Robert Hay KC Blog

Property Law

  • When does a deposit become a penalty?

    Deposits hold a special place in contracts for the sale of land and do not fall within the general rules about penalties. Where a purchaser defaults the deposit (customarily 10 per cent) can be forfeited even though the amount of the deposit bears no reference to the anticipated loss to the vendor flowing from the…

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  • Content of default notices under s27 of Retail Leases Act

    At general law the question of whether a tenant has validly exercised an option for a further term depends upon whether the tenant has met the conditions contained in the lease for the exercise of the option. The general law has been altered by the Retail Leases Act 2003. Section 27(2) provides that: ” If…

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  • Real estate agent not authorised to accept termination notice given under s.31 of Sale of Land Act 1962

    A purchaser of land in Victoria may terminate the contract “at any time before the expiration of three clear business days” after signing the contract. See: s.31(2) of the Sale of Land Act 1962 (Vic). The termination notice must be “given to the vendor or his agent” or left at an address specified in the…

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  • Vendor not entitled to interest on unpaid contract price where contract terminated

    Vendors who terminate contracts for the sale of land on the ground of a default by the purchaser often claim interest on moneys that have not been paid calculated from the date of the breach to the date of termination. Clause 25 of the general conditions of the standard form of contract concerning the sale…

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  • Wife’s title as joint proprietor with husband not defeasible by reason of husband’s fraud

    In Cassegrain v Gerard [2015] HCA 2 the High Court of Australian had to decide whether a wife’s title as a joint proprietor with her husband was defeasible by reason of the husband’s fraud. The case contains an interesting discussion about when the fraudulent acts of an agent can be attributed to the principal and…

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  • Solak not followed in Victorian fraud case

    There have been many cases about whether a mortgage procured by fraud secured any money in circumstances where the mortgagee is innocent of the fraud. The latest case is Perpetual Trustees Victoria Limited v Xiao Hui Ying [2015] VSC 21 (Ying) where Hargrave J refused to follow the Victorian decision of Solak v Bank of…

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  • Rent reviews – mandatory or at the landlord’s discretion?

    The issue of whether a lease requires a rent review or whether the review is at the discretion of the landlord often arises. The problem can avoided by clear drafting. In Growthpoint Properties Australian Limited v Austalia Pacific Airports [2014] VSC 556 the court had to decide whether a rent review was mandatory under the…

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  • Second Notice to Complete Revives Terminated Agreement – Contract Sale of Land

    A vendor who has terminated a contract for the sale of land should be wary of serving a second notice to complete because the second notice revives the agreement that has been terminated. In Rona v Shimden [2005] NSWSC 818 a vendor under a contract of sale claiming to have terminated the contract, gave notice…

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  • Implied term that vendor must act in a reasonable manner when selling land pursuant to liquidated damages clause

    There is a translation key(widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/   What duties does a vendor have in selling land pursuant to a liquidated damages clause in the sale contract following a default by the purchaser? There…

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  • Property Law ( Sale of Land) – Everything must be in writing

    There is a translation key (widget) on the mirrored blog for ease of reading for non-English speaking members of the public or professionals. The mirrored blog can be found at http://roberthaybarrister.blogspot.com.au/   It is extraordinary how often lawyers overlook the cardinal rule when dealing with land: anything intended to have legal effect must be in writing. See:…

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