Property Disputes

Sunset Clauses and the Power to Rescind



A Penumbral Duty of care – is a principled approach possible? (2013) 21 TLJ 106 By Laina Chan

‘that uncertainty that appears necessarily to affect this area of the law if entitlement to damages is to depend bupon [a] case-by-case application of a general policy, itself inflexible and ill-defined and dependent upon a survey of a quite variable group of considerations, many of which will be susceptible of the production of differing, subjective judicial reactions.’ -Caltex Oil (Australia) Pty Ltd v The Dredge ‘Willemstad’ (1976) 136 CLR 529 at 567 per Stephen J.

It is trite law that in Australia, a solicitor engaged by a client is under concurrent obligations in both contract and tort to exercise care, diligence and skill in performing the scope of the retainer. In Hawkins v Clayton, the High Court held that in certain circumstances, the tortious duty owed to a client might extend beyond the parameters of the retainer and require a solicitor to take positive steps to avoid a client sustaining any real and foreseeable economic loss. Such an obligation has been termed the solicitor’s ‘penumbral duty of care’. This article considers the circumstances in which a court will extend the tortious duty of care of a solicitor beyond the four corners of the solicitor-client retainer to impose upon the solicitor a duty to avoid any real and foreseeable financial loss, requiring in some circumstances that the solicitor provide financial advice, and whether a principled approach to this issue can be distilled from the cases.

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When conveyances go wrong – Vendor breaches (2011) 20 APLJ 33 By Laina Chan This article will trace the evolution of the common law concept of caveat emptor where a vendor only had to disclose latent defects in title whether or not known to the vendor, to the constraints now placed on vendors via their obligations pursuant to s 52A of the Conveyancing Act 1919 (NSW) and s 18 of the Australian Consumer Law, previously s 52 of the Trade Practices Act 1974 (Cth) and s 42 of the Fair Trading Act 1987 (NSW). It will also discuss the remedies that are available to a purchaser when these obligations of disclosure are not met by the vendor by looking at recent case law. Download this article here

When Conveyances go wrong: unwanted caveats and fraud (July 2009) Australian Property Investor 10 By Laina Chan

Caveats are the traditional way in which a person with an equitable interest in a parcel of real property can protect their interest in that property. The High Court case of Black v Garnock suggested that purchasers under contract should always lodge a caveat and shows the risks of not doing so. The incidence of fraud in relation to sale and borrowing has also made it critical for practitioners to confirm the identity of clients.[1] This paper will discuss the circumstances in which a caveat should be asked for and lodged, and also look at the key ways of removing unwanted caveats. It will also examine the length you need to go to and also the option of title insurance to layoff risk in this area.