Published in Property Law & Conveyancing on 10th Oct 2013

In Victoria, section 54 of the Retail Leases Act 2003 provides that a landlord is liable to pay a tenant reasonable compensation for loss or damage because the landlord “fails to take reasonable steps to prevent or stop significant disruption within the landlord’s control to the tenant’s trading at the retail premises”. Facts The case concerned a retail premises in a shopping centre that traded as a “pizza bar”. It is important to note that the lease specified the use of the premises as a “Takeaway Café”. The tenant was struggling to pay rent and fell heavily into arrears. The tenant complained to the landlord that it had fallen into arrears because another tenant was t...

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Published in Property Law & Conveyancing on 2nd May 2013

A successful appeal in the New South Wales Court of Appeal has overturned the above decision in Duic v Duic [2013] NSWCA 42. The issues on appeal were, first, whether the son changed his position in reliance on his father’s promises, rendering it unconscionable for the father to go back on those promises and second, if he did, what was the appropriate remedy. Evidence of Reliance The appeal Judge found that the evidence relied upon, namely the witness testimony of the Liberal Councilor for the Ryde City Council, did not sufficiently corroborate the son’s evidence. He had given some evidence about the son effecting improvements to the land, but none about whether the son did that wor...

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Published in Property Law & Conveyancing on 20th Sep 2012

This article aims to provide an outline of the various options that may be available to you. Changing the terms of your mortgage Any person who is experiencing financial hardship has the right to apply to their mortgagee to change the terms of their mortgage under the Code of Banking Practice or the Mutual Banking Code of Practice. Most lenders are signatories to the Codes and are therefore bound by the obligations prescribed. You might also be eligible to vary the terms of your mortgage under the hardship provisions of the National Consumer Credit Protection Act 2009 (“the new Code”) (see below). The three-tier system of dispute resolution The new Code has introduced a three-tie...

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Published in Property Law & Conveyancing on 23rd Jun 2012

What facts gave rise to this bizarre situation? Zhou owed a civil debt of about $100,000 to a creditor (“Wu”), who had obtained a judgment order to recover the debt. In reliance of that order, and upon Wu’s application, the Supreme Court issued a Warrant of Seizure and Sale, which led to the Sheriff’s sale of the property. At the first auction, the Sheriff had set a reserve price of $171,615.76, representing Zhou’s remaining equity in the property. The purchaser would have also needed to pay out the bank loan. The first auction was a failure in that no bids were received and the property was passed in. On application by the Sheriff, the Supreme Court allowed the Sheriff to sel...

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Published in Property Law & Conveyancing on 21st May 2012

However, as the invasion of Council tree roots onto private property and their extraction of moisture causing damage can be deemed at law to be an actionable “nuisance”, you may be entitled to compensation if you have suffered loss from Council tree roots. Nuisance can be briefly described as a civil wrong whereby one person (or entity) has interfered with your enjoyment and use of your land or has interfered with its physical condition. As your local Council owns the trees on Council property, it has a duty to take steps to eliminate the risk of damage caused by Council tree roots which is reasonably foreseeable. While Victorian Councils may have some defences to a tree root claim,...

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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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