In New South Wales Aboriginal Land Council v Minister Administering the Crown Land Management Act [2025] NSWLEC 144, the Court confirmed that land may be effectively off-limits if it is subject to a registered native title claim. For developers and investors in solar, wind and regional projects, the case is a reminder to check native title registers and Crown land history early as part of due diligence.
When entering into a conditional contract, keep in mind that your interest may, or may not be, caveatable. This is particularly important where a right to caveat might be critical to the deal, including in respect of a funding component. Substance over form and the extent and nature of conditionality will be key in determining if (or when) your caveatable interest arises, and often option agreements are problematic unless specific drafting concepts are incorporated. It’s also worth being mindful about your jurisdiction, for example Queensland generally favours priority notices over caveats. If you are interested in a deep dive on caveatable interests, then Jessica Holdings Pty Ltd v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140 is a good place to start.
As we race toward the end of 2025, there’s a key question plaguing property lawyers trying to navigate the ACCC merger reforms (which are to due to start on 1 January 2026): Will the ACCC release the anticipated refinements to its guidelines before then to provide urgently needed clarification to make the reforms more manageable for commercial lease transactions and simplify the monetary thresholds?
If you’re not sure about how your property portfolio will be impacted feel free to drop me a line, or you can read more about it here – Why the ACCC assesses mergers and acquisitions | ACCC
– By Joseph Consalvi
Is anyone else in the legal / property fraternity having issues with checking the validity of bank guarantees? The fakes are getting increasingly good, the original (genuine) bank guarantees are looking increasingly sloppy (you’ve got no idea what we see come across our desks!) and it’s almost impossible to get anyone at most issuing banks to confirm authenticity for “privacy reasons”. In fact, we’ve been advised by these banks that only the customer can confirm authenticity. I respect the privacy laws, but the bank is providing a one-way irrevocable legal covenant to the favouree and surely this would be reason enough for that bank to have an overriding obligation to confirm authenticity to that favouree (and preferably, the favouree’s lawyers)?
– By Jodie Masson
The Conveyancing and Real Property Act Amendment Bill 2025 (NSW) passed Parliament on Friday, 8 August.
This legislation (once it comes into effect) corrects a “gap” that was made abundantly apparent in the NSW Supreme Court’s decision in BP7 Pty Ltd v Gavancorp Pty Ltd [2021] NSWSC 265. In this decision, the Court held that the vendor disclosure regime and cooling-off period exemptions only applied to call options and not put options, which allowed the purchaser in that case to unexpectedly be entitled to rescind the contract immediately after exercise of the put option. The issue only affected residential properties but it is good to see this problem being addressed.
Just a reminder! QLD’s Property Law Act 2023 (Act) will take effect from 1 August 2025 and is the most significant reform to QLD’s property legislation in decades. The Act introduces a mandatory seller disclosure regime where sellers may have to provide buyers with a disclosure statement prior to signing. There are also changes to the provisions governing leases so update your pro forma documents and be aware that different rules (eg for assignment) will apply after 1 August.
When reviewing the case of T&L Alexandria v Sharvain Facades (2023) the court ruled on a vague “make good” clause, where unclear wording led to a costly dispute over redecorating obligations. The key takeaway? Ambiguity in leases — especially around make-good clauses — can cause headaches. Be clear and specific in your contracts to avoid messy surprises.
Not all guarantees are created equal: understanding the risks associated with guarantees in property transactions and whether you might be forced to ‘pay the price’ for a purchaser’s non-completion.
Be careful when asking for a “non-refundable” deposit in a heads of agreement that has all the hallmarks of a binding contract, it might just lock you in to the deal. In this case Mr. Patel paid a non-refundable $50,000 deposit under an HoA, and when the vendor withdrew claiming the HoA was non-binding, Mr Patel sought (and was granted) specific performance. A good reminder that it’s important for your HoA to be explicitly non-binding if that is your intention.
https://pinpoint.cch.com.au/document/legauUio3697613sl1502889120/patel-v-sengun-investment-holdings-pty-ltd-2023-aplc-23-046
Australia's commercial property law experts