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In Namrood v Ebedeh-Ahvazi [2017] NSWCA 310, a property for sale was falsely advertised as a mortgagee sale. Mr Namrood attended the auction for this property and was the successful bidder at $1.46 million. After Mr Namrood had entered into a contract to purchase the property, he claimed that the advertisement of the auction by mortgagee sale was misleading and was calculated to and did induce him to bid at the auction.

The Court held that the advertisement of the property was misleading and deceptive. However there was no evidence that Mr Namrood made a bid because he believed it was a mortgagee sale. Mr Namrood stated that he bid at the auction because the bidding of other participants encouraged him to do so. Also, Mr Namrood had learned that the property owner was the manager of a housing company, which dispelled Mr Namrood’s belief that it was a mortgagee sale. Hence the Court held that despite the misleading and deceptive conduct, it did not cause him to enter into the contract. Read full case.

In Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd [2017] NSWCA 263, a development consent required the construction of a pipe. However the approved construction certificate plans did not show that pipe. At first instance, Pasminco argued that s 80(12) of the Environmental Planning & Assessment Act 1979 provided that the absence of the pipe in the construction certificate meant that it was not part of the consent. However the Court held that Pasminco should ensure that the works were generally consistent with the consent.

The Court of Appeal overturned this decision and stated that s 80(12) has the effect that where the specifications in the construction certificate are inconsistent with the specifications in the development consent, the construction certificate will override the development consent. Read full case

In Camden Nurseries Pty Ltd v Aussie Growers (Aust) Pty Ltd [2017] NSWSC 1770 Ms Cassar agreed to sell a property to Mr Marjan which they would develop and co-own. The agreement implied that Ms Cassar totally owned the property and would transfer the whole property to Mr Marjan. However Ms Cassar only had a share as tenant in common with Mr Palmer.

The Court held that the agreement was a sham since Ms Cassar had no intention of transferring her share to Mr Marjan. Hence the contract did not reflect the true intentions of the parties to become co-owners. The Court ordered Mr Marjan to remove the caveat that purported to grant him an interest in the property. Mr Palmer was entitled to possession of the property and to exercise the power of sale.

In Bridge v Coles Supermarkets Australia Pty Ltd (No 3) [2017] NSWSC 1800 Coles was the lessee of a car park. Mr Bridge commenced proceedings against Coles after he slipped and suffered personal injury in the car park. At the time, the car park was wet and the surface where Mr Bridge slipped had a polished finish. Under the lease Coles was required to keep the car park in good repair. The landlord was required to undertake “structural repairs”. Coles argued that they could not apply a non-slip coating to the surface because it was structural repair.

The Court held that Coles had a duty of care to take reasonable care to avoid foreseeable risk of injury to lawful entrants. Under the lease Coles had the power to repair the floor with a non-slip coating which was not structural repair. Even if this conclusion was wrong, a reasonable person in the position of Coles would have sought permission to undertake repairs since Coles had previously identified the polished surface as a safety hazard.

In Denshire v Roads and Maritime Services [2017] NSWLEC 181 Mr Denshire’s land was compulsorily acquired by the RMS for a highway upgrade. Mr Denshire appealed under s 66(1) Land Acquisition (Just Terms Compensation) Act 1991 regarding the compensation payable. Mr Denshire submitted a claim for special value since his father had plans to subdivide the land and sell off individual lots. In the Act special value means the financial value of any advantage of land in addition to the market value.

The Court held that the potential to subdivide and sell of individual lots is not a special quality of the land. Rather it is an inherent characteristic of the land. Its value is included in the market value. Hence no additional compensation was payable to Mr Denshire.

A new strata building bond and inspection scheme commenced on 1 January 2018. The scheme applies to building contracts entered into from 1 January 2018 for new residential or mixed strata properties of four storeys or higher. The reform is designed to encourage developers to address building defects early to avoid litigation.

Developers are required to pay a building bond equal to 2% of the contract price for the work to the Secretary of the Department of Finance. The Department will hold the bond for two years. An independent building inspector must be engaged by the developer to undertake inspections. An interim inspection occurs 15-18 months after completion of the work, and a final inspection occurs at 21-24 months after completion. If the interim inspection uncovers defects which are not rectified by the final inspection, the owner can use the bond for rectification.

On 6 November 2017, the federal government released new draft GST legislation that will take effect from 1 July 2018. Purchasers of new residential premises and home sites will be required to pay the GST on the purchase price directly to the ATO.

Developers will be required to provide written notice to the purchaser stating the amount of GST to be withheld. A penalty of $21,000 applies for non-compliance. Also, the purchaser will need to withhold GST equal to 1/11^th of the total price, even if the actual GST is lower such as when the margin scheme is used. Developers will report the actual GST amount in their business activity statement and be entitled to a credit for the amount paid to the ATO by the purchaser and a refund if this exceeds the actual GST.

In REW08 Projects Pty Ltd v PNC Lifestyle Investments [2017] NSWCA 269, REW08 entered into a contract to sell land to PNC. A special condition allowed the two parties to perform quarterly rescissions and subsequent re-entry into new contracts. Following a dispute, PNC sought an order to enforce one of the subsequent contracts. REW08 alleged that the contract was void for illegality because it had been entered into to avoid stamp duty. PNC then paid the full stamp duty amount.

The Court held that the Duties Act 1997 (NSW) and Taxation Administration Act 1996 (NSW) do not expressly nor impliedly render a contract unenforceable if it is made to avoid stamp duty. In this case a delay in the stamp duty payment was not essential to the bargain and did not invalidate the transaction. Depriving PNC of the benefit of the sale of land would have been a disproportionate penalty given PNC eventually paid stamp duty and REW08 suffered no loss. The Court ordered the contract to be enforced. Read full case