Archive for October, 2015

It’s my party

October 27, 2015

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– and I’ll die if I want to.

A cheap riff on a popular song. More accurately, I believe people should be able to die when they want to, if they want to.

Mostly people don’t end up making that choice: by the time the question arises they have generally lost the capacity to exercise it, and whilst they still have the capacity they tend not to want to. But for many it is comforting to think that they could. The problem is knowing how to bring their lives to an end in a manner which is not too traumatic – most of all, not too traumatic for themselves. That is perhaps selfish but after all we will all be found dead by somebody eventually.

The Medical Board of Australia has imposed “strict conditions” on the medical registration of Dr Phillip Nitschke. There are specific conditions preventing Nitschke from providing any information about obtaining nembutal and requiring that he not “recommend, sell, deliver or otherwise make available to members of the public cylinders containing nitrogen or any other gas.”

Nitschke consented to the conditions. According to his wife, he faced legal costs of $1 million for a contested hearing.

He may now concentrate on his career as a comedian.

Pause for Remembrance

October 26, 2015

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When driving down to Canberra, I often like to pause at Rose Lagoon.  It’s a pleasant spot.  It would be even more pleasant if the highway were further away.

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J-time

October 24, 2015

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In Ashfield, after one of this week’s storms.

Starstruck

October 20, 2015

When I was about 10 or 11 I won a literary prize. It was sponsored by The Australian, and Robert Drewe came to interview me at my school for a short piece that appeared in the Saturday edition of that paper together with an extract of my prize-winning work. Drewe’s story was charming but had little inaccuracies and exaggerations – almost inevitable, I’ve come to realise, from the journalistic process.

The ABC’s This Day Tonight contacted my parents asking to come to our home to do a story on me. My mother declined. At the time I was disappointed: she never asked me. Later I came to appreciate why she decided to protect me from this. To mix a few metaphors, if you get into bed with the press you will soon learn that fame is an unruly horse.

When I was practising as a solicitor in Sydney at around the turn of the century I came to know Michael Lawler when I instructed him on the introduction of a friend from law school who had already gone to the bar. For a while we had a friendship of sorts – I say of sorts because any friendship which starts in the barrister-solicitor relationship can never shake free of its professional origin. Barristers have too many reasons to be nice to solicitors.

Nevertheless, when I went to the bar, Michael was helpful to me.

Tony Abbott’s appointment in 2002 of Michael Lawler as Vice President of the then Industrial Relations Commission came as a surprise to many. Though capable, he had yet to be appointed senior counsel.

In retrospect I have always wondered whether, despite Tony Abbott’s claims that he opposed the Howard government’s introduction of Workchoices, some kind of emasculation of the Commission’s jurisdiction was already in contemplation, in which case it would have been “OK” to appoint a relatively obscure candidate who should be grateful for the appointment regardless of what was subsequently done to the jurisdiction. Not so much a poisoned chalice as an empty one.

I went to Michael’s swearing in and caught up with him a few times after that before we drifted apart.

I suppose that once the substratum of the professional association fell away it was almost inevitable that the friendship would also fall away. Most friendships and especially friendships formed through work turn out to be situational.

So I have watched from afar the gathering storm around him.

It is a pity for his sake that Michael Lawler is an adult and could not have been prevented by his mother from inviting Four Corners into his and Kathy Jackson’s house for last night’s program.

Signs of the times

October 18, 2015

On Saturday night to the final performance by the SSO of this year’s run of Beethoven’s Missa Solemnis.

It was pretty good and better than I remember its last outing by the SSO in 2008, mounted in association with the visit of the pope.

My friend and former high-school English teacher, Lx (“My God, you people shit me!” he memorably said once before storming out of our year 9 classroom mid-lesson: he had a lot of days off on acoount of “migraines” that year at the end of which he left – though he returned to the school when I was in year 12) didn’t even remember he had been to that performance. Lx still remembered (as I do) the performance conducted by Mackerras in 1992.

I can’t say mine is a detailed recollection: a few moments come to mind but it is the overall impression which survives. What I really remember by now is that it was memorable. There is a CD out on ABC Classics which is either that performance or associated recordings. Were I to listen to it now I doubt if it would live up to the memory. The Town Hall had just been renovated to mark the city’s sesqui-centenary. The familiar old venue was unexpectedly resplendent and I suspect that was all a part of it. As ever, you had to be there.

The Missa Sol is a demanding work for the choir. They made a pretty good fist of it.

Compared to recordings by professional choirs the main thing I miss in performances by the Philharmonia is “produced” voices in the male parts – somehow the absence of female counterparts doesn’t seem to matter so much to me. Still, the tenors attacked their most exposed entry fearlessly – I expect they had been saving a bit up for that particular moment. It occurs to me that part of the trick in preparing a choir for such a taxing work is to pace its approach according to its capacities and the demands on the choristers’ stamina. The sopranos were also good in the punishingly elevated “Et vitam venturi” fugue.

At the curtainless curtain calls tenor soloist Stuart Skelton made his approbation of the choir’s work evident by stamping his foot(well, one of them – he does have two) on the stage when their moments of acknowledgement came. It’s an odd gesture when you are standing (foot stamping works better when you are seated) but struck me as heartfelt. I saved my foot-stamping for Dene Olding on account of his solo in the Benedictus.

As Lx commented on the way out, there was the odd ensemble untidiness. I was more concerned with the balance. Sometimes, as in, say, violin and cello concertos, an orchestra should just pretend to play loudly. Some of Stuart Skelton’s thunder at “homo factus est” was stolen because the orchestra was too loud; likewise the solo quartet’s in “Pleni sunt coeli.” Generally when playing with the choir I thought the trombones too strong: I think of them as choral equali, not orchestral muscle. I was left wondering: what on earth the violins fiddling away so furiously for? It is always a bad sign when there is busyness on stage for no discernible aural outcome. In the Benedictus I would have preferred a quieter pianissimo if that was technically possible (I mean for the trombones) – give the violinist a chance!

But without doubt it was always engrossing – even the Credo flew by. And it wasn’t all rush and thunder: there were dramatic pauses and electric silences as well. Despite my balance complaints- quibbles probably in the scheme of things, David Robertson held the whole thing together cogently and even movingly. I put religion and my own irreligion to one side and went with the metaphorical flow.

I must have been deeply affected by it because I was quite unable to sleep in the night that followed. This is always a sign that something has really worked me up. Sure, excessive caffeine can have the same effect but that wasn’t a factor on Saturday.

As I looked along row U of the stalls I fancied I was (still, as for the past almost 30 years) the youngest person in it. There were maybe 3 possible candidates for being just a little older than I and maybe even the same age if I was mistaken, but otherwise most had a good 10 years on me and many at least 20.

Before the concert I chatted with Lx and a friend of his who was recovering from surgery for a stress fracture. We heard about some of the exercises prescribed by her physiotherapist, as well as Dick van Dyke(90)’s advice for a healthy old age, which she said was: “Keep moving.” Apparently going down stairs sideways is one of the worst habits to fall into.

“My walking stick got tangled up,” said a woman in the row behind me to her friend as we (oh so slowly) made our way out of the hall. I waited at the end of my row to catch up with Lx coming from further back. I soon found that the end of the row is now favoured by older concert-goers for whom even the handrail against the opposite wall offers insufficient support. That’s a sign of the times and the times ahead.

Sting in the tail

October 15, 2015

I have previously posted about the decision of Justice Stevenson in relation to the apartments at Wolli Creek sold off the plan and then unsold pursuant to a sunset clause by Kaymet Corporation and associated parties.

There is now a judgment about costs.  This also refers to an interlocutory decision in the course of the trial rejecting an expert report tendered by the defendants which seems to have been directed to whether delays because of a need to comply with conditions imposed by the State Rail (or whatever the authority then was) were foreseeable or not.

I have previously posted on the difficulties developers can have if they are building anywhere near a railway.

What is odd is that the question of whether delays because of difficulties dealing with State Rail did not really emerge as an issue in the final judgment at all because in the end his Honour only considered whether endeavours by the builders were reasonable or not going forward from the date of the contracts.  I doubt the defendants’ legal advisers were starting at hares in trying to put on this evidence: there must have been an argument about what reasonable endeavours involved which they were attempting to meet but which somehow fell by the wayside.

But the sting in the tail is that to preserve their spanking new apartments to be sold to them in the event they won, the purchasers obtained (by consent) an injunction preventing the defendants from selling or letting the apartments.  Naturally, they had to give an undertaking as to damages for this: that is, an undertaking to pay the developers what they lost if it turned out that the plaintiffs were wrong, as has come to pass.

Reportage of this case has from time to time quoted the developers as complaining that they had lost $2 million rent.  That is what they have been talking about: the money they could have made (they say) by renting out the apartments in the intervening period.

At first I had thought (thinking mainly of the injunction preventing sale): “No matter, the defendants will have suffered no loss.  The properties have appreciated in value well over any holding costs and they can still sell them new.”

Now I am not so sure.  But I am beginning to wonder if the hitherto mysterious failure of the defendants to register the strata plan may not be associated with a plan on their part to claim loss of rent pursuant to the undertaking for damages (because until the strata plan is registered they cannot sell anything) AND to sell the apartments for their present value – inevitably more than that for which they were “sold” off the plan in 2009-2010 or even sellable for in 2013 when the injunction was granted or in  mid-2014 when the apartments were probably habitable and lettable.

That is going to excite a lot of wailing and gnashing of teeth indeed.

You’re on your own

October 14, 2015

On Friday past to the SSO at the SOH, conducted by David Robertson. The program was:

Sculthorpe, Sun Music II
Walton, Violin Concerto (soloist Andrew Haveron on his newly donated violin)
Sibelius Symphony No 2.

I celebrated the commencement of daylight saving the weekend before as well as the (still relative but recovering) recovery of my injured knee by walking down to the Opera House though the Botanic Gardens. The expulsion of the bats seems to have been largely successful, from the point of view of the gardens at least (if not of the bats).

There was some kind of reception at Government House. Seen lit-up from the Gardens across its front lawn (the prospect seems to have been opened up a little) the building looked quite splendid in a fenced-off-privilege kind of way. Viceregal notices seem to have disappeared from the daily press, reducing our viceregal representatives to blogging their activities. It turns out what I saw was “part of the 2015 Australian Churchill Fellows National Convention.”

There is a funny kind of acquaintance you have with your fellow concert-goers. It’s a bit like the acquaintance you have with shop-keepers or people who always catch the same bus or train: you don’t really know them but you feel some kind of connection. There is one such person, I guess at least 10 years older than me, whom I have been climbing over on my way to my seat in row T of the stalls in this series of concerts for maybe 10 years by now. Like me, he goes to these concerts on his own.

This year my knee injury and associated paraphernalia have occasioned in a kind of ongoing solicitousness on his part. Most recently we had a little chat when, as in the TE Lawrence death and Damascus trope, we had an unexpected meeting when I found myself sitting in front of him at a Wednesday night concert which I had switched to from my usual Saturday series. This Friday we exchanged a little non-verbal greeting as I climbed over him yet again. My seat is the fourth seat after his.

In the slow movement of the Walton, he all of a sudden made a strange strangled snort-snore kind of sound. I looked along the row and his head was tilted back and his eyes rolled up. Then he had a little burst of twitching hands and head. It was alarming and a little bit scary.

What to do when such things happen? You are conscious of a kind of conflict of interest and duty: you want the performance not to be interrupted, but you don’t want to be callous. Nor do you want to be officious, though you have to wonder whether someone who has had such a seizure (if seizure it was) is in the best position to decide whether they should seek assistance.

I wasn’t close enough to do anything but the people in front of him turned and spoke to him and, looking a bit dazed, he came to and interacted with them. An usher approached from the side but no actual medical evacuation ensued.
In the remaining movements he seemed to be shifting uncomfortably in his seat and at one point there was another slightly strange noise.

At interval he left too swiftly for me to catch up with him and ask how he was or offer any assistance. What I had in mind was to ensure or at least suggest that unless he knew what had happened (for example if it was a recurrence of a diagnosed condition because medication had been missed) he should not simply go home without seeking some medical assistance. I would have been concerned if he was just going to drive home to solitude. Would I have foregone the second half of the concert if that was necessary to help him? Easy to say now that I would have though I doubt it would have come to that. I think what most worried me was the reflexive reaction that people often have in such situations to say that they are all right when maybe they aren’t and possibly they aren’t really well placed to judge.

Perhaps he left so swiftly because he was embarrassed to deal with such kindness of strangers. At least, I consoled myself, he was still quite quick on his feet. He didn’t return after interval.

D has now been away for 4 months, which may have sensitized me to such Eleanor-Rigby-ish moments of social atomism. Of course, it’s an entirely fictional conjecture that Eleanor wasn’t perfectly satisfied with her own company. (“If only that pesky Father Mackenzie would just leave me alone!”)

The other thing which had sensitized me this night was latest news of an impending orchestral mini-purge. I have already commented on the Stalinist unpersoning of one long-term principal and tidings are now abroad that there are a few more players in Mr Robertson’s sights. These made me reflect on the delusion of coming to concerts as a refuge from the rough-and-tumble of the world when in fact orchestras are no more immune from this than any other social institution. The symphony orchestra is really just an artistic apotheosis of nineteenth-century industrialisation when you think of it.

How weird must it be to have to respond to direction from a conductor when you know that conductor wants you gone? The dramatic irony may not be as intense as the murderous rage of Il Pagliacci but there must be some bitter moments for targeted players, and it must be hard for them defiantly to play their best when they know the fix is in and against them.

Apart from that, I quite enjoyed the concert.

Another row-T acquaintance (whom at least I know a bit better as we were in a “remedial gym” class together in 1972 and I went through high school in classes with his younger brother) expressed the view to me at interval that the Sculthorpe is “rubbish.” I went along with it as a cheerful relic of Sculthorpe’s youthful epater phase – not that that lasted long after this. It wasn’t until Robertson made a show of closing up his copy of the score that the audience felt sufficiently confident to applaud.

Were it not for my topical preoccupation with the Führerprinzip, I would probably have been prepared to forgive Walton his dodgy political associations on the strength of Haveron’s performance of the concerto. His encore was one of those difficult multiple stopping fugal things which excite admiration in lovers of violinism but which I don’t really find it particularly easy to like. I strongly suspected it might be by Bartok – a suspicion confirmed half way down page two of my google of “Bartok violin encores.” I suppose I will soon have to concede that it’s not Bartok, it’s me.

The Sibelius started a bit more muscularly and less charmingly than I prefer. Quite a lot of the charm throughout the Symphony is in woodwind detail which tended to be overborne by the brass. Maybe I just wasn’t in the right mood to be uplifted: the willing suspension of disbelief in music’s transcendancy had left me.

SIPCA 2016 – the Empire strikes back

October 12, 2015

The jury for next year’s Sydney International Piano Competition (Australia) has been announced.

The non-voting chairman of the jury did not require announcement as that is Piers Lane, the competition’s artistic director. Lane lives in and works from London.

The voting jurors are as follows:

Nikolai Demidenko – Russian pianist, long resident in the UK; he has performed in Australia relatively often and has been well received here. No relation to Helen. Probably the leading pianist on the jury. He has a long-standing association with the Hyperion label, for which Lane also records.

Hamish Milne – sometime colleague of Piers Lane at the RAM; oldest member of the jury (born 1939). Known as Medtner specialist; Hyperion artist; has come out for the Festival of Chamber Music which Lane has directed at Townsville for some years.

Noriko Ogawa. Born, Japan 1962. Leeds placegetter early in career. Records for BIS; career otherwise in London/Europe and Japan. Musical friend and colleague of Lane.

Sa Chen (strictly: Chen Sa). Born 1979, Chongqing, China. Youngest competitor and fourth place getter at 12th Leeds competition; studied since in London and then at Hanover under Arie Vardi. Other prizes 2000, 2005.

Timothy Walker – Australian arts manager now GM of the London Philharmonic. A concerto appearance with that orchestra (subject to negotiation) is offered as one of the engagements for the first prize-winner.

So that’s 5 based in London or possibly in its English hinterland.

The 2 others are:

Carl Vine – needs little introduction to Australians; wrote a piano concerto first performed by Lane; Musica Viva bigwig (Musica Viva has in the past offered gigs to prizewinners and could well again – I haven’t checked.)

Mira Yevtich – the dark horse, to me at least. Serbian-born, Moscow-educated pianist who saw out some of the 1990s at the Australian Institute of Music (aka Sydney Guitar School) in Sydney and set up the (now possibly dormant) Southern Highlands Piano Competition at Bowral and Canberra; co-founder (with V Gergiev, no less – but presumably nothing there can be founded without his “co-“) of a Mariinsky Piano Festival, engagements at which are offered to some prize winners, subject to the usual caveats. Possibly back in Europe now. Obscure trivia: she taught the young Andrew Goodwin piano and encouraged him to go to Moscow where, realising he couldn’t cut the mustard pianistically, he switched to voice and ended up landing on his feet.

The number of jurors is down to 7 [see update below] – that’s an economy [a full 9 now appointed]. As to the quality, I couldn’t presume to judge. It seems to me that there are fewer jurors from a jury-circuit (in the past there was always at least a suspicion of an element of “You invite me onto your jury and I’ll invite you onto mine”). The connections with Lane are mostly pretty self-evident. More interesting to me is the London-centric selection – which may, of course, just be a reflection of the connections with Lane.

Update: December

Two further jurors have been appointed, bringing the number back up to 9. The further jurors are Orli Shaham and Ewa Kupiec. Both have appeared before in Sydney – Shaham with the SSO (and her husband, David Roberton) and Kupiec with the Tasmanian Symphony playing Chopin. Their appointments dilute the London-centricism and so rather spoil the title of this post.

A message from the Competition says:

“We are very excited about the calibre of judges on next year’s panel and know that the competitors will be under tough scrutiny.”

 

Australia Ensemble 2015-2016

October 12, 2015

This is a bit of a catch-up post.

On the night I tripped over the tap, I first went to hear the Australia Ensemble with my AE-going-companion and old friend, P.

The program was less forbidding than at first glance it might have seemed – almost excessively agreeable:

Peter MAXWELL DAVIES (b 1934): Renaissance Scottish Dances for flute, clarinet, percussion, guitar, violin and cello (1973)

Nigel WESTLAKE (b 1958): Songs from the Forest for guitar and percussion(1994)

Ross EDWARDS (b 1943): Animisms (2014) – new work commissioned for the Australia Ensemble @UNSW, in celebration of Peter Maxwell Davies’ 80th birthday

Franz SCHUBERT (1797-1828): Piano Quintet in A major ‘The Trout’ D667 (1819)

Actually, that’s not quite the complete program. In observation of Roger Smalley’s recent death, Ian Munro played a Barcarolle by Smalley and said a few words. Since his move to Sydney from Perth Smalley could quite often be spotted in the audience at the AE concerts though it was clear that his health was deteriorating. The addition of this piece was a fitting gesture. P for one said she would search out the music.

Maxwell Davies was in as a teacher of Ross Edwards. The Renaissance Scottish Dances had about as much in common with Eight Songs for a Mad King as Stravinsky’s Pulcinella has with Rite of Spring. If (as I did) you had the Eight Songs in mind as a representative Maxwell Davies work (they were absolutely the ants pants when Fires of London toured with them in my youth) you would have been surprised at how agreeable the Songs and Dances were, let alone how un-modern. I enjoyed them once I got used to the amplified guitar.

The Westlake was an arrangement for percussion and guitar of a piece originally written for two guitars.

I am not really a guitar enthusiast. I suggested to P that this could be because I am (or was) a pianist and because pianists are to guitarists as contraltos or mezzos are to counter-tenors. P was having none of this: there can be no rivalry between guitarists and pianists because there is no comparison. P is obviously more of a pianist than I.

My prejudice goes even deeper: guitar music seems to me to have a broad appeal to people rather in the way that Vivaldi and Satie also have such an appeal: that is, it is music which is liked by people who don’t like music very much. There are two classical music stations on the Sydney FM band: if one plays guitar I invariably switch to the other. Sometimes I then have to switch the radio off altogether.

I managed to overcome my prejudices sufficiently on this occasion. I didn’t walk out and Karin Schaupp is certainly a good player.

I imagine we got the Westlake arranged for guitar and percussion because of a kind of inside job between Ross Edwards and Claire Edwards, the percussionist. Ross had written the next piece with Edwards in mind. If you ask me, that is just a bit cheeky of him but nobody seemed embarrassed to relate it. It was also a bit cheeky to describe Animisms as a new work because it was a rearrangement of earlier material.

Still, it was pleasant enough without, I think, ever aiming to be profound.

The Trout in the second half was according to the Australia Ensemble’s established interpretation, which is intimate and good humoured rather than dramatic. I liked the second movement the most because that was the closest it got to being even a bit moody. Michelle Wood stood in for cellist Julian Smiles who had been absent on “leave” from recent concerts for not especially explained reasons.

On the Saturday just past, to the Ensemble’s last concert for the year with P and her son, T.

Traditionally, the next year’s program for the AE has been announced by (sometimes protracted) speechifying at the end of the final concert. This year, Paul Stanhope, the new artistic director, who strikes me as not particularly comfortable with speech-making, broke that tradition in two respects. First, he disclosed most of the big-ticket items in the AE newsletter which goes out between concerts, and second, he interpolated a short speech during the stage-resetting before the last item of the night. I regret the first change – why steal your own thunder? – but general sentiment welcomed the second – which meant we went straight from the exhilaration of the end of the third Razumovsky quartet to celebratory drinks and chocolates.

Guest artist, Robert Davidson, on double bass, also featured as a composer in the two “novelty” items. The first of these, “Big Decisions” gave the concert its title. This is a series of instrumentations, accompanied by video footage, of speeches and comments by participants in the turbulent Australian political events of 1975. It was timed as close as possible in the AE’s schedule to the fortieth anniversary of the dismissal of the Whitlam government. When Stanhope decided to include this, he could not have known that in the intervening year both Fraser and Whitlam would be laid to rest, which maybe pre-empted by over-exposure some of the impact of “Big Decisions.”

Davidson’s approach comes out of minimalism but conversely it actually involves a kind of maximalism in the identification of musical elements in the spoken word. The best of these was probably the first piece of the set, which divines a waltz in Whitlam’s famous “Well may we say, ‘God Save the Queen'” speech. I doubt if I will ever now be able to dissociate that speech from the waltz.

I wonder if today’s politicians, whose discourse is more and more delivered in the studio or the press conference, will yield such musical material to anyone following in Davidson’s path. Davidson’s version of Gillard’s “misogyny” speech confirms this line of speculation. The almost deliberately flat pitch patterns that JG adopted in her prime-ministerial mode have something to do with it but I think the changes are deeper than that.

At one point, a female voice called out from the body of the hall “We want music!” At the time I took this as a riposte to the soundtrack of “We want Gough!” Feelings can run deep even now. It could also have been a response to the perennial problem with combining recorded and acoustic elements. Where I was, close to the players, it was almost impossible to catch many of the words. Further back, I understand the balance problem was the opposite.

Three “Keating tangos” (including one by Davidson) opened the second half. These were diverting enough but I felt that, like the “Threnody on the victims of Hiroshima,” without the extra-musical titles and declared programmatic intent they wouldn’t really have meant so much.

I hope the heckler was satisfied by the rest of the music. For me, the highlight was the Shostakovich sonata for cello and piano, for which Julian Smiles returned from furlough and was ably partnered by Ian Munro who even sped up when things got hardest in the last movement. Right from the first movement (my favourite), I felt drawn into a very particular world.

P’s highlight was the finale of the Razumovsky (3). That has an exhilaration which reminds me of the (roughly contemporaneous) finale to Fidelio, including some of the figures on a dominant pedal point. The tune’s different but afterwards I kept on thinking of “Retterin des Gatten sein.”

I was most struck by the second movement, which is quite odd. This is usually thought to be the locus of the (speaking broadly) “Slavic” element in the quartet (the other two Razumovsky quartets each have explicitly identified Russian themes in honour of the Russian ambassador who commissioned the set): to me it prefigures a kind of Schubertian melancholy.

Afterwards, with hopefully not an obscene rush at the chocolates (I don’t usually go for white chocolate but I have decided the walnut white chocolate number and the passionfruit cream white chocolate log are my favourites) the 2016 brochure was made available in the foyer.

The 2016 season is entitled “Transfigured night” and ostensibly there is a nocturnal theme throughout. The Schoenberg (which, like Gurrelieder, is more a summation of what came before than an indication of his mature style – cf Mahler’s piano quartet or his first symphony) is the main work of the first concert. The full program is not up on the web but the thunder-stealing summary from the newsletter is.

There is a big repertoire to be covered and often the question is as much what must be left out as what can be included. P was pleased to see a Haydn string quartet at last though I note that this is at the expense of including any Mozart at all. Guest artists include Sarah McLiver and, in the final concert, the Sydney Children’s Choir. That can be good for bums on seats though if chocolates are to be served I hope they will be given an FHB warning. Things could get ugly otherwise.

Clarinettist David Griffiths is again listed as an “associate artist.” No mention is made at all of Catherine McCorkill. I don’t know if that means there is any prospect of CM returning if no longer indisposed: my suspicion (more worrying) is that the university is baulking at making any fresh permanent appointments.

For many years, AE’s printed programs have been sold for the increasingly modest price of $2. Next year, they will be “free” – that is, included in the ticket price which has gone up from $48 to $50 for a full-price individual ticket and from $207 to $216 for all 6 concerts. That remains very good value indeed.

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. Finishing 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.

Postscript:

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.

PPS:

For the would-be/sometime/off-the-plan purchasers, there is a sting in the tail.