Wednesday, 26 October 2011

Personal Property Securities start date may be deferred again!

Further to my previous posts about the Personal Property Securities Act start date (4 September 2011 and 28 September 2011), the Federal Government introduced legislation into Parliament on 12 October 2011 which allows the start date to be further delayed.

The Personal Property Securities Register states that: "The purpose of the Bill is to assist in managing any risks which may arise approaching the implementation date and to remove the default commencement date of 1 February 2012."

The Bill achieves this purpose by amending the definitions of 'migration time' and 'registration commencement' time to allow the Commonwealth Attorney-General to determine a time other than the automic times set out in the Personal Property Securities Act.

At the moment, a further announcement is expected before Christmas 2011 about whether the start of the scheme will be further delayed.

W G Stark
Hayden Starke Chambers

Friday, 21 October 2011

How does a tenant obtain relief against forfeiture of its lease? (Part 1)

The classic decision in Victoria on this issue was made by Ormiston J in Jam Factory P/L v Sunny Paradise P/L [1989] VR 584. Ormiston J concluded that where a tenant undertakes to pay arrears of rent and to perform any other covenants which were breached, relief against the tenant's forfeiture of the lease should be granted as a matter of course, and refused only in exceptional circumstances. A failure to pay rent does not constitute an exceptional circumstance unless there are consistently lengthy defaults, leading to an inference that the rent will not be paid in the future.

In December 2010, I appeared for a tenant who sought relief against forfeiture in a retail leasing dispute in the Supreme Court (see V&O Princi P/L v Prestige Holdings Group P/L [2010] VSC 627).

The case was unusual because it was not dealt with by VCAT (see my earlier blog about VCAT's exclusive jurisdiction over retail leasing disputes). 

I have written a paper about that decision, which is available on the Greens List web site: under library, cpd papers, property law, Seminar on Property Law presented by Russell Cocks.

The case stands as further proof of the fact that it is very difficult for a landlord to oppose an application by a tenant for relief against forfeiture successfully.

W G Stark

Hayden Starke Chambers

Tuesday, 4 October 2011

Severance of joint tenancies paper 2011

I presented a paper at a Greens List breakfast briefing on Thursday 6 October 2011 on "Severance of joint tenancies". The paper is now available on Greens List's new web site. See: , then the library tab for a copy of the paper.

W G Stark
Hayden Starke Chambers