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Australian Property Law Bulletin - July 2008 (Vol 23 No 1)

Australian Property Law Bulletin - July 2008 (Vol 23 No 1)

In the July issue: Greenhouse gas storage in AustraliaBy Stuart Barrymore and Ann-Maree Mathison, FREEHILLSWith the introduction on 18 June 2008 of the Offshore Petroleum Amendment (Greenhouse…

In the July issue:

Greenhouse gas storage in Australia

By Stuart Barrymore and Ann-Maree Mathison, FREEHILLS

With the introduction on 18 June 2008 of the Offshore Petroleum Amendment (Greenhouse Gas Storage) Bill 2008 (Cth) (the CCS Bill) in the House of Representatives, the Commonwealth Government has introduced a regulatory regime to facilitate offshore carbon capture and storage (CCS). While there are a number of CCS projects around the world, the CCS Bill is believed to by the first attempt by a government to create an offshore title system of general application for the injection and storage of greenhouse gases.

Proportionate liability in practice

By Charles Thornley, WOTTON + KEARNEY

In Gunston v Lawley [2008] VSC 97; BC200802799, in an appeal from the Victorian Civil and Administrative Tribunal (VCAT) by the owners of two duplex unites, who alleged building defects in the properties, the Victorian Supreme Court has confirmed that a plaintiff's settlement with one of several concurrent wrongdoers does not reduce the liability of other concurrent wrongdoers.

Can the carelessness of a mortgagee's lawyer cause the mortgage to lose the benefit of indefeasibility?

By Prof Sharon Christensen, QUEENSLAND UNIVERSITY OF TECHNOLOGY

Section 11A of the Land Title Act 1994 (Qld) (the LTA) obliges the mortgagee of land to take reasonable steps to confirm the identity of the mortgagor. Hilton v Gray (2008) ASC 155-094; Q ConvR 54-686 provides a clear example of the exposure of the Titles Registration Office to claims where mortgagees or their agents fail to take reasonable steps to ascertain the identity of the mortgagor. Although, ultimately, no fraud on the part of the mortgagee was found, the solicitors, as agents for the mortgagee, failed to take reasonable care in the identification of a mortgagor. The ramifications of such a result are examined after a consideration of the case.

Jessica Estates case overturned

By Jodie Masson and Jane Park, MIDDLETONS

Since our article on this case in 22(10) APLB 70, the NSW Court of Appeal has overturned the decision of Jessica Estates Pty Ltd v Lennard [2007] NSWSC 1175; BC200709051 and [2007] NSWSC 1434; BC200711469. The Court of Appeal considered whether the interpretation given to a local environment plan, enacted under s 28 of the Environmental Planning and Assessment Act 1979 (NSW), produced an irrational result.

Disclosure statements: give it to the purchaser straight

By Kris Byrne, ALLENS ARTHUR ROBINSON

The decision of Menniti v Winn [2008] QCA 66; BC200801939 addressed whether due to a paucity of information available to be included in a disclosure statement, a vendor would be in breach of s 206(1) Body Corporate and Community Management Act 1997 (Qld) by inserting ‘not applicable' in response to a majority of the requirements of s 206(2). The dismissal of this appeal found that a disclosure statement is merely the provision of information to a prospective purchaser to make an informed decision about whether to proceed with a contract of sale.

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