A changing landscape: the mortgagee's power of sale in Queensland

In Australia, the extent of a mortgagee’s duty when exercising power of sale has long been the subject of conjecture. With the advent of the global financial crisis in the latter part of 2008, there has been some concern to ensure that the interests of mortgagors are adequately protected. In Queensland, concern of this type resulted in the enactment of the Property Law (Mortgagor Protection) Amendment Act 2008 (Qld). This amending legislation operates to both extend and strengthen the operation of s 85 of the Property Law Act 1974 (Qld) which regulates the mortgagee’s power of sale in Queensland. This article examines the impact of this amending legislation which was hastily introduced and passed by the Queensland Parliament without consultation and which introduces a level of prescription in relation to a sale under a prescribed mortgage which is without precedent elsewhere in Australia

Parties legally bound to unsigned put and call option

The point at which the parties to a negotiation for the sale of land are legally bound can often be difficult to judge. This is particularly so where the parties have agreed a lawyer is to formalise the agreement between them. When the parties have not agreed all matters relating to the transaction, interesting questions arise as to what terms regulate the relationship. In Moffatt Property Development Group Pty Ltd v Hebron Park Pty Ltd [2009] QCA 60 the Queensland Court of Appeal considered first, whether there was a binding agreement to sell and secondly, how the relationship would be regulated in the absence of express agreement in relation to many of the terms

'Hiring a Nashville sensation': Using narrative learning to develop the problem solving skills of contract law students

This article discusses the design of interactive online activities that introduce problem solving skills to first year law students. They are structured around the narrative framework of ‘Ruby’s Music Festival’ where a young business entrepreneur encounters various issues when organising a music festival and students use a generic problem solving method to provide legal solutions. These online activities offer students the opportunity to obtain early formative feedback on their legal problem solving abilities prior to undertaking a later summative assessment task. The design of the activities around the Ruby narrative framework and the benefits of providing students with early formative feedback will be discussed

An examination of the independent certification processes of a construction contract

Construction contracts often provide that the decision of an independent certifier is final and binding. The effect of a contractual term like this has been debated in the courts over time. This paper considers the binding nature of certificates in the context of traditional construction contract arrangements and also considers the implications for more complex contracts like those entered into to facilitate public private partnerships. This article considers the response of the courts and the drafting implications and argues that a different focus would be advantageous

Enhancing opportunities to feed forward ; developing problem solving skills using web based scenarios

Universities often struggle to satisfy students’ need for feedback. This is an area where student satisfaction with courses of study can be low. Yet it is clear that one of the properties of good teaching is giving the highest quality feedback on student work. The term ‘feedback’ though is most commonly associated with summative assessment given by a teacher after work is completed. The student can often be a passive participant in the process. This paper looks at the implementation of a web based interactive scenario completed by students prior to summative assessment. It requires students to participate actively to develop and improve their legal problem solving skills. Traditional delivery of legal education focuses on print and an instructor who conveys the meaning of the written word to students. Today, mixed modes of teaching are often preferred and they can provide enhanced opportunities for feeding forward with greater emphasis on what students do. Web based activities allow for flexible delivery; they are accessible off campus, at a time that suits the student and may be completed by students at their own pace. This paper reports on an online interactive activity which provides valuable formative feedback necessary to allow for successful completion of a final problem solving assignment. It focuses on how the online activity feeds forward and contributes to the development of legal problem solving skills. Introduction to Law is a unit designed and introduced for completion by undergraduate students from faculties other than law but is focused most particularly on students enrolled in the Bachelor of Entertainment Industries degree, a joint initiative of the faculties of Creative Industries, Business and Law at the Queensland University of Technology in Australia. The final (and major) assessment for the unit is an assignment requiring students to explain the legal consequences of particular scenarios. A number of cost effective web based interactive scenarios have been developed to support the unit’s classroom activities. The tool commences with instruction on problem solving method. Students then view the stimulus which is a narrative produced in the form of a music video clip. A series of questions are posed which guide students through the process and they can compare their responses with sample answers provided. The activity clarifies the problem solving method and expectations for the summative assessment and allows students to practise the skill. The paper reports on the approach to teaching and learning taken in the unit including the design process and implementation of the activity. It includes an evaluation of the activity with respect to its effectiveness as a tool to feed forward and reflects on the implications for the teaching of law in higher education

Court finds solicitor in breach of fiduciary duty owed to client but loss not caused by the breach

A solicitor owes fiduciary obligations to his or her client including the obligations of loyalty and disclosure. The Court of Appeal in Mantonella Pty Ltd v Thompson (2009) 255 ALR 367; [2009] QCA 80; BC200902311 recently considered when the fiduciary duty owed by a solicitor to a client is breached and the consequent liability of the solicitor..

Qualified indefeasibility and the careless mortgagee

In recent years a great deal of case law has been generated in relation to mortgages where the mortgagee has not engaged in adequate identity verification of the mortgagor and the mortgage has subsequently been found to be forged. As a result, careless mortgagee provisions operate in Queensland as an exception to indefeasibility. Similar provisions are expected to commence soon in New South Wales. This article examines the mortgagee’s position with the benefit of indefeasibility and then considers the impact of the careless mortgagee provisions on the rights of a mortgagee under a forged mortgage, concluding that the provisions significantly change the dynamic between a registered mortgagee and registered owner who has not signed the mortgage. These provisions appear to give the mortgagee a conditional indefeasibility, with the intention of reducing the State’s exposure to the payment of compensation in the case of identity fraud. They are however, more successful in the case of forgery by a third party rather than forgery by a co-owner

An examination of the liability of a construction contract certifier who gets it wrong

Construction contracts often provide that decisions under the contract will be made by a certifier. This paper reviews the liability issues when a certifier makes a mistake. We do that in light of recent pronouncements by the High Court of Australia and the New South Wales Court of Appeal on negligence. We look at this question in the context of traditional construction contract arrangements and also consider the implications for Public Private Partnerships and the typical contract arrangements entered into to facilitate these transactions