The Native Title Amendment (Infrastructure and Public Facilities) Bill 2020 was recently introduced into Parliament to extend the operation of section 24JAA of the Native Title Act 1993 (Cth) for a further 10 years. The section provides a process to assist with the timely construction of public and staff housing, public health, education, police and emergency facilities by or on behalf of the Crown, a local government or other statutory authority of the Crown for Aboriginal and Torres Strait Islander People in communities on Indigenous held land. The continuation of section 24JAA for another 10 years will allow authorities to progress critical housing and infrastructure in an efficient manner.
 
The Bill can be viewed at the following link: 
https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6599
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There have been changes to leasing requirements for reserve under the Land Regulation 2020 (Qld) (Regulation).
The Regulation has removed the requirement that a trustee lease (unless otherwise exempted) comply with the Mandatory Standard Terms (MSTD) and have been replaced by the “prescribed terms”. The prescribed terms are contained in Schedule 3 to the Regulation.
A transitional period of 12 months from 1 July 2020 will allow a trustee lease that refers to the MSTD to still be registered, however, it will automatically be subject to the prescribed terms. The transitional period will also apply to any existing registered trustee lease or sublease lodged at any time prior to 1 July 2020.
From 1 July 2021:

any new trustee lease or sublease lodged for registration in the Titles Registry must not reference the MSTD; and
all trustee leases and trustee lease subleases, whether registered in the Titles Registry or not, will be subject to prescribed terms.

Please contact our dedicated local government team with any queries.
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Key changes to the sale of land provisions in the Local Government Regulation 2012 (Qld) (Regulation) by the Local Government Legislation Amendment Regulation (No.1) 2020 (Qld), which came into effect on 12 October 2020, provide for a much simpler process in which a local government can enforce the sale of land for rates and charges in arrears.
 
A couple of the key changes include:
 

removal of the requirement that a local government take the land at the reserve price if it did not sell at auction or by subsequent negotiation; and
removal of the requirement that a local government only deal with the highest bidder at the auction in any subsequent negotiations if the land is not sold at auction.

The amendments will hopefully provide local governments with more certainty in commencing the sale of land process to recover rates and charges in arrears.
Please contact our dedicated local government team with any queries.
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After nearly 8 years from filing its application, the Gkuthaarn and Kukatj People successfully achieved a determination of native title over an area covering approximately 16,500km² along the southern coastline of the Gulf of Carpentaria, bounded by the Norman River in the east and the Leichardt River in the west and includes the town of Normanton (Determination).
The Determination is significant because:

it includes significant areas where ‘native title does not exist’ including a large southern portion of the claim area where the State did not consider there was sufficient evidence to establish connection and also areas where native title has been extinguished or otherwise surrendered;
resolution of the claim required the Applicant to produce substantial expert anthropological evidence to satisfy the State as to connection, along with oral evidence which was heard on-country from Gkuthaarn and Kukatj people in July 2017; and
due to COVID-19 restrictions, on 29 September 2020 the Court delivered the Determination remotely from Sydney, rather than on country as was originally proposed. The parties’ legal representatives also appeared remotely, apart from the Applicant’s solicitor who appeared from a community facility in Normanton where the Applicants were also present for this significant event.

MacDonnells Law acted for Far North Queensland Ports Corporation Limited in the claim and ensured its wide-ranging rights and interests as the port authority for the Port of Karumba (the limits of which partly overlap the Determination area) and as the provider of port services under the Transport Infrastructure Act 1994 (Qld) and Transport Infrastructure (Ports) Regulation) 2016 (Qld) have been appropriately set out the relevant schedule of the Determination.
The Determination can be downloaded from the following link:
https://www.comcourts.gov.au/file/Federal/P/QUD29/2019/3846032/event/30167910/document/1673174.
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The Federal government announced a $1 billion extension to the Local Roads and Community Infrastructure Program (LRCI Program) as part of the 2020-21 budget following strong community support for the program.
 
Councils will be able to access funding under the extension to the LRCI Program from 1 January 2021 and guidelines for the LRCI Program will be provided directly to local governments by the Department of Infrastructure, Transport, Regional Development and Communications.
 
The LRCI program aims to support local governments to deliver priority local road and community infrastructure projects and will support jobs and local communities through the recovery phase of the COVID-19 pandemic.
 
Please contact our dedicated local government team if you have any queries.
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In the recent decision of Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors [2020] QLC 33, we were given a glimpse on how the Land Court of Queensland may handle future decisions involving the consideration of the Human Rights Act 2019 (Qld) (the Act).
Background
Waratah Coal applied for a mining lease and environmental authority for its proposed coal mine development in the Galilee Basin, referred to as the Galilee Basin coal mine development.
Youth Verdict Ltd and The Brimblebox Alliance Inc, both being advocacy groups, objected to the application on the basis that the granting of the mining lease and environmental authority were not compatible with human rights and in breach of section 58(1) of the Act.
Waratah Coal applied to the Court to strike out any objections relying upon the Act or obtain a declaration that the Court did not have jurisdiction to consider the objections.
Application and Decision
Waratah Coal’s application relied on 4 points, being:

the Court’s recommendation on an application for mining lease or environmental authority is not an act or decision as referred to in section 58(1) of the Act;
the Court does not have jurisdiction to consider objections based on the Act;
the Court cannot consider the objections as there was no remedy relied on under section 59 of the Act; and
Youth Verdict Ltd and The Brimblebox Alliance Inc did not have standing under section 59 of the Act.

In rejecting Waratah Coal’s application and in rebuttal to its arguments, the Court found:

the Court’s recommendation on an application for a mining lease or environmental authority is both an act and decision as referred to in section 58(1) of the Act;
the Court as a public entity has an obligation to not make a decision incompatible to human rights and so must give consideration to same;
Youth Verdict Ltd and The Brimblebox Alliance Inc could not seek relief until the Court had actually made its recommendation and this recommendation was incompatible with human rights; and
standing was not in issue as Youth Verdict Ltd and The Brimblebox Alliance Inc were simply urging the Court to consider the Act and not seeking relief.

Implications
From this decision, it is clear that the Court will continue to consider the Act and human rights when reviewing such applications, with the potential for such considerations to become the normal in other similar deliberations.
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In the recent decision of Forbes v Brisbane City Council & another [2020] QDC 239, a prospective Brisbane City Council (Council) employee was granted an extension of time to bring a claim of defamation against Council following a delay in a Right to Information application authorising the release of the prospective employee’s employment file.
Background
Douglas Forbes previously worked for Council from January 2012 to April 2014, with his employment ending, according to Mr Forbes, when Council offered him a voluntary redundancy package which he accepted.
In April 2019, via a recruitment agency, Mr Forbes applied for a job with Council, of which he had a telephone interview and face to face interview and was subsequently advised on 24 April 2019 he was successful in obtaining the position.
After being advised he was successful, Mr Forbes did not hear from Council and so he followed up with the recruitment agency, who advised Mr Forbes they were awaiting Council to confirm his appointment. Subsequently on 1 May 2019 Ms Gyetvay of Council emailed the recruitment agency and advised that Mr Forbes was dismissed from Council previously for performance management issues and that Council’s Chief HR Officer had requested Mr Forbes’ personal history file for review before making a decision on his further appointment.
On 2 May 2019, the recruitment agency emailed Mr Forbes advising him that Council would not be proceeding with his appointment to the role as Council had indicated that Mr Forbes had previously been dismissed for performance management issues.
Mr Forbes denied this and made a Right to Information request to ascertain what Council had said and who had made the statement.
Mr Forbes did not subsequently receive a copy of the actual email sent by Council to the recruitment agent, and other ancillary requested documentation, until 3 June 2020 and did not file the defamation claim until 17 July 2020, being after the 12-month limitation period to bring a defamation claim against Council and Ms Gyetvay.
Decision
The District Court of Queensland determined that as Mr Forbes did not receive a copy of the alleged defamatory statement until 3 June 2020, he was unable to bring a claim within the limitation period as he needed to see a true copy of the email to ascertain the identity of the person/s involved, the particulars of the statement and the exact words used in the statement.
The Court further found that the delay was not caused as a result of Mr Forbes, but as a result of delays with the Office of the Information Commissioner due to COVID-19 and staff shortages, amongst other issues.
The Court therefore determined to extend the limitation period to 18 July 2020, being the day after Mr Forbes had filed his application.
Implications
This decision serves as a reminder for Councils to ensure that its employment and recruitment records and processes are both factual and accurate and are readily available in circumstances where Right to Information applications are made by interested parties.
 
The post A Cautionary Tale – Defamation and Recruitment Processes appeared first on MacDonnells Law.

On 28 May 2020, the Queensland government implemented a framework to regulate rental relief for “affected leases”. We have previously outlined the details of that rent relief in our article “COVID-19 Rental Relief – Commercial Leasing Legislation passed” which can be found at the following link – https://macdonnells.com.au/covid-19-rental-relief-commercial-leasing-legislation-passed/.
The rent relief period (i.e. “response period”) was set to end on 30 September 2020.
On 29 September 2020, the Queensland government enacted legislation to extend this relief.
There are 4 keys points to be aware of:

in order to be entitled to rent relief, a lessee must continue to be eligible for the jobkeeper scheme from 1 October 2020 onwards;
landlords cannot take actions such as increasing rent or terminating a lease due to the non-payment of rent agreed under an arrangement between the lessee and lessor prior to 1 October 2020;
an “extension period” of 1 October 2020 to 31 December 2020 has been prescribed for which affected lessees shall remain entitled to rent relief comparable to the reduction in turnover of their business; and
rent deferred during the initial response period (being up to 30 September 2020) is to commence being paid 1 October 2020. That is, rent deferred during the initial response period of March – 30 September 2020 does not automatically become deferred for the extended period to 31 December 2020, unless the agreement reached between the parties provides otherwise or the further extension is agreed by the lessor and lessee.

If you are a tenant or landlord and require further advice or assistance in respect of the relief offered under the regime, please get in contact with our experienced property team.
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The effects of COVID have been far reaching with the virus devastating not only economies across the globe, but even more so, local economies. With restrictions easing in Queensland and the State slowly transitioning into the “new norm”, opportunities for development and growth will present upon the return of investor confidence. Local governments will be tasked, in many instances (especially in remote and regional centres) to spearhead the economic revival of its local government areas in a post COVID environment.
The State government has developed a number of funding initiatives, including the Building Acceleration Fund and the COVID Works for Queensland Program, directly established to stimulate local regions through job creation and enticing private investment.
The State has committed $200 million to each of the respective State funding initiatives, with the COVID Works for Queensland Program specifically aimed at supporting local governments recovery.
Whilst these funding initiatives will provide much needed short-term economic assistance to local governments to enable them to roll out of capital works projects and critical infrastructure, Councils will need to, nevertheless, attract and appropriately facilitate investment in each of their regions to ensure long term economic sustainability.
With that in mind, it’s important for local governments to make sure that they have an effective investment strategy to ensure that they can capitalise on investment opportunities and leads when they present that improve the private sectors ability to contribute to economic development.
Councils need to have a clear strategic direction and plan in place that addresses each stage of the investment process. This includes effective stakeholder engagement, investment priority and investor due diligence.
Councils also need to ensure that appropriate priority is given to investments which will yield the best community benefits and outcomes, and which reflect community need and expectations and provide the private sector the ability to leverage public investments into further economic progress within the community.
Whilst funding may be provided by other levels of government, local government will have an important role to play in the administration and delivery of community critical projects as part of the COVID recovery. As such, it will be imperative that local governments are able to effectively plan and manage a broad range of projects for the benefit of their local communities.
To help Council’s better plan for and select appropriate investment opportunities, we will be conducting a local government investment and project delivery vlog series. Each session within the series will focus on an important stage of project realisation and delivery, from inception through to finalisation.
Watch this space for further updates on the vlog series coming soon.
The post Maximising Local Government Investment – Now and Post COVID Copy appeared first on MacDonnells Law.

The next stage of amendments to the Local Government Act 2009 (Qld) and Local Government Regulation 2012 (Qld) as part of the Belcarra rolling reform agenda will commence on 12 October 2020. The broad effect of the amendments (implemented under the Electoral and Other Legislation (Accountability, Integrity and Other Matters) Amendment Act 2020 and the Local Government Legislation (Integrity) Amendment Regulation 2020 relate to State elections, conduct in local governments, and in particular, councillor conduct.
Key changes commencing on 12 October 2020 include:

new register of interest provisions;
new and clarified conflict of interest requirements;
change to council meeting requirements (including the scope of what qualifies as a basis to close meetings);
a system for regulating political advisors;
the requirement for Councils to develop guidelines about Councillor administration support staff; and
changes for filling Councillor and Mayor vacancies.

Our local government team will be considering each of the key changes and how they affect local governments in more detail throughout October as part of our legal alert series. Keep an eye out on our website and LinkedIn for our upcoming alerts.
The post Belcara Local Government Reform – Stage 2 appeared first on MacDonnells Law.

The effects of COVID have been far reaching with the virus devastating not only economies across the globe, but even more so, local economies. With restrictions easing in Queensland and the State slowly transitioning into the “new norm”, opportunities for development and growth will present upon the return of investor confidence. Local governments will be tasked, in many instances (especially in remote and regional centres) to spearhead the economic revival of its local government areas in a post COVID environment.
The State government has developed a number of funding initiatives, including the Building Acceleration Fund and the COVID Works for Queensland Program, directly established to stimulate local regions through job creation and enticing private investment.
The State has committed $200 million to each of the respective State funding initiatives, with the COVID Works for Queensland Program specifically aimed at supporting local governments recovery.
Whilst these funding initiatives will provide much needed short-term economic assistance to local governments to enable them to roll out of capital works projects and critical infrastructure, Councils will need to, nevertheless, attract and appropriately facilitate investment in each of their regions to ensure long term economic sustainability.
With that in mind, it’s important for local governments to make sure that they have an effective investment strategy to ensure that they can capitalise on investment opportunities and leads when they present that improve the private sectors ability to contribute to economic development.
Councils need to have a clear strategic direction and plan in place that addresses each stage of the investment process. This includes effective stakeholder engagement, investment priority and investor due diligence.
Councils also need to ensure that appropriate priority is given to investments which will yield the best community benefits and outcomes, and which reflect community need and expectations and provide the private sector the ability to leverage public investments into further economic progress within the community.
Whilst funding may be provided by other levels of government, local government will have an important role to play in the administration and delivery of community critical projects as part of the COVID recovery. As such, it will be imperative that local governments are able to effectively plan and manage a broad range of projects for the benefit of their local communities.
To help Council’s better plan for and select appropriate investment opportunities, we will be conducting a local government investment and project delivery vlog series. Each session within the series will focus on an important stage of project realisation and delivery, from inception through to finalisation.
Watch this space for further updates on the vlog series coming soon.
The post Maximising Local Government Investment – Now and Post COVID appeared first on MacDonnells Law.

In these uncertain times it’s important to ensure that development, delivery of critical infrastructure, projects and services continues relatively undeterred.
Although the prospect of investing and rolling out significant projects may be daunting during this period, project proponents should find some comfort in the Queensland State Government’s Building Acceleration Fund’ (BAF) which has been established to stimulate the State economy and support the road to recovery, both economically and socially.
Eligible proponents (developers, local governments and utility providers) can apply for BAF funding to assist in the delivery of projects under an interest free loan. The State government will review and undertake an assessment of eligible project applications against the guidelines it has developed, which includes considering the feasibility and longevity of each project, and the ability for the project to deliver on the mandate of jobs for local economies and the broader economic benefits that may flow from each project.
Projects will need to commence within 12 months of funding approval and will need to be completed within 18 months from the construction start date.
BAF applications are due to close on 4 September 2020 at 5pm.
Further details on making a BAF application and the BAF process can be found here.
WHAT’S NEXT?
Successful applicants will need to consider funding implementation and project delivery, including issues of procurement, approvals and engagement. Watch this space for an update on what proponents should be thinking about following funding approval and when commencing new projects.
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Well, it seems the Black Friday shopping craze is storming Australia. The emails, texts and social media marketing is thick and fast! Unless you’re a trade mark freak like our Donna Patane, you probably don’t know that “Black Friday” is actually a registered trade mark in Australia. You would be correct in thinking that’s odd. …

Continue reading “Using the phrase “Black Friday” about, ummmm, Black Friday!!”

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On 28 May 2020, the much anticipated Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 were introduced by the Queensland Government under the COVID-19 Emergency Response Act 2020.
The purpose of the Regulations is to implement the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles during COVID-19 which applies to certain lease arrangements during the period of 29 March 2020 to 30 September 2020.
During this period tenants under an “affected lease” are entitled to the below relief:

May not be evicted or have their lease terminated for non-payment of rent or outgoings;
Must have rent reduced in proportion to their lost turnover (at least 50% of the rent reduction offered must be in the form of a waiver, leaving the rest to be deferred);
May not have their rent increased;
May not be penalised for reducing trading hours or not opening; and
May not have a claim made by their landlord on a bank guarantee or security deposit for unpaid rent or outgoings.

A lease will be an “affected lease” where it meets all of the following criteria:

The lease must be a retail shop lease or a lease for a premises which is used predominantly for carrying on a business;
The lease must be current as at 28 May 2020 when the Regulations commenced;
The tenant (or an affiliate) must be eligible for, but not necessarily enrolled in, the JobKeeper Payment Scheme; and
The tenant must be an “SME entity” meaning the tenant carries on a business in the current year, or is a non-profit body during the current year and its annual turnover for the current year is likely to be less than $50 million and/or its annual turnover for the previous year was less than $50 million.

Provided the tenant satisfies the above criteria they will be entitled to the relief offered under the Regulations and the Code.
Tenants and landlords are encouraged to negotiate reasonably and in good faith to come to an agreement as to the relief the tenant is entitled to and the subsequent variation to the lease or agreement that is in place. Where an agreement cannot be reached, either party may give notice of a lease dispute to the Queensland Small Business Commissioner.
If you are a tenant or landlord and require further advice or assistance in respect of the relief offered under the Regulations and Code, please get in contact with our experienced property team to discuss your matter further. Directors, Luckbir Singh and Melissa Sinopoli will also be answering all your questions in a webinar on 4 June 2020 at 9.30am.  RSVP by the following link – https://mailchi.mp/macdonnells/covid19-queensland-legislation-released
 
 
 
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Today, 26 April 2020, is World IP Day, a day dedicated to celebrating and learning about intellectual property rights. Each year the World Intellectual Property Organisation decides on a theme and, for 2020, the theme is “Innovate for a Green Future”.
A core purpose of IP is to give exclusive use and commercialisation rights to those who develop new products or services so that they are sufficiently motivated to spend the time, effort and money required to innovate.
In the realm of “green future”:
1. Patents can be used to protect new green energy systems and circular economy recycling methods;
2. Designs have been used to protect a modular mattress allowing parts to be replaced rather than disposing of the whole product thereby reducing landfill;
3. Trade marks are used to identify goods or services which hold a particular certification such as being animal cruelty free; and
4. Plant breeders rights allow a creator of a new stable plant variety to control the reproduction of the variety.
As you go about your day today, think about the goods and services you come into contact with and how IP played a role in making them available to you.
If you are taking time during lockdown to work on something new and want to know more about intellectual property, contact our expert Donna Patane.
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Earlier this year, the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Act) passed and the new laws took effect on 1 July 2019. The new laws introduced a strong yet simple (well, simpler) regime for protecting whistleblowers to encourage disclosure of crime and misconduct in the private sector.
Part of the regime is a requirement for public and large proprietary companies to deal with disclosures in a certain manner, have a compliant policy for receiving and investigating disclosures (which also touches on the matters set out in guidelines issued by ASIC this month) and carry out staff training. The kicker is, companies need to be compliant now and need to have policies in place by 1 January 2020. 😮
Your company needs to comply if:
1. It is a public company;
2. It is a public company limited by guarantee (usually, a charity) with revenue over $1m; or
3. It is a proprietary company (i.e. “Pty Ltd”) with two of revenue over $50m, assets over $25m and 100 employees.
The regime applies to whistleblower disclosures made by eligible people, to eligible recipients about reasonably suspected misconduct or an improper state of affairs. There are also niche rules for public interest disclosures and emergency disclosures.
Once a disclosure is made within the regime, the whistleblower automatically gains statutory protections for strict confidentiality, liability and admissions as well as protection against detrimental treatment or reprisal actions.
Severe civil and criminal penalties will apply to breaches of the requirements and protections, and courts are empowered to make orders for relief against a company if they fail to prevent the whistleblower suffering from detriment in addition to the company’s usual vicarious lability for employee actions.
Failure to have a compliant policy by 1 January could mean a penalty of $12,600.00. Breaching confidentiality of a whistleblower’s identity or causing or threatening detriment could mean a penalty of up to $1.05 million (for individuals) or the higher of $10.5 million or 10% of the annual turnover up to $525m (for companies). So, under the new laws, a company could be fined $10m if the whistleblower’s identity is disclosed by one officer to another. Yeah, the confidentiality provisions are THAT strict.
Don’t be blowing in the wind on January 1. Get in touch for a compliant whistleblower policy and supporting procedure to avoid your company being at risk.
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On 25 November 2019 the Federal Court formally recognised the native title rights and interests of the Auburn Hawkwood People covering land and waters from Chinchilla in the north to Glencoe in the south.
The determination recognises the Auburn Hawkwood People’s exclusive native rights and interests over 159 hectares and non-exclusive native title rights and interests over more than 170 hectares of land. The application for the determination was filed back in September 2011.
MacDonnells Law represented North Burnett Regional Council and South Burnett Regional Councils as respondents to the claim given their respective local government areas are partly within the claim boundaries. In addition to appearing at many case management hearings and conferences on behalf of the Councils as well as addressing tenure issues, MacDonnells Law ensured that the Councils’ rights and interests are appropriately reflected in the determination. This includes recognition of the Councils’ powers, functions, responsibilities and jurisdiction under the Local Government Act 2009 (Qld) (and other legislation under which they perform their responsibilities) and their rights to operate and maintain infrastructure, structures, earthworks and facilities within the determination area.
The Media Statement issued by the Minister for Natural Resources, Mines and Energy, The Honourable Dr Anthony Lynham, can be viewed at:
http://statements.qld.gov.au/Statement/2019/11/29/ancestral-land-between-chinchilla-and-glencoe-recognised
The consent determination can be viewed at:
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca1908
If you require assistance with any native title or Aboriginal and Torres Strait Islander cultural heritage matters, please call Jeremy Marshall on (07) 3031 9739.
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Well, it seems the Black Friday shopping craze is storming Australia. The emails, texts and social media marketing is thick and fast!
Unless you’re a trade mark freak like our Donna Patane, you probably don’t know that “Black Friday” is actually a registered trade mark in Australia. You would be correct in thinking that’s odd. Black Friday is a well-known concept with its own Wikipedia page! But, it’s American. And it wasn’t all that popular in Australia when the trade mark application was filed in 2007.
The owner of the trade mark, Factory X Pty Ltd, issued demands for infringement to some of our clients in the past (in one case, the same letter, every year) but it has been quiet of late.
In fact, Factory X has been busy with Federal Court proceedings for trade mark infringement against Cuponation GmBH. The proceedings were dismissed with consent (i.e. settled) which means the trade mark still appears to be enforceable and we have no authoritative decision on whether the use of “Black Friday” in respect of late November sales amounts to trade mark infringement.
In the Trade Marks Office, Factory X has opposed 4 trade mark applications filed by Harvey Norman for “Black Tag Friday”. A decision has been made in respect of 2 marks where the hearings officer dismissed the opposition on the basis that “Black Tag Friday” is not substantially identical or deceptively similar to “Black Friday” given it is treated as a phrase. A decision has not yet been made in respect of the other 2 marks, but we suspect the outcome will be the same.
During the opposition actions, Harvey Norman became aware of Factory X’s limited use and filed an application for removal of the mark for non-use. The non-use action is still underway and we would not expect a decision to be made until mid next year. This explains when Harvey Norman’s marketing says “BF Sale” and “Big Friday Sale”!
There has also been some action overseas. Most recently, the German trade marks office cancelled and removed a “Black Friday” trade mark on the basis that it lacked distinctive character and should not have been registered. We would say there is some scope for the same argument to be made in Australia, but it would require court action (unless the non-use application is successful before then).
Although there is a registered trade mark in Australia, there are ways and means of using “Black Friday” and avoiding liability for infringement such as descriptive use and use outside the scope of the registration. Please contact our experts if you have any concerns or receive a demand.
Depending on how Harvey Norman’s non-use application goes, by this time next year, the trade mark may be removed from the register.
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As most home-owners can attest to, buying a home or investment property is one of the largest financial commitments a person will make in their life. The law reflects this, in that it is very protective of such a financial commitment, where it has been made in reliance of a dishonest misrepresentation or induced belief about the state of a property being purchased.
As a result of this, a property developer must be mindful of any representations they or their agents or officers are making in respect of the property being sold. The line between ‘selling’ a property by advertising its selling points and misrepresenting the actual state of things to a potential buyer can often be blurred, which can result in a costly error for those who fall over the line.
A recent example of this can be found in the matter of Eckford v Six Mile Creek Pty Ltd (No 2) [2019] FCA 1307 which was heard in the Federal Court of Australia earlier this year.
Background
In September 2007, Mr and Mrs Eckford came across a new development owned by Six Mile Creek Pty Ltd (SMC) along the south-east coast of Queensland. Upon meeting with the local real estate agent marketing the estate, the Eckford’s were advised that lot 10 was the “premier lot in the estate“. The Eckfords were further told that lot 10’s ocean views would be kept “in perpetuity” as the adjacent lots 17, 18 and 19 had all be ‘sold’ with building covenants restricting the height of vegetation and buildings on those lots.
It later came to light that those lots listed as ‘sold’ were not in fact sold but rather were under contract, with those contracts in the words of the director of SMS being “very weak“, “bodgy“, “dodgy“, “a joke” and “not worth anything until they settled“. During the trial, it was put to a director of SMC, Mr McLaughlin, that he knew there was little if any chance of the contracts for the adjoining lots settling, which was acknowledged.
Years after having purchased lot 10, Mr Eckford and his son made enquires with SMC regarding the future development of the adjoining lots. Upon making these enquiries, the Eckfords became aware of the fact that not only were the adjoining lots not sold when Mr and Mrs Eckford entered into the contract to purchase lot 10, but also that those lots had since been sold without any building covenants protecting lot 10’s ocean views.
Following this, the Eckford’s brought a claim against SMC, alleging that SMC were aware of the fact the lots were not sold and that the developer was personally liable to them for committing the tort of deceit and/or fraudulent concealment as a result of the Eckford’s relying on SMC’s agent’s representations.
Decision 
The key issues to be determined in the case were:

whether the adjoining lots were actually ‘sold’ at the time the Eckford’s entered into the contract to purchase lot 10;
whether SMC knowingly allowed the real estate agent to market the adjoining properties as ‘sold’ in circumstances where it believed that those properties would never settle; and
whether SMC had any obligation to advise the Eckford’s of the change in circumstances regarding the sale of the adjoining lots and the fact these were no longer being sold with building covenants.

In coming to its decision, the Court rejected SMC’s contention that it had never appointed the real estate agent for the purpose of entering into the “sham contracts” as the evidence did not support this. Further, it was clear that as the registered owner of the lots in question, SMC would gain a benefit from the Eckford’s reliance on the misrepresentation.
Following this, the Court determined that SMC did not avail the Eckford’s of all of the facts surrounding the sale of the adjoining lots and that given this information was available only to SMC, it had an obligation to disclose this to the Eckford’s. The failure to disclose this information was found to not only be misleading or deceptive conduct but also fraud.
What this means for developers
This case is a clear warning for developers (and any other sellers for that matter) of the need to ensure that anything being told to a potential buyer must be factual and not used as a selling tactic solely to induce a potential buyer into entering a contract to purchase a property. Further, if there has been a material change in the circumstances surrounding a property being purchased before a buyer actually signs a contract or the contract settles, the buyer should also be made aware of this.
It is important to note that this extends to those representations made by an agent, as the Court has been willing to extend the liability for representations made by an agent to the developers.
If you have any queries on the matters raised in this article, please contact our office.
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Commonly, when family members or related parties come to an agreement relating to a property dealing, such as the purchase or letting of a residence, that agreement is not documented or written down in any form.
This is usually due to the relationship of trust between the parties upon entry into the agreement. However, as can be seen in a number of recent cases, when that relationship breaks down, the fact that the agreement between the parties was not documented can prove to be costly for both parties.
One example of this is the matter of Nguyen v Nguyen [2019] NSWSC 131, which involved an oral agreement between two siblings.
Background
The plaintiff, Ms Nguyen, and the defendant, Mr Nguyen, are siblings who made an oral agreement in 2001 in regard to the purchase of residential property. The property was purchased in Mr Nguyen’s sole name.
Mr Nguyen contended at trial that the parties agreed, at the time of its purchase, that he would be both the legal and beneficial owner of the property and that, after the purchase, he would rent the property to Ms Nguyen for $250 per week.
Ms Nguyen contended that they agreed that they would purchase the property together as joint beneficial owners and they would be equally responsible to repay loans used to fund the purchase of the property. Ms Nguyen also claimed that in the alternative, Mr Nguyen held the property on trust for her to an extent reflecting her financial contributions to the property.
Both parties were borrowers under a mortgage used to finance the purchase and Ms Nguyen was the one responsible for negotiating the sale price of the property as well as payment of the deposit, stamp duty on the transfer and other transaction fees. Ms Nguyen then lived in the property for several years with her family, during which time she made various repairs and improvements to the property.
Some years later, Ms Nguyen vacated the property and a tenant moved in. After the tenant vacated the property, Mr Nguyen changed the locks following a dispute between himself and Ms Nguyen on the ownership of the property. The matter eventually ended up in Court and it was left to the Court to infer the oral agreement between the parties, seeing as no written agreement was ever entered into.
Decision
The Court ended up making an order that Ms Nguyen held a 40% interest in the property, which Mr Nguyen held on constructive trust for her (given the property was registered in his sole name). Further, Mr Nguyen was ordered to pay Ms Nguyen’s costs of the litigation.
What was interesting about this decision is that the Court order was not in line with either Ms Nguyen or Mr Nguyen’s position but rather was somewhere in between.
What this means for you
What can be taken from this case is that when family members are considering entering into an arrangement to deal with property, or anything else in which a significant sum of money is involved, the terms of this should be agreed to upfront and written down.
While there is ordinarily a certain level of trust in any such transaction, having the terms written down can help avoid any issues down the track when the interests of the parties are separate or where there is a breakdown in the relationship (including costly litigation).
Further, by having an agreement in writing, the parties are afforded an opportunity to properly consider their position in full and all things that may be relevant to them as part of that and such an agreement will ensure that the interests of both parties, as agreed, are followed, rather than a potentially unintended consequence of neither party ultimately achieving or receiving what was intended (as was the case for Mr and Ms Nguyen).
Please contact our team with any queries on an issue raised in this article.
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