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It is not uncommon for a loan to be made (eg from a parent to a child, to buy a home or improve it) which is repayable when the borrower sells their home. It is also not uncommon for this loans to come into dispute because the borrower does not sell their home for various reasons. Recently the Queensland District Court considered that kind of arrangement, finding that the loan contract itself was not enforceable given that the repayment was at the discretion of the borrower. The result was that the borrower’s agreement to repay was “illusory”, resulting in the failure of the loan as a binding contract. Given that failure, the loaned amount was immediately repayable in restitution. It is interesting (to some of us with not much going on in our lives) to draw a distinction between this situation – where the repayment date is certain but in the absolute discretion of the borrower – and concepts of uncertainty, where the repayment date cannot be determined because of uncertainty (eg by a formula which does not work). If the repayment date was uncertain, then the loan may be treated as being repayable on demand, and that might have consequential issues with limitation periods. As this issue does pop up frequently, it is worth reading that part of the decision that deals with the legal issues – pages 13 – 17. https://www.sclqld.org.au/caselaw/QDC/2022/110 Please contact our lawyers for advice in relation to debts and loans.

Oddly enough, the ownership of fixtures and fittings is quite often a very hot – and expensive – topic at the end of the lease. The fitout that cost hundreds of thousands to put in can cost plenty to remove, with many landlords wanting premises to be returned to an empty configuration. This can in particular be a problem for tenants who have taken on a lease mid term (and who do not know what condition the premises were in at the outset), and for landlords who bought the premises during the term of the lease. The obligations of the tenant to remove fixtures and fittings and put the premises in a fit state at the end of the lease are generally called “make good” obligations. Many leases contain detailed provisions setting out the tenant’s requirements to make good. Some unfortunately do not. Also, a lot can depend on the difference between a three letter word “may”, and the four letter word “must” as was learned by the parties in a recent Supreme Court decision centering around whether NAB – as tenant – was obliged to remove their fixtures and fittings at the end of a lease, including a strong room. in a nod to the obvious, the Court found that a provision in a lease that said that at the end of the lease the tenant may remove its fixtures and fittings meant just that, not that it had to. The decision also dealt with concepts concerning the ownership of fixtures that have been left behind, and also chattels that have been left behind. These sorts of arguments can be avoided if proper attention is given to the position of the make good obligations, both by landlords and tenants. It is a critical part of the leasing process and one in which care must be taken. For example, some landlords write in their leases that they have the ability to buy fixtures and fittings at a token amount, or that they can keep some things and force the tenant to remove others. Here is a link to the decision. It is only 8 pages, and good reading https://archive.sclqld.org.au/qjudgment/2022/QSC22-073.pdf

Builder collapses (liquidation or administration) are putting subcontractors at substantial risk not only in relation to money that is owed, but money that they have already been paid. Justin Mathews of QBM Lawyers provides expert advice in relation to building matters. He is an accredited specialist in commercial litigation and a registered adjudicator under Queensland’s Building Industry Fairness legislation. Prompt action by subcontractors in the event of builder collapses can make the difference between recovering or going unpaid, particularly where a subcontractor’s charge might be available. Further, irregular payment by a builder can put a subcontractor at risk of payments received being clawed back as preferences, with the subcontractor not only losing out for unpaid work, but possibly having to pay back money received in the 6 month period before liquidation. In these times of financial pressure on builders, it is important for contractors to take care that their support of a builder with cash flow issues does not put them in the firing line for preference actions months or years later – as an example in the case of the Cullen Constructions builder collapse, more than 10 subcontractors were sued for amounts that had been paid in the 6 month period prior to liquidators being appointed, which in aggregate exceeded $2M. As a result, in the situation of builder collapses getting paid does not necessarily mean that troubles are over, if there is reason to believe that the builder is struggling financially. For advice in relation to preference claims, building contracts recovery options including subcontractor charges, contact our Partner Justin Mathews at justinm@qbmlaw.com.au or 5574 0111.

https://archive.sclqld.org.au/qjudgment/2022/QSC22-041.pdf Rather than reading a 10th hand account of this on facebook (if anyone is still interested) feel free to review the decision of the Queensland Supreme Court at the above link given 5 April, 2022, dealing with whether the Chief Health Officer was required to give reasons for three directions made in respect of COVID matters, generally going to vaccination status. And the answer was “no”, though the question revolved around whether the directions themselves were matters of a legislative nature (in which case reasons were not required), or an administrative character (in which case reasons would be required). Ultimately not a particularly fascinating topic, but it is a subject that seems to generate debate of much enthusiasm.