Author: baron + associates

Baron + Associates is pleased to note the recent development approval for the InterContinental Hotel site in Double Bay. The approval is a significant milestone for the consortium behind the project, and follows from our earlier involvement in the complex acquisition and advisory stages. Our involvement extended to providing input and advice on the development strategy. 

The redevelopment will transform this landmark site into a luxury precinct and represents a substantial investment in the ongoing evolution of Double Bay’s retail, residential, and lifestyle landscape. Our involvement in this major development further reinforces Baron + Associates’ reputation as a trusted legal advisor for developers, investors, and business owners undertaking projects in Sydney’s competitive property market.

For expert advice on property and commercial matters, contact Baron + Associates.

NSW Parliament has introduced significant changes to rental laws through the Residential Tenancies Amendment Act 2024 (NSW) and the Residential Tenancies Amendment Regulation 2025. These reforms aim to offer “stability for tenants and certainty for landlords”. Several of the key changes are outlined below:

Rent increases: Rent can only be increased once per year for all lease types.

• Fees at the start of a tenancy: Landlords cannot charge extra fees for background checks or for preparing a tenancy agreement.

(Commenced 31 October 2024)

• Ending “no grounds” terminations: Landlords must provide a valid reason to end a lease.
• Payment of rent: Tenants must be offered the option to pay rent via bank transfer without additional fees, or through Centrepay.
• Supporting documents for terminations: Landlords must provide supporting documents when ending a tenancy because the property is: being offered for sale, sold, repaired or renovated, demolished or occupied for personal use.
• Notice periods: Tenants are entitled to longer notice periods depending on the type of lease.
• Re-letting restrictions: Where a tenancy ends for specific reasons, landlords must comply with prescribed waiting periods before re-letting the property.
• Pet ownership: Tenants can more easily keep pets, with landlords required to respond to pet requests in writing within 21 days. Strata by-laws that ban all pets are not valid and cannot be used as a reason to refuse a pet.

(Commenced 19 May 2025)

The NSW Court of Appeal has reshaped how damages are assessed in construction disputes involving misleading or deceptive conduct. In Larsen as trustee for the Larsen Superannuation Fund v Tastec Pty Ltd (formerly Wonders Building Company Pty Ltd) [2025] NSWCA 145, the Court held that damages are not restricted to assessing the “diminution in value” of a home or other project, but can include consideration of the position the victim would be in had the misleading or deceptive conduct not occurred.

This case regarded a prefabricated home contract in which the builder persuaded the Larsens to accept a contract variation that substituted their preferred Maxline 340 sheeting with Bondor 580 panels. This change, achieved through misleading representations by the builder, led to structural problems in the house. The District Court initially dismissed the Larsens’ claim because they had not demonstrated their home would have been worth more if the Maxline 340 cladding had been used. However, the Court of Appeal held that this approach was too narrow.

The Court found that the Larsens were entitled to damages in the form of the “cost of rectification to return them to the position they would have been in, but for [the builder’s] contravening conduct”. In particular, the damages awarded included the cost of the Maxline 340 sheeting and the price of its installation in their home.

This decision significantly broadens the potential scope of damages in construction disputes, emphasising the enforceability of contractual rights and the impact of misleading or deceptive conduct.

The NSW Government has classified 30 new projects as State Significant Developments (SSDs), following recommendations from the Housing Delivery Authority. These projects, mostly in metropolitan Sydney, could deliver more than 10,800 homes, including affordable housing, helping address housing supply pressures across the State.

A development is deemed SSD under the Environmental Planning and Assessment Act 1979 if it has economic, environmental, or social significance to the state, such as large-scale residential projects, hospitals, schools, or major industrial facilities. SSD status provides developers with an alternative approval pathway and bypasses local council development controls. Even though a project being declared as SSD does not guarantee faster construction, it does require that construction commences within 12 months of receiving approval.

The Department of Planning, Housing and Infrastructure coordinates SSD assessments, engaging councils, state agencies, and collecting community feedback, with projects publicly exhibited for at least 28 days. Decisions are then made by the Minister for Planning or the Independent Planning Commission.

These recent SSD declarations highlight the State’s strategic use of planning powers to accelerate housing without compromising community input.

The NSW Government has proposed significant reforms to the Environmental Planning and Assessment Act 1979 (NSW) in the Environmental Planning and Assessment Amendment (Planning System Reforms) Bill 2025 (NSW) on September 17. This bill aims to refine planning goals, reduce approval delays, and support faster housing delivery. In particular, the reforms target small and medium-scale projects under $1 million, which make up 90% of development applications.

Key proposed changes include:

• New assessment process: A ‘targeted assessment pathway’ will increase efficiency by avoiding duplication in assessments. This pathway will switch off issues that have already been covered by development codes or strategic planning measures.
• Streamlined modification pathways: Modifications that are minor or have no environmental impact must be approved quickly to reduce delays and any associated costs.
• New development authorities: The Housing Delivery Authority is now enshrined in legislation. A Development Coordination Authority (DCA) will be created to reduce delays by enhancing collaboration and consolidating decision-making between different State Government agencies.
• Standardised consent conditions: Standard conditions of consent will be prescribed to increase consistency, and consent authorities will be required to engage with applicants prior to finalising conditions.
• Proportionate assessment: Proposed amendments to Parts 4 and 5 of this Act will require consent authorities to focus only on ‘significant’ impacts of development rather than ‘likely’ impacts, and assess the environmental impacts of applications in a way that is proportionate to the nature and risk of the project.

The Supreme Court’s decision in 374, 376 New South Head Road Pty Ltd v SMLXL Projects (NSW) Pty Ltd [2025] NSWSC 886 highlights the challenges for claims made against third-party insurers under the Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW).

In this case, New South Head Road Pty Ltd (the Developer) sought leave to recover damages and loss directly from the insurer of SMLXL Projects (the Contractor), after the Contractor went into liquidation. To obtain leave, under the Act, proof of three elements is required: first, there is an “arguable case” that the Contractor was liable, second, there is a “reasonable possibility” that the Contractor would be unable to fully pay any judgment that may be made against them, and finally, that the Contractor is entitled to indemnity under their insurance policy if found liable to the Developer.

While the first two elements were established, the Court found that there was no arguable case that any of the alleged defects or delay claims were indemnifiable. William J confirmed that under “claims made” policies, only a clear and timely written demand that meets the policy definition of a “Claim” can activate an insurer’s obligation to provide indemnity. The court held that correspondence including complaints or requests for rectification, such as those made in this case, are unlikely to be considered a written demand that amounts to a “Claim”.

The case provides an important reminder that the availability of insurance recovery depends as much on policy wording as it does on underlying liability.

The treatment of put options in residential property transactions has now been clarified. The Conveyancing and Real Property Amendment Bill 2025 (NSW) resolves the uncertainty that arose following the Supreme Court’s decision in BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265. In this case, the court unintentionally extended cooling-off rights to purchasers when a vendor exercised a put option.

Under the amendments, the Conveyancing Act 1919 (NSW) now defines ‘option’ to include both put and call options. This ensures consistent treatment: cooling-off rights apply only at the entry into an option agreement, not when the option is exercised. Vendors can therefore proceed with greater confidence that contracts formed by the exercise of put options will not face a risk of rescission.

The reforms also amend the prescribed wording of the required statement specifying the terms of cooling-off rights under the Conveyancing (Sale of Land) Regulation 2022 (NSW). A transitional period from 15 August 2025 to 31 May 2026 allows for outdated statements without invalidating contracts.

The message is clear: put options now follow the same legal framework as call options. This amendment restores certainty and strengthens the reliability of option-based residential transactions in NSW.

The NSW Court of Appeal’s decision in XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133 offers a timely reminder for parties using standard form contracts: optional clauses left uncompleted will not be implied by the courts.

In this case, XJS World Pty Ltd engaged Central West Civil Pty Ltd for civil construction works under a standard form contract and the section of the contract intended to record the “Date for Completion” was left blank. In another part of the contract, a footnote suggested the construction should be completed within three months. When the progress made by Central West Civil Pty Ltd allegedly fell behind, XJS World Pty Ltd sought damages of $1,000 per day.

The Court of Appeal held that the footnote could not be considered a binding completion date. Using a standard form contract required parties to “activate” optional provisions by adding in the relevant details. Leaving the “Date for Completion” section unfilled meant that the fixed completion date and liquidated damages were never contractually agreed upon, and therefore, Central West Civil Pty Ltd was not liable to pay liquidated damages. Additionally, the Court highlighted that the “aspirational” wording of the footnote did not impose a “contractual obligation” or override the primary terms of the contract.

This case emphasises the importance of carefully completing standard form contracts. Optional clauses, dates, and other information must be explicitly filled in to ensure enforceability, particularly when contractual liability or damages are at stake.

Retail landlords often face significant risks when tenants experience financial distress.

The decision in Heriot Pty Ltd v Williams [2024] NSWCATCD 35, in which Baron + Associates acted for the successful landlord, Heriot Pty Ltd, illustrates how crucial it is to secure personal guarantees when leasing to corporate lessees.

The case arose after tenant Bertha Two Pty Ltd, which had operated a Hungry Jacks restaurant from Heriot’s Campbell Parade, Bondi premises, was placed into liquidation in 2022, leaving significant rent arrears and other liabilities under its lease.

With the company unable to meet its obligations, Heriot turned to Bertha Two’s director, Mr Williams, who had personally guaranteed Bertha Two’s obligations under the lease.

Relying on the robust personal guarantee clause contained in the lease, the landlord sought to pursue Mr Williams as he had unconditionally guaranteed the payment of every sum of money whatsoever payable under the lease. Heriot successfully pursued Mr Williams in the NSW Civil and Administrative Tribunal, which in turn found that the guarantee was enforceable and that Mr Williams was personally liable to Heriot for $543,493.40 comprised of outstanding rent, rent for the balance of the term of the lease, cleaning and make good costs, re-leasing costs and interest.

The case underscores a vital protection for landlords: the personal guarantee. While company tenants can collapse, leaving landlords with little recourse, robust guarantees can allow recovery against individuals standing behind the corporate lessee.

This case is a clear reminder that:

• Corporate tenants can and do fail. Insolvency can leave landlords exposed without adequate security.
• Personal guarantees provide a safety net. They ensure landlords are not left chasing unrecoverable debts when a tenant company goes bust.

For commercial landlords, the lesson is clear: always insist on robust, enforceable personal guarantees before handing over the keys.

For tailored advice on protecting your interests as a landlord or navigating lease disputes, contact Baron + Associates.

The NSW Government has introduced the new Pattern Book Development legislation to accelerate housing approvals. This initiative is designed to address construction delays and increase affordable, environmentally friendly housing. It involves pre-approved, replicable housing designs that serve as “complying development” under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2009 (NSW). Developers and homeowners can use these patterns to streamline housing approvals by using accredited designers to prepare site-specific variations while maintaining the key design features of the original pattern.

This legislation offers a fast and predictable approval process, enabling pre-approved designs to proceed quickly while reducing planning uncertainty. However, there are several constraints. Crucially, there are site-specific design requirements and each lot must have legal access to a public road, which could require approval under the Roads Act 1993 (NSW).

The Pattern Book Development framework is expected to accelerate housing delivery across NSW while maintaining design quality and environmental standards. Its implementation marks a significant step in the NSW Government’s efforts to address housing supply and affordability challenges.