Posts Categorized: Interesting Legal Decisions

Landmark Compulsory Acquisition Case

Australians Love the classic movie “The Castle” for the quirky antics of the Kerrigan Family, and the timeless one liners… Lawyers love “The Castle” for the surprisingly accurate interpretation of Section 51(xxxi) of the Australian Constitution. Recently, the Supreme Court of New South Wales was asked to consider the right of the NSW Government to compulsorily acquire land held by a Developer in Roselle. The team at Duffy Elliott Lawyers reviewed the decision of the Court to see what grounds the Developer relied upon in their challenge, was it the […]

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Weathervaning Developer's Crane

Injunction Granted to Stop Trespass by Developer’s Crane

A recent case in the Victorian Supreme Court discussed the extent of a landowner’s right to possession of airspace above their land. The Case The plaintiffs owned a property next to a development site on which there was a four storey apartment block being constructed by the developer. The construction work required the use of an overhead crane. When not in operation the ‘arm jib’, or arm of the crane, was overhanging the plaintiff’s property as it needed to “weathervane” by swinging freely in the wind. No building material was […]

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Inheritances received after separation

  The Family Court of Australia recently looked at whether an inheritance received by one party three  years after separation should be included as property to be divided between the a Husband and Wife. The Case The case involved a Husband and Wife who, at the time of trial, had been married 17 years and separated 8.5 years. Under his brother’s Will the Husband received a property worth $715,000 three years after the parties’ separation. The property was unencumbered at the time of trial. The trial judge excluded the property […]

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Final Occupation Certificate – The Holy Grail for Purchasers, or is it?

A final occupation certificate has long been thought to give peace of mind to purchasers of dwellings, however a recent court of appeal case held that a final occupation certificate cannot be relied upon.  The Case The Purchasers entered into a contract with the Vendor (owner-builder) to purchase a substantially renovated house in Wahroonga, NSW. The Vendor engaged Ku-ring-gi Council to certify a two-level extension at the back of the existing house as well as an engineering firm to prepare structural drawings. The Council issued a Final Occupation Certificate despite […]

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When Does a Gift Become a Loan?

  A recent NSW Court of Appeal case examined the circumstances when money initially provided as a gift could later be classified as a loan. The Case In the case, the father made a financial advance to his son in the amount of $1.2 million to assist the son and his wife purchase their family home. Following a successful purchase at auction, the father had several discussion with friends and his son, the father changed his mind and wished to classify the gift as a loan. The father engaged his […]

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What happens to your super when you die?

  Did you know the provisions in your Will do not necessarily determine where the proceeds of your superannuation go? A recent case highlighted the importance of ensuring your testamentary intentions are properly documented for your superannuation. The Case The deceased’s girlfriend, who he had been living with for 9 months before he died, was awarded the vast majority of his superannuation ($352,170), leaving his two young daughters with less than one quarter of his superannuation ($49,664 each). The Law In a nutshell, your estate will be separated into two […]

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Identity checks – why are they important?

At Duffy Elliott Lawyers we take all steps necessary to identify our new and returning clients. We also ensure our conveyancing client’s comply with Verification of Identity (VOI) requirements. Clients often wonder why they need to be identified. A recent case before the ACT Supreme Court highlighted why our processes for identifying a client is an essential part of the legal process. The case, Astell v Australian Capital Territory [2016], involved a client who owned property in the ACT. The client lived in South Africa and had engaged a local […]

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primary production, land tax primary production exemption

Good News for Developers of Land Used for Primary Production

The Background Property Developers often acquire agricultural lands on the edge of existing urban areas and hold them as land as a “land bank” for future Developments. Primary production activities such as cattle grazing often continue through leasing or agistment arrangements. In New South Wales land that is used for Primary Production is generally not subject to land tax. Accordingly, developers have sought to claim an exemption when their “land bank” is being used for primary production. In recent times the Office of State Revenue (OSR) has imposed more stringent […]

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High Court, Duffy Elliott Lawyers, will

Making a Will? Your Solicitor puts your needs first.

Robert Badenach & Anor v Roger Wayne Calvert [2016] HCA 18 On 11 May 2016, the High Court of Australia held that a solicitor did not owe a duty of care to a beneficiary under a Will to advise the testator (person making the Will) of the options available to avoid exposing their estate to a claim under the Testator’s Family Maintenance Act 1912 (Tas). The Circumstances of the Case Mr Doddridge instructed a solicitor to prepare a Will leaving the whole of his estate to the son of his […]

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fixture v chattel

FIXTURE v CHATTEL – A QUICK FIX OF KNOWLEDGE

What is a Fixture?  It’s the age old debate between both vendors and purchasers and lessors and leasee – What is a Fixture? Historically a fixture is thought to be “a chattel so attached to the land that it becomes part of it” and conversely a chattel is said to be “movable, tangible articles of property”. The debate is now further complicated when considering if an “attachment” or “asset” is a fixture under the Personal Property Security Act (PPSA). Recently the in Supreme Court, discussion arose as to whether a set […]

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