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Australian Property Law Bulletin - August 2008 (Vol 23 No 2)

Australian Property Law Bulletin - August 2008 (Vol 23 No 2)

In the August issue: One step forward and one step back: the Noongar south-west native title claimBy Dr Simon Young, UNIVERSITY OF WESTERN AUSTRALIAThe Full Federal Court's recent return to the…

In the August issue:

One step forward and one step back: the Noongar south-west native title claim

By Dr Simon Young, UNIVERSITY OF WESTERN AUSTRALIA

The Full Federal Court's recent return to the native title field, in the Bodney v Bennell decision of April 2008, was another lengthy and important addition to this difficult body of Australian jurisprudence. This article analyses the first-instance decision and the Full Federal Court Appeal, highlighting some of the unresolved conceptual difficulties facing the courts in this area and concluding with a comment on the problems attending the adversarial approach to the resolution of claims.

South Australian legislation update

By Alicia Burgemeister, THOMSON PLAYFORD

Two recent pieces of SA legislation of relevance to property law are summarised in this update.

Entering upon a purchase: tread cautiously

By Kris Byrne, ALLENS ARTHUR ROBINSON

The decision of Three Pty Ltd v Body Corporate for Savoir Faire Community Titles Scheme 3841 [2008] QCA 167; BC200804706 has outlined the point at which a purchaser of land will be deemed to have ‘entered upon a purchase' within the meaning of the Land Sales Act 1984 (Qld) (The Act). In doing so, it has cast serious doubt on ordinary conveyancing practice in Queensland under the Act.

Corporations signing under power of attorney in Queensland

By Prof Bill Duncan, QUEENSLAND UNIVERSITY OF TECHNOLOGY

In Wright Enterprises Pty Ltd v Port Ballidu Pty Ltd [2008] QSC 78; BC200803718, a person was appointed a director of a corporation and later was appointed an attorney for the corporation. The attorney signed a mortgage instrument on behalf of the corporation and some three days later the power of attorney was registered. The mortgage was later lodged for registration. The point of this case is simple, but extremely important for the validity of instruments executed in Queensland by a corporation.

Waiver by election: the landlord's loss of the right to forfeit a lease resulting from a demand for, or acceptance of, rent

By Stephen D'Emilio and Lucy Arblaster, HOLDING REDLICH

Where a landlord is in a position to forfeit a lease resulting from a tenant's breach and thereafter makes a demand for rent or accepts rent that falls due for payment after that breach, the right to forfeit the lease for the initial breach will be lost as a result of the common law principle known as ‘waiver by election'. The practical implications of waiver by election are significant due to the way commercial landlords generally conduct their businesses.

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