Tag: property

A View Worth Mentioning: Agent’s Half Truth Unwinds $6.2m Bronte Sale

October 30, 2026by baron + associatesLeave a comment

A vendor of Land in NSW is generally under no duty to disclose future possibilities that may affect a property. However, a recent Supreme Court decision confirms that once a vendor or its agent chooses to speal on a subject, a statement that is literally true can still be misleading.

In Keci v Barnes [2026] NSWSC 521, the purchasers exchanged contracts in February 2026 to buy a Bronte home marketed with “sweeping ocean views” for $6.2 million. The adjoining site had consent for nine units, but the Minister had recently declared a proposal for up to 120 dwellings of up to nine storeys on that site to be State Significant Development. The vendors knew of the declaration and had discussed it with their agent.

During inspections, the purchasers asked about the construction next door. The agents told them that nine houses were being built and would not obstruct the ocean views. There was no mention of the larger proposal, which the purchasers later discovered on social media.

Williams J accepted that the statements were literally true. However, because the vendors were promoting the ocean views and the effect of development next door was obvious, a reasonable purchaser would have understood the agents to be conveying everything material known on the subject. By omitting the declaration, the agents impliedly represented that the vendors knew of no facts creating a risk to the views.

It did not matter that the proposal might never proceed, as the risk was real rather than speculative. The Court also rejected the argument that the statements were made in casual conversation, and held that the contract’s “entire agreement” and “no reliance” clauses did not displace their inducing effect. The contract was rescinded and the vendors were ordered to refund the $310,000 deposit.

Ultimately, the decision illustrates the distinction the courts draw between a vendor’s lawful silence and a partial answer that omits known risks.

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Mould, Strata Repairs and Lost Rent: The Limits of a Lot Owner’s Claim

October 30, 2026by baron + associatesLeave a comment

Under section 106(5) of the Strata Schemes Management Act 2015 (NSW), a lot owner can recover reasonably foreseeable losses caused by an owners corporation’s (OC) failure to repair common property. A recent NCAT Appeal Panel decision explains how these claims are assessed, and how the Tribunal treats an OC that is late, but willing, to comply with repair orders.

In The Owners – Strata Plan No 6707 v Gaters [2026] NSWCATAP 331, consent orders required the OC of an Auburn scheme to obtain a mould expert’s report and, if recommended, engage a builder to remove mould in a lot and rectify it within four weeks. The report recommended that a builder first assess the sources of water ingress. The OC engaged a contractor to investigate, but access was not sought until after the deadline.

On the lot owner’s renewal application, the Tribunal found the OC had “no intention” of complying and ordered it to pay $10,635. The owner’s claims for medical expenses and $39,514 in lost rent were dismissed.

The Appeal Panel allowed the OC’s appeal. Investigating the water ingress was exactly what the expert had recommended and fell within the original order, and the finding that the OC had no intention of complying was against the weight of the evidence. As the Tribunal’s discretion had been exercised on a mistaken view of the facts, the matter was remitted for rehearing.

The owner’s cross-appeal was dismissed. He had continued to live in the unit, so the “potential” to earn rent was not an actual loss. The Panel added that a lost rent claim must be supported by sworn evidence and assessed on net income after expenses. The medical expenses claim failed for want of evidence linking the owner’s condition to a breach by the OC.

Ultimately, the decision illustrates that section 106(5) compensates for actual, proven loss, and that an OC’s efforts to comply are relevant to the Tribunal’s discretion on renewal.

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Make Good Clauses: When Does a Tenant Have to Remove Its Fit-Out?

October 30, 2026by baron + associatesLeave a comment

Make good disputes often arise when a long commercial lease ends. A recent NSW Supreme Court decision shows that their resolution depends on reading the lease as a whole, rather than interpreting a single phrase in isolation.

Allied Pinnacle Pty Ltd v G R Mailman & Associates Pty Ltd [2026] NSWSC 87 concerned commercial premises at Huntingwood in Western Sydney. The tenant took a ten-year lease in 2015, with options for two further five-year terms, and installed a substantial fit-out at the start of its tenancy. The current landlord bought the premises in late 2017. The tenant did not exercise its option and vacated in August 2025, leaving the fit-out in place.

The central question was the meaning of clause A2.1, which required the tenant to yield up the premises consistent with their “condition” at the commencement of the lease. The landlord argued this meant restoring the pre-fit-out layout. Muston J preferred the tenant’s view that “condition” referred to the standard of the premises, not their configuration. The word was used in that sense in clauses A2.2(c) and A24.5, and the more specific make good provisions in clause A24, which prevailed, contained no reinstatement obligation. Clause B1(22) also gave the tenant a discretionary right to remove its fixtures, which would have been pointless if removal was compulsory.

The tenant did not escape liability entirely. Clause A24.3(b) required repainting of “all painted surfaces”, including the exterior, and the tenant was liable for outstanding redecoration works, including furniture removal, internal repainting and carpet works. The Court rejected arguments based on failure to mitigate, repudiation, waiver, estoppel and an implied duty of good faith, and found that the unconscionable conduct claim would have failed in any event. Damages were referred to by the referee.

Ultimately, the decision illustrates that general yield-up wording will be read in light of the lease’s more specific make good provisions.

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Family Development Dispute Ends in Court-Ordered Sale Under Section 66G of the Conveyancing Act

October 30, 2026by baron + associatesLeave a comment

Informal arrangements between relatives to buy and develop property together can be difficult to unwind if the relationship breaks down. A recent NSW Supreme Court decision illustrates how readily the Court will order the sale of co-owned land.

In Russo v Russo [2026] NSWSC 4, an uncle and nephew, both licensed builders, bought land at Revesby in 2015 for $950,000 as tenants in common in equal shares. They agreed orally to subdivide it and build two detached houses, each with a pool, using the nephew’s construction company, with each taking one house. The subdivision was registered in 2022, but the planned partition never occurred. After disputes over development costs, the uncle applied under section 66G of the Conveyancing Act 1919 (NSW) for trustees to be appointed to sell the properties.

Richmond J confirmed that a co-owner is entitled to a section 66G order almost as of right, with the onus on the co-owner opposing it. An order may be refused where a sale would be inconsistent with a contractual right, but not merely for hardship or unfairness.

The nephew relied on the agreed term that each would become the registered proprietor of one lot. However, the Court found the parties had agreed the houses would be the same, a term given effect by a building contract requiring variations to be agreed in writing. Without such a variation, the nephew built his house using a more expensive concrete panelling system, so the term was not enlivened and did not prevent a sale.

Trustees could not be appointed immediately, as section 66G requires at least two individual trustees and only one had been proposed. Two trustees were later appointed in Russo v Russo (No 2) [2026] NSWSC 311. The nephew’s cross-claim for $335,392.12 in unpaid contributions was dismissed, as his records were uncorroborated and many entries were unrelated to the development.

Ultimately, the decision illustrates the limited weight an informal arrangement between co-owners may carry once the relationship has broken down.

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