+news

In Strathfield Municipal Council v C & C Investments Trading Pty Ltd [2017] NSWLEC 155, Investments Trading carried out building works on a block of units not in accordance with the development consent. Investment Trading were issued an interim occupation certificate which breached the Environmental Planning and Assessment Act 1979 NSW. Investments Trading then leased the units. The Council sought interlocutory relief to stop the building work and to evict the tenants.

The Court granted the Council interlocutory relief to stop the building work. However the Court was not satisfied that removing the tenants was justified. The Court reasoned that eviction of the occupants would have removed the rental income which could have caused a default with the bank. Also, the evictions may have caused anxiety, disruption and expense on the relatively poor tenants. Read full case

In Ryde Ex Services Memorial and Community Club Ltd v Kaloriziko Ryde Pty Ltd [2017] NSWSC 1576, the purchaser of premises failed to complete the transaction by the settlement date. The vendor sought a court order to enforce the sale as the purchaser was not financially able to complete the transaction.

The Court held that specific performance may be refused due to the purchaser’s inadequate finances. However such refusals should be issued cautiously by the Courts. Generally it is not ideal that purchasers should be able to escape compliance with a sale of land contract based on financial problems. Read full case

In Chaudhary v Chaudhary [2017] NSWCA 222, Vincent advanced $1,200,356.42 to his son Adrian who was married to Justine. The advances were for the purchase of a property. After the marriage broke down, Vincent demanded repayment of $1,200,000. The Court considered whether the advances constituted a loan or a gift.

The court held that the deposit was initially a gift that was conditional upon the purchase of the property, especially since the deposit was payable to the agent. However it later changed to a loan due to a subsequent agreement between Adrian and Vincent. Regarding the stamp duty, incidental costs and the outstanding purchase price, Vincent had clearly stated that these were loans. It was agreed that if the marriage broke down Adrian would have to repay the loan. This agreement was included in a clause in the mortgage. The Court ordered Adrian to pay Vincent $1,200,000 plus interest. Read full case

On 18 October 2017 The NSW government introduced the Environmental Planning and Assessment Amendment Bill 2017 which amends the Environmental Planning and Assessment Act 1979. Planning authorities will be required to develop community participation plans which outline how they will consult the public regarding their planning decisions. There will also need to be public exhibition periods for any plans. Local strategic planning statements will be required to state the economic, social and environmental foundations for a Council’s planning decisions. A regulation will introduce a uniform style for development control plans.

Klein v McMahon [2017] NSWSC 1531 concerned the sale of land held by a husband and wife couple who were co-owners. The husband did not sign the contract for the sale. Instead the wife signed the contract personally as well as for her husband. The Court determined that the contract was legally enforceable since the wife was acting for her husband as his agent. This was supported by the circumstances including:

• The front page of the contract listed the wife as the Vendor’s Representative
• They previously discussed and agreed to the sale
• The husband customarily allowed his wife to handle his finances
• The husband suspected a contract had been entered into and so must have known he would be a party to it

In Sparway Pty Ltd v Lakkis [2017] NSWSC 146 a lessee argued that a legally enforceable contract to vary the lease arose in a conversation with the lessor. However the lessor stated that he would first need to consult his nephew, who was his business manager, before making a decision. The Court held that this meant the lessee did not intend to be immediately bound by the conversation. It was irrelevant that the lessor stated that there was “a deal”, and that they discussed the drafting of documents and shook hands. Accordingly the court held that there was no binding oral agreement to vary the lease.

In Elias v Alloha Formwork & Construction Pty Ltd [2017] NSWSC 1546 Bankstown City Council granted approval to build a new house on the condition that the building work be in accordance with the Building Code of Australia (BCA). The architect prepared drawings of the property and issued a certificate stating that the design met the BCA requirements. However, he failed to correctly classify the land according to its soil moisture. The Court held that it was at least implied by his retainer that he was under a duty to take reasonable care to prepare drawings that complied with the BCA. Had he done so, he would not have issued an incorrect certificate and the property owners would not have suffered delay of the construction.

In Play MR Pty Ltd v Heard Marketing Pty Ltd [2017] NSWDC 311, Play MR claimed a breach of contract for the late delivery of a website by Heard Marketing. Play MR had added a handwritten notation to the contract which stated: “It must be operational by April 1”. Play MR signed this redrafted contract and emailed it to Heard Marketing with a message highlighting the notation and stating completion date as 1^st April.

The Court held that by failing to object and continuing to work and send invoices, Heard Marketing accepted the revised contract which constituted a counter-offer. Also, a reasonable businessperson would have determined that the notation was obviously a term of the contract.