My blog features case notes and commentary on commercial and property law. I have a particular interest in property development and community title, body corporate disputes, acquisitions, disposals and leasing.

Traditional building character: a question of fact and degree

To preserve Brisbane's traditional building character, the planning scheme contains provisions to protect various residential buildings constructed in 1946 or earlier. The case of Hunter Family Capital Pty Ltd ACN 604 208 175 v Brisbane City Council [2022] QPEC 14 involved an appeal to the decision of Brisbane City Council to refuse an application for the demolition of a house constructed in about 1936. While the house exhibited some examples of traditional building character, it was constructed in a modern style with features indicative of a later era. In setting aside the Council's decision, the Planning and Environment Court provided guidance on the styles of houses that may be afforded protection by the planning scheme.

Getting to the root of the problem: who is a neighbour in a group titles plan?

The dispute in Donaldson v The Body Corporate for Maple Court CTS 19593 [2022] QCAT 2 involved a simple question: who is a neighbour in a group titles plan? In answering that question, the Tribunal applied a strict interpretation of the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 to conclude that an individual lot owner in a group titles plan or a community titles scheme is not a "neighbour" and therefore has no standing to commence proceedings. The decision in Donaldson can be contrasted with the decision delivered in Lowe v BGC Technical [2016] QCATA 124, which held that a registered owner falls within the description of a neighbour and, accordingly, has standing under the Act.

Discharging a right of first refusal: can you lower the price after an offer is rejected?

A right of first refusal over a property gives the holder of the right the opportunity to purchase the property in preference to any other buyer. The situation can become complicated, however, when the owner intends to sell the property to a third party for a lower price, or on conditions more favourable than those rejected by the holder of the right. The decision of the Supreme Court in Butchart & Anor v Sinnamon & Ors [2021] QSC 317 considers these issues and illustrates the importance of careful contract drafting.

When is a deposit payable under a standard land contract?

Most standard form contracts for the sale of land require the deposit to be paid on the day the buyer signs the contract, unless another time is specified. But what is the position when a contract is signed in advance of the day it is to be presented to the vendor? Upon acceptance of the contract by the vendor, will the buyer immediately be in breach for failing to pay the deposit on the day they signed the contract? The Supreme Court has recently addressed this question in the case of DN Holdings Qld Pty Ltd v 2620 Ipswich Road Pty Ltd & Ors [2021] QSC 308.

Lease incentive clawback provisions: penalty or commercial bargain?

Commercial landlords commonly offer incentives to encourage potential tenants to enter into a lease. Difficulties can arise, however, where there is a provision for the repayment of the incentive if the lease is terminated early. These provisions are liable to be construed a penalty, rendering them unenforceable. The decision of the Supreme Court in 148 Brunswick Street Pty Ltd v Strategix Training Group Pty Ltd (No 2) [2021] QDC 212 demonstrates how careful drafting can avoid these provisions being captured as an unenforceable penalty.

How far must a body cororate go to accommodate lot owners with physical disabilities?

A body corporate is required to administer common property and body corporate assets for the benefit of lot owners. Two recent decisions involving lot owners with disabilities provide guidance on the scope of the duty and the application of the Anti-Discrimination Act 1991 (Qld).