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Please note that this post was prepared before the changes to the standard REIQ contract made in early 2022, which changed the treatment of late payments in certain respects. At any time and in particular in a heated property market the buyer must be careful to perform obligations under a land contract when they are due. An example of this is the obligation to pay the deposit. Under the usual form of residential contract used in Queensland, there is a breach if the buyer pays any part of the deposit late. That breach can be grounds to terminate the contract and keep whatever part of the deposit has been paid. This is different to (say) late communication of the satisfaction of finance. The difference is that in the case of the late payment of the deposit, the seller may still be entitled to terminate even after it has received the deposit, whereas in the case of the late confirmation of acceptance of the finance condition, the seller’s right to terminate generally ends once satisfaction is confirmed (subject to the particular contract used). So as a practical example, a Buyer is to pay a $100,000 deposit in two instalments – one of $10,000 two days after the contract date and one of $90,000 5 days after. He pays the first instalment on time, but misses the second. If the contract was terminated before he pays the second instalment, he loses $10,000. But if he pays the $90,000 on the seventh day (without agreement to extend from the Seller) then the Seller can still terminate and keep the whole $100,000. There are a number of variables to this scenario, as examples the contract used, the wording of the deposit obligation, whether the Seller affirmed the contract or agreed to vary the obligation, but a lot of the drama and risk would have been avoided if the agreement of the Seller to extend the time for payment was obtained before making the second payment. For advice in relation to contracts and their enforcement, please contact the property lawyers at QBM Lawyers – Peter Muller, Jessica Murray, and Megan Hanneman.

Federal Court proceedings have been commenced against Dixon Advisory on behalf of a disappointed client. This follows reports that in July 2021 Dixon Advisory entered into a heads of agreement to resolve other Federal Court proceedings (in that case brought by ASIC) for various breaches relating to advice given. It was reported that the heads provide for Dixon to pay penalties of $7.2M and $1M toward ASIC’s costs. It is important to check on advice from your financial planners and to monitor the performance of assets being managed. Ensure that composition of investments is not creeping into risk areas. For advice in relation to poor investment advice, please contact Peter Muller at peterm@qbmlaw.com.au

Some very interesting concepts relating to driver distraction and road side advertising signs were discussed in a recent decision of the Planning and Environment Court of Queensland, in Australian Outdoor Sign Company Pty Ltd v. Brisbane City Council [2021] QPEC 45. While it might sound like pretty dry stuff, it actually makes for a good read if you are interested. Essentially, it involves a proposal to put a road sign sign with a 25 second rotation of images at an intersection having some notoriety for traffic incidents, however the level of detail to which the expert engineers descend, in particular when it comes to matters of public safety, is worth a read. https://archive.sclqld.org.au/qjudgment/2021/QPEC21-045.pdf

On 8 September 2021 the High Court found that media organisations (in this case Fairfax Media Publications, Nationwide news, and Australian News Channel) – by creating a public facebook page and posting content on it – encouraged and assisted the publication of comments from third-party Facebook users. The consequence is that those organisations are taken to be the publishers of the third party comments. By being taken to be publishers, those organisations may be liable for defamatory material in the comments irrespective of whether they know what is in the comments. Will this lead to less inflammatory and sensationalised news articles? One might hope, but then of course the alternative is just to turn the comments off. This decision is one in a lengthening line demonstrating the risks of posting defamatory material online. Defamation proceedings are enormously costly for all parties, it is always best to err on the side of caution when commenting.