Daily Construction: Monday, 9 November 2015
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AR Conolly Company Lawyers.
A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.

Daily Construction

Dear Subscriber,

1. The Benchmark website will be unavailable during Saturday 7 November 2015. You can still watch our television broadcasts by clicking “Watch Benchmark Television” and listen to our Daily Summaries by clicking the “Listen to the Summary” link in the row above.

2. Today’s Benchmark Television broadcast is 1 hour 18 minutes on advocates’ immunity. It is a powerful presentation by Martin Luitingh whose background includes practicing law in South Africa during Apartheid. The co-presenter Terry Grace was from time to time Attorney-General of Samoa.

3. The broadcast presents a point of view. Benchmark will be broadcasting discussions which will present a quite different point of view in the future.

4. Notes are available.

5. The broadcast may assist lawyers in their Compulsory Legal Education program.

6. You should watch on Wi-Fi to avoid excess data usage charges.

Warm regards,
Alan Conolly for Benchmark
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Executive Summary (One Minute Read)
Haixing Group Pty Ltd v Chan (NSWSC) - real property - contract - no serious question to be tried that plaintiff validly exercised call option under deed - no order for extension of operation of caveat - leave not granted to lodge further caveat
Re Hammond (VSC) - real property - modification of restrictive covenant to remove singular expression and replace it plurally
Benchmark Television
 
 
Click here to watch the video
 
Martin Luitingh and Terry Grace on Advocates’ Immunity in Australia
Advocates’ immunity has been a controversial topic for many years. Barrister Martin Luitingh argues that Australia is alone in maintaining the immunity and should abandon it.
 
Summaries With Link (Five Minute Read)
Haixing Group Pty Ltd v Chan [2015] NSWSC 1637
Supreme Court of New South Wales
Darke J
Real property - contract - parties entered Deed of Put and Call Option in respect of property - defendant registered proprietor entered deed as grantor - plaintiff entered deed as grantee - deed provided call option granted by defendant to plaintiff in respect of property in consideration of call option fee - after deed made plaintiff lodged caveat over the Property claiming an interest as grantee of option - plaintiff purported to exercise the call option - defendant disputed plaintiff validly exercised call option - defendant served notice of proposed lapsing of caveat - plaintiff sought declaratory relief that it validly exercised call option and defendant bound by contract attached to deed - plaintiff also sought extension of operation of caveat or leave to lodge further caveat claiming interest as holder of purchaser’s lien - whether serious question to be tried that plaintiff validly exercised call option - s74K Real Property Act 1900 (NSW) - construction of deed - held: there was not a serious question to be tried that plaintiff validly exercised call option - Court not satisfied plaintiff’s claimed interest in property as grantee had or may have substance within meaning of s74K(2) - no order for extension of operation of caveat - leave not granted to lodge further caveat.
Haixing
Re Hammond [2015] VSC 608
Supreme Court of Victoria
Mukhtar AsJ
Real property - restrictive covenant - purchaser of land in residential subdivision made restrictive covenant not to erect any building on land other than ‘a’ private dwelling house - plaintiff successors to covenantor sought under s 84(1)(c) Property Law Act 1958 (Vic) to modify covenant to remove singular expression and replace it plurally with ‘any buildings other than private dwelling houses’ - plaintiffs contended modification would not substantially injure persons entitled to restriction’s benefit - held: no substantial injury would be caused by covenant being modified - order made modifying covenant by replacing the expression ‘any building other than a private dwelling house of stone or brick’ with the expression ‘any buildings other than private dwelling houses’ - application granted.
Re Hammond