Analysis of Property Case Law: Client Advice Letter on Australian Law

This report analyzes a property law case involving First Fleet Village Pty. Ltd. and its clients, Dave and Angie, focusing on issues arising from a residential property development on reclaimed swampland. The analysis covers the interests of both parties, identifying key issues such as non-disclosure of information, negligence, and environmental hazards. It explores relevant Australian property law principles, including contract terms, client legal privilege, and environmental protection regulations. The report provides a detailed client advice letter, outlining potential legal remedies such as compensation, restitution, and tortious remedies, as well as the option of direct negotiation to resolve the dispute. The case highlights the importance of thorough due diligence and legal advice in property transactions, particularly concerning environmental risks and contractual obligations. The report offers a comprehensive overview of the legal complexities and potential solutions within the context of Australian property law.

PROPERTY CASE LAW
(Australia)
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Table of Contents
CLIENT ADVICE LETTER ON THE PROPERTY LAW..........................................................................3
REFERENCES............................................................................................................................................10
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CLIENT ADVICE LETTER ON THE PROPERTY LAW
To: Dave and Angie
7th June, 2017
Thank you so much for giving me this wonderful opportunity to advise you on the legal
issues pertaining to the property transactions with First Fleet Village Pty. Ltd. In order to ensure
a complete understanding, the letter will provide pertinent information with the necessary facts
and statutory provisions in line with the Australian property law for giving you an appropriate
legal advice.
Our first focus is upon understanding the case study and core interest of the affected
parties, so that, various alternatives can be suggested for the dispute resolution. It is really
important because the most suitable advice will be made with the view to maximize your interest
for resolving the issue.
Overview and facts of the case study
First Fleet Village Pty Ltd is a residential property development which reclaimed an area of
swampland & disused industry land where prestigious waterfront house has been built. On the
land, director noticed a toxicity levels remained but after dumping test, plant started growing
hence, the issue is not taken as big one, still, FF decided to sell the houses quickly on “First
come, First out” basis without any bargaining. After six month, Dave and Angie who had bought
one of the houses at a cost of 500,000 including stamp duty founded several issues of
landscaping, dying plants and formation of suphuric acid because with the excavation of soil,
sulphide reacts with the oxygen. It release hazards metals i.e. arsenic, killing of vegetation,
concrete and steel structure degrading. Improper timing between dumping soil and
commencement of building construction and use of only a meter of soil instead of using normal
requirement of 3 metres are resulted cracks in walls and living issues. Therefore, Dane and
Angie along with their neighbors filled a case law against FF.
Dane and Angie’s interest
The first interest of both Dane and Angie were to buy their own house as their first home
and in the case, they purchased house at a cost of $500,000 including stamp duty. After carefully
reading the First Fleet (FF) case study, in our view, it is founded that now, the key interest of
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Dane and Angie is to seek appropriate legal advice in line with the provisions of Australian
Property Law to make their case stronger against the FF. Both Dave and Angie together along
with some neighbors discovered many issues i.e. dying plants and formation of sulphuric acid by
reaction between oxygen and sulphides which lead to release of heavy metal arsenic, killing
vegetation, degrade concrete & steel structure as well. This is the reason why they consulted an
expert and founded that FF used only a meter of soil in site covering which normally requires 3
meter. Besides this, appropriate time-frame of 5 years was also required for building on land
whilst the time taken by FF was 3 years only. Apart from this, FF gave land only 6 months
between soil dumping and building commencement work, as a result, cracks were appeared in
their house. They are worried and afraid because their little girl is not feeling well might be due
to the exposure of arsenic in the soil. Thus, their main interest is to investigate the real facts of
the case and seek various possible alternative solutions available to resolve the underlying issues.
They are concern about taking legal advice because at the time of purchase of building, they did
not carefully read the contract with no legal advices and just looked at briefly.
First Fleet’s interest
In the case, the directors were aware about remaining toxicity in the soil development but
they viewed that it seems not a big issue as they dumped a meter of soil everywhere and plants
grew. The most important and very clear interest of FF is to sell the houses built in the area very
quickly as they invested a huge sum of capital on the construction and development work. For
this, they prepared standard form contracts which were available at bargain prices and delivery
was made on the basis of “first come, first service” without any negotiation. The standard
contract used for the purpose of sale of land comprises norms, standard terms and conditions and
warranties and made in accordance with the Conveyancing Act, 1919. Being a property vendor,
FF needs to disclose all the essential information, documents and implied terms in the contract. It
is made only after obtaining proper enquiries made for the contract of sales of residential
properties. While dealing with the Dane and Angie, they just gave an option to them that either
“take it” or “leave it” because if they will not buy then the next person coming to the door will
have the same opportunity. As in Australia, the property market is running hot so within a very
short period of only 2 weeks, all the houses built by FF in the area has been sold and now, it is
taking interest in developing a neighboring site in the same way. Thus, it becomes clear that sell
of all the houses to recover the capital invested on the construction and development work is the
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main interest of FF.
Issues involved in the case study
In Australia, Property Law constitutes the legal provisions, rules and regulations that
monitor and prioritize the rights, responsibilities and interest of the affected parties in relation to
the property. It covers multitude of legislative principles that parties needs to adhere with for the
property transactions undertaken. The law deals with the rights as well as responsibilities of the
property users and covers various things such as conveyancing, taxation, financing, disputes &
litigation. Here, property comprises real property, private and public property, personal property
and intellectual property as well (Bently and Sherman, 2014). Australia’s property industry
comprises all the businesses and individuals who are involved in the development, purchase and
disposal of property to meet people needs and expectations. In the property law, there are
different types of common law issues inherent are stated here underneath:
 Any of the party either Dane and Angie and FF do not operates in accordance with the
contract terms and conditions.
 The contract was developed by material misrepresentation of information
 Disclosing false and misleading information that is unfair in other party’s perspective
 Lacking the capacity to involve in any contract
 Death of any of the party involved in the contract
With reference to the given case study, the common law issue that took place are non-
disclosure of sufficient information to the Dane and Angie. Moreover, they did not carefully
study and examine the contractual terms and conditions of the property purchase. Besides this, it
is the legal responsibility of the vendor to fulfill express as well as implied terms of the contract,
otherwise, breach provides rights to the innocent party to repudiate the contract and claim for the
damages (Bradbrook, Grattan and Griggs, 2016). Apart from this, common law also covers
liability for negligence and in the given case, FF act negligently by just one metre dumping of
soil to test the toxicity of soil impact on plant growth, thus, its legal remedy will be available to
the innocent party.
Apart from this, as per Australian property law, under the client legal privilege (CLP) also
called as “legal professional privilege” is regarded as common law right that provide
administrative rights to the party to obtain confidential advice from the solicitor about the legal
circumstances. It helps to protect legal advice given by the lawyer to the client & necessary
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communication pertaining to the process of litigation, court proceedings and others and
facilitates justice administration. Before a property sale process, solicitor or licensed coneyancer
explain all the information about the land, so that, they can make right decision whether to buy
the property or not. However, in the current case of FF, there is no legal advice taken by Dane
and Angie before signing the contract of sale, henceforth, no proper enquiries made by them
before signing the contract.
Dane and Angie had purchased residential building, there is 5 days of cooling-off period
which commence when exchange take place. In this, purchaser have right to withdraw the
contract within a period of 5 day by paying 0.25% of the buying price to the property vendor.
Thereafter, settlement took place within 6 weeks after when contract has been made. In this,
parties can negotiated for either longer or shorter settlement period.
Despite this, according to the Environmental Protection Act, 1994 it is the legal
responsibility of the landowner to carefully exercise diligence so as to make sure that
environmental risk will not occur. However, evidencing from the facts of the present scenario,
release of arsenic, sulphuric acid, dying of plants, killing of vegetation are several environmental
hazards incurred to the Dane and Angie and provides them a right of legal remedy.
Alternative solutions
Compensation
As Dane and Angie had faced issues of damages to their personal residential property i.e.
cracking, dying plants and killing of vegetation, hence, one of the legal remedy available to them
is they can claim against claimant, FF to get compensation for such damages. In this, they can
get monetary compensation from the FF for the losses arisen (Bridge, 2015). Evidencing from
the case law of Anderson vs Cryovac Inc. which is about toxic contamination in water. In the
case law, resident filled a law suit against Beatrice Food because of health harming effects of
toxic contaminating groundwater with percholoroethylene and trichloroethylene i.e. cancer.
Court made decision in favor of the plaintiff stating that non-disclosure of the information caused
loss to innocent party hence, W. R. Grace was ordered to compensate the plaintiff for the losses
suffered. In this regards, land surveyor can be hired who will survey land and identify the issues
to identify the reason behind soil degradation.
Restitution
Compensation is the results of wrong commitments made by the defendant to the plaintiff.
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Claimant is liable to compensate the innocent party for the amount of losses suffered by plaintiff
(Megarry and et.al., 2012 ). On the other side, restitution is an alternation which obliged
defendant (FF) to make a fair payment to the plaintiff (Dane and Angie) for the benefits received
by him at plaintiff’s expenses.”Unjust enrichment” is the base for such remedy.
Tortious remedies
In this case, plaintiff (Dane and Angie) are liable to prove their losses actually suffered by
them to get compensation from the FF. It comprises any kind of physical injury resulted,
damages to the residential property of the party and economic losses as well. Damages are
regarded as the total compensation made to the party for the losses suffered and recognized by
the tort law (Banner, 2005). Within the area of given case, Dane and Angie can get property
damages for the loss to their residence cracking in wall, degrading concrete and steel structure
and others. The main aim of such damage is to bring the property back into the condition of pre-
damage position.
Direct negotiation
Negotiation is of-course an option available to the party wherein both the parties can
mutually discuss with each other and resolve the issue. It does not arisen the need of the
involvement of lawyer and helps to resolve the issue at low cost and also considered as a good
choice and reasonably efficient in terms of time-frame. This option is founded appropriate
wherein both the parties are sophisticated negotiators and experienced (Anderson, 2009). Thus, it
is our opinion that Dane and Angie can go to the property vendor, FF and discuss the issues that
they along with their neighbors are facing at their residence. Mutual discussion between both the
parties can come up with the effective solution by the way of direct negotiation. Here, in this
respect, they can negotiate regarding the monetary compensation that is required to be paid to the
suffering party and other decisions can be made for resolving different issues like cracks in wall,
environmental issues (release of arsenic, vegetation killing and dying plants etc.). It is probable
that both the parties can be satisfied with the help of direct negotiation and there will be no need
to go to the court, legal proceeding and litigation as well.
Mediation
In this process, parties can involve an independent party as a mediator who will took part
in the dispute resolution process and work with both the parties. The main role of mediator is to
clarify the issue in well manner and assist parties to reach a mutually acceptable agreement for
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conflict resolution related to the residential property (Buck, 2006). Here, it must be noted that
mediator is not authorized to make any decision hence the onus of the final decisions is totally
depends upon the parties, mediator just provide assistance to them.
Thus, it is probable that Dane and Angie and FF can get assistance of an independent party
as a mediator and formulate a mutual acceptable agreement to resolve the arisen property
disputes. It is a private process and mediator maintain full confidentiality of the issues involved,
discussion and decisions and manage communication or interpersonal issues between both the
affected parties. It is probable consider as an effective way of dispute resolution where direct
negotiation process fails and helps to maintain positive relationship between both Claimant and
Plaintiff.
Litigation process
It is our opinion that going to court must be used as a last choice of alternation where all
the other alternatives do not work. In every dispute, it is the common right to the party wherein
affected party can fill a law case in the court to resolve the disputes and issues. With respect to
the present case scenario, there is an option exists to Dane and Angie to fill case in the court
against FF for all the sufferings i.e. environmental issues, property issues and others (Esmaeili
and Grigg,2016). Court will hear both the parties contemplation, search the facts by surveying
land to ensure that whether the arguments made by Dane and Angie about release of Supluric
acid is true or not. Moreover, in the court proceeding, the facts will be founded regards to the soil
used for site covering, time duration taken in soil dumping and commencement of construction
work and others so as to make sure that whether normal time duration has been used or not by
FF. If the part is founded in default and their illegal and negligent act are the reason behind
release of heavy hazard metal arsenic, degradation of concrete and steel structure and cracking of
wall, then court will issue legal order or notice to the FF for the dispute resolution which needs
to be legally followed. The drawback of this method is that it takes too much time and also a
costlier approach of dispute resolution.
If you have any query about this letter, then you are welcomed to come and discuss the
question to avoid any confusion.
Thank You!
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REFERENCES
Books and Journals
Anderson, J.E., 2009. Law, knowledge, culture: the production of indigenous knowledge in
intellectual property law. Edward Elgar Publishing.
Banner, S., 2005. Why Terra Nullius? Anthropology and property law in early Australia. Law
and History Review. 23(01). pp.95-131.
Bently, L. and Sherman, B., 2014. Intellectual property law. Oxford University Press, USA.
Bradbrook, A.J., Grattan, S. and Griggs, L.D., 2016. Australian property law: cases and
materials.
Bridge, M., 2015. Personal property law. OUP Oxford.
Buck, A.R., 2006. The making of Australian property law. Federation Press.
Esmaeili, H. and Grigg, B., 2016. The Boundaries of Australian Property Law. Cambridge
University Press.
Megarry, R., and et.al., 2012. The law of real property. Sweet & Maxwell.
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