Important Victorian convoy cases from 2021
• Burger & Ors v Longboat Holdings Group2 Pty Ltd (2021) v ConvR ¶54-952;  VSC 469. This decision concerned the right of a purchaser to terminate an off-plan contract under Section 9AC (2) of the Sale of Land Act 1962 due to changes in the plan of subdivision. The court determined that buyers had the right to terminate contracts even for a small reduction in the size of their lots (less than 5%).
• C & F Nominees Mortgage Securities Ltd v. Karbotli (2021) V ConvR ¶54-951; (2021) ANZ ConvR 21-160;  VSCA 134. In this decision, a registered but forged mortgage was invalidated and removed from the Victorian Torrens register. The mortgagee was not a party to the fraud. However, he failed to comply with his obligation under Section 87A of the Transfer of Land Act 1958 to take reasonable steps to ensure that the person who signed the mortgage was the registered owner of the mortgaged property.
• Anastasia Kalathas v 89 Ebley Street Pty Ltd (2021) v ConvR ¶54-950;  NSWSC 490. In this decision regarding the sale of a proposed lot with car space in a building to be constructed, the strata plan as recorded did not provide for the purchaser to have car space. The seller, ignoring the error in the layering plan, asked the buyer to complete the contract. The buyer successfully argued that she had the right to terminate the contract in accordance with the Flight v Booth principle, despite the fact that the seller subsequently registered a new strata plan which contained the correct allocation of the parking space.
• Dyco Hotels Pty Ltd v Laundy Hotels (Carrière) Pty Ltd (2021) v ConvR ¶54-949;  NSWSC 504. In that decision, buyers of a hotel property and business claimed that the sales contract was canceled out of frustration because prior to its completion, public health orders in response to the COVID-19 pandemic limited the ability of the seller to conduct business in the usual manner.
• Price against Spoor (2021) against ConvR ¶54-948; (2021) ANZ ConvR 21-156;  HCA 20. In this decision, the mortgagors agreed with the mortgagors that any law which would override the “powers, rights and remedies” of the mortgage creditors was excluded. The High Court of Australia ruled that the undertaking was effective in preventing mortgagors from claiming that the action of the mortgagees for repayment of the secured sum and possession of the mortgaged property was time barred. The parties to the mortgage were able to waive the limitation period and did so.
• St Kilda Estates (No 2) Pty Ltd v Melbourne Property Investments Real Estate Pty Ltd (2021) v ConvR ¶54-947;  VSCA 92. This decision dealt with whether a statement of surrender contained in an exclusive sale authorization between a seller and a real estate agent was “in a form approved by the director” within the meaning of section 49A of the Act. of 1980 on real estate agents.
• Izett St Pty Ltd v Applgold Pty Ltd (2021) v ConvR ¶54-946;  VCAT 174. In that decision, a lease in which the tenant sublet various parts of the premises was not considered to be a commercial lease within the meaning of Victorian Commercial Lease Law. The provision of “sublet services” was not a use of the premises for the “provision of retail services”.
• Re Ferraro (2021) V ConvR ¶54-945; (2021) ANZ ConvR 21-157;  VSC 166. In that decision, the court ruled that the plaintiff’s land was not affected by restrictive covenants since the covenants did not specify the land to which the covenants conferred a benefit.
• Stockfeld & Anor v Hendon & Ors (2021) v ConvR ¶54-944; (2021) ANZ ConvR 21-154;  VSC 133. In this decision, a restrictive covenant stipulated that the owners of a property could build only “a good and substantial double-sided dwelling house… in accordance with the plans and specifications approved by Elliott Cairnes”. Cairnes was no longer alive. It was decided that even though Cairnes’ approval requirement had expired, the undertaking continued to be binding on the owners.
• Valuations-General Victoria v AWF Prop Co 2 Pty Ltd & Ors (2021) ANZ ConvR 21-167;  VSCA 274. The Victoria Court of Appeal ruled that wind turbines and other wind farm assets on leased rural land were not props but movable property. The objective intention of the parties to the lease, having regard to the degree and purpose or object of affixing the assets, was that the assets remain the property of the lessee and not form part of the land.
• On December 1, 2021, significant amendments were made to the Owners Corporations Act 2006 to implement the results of a public review that reviewed the legislation. Further details are available here.
• A new tax on exceptional capital gains on the increase in the value of land resulting from rezoning was introduced in 2021. Further details are available here.
• The Victorian government introduced a new homebuyers fund, to provide qualifying homebuyers with a contribution of up to 25% of the purchase price of their property, reducing their minimum required deposit to 5% and avoiding having to pay mortgage insurance to lenders. Further details are available here.
• On March 29, 2021, residential rental protection began. The protections are discussed here.
• The State Taxation and Mental Health Acts Amendment Act 2021 received approval on June 16, 2021. The law contains several measures announced in the Victorian 2021-2022 Budget. Further details are available here.
For the second year in a row, state and territory government responses to the COVID-19 pandemic dominated Australian commercial leasing news.
In early 2021, COVID-19 relief legislation in 5 jurisdictions ended. However, as NSW, Victoria and ACT have seen new virus outbreaks and government-imposed shutdowns, new legislation has been introduced to protect retail and commercial tenants.
In Victoria, the Commercial Tenancy Relief Scheme Act 2021 came into effect on August 10. Two weeks later, on August 24, the Commercial Tenancy Relief Scheme Regulations 2021 were passed and were deemed to have started on July 28. The law will be repealed on April 30, 2022, and the regulation will automatically expire on January 16, 2022.