31 March 2012 was the last day to earn Continuing Legal Education points for the year.
On 30 March 2012, I presented a paper entitled "The PPSA and its impact on Leasing and Conveyancing" at Russell Cocks's annual Property Law conference.
A copy of the paper is now available at the Greens List web site: http://www.greenslist.com.au
W G Stark
Hayden Starke Chambers
Tuesday, 24 April 2012
Friday, 30 March 2012
Recent developments in Property Law 2012
I have just presented a paper entitled "Case law updates and developments" to Leo Cussen's annual Property Law intensive.
The paper covered 5 areas:
1. A mortgagee's duty on the sale of land in its possession under section 77 of the Transfer of Land Act, 1958, following MBF v Nolan [2011] VSCA 114;
2. Severance of joint tenancies, in view of the recent Supreme Court decisions of Sacks v Klein [2011] VSC 451 and Stassinopoulos v Stassinopoulos [2011] VSC 647;
3. Whether a substantial variation to a lease effected a surrender and re-grant of the lease, to bring it under the Retail Leases Act, 2003 and whether a tenant (the Richmond Football Club) could recover outgoings and land tax paid under a mistake of fact; following Richmond Football Club Ltd v Verraty Pty Ltd [2011] VCAT 2104;
4. Whether a tenant who had recently been granted an order for relief against forfeiture of its lease should be granted a second order when it was in default under the lease almost immediately after the first grant (see Lontav Pty Ltd v Pineross Custodial Services Pty Ltd [2011] VSC 485); and
5. The detailed analysis of notices of default served on tenants by Judd J in Primary RE Ltd v Great Southern Holdings Pty Ltd [2011] VSC 242.
A copy of all of the seminar papers from the intensive (including mine) are available from Leo Cussen Institute (web site: http://www.leocussen.vic.edu.au/ )
W G Stark
Hayden Starke Chambers
The paper covered 5 areas:
1. A mortgagee's duty on the sale of land in its possession under section 77 of the Transfer of Land Act, 1958, following MBF v Nolan [2011] VSCA 114;
2. Severance of joint tenancies, in view of the recent Supreme Court decisions of Sacks v Klein [2011] VSC 451 and Stassinopoulos v Stassinopoulos [2011] VSC 647;
3. Whether a substantial variation to a lease effected a surrender and re-grant of the lease, to bring it under the Retail Leases Act, 2003 and whether a tenant (the Richmond Football Club) could recover outgoings and land tax paid under a mistake of fact; following Richmond Football Club Ltd v Verraty Pty Ltd [2011] VCAT 2104;
4. Whether a tenant who had recently been granted an order for relief against forfeiture of its lease should be granted a second order when it was in default under the lease almost immediately after the first grant (see Lontav Pty Ltd v Pineross Custodial Services Pty Ltd [2011] VSC 485); and
5. The detailed analysis of notices of default served on tenants by Judd J in Primary RE Ltd v Great Southern Holdings Pty Ltd [2011] VSC 242.
A copy of all of the seminar papers from the intensive (including mine) are available from Leo Cussen Institute (web site: http://www.leocussen.vic.edu.au/ )
W G Stark
Hayden Starke Chambers
Thursday, 22 March 2012
New form of contract of sale of real estate from March 2012
Further to my post of 27 February 2012, there is a further new form of Contract of Sale of Real Estate in Victoria.
The latest changes have been brought about by the Consumer Affairs Legislation Amendment (Reform) Act 2010. The Act amended the Sale of Land Act 1962 (Vic), by:
The latest changes have been brought about by the Consumer Affairs Legislation Amendment (Reform) Act 2010. The Act amended the Sale of Land Act 1962 (Vic), by:
• the removal of the ability for deposits to be held in vendor/purchaser joint accounts for off‐the‐plan sales, and
• providing for cooling off rights where clients have received pre‐contractual advice from a legal practitioner.
These changes came into operation on 1 March 2012.
W G Stark
Wednesday, 14 March 2012
What's hot in mortgage enforcement?
I have just presented a paper entitled "What's hot in mortgage enforcement?" to a mortgage disputes seminar run by Legalwise Seminars.
The paper covers 4 areas:
1. A mortgagee's duty on the sale of land in its possession under section 77 of the Transfer of Land Act, 1958, following MBF v Nolan [2011] VSCA 114;
2. Mortgage fraud; specifically dealing with the Queensland decision in Commonwealth Bank of Australia v Perrin [2011] QSC 274;
3. Warrants of execution - covering Secure Funding v Doneley [2010] QSC 91; Wu v Ma [2011] VSC 208 and Kousal v Suncorp-Metway Ltd [2011] VSC 312 (the $1,000 sheriff sale case); and
4. The impact of the Personal Property Securities Act, 2009 on enforcement by mortgagees.
A copy of the paper is available on the Greens List web site: www.greenslist.com.au
W G Stark
Hayden Starke Chambers
The paper covers 4 areas:
1. A mortgagee's duty on the sale of land in its possession under section 77 of the Transfer of Land Act, 1958, following MBF v Nolan [2011] VSCA 114;
2. Mortgage fraud; specifically dealing with the Queensland decision in Commonwealth Bank of Australia v Perrin [2011] QSC 274;
3. Warrants of execution - covering Secure Funding v Doneley [2010] QSC 91; Wu v Ma [2011] VSC 208 and Kousal v Suncorp-Metway Ltd [2011] VSC 312 (the $1,000 sheriff sale case); and
4. The impact of the Personal Property Securities Act, 2009 on enforcement by mortgagees.
A copy of the paper is available on the Greens List web site: www.greenslist.com.au
W G Stark
Hayden Starke Chambers
Tuesday, 28 February 2012
New form of contract of sale of real estate
From 1 March 2012, there is a new form of contract of sale of real estate for use by lawyers in Victoria, brought about by the amendment of the general conditions in the Estate Agents (Contracts) Regulations 2008.
The current form of contract has been extant since September 2008.
I recently provided advice to a purchaser who had signed an old form of contract, which had been prepared by a practising lawyer in Victoria in 2010. The issue was whether General Condition 9.1 of the contract was void for uncertainty. That general condition provided:
Therefore, the reference to the repealed schedule was still effective to import the Table A conditions into the contract of sale.
In my opinion, and with all due respect, it is incumbent on lawyers in practice in Victoria to keep up to date with the current Regulations as they relate to contracts.
The use of the pre-2008 contract is almost inexcusable, especially in view of the imminent change on 1 March 2012.
W G Stark
Hayden Starke Chambers
The current form of contract has been extant since September 2008.
I recently provided advice to a purchaser who had signed an old form of contract, which had been prepared by a practising lawyer in Victoria in 2010. The issue was whether General Condition 9.1 of the contract was void for uncertainty. That general condition provided:
‘The general conditions in Table A of the Seventh Schedule of the Transfer of Land Act 1958 apply if the land is under the operation of that Act.’The problem is that Table A was repealed in 2009. The contract therefore purported to include conditions contained in a statutory schedule which did not exist.
Pursuant to s.70 of the Land
Legislation Amendment Act 2009 (Vic) (Act 80 of 2009), a transitional provision was inserted into the TLA (see
s.130) to deal with contracts that erroneously referred to the repealed
schedule. The transitional provision
states as follows:
‘On and from the commencement of s.71 of the Land
Legislation Amendment Act 2009, any reference to Table A of the Seventh
Schedule to this Act in a contract is taken to be a reference to Table A of
that Schedule as in force immediately before its repeal’.
Therefore, the reference to the repealed schedule was still effective to import the Table A conditions into the contract of sale.
In my opinion, and with all due respect, it is incumbent on lawyers in practice in Victoria to keep up to date with the current Regulations as they relate to contracts.
The use of the pre-2008 contract is almost inexcusable, especially in view of the imminent change on 1 March 2012.
W G Stark
Hayden Starke Chambers
Thursday, 16 February 2012
Are there any recent cases dealing with the Severance of joint tenancies in February 2012?
I recently presented an update of my paper to the Northern Suburbs Solicitors group.
After I presented my paper on 6 October 2011, Vickery J decided Stassinopoulos v Stassinopoulos [2011] VSC 647 (on 12 December 2011), relying in part on Hargrave J's decision in Sacks v Klein [2011] VSC 451, which my paper analysed.
Vickery J confrimed that a joint tenancy can be severed even after the right of survivorship has taken effect (by the death of the joint owner of the land).
The facts in Stassinopoulos were eerily similar to Sacks v Klein; in each case 2 brothers owned the land as joint tenants, and the surviving brother had taken the estate at the expense of the deceased brother's surviving spouse.
In each case, the judge found in favour of the widow and severed the joint tenancy.
W G Stark
Hayden Starke Chambers
After I presented my paper on 6 October 2011, Vickery J decided Stassinopoulos v Stassinopoulos [2011] VSC 647 (on 12 December 2011), relying in part on Hargrave J's decision in Sacks v Klein [2011] VSC 451, which my paper analysed.
Vickery J confrimed that a joint tenancy can be severed even after the right of survivorship has taken effect (by the death of the joint owner of the land).
The facts in Stassinopoulos were eerily similar to Sacks v Klein; in each case 2 brothers owned the land as joint tenants, and the surviving brother had taken the estate at the expense of the deceased brother's surviving spouse.
In each case, the judge found in favour of the widow and severed the joint tenancy.
W G Stark
Hayden Starke Chambers
Wednesday, 1 February 2012
High Court refuses to consider a mortgagee's duties on sale of mortgaged land
On 25 August 2011, I wrote a blog about the Victorian Court of Appeal decision in MBF Investments Pty Ltd v Nolan [2011] VSCA 114.
As I noted, the Court clarified the application of s77(1) of the Transfer of Land Act 1958.
In summary, the Court of Appeal found that a mortgagee must act must act fairly towards the mortgagor, and in a way that does not unfairly prejudice the mortgagor when exercising its power of sale. However, a mortgagee is not required to place the interests of the mortgagor above the interests of the mortgagee in recovering the debt.
The borrower in that case, Mr Nolan, applied to the High Court for special leave to appeal the Court of Appeal’s decision. Late last year, the High Court refused special leave to Mr Nolan.
As a result of the High Court's refusal, the law in Victoria about a mortgagee's duty to a borrower upon the sale of land under section 77 of the Transfer of Land Act 1958 is as set out by the Court of Appeal.
W G Stark
Hayden Starke Chambers
As I noted, the Court clarified the application of s77(1) of the Transfer of Land Act 1958.
In summary, the Court of Appeal found that a mortgagee must act must act fairly towards the mortgagor, and in a way that does not unfairly prejudice the mortgagor when exercising its power of sale. However, a mortgagee is not required to place the interests of the mortgagor above the interests of the mortgagee in recovering the debt.
The borrower in that case, Mr Nolan, applied to the High Court for special leave to appeal the Court of Appeal’s decision. Late last year, the High Court refused special leave to Mr Nolan.
As a result of the High Court's refusal, the law in Victoria about a mortgagee's duty to a borrower upon the sale of land under section 77 of the Transfer of Land Act 1958 is as set out by the Court of Appeal.
W G Stark
Hayden Starke Chambers
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