As a result of the State Mini Budget from the 2009 Land Tax year a marginal rate of 2% will apply to land tax payers with total taxable land holdings above $2.25 million.  The land holding below this amount will remain subject to the 1.6% rate.

The Government expects that the increase in land tax will affect around 8500 land tax payers which is approximately 5.6% of the total number of land tax payers. 

Principal place of residence and rural properties remain exempt from land tax.

The initiative is expected to increase land tax revenue by around $170 million per annum.  The average increase for land tax payers in this category will therefore be approximately $20,000.  Some of those investors will look to invest elsewhere.

Max Markson is a well known celebrity agent who no doubt would see himself as the modern day Harry M Miller.  In 2007 he sought to buy a house from a Mr. and Mrs. Cutler at Dover Heights for $5.1 million.  The contract provided for the usual 10% deposit.  The Cutler’s real estate agent was Mr. Finger.  And appropriately enough the case involved a fair bit of finger pointing at Mr. Finger.

Mr. Markson signed a contract providing for a 10% deposit but paying only 5%. There was no dispute between Mr. Markson and Mr. Finger that they had had a conversation agreeing to a 5% deposit. 

There was an issue however as to whether or not Mr. and Mrs. Cutler had agreed.  Before learning of the reduced deposit the Cutlers received an offer to purchase their home for $5.5 million.  Once they found out that the deposit was less than 10% they rescinded the contract and sought to proceed with the higher bidder.  Mr. Markson sought specific performance.  The only issue was whether or not a deposit had been paid in accordance with the contract.  The trial judge found that Mr. Finger did not have any authority to reduce the deposit to 5%.

In the end, Mr. Markson therefore failed and the Cutlers presumably were able to proceed to sell to their $5.5 million buyer.  Given the current state of the property market, the buyer one year on, is probably wishing he hadn’t made the offer.

Mr. Finger was ordered to pay costs, including those of Mr. Markson.  He appealed against that decision but failed.

In the final outcome the whole matter as far as Mr. Finger was concerned had got right out of hand!

It is not unusual for requests for reduced deposits, particularly in respect of prestige properties.  5% on a $5.1 million property is still a substantial amount.  The parties to a contract however, and the agent, cannot overlook the wording of the contract.  If the deposit is to be reduced it needs to be made clear whether or not the 5% payment is a part payment of the deposit or in fact payment of a full deposit equal to 5%.  Failure to clarify these issues can result in a finding that no contract was entered into or alternatively a vendor being able to recover a lesser amount than thought on a termination.  Agents also have to be careful to act within the scope of their authority and not cut corners in the pursuit of closing a deal.

Colin Vickery’s review of Shane Warne: The Musical noted that Shane Warne might not be happy that there was a musical about his life but everyone else would be.  Paul Keating by all reports was reasonably happy with Keating: The Musical.

The writers, producers, directors and promoters of these shows hope to make money by using the name, identity and reputation of persons in the public eye.

Celebrity endorsements of products and other licenced uses of the name or image of a celebrity are popular marketing methods. The producer or promoter of a product aims to improve the marketability of their product by creating an association between the product and the celebrity.

A tort of “passing off” has been used to protect the rights of well known personalities in respect of the use of their reputation.  The use of a name or image of a celebrity without a licence to do so will therefore result in liability for passing off.  For there to be a legal remedy however the misrepresentation must suggest a connection which usually would involve sponsorship or endorsement.

The promoters of Shane Warne: The Musical, and Keating: The Musical, did not suggest any sponsorship or endorsement by their main character.  They did not need the permissions of Shane Warne or Paul Keating.  Similarly no permission is needed to write a biography of any person.

There are protections in the laws of defamation which would give people such as Shane Warne or Paul Keating the right to sue if the stage productions were defamatory of them.

There are moves afoot and have been for some time to consider whether or not there ought to be a tort of privacy.  Our High Court in a case decided in 2001 has already suggested that a right to privacy could be developed.  In 2003 a Queensland District Court judge suggested that an individual should have a right to recover damages for a breach of privacy if the action complained of was willful, intruded on an individual’s privacy or seclusion in a way that would be highly offensive to a reasonable person, and if the breach caused the individual mental, physiological or emotional harm or prevented the individual from doing an act which they were lawfully entitled to do.  There have been other cases in State Courts which have considered the issue of privacy, some of which have suggested that there is no such right and others of which suggest that there is.  The position remains unclear and it has to be assumed at present that there is no recognized common law right to privacy.

Opponents to the proposal for the establishment of a tort of privacy say that a new law would simply introduce greater complexity leading to increased dispute.  It would be extremely difficult to draw a line which indicates where a right to privacy starts and finishes.

The issue will not go away.  In the meantime if you become the subject of a musical or book your remedies may be limited to a request for free tickets or signed copies of the book!