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Property Law Update: January 2019

As many return to work following the festive season, we would like to take this opportunity to provide an update on what you might have missed in the chaos leading up to Christmas.

Land Tax

Revenue NSW has advised that the s47 Certificates & Land Tax Thresholds for the year 2019 are:

  • General Threshold: $692,000
  • Premium threshold: $4,231,000

eConveyancing

100% digital lodgements is fast approaching – the final step on the timeline for transitioning to eConveyancing in NSW is 1 July 2019, with less than six (6) months to go until all mainstream property transactions are to be lodged electronically.

In November 2018, sixty-nine percent (69%) of all possible dealings in NSW were lodged electronically. This included sixty percent (60%) of transfers.

On 10 December 2018, eLeases went live on PEXA. It is not mandatory to lodge a lease electronically.

Coincidentally, the Law Society have released updated standard Retail and Commercial leases in electronic formats.

Certificates of Title

The transition to eConveyancing makes an impact on paper certificates of title. Currently, around two million (2,000,000) titles in NSW are electronic (eCTs).

These are all the titles encumbered by a mortgage or interest to authorised deposit-taking institutions.

The Registrar General has published a discussion paper seeking feedback on a range of issues, including proposals for replacing the remaining paper certificates of title with an electronic alternative.

The Paper was released on 7 December 20181 and submissions will close on 28 February 2019.

We will be letting the Registrar General know our thoughts.

Aged Care

The Retirement Villages Amendment Bill was assented to on 28 November 2018.

The Bill introduces changes based on six (6) of the seventeen (17) recommendations made by the recent government inquiry by Kathryn Greiner AO2 including:

  • New “rules of conduct” for operators for or with respect to professionalism, training, competencies, performance and behaviour (maximum penalty $11,000);
  • A requirement that village operators explain contract information to residents once a year, if requested, including contract terms, maintenance charges and exit fees (maximum penalty $5,500); and “reasonable” estimates of the costs involved (maximum penalty $22,000);
  • Improved dispute resolution and mediation services, managed by NSW Fair Trading;
  • A requirement for annual audits of the village (maximum penalty $11,000) and the need for consent from residents for the appointment of auditors of accounts;
  • New asset management plans detailing the items of capital that the operator is responsible for (maximum penalty $11,000);
  • New requirements for the provision, sharing and publication of certain information about retirement villages; and
  • The introduction of emergency plans and safety inspections for villages, including evacuation exercises and the display of key safety information (maximum penalty $22,000).

Royal Commission into aged care

Further, there is a Royal Commission into Aged Care.

If you are involved in the administration or management of an Aged Care facility and are required to provide a response to the letters sent out by the Commission, contact KREISSON for assistance.

New cases from the Courts:

Carbone v Metricon Homes Pty Ltd [2018] NSWCA 296

The NSW Supreme Court held that the use of the word “rescind” rather than “terminate” in conveyancing transactions has a generally understood meaning of rescind from the beginning of a contract, not an undefined point in time to suit a particular party.

The Owners – Strata Plan No. 4983 v Canny [2018] NSWCA 275

The NSW Supreme Court held that the correct construction of a Development Consent is that it provides permission for use of a building for car parking by the parking lot owners who, as owners of the strata lots, are properly described as “occupants”.

Roads and Maritime Services (RMS) v Desane Properties Pty Ltd [2018] NSWCA 196

Initially, the NSW Supreme Court found that the form of the Proposed Acquisition Notice (PAN) issued by RMS was ineffective for three (3) reasons:

  • it did not comply with the Land Acquisition (Just Terms Compensation) Act 1991 as it was not in the approved form;
  • it failed to identify the public purpose of the acquisition; and
  • RMS was acting on an improper purpose which was unauthorised under the Roads Act 1993.

However, the Court of Appeal has now reversed this decision and set aside the orders.

Desane has indicated that it is not interested in further litigation and has agreed to sell its Rozelle site for $78m plus GST. The RMS originally offered $18.4m for the site.

McFee v Reilly [2018] NSWCA 322

The Court of Appeal has allowed in part an appeal from the Supreme Court, holding that while the primary judge had erred in declaring that four sisters’ indefeasible title to property was held on trust for their brother due to it being knowingly obtained in breach of fiduciary duty, the sisters were nonetheless liable to account for the value of the property.

The Court of Appeal further held that the primary judge was correct to find that the solicitor acting on the transaction owed the brother, as beneficiary of a testamentary gift of the property under a prior will, a common law duty of care to protect the testator’s intention, and that breach of duty and causation were also established.

Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd [2018] NSWCA 304

A decade after the parties first commenced legal proceedings, the Court of Appeal has allowed an appeal brought by Moorebank Recyclers against Tanlane Pty Ltd concerning a planning proposal for the development of part of Tanlane’s land in Moorebank which contains contaminated land.

Both the Liverpool Council and the Greater Sydney Commission had made decisions supporting the proposal.

The Court of Appeal held that these decisions were invalid for failure to comply with a state planning policy concerning contaminated land.

Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308

The Court of Appeal has, by majority, allowed the appeal of Kempsey Shire Council from a decision holding it liable in negligence for damage to an aircraft owned by Five Star Medical Centre Pty Ltd, following a collision with a kangaroo at Kempsey Aerodrome.

The Court unanimously held that the trial judge erred by finding the Council breached its duty by not erecting a kangaroo-proof fence around the aerodrome, and by majority held that the trial judge erred by finding the Council breached its duty by failing to issue a Notice to Airmen advising the risk of kangaroo incursions onto the aerodrome had increased to dangerous levels.

For more information on eConveyancing please see earlier articles here.

For more information on the Royal Commission into Aged Care see earlier articles here.

If you have any questions regarding this material, please contact us.

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This communication is sent by Kreisson Legal Pty Limited (ACN 113 986 824). This communication has been prepared for the general information of clients and professional associates of Kreisson Legal. You should not rely on the contents. It is not legal advice and should not be regarded as a substitute for legal advice. The contents may contain copyright.


1https://static.nsw.gov.au/nsw-gov-au/1545018686/Discussion-Paper-certificates-of-title-the-next-evolution4.pdf
2https://www.fairtrading.nsw.gov.au/__data/assets/pdf_file/0008/381572/Inquiry_into_the_NSW_Retirement_Village_Sector_Report.pdf