Couple save home in battle against Macquarie Bank

In proceedings in the Supreme Court of Queensland in 2005, James Conomos Lawyers acted for a couple, Mr and Mrs Lin, who took on one of Australia's biggest banks and won.

In 1999 and 2000, Macquarie Bank lent money to a property developer for the construction of units and houses on land near Coolum Beach on the Sunshine Coast. Mr and Mrs Lin's son, Konrad, was introduced to the project by Macquarie and subsequently became a director of the property development company. A family trustee company, of which he and his parents were directors, took a 25% shareholding in the company.

Not long into the project the developer ran into financial difficulties and Macquarie went into possession of the site. Macquarie ended up completing the first stage of the project but the development company still owed the bank more than $9 million.

Konrad was the registered owner of the house Mr and Mrs Lin were living in at the time, and the bank relied on this when it accepted his personal guarantee and agreed to finance the development.  Macquarie brought proceedings to enforce the guarantee.

James Conomos Lawyers instituted separate proceedings for Mr and Mrs Lin with a view to protecting their home from Macquarie's claim against their son. Mr Conomos successfully argued they were the beneficial owners of the property even though it was registered in Konrad's name. Further, Mr and Mrs Lin had provided all of the money used to purchase the house in 1994 and that Konrad in fact held the house on trust for them. James Conomos Lawyers sought a declaration from the Supreme Court to that effect.

Macquarie contested Mr and Mrs Lin's assertions, arguing they had not provided the purchase monies and that they had intended Konrad to be the beneficial owner, not a trustee.

The Supreme Court ordered Konrad pay Macquarie almost $9.5 million. However, in a victory for Mr and Mrs Lin, Justice McMurdo accepted their lawyer's submission and found they were the owners of the property, which Konrad held on trust for them. Again, James Conomos Lawyers was able to protect the rights of individuals in extraordinary circumstances.

$1M pay out for QLD farmers

by Elizabeth Tilley and AAP

A BUNDABERG cane farming couple achieved a near $1 million victory when a bank was ordered to pay compensation for the savings they lost to a swindling accountant.

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All roads lead to High Court in landmark compulsory acquisition case

Marshall v Director General, Department of Transport, 205 CLR 603

It is well known that the government has the power to compulsorily acquire land. If a person's land is next to, for example, a road that needs to be widened, the government has the right to require that person to cede their land to the government.

The law, of course, provides for compensation for the landowner in such circumstances. This compensation can provide redress not only for the loss of the land, but also any resulting damage to land not resumed. This damage is known as "injurious affection".

In 2001, James Conomos Lawyers was involved in an important injurious affection case before the High Court of Australia. Our client, Mr Marshall, owned land next to the Bruce Highway in Queensland. Part of this land was resumed so the highway could be widened. Mr Marshall became concerned at increased flooding on his remaining land following the opening of the new carriageway. He brought a claim for compensation for injurious affection.

The claim failed both in the Land Court of Queensland and on appeal to the Queensland Court of Appeal. Both courts ruled that the claim could not succeed because the new highway was not actually located on the land acquired from Mr Marshall.

But before the High Court of Australia, James Conomos Lawyers successfully argued that it was not necessary for the new highway to be located on the resumed land in order for Mr Marshall to claim compensation for injurious affection. To establish an impact from the works was sufficient. The High Court agreed with this argument and ruled that Mr Marshall was entitled to compensation. This result flowed from the Court's construction of statute law and Justice Gaudron noted that the Court's approach was particularly appropriate where "to do otherwise would limit or impair individual rights, particularly property rights."

Mr Marshall's case has proven to be a key decision in the development of the law and the case continues to be cited as an important authority by courts all around Australia to this day. James Conomos Lawyers is proud of our involvement in this pivotal case.