In a 2009 Supreme Court of Victoria decision, it was decided that human rights must be taken into account by a mortgagee when selling a property, particularly in circumstances where the property is a residential family home and where the mortgagor has a ‘home occupation interest’.
However, on appeal, the Victorian Court of Appeal decided (20 April 2011) that the notion of international human rights did not require the mortgagee’s duty imposed in s77(1) of the Transfer of Land Act (1958) (‘TLA’) to sell ‘in good faith and having regard to the interest of the mortgagor’ as extending to the right of ‘home occupation.’ Further, although the duty requires mortgagees to have regard to the mortgagor’s interests, the duty does not extend as far as requiring the mortgagee to take account of the mortgagor’s preference as to the order of sale of the security properties.
A draft ruling by the ATO stands to increase the GST liability of a developer of retirement villages in respect of ingoing contributions or interest free loans by residents.Author: Paul Anderson Practice Areas: Banking
Where there are multiple mortgages registered on title and the property is sold by a mortgagee (whether the first mortgagee or not), if there are surplus funds following the sale and the mortgagee in possession of these funds is aware of a dispute between the mortgagor and the mortgagee next in line, serious consideration should be given to paying the money into court. A failure to take this precaution may result in considerable loss to the selling mortgagee.Practice Areas: Commercial Disputes & Transactions
We have summarised the changes to superannuation announced last night by the Government in the 2011 Federal Budget.Practice Areas: Insurance & Financial Services
The Supreme Court of New South Wales was recently asked to determine whether a settlement agreement had been reached in relation to proceedings involving a building company and a party who had dealt with it despite that other party failing to execute a formal agreement. The Court applied the well-established principles on the formation of binding agreements as prescribed in Masters v Cameron  HCA 72; (1954) 91 CLR 353 when deciding whether a binding agreement between the parties had been reached.
On 28 April 2011, the Government released its Information Pack titled ‘Future of Financial Advice 2011’ (FOFA Reforms). In this Client Update, we provide a summary of each of the reforms set out in the FOFA Reforms and the proposed timing for the introduction of each.Practice Areas: Insurance & Financial Services
The Court of Appeal of the Supreme Court of Western Australia recently ruled on whether death caused by the formation of a blood clot inside a coronary artery was caused by ‘bodily injury’ that resulted from an ‘accident’ within the meaning of a policy of insurance.
The case revisits after many years the issues surrounding the concept of an ‘accident’ previously ruled on by the High Court in the well-known case of Australian Casualty Co Ltd v Federico but this time in the context of a fatal heart attack and against a background of progressive heart disease of which the insured was unaware.
In the matter of Abou-Sleiman v P & V Masonry Pty Ltd  NSWWCCPD 21 (1 April 2011), TurksLegal has successfully argued that a worker must be able to establish that he or she sustained a ‘sudden identifiable pathological change’ in order to successfully prove a personal injury on a journey under Section 10 of the Workers Compensation Act 1987 (WCA 1987).
Therefore an injury on a journey which is solely an aggravation of a disease will not be compensable.
On 24 March 2011, the NSW Court of Appeal handed down its decision in Wilson v Nilepac Pty Ltd t/as Vision Personal Training (Crows Nest). The case raises three matters of interest: (a) establishing liability in negligence in the context of supervised physical exercise; (b) the admission of some of the opinion of an expert in circumstances involving a finding that his evidence is unreliable; (c) the significance of ‘social utility’ as one of the considerations listed in s5B(2) of the Civil Liability Act 2002.Author: Roger Walter Practice Areas: Insurance & Financial Services / Employers Liability