Author Archives: Daniel Epstein

Beginners Guide to Legal Cost Disputes (Part One):

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The issue of costs is central to all forms of legal practice. The law of costs represents an amalgam of several areas of substantive law; namely the law of contract, law of equity and it’s principles along with a fundamental reliance on statute and statutory courts. Legislation for costs in Victoria: Supreme Court (General Civil Procedure) Rules 2005 (Order 62 And 63); Legal Profession Uniform Law Application Act Legal Practitioner’s (professional costs) cost is the price for legal services and … Continued

Beginners Guide to Owners Corporation:

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An owners corporation (formerly body corporate) manages the common property of a residential, commercial, retail, industrial or mixed-use property development. Common property is whatever it is stated to be on the plan of subdivision and may include gardens, passages, walls, stairwells, pathways, driveways, lifts, foyers and fences. An owners corporation must: Manage and administer the common property; Repair and maintain the common property, fixtures and services; Take out and maintain required insurance; Raise fees from the lot owners to meet … Continued

Beginners Guide to Covenant Law (Part Three)

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As an alternative a restrictive covenant can be removed or varied by amending the planning scheme under Part 3 of the Planning and Environment Act 1987 (“The Act”) pursuant to the schedule to Clause 52.02 of the planning scheme. • A planning scheme amendment can be requested by anyone but needs to be prepared by the municipal council with the approval of the Minister for Planning. • pursuant to section 47(1) and subject to some conditions set out in section … Continued

Beginners Guide to Covenant Law (Part Two)

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Process for a s84 application to vary or remove a restrictive covenant. Ordinarily, s84(1)(c) provides the broadest scope to modify or remove a covenant where discretion and is the only ground required. Property Law Act ss84(1)(a) and (c): The Court shall have power … to discharge or modify any such restriction (subject or not to the payment by the applicant of compensation to any person suffering loss in consequence of the order) upon being satisfied: • that by reason of … Continued

Beginners Guide to Covenant Law (Part One)

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Important concepts about restrictive covenants Covenants can vary in coverage • You must provide the Court with evidence about who enjoys the benefit and the burden of the covenant through a colour coded cadastral plan obtained from a professional title searching service along with the essential circumstances of the application. • Sometimes only one lot is burdened and one lot benefits. Sometimes there may be many lots burdened and many lots benefiting. • In new housing estates it is common … Continued

Beginners Guide to Compulsory Acquisition (Part Two)

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  Compulsory Acquisition Hearings: There is a long standing practice of conducting conferences between valuers (Valuers Conference) initially if there is a dispute where the valuers for opposing parties meet at an early stage in the process to discuss their opinions and the evidence upon which those opinions are based. Valuers will often arrive at an opinion of value based on a particular piece of sales evidence which may have escaped the attention of an opposing valuer. The valuers’ conferences … Continued

Beginners Guide to Compulsory Acquisition (Part One)

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  General Overview: Federal, state and local authorities may acquire land for a range of public purposes. This process is referred to as Compulsory Acquisition. Under the provisions of the Land Acquisition and Compensation Act 1986, land required for a public purpose can be acquired/resumed by government departments and agencies. This can be done either compulsorily or by negotiation. Those affected include land owners, tenants, businesses, licence holders and mortgagees. Compulsory acquisition is legislated for under Section 51(xxxi) of the … Continued

Beginners Guide to Retail Lease Disputes

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  Retail Lease: Retail Tenancies core jurisdiction is enabled by section 81 and 89 of the Retail Leases Act 2003. Retail Leases Act 2003 is the mechanisms available to resolve disputes concerning leases of retail premises and promote greater certainty, fairness and clarity in the commercial relationship between landlords and tenants of retail premises. Retail Tenancy disputes are basically disputes between landlord and tenants under or in respect of retail premises leases. A retail tenancy dispute as defined in the … Continued

Beginners Guide to Residential Tenancy Disputes

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The Residential Tenancies List is VCAT’s busiest List, accounting for about 60 per cent of VCAT’s total caseload. Over 60,000 applications made to this List annually. It is a high-volume, fast throughput list where matters are often finalised within four weeks of the original application even earlier for matters such as urgent repairs, which can be resolved within days. Parties attending a Residential Tenancies hearing generally receive their decision on the same day as the hearing. The List handles disputes … Continued

Beginners Guide to Real Property

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The Real Property disputes relate to real estate and property and enables the VCAT jurisdiction within the following legislation: Australian Consumer Law and Fair Trading Act 2012; Estate Agents Act 1980; Owners Corporations Act 2006; Property Law Act 1958; Sale of Land Act 1962; Water Act 1989. Real property disputes include the following: The amount of commissions or outgoings charged by an estate agent; Subdivisions but not related to planning or environmental issues; Disputes about owners corporations which are related … Continued