Property update – May 2026 Jack Nevile
Interest rates marching higher again, a Straight that apparently opens every Monday morning (US market time) and closes 4pm Friday (US market time), and jitters about negative gearing and CGT changes. You can get better tea-reading from others on those topics, so I won’t cover them here.
From 1 July 2026, investors will pay double the existing ESVF fixed charge on their investment properties, in line with commercial properties. This will come to approx. $300 per property, depending on the Minister’s determination. Principle places of residence will only pay about $150 of the fixed charge. All properties, PPRs and investments alike, will pay the floating rate based on their market value. See the State Revenue Office’s website here to calculate yours. Or just wait until later this year when you receive your rates notice.
More people have approached me with mind-boggling tax assessments due to the Vacant Residential Land Tax – I recently saw a bill for $65,000. Please, if you have a vacant house, put a friend or family in there, or rent it out on the market. Don’t leave it too late. You need it occupied 6 months of the year, so if your property has been empty all year, rectify that ASAP before 30 June.
Renters have been given a win recently, with notice periods for rent increases and vacating extended to 90 days, and no-fault evictions abolished. Rental applications must now used the prescribed form, and rental application apps can no longer charge for their ‘services’. Further changes are in the pipeline, including making it more difficult to claim a bond, and increasing the minimum standards some more.
While good for renters, I predict the changes from the last few years will mean it’s rare to see rundown houses in desirable locations up for rent – houses in desirable suburbs will likely be sold as they age and become too expensive to bring up to standard. I expect the rental market will gradually shift to apartments, which tend to be modern and already compliant with the standards. The effects on the Australian house party scene remain to be seen.
That said, we are not providing financial or tax advice. However, if you need legal advice, we’re the right people for you.
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
The Rise of Class Actions in Australia
Australia has seen a sharp and unmistakable surge in class actions over the past decade, to the point where they are no longer a niche legal procedure but a defining feature of modern civil litigation. What once operated quietly in the background of the court system has evolved into one of the most powerful tools for resolving large-scale disputes involving corporations, governments, and major financial institutions. Today, class actions are not just shaping how disputes are resolved—they are reshaping how accountability itself is enforced across Australia’s legal and commercial landscape.
In the 2024–25 period, 79 new class actions were filed, the highest number ever recorded. Courts have also approved billions of dollars in settlements. This trend has continued since the introduction of class actions in Australia in the early 1990s, with their use steadily increasing in both volume and complexity.
Several key factors explain this rise. First, the growth of litigation funding has played a crucial role. Third-party funders cover the costs of claims in exchange for a share of any settlement. This reduces financial barriers for plaintiffs and makes it possible to pursue large, complex cases that might otherwise not be feasible.
Second, the scope of class actions has expanded significantly. Early cases primarily involved shareholder or financial market disputes. Now, class actions include claims related to consumer protection, employment underpayment, data breaches, environmental issues, and product liability. This growth reflects changes in regulation and increased awareness of collective legal rights.
Third, Australia’s opt-out system simplifies bringing class actions on a large scale. Once a class is certified, individuals are automatically included unless they choose to remove themselves. This allows proceedings to efficiently involve large groups of affected people.
Fourth, heightened corporate regulation and scrutiny, especially after significant regulatory investigations and royal commissions, has led to a rise in follow-on class actions. These events often provide the factual basis for group litigation.
The growth of class actions has both advantages and disadvantages. On the positive side, they improve access to justice. They allow individuals with smaller claims to seek compensation together. They also promote accountability among corporations and can deter misconduct.
However, concerns remain. Critics argue that litigation funding may distort incentives, prioritizing financial gains over legal merit. Others highlight the high costs to corporations and note that most cases settle before going to trial. This means outcomes can be influenced by risk rather than judicial decisions. There are also worries about the broader economic impact and sustainability of the system as filings continue to rise.
Overall, the rise of class actions in Australia shows a legal system that is becoming more accessible and commercially advanced. At the same time, it raises important questions about balance—between efficiency and fairness, settlement and trial, as well as private enforcement versus public adjudication.
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
ACL Refund Rights in Australia: What Manufacturers Often Say — and Why They’re Wrong
If you’ve bought a faulty car, caravan, or appliance, you probably know that the Australian Consumer Law (ACL) gives you repair, replacement, or refund rights. But when you ask for a refund, manufacturers and sellers often push back with legal‑sounding excuses.
Here are the most common things they say — and what the law actually says.
Not true.
Under the ACL, a minor fault can be fixed by the supplier — that’s their choice.
But a major fault gives you, the consumer, the right to choose a refund or replacement.
If the fault is major, a repair doesn’t erase your right to reject the product and get your money back.
The Federal Court made this clear in ACCC v Jayco Corporation Pty Ltd [2020] FCA 1672.
In short: If the problem is major, you decide what happens — not the supplier.
No.
Section 263(4)(a) of the ACL says that if you reject faulty goods, the supplier must repay the full amount you paid. There’s no rule allowing deductions for use, age, or depreciation.
This was confirmed in Vautin v BY Winddown Inc [2018] FCA 426 and again in Jayco.
Example: If you paid $80,000 for a car that later turns out to be faulty, you’re entitled to $80,000 — not a reduced amount.
Complex products like cars and caravans can have minor issues, but that doesn’t excuse poor quality.
In Jayco, the court said consumers can tolerate small defects if they can be easily fixed. But multiple ongoing problems can add up to a major failure — even if each problem on its own seems minor.
The more expensive the product, the higher the standard the law expects. A pricey caravan or vehicle should not have repeated or serious issues.
A recall means the manufacturer has admitted there’s a defect. Saying it was “precautionary” doesn’t take away your rights.
In Medtel Pty Ltd v Courtney [2003], the court said products are not of acceptable quality if they have a defect that raises the risk of failure, even if your own product hasn’t yet failed.
Bottom line: If your product is part of a safety recall, you can still have ACL rights.
That doesn’t mean the problem isn’t real.
In ACCC v Ford [2018], the company refused to act on problems customers couldn’t show on demand, even though they knew those problems were intermittent. The court held Ford’s approach was wrong — and fined them $10 million.
You don’t lose your rights just because the tradeperson can’t make the fault appear on the spot.
The law gives you a reasonable time to reject goods after the fault becomes clear — not a fixed short deadline.
A defect is considered “apparent” only when you know the problem and how serious it is (Vautin v BY Winddown Inc [2018]).
If it’s unclear or hard to diagnose, the clock hasn’t started.
Also, the supplier — not you — must prove you’ve waited too long.
Only true for minor problems.
If the fault is major, you don’t have to agree to repairs. You can ask for a refund or replacement immediately.
In both Jayco and Mazda Australia [2021], the courts found that telling consumers they had to accept repairs first was misleading and unlawful.
Getting Advice
If a supplier:
start by asking: Is the problem a “major failure” under section 260 of the ACL?
Getting legal advice can help you confirm your rights before accepting any offer.
Cases cited:
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
THE ARROGANCE OF THE BANK OF MELBOURNE
Peter Nevile
I have previously had occasion to mention the asymmetrical position we find ourselves in as customers of the banks who effectively hold a privileged position in Australia tantamount to a monopoly.
On Friday last one of my staff attempted to pay an invoice from an account with the Bank of Melbourne. The account details were correct. However, the account name was incorrect. The banks take great pains to point out that we, as customers, are responsible to ensure that BSB numbers and Account numbers are correct, and that the banks take no responsibility about the name of the account. We attempted to make a payment with the correct BSB and Account number. Unfortunately, the exact name of the payee was not quite correct although it did contain the Customers
name. Nevertheless, the bank refused the transaction three times then abruptly and without any warning or communication, simply blocked the account.
We are of course available on mobile, telephone and email.. However to unblock our account the Bank of Melbourne only provides us with a telephone number. On calling that number we are told they are busy attending to other calls and that there will be a wait time of 40 minutes. I waited more than one hour and a half hours, being reassured that they would respond shortly at regular intervals. It appears we have a different understanding of the meaning of “service”
Frankly I find this arrogance and incompetence nothing short of breathtaking. The technology exists to send me a MFA code, to telephone, to email, to text to avoid me wasting an hour and a half of my professional time. I would like to think they would compensate me for their complete lack of service. There is also the option of an automated call back by the Bank when they have dealt with their high level of enquiries , which appears to be all the time. Instead, they continue to maintain the misrepresentation about providing a service.
This is asymmetrical arrogance at its worst. An organisation with monopolistic position taking an unnecessarily incompetent position to increase its profit at its customers expense when there are readily available solutions. I will circulate this to you our clients, to the bank and to other avenues of communication. I will let you know their response…do not hold your breathy!
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
End of Lease Make Good Obligations: The Clause Everyone Skims… Until It Hurts
Wendy Nguyen
At the start of a lease, no one really cares about make good.
You’re focused on rent, incentives, fit-outs — the interesting parts. The end of the lease feels a long way off.
Fast forward a few years, and it is the end of your lease and you’re ready to leave.
Your landlord expects the conditions of the premises to be just as it was handed to you, totally normal. But suddenly, there’s a dispute.
That one clause you skimmed becomes the most expensive part of the deal.
It’s not just “clean up and hand back the keys”
Tenants often think make good means a tidy-up and fixing obvious damage.
Landlords often think it means a full strip-out back to a blank shell.
Both can be wrong.
It comes down to wording — and small differences matter:
That gap in between these two is where disputes live.
Most disputes aren’t about bad behaviour — they’re about assumptions:
None of this is unusual. It’s just what happens when this gets left too late.
The law (in practical terms)
There’s no shortcut — the lease governs what the tenant must do.
For retail leases, the Retail Leases Act 2003 (Vic) adds a layer:
But it won’t fix a poorly drafted clause.
The part no one plans (but should)
Make good is largely decided at the start of the lease. A few things make all the difference:
If you’re near the end of the lease
It’s easy to treat make good as another standard clause – it isn’t.
It’s often the biggest end-of-lease cost — and one of the easiest to get wrong.
You can ignore it at the start… but it won’t ignore you at the end.
If your make good clause is suddenly looking more interesting than it did on day one, feel free to reach out to us at nevileco@nevile.com.au or 03 9664 4700.
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
General Differences and Similarities Between Laws’ Applications in Australia and Mainland China for the Business World
Albert Mu
Although common-law legal system (like Australia’s) and civil-law legal system (like mainland China’s) has been categorised differently academically, the actual differences and similarities between the two jurisdictions in the commercial/business world are more nuanced than many people may think.
Looking at legislations’ roles, there are a number of Australian statutes that are key to doing businesses in Victoria – they include the Corporations Act 2001 (Cth); the Competition and Consumer Act 2010 (Cth); Goods Act 1958 (Vic); and Retail Leases Act 2003 (Vic). In mainland China, a Civil Code covering a wide range of civil issues (mainly regulating contracts and torts but also includes laws in relation to marriage and inheritance) has been effective from the beginning of 2021. Other legislations such as the Company Law of the People’s Republic of China (updated in 2023) remains critically important. And when it comes to applying laws, legal practitioners in China also needs to consider other important materials which provides general guidance, such as the judicial interpretation guides for the Civil Code that have been published by the Supreme People’s Court of the PRC.
As Australia has a common-law legal system, the existence of the foundational legal doctrine “stare decisis” means case laws, or precedents, need to be followed by certain courts in the future. For example, decisions made by the Supreme Court of Victoria for a certain case will bind lower Victorian courts when making decisions in similar cases. In mainland China, which adopts a civil-law legal system, case laws do not generally have directly binding effects. But this doesn’t mean cases already decided by Chinese courts are not important for legal practitioners – lawyers practicing in China do frequently search for and check precedents to polish their legal arguments too. Both the Supreme People’s Procuratorate of the PRC and the Supreme People’s Court of the PRC also publish “guiding cases” (“指导性案件“), which are very helpful to legal practitioners.
Other important nuances include the fact that in Victoria, torts are still an area which is largely uncodified, despite the existence of the Wrongs Act 1958 (Vic). The Chinese Civil Code, as previously mentioned, does cover torts. It outlines more abstract legal principles like unjust enrichment as well. However, not all legal terms or concepts frequently used in Victoria currently have their clearly dedicated and fully overlapping counterparts in the context of legal practice in mainland China. For example, in contract drafting, “indemnity clauses” are commonly used in Victoria. But to achieve the same effect intended to be ensured by giving “indemnities”, a contract drafted to be used in mainland China usually needs to invoke the more general concept of compensation. In an interesting contrast, the concept of “guarantee” — which is close to the concept of indemnity (in common law) but not fully overlapping because the two concepts still have important differences — is equally broadly used in the business world in Victoria and mainland China.
In the future, the complexity of both Australian laws and Chinese laws may further evolve. Even if most of the concepts or elements in either jurisdiction may eventually be found to have their largely corresponding counterparts in the other jurisdiction, how to correctly locate and apply those concepts or elements in their own jurisdictions is likely to remain fundamentally different expertise.
Albert Mu
March 26
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
Not on Title? You May Still Have a Claim to Property
Sofia Vladimirov
In Australia, property ownership is not always as straightforward as whose name appears on the title. While legal title requires formal registration, courts also recognise equitable title, which reflects the true beneficial ownership of property. This means a person may have a legitimate ownership interest even if they are not formally registered. Equitable interests often arise by operation of law, most commonly through resulting trusts or constructive trusts. Victorian courts administer law and equity concurrently, and where there is any inconsistency between the two, the rules of equity prevail to ensure fairness.
Historically, common law courts recognised ownership strictly according to legal title. The registered proprietor was treated as the absolute owner, regardless of whether another person had contributed financially or relied on an agreement or understanding. This rigid approach frequently produced unjust outcomes. To address this, equitable principles were developed to recognise that the legal titleholder may not always be the true beneficial owner. Under equity, the registered owner, known as the trustee, may hold property not for their own benefit but for another person, known as the beneficiary, who holds the equitable or beneficial interest.
One of the most common ways an equitable interest arises is through a resulting trust. A resulting trust reflects equity’s presumption that beneficial ownership should correspond with financial contributions made toward the purchase price. Where a person contributes to the acquisition of property but is not registered on title, equity may presume that the legal owner holds the property on trust for them in proportion to their contribution. This principle was affirmed by the High Court in Calverley v Green, where two parties in a de facto relationship purchased property in joint names but contributed unequally. Despite the joint legal title, the Court held that their beneficial ownership reflected their respective financial contributions.
Resulting trusts may also arise where property is transferred without payment. In such circumstances, equity may presume that the transferor did not intend to gift the beneficial interest, and that the recipient holds the property on resulting trust for the transferor. However, this presumption is not absolute and may be rebutted by evidence of a contrary intention. In certain relationships, such as between a parent and child, equity may instead presume that the transfer was intended as a gift, a principle known as the presumption of advancement.
Even where financial contribution alone cannot be established, an equitable interest may arise through a constructive trust. Constructive trusts do not depend on presumed intention but arise to prevent unconscionable outcomes. As explained by Deane J in Muschinski v Dodds, constructive trusts are imposed not simply because it appears fair, but because it would be unconscionable for the legal owner to deny another party’s interest. Equity intervenes to prevent one party from retaining the benefit of property where doing so would offend equitable principles.
Constructive trusts commonly arise where there has been a shared intention or joint endeavour. For example, in Ogilvie v Ryan, the legal owner promised that the claimant could reside in the property for life, and the claimant relied on that promise to their detriment. In those circumstances, it would have been unconscionable for the legal owner to deny the claimant’s interest. Similarly, in Baumgartner v Baumgartner, a couple pooled their financial resources and treated property as a shared asset. When the relationship ended, the High Court imposed a constructive trust, recognising that it would be unconscionable for one party to retain the entire benefit of contributions made within the relationship. Likewise, in Muschinski v Dodds, the High Court imposed a constructive trust where parties had engaged in a joint endeavour involving property development, and one party had contributed on the understanding that the endeavour was mutual. When that shared endeavour failed, equity intervened to ensure that contributions were properly recognised.
Ultimately, the absence of a person’s name on legal title does not necessarily determine ownership. Equity recognises that beneficial ownership may arise through financial contributions, reliance on promises, or participation in a shared endeavour. These principles ensure that property rights reflect the true substance of the parties’ relationship and contributions, rather than merely the formal position recorded on the title. In appropriate circumstances, courts will intervene to prevent unconscionable outcomes and recognise equitable interests, ensuring that justice prevails over formality.
Sofia Vladimirov
March 26
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
Why Your DIY Will Could Cost You More Than One Prepared by a Solicitor
Isabelle Hrubos
Ever seen those homemade “Will Kits” sitting right next to Lotto tickets in newsagencies or bookstores? Even some post offices stock these “Do It Yourself” Will Kits — packages with blank documents and basic instructions on how to make your own Will, often costing less than a lunch at a mid-range restaurant.
For just $30, you could have all your “life after death” sorted. But what is the true cost of these Wills?
Consider the case of Roger v Roger Young [2016] WASC 208. Kathleen Rogers left everything to her daughter, Alexandra, who was under 18 at the time of her mother’s death. The Estate, as stipulated in the at-home Will Kit, was meant to be held in trust until Alexandra turned 25. However, the Will was riddled with ambiguity. Solicitors could not determine beyond doubt what exactly “25 years of age” meant, and Alexandra ended up spending $100,000 to challenge the Will and $100,000 to defend it, not to mention the time lost in legal proceedings.
Master Sanderson, the now-retired Master of the Supreme Court of Western Australia, commented:
“On numerous occasions when dealing with so-called homemade Wills, I have observed they are a curse. Homemade Wills that use what is sometimes known as a ‘Will kit’ are no better. This case proves the point… if the Will had been completed by a competent legal practitioner, the problem would not have arisen, and a great deal of trouble and expense would have been spared.”
But the nightmare doesn’t end there. Informal Wills created without a lawyer’s guidance are also more likely to be entirely invalid due to improper witnessing or incorrect signing. Even minor ambiguities can lead to costly litigation which exceeds the price of a properly drafted Will. They are also more vulnerable to Family Provision Claims, for example, if a child is left out or an ex-spouse believes they were inadequately provided for.
While a properly drafted Will may cost next to $1,000 or more, that small investment pales in comparison to the emotional and financial cost of having your wishes compromised after your death. A clear, legally sound Will ensures your estate is distributed exactly as you intend, protecting both your legacy and your loved ones.
Further to this, an Enduring Power of Attorney covers your life while you are still alive. This legal document allows you to appoint someone you trust to make financial or personal decisions on your behalf if you become unable to do so. Just like homemade Wills, improperly drafted or unclear Powers of Attorney can create confusion, disputes, and costly legal battles. Ensuring your Enduring Power of Attorney is correctly prepared by a qualified legal professional provides clarity, safeguards your interests, and gives both you and your family peace of mind.
Contact us today to arrange a consultation and ensure your Will reflects your wishes, protects your family, and gives you peace of mind.
Isabelle Hrubos
January 26
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
Foreign Purchaser Additional Duty (FPAD) and Absentee Owner Surcharge (AOS) for New Zealand Citizens in Victoria
Alice He
From 26 November 2025, New Zealand citizens who are not Australian citizens or permanent residents are assessed for Foreign Purchaser Additional Duty (FPAD) and the Absentee Owner Surcharge (AOS) based on residency, rather than visa status.
Residency Requirement
To avoid FPAD and AOS, a New Zealand citizen must ordinarily reside in Australia for at least 6 continuous months within the 12 months before and after the property transaction.
Australian Citizens and Residents
FPAD and AOS do not apply to Australian citizens, permanent residents, or Australian residents. From 1 January 2026, a New Zealand citizen is no longer automatically treated as an Australian resident by holding a Special Category Visa. To be considered an Australian resident, they must:
If a New Zealand citizen does not meet this test, they may be treated as an absentee owner, meaning the AOS could apply.
What If Circumstances Change?
If a New Zealand citizen cannot satisfy the residency requirement due to work, study, or other reasons, they must notify the State Revenue Office (SRO) within 30 days. The SRO may reassess the FPAD and AOS, but the Commissioner has discretion to adjust the residency period or allow more time if there is a valid reason.
Seek Our Advice
These rules can be complex, and failing to comply may result in unexpected duties or penalties. Contact us today to ensure your property transactions are structured correctly and to confirm whether FPAD or AOS applies in your circumstances.
Alice He
January 26
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
It Doesn’t End with Your Will: Estate Planning for Companies and Trusts
Tracy Collins
When you think of estate planning, the first thing that comes to mind is probably not your company or trust. Yes, your Will says who will get your assets (and shares), but what happens to your company if you lose decision-making capacity? Can your trust continue to make distributions if the trustee is deceased?
Without proper planning, a director or trustee’s death or loss of capacity can significantly disrupt business operations and create ongoing problems. You should review your asset structures, particularly corporate and trust entities, to determine whether further estate planning is necessary.
Companies
When a company director dies, the company’s constitution and any shareholder agreements typically outline the process for transferring shares and appointing new directors. The deceased director’s shares form part of their estate and are dealt with by the executor in accordance with the terms of the Will or, if there is no Will, the rules of intestacy, subject to any shareholders agreements that are in place at the date of death.
If a director loses capacity, the company’s constitution may provide guidance, or the remaining shareholders may appoint a replacement director.
But what if – as is often the case – the director is the sole director and shareholder? Then there will be no one to appoint a replacement director. In these circumstances, a Company Power of Attorney (also known as a Corporate Power of Attorney) can be a useful tool, allowing another person to act on behalf of the company while the director lacks capacity. This means that the company can continue operating where it would have otherwise come to a halt. Of course, this is something that must be prepared before misfortune strikes.
Trusts
Generally, a trust deed gives the appointor the power to remove and appoint new trustees. This is a good mechanism if a trustee is incapacitated and there is a different person acting as the appointor. However, it is defeated if the trustee and the appointor are the same person.
The statutory protections under the Trustee Act 1958 (Vic) may not be helpful in the event of a trustee losing capacity. Furthermore, an attorney under an enduring power of attorney is not usually able to exercise the powers of a trustee as a trustee is not usually able to delegate the role.
Next Steps
To protect interests operated by trusts and companies, in the event of death or loss of capacity you should at a minimum:
Estate planning today is not simply about having a Will. Many of you hold assets in structures that are not governed by your Will (which only operates on death and oftentimes is subject to challenge). Accordingly, you should consider succession planning for trusts, companies and other assets not governed by your Wils.
We can assist with reviewing and advising on your documents. If you require any assistance, please contact Tracy Collins, our accredited Wills and Estates specialist, at tracy.collins@nevile.com.au.
Tracy Collins
January 26
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.