Published in Property Law & Conveyancing on 7th Mar 2012

In Duic it was held that a father’s promise that his property would belong to his son was an irrevocable promise. As a result the Court ordered Josip, (‘the father’) to transfer the property to Emil (‘the son’). Facts The father was the registered proprietor of a property that was used by the son to operate a radiator service business. The father assisted the son in the business for part of the time. Following a disagreement between the two, the son allegedly forced the father out of the property and the father brought an action seeking possession of the property. The son cross-claimed on the following grounds: That the property formed part of partnership assets of radiator...

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Published in Property Law & Conveyancing on 29th Feb 2012

Previously, purchasers who consulted with a solicitor about their proposed purchase before signing the contract did not have the right to withdraw from the contract.  This contrasted with the rights of those who sought advice from a licensed conveyancer or those who did not seek advice at all, who were able to exercise their cooling off rights within three clear business days after signing the contract. Purchasers will now be able to end the contract within 3 clear business days of the day the contract is signed, unless one of the following exceptions applies: they bought the property at or within 3 clear business days before or after a publicly advertised auction; the property is us...

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Published in Property Law & Conveyancing on 12th Jan 2012

The case of Wood v Balfour  Wood had purchased property from the Balfour that had extensive termite damage, the cost of which to repair exceeded $200,000.00. Wood brought an action against Balfour alleging that Balfour had knowingly concealed the termite damage a couple of years prior to the sale and remained silent during the inspection process. Dishonesty  The matter revolved around the concept of dishonesty. If it was found that Balfour ‘was dishonest’ in patching up the damage caused by the termites and ‘dishonest’ in failing to notify Wood of the termite infestation then his conduct would be found to have been fraudulent and Wood would have been successful in his...

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Published in Property Law & Conveyancing on 14th Dec 2011

Prior to the amendments, any capital gain realised by the Trustee and distributed to the beneficiaries would have been ‘blended’ with different types of income. Now the Trustee will have the power to distribute capital gains to the beneficiary and the gain will maintain the same ‘character’ when the beneficiary is assessed as they had in the hands of the Trustee. To take advantage of these amendments, the Trust Deed may need to be varied to give the Trustee the power to stream these distributions. We recommend that you revisit your Trust Deed to ensure that it defines income appropriately and provides the power to the Trustee to distribute capital gains and franked distributions t...

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Published in Property Law & Conveyancing on 14th Dec 2011

In the recent case of Richmond Football Club Limited v Verraty Pty Ltd (ACN 076 360 079) (Retail Tenancies) [2011] VCAT 2104 (3 November 2011), the Tribunal held that in certain circumstances, a Deed of Variation may constitute a surrender (or termination) of the original Lease and re-grant of a new Lease. In this case, the Landlord was unaware of the ramifications of varying the original Lease and ultimately had to refund monies paid by the Tenant in relation to land tax.  The Tribunal’s decision may cause similar problems for other Landlords who agree or have agreed, after the introduction of the Retail Leases Act (“the Act”) in 2003, to vary Leases entered into prior to 2003...

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Published in Property Law & Conveyancing on 15th Nov 2011

GST on the sale of a property When selling a property, the sale may fall under one of three broad supply categories: Taxable supply – the Seller is liable for GST on the sale and can claim GST credits for anything purchased or imported to make the sale (ie. the GST paid on Real Estate Agent fees); GST-free supply – the Seller is not liable for GST, but can still claim GST credits for anything purchased to make the sale; Input Taxed supply – the Seller is not liable for the GST on the sale and cannot claim any GST credits. Steps to determine under which category your sale falls To determine the application of GST on your property the following needs to be explored: Are yo...

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