraft) for less than 1 year, are no longer required to record these transactions on the Personal Property Securities Register.

For further information, please do not hesitate to contact us.

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