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In general a contractual provision that requires a party in breach of contract to pay or foreit a sum of money is unlawful as a penalty unless such provison can be justified as being a payment of liquidated damages being a genuine pre-estimate of the loss which the innnocent party will incur by reson of…
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Mistakes are often made in describing the interest claimed in a caveat. Is it possible to amend the caveat to claim the correct interest? Macaulay J considered this issue in Percy & Michele Pty Ltd v Gangemi [2010] VSC 530. where the interest claimed was “estate in fee simple” when it should have been “an equitable…
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Leases commonly deem there to be an assignment of the term of the lease if change in the principal shareholding of the tenant or the directors of the tenant takes place that that alters the effective control of the tenant. The landlord’s written consent is usually required to such an assignment. If there is a term in the…
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In Victoria a purchaser of land takes the land subject to “the interests of a tenant in possession of the land”. See: s.42(2)(e) of the Transfer of Land Act 1958. The section protects a person who is in actual occupation of the land. Finkelstein J said the following in Money for Living (Aust) Pty Ltd (Administrators Appointed)…
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Traditionally leases in Victoria have not been registered because of the protection afforded by s. 42(2)(e) of the Transfer of Land Act 1958 which provides that : “….land which is included in any folio of the Register or registered instrument shall be subject to – ….. (e) the interests of (but excluding any option to…
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There is a common misconception that receipt of a valid notice under s 146(1) of the Property Law Act 1958 requires the tenant to rectify the defaults alleged within the time specified. The purpose of a notice is to give the tenant an opportunity to consider its position and give a response: See: Primary RE Limited…
