Author: baron + associates

In Pham v Enterprise ICT, Mr Sebie entered into a contract to sell his property. Mr Sebie failed to complete the contract and the purchasers sought specific performance of the contract. The purchasers had lodged a caveat over the property. Mr Sebie, without notice to the purchasers, dishonestly removed the caveat and transferred the property to Enterprise ICT Pty Ltd, the sole director of which was Mr Sebie. The Court held that the transfer to Enterprise ICT was fraudulent under sections 42, 43 of the Real Property Act 1900 (NSW). The Court ordered that Mr Sebie pay compensation to the purchasers for the cost they incurred of renting a house during the dispute, that the registration of title in the name Enterprise ICT be set aside, and the original contract be performed.

In George Ghossayn v Darcsol Pty Ltd t/as KJondarc Realty, Mr Ghossayn and Joandarc Realty entered into a written agency agreement regarding the sale of a property. A dispute arose regarding the real estate agent’s entitlement to commission which was allegedly orally varied. The Court held that the commission rate was not effectively changed by any oral agreement because no amendment was made to the written agency agreement, and because there was no evidence that the vendor informed his partner of any agreed change in the commission.

In Desane Properties v State of New South Wales, the plaintiff owned property in Rozelle that was to be acquired by the NSW government for WestConnex. The NSW Supreme Court held that the acquisition was invalid because the notice of the proposed acquisition given to the owner did not meet the requirements of the Land Acquisition (Just Terms) Compensation Act (NSW). This was because the notice stated that compensation could be expected within 45 days rather than 30 days, and that the notice did not specify the public purpose of the acquisition.

• The tree caused or is now causing damage to the applicant’s property on the land
• The tree is likely in the near future to cause damage to the applicant’s property on the land
• The tree is likely to cause injury to a person

In Gorczynski v Hale the defendants held title to land as executors of an estate of a recently deceased person. The plaintiff lodged a caveat claiming an interest at law or in equity over the estate. The plaintiff later made an application for extending the operation of the caveat. The Court held that for an extension of a caveat the onus is on the caveator to demonstrate that there is a serious question to be tried as to whether a caveatable interest exists. The Court held that the plaintiff did not establish this. The description of the caveat was defective by failing to specify the nature and extent of the interest claimed.

In Michael Kerr v Owners Corporation, the appellant sought an order under sections 62 and 65A of the Strata Schemes Management Act 1996 for common property to be repaired by the Owners Corporation to comply with the Building Code of Australia. Given the dilapidated state of the property and the notice given to the Owner’s Corporation, the Tribunal found that the Owners Corporation failed to comply with s 62. The Owners Corporation was ordered to engage a licensed builder to remedy the defect.

In 711 Hogben Pty Ltd v Anthony Tadros the landlord agreed to carry out, for the tenant’s benefit, building work designated on a plan for an approved childcare centre. The landlord did undertake building works however they weren’t in accordance with the plans. The Court made an order for the landlord to undertake the agreed building work since it was defined by a plan and the tenants had a substantial interest in the work being completed.

• bank guarantees are required to be returned within two months after the tenant has performed their obligations
• the financial jurisdiction of NSW Civil and Administrative Tribunal was increased to $750,000, allowing greater access for tenants to resolve disputes.
• leases for a term longer than three years must be registered and lodged within three months of their execution

In Riddle v White Constructions Pty Ltd [2018] NSWSC 384, a contract concerned the sale of a lot in a proposed subdivision. After the contract had been entered into with the purchaser, the vendor realised that an additional lot of land needed to be purchased to achieve registration of the subdivision. The vendor later included this additional lot of land in the contract for sale to the purchaser. However, the purchaser refused to purchase this additional lot, arguing that they were under no obligation to do so. The vendor served a notice to complete the purchase of both lots, and later terminated the contract.

The Court held that under the terms of the contract the purchaser was bound to purchase only one of the lots. The fact that the vendor had to acquire the additional lot to achieve registration of the subdivision plan did not entitle the vendor to add this additional lot into the contract for sale. The Court held that the vendor wrongfully terminated the contract and ordered that the deposit be returned to the purchaser. Read more