When will development consent lapse on a property?

A recent decision by the NSW Court of Appeal has discussed the circumstances in which development consent will lapse where a developer does not commence work relating to the site within five years of the date consent is given. In Cando Management and Maintenance Pty ltd v Cumberland Council [2019] NSWCA 26, the Court was asked to determine whether various construction work on the site ‘related to the subject of the consent.’ Previous demolition work that breached conditions of the development consent had been undertaken on the site, as well as the clearing of some shrubs and trees, which at first instance was deemed not to be in accordance with the consent. However, on appeal, the Court held that the independent action of clearing of shrubs from the site was not in breach of the development consent, and therefore qualified as work ‘relating to’ the subject of the development consent. Therefore because of this work, the development consent had not lapsed on the property in question.

Landlord’s lease repudiated for failure to replace Air-Conditioning

In the recent case of 3 Sth Melb Pty Ltd v Red Pepper Property Group Pty Ltd [2018] VCAT 1684 the Victorian Civil and Administrative Tribunal ruled that a landlord had repudiated their lease with a commercial tenant by failing to replace an air-conditioning unit (‘AC’). The case involved a series of written and verbal agreements that related to the upkeep of the AC, with a special condition stating that the tenant was responsible for the maintenance and service of the unit, whilst the Landlord had agreed to provide an AC that serviced the premises. Following ongoing disputes about the adequacy of the supplied AC, the Tribunal surprisingly ruled in favour of the tenant, deciding that the Landlord had breached a fundamental term of the lease by not fulfilling his obligation to provide an AC that serviced the premises.  In the Tribunals eyes, this amounted to a repudiation of the contract.

When is a delay in bringing Court proceedings ‘inexcusable’?

In the recent case of UBS AG v Tyne [2018] HCA 45, a majority of the High Court found that litigation between Mr Tyne and UBS that had spanned eight years, three courts and both Singapore and Australia, was an abuse of process. Under s37M of the Federal Court of Australia Act 1976, the overarching purpose of the court is the just resolution of disputes as quickly, inexpensively and efficiently as possible. Two years after unfavourable rulings in both the High Court of Singapore and the Supreme Court of NSW, Tyne commenced proceedings in the Federal Court in order to rely on trade practices legislation.

The High Court considered that the operative delay of up to three years between the NSW and Federal proceedings, and was substantial and unacceptable. The Court also considered what the public perception of the lengthy litigation would be, concluding that a right thinking person would believe that eight year long proceedings were inefficient and a careless use of public money. This case highlights the reluctance of the court to allow the Court’s time and money to be wasted on lengthy proceedings.

New mandatory text to be issued in warranties to consumers

The Federal Government has sought to increase protection for consumers by amending the Competition and Consumer Regulations 2010 (Cth) introducing mandatory text for warranties against defects for services. From June 2019 any business that provides services or goods and services must amend their warranty documentation to comply with the recent amendments of the Act that specifically lay out the guarantees that cannot be excluded under Australian Consumer Law. While exceptions may apply, it is an offence to provide a consumer warranty that fails to comply with the prescribed regulations.

Plans for a building commissioner announced by NSW Government

The NSW government has announced their plans to appoint a Building Commissioner to oversee new multistorey residential buildings and compliance with the National Construction Code. Under the new initiative, the Commissioner would be responsible for the registration, licensing and auditing of building practitioners, approving designs, and enforcing the new laws that will be coming into effect later this year. These changes are the latest recommendations to be followed as a result of the Shergold-Weird Report on the building and construction industry.

When will a trust be implied?

In the recent case of Jain v Amit Laundry Pty Ltd [2019] NSWCA 20 the NSW Court of Appeal was asked to determine a dispute relating to the beneficial ownership of a property. While Rajil Jain was the sole registered proprietor of the property, the deposit on the property and mortgage repayments were paid by a family business, namely Amit Laundry Pty Ltd (the Company). When Rajil attempted to sell the property, Amit Laundry Pty Ltd claimed that Rajil held the title to the property for the Company on a resulting trust.

The court ultimately held that there was a presumption of a ‘resulting trust’ due to the fact that the deposit and mortgage repayments were paid by the Company, and ownership was deemed to be vested in Amit Laundry Pty Ltd.

Victorian approach to Security of Payments rejected by NSW Supreme Court

A recent decision by the NSW Court of Appeal in in Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) [2019] NSWCA 11 has reaffirmed that the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) can operate for the benefit of builders and contractors that are in liquidation. While the appeal of the original Supreme Court decision was allowed on other grounds, the Court of Appeal agreed with the primary judge that the Victorian precedent laid out in Façade Treatment Engineering Limited (in liquidation) v Brookfield Multiplex Constructions Pty Ltd [2016] VSCA 247 was “plainly wrong” in ruling that insolvent parties cannot claim under Part 3 of SOPA.

When is mould in rental properties the landlord’s responsibility?

A number of recent cases in NCAT have explored the consequences of terminating leases due to mould, highlighting the circumstances in which it is the landlord’s responsibility to deal with mould within a residential rental property. In Andrew Fletcher and Song Fletcher v Luke Bunbury [2015] NSWCATCD 60, the tenants gave a 14 day termination notice after an expert issued a report that the property in question was not fit for habitation. While the landlord had taken steps to install sub-floor vents, and the tenant had kept the property cleaned and the windows open for ventilation, the mould problem was still prevalent. The landlord argued that the tenant had misused the property by failing to ventilate, but the Court ultimately held that it was the landlord’s responsibility to ensure the premises was habitable. As compensation, the tenant was given a refund of excessive rent for the rooms they could not use due to the mould and $15,000 for the cost of professionally decontaminating their affected goods.

What does the banking royal commission mean for consumers?

The government has announced it will support all of the 76 recommendations made in the final report from the Banking Royal Commission, suggesting that there is likely to be significant changes to home loans, mortgage brokers and compliance bodies in the financial sector by the end of the year. In relation to the property industry, Commissioner Hayne heavily criticized the lending practices of banks with home loans, particularly their reliance on the inaccurate household expenditure benchmark (HEM). While various banks have pledged to reduce their use of the HEM, home loan applicants may find their regular discretionary expenses playing a greater role in home loan applications from now on, potentially making it harder to get a loan. Mortgage brokers were also a key focus of the report, with Hayne recommending that the current commission based system be replaced with an upfront fee paid by home loan applicants, as well as an obligation for brokers to act in their clients best interests.

Are online shopping warehouses ‘retailers’ for the purposes of a lease?

A recent decision in the Victorian Civil and Administrative Tribunal (VCAT) has examined whether a premises primarily used for the production, packing and storage of goods sold online fell within the definition of ‘retail premises’. In Bulk Powders Pty Ltd v Seicon Pty Ltd [2018] VCAT 2000, the tenant used the property in question to create and store health supplements that it mostly sold online, however customers also had the option of picking up their products from the premises itself. Notably, only about 5% of sales were conducted in this way. Whether the property was being used for retail purposes was a key issue, as the lease in question specifically stated that the tenant could ‘produce, package and store online health supplements (not retail).’

Ultimately the VCAT held that the premises was not being used for a retail purpose. Weight was given to the fact that generally the premises was not open to the public, and there was no advertising or signage indicating the property was a retailer.