It’s all in the contract

October 6, 2015

Recently, or so it seems to me, there has been a rash of reports of buyers of apartments “off the plan” being left either with nothing or with something less than they thought they were buying. The most outrageous has probably been the move by a developer associated with Auburn’s Mr Mehajer to reconfigure the apartments in a block which has already sold off the plan pursuant to a power in the contract to do so. What a developer can do under such a provision must surely be a matter of degree and one might think that some representations in trade and commerce which will have been made in the bruiting of the plan may well come into play, but we’ll have to wait and see more of the detail of that.

Meanwhile, a recent judgment by Stevenson J exposes the risks to purchasers of “sunset” clauses in off-the-plan contracts. Sunset clauses are clauses which allow either the purchaser or the developer to call the deal off if the building is not completed by a specified date.

Ostensibly, these are symmetrical provisions, in the sense that they apply to both sides equally. They do offer some kind of protection to the purchaser, in that if the building is late completing you don’t have to wait – you can just ask for your money back. That could also be opportune if it looks like you paid too much.  But things look different if you pause and think that normally, if you contract as a consumer with someone to sell you something, the seller bears the risk of not being able to deliver. Normally you might therefore expect a builder to be responsible for completing the building for the price offered within the stipulated time. After all, this makes sense so far as the builder is the party you might expect to know about the site and the building it plans to put up.

When, as recently in Sydney, there is a rising real estate market, sunset clauses expose purchasers and developers to a “moral hazard” because if developers do not complete by the stipulated date, they may well be able to sell the property to a new purchaser at a better price. If the date is approaching, the building still not finished and the market is rising, who would not be tempted to go slow or at least not make unseemly haste?

The protection offered to purchasers against this moral hazard is a requirement that the developer use “reasonable endeavours” to finish the job. That is usually defined as getting the strata plan registered, the earliest point when there would be specific properties in existence capable of being conveyed. By then the building should be complete with relevant certificates issued.

The problem is that it is one thing to suspect and another to prove. If you want to prove a legal case, you will be shooting in the dark. The developer will be the one who has been on the ground and can give more detailed evidence about what was actually happening.

All of this is amply demonstrated by Stevenson J’s judgment in Wang v Kaymet Corporation Pty Ltd [2015] NSWSC 1459.

Between November 2009 and April 2010 the plaintiffs (all but two apparently ethnically Chinese) bought “off the plan” a total of 34 of 94 apartments proposed to be constructed by Kaymet on a site at Lusty Street, Wolli Creek. In each case the stipulated date (entitling either side to rescind) was 30 months after the date of the contract. Between March 2013 and April 2014, at all times when the strata plan was still not registered, Kaymet (and the other parties on its side of the contract) rescinded the plaintiff’s contracts. The plaintiffs sued to hold Kaymet et al to the deal – that is, they still wanted to be able to purchase the flats.

According to Stevenson J at [71] ff, the plaintiffs faced the following burden:

71 …for the plaintiffs to succeed, they must establish that the defendants failed to use their reasonable endeavours to cause the Strata Documents to be registered by the Date for Completion.

72 To show that such a breach is material, the plaintiffs must also show that, had the defendants used their reasonable endeavours, the project would have reached the stage where the Strata Documents could have been registered by the Date for Completion relevant to each plaintiff’s contract: that is, by 23 May 2012 at the earliest …and 1 October 2012 at the latest ….

73 If any of the plaintiffs can establish these matters, it would follow that the defendants were not entitled to rescind the contracts, that the contract or contracts in question remain on foot, and that the particular plaintiff or plaintiffs is or are entitled to specific performance.

74 Determination of the actual date on which the defendants could have caused the Strata Documents to be registered is complicated. Although I asked counsel several times for guidance as to precisely what was necessary for the defendants to achieve in order to register the Strata Documents, I was provided with no clear answer. The fact is that the Strata Documents are still not registered.

75 However, there is no suggestion in the evidence that the Strata Documents could have been registered by 1 October 2012 (the last of the Dates for Completion). Indeed, the evidence suggests that the project was nowhere near that stage on 1 October 2012. On 9 October 2012, Washington Brown (quantity surveyors engaged by Westpac Banking Corporation, the defendants’ financier) reported that work was only 69 per cent complete and that the then forecast completion date was 21 March 2013. On 28 June 2013, Washington Brown reported to Westpac that work was then 98 per cent complete and that the forecast completion date was 26 July 2013. An interim Occupation Certificate was issued on 19 July 2013 and a final Occupation Certificate on 2 July 2014.

76 As best I can make out, it would not have been possible for the defendants to cause the Strata Documents to be registered until, at least, around this time; that is, some 14 months after the earliest Date for Registration and some 9 months after the latest Date for Registration. Thus, the plaintiffs must show that the delay caused by the defendants’ failure to use reasonable endeavours was in that order.

If you read the judgment you will see that his Honour dismissed all of the plaintiff’s claims that delays were caused by a failure to make reasonable endeavours by the defendants except for in relation to a six-week period in late 2010. He found the defendants’ principal witness “impressive;” expert reports relied on by the plaintiffs failed to hit the mark because they were made in ignorance of what had actually happened.

Quite a lot of the claimed delay went back to a decision taken by the developers some time between 2009 and February 2010 (see [113][114] of the judgment) to defer the resolution of the issue of underground water on the site until excavation was commenced.

Excavation commenced shortly after the last contract was signed.  After that, the developers took an approach which one of their experts described as more “economical.”  Although there were some delays in implementing a solution, the judge did not consider that any of these were the result of a failure by the developers to make reasonable endeavours other than for the six-week period I have already mentioned.

What is perturbing about all of this is that really only one of the other claimed delays arose from any intervening cause – a court case (possibly involving Rockdale Council) which led the developers to shop around for a new approving authority who would calculate the building height on a basis more favourable to them (they had to shave a little off the dimensions of some levels for this but not the whole storey at the top which the Council’s foreshadowed approach would have required). It is perturbing enough that developers can do this but this must be left to another day. Everything else seems to have basically been within the range of what might always have happened.

If that’s the case, the contracts the purchasers signed really were never worth anything much unless the market fell rather than rose because it was always on the cards that the building would take more than the 30 months allowed so that the developers would be able to get out of them and resell the properties.

Why isn’t the offering of such contract a Trade Practices (now Australian Consumer Law) case in itself? Surely if as a developer you put out contracts with a date 30 months in the future you should have some reasonable basis to consider that this date will be able to be met. What changed?

Not, I should add, that the plaintiffs attempted to make such a case. Perhaps the possibility has been squashed on the head by judges at some time in the past. Perhaps the risk was too high that impressive witnesses will be believed when they say they thought they could meet the date. Alternately, it may be that the return of the deposit on rescission is sufficient to preclude any Trade Practices claim, given that these have traditionally (but not always more recently) been limited to reliance rather than expectation interests.

One thing is clear, and that is that if you sign an “off the plan” contract, even with a “reasonable endeavours” clause, you are putting a lot of trust in the developer.

Perhaps it would be possible to have more complicated rescission clauses which provide more nuanced protection for purchasers in the event that even reasonable endeavours by the developer don’t result in completion by the stipulated date. Good luck with that: in a sellers’ market it will be hard to obtain such clauses.

It must be remembered that developers also face risks if projects become more complicated or even merely more protracted. The last thing you want is for your developer to go bust (and it does happen). The references to reports to Westpac in the evidence suggest that the developers had their bankers breathing down their neck.

This is a pie with many fingers in it.   Developers often need off-the-plan purchasers to reassure banks who advance the costs of the project. It may well not be a coincidence that the excavation only began after the off-the-plan sales program was completed: financiers typically require a certain number of such purchasers as a condition of advancing funds for construction.

All you can really hope for is that the developers will care for their reputation when they deal with you.


I’ve since been talking to solicitors and there’s a lot of this about. The more I think about it, the more this seems an area where some kind of consumer protection is necessary. Momentum is building.

“Not appropriate”

October 5, 2015

I was speaking to my very old friend, JR, the other day on the occasion of her birthday.

JR told me that her mother-in-law wants to move in and live with her and her husband, X.  It’s not for good but because her mother-in-law needs to accumulate two years’ (continuous, I think) residence in Australia before she can return to the UK (as she would prefer to) and retain an Australian pension.  She’s had previous unsuccessful attempts to satisfy this condition.  (I’m sure she has lived much more than 2 years here earlier in her life as X certainly grew up here.)  JR told me that her mother-in-law has from time to time in the past moved in either with JR’s husband or, since their marriage, with JR and X.  This has never been a success from JR’s point of view.

However much you like someone or are close to them, it is always a strain having someone as a guest in your house.  It’s that feeling that you have to put yourself out a bit more because of the obligation of hospitality.  I think that was the gist of JR’s complaint about when her mother-in-law had stayed with them before.  If a home is primarily your home you can never really revert to a house-sharing sort of arrangement with a guest, even if that is the guest’s declared intention.

In addition, in recent years, JR has had health problems which have led to her stopping work.

JR said, “X  keeps telling his mother ‘No.’   I think he should simply tell her it’s not appropriate.”

I was taken aback.  JR was for many years a public servant.  Is this a public service concept?  It seems to suggest that something is categorically unthinkable.

JR and X have room in their house; X’s mother has a need of finite duration.  What’s “not appropriate”?  I could still understand “No” or “JR is too unwell to handle it” or even “It won’t work out” based on previous experiences, but I just couldn’t see the inappropriateness, whatever that means, or why that trumps “No.”

JR said: “Well, would you have your father to live with you?”

My father is 89 and recently widowed.  He lives alone in his own home but it is a live issue what would happen if he could no longer do so.

I said, “Yes.”

Indeed, D, with whom I live, has even suggested it. It is my father who would be reluctant – whether he would rather live with me or in a “home” has not yet arisen but I strongly suspect he might prefer the latter if he were still able to choose.

For that matter, D has even suggested that my maternal aunt, who is struggling living on her own in a far-away country town, come to live with us. I know that would be hard but compared to leaving her on her own I could endure it (at least, I think now I could).

I didn’t mention that to JR but I did by way of explanation add that D is Chinese.

We agreed that Chinese have a different attitude to family from our people of our own, western-European cultural background.

JR volunteered that X’s mother had numerous children other than X and all had been pushed out the door quite early to fend for themselves.

I didn’t even get round to telling JR that right now D is in Shanghai, staying in a one-bedroom flat with his mother, who no longer wishes to live alone in her own place and who therefore now lives with his second sister and her husband.  Until recently, D and his mother shared the bed in the bedroom and his sister and brother-in-law slept on the couches in the living room.  Right now D’s third sister is having her flat renovated for three months and so now she and her husband sleep in the bedroom, his mother sleeps in the living room with the second sister and brother in law, and D sleeps in the balcony.  On top of all this, the third sister’s daughter returns from university on holidays and weekends.  God knows where she sleeps.

But I digress.

It subsequently occurred to me that JR asked the wrong question. Yes, I can contemplate having my father to live with me, but it would be altogether a greater challenge if D’s mother expressed such a desire.

Fortunately for me, that is most unlikely.  She has no desire to come and live in Australia at all.

Is this journalism?

October 3, 2015

Something terrible has happened to William Tyrell, the child in a spider-man suit who disappeared from his parents’ home.

Public interest is understandable and the press scrabble for any reportable angle.

But was this story (denunciation by a woman whose vehicle, given to somebody else, became the subject of inquiries, of her husband, convicted of other child abuse offences and now disowned, she says, by her, his mother and his siblings; rehashed details about another member of Grandparents as parents again group) really worth publishing?

Keats was gay, OK?

October 3, 2015



Spring is definitely here, or, if you like, we are coming to the end of Sprinter. Sprummer seems not far away.

I heard the first koel yesterday.

In my neighbours’ garden, the particularly noisy cicada or cricket which last year led both my neighbours and D and I to suspect the other of running some noisy kind of garden equipment has started its around-sunset refrain.

The koi in our backyard pond are shaking off their winter torpor.

Inside, the heater is unplugged and will be put away when I get around to it.

Meanwhile, the tawny frogmouth in the park opposite my home continues its nightly call. It perches in the same spot or very nearly every night. Bats feed on the blossom in the canopy, pictured above.

It’s hard to work out how the tawny frogmouth can keep up this constant calling and also get what it needs to eat. And what function does the call perform? I have assumed that it might be to attract a mate. The habitat for tawny frogmouths is so dispersed, as the next picture of that tree rather pathetically demonstrates, that the chances seem slim.


I don’t think there is more than one tawny frogmouth around.

In the spirit of the infamous twitter handle, “Abbott loves anal” (Was this a dig at his alleged statement to Tony Windsor in 2010 that he would do everything except sell his arse to get into power? If so that suggests he doesn’t like it, at least as a recipient.) my mind has turned to Keats and his own night bird. After all, Keats did say of the eternally singing nightingale:

“Still wouldst thou sing, and I have ears in vain— To thy high requiem become a sod.”


September 20, 2015

On Thursday with my colleague, J, to Angel Place for the Omega Ensemble’s concert, titled (all concerts have a title these days) “Chamber to Charleston.”

The originally advertised program was:

Ravel, Introduction and Allegro for harp, string quartet flute and clarinet
Hummel, Septet in D minor
Saint-Saens, Septet
Martinů, La Revue de Cuisine.

I was particularly looking forward to the Hummel and the Saint-Saens. They’d obviously been included to feature the guest artist, Daniel de Borah (as Daniel Hill he was a prizewinner in SIPCA in 2004, amongst other things).

On 3 September the Omega Ensemble announced that Daniel de Borah was unavailable for “unforeseen circumstances.” More like undisclosed circumstances. According to his website he was still playing a recital at Orange on Saturday the 19th.

The same thing happened to the Omega Ensemble in July, when soprano Jane Sheldon, who was to sing again a work by Paul Stanhope that she had premiered, as well as feature as vocal soloist in two others (one of which was also a premiere) fell ill. Omega were lucky to get Lee Abrahmsen to step in at very short notice indeed. She also had to prepare the program for a regional NSW tour immediately after. Abrahamsen’s been asked back for next year so it obviously worked out well.

To lose one guest artist is unfortunate. To lose two guest artists is….more unfortunate.

Actually, there were quite a few changes from the line-up as advertised in the season brochure.

De Borah’s replacement was announced as Maria Raspopova, the ensemble’s “in-house” pianist (in more ways than one because she is married to clarinettist and artistic director David Rowden). That was a lot of notes to learn on such short notice.

On 13 September Omega announced that the Hummel was to be replaced by the Mozart clarinet quintet featuring David Rowden on basset clarinet. I wonder how far they got before they decided on the change?

I missed that announcement so it was only when I arrived at the concert that I learnt the Hummel was OFF. That was a disappointment and would have been a very big one had I paid for my ticket, but in truth not such a surprise.

The program was also slightly rearranged, swapping the order of last two pieces.

The Ravel is a demonstration piece for the Chromatic harp – I heard it earlier this year in a hard-to-beat (probably because I was so close up and totally immersed in harp) performance by Alice Giles with the Australia Ensemble. Sitting further away I didn’t get quite the same buzz but it is still a delicious piece.

While the stage was being set for the Mozart, David Rowden came on and gave a little explanation of the deeper range of the basset clarinet which meant if your pitch memory perception was good enough you could pick up when the extra notes not playable by the ordinary clarinet in A came into play – this mostly meant dips down to the bottom (concert) A an octave and a bit below middle C.

It’s pretty amazing to think that clarinettists buy a basset clarinet basically just to play two pieces: the Mozart clarinet quintet and the Mozart clarinet concerto.

Then again, they are pretty prominent pieces in the instrument’s repertoire.

There is probably more ensemble music for the basset horn than the basset clarinet.

The Mozart clarinet quintet is of course a great work but in a way it suffers from overfamiliarity – a kind of clarinet equivalent to the first movement of the Moonlight sonata – so I found it hard to get really worked up about it. By the third and fourth movements either I or the ensemble or possibly both had settled and of course I enjoyed it.

In the slow[ish] movement first violin Rebecca Chan wielded the biggest violin mute I have ever seen. Maybe that just shows that notwithstanding my oft-stated affection for muted strings, I haven’t been paying attention to other violinists’ mutes, or else I have led a very sheltered life.

The Martinů is a suite based on a ballet with a scenario which surely owes just a little to the L’Enfant et les Sortileges cup and saucer foxtrot – it’s a love triangle between pot and lid and stirring stick with a distraction towards the dishcloth before pot and lid are reunited. Like the Ravel, it includes some jazzy numbers and was the source of the “Charleston” in the program title. Apparently this was Martinů’s breakthrough work, and the beginning of his jazz phase (he moved on from that in the thirties).

This was a lively performance. I have a soft spot for Martinů. There was even just a touch of Martinů’s trademark sewing-machinish vamp-to-measure pattern writing towards the end of the prologue which always makes me laugh just a bit because he seems to be composing by numbers. He was pretty prolific.

This left the Saint-Saens as the really meaty piece, though, being Saint-Saens, not too meaty. It’s written for an unusual combination – string quartet plus double bass, piano and trumpet. There is an inherent balance challenge for the trumpet, although its interventions are limited and in some places this is solved by keeping it soulful.

There is an accompaniment figure which first turns up in the first movement:

Saent Saens Septet 1 piano at letter B

That is then taken up immediately after by the strings, where there is a clearer indication of how it is to be played:

Saint Saens septet letter B continued

The same figure returns at the beginning of the slow, third movement, the Intermede, where it accompanies a cello theme at first:

Intermede 1 -
Intermede 2

I don’t think the pianist’s approach to this was quite right on the night. Once again, admittedly in a more emphatic moment, the guide is given by the string articulation:

Intermede letter C

It’s a small point, and I think it resolved itself by the end of the Intermede.

The score is printed with metronome marks at the start of each movement. Maybe the ensemble was adhering to them, but if so I think they could have cut themselves a bit of slack in the last movement, which started off as a gavotte and is marked Allegro ma non troppo.

Still, I really enjoyed it and the whole Saint-Saens, though it made me regret all the more the missed opportunity to hear the Hummel.

Not that I could complain, as the person who gave me my ticket pointed out: beggars can’t be choosers. Well, that’s not quite true: even beggars could choose to stay at home.

I would not have done that. But I am a bit concerned that the Ensemble does not seem to be drawing the sort of house (and in particular paying public other than its quite numerous and admirably generous sponsors) that its programming (especially if the Hummel were still in) deserves. Is this because, for a local and still (even after 10 years) “junior” ensemble, $69 for A Reserve and $89 for Premium tickets (concessions $10 less and $29 for under 30s) is more than the market can bear? What can be done about this?

Overnight birdwatching

September 17, 2015


I have been staying up too late at night.

Last Saturday I went to hear the Australia Ensemble. After I dropped my AE companion, P, at her home I made an almost-midnight sortie to Woolworths for the week’s supplies. After a Skype with D who was in Taipei on a visa-run out of China (he has been in Shanghai since June; his multiple-entry visa is only good for 90 days each visit) it was 1.30 before I sat down to dinner.

Some hours later, at the quietest time of the morning, I heard a muted “whoop-whoop-whoop” noise from outdoors.

I have heard this sound at night before. I told myself that probably it was a pump or something similar associated with a hot water service or other nocturnal mechanical process, but I could not help the romantic hope that it might be some kind of nocturnal bird. I took a torch and went into the back yard to get a clearer aural fix on where the sound was coming from.

I decided the noise was coming from the front of the house and so turned back towards the house, intending to renew my search out the front.

All of a sudden, I was flat on the ground. I had tripped over the tap supported by a star-picket pictured at the beginning of this post. This was not the first time I have walked into this garden feature when preoccupied with some higher object, but it was definitely the worst. “You fuckwit,” I said to myself, though not so quietly, after the first grunt of shock and pain.

My right knee was very sore, as knees are if you fall on them. I’ve had a bit of trouble with this knee recently so was a bit concerned that any recovery might have been set back. I went inside, thinking frozen peas and ice packs.

Then I noticed my left trouser leg was torn. I must have torn it on the star picket. I took off my trousers. Underneath I was wearing black woollen long johns (sorry if TMI). I could see a tear in those and a glint of red blood. Did I catch a glimpse of white? I could not even bear to look at it more closely, let alone take off the long-johns which I now hoped were acting as a kind of supporting bandage. This was too much for me to deal with myself. I called a taxi and gathered the necessaries: earplugs, reading material, extra warm clothing. By about 5.10 am I was at RPA (Royal Prince Alfred Hospital).

I knew the taxi driver was overcharging me for at least the radio hire fee but I wasn’t up to arguing over cents that I would have given him as a tip anyway.

It was a good time to arrive. I was seen straight away and hardly waited at all before the excellent nurse Sean rinsed the wound out (having first mercifully made sure I had a local anaesthetic) and bound it up. I was put on a bed in the ED. The surgeon had been sent a photo of the wound by SMS. He came in and told me I would need to have the wound cleaned out and stitched up under general anaesthetic. I would be in overnight.

First, I would need to be found a bed. At about 9.30 I was told I would have a bed but it took a few more hours before I got to it. More disappointingly, at about 8pm a nurse told me that I wouldn’t be operated on that day. As we lawyers put it, I had not been reached. A cheese sandwich, an apple, some apple juice and some yoghurt were cold consolation for a fruitless day of nil-by-mouth.

Fortunately, Endone was ungrudgingly dispensed, which kept any pain at bay and also, it must be said, helped the time to pass in a hospital haze.

I got to the theatre a bit before 11 on Monday morning and came round in time for a hot lunch back in the ward.

For the second time this year, I was to spend two nights in hospital. The last time I spent a night in hospital before this year was 40 years ago. I hope the mathematical trend does not continue.

I now have the letter for my hypothetical GP whom I am meant to see in the next week – not that you can get an appointment with any doctor so quickly. So I now know that the gash was 7 cm long. This is hardly very much and less than the tear in my trousers. The real problem was that it was down to the bone.

Apart from being constantly asked your name and date of birth, the other thing that happens when you go to hospital with an injury is that people ask you how you sustained it. Some of them write down what you say. Somebody (not necessarily anyone you told the story to) then writes the discharge letter. This is what mine says:

Admission notes extract

It sounds unbelievable: birdwatching at night, injured by a wooden stake. I don’t think it’s what I told anybody, but there it is now in the records.

I was listening, not watching, and the stake most definitely was not wooden. I am certain I always said it was a star-picket and I never said it was wooden.

Hospital records are business records and so are admissible as evidence and even if they are not strictly evidence of what happened, they can easily be evidence of what a patient has told hospital employees, which could well be either an admission by the patient if the patient is a party to litigation or admissible hearsay evidence by a dead person who is no longer available.

Professionally, I shall now treat such records with caution, and with skepticism (if it is in my client’s interests to do so). After all, patients are often not the most reliable informants, especially when they come into casualty, and hospital staff may also jump to conclusions. A lot of what they record is only incidental to their main task and their mind may not really be focussed on details which somebody may subsequently wish to rely upon.

Here’s a picture of the scene of the crime, taken on my return. It must be exactly as I left it. Maybe I tripped over something else first rather than simply walking into the tap:


But now the best thing.

Just now, staying up too late again, I heard the same “whoop whoop” noise. I went out, to the front this time and very carefully. The whooping stopped as I got closer to where it had come from, but there was movement in the tree and twigs and other detritus falling down. I returned with a torch and in amazing, slow winged flight, quite close to me, this bird emerged.

tawny frogmouth

Not my picture: Wikipedia’s.

It didn’t seem especially scared of me but perhaps it was just following its instinct as it perched motionless on a branch, caught in the beam from my torch. Its eyes were red against the glare. It seemed cruel to prolong this. I moved around so I could look at it from behind but a little while after it flew, not far, to a branch where it could, once again, look at me. I left it alone.

So now I really have been birdwatching at night.

“Are you a twitcher?” Sean the excellent nurse asked me as he directed a thin stream of saline solution into my leg (it was cool and strangely refreshing). I demurred at that. I haven’t the patience to be a true birdwatcher. But I find it difficult to see how anybody could not be interested in such few birds as come our way.

It’s a Shelley thing: flight signifies freedom, at least as a romantic dream. Flight also accounts for birds’ resilience in a man-made environment. It’s not resilience of all species because obviously many birds have disappeared from loss of habitat, but I also love how others, like the (often hated) ibis or, in the inner west, the Rainbow Lorikeets, have established essentially feral populations in the new environment.

Just this week, I have heard the first channel-billed cuckoos, the butcher birds have sprung into renewed song and yesterday afternoon I am sure I spotted a king parrot. Even if it was only a crimson rosella (the call suggested parrot) that is an unusual sighting for the Inner West. It was in a stand-off with a truculent looking cockatoo in a much fought-over tree with hollows, and I doubt the parrot/rosella will prevail, but it cheered me to see it.

To see a tawny frogmouth in Ashfield is really special.

SIPCA 2016 – time saved

September 15, 2015

A postscript to my previous post on the next Sydney Internatiunal Piano Competition.

Old format of competition versus new.  A comparison of the total length of solo rounds.

Old competition Minutes Minutes New Competition
Stage I 36*20 720 640 Prelim 1 32*20
Stage II 36*20 720 960 Prelim 2 32*30
Stage III 20*40 800 0 No Quarter-final
Stage IV 12*50 600 750 Semifinal 12*62.5 (60-65)
2840 2350

SSO, Dutoit, Roman Trilogy

September 11, 2015

On Wednesday night to this concert by the Sydney Symphony conducted by Charles Dutoit.

I normally go on Saturday but swapped to accommodate a clash with the Australia Ensemble.

If you go on a regular night you find that acquaintances are sustained with people who go on the same night and I was conscious of being in a less familiar crowd. I still found myself just in front of two people (one an older brother of a friend from school) who sit in the same row as me on Friday nights.

Even between different nights of SSO subscription audiences there are subtle differences between different “crowds.” The Wednesday audience is a little bit less flash than the Saturday one, more classic “ABC” types.

A couple of rows in front of me I spotted two familiar faces sitting next to each other. (OK, I know faces don’t sit.) One looked like David Griffiths, currently clarinettist with the Australia Ensemble and so in town from interstate this week. The other took me a little longer to put a name to though I finally worked it out: it was Andrea Molino, a conductor who has been brought into Opera Australia by Lyndon Terracini, who first got to know him conducting more contemporary works before Terracini got the OA gig and put all that edgy festival stuff behind him.

Why was Molino here? He’s not rostered on for Opera Australia until Carmen mid next year.

It turns out Molino was in Sydney to conduct a recording for ABC Classics of a recital by Nicole Car with the AOBO. She is quite the singer of the moment.

I’ve got my beefs with Terracini but I’ve been impressed with Molino. There is quite a good little film up on the net, Bellezze diverse – Different beauties featuring Molino and the preparation in 2014 of performances of Tosca in Melbourne and La Boheme in Sydney.

I love opera-backstage docos.

Molino routinely conducts performances without a score and it is fun to see how that enables him to conduct rehearsals with the principals in a very free and up-close way.

I know it’s not a novel idea but the way the film skips between rehearsal and performance footage is very neat. I liked most the moment (at about [21:02]) when the film cut from the boy in the Christmas-eve scene in Boheme to Molino singing it as a cue in a piano rehearsal.

It is maybe a pity given that so much work has been put into the film that quite so much time was given over to commentary by Lyndon Terracini and harbour/opera house travelogue promo fluff. Some of what Terracini said was interesting but there was a point where it, like the travelogue-ish stuff, passed over into promotional territory and at times the voice over obscured more interesting native footage. Oh well, perhaps that was how the film got to be made.

Back to the SSO.

Earlier in the week I had read Henry James’s “Daisy Miller.” Poor Daisy, a bold young American breaking all the rules, catches malaria at night in the Colosseum and dies within the last three or four pages. While that was not all colour and movement it was a good preparation for the myth of Rome.

The title “Roman Trilogy” referred to the second half, made up of all three of Respighi’s “Rome” pieces, played in reverse order to their order of composition: Festivals, Fountains and Pines.

This was a massive undertaking. At first it felt like the Italian equivalent to Carmina Burana, ie, Fascist spectacle music. That could be unfair to Respighi. Later I got into the groove more, even as, in the more jolly bits of Fountains, it felt like we had slipped into one of those American post-war “coins in the fountain” movies. That definitely is unfair to Respighi because he came first.

We didn’t get the Roman trumpets as far as I could see.

Inevitably, in the first of the two quietest bits, a woman in front of me had to take her mobile phone out of her handbag to stop it. She didn’t turn it off so a few seconds later we got the “missed call” chirrup. During the second, the birdcall in Pines, a woman in my row developed the equally inevitable cough. She had a winter jacket on her lap. Why did she not muffle it with that? A hand in front of a cough does little. I shrugged off the first distraction but the second came at a more critical moment and was more maddening because protracted and avoidable.

In the first half we had another Roman piece – Berlioz’s festival overture. This was a brilliant opening. It is not long and leaves you wanting more with a burnished trombone chord at the close.

In between, Daniel Müller-Schott played Schumann’s cello concerto. This was the source of the alternative title which the SSO gave the program: “Schumann’s magical cello.”

Schumann’s own Italienische Reise only took him as far south as Milan and Venice, and afterwards he was inclined to be dismissive of Italian music. I suppose the cello concerto was intended as a kind of contrast.

I found it a bit difficult to settle into Schumann’s world. This is odd because I love most Schumann and I know his cello concerto counts as a major cello concerto. On this particular evening I was left feeling that it wasn’t the best Schumann and that if it is a great cello concerto then maybe cello concerti aren’t all that great.

The concerto got a mildly enthusiastic reception only. This could have been a matter of context and the make-up of the audience. It’s not that there weren’t interesting bits: the cadenza in the last movement is fascinating and the slow movement quite lovely.

It would have been lovelier still if Müller-Schott were able to moderate a bit of a grunting and hissing thing he seems to have going. Nobody wants to spook an artist by mentioning this sort of thing because we know that mannerisms like this are a by-product of the effort put in. Fortunately, nobody much reads this so I doubt any harm has been done.

SIPCA 2016

September 11, 2015

The Sydney International Piano Competition (SIPCA) is due to be held next year.

For many years, SIPCA relied on the financial support of Claire Dan, former wife of Peter Abeles described as a “founder” of the competition.

In 2000 there was a bit of a flurry of public criticism of the competition. This is preserved on the competition’s Wikipedia entry and also by virtue of the internet age.

The nub of it was encapsulated by a comment from Larry Sitsky:

“The title `Sydney International Piano Competition’ sounds grand and definitive. But behind the facade is a rather shabby private party in progress.”

Much of the criticism was really criticism of Warren Thomson, chairman of the jury from 1992.

Shabby or not, the competition certainly was a private party, and the person paying for the drinks was Claire Dan. Thomson remained the director because he had Dan’s confidence. “Warren is best because Warren gets things done,” said Dan.

The competition was run on a shoe-string. For a very modest salary, practically an honorarium, Thomson organised everything from the competition’s office in Dan’s Bellevue Hill mansion, which he attended on a daily basis. He arranged each competition, curated the follow-up tours for prizewinners and kept the affairs of the competition’s “Friends” bubbling along between competitions with musical events featuring his chosen proteges.

By the 2012 competition, Ms Dan was not well enough to attend. She died in October that year. Thomson himself was suffering a decline. He could barely preside on public occasions and had to entrust the pronunciation of difficult foreign names to others. He can only have managed by adherence to a by-then well-established timetable and procedures.

Following Dan’s death, the Bellevue Hill mansion was sold. At the beginning of 2014 it was announced that Thomson had retired. He moved to Melbourne and died in February this year.

At the beginning of this year the competition advertised for a new artistic director, seeking someone who would be responsible for everything that Thomson had done, right down to proof-reading the programs (with the possibility of some administrative assistance mentioned). An “International” figure was sought who could renew the competition.

At the beginning of April Australian expatriate pianist Piers Lane was announced as artistic director. Since then, Marcus Barker, who previously ran the Tasmanian “Ten Days on the Island” festival, has taken a job as General Manager and a “Marketing and Administration Coordinator” position has been advertised ($48,000 pro rata for four- rising to five-days-a-week before). This is the person who who will be doing the proofreading.

There must be some money to pay for all of this.

The revamped 2016 competition has now been announced.

The main changes that I have noticed are as follows:

1. Preliminary auditions are to be submitted as video recordings by Vimeo or Youtube.

Previously, Thomson travelled to various venues (North America, Europe, China, I think) and co-opted local ad hoc jurors for auditions which were at least theoretically open to the public. It is unlikely that Lane would have been available for such an extensive process.

I expect that young pianists of today are accustomed to this sort of requirement and there are obviously economies for the competition in proceeding this way. The costs to competitors of travelling to an audition venue as against preparing an audition video probably roughly cancel each other out.

Overall, I suppose this is a sign of the times, even if the next sign could only be an entire competition conducted online.

2. The syllabus for the solo-piano rounds has become less prescriptive.

The only requirement is that an Australian solo work be included but the specially commissioned Australian works which have previously been a feature of the competition have been dropped.

This may make it difficult to compare competitors although many players will fall back on usual competition stalwarts.

If the rules are looser potential competitors may be looking more carefully at the jury – to be announced in October.

3. The number of competitors has been reduced from 36 to 32 and there is one round fewer

This will save costs on fares and accommodation and duration of the competition. Previously stages I – IV were in duration 20, 20, 40, 50 mins plus chamber music, with respectively 36, 36, 20, 12 players. Now preliminary rounds are 20 and 30 minutes, after which the semi finals see a reduction from 32 to 12 players. The semi-final recital has been lengthened to 60-65 minutes. A player who gets to the semi finals will have played 110-15 minutes in 3 recitals as opposed to 130 in 4 before. We hear less from fewer pianists and more pianists will only play twice.

4. The solo and chamber music rounds have returned to the Verbrugghen Hall at the Conservatorium.

This marks the healing of the rift between the competition and the Con which occurred after Thomson left the Con and went to the Australian Institute of Music in the late 1990s. The competition also now has an office at the Con.

In the intervening years the competition has been held at the Seymour Centre. The Con is more glamorous and probably will work better backstage and for practice pianos. The Seymour Centre has actually proved to be quite audience friendly and provided you come by car much more accessible than the Con will be next year.

5. A revision of the “choice of piano” rules.

In previous years there was a kind of competition going on between piano manufacturers. There may have been more going on than met the public eye with the offering of practice pianos and other inducements to fancied competitors.

Now the rules say that four
pianos will be provided – Kawai, Yamaha, Steinway and Fazioli, and that “Competitors will perform on at least two and up to four different piano makes during the Preliminaries and Semi-finals of the Competitions, the order of which will be determined through a public draw in early June 2016.”

The rules state that this is designed to reproduce real-life conditions, where players cannot necessarily chose the instruments they play on – but how often in real life do you have to play a Fazioli? I can’t help thinking that this change has other more practical reasons, including just saving time in the first preliminary rounds.

6. A revision of the chamber music round.

In recent years the chamber music part of the semifinals involved making up a piano trio with one of two violin-cello pairs. Next year competitors will need to have prepared a violin sonata and a piano quintet. Which they get to play if they progress to this round looks as though it will depend on how the order of semi-finalists pans out.

The Goldner Quartet, who are collaborators with Lane, will make up the quintet; Tasmin Little will be the rent-a-violin.

It will be a treat for the audience to hear six piano quintet performances. It may prove a bit more difficult for competitors to find a whole quartet to practise with before the competition rather than just a violinist and cellist.

7. The list of concerti has been tweaked.

A Bach, a Haydn and Beethoven 1 and 2 have been added to the first concerto round which previously comprised Mozart concerti only. My bet is that there will be a Beethoven-ward drift.

The second, 19th-20th century round, which starts at Beethoven 4, is notable for what has not been included. Four prominent competition choices are OUT: Beethoven 3 & 5, Tchaikovsky 1 and Rachmaninov 3. That is a relief, especially the Tchaik and Rach.

There are some intriguing inclusions. This is the list:

Beethoven Concerto No 4 in G major Op 58

Hummel Concerto No 2 in A minor Op 85

Chopin Concerto No 2 in F minor Op 21

Schumann Concerto in A minor Op 54

Liszt Concerto No 2 in A major S.125

Grieg Concerto in A minor Op 16

Saint-Saëns Concerto No 2 in G minor Op 22

Tchaikovsky Concerto No 2 [!] in G major Op 44 (competitors might be wise to check which version the SSO has the parts for)

Brahms Concerto No 2 in B flat major Op 83

Scriabin Concerto in F sharp minor Op 20

Dohnányi Variations on a Nursery Tune Op 25

Rachmaninoff Concerto No 2 in C minor Op 18

Medtner Concerto No 2 in C minor Op 50

Prokofiev Concerto No 3 in C major Op 26

Gershwin Concerto in F

Ravel Concerto in G major

Bartok Concerto No 3 Sz. 119, BB 127

Barber Concerto Op 38

Williamson Concerto No 3 in E flat major (probably the most obscure of the lot: counts as Australian content)

Franck Variations Symphoniques M.46

Litolff Scherzo from Concerto Symphonique No 4.

The last two come together, ie, if you choose the Franck you also play the Litolff. They could be a canny choice. I hope somebody who has chosen these gets through to the finals.


There is (trigger alert: cliché coming) an elephant in the room: the devastating cutbacks in ABC Classic FM’s live broadcasts.

Over the years the ABC’s live broadcasts with commentary have done much to enhance the competition and I expect done a lot to garner audiences for the follow-up appearances for prize winners. They were a big part of the buzz.

In recent years, the ABC has extended the same coverage to the Melbourne International Chamber Music Competition. This year it did not. At that time, the axe had just fallen and hard. The ABC probably thought it was doing well to mount the level of live and (more often) delayed broadcasts that it gave.

There is still time to regroup for SIPCA 2016. It would be pathetic if any invidious Sydney-Melbourne thing were raised to preclude the resumption of normal broadcasting.

Private party or not, if I were SIPCA, that is the big thing I would be working on right now.

SSO, Dutoit, Ravel, Debussy, Berlioz – Te Deum (and Nunc Dimittis)

September 6, 2015


On Friday night to hear the SSO conducted by Charles Dutoit.

The SSO dubbed the program “French Impressions.”

That meant, in the first half, Ravel, Rapsodie Espagnole followed by Debussy, Nocturnes. In the second, still French though probably something more emphatic than an impression, the Berlioz Te Deum.

Dutoit is a top draw (and is also top-drawer) for the SSO. You can tell when the orchestra takes a conductor seriously when a full house of principals turns out. In this case practically all (with one exception) except in the first violins, which already have a double complement, and the horns.

As for the public, I expect it was as much the participation of the choirs, and particularly the Sydney Children’s Choir, which accounted for the very full house.

In advance I wondered if the Ravel and Debussy might not prove to be a bit much of the same thing, but in fact putting the two up next to each other showed that they were not. The last movement of the Nocturnes featured the singing of a group of female voices described as “Women of the Sydney Philharmonia Choirs.” They used to be Ladies.

This may well be the only time I hear Berlioz’s Te Deum live in my life. The addition of the children’s choir was apparently an afterthought by Berlioz after hearing the charity children singing at St Paul’s Cathedral in London (this is the annual event which some years before was the starting point for one of Blake’s poems Holy Thursday).

We didn’t get an ophicleide. The relevant parts were played on two tubas.

The Children’s Choir (who were great) and the Sydney Philharmonia were joined by the Tasmanian Symphony Chorus. The combination was thrilling in the loud bits but there were some not so convincing moments in some quieter sections: that’s when the lack of focus that big choirs suffer from can become a problem. Things were better when the choirs had the tenor soloist to fit in behind.

I’m not convinced that all of this piece is the best Berlioz especially when it gets more “religious.” Berlioz himself apparently thought that the final section was one of the best things he wrote and that is a plausible claim.

The Concert Hall set-up precluded the spatial separation between orchestra and organ and between children’s and main choir which Berlioz stipulated. The latter could have been done by moving the kids round a box or two but that might have been a bit challenging for them as well as even more disruptive to subscription seating. The SOH organ is not really the right kind of organ for this repertoire but that’s just something you have to live with. Everyone had a good time.

Once again, the SSO seems to have parted ways with a prominent principal player, in this case a long-serving one, without any fanfare or acknowledgement. I first got wind of this from internet searches reaching this blog and then confirmed it by checking the orchestral list in the published programs. (Postscript: since confirmed by the omission of the player on the orchestra’s website.)

My own instinct in such situations is sympathy for the employee. Experience tells me that when this happens it is unlikely to have been the player’s choice. If that’s the case, then saying who it is here won’t help at all. All I can do is say: thanks for the music.


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