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Australian Property Law Bulletin - February 2008 (Vol 22 No 6)

Australian Property Law Bulletin - February 2008 (Vol 22 No 6)

In the February issue: Preparation of contracts by real estate agents in Queensland: a return to the past or the present revisited?By Prof Sharon Christensen, QUEENSLAND UNIVERSITY OF…

In the February issue:

Preparation of contracts by real estate agents in Queensland: a return to the past or the present revisited?


The Legal Profession Act 2007 (Qld), which commenced on 1 July 2007, altered the rules applying to the preparation of contracts by real estate agents and other licensees under the Property Agents and Motor Dealers Act 2000 (Qld). Subsequently, the government altered the provisions dealing with real estate agents through the Legal Profession (Transitional) Amendment Regulation (No 1) 2007 (Qld). This article examines the question of whether it makes any substantial change to the 2007 Act concerning the right of an agent to prepare contracts.

Oral leases and agreements to lease: the ADT sidelines the Statute of Frauds

By Robert Riddell and Daniel Fitzpatrick, GADENS

Can a binding agreement for the lease of a retail shop premises be concluded by word of mouth alone? If there is no written agreement, is part performance (such as the occupation of the premises or payment of rent) needed at all? The Administrative Decisions Tribunal's decision in Perhauz sidelined the Statute of Frauds by enforcing a wholly oral agreement to lease where there had been no part performance. The recent decision in Thai Star has cemented the Tribunal's view that the Retail Leases Act overrides conflicting provisions of the Conveyancing Act.

Transfer of mortgage does not transfer collateral obligations


The recent High Court decision of Queensland Premier Mines v French raises a very important practical issue concerning the efficacy of assigned mortgages where they secure debts owed under a separate loan agreement. The crux of the case concerned the interpretation of s 62 of the Land Title Act 1994 (Qld), and its practical consequences are most noteworthy.

Are poker machine entitlements tradeable during the currency of the lease?

By Jodie Masson and Esther Ku, MIDDLETONS

The right to deal with the property rights inherent in poker machine entitlements, including the right of disposal, may be affected by contractual rights, including rights granted under a lease. In Boreland v Docker, a dispute arose between a tenant and a landlord when the landlord claimed the beneficial ownership in poker machine entitlements associated with leased premises, and wanted to precent the tenant from transferring its entitlements during the term of the lease.

Reactivation of rights of first refusal

By Jodie Masson and Farid Fanaian, MIDDLETONS

In Octra Nominees Pty Ltd v Chipper, a tenant argued before the full Federal Court that, although it had rejected an offer to purchase under a right of first refusal, it was entitled to a second offer based on varied terms, since the owner had made a variation to the contract for sale it had entered into with a third-party purchaser. This article discusses the implications of the case.

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