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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

States across Australia are planning to phase out paper and utilise e-conveyancing transactions. In NSW by 1 July 2018, all standalone caveats, standalone transfers, standalone mortgages and refinances must be lodged online. From 1 July 2019 all mainstream property transactions including Certificates of Title are to be lodged electronically. All paper Certificates of Title will be cancelled. All conveyancing from 1 July 2019 will be completely digital utilising the online platform Property Exchange Australia (PEXA). Read more

In Maxcon Constructions v Vadasz [2018] HCA 5, Maxcon entered into a subcontract with Mr Vadasz in relation to piling works. A clause in the contract stated that Maxcon could retain a sum corresponding to 5% of the contract sum that would only be repaid when a certificate of occupancy and other requirements were obtained by the head contractor. The High Court held that this provision constituted a “pay when paid” provision, since it made the release of the retention dependent upon the head contractor obtaining the certificate. The Court stated that a paid when paid provision makes the liability of money owing or the due date to pay money contingent on the operation of another contract. Accordingly, the Court held that the clause was void. Read more

In Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85, the lessee served a notice to exercise an option to extend the lease on a solicitor whom they believed acted as an agent on behalf of the lessor. The lessor argued that the service was inadequate because the solicitor had no authority to receive the notice on their behalf.

The Court stated that whether an alleged agent has the authority to receive notice depends on the terms of the lease and the role of the agent. The lease did not define landlord to include or exclude agents of the lessor. Also, the solicitor had previously acted for the lessor over several years by dealing with other solicitors, sending correspondence and  receiving the previous option to extend the lease. The Court held that over several years, the solicitor held a general retainer to act on behalf of the lessor on whatever legal matters arose concerning the property. Hence the option to renew the lease was validly served. Read more

In RIHSF v Bhullar Steel Distribution [2018] NSWDC 72 the defendant leased a steel factory and was under a make good and repair obligation under the lease which required the defendant to make repairs to the premises and maintain it in a tidy condition. The plaintiff argued that at the expiry of the lease the defendant had not met this obligation.

The Court found that upon the defendant ceasing possession the premises were left in a damaged state and contained rubbish and discarded materials. The Court took into consideration the context of the site as a steel factory, and not an office. Despite this, the factory was not in a standard of repair and cleanliness. The defendant also argued that the make good and repair obligations were not incorporated into their current lease which was their second lease. However the Court held that under the continuation of lease agreement, the obligations were incorporated into the second lease. The parties did not objectively intend for these obligations to cease. Read more