1001 Conveyancing Answers Victoria By Lawyers

Conveyancing cases – VIC

13 February 2025 by By Lawyers

A selection of recent conveyancing cases has been added to By Lawyers 1001 Conveyancing Answers (VIC) as part of a review by our property author Russell Cocks.

The following conveyancing cases are among those that have been added:

Eastbound Estate Pty Ltd v DC Consolidated Investments Pty Ltd [2024] VSC 40 – concerning a vendor being allowed to end an off the plan contract in appropriate circumstances.
Brightman & Ors v Royal Pines Projects Pty Ltd [2024] QSC 149 – concerning the difficulty of establishing an implied finance condition.
Chiodo Investments Pty Ltd v Rilac Pty Ltd [2023] VSC 590 – concerning whether one of two directors may bind a company to a land contract.
Secure Funding Pty Ltd v Torbeckin Pty Ltd (in liq) [2024] VSC 571 – concerning when the forfeit of a deposit will be considered a penalty.
McLennan & Bisko v Dannaoui [2024] VCC 1786 – concerning whether a 15% deposit was a penalty.
Yarak Pty Ltd & Anor v Emerson Holdings (Aust) Pty Ltd [2024] VCC 371 – concerning disputed easements and access to laneways.
Brotherhood of St Laurence v Sarina Investments Pty Ltd [2024] VSCA 46 – concerning whether a lessor’s failure to repair defective premises may constitute a breach of the lessee’s right to quiet enjoyment.
Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208 – concerning whether a lessee’s complaints about the condition of the property justify non-payment of rent.
Eastcombe Pty Ltd v Fagersta Steels Pty Ltd (Building and Property) [2022] VCAT 780 – concerning whether a warehouse used to sell stainless steel was a retail premises.

Additional information has also been added about:

Deposit or option fee – A preliminary payment pursuant to a contract may be a deposit that is potentially refundable to the purchaser if the contract does not proceed, or an option fee that is not refundable even if the contract does not proceed.
Lessee’s right to quiet enjoyment – A lessor’s failure to repair defective premises may constitute a breach of the lessee’s right to quiet enjoyment.

The extensive 1001 Conveyancing Answers (VIC) publication is available in the Reference materials folder on the By Lawyers Conveyancing (VIC), Mortgages (VIC), and Leases (VIC) matter plans to assist property lawyers and conveyancers in understanding more detailed aspects of the conveyancing process and addressing clients’ issues quickly.

Conveyancing Answers – VIC

28 March 2024 by By Lawyers

Some notable recent conveyancing cases have been added to 1001 Conveyancing Answers (VIC) and the information in several sections has been updated.

These enhancements are part of an extensive review of the publication by our author Russell Cocks.

Updates include detailed information on:

recent changes to land tax for vacant residential land;
the new prohibition against the adjustment of land tax for properties priced under $10,000,000;
the new prohibition against the adjustment of windfall gains tax; and
new requirements surrounding building manuals under s 15A Sale of Land Act 1962.

New cases added to the publication include:

Castaway Avenue Pty Ltd v CSC1957 Investments Pty Ltd [2023] VSCA 30 – a preliminary deposit paid into the purchaser’s solicitors trust account may not be a deposit.
Valmorbida v Les Denny Pty Ltd [2023] VSC 680 – easement acquired informally by usage.
Hawkesdale Asset Pty Ltd & Anor v Bennett [2023] VSC 409 – assignment of wind turbine licence.
Replay Australia Pty Ltd v NightOwl Properties Pty Ltd [2023] QCA 76 – breach of the lease after exercise of option may result in loss of the option.
Q St Kilda Tenancy Pty Ltd v Kane (Building and Property) [2023] VCAT 75 – a tenant who has mistakenly paid outgoings may not be able to claim them back.
Dixon (as trustee of the bankrupt estate of Toufic Sassine) v Lennon & Anor [2023] VSC 426 – a charge granted by a client in favour of a solicitor pursuant to a costs agreement supports a caveat.
Ozella v Owners Corporation RP 14858 (Owners Corporations List) [2023] VCAT 1274 – owners corporation – VCAT can appoint a manager if the owners are in dispute.
Marshalls & Dent & Wilmoth v Tandos [2024] VSC 44 – costs – solicitors may rely on s 198 of the Legal Profession Uniform Law to extend time for assessment.

1001 Conveyancing Answers (VIC) is available in all By Lawyers conveyancing and property publications in Victoria. This comprehensive reference work assists property lawyers and conveyancers to understand more detailed aspects of the conveyancing process and solve problems for their clients.

Conveyancing cases – VIC

4 December 2023 by By Lawyers

New conveyancing cases have been added to By Lawyers reference manual 1001 Conveyancing Answers (VIC) as part of a review by our author Russell Cocks. The publication has been generally updated for recent developments in the law and practice.

New cases on various aspects of the conveyancing process have been added, including:

Definition of domestic building work – Li v Smith [2023] VCAT 112 – construction of a brick wall at a residential property found to meet the definition of domestic building work.
Caveatable interests – PEXA – A F Welco Holdings P/L v Canterbury Hills P/L [2022] VSC 490 – considering the overlap between the different types of caveatable interests that are listed in PEXA and all the possible caveatable interests.
Solicitors and caveats – Lanciana v Alderuccio [2019] VSC 198 – a solicitor who lodges a caveat on behalf of a client is not a person who lodges within the meaning of s 118 of the Transfer of Land Act 1958.
Discharging obsolete covenants – City of Stonnington v Wallish [2021] VSC 84 – a successful application to discharge obsolete restrictive covenants where the plaintiff intended to carry out construction on the land, including social facilities.
Payment of deposit – Castaway Av P/L v CSC1957 Investments P/L [2023] VSCA 30 – a preliminary deposit paid into the purchaser’s solicitors trust account may not be considered a deposit under the contract.
Objection to release of deposit – GLP Batesford Holdings P/L v 68 Bridge Road Land P/L [2022] VSC 614 – once a purchaser has raised an objection in relation to financial information provided, that is sufficient to stop the release of the deposit under s 27 of the Sale of Land Act 1962.
Legal professional privilege – Regent 125 P/L v Brdar [2019] VSC 177 – privilege will rarely arise in relation to conveyancing transactions but may do so in limited circumstances.

Practical commentary has also been added about setting up and running electronic workspaces in the electronic lodgement platforms.

1001 Conveyancing Answers (VIC) is available in the Reference Materials folder on the matter plan in all Victorian By Lawyers conveyancing and property guides. It contains many conveyancing cases with summaries and hyperlinks. It assists property lawyers and conveyancers to understand more complex issues in the conveyancing process and solve problems for their clients.

Retail Leases – VIC

18 April 2023 by By Lawyers

The Retail Leases Regulations 2023 (Vic) came into operation on 15 April 2023. They are made under s 99 of the Retail Leases Act 2003 (Vic) and prescribe certain matters that are required to be prescribed under the Act. They repeal the Retail Leases Regulations 2013 (Vic) and the Retail Leases Amendment Regulations 2022 (Vic).

The provisions of the new regulations largely replicate those of the previous regulations, while:

making updated provisions for the monetary amounts of occupancy costs for the purpose of excluding certain retail premises from the disclosure obligations under the Act;
prescribing the outgoings payable by a tenant, by reference to a percentage of the rent; and
updating the forms for the disclosure statements that must be issued under the Act. Disclosure obligations apply to new leases, renewals of leases, and assignments of leases.

The prescribed forms are now contained in Schedules 1 to 4 of the 2023 regulations.

From 15 April landlords and their agents need to be aware of the changes to the prescribed forms and only issue disclosure statements in the new form for leases that fall under the provisions of the Act.

The By Lawyers Lease (VIC) and 1001 Conveyancing Answers (VIC) publications have been updated accordingly. They include the prescribed forms of disclosure statement for all retail leasing scenarios, as well as commentary about time frames for landlords issuing disclosure statements to tenants, and the consequences of non-compliance.

Recent property cases – VIC

7 February 2023 by By Lawyers

Recent property cases have been added to the By Lawyers reference manual 1001 Conveyancing Answers (VIC).

This publication has been extensively reviewed and updated by our esteemed author Russell Cocks.

Helpful recent property cases added to the publication in this review include:

APM Group (Aust) Pty Ltd v Centurion Australia Investments Pty Ltd [2022] VSC 637 – to the effect that construction of student accommodation is domestic building work;
Ripani v Century Legend Pty Ltd [2022] FCA 242 – changes to a plan that materially affect a property may justify avoidance;
Huang & Anor v Kotsias & Ors [2022] VCC 470 – a joint tenant acting as an attorney for the other joint tenant may sever the joint tenancy;
GLP Batesford Holdings Pty Ltd v 68 Bridge Road Land Pty Ltd [2022] VSC 614 – held that a condition that requires the purchaser to release the deposit within five days of being provided with particulars is invalid;
Garlick v Kerbaj & Ors [2022] VSC 336 – relying on the advice of counsel is rarely a defence for a solicitor;
Owners Corporation 1 Plan No. PS735439F v Singh (Owners Corporations) [2022] VCAT 389 – owners corporations may not be able to recover all of the costs associated with fee recoveries;
Corngate Investments Pty Ltd v Lukewood Pty Ltd & Anor [2022] VSC 289 – considered section 32C(c) of the Sale of Land Act 1962 in the context of road access to a property across a rail crossing;
Re Maddock; Bailey v Maddock [2022] VSC 346 – consideration of the issue of capacity for making a will; and
Grabovic v Yang [2022] VSC 417 – treatment of an overseas will.

1001 Conveyancing Answers (VIC) is available in all By Lawyers Victorian property law guides – Sale of real property, Purchase of real property, Leases, and Mortgages.

This comprehensive publication assists property practitioners to understand deeper issues in conveyancing and solve problems for clients when they arise.

Recent property cases – VIC

23 February 2022 by By Lawyers

Recent property cases have been added to By Lawyers reference manual 1001 Conveyancing Answers (VIC).

The publication has been extensively reviewed and updated by our author Russell Cocks.

Useful recent property cases added to the publication in the course of this review include:

Bottos v Citylink Melbourne Ltd [2021] VSC 585 – possession by erecting safety walls;
Gianchino & Anor v Gianchino [2021] VSC 383 – adverse possession against a co-owner;
Burghley P/L v Soames [2021] VSC 236 and BCA Asset Management Group P/L v Sand Solutions P/L [2021] VSC 177 – indemnity costs for an unsuccessful caveat;
Valuer-General v AWF Prop. Co 2 Pty Ltd & Ors [2021] VSCA 274 – wind farm turbines as chattels;
Burger & Ors v Longboat Holdings Group2 Pty Ltd [2021] VSC 469 – changes to the plan which materially affect the property may justify avoidance;
David Barry Logistics Pty Ltd v the State of Victoria & Anor [2021] VSC 828 – bona vacantia to the Crown;
Re Ferraro [2021] VSC 166 – a covenant that fails to adequately identify the benefited land is unenforceable against third parties;
K7 Developments Pty Ltd v Abbotsford Estates Pty Ltd [2021] VSC 422 – the consequences of ceasing to be a going concern after contract and before settlement.

1001 Conveyancing Answers (VIC) is available in all By Lawyers Victorian property law guides – Purchase, Sale, Leases, and Mortgages.

This comprehensive publication assists property practitioners to understand deeper issues in conveyancing and solve problems for clients when they arise.

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