Conveyancing, Leases and Mortgages

“ Generally2 Legal basis for adjustment2 ”

“ Adjustments is the exercise undertaken towards the end of a conveyancing transaction and put into effect at settlement, which is the time when the purchaser pays the balance of purchase price to the vendor and becomes entitled to the property. Ownership of property involves outgoings, such as ... ”

“ Every contract of sale of land includes, if not excluded, a provision that rates, taxes and annual outgoings shall be paid by the vendor and apportioned. Section 60 Conveyancing Act and Schedule 3 ”

“ Outgoings should be adjusted as paid. Additionally, the vendor has the right to require adjustment on a ‘paid’ basis by directing the purchaser to produce a settlement cheque on completion to pay any adjustable amount. ”

“ See articles Land Tax - Part 1 and Land Tax - Part 2. Land tax is a tax on ownership of land in New South Wales. It is levied, for any year, on the combined value of all taxable land owned in New South Wales by the taxpayer at midnight on the 31st December in the preceding year. Land includes ... ”

“ If an adjustable amount has been reduced by legislation then the adjustment is calculated on the reduced amount. Standard form contract 14.3 ”

“ The vendor is liable to pay the rates, and is entitled to receive the rent, for the adjustment date. Standard form contract 14.1 ”

“ Adjustments are linked to actual possession, and so if completion is delayed adjustments should be recalculated to take effect on the day that settlement actually takes place. ”

“ Rent If the rent is paid up to and including the adjustment date, no adjustment will be necessary. ”

“ Most rights under a contract of sale of land merge upon completion, however the right to adjust outgoings does not merge and it may be possible to adjust after settlement. Standard form contract 20.8 ”

“ Adjustments made in error may be readjusted after settlement. Thus a vendor may claim an amount underpaid or a purchaser may claim an overpayment. This principle is an exception to the doctrine of merger that would otherwise mean that all contractual rights of the parties merge at settlement. See ... ”

“ The contract may relate to part of a larger property, such as one block on a plan of subdivision where the subject property is not yet separately rated. Unless specifically provided, adjustment is to be on a proportional area basis. Standard form contract 14.5 ”

“ Supplementary rates that relate to the period prior to completion are recoverable by the purchaser from the vendor on the basis that they relate to the period when the vendor was entitled to possession of the land. This would apply to the situation where the council claims additional rates by ... ”

“ Street construction charges would fall within the concept of a ‘work order’ and will be payable in full by the vendor if made on or before the contract date. Standard form contracts 11 and 20.7 ”

“ Strata levies are not a charge on the land and are therefore more in the nature of a personal debt owed by the owner to the owners corporation. However, if at the time a person becomes a lot owner someone else is liable to pay a contribution, the owner is jointly and severally liable with the other ... ”

“ Whilst a vendor as an owner may have an entitlement to a distribution from a capital works fund, the vendor could not require a purchaser to make an adjustment in anticipation of such a right. Prior to the 2015 Act capital works funds were called sinking funds. Section 77 Strata Schemes Management ... ”

“ Rates depend upon land use. Commercial use attracts higher rates. Owners of residential or farming property that is zoned for commercial use may apply to postpone higher rates whilst the use remains residential or farming. The postponed amount remains payable, with interest, if the use is changed ... ”

“ Generally2 Period of possession2 ”

“ Possession of land has long been regarded as an indication of ownership and the law has formalised this acknowledgment in the principle of adverse possession. Thus a person who has occupied the land of another may, in certain circumstances, prevent the true owner from reclaiming that land. The ... ”

“ The period of possession required to bar title of persons other than the Crown is twelve years. Section 27(2) Limitation Act ”

“ The application is made to the Registrar-General. Section 45D Real Property Act ”

“ The applicant may rely on possession of some third party provided that the applicant can show assignment of those possessory rights by the predecessor in title to the applicant. Although such transfer is usually evidenced by an assignment of possessory rights, a formal document is not absolutely ... ”

“ By adverse possessor Although it would appear that a person claiming pursuant to adverse possession does have a caveatable interest, it is not recommended that a caveat be lodged unless the claim is ‘cast iron’, as this will put the registered owner on notice and may allow the registered owner to ... ”

“ The basic rule is that possessory rights will not be lost by an acknowledgment of the true owner’s documentary title on the basis that once a title is lost it cannot be revived. But that rule may change if the parties are involved in negotiations and the dispute is settled by a compromise that ... ”

“ Adverse possession is virtually impossible against the Crown, statutory authorities and councils. Section 45D(3) Real Property ActSection 170 Crown Lands Act ”

“ An adverse possessor is denying the person with the legal right to possession the enjoyment of the land. If the property is leased, it is the tenant who has the right to possession and it is the tenant’s interest that is being denied. If the adverse possessor remains in possession for the statutory ... ”

“ Adverse possession is essentially a defence to an action for trespass. An owner might trespass on neighbouring land by constructing footing over the title boundary. Clifton Developments P/L v Owners Corporation 1 Plan No. PS 510766U [2012] VCC 695 ”

“ Prior to 1 January 2002, it was not possible to obtain title by adverse possession unless the application related to a whole parcel of land. Seyffer v Adamson & Anor [2001] NSWSC 1132 ”

“ Generally2 Mutual obligations2 ”

“ Parties to a contract for the sale of land have rights and obligations. If one party breaches the contract, rights may arise in favour of the other party. This chapter is concerned with breaches of a minor nature that do not lead to termination of the contract but rather to a claim for compensation ... ”

“ The obligations of the vendor and purchaser are concurrent and mutual. The vendor is obliged to make title and the purchaser is obliged to pay the balance of purchase money, as part of a simultaneous transaction. Both parties must be ready, willing and able to complete their respective obligations ... ”

“ The standard form contract (SFC) does not give a right to damages or compensation generally. Therefore there cannot be an argument that the price payable under the contract can be adjusted by the failure of either party to comply with the contract. The only right is to pursue the common law right ... ”

“ A purchaser may be entitled to claim compensation from the vendor if the vendor breaches an obligation under the contract. The vendor’s primary obligations under the SFC are: to cause the unencumbered legal title to the property to pass to the purchaser without error or misdescription (16.3 and 6); ”

“ Article:Breach of contract - Penalty interest No entitlement to claim interest is included in the standard form contract, although it may exist in additional provisions added to the standard form contract in any particular case. An entitlement to interest exists even in the absence of a provision ... ”

“ Article:Breach of contract - Loss On general contractual principles, a vendor will be entitled to recover losses which flow directly from the purchaser’s breach, or losses which were within the contemplation of the parties - for example, by being identified in the contract. Reasonably foreseeable ... ”

“ The vendor is in breach if the vendor cannot produce the duplicate title at settlement. The standard form contract requires the vendor to give the purchaser all documents of title that relate only to the property – this would clearly include the duplicate certificate of title. ”

“ Traditionally the availability of the original title for searching has been regarded as a problem for the purchaser and did not constitute a breach of contract by the vendor. The problem was especially acute when the bulk of folios of the Register were manual folios. Computerisation will reduce the ... ”

“ Where the time for completion has been made of the essence (whether by a provision in the contract or by the issue of a valid Notice to Complete), it seems to be as to the day rather than as to the hour. If the parties agree to settle at a particular time on settlement day and one party fails to ... ”

“ Normally this will just be a matter of counting the number of days from when settlement should have occurred until the day that it did in fact occur, not counting the day that settlement was due, as the breach did not occur until that day had expired. However, if ”

“ A party in breach of contract may quickly cure that breach and seek to settle to minimise liability for compensation. But practicalities often mean that a party who was able to settle on the due date is not able to settle instantly the breach is cured. For instance, if the breach is caused by the ... ”

“ If one party breaches the contract, the other party has the right to claim damages. But, if the first party cures the breach and it is then discovered that the other party in fact had not been in a position to settle anyway, the party who was in breach should not be liable to pay interest and/or ... ”

“ Disputes often arise when the vendor claims that the purchaser is in breach for not settling, but the purchaser claims that the vendor is in breach by failing to make title. The vendor’s contractual obligation is to ‘cause the legal title to the property (being an estate in fee simple) to pass to ... ”

“ Generally2 Caveatable interest2 ”

“ The Torrens system of land ownership is based on registration of interests on a certificate of title that is absolute proof of ownership. Some interests in land are not capable of being registered and the caveat system creates a method by which such interests may be recorded on title that, while ... ”

“ Section 74F(1) RPA allows any person who claims any interest in land to lodge a caveat on the title. The duplicate title need not be produced. The following estates or interests justify a caveat: an estate in fee simple (equitable owner) ”

“ The following claims have been held inappropriate or insufficient to support a caveat: unsuccessful bidder at an auctionMcConville v ATC (1991) NSW ConvR 55-602HZD P/L v McInnes & Ors [2007] QSC 213 ”

“ Section 23C(2) Conveyancing Act acknowledges that an interest in land may be created by a trust relationship that is not evidenced in writing. This is the common basis for a claim in a matrimonial or de facto situation where the property is registered in the name of one of the parties only. The ... ”

“ A beneficiary of a trust does not have a legal interest in the land, but rather has an equitable interest. This is sufficient grounds for lodging a caveat claiming an interest in fee simple on the basis that the registered proprietor holds the property on trust for the caveator. Paul A Davies ... ”

“ Purchaser’s caveat after exchange As a result of the case Black v Garnock some lawyers have adopted the practice of registering a caveat after exchange and before settlement. It is suggested that this is an unnecessary additional expense for the purchaser in a field where cost competitiveness ... ”

“ A guarantee in writing that includes a charging clause will support a caveat. The charged property may even include ‘after-acquired’ property, being property acquired by the guarantor after signing the guarantee, subject to satisfactory wording of the guarantee and charging clause. Composite Buyers ... ”

“ An agreement that charges the chargor’s land with performance of an obligation, including the payment of money, will support a caveat. Troncone v Aliperti (1994) NSW ConvR 55-703Dominion Lifestyle Tower Apartments P/L v Global Capital Corporation P/L [2004] VSC 307Coast Reo P/L v O’Brien & (2) Ors ... ”

“ A registered proprietor who has lost the certificate of title and fears an improper dealing may lodge a caveat. ”

“ Most standard building contracts include a condition charging the property with payment of any amount due under the contract, and so a builder may lodge a caveat claiming an interest in fee simple as chargee pursuant to an agreement in writing. Griffith v Hodge (1979) 2 BPR 9474Australian Security ... ”

“ The Registrar-General has a duty to prevent improper dealings and has the power to lodge a caveat if improper dealings are suspected. This power exists to protect the Registrar-General and also to protect persons who may suffer from a legal disability, such as infancy or unsound mind. Sections ... ”

“ By selling a property an estate agent may be entitled to be paid a sum of money by the owner of that property. This is no more than a debt and of itself does not justify a caveat. Truefilm P/L v J R Investment Holdings P/L [2004] NSWSC 372 ”

“ Article:Caveats - Tenant's caveats ”

“ A solicitor does owe clear fiduciary duties to its client. Including a charging clause to support a caveat against the client’s property potentially creates a conflict of interest between the solicitor and the client and may be a breach of the solicitor’s duty to the client. Advising the client to ... ”

“ Even though the freehold owner has no direct relationship with the mortgagee of the lease, a caveatable interest arises through the lease. However an option to renew may not be protected by the caveat unless specified in the caveat. Leros P/L v Terara P/L [1992] HCA 22 ”

“ Whilst the burden of a covenant will normally be shown on the title to the servient land, thus securing the rights of the covenantee, a covenant is an interest in land and, if necessary, will justify the lodging of a caveat. Renwarl P/L v Birky [1999] VSC 148 ”

“ Although it may be difficult to exactly identify the land (and some subdividers attempt to discourage individual purchasers from lodging caveats), a purchaser does have a caveatable interest. Jessica Holdings P/L v Anglican Property Trust Diocese of Sydney (1992) 27 NSWLR 140Broster v Brueckner ... ”

“ A caveat does not give the caveator an estate or interest in land; it merely gives the caveator claiming an estate or interest the right to receive a notice from the Registrar-General of the lodgement of any dealing affecting the land. Twenty-one days after notice is given to the caveator, the ... ”

“ A caveat that has been lapsed or withdrawn shall not be renewed by or on behalf of the same person in respect of the same interest without an order of the Supreme Court or consent. Section 74O RPASynergy Concepts P/L v Rylegrove P/L (in liq) (1997) 8 BPR 15,555Cellnet Group Ltd v Grigg [2006] NSWSC ... ”

“ A withdrawal of caveat may be signed by the caveator, or by an authorised agent acting for the caveator. Section 74M(1) RPA ”

“ A transfer by a mortgagee will be registered notwithstanding a caveat by a subsequent mortgagee or chargee unless the caveat specifically objects to such a transfer. Sections 59 and 74H(5)(g) RPA ”

“ If the caveator refuses to withdraw or cannot be located, an application may be made to the Registrar-General for the issue of a notice that the caveat will lapse. This is known as a Lapsing Notice. Form 08LX ”

“ A caveat lodged by a purchaser pursuant to a contract of sale of real estate becomes ineffective and liable to removal if the contract pursuant to which it was lodged is rescinded by either party. The caveat claims an interest pursuant to the contract and the contract is no longer in existence, so ... ”

“ A person lodging a caveat without reasonable cause may be liable to pay compensation. Section 74P RPA ”

“ Failure to lodge a caveat will generally amount to postponing conduct and cause the earlier, unprotected interest to be postponed in favour of a later interest. J & H Just (Holdings) P/L v Bank of New South Wales [1971] HCA 57Person-To-Person Financial Services P/L v Sharari [1984] 1 NSWLR 745 ”

“ Caveats are not normally liable for stamp duty. However a caveat that claims an interest in the land as mortgagee pursuant to an unregistered mortgage is liable for mortgage duty if the mortgage is not stamped. If the mortgage is stamped, the caveat is liable for $10 duty. ”

“ Generally2 Chattel2 ”

“ When a property is sold or leased it will often consist of land and buildings. Those buildings are generally known as improvements and encompass all things attached to the land and the buildings. If the property is sold the purchaser expects to receive all improvements and the ‘doctrine of ... ”

“ ‘movable, tangible articles of property’ - Osborn’s law dictionary ‘movable goods’ - CCH Macquarie law dictionary ”

“ ‘any chattel which has been affixed to land or a building so as to become part of it’ - Osborn’s Law Dictionary ‘a chattel so annexed to land as to be considered part of it’ - CCH Macquarie Law Dictionary ”

“ There are basically two tests to be applied: the degree of annexation; and ”

“ Registration Swimming pools must be registered in the state-wide pool register. Registrations can be completed online free of charge or the local council may register a pool on behalf of a pool owner for a small fee. ”

“ Solar panels are now frequently included in a sale and require special consideration. The NSW Solar Bonus Scheme may apply, which provides for feed-in tariffs to scheme participants. ”

“ Purchaser against vendor The most common dispute is between a vendor and a purchaser in the context of a sale of real estate. The contract includes the land and all improvements, which includes all fixtures that form part of the property but will only include those chattels that are specifically ... ”

“ Generally2 Form of contract2 ”

“ The contract between a vendor and purchaser is the primary document setting out the obligations of the parties. It is an executory document, meaning that it establishes the rights and obligations of the parties to be performed over a period of time, culminating with payment by the purchaser of the ... ”

“ Articles:Contract - Changing the contract by special conditionContract - Contract of sale tweakedContract - New contractContract - Happy Anniversary Whilst no form of contract is prescribed by law, various requirements are prescribed before a contract, once created, can be enforced and various ... ”

“ Formation At the risk of stating the obvious, the long-standing practice in New South Wales, where parties intend to enter into an agreement to sell and purchase land, is for two copies of the contract to be prepared which are in identical form (Allen v Carbone [1975] HCA 14; (1975) 132 CLR 528 at ... ”

“ Whilst no form of contract is prescribed, there is an obligation on a vendor in relation to the proposed sale of residential property to have a proposed contract, including warranties and required documents, in existence prior to advertising the availability of the property for sale. Section 66R ... ”

“ Article:Contract - Trust transactions The fundamental requirement for a contract for the sale of land to be valid and enforceable is that it be in writing and that it be signed by the party against whom it is to be enforced, or by someone authorised to sign on behalf of that person. The standard ... ”

“ As well as satisfying all of the formal requirements, the parties must have intended to be bound by the contract. It may be possible that, while all the formal elements exist, the parties will not be bound to proceed because one or both did not intend that contractual relations should arise. This ... ”

“ A contract will not be binding until one party has made an offer, the other party has accepted that offer, and the acceptance of the offer has been communicated to the party that made the offer. This will generally mean that even if there has been an offer and that offer has been accepted by the ... ”

“ Article:Contract - Electronic signature Only the ‘party to be charged’ is required to have signed the contract. This means that, if the vendor is seeking to enforce the contract against the purchaser, then the vendor needs to prove that the purchaser has signed the contract; and, if the purchaser ... ”

“ The courts are reluctant to presume that parties intended to enter into contractual relations. The best evidence to support the claim that a contract has come into existence is a document signed by both parties or two identical documents each signed by one party, although even then the court may ... ”

“ Contracts may include terms implied by legislation. Some terms cannot be excluded or modified, such as the right to requisition in relation to encroachments that are not disclosed and clearly described. Conveyancing (Sale of Land) Regulation 2017, schedule 2, clause 1 ”

“ Section 54A Conveyancing Act requires a signed document. The equitable principle of ‘part performance’ allows a party who has partly performed a contract that is unenforceable due to lack of compliance with s 54A to enforce the contract. However, the principle is extremely limited in relation to ... ”

“ If one only of joint vendors has signed the contract the requirement of s 54A Conveyancing Act that the contract be signed would mean that any joint vendor who has not signed could not be personally liable. It might nevertheless be argued that the contract can be enforced against the vendor who has ... ”

“ If only one of joint purchasers has signed the contract then the requirement of s 54A Conveyancing Act that the contract be signed would mean any joint purchaser who has not signed could not be personally liable. It might nevertheless be argued that the contract can ”

“ Auction contracts are no different to any other type of contract from this point of view, and until the contract is signed by a party it is not enforceable against that party. There is English authority that an auctioneer has implied authority to sign a contract on behalf of either party. Butt ... ”

“ Parties to a contract may agree to vary the contract. They might also authorise an agent, such as a solicitor, to agree to a variation of the contract but a solicitor’s authority might not extend to variation of significant terms. Iannello v Sharpe [2006] NSWSC 713 ”

“ Documents that are faxed are made when and where the message is received and are enforceable in exactly the same way as original documents. Molodysky v Vema Australia P/L (1989) NSW ConvR 55-446 ”

“ In addition to being formally valid and enforceable, a contract for the sale of land must also satisfy statutory disclosure and warranty obligations. Failure to do so will not make the contract invalid or void. However it may be unenforceable by one party, the vendor, against the other party, the ... ”

“ Exempt contracts Contracts between neighbours to alter boundaries, between co-owners, with various government departments and arising out of a will. ”

“ A purchaser may rescind a contract that fails to comply with the vendor’s disclosure or warranty obligations. There are no restrictions on the purchaser’s ability to rescind for breach of vendor disclosure except that the right to rescind must be exercised within 14 days of the contract. In ... ”

“ Article:Contract - Nomination The common law recognises the purchaser’s right to nominate an alternative purchaser. ”

“ A purchaser remains liable under a nominated contract, the nominee merely being permitted to exercise the purchaser’s rights. An assigned contract results in the nominee standing in the place of the purchaser. A novation is where the original contract is cancelled and the new purchaser enters into ... ”

“ Article:Contract - Rights of nominees The vendor can enforce the contract against the original purchaser and any notice of default must be served on that purchaser. ”

“ Other than the simplest contract (open contract) all contracts will include conditions. The standard form contract contains 29 provisions, the last of which anticipates additional provisions, such as a finance clause, a Foreign Investment Review Board condition, a council consent requirement or a ... ”

“ If the special condition is for the benefit of one party only, then only that party may waive the benefit. If the benefit is waived by that party the contract would proceed as if the condition had been satisfied. Standard form contract 29.3 ”

“ Articles:Contract - Finance conditionsContract - Finance conditions 2 There is no standard finance condition in the standard form contract, however a ‘subject to finance’ condition is common. ”

“ The standard form contract contains a promise by the purchaser that the Foreign Acquisitions and Takeovers Act does not apply. If that is not the case the purchaser will have ”

“ Standard form of contract 29.4 requires each party to do ‘whatever is reasonably necessary’ to satisfy any additional provision. A purchaser who fails to take steps to satisfy a condition will not be entitled to rely on non-fulfilment of the condition as a basis for avoidance of the contract. ”

“ Whilst provision 29 of the standard contract requires a party to do what is reasonably necessary to register the plan even if this express obligation on the parties to secure satisfaction of any special condition is deleted, there may well be an implied obligation to do so. If a plan is not ... ”

“ A purchaser who signs a contract and pays a deposit acquires a lien over the land that is the subject of the contract for the amount of the deposit. This lien arises upon exchange of contracts, even if the contract is conditional on satisfaction of a special condition. Chattey and Another v ... ”

“ An option to purchase land is a document that creates an interest in land. As such it will not be enforceable unless it is in writing and signed. Section 54A CA ”

“ Options may be entered into in relation to different types of land, but options relating to the purchase of residential property attach statutory disclosure and warranty obligations similar to those attaching to contracts for the sale of land. These obligations require such options to include: ”

“ Exempt options options to purchase giving rise to an exempt contract. ”

“ Either party may rescind an option (or the contract resulting from the exercise of the option) if the option fails to comply with the vendor’s disclosure or warranty obligations. There are no restrictions on a party’s ability to rescind for breach of vendor disclosure except that the right to ... ”

“ In addition to complying with disclosure and warranty obligations, options for the purchase of residential land must: be made by way of exchange of counterpart documents, one signed by the vendor and the other signed by the purchaser; and ”

“ An owner of land may grant an option to purchase, a right of first refusal or a right of pre-emption. A right of first refusal and a right of pre-emption differ from an option in the strict sense. These rights are principally contractual and frequently appear in leases. Such a right is ”

“ Articles:Terms contractsTerms contracts 2Terms contracts 3 A vendor terms contract will be subject to the Consumer Credit Code if it requires payment of interest and relates to a domestic transaction. ”

“ The Law Society of NSW and Real Estate Institute of NSW publish an agreed residential conveyancing protocol. ”

“ Generally2 Statement2 ”

“ The basic principle of contract law is that, once a contract has been entered into, it is binding on the parties. In relation to the sale of land there is the additional requirement that the contract must be in writing and signed by the parties, but once that formality has been achieved the ... ”

“ A cooling off statement, in the prescribed form, must be included in every contract for the sale of residential property. Section 66X Conveyancing Act ”

“ The cooling off right: applies to residential property (which can include vacant land, houses in the course of construction or off the plan sales, but excludes land of more than 2.5 hectares)Section 66Q Conveyancing Act ”

“ The exceptions to cooling off are: if the property was sold at auction or, on the day of the auction, if the property was passed in at auction; ”

“ A purchaser may agree to waive or vary (by reduction) the cooling off right. A certificate must be signed by a solicitor who does not act for the vendor (nor a solicitor who is employed by or in partnership with the solicitor acting for the vendor) certifying that the solicitor has explained the ... ”

“ The cooling off right may be extended beyond the statutory five business day period by an additional provision in the contract, or by the vendor in writing before the end of the statutory period. Section 66S(4) Conveyancing Act ”

“ Business day means any day except Saturday and Sunday or a day that is a public or bank holiday throughout the state. Section 66P Conveyancing Act ”

“ A purchaser may rescind the contract during the cooling off period by serving a notice. The purchaser is entitled to a refund of the deposit paid, less 0.25% of the purchase price which is forfeited to the vendor. Section 66U and section 66V Conveyancing Act ”

“ The notice must be in writing and must be served on the vendor, vendor’s solicitor or agent before the expiration of the cooling off period. There is no particular form for the notice and it can just be in the form of a letter. The notice must be signed by the (or each) purchaser or by their ... ”

“ Similar provisions apply to options to purchase residential property. Part 4 Division 9 Conveyancing Act ”

“ Generally2 Creation of joint tenancy2 ”

“ If more than one person owns land then those owners are co-owners. The common law recognises two forms of co-ownership: joint tenancy; and ”

“ The legal test is to establish that the four unities exist. These are the unities of possession, interest, time and title. Most conventional transactions will satisfy these requirements and the common law presumes that a joint tenancy exists unless a contrary intention exists. This presumption is ... ”

“ If any of the four unities are absent, the co-ownership must be a tenancy in common. This however is rare. A tenancy in common will usually exist as a result of the presence of words of severance. If words of severance are used in the creation of the interest then it must be a tenancy in common, ... ”

“ The principal difference between a joint tenancy and a tenancy in common is the right of survivorship. As joint tenants universally own the whole of the property, the death of one of those joint tenants means that the other surviving joint tenant(s) automatically own(s) the whole of the property ... ”

“ Because of the consequences of the right of survivorship, the choice between joint or in common can be very significant. A solicitor who fails to advise a client of the choices is negligent. Joint tenancy will usually be adopted in matrimonial situations where the parties would intend that the ... ”

“ A joint tenancy will be created if the four unities are present, no words of severance were used in creation, and there was no contrary intention. However, the joint tenancy may still be converted to a tenancy in common by various actions of the parties after creation. Such actions are described as ... ”

“ It is possible for joint tenants to agree to sever and a transfer to achieve this purpose signed by all joint tenants may be registered. Such a transfer puts into effect a common intention and will be enforced by the court, even if not finalised prior to the death of one party. It is possible to ... ”

“ The term ‘partitioning’ is used to refer to circumstances where property that is held by co-owners is separated or divided in order to bring an end to the co-ownership arrangement. Co-owners may agree to terminate their co-ownership by either dividing the property between them or by selling the ... ”

“ There is no problem with a corporation being one of two or more tenants in common, but the right of survivorship does not sit too comfortably with the permanent nature of a corporation. However, the Conveyancing Act specifically recognises the ability of a corporation to be a joint tenant and ... ”

“ A joint tenant is entitled to mortgage that joint tenant’s interest in the property. Katsaitis v Commonwealth Bank of Australia (1987) 5 BPR 12,049 ”

“ One tenant in common cannot unilaterally mortgage another tenant in common’s interest in the property, although one tenant in common can certainly mortgage that tenant in common’s interest in the land. Caldwell v Bridge Wholesale Acceptance Corporation (Aust) Ltd NSW Sup Crt 15/7/93Westpac Banking ... ”

“ If there are two or more co-owners, then each has an equal claim to the title deeds. If both claim the title deeds from the person in possession of them, that person should interplead. If, however, one of the co-owners has possession of the title deeds with the knowledge of the other co-owner and ... ”

“ If one joint proprietor/borrower has forged the signature of another joint proprietor, the lender’s interest will be indefeasible upon registration. However the mortgage will only be ”

“ Generally2 Execution of documents2 ”

“ Corporations Act 2001 is the principal Act regulating corporations. The law attempts to treat corporations the same as individuals, but the fact that corporations can only make decisions and perform actions through individuals does mean that there are some differences. For instance, a corporation ... ”

“ Execution is the word used to describe the formal process of signing a document as a deed. A deed is binding whether consideration exists or not and is executed by the legal person (individual or corporation) affixing its seal to the document. An individual does this by personally affixing a seal, ... ”

“ A person dealing with a corporation is entitled to presume that the internal affairs of the corporation are in order. The appointment of an officer of the corporation is presumed to have been made in accordance with the constitution of the corporation. A document that purports to be signed by an ... ”

“ The Corporations Act specifically authorises an individual, acting with the express or implied authority of the corporation, to enter into contracts on behalf of the corporation. This power may be exercised without the use of the common seal, thus an authorised individual may bind the corporation ... ”

“ Although the previous corporations Act specifically authorised a corporation to appoint an agent in writing under the seal of the corporation, there is no such specific power in the current Act. However, a corporation has all the powers of a legal person and may therefore appoint an attorney, by ... ”

“ A person dealing with a corporation is entitled to presume that a person held out by the corporation to be an officer or agent of the corporation has the power to perform duties customarily performed by such an officer. Section 128 Corporations ActOris Funds Management Ltd v National Australia Bank ... ”

“ Most constitutions will empower directors to conduct the affairs of the corporation. This is usually done by way of directors’ meetings, either formal or informal, and so it is customary for directors to sign documents on behalf of the corporation at, or as a consequence of, a meeting of directors. ... ”

“ A contract for the sale of land must be in writing and signed by the party to be charged or by a person authorised in writing to sign on behalf of that party. Section 54A Conveyancing Act ”

“ A transfer does not have to be sealed but it has to be signed if it is not sealed. The LPI approved forms provide for signatures to be witnessed. It would therefore appear that a company could simply sign a transfer (by a suitably authorised individual) and that signature could be witnessed by any ... ”

“ A director can only appoint an attorney to act on behalf of the director in matters relating to a corporation if the constitution authorises the director to do so. Although most constitutions do permit the appointment of an alternate director, not many permit the appointment of an attorney to act ... ”

“ Joint tenants enjoy the right of survivorship, meaning that the surviving proprietor succeeds to the interest in the property held by a deceased joint proprietor. A corporation can be a joint proprietor, notwithstanding that a corporation can never die. Section 25 Conveyancing Act ”

“ Stamp duty on the transfer of land is much higher than stamp duty on the transfer of shares. If a corporation owns real estate as its only asset, then the sale of the corporation would achieve the same outcome as the sale of the real estate but would attract less stamp duty. The downside of this is ... ”

“ All legal entities are capable of creating interests in, or charging their assets in favour of, third parties. A purchaser of a charged property will take subject to the rights of the chargee, if the purchaser has notice of the charge. However the principle of indefeasibility will allow the ... ”

“ Given that a purchaser will be subject to the interest of a prior chargee until registration, the purchaser of old system property may insist upon the vendor satisfying the purchaser that the charge has been withdrawn as part of the vendor’s obligation to make title. This may be achieved by the ... ”

“ The purpose of written confirmation that the old system land is no longer subject to the charge is to provide the purchaser with a defence should a claim be made by the chargee after settlement. The withdrawal need not be registered at the ASIC. The purchaser need not insist on a formal withdrawal ... ”

“ The chargee may also be a mortgagee of the property and will provide a discharge of mortgage at settlement. It is sometimes argued that a separate withdrawal of charge is not necessary, but a discharge of mortgage only discharges the vendor’s obligations under the mortgage document and cannot ... ”

“ The ASIC has the power to deregister a corporation that has not complied with the Corporations Act. This generally occurs when a corporation fails to lodge annual returns. The corporation ceases to be a legal person and all of the assets of the deregistered corporation vest in the ASIC. A ... ”

“ Although ASIC has power to act on behalf of a deregistered corporation, it will only use that power to perform administrative functions and would not complete a contract, which requires the exercise of discretion. Section 601AE Corporations Act ”

“ ASIC has discretion to reinstate if the corporation has been deregistered as the result of administrative procedures that can be rectified; otherwise an application to the Supreme Court is necessary. ”

“ A certificate of reinstatement from the ASIC or an authenticated copy of the court order would prove reinstatement. ”

“ It has been held that a registered instrument executed on behalf of a deregistered company does not qualify as indefeasible as the company did not exist at the time of execution. ANZ Banking Group Ltd v Barns (1994) 13 ACSR 592 ”

“ Generally2 Proprietary right2 ”

“ Covenants are the first example of town planning. They are used to limit the way property owners can utilise their land. The word ‘covenant’ has a wider meaning and basically means ‘promise’, but in the context of conveyancing it is used to describe restrictions that are placed over land use. In a ... ”

“ A covenant is essentially contractual in nature, with one landowner agreeing with another landowner to do or not to do some act. As a contract it is enforceable between the original contracting parties; however, as it is a contract that relates to land it may also create an interest in the land. In ... ”

“ An easement is a true proprietary right that has been recognised for centuries. An easement gives the owner of the land that benefits from the easement the positive right to go outside the boundaries of their land and enjoy the benefit of the land of another - for instance, the right to use a ... ”

“ As a covenant is essentially a contract between two people it can be positive or negative. However, neither common law nor equity will enforce the burdens of a positive covenant on a third party so positive covenants had, until recently, little practical importance. Tulk v Moxhay [1848] EWHC Ch ... ”

“ To expand beyond mere contractual enforceability between the original parties and to be binding on successors in title, the covenant was said to have to ‘touch and concern the land’. This is to be contrasted with a mere personal benefit in favour of the covenantee which, while enforceable between ... ”

“ The traditional view is that there must be both dominant and servient tenements and at common law they must be in different ownership, as mutuality of ownership will result in a merger of the covenantor’s obligations. Kerridge v Foley (1964) 82 WN (NSW) 293Gyarfas v Bray (1989) 4 BPR 9736 – Torrens ... ”

“ A covenant may be created in a stand-alone document or as part of another transaction between the parties - for instance, as part of a transfer from the covenantee to the covenantor. Public authorities can impose restrictive as well as positive covenants under ss 88D and 88E Conveyancing Act. A ... ”

“ The court will look at the substance rather than the form of the words and will give words their normal meaning, rather than regarding them as terms of art. Precision in setting out the extent of the restriction is required. Mogensen v Portuland Developments P/L (1983) NSW ConvR 55-116(building ... ”

“ A covenant is for the benefit of the owner for the time being of the dominant land and may be enforced by that owner against the owner for the time being of the servient land. Burke v Yurilla SA P/L; Attorney General (SA) (intervening) [1991] SASR 382Forestview Nominees P/L v Perpetual Trustees WA ... ”

“ There is potential tension between the planning objectives of local councils (as evidenced in environmental planning instruments such as local environmental plans and development consents) and the objectives of subdividers to maintain the ‘quality’ of the development (frequently achieved by the use ... ”

“ Articles:Covenant - Removal of covenantsCovenant - Removal of covenants 2 By agreement ”

“ Where a materials covenant prohibits the use of any material other than brick or stone with a tiled or slate roof, the use of brick veneer breaches that covenant. Jacobs v Greig [1956] VicLawRp 92 ”

“ Generally2 Defect in title2 ”

“ All properties have defects. Vacant land may have filling or contaminated soil or be liable to flooding. Buildings on land may be in breach of building regulations or planning laws, badly constructed or simply showing the effects of time. Such defects relate to the quality of the land or the ... ”

“ A title that is subject to an easement has a title defect, but if that easement is registered on the title and therefore apparent, the purchaser will have no grounds for complaint. Likewise occupation of adjoining land outside the title boundary is capable of discovery by inspection. Such defects ... ”

“ Although a purchaser may avoid a contract on the basis of a latent title defect, the basic rule that still applies to the sale of real estate in New South Wales is ‘buyer beware’ (caveat emptor) and any defect other than a latent title defect will not benefit the purchaser. Once a purchaser has ... ”

“ Illegal works are simply one variety of defects in quality and are treated the same as any other such defect. The purchaser must conduct an inspection of the property before signing the contract, and once the contract is signed the purchaser accepts the condition of the property. The fact that ... ”

“ Articles:Defects - Occupancy and insurance certificatesDefects - Essential safety measures The existence of substantial cracks in the brickwork (Kadissi v Jankovic [1987] VicRp 20). ”

“ Notices served on or before the contract date are the responsibility of the vendor and notices served after the date of the contract are the responsibility of the purchaser. Standard form contract 11.1 ”

“ A defect in quality will not assist the purchaser on the basis of caveat emptor (buyer beware). But there are exceptions to that principle which, if satisfied, will allow the purchaser to rely on the quality defect to avoid the contract or claim damages. These exceptions are: Agreement ”

“ The basic principle of caveat emptor is that a vendor is not responsible for quality defects, even if those defects are known to the vendor or indeed were caused by the vendor. It follows from this that a vendor is under no obligation or duty to inform the purchaser of ”

“ Misrepresentation by silence has been recognised under the Competition and Consumer Act (formerly the Trade Practices Act) and Fair Trading Act as misleading and deceptive conduct. Provided that the Acts apply, they give a purchaser who can prove misrepresentation by silence the right to avoid the ... ”

“ A vendor will be vicariously responsible for a misrepresentation made by the agent. Zhang v VP302 SPV & Ors [2009] NSWSC 73 ”

“ Generally2 Deposit or penalty2 ”

“ The deposit is a payment made by the purchaser at the commencement of a transaction to indicate that the purchaser proposes to complete the transaction. In a conveyancing transaction the deposit is usually paid at the time that the contract is signed by the purchaser and is usually 10% of the ... ”

“ A condition that a party to a contract shall suffer a penalty for breach of contract will not be enforced. For instance, where a contract provides that a party must pay $1 million if the party breaches the contract, the contract will not be enforced. A condition that the purchaser will forfeit the ... ”

“ The standard form contract provides that the deposit is to be paid to the deposit holder nominated in the contract as stakeholder. The stakeholder holds on trust for the vendor and purchaser pending completion of the sale or earlier rescission or termination of the contract. This means that the ... ”

“ The deposit is usually paid when the purchaser signs the contract, but the parties may agree to other arrangements. The deposit is usually 10% of the purchase price, but may be such other amount as is agreed by the parties. The deposit is payable upon the making of the contract (the contract date) ... ”

“ The contract may provide for the deposit to be invested, in which case the deposit holder shall invest the deposit with an approved institution and interest shall be shared equally between the parties to the contract. Standard form contract 2.9 ”

“ Articles:Deposit - Deposit releaseDeposit - Deposit release - a solution? ”

“ If the deposit is not paid in accordance with the contract the vendor may terminate the contract for breach of an essential term. The right to terminate is lost once the deposit is paid. Standard form contract 2.5 and 9.1 ”

“ It is possible for the parties to agree that the deposit will be non-refundable. Gribbon v Lutton [2001] EWCA Civ 1956 ”

“ The standard form contact distinguishes between rescission (meaning rescission from the beginning) and termination (meaning termination for breach). Usually, where a party rescinds, the purchaser is entitled to a refund of the deposit and any other money paid under the contract. Standard form ... ”

“ The court has a discretionary power to relieve a defaulting purchaser from forfeiture. However this power is exercised sparingly. Section 55 Conveyancing ActRomanos v Pentagold Investments P/L [2003] HCA 58 (no relief for purchaser one day late)Article (2005) LSJ August 68 ”

“ A deposit bond is a guarantee by an insurer that a purchaser will pay the deposit when it falls due at completion or upon termination. The purchaser pays an insurance premium and a certificate of guarantee is given to the deposit holder or the vendor’s solicitor. No money is paid until settlement, ... ”

“ Generally2 Risk2 ”

“ A contract for the sale of land is an executory contract, meaning that the parties will carry the contract into effect some period of time after the contract is made. This may be contrasted with a contract for the sale of an ice-cream, which is completed at the time that the agreement is made. This ... ”

“ The common law held that risk passed upon sale and that, while the vendor was in the position of a trustee for the purchaser during the contract period, the risk of any deterioration to the property during that period fell upon the purchaser. Statute reverses that common law position and states ... ”

“ The vendor’s primary obligation is to deliver vacant possession of the property. ”

“ Whether the existence of such rubbish would entitle the purchaser to delay settlement for failure to deliver vacant possession will depend on the purchaser being able to establish that the rubbish amounted to ‘a substantial impediment to the undisturbed enjoyment of the property’. Point Glebe P/L v ... ”

“ A purchaser may rescind a contract for the sale of land if the property is ‘substantially damaged’ after the making of the contract and before risk passes to the purchaser. Section 66L Conveyancing Act ”

“ A purchaser may claim a reduction in the purchase price if the property is damaged after the making of the contract and before the risk passes to the purchaser. If the purchaser’s claim for a reduction is not resolved prior to completion, the purchaser has the right to claim the amount of the ... ”

“ The purchaser’s right to rescind for ‘substantial damage’ or make a claim for ‘damage’ does not extend to deterioration in the property in the nature of ‘fair wear and tear’. Standard form contract 10.1.4 ”

“ The Supreme Court has jurisdiction to deal with disputes about the passing of risk in relation to damage to the property. A dispute may relate to the amount by which the purchase price is to be reduced; or whether the property has been substantially damaged within the meaning of s 66J(2); or where ... ”

“ Removal or variation of the purchaser’s rights in relation to substantial damage (s 66L) or damage (s 66M) is prohibited in relation to a dwelling house. Section 66O Conveyancing Act ”

“ Article:Lease - Abandoned goods See also Part 4.2 Australian Consumer Law and Fair Trading Act 2012 ”

“ Although the risk remains with the vendor under the contract, there are still grey areas. A purchaser is entitled to rescind if the house is substantially damaged or to compensation if it is destroyed, but this does not cover all possibilities. ”

“ Generally2 Two properties2 ”

“ An easement is an interest in land that allows one person to make use of land owned by another person for a specific reason. It is a positive benefit to the person who enjoys the easement and a limitation on the ownership of the person whose land is subject to the easement. A typical example is an ... ”

“ With one exception, there must always be a dominant tenement (property which enjoys the benefit of the easement) and a servient tenement (property which carries the burden of the easement). There may be more than one dominant tenement - for instance, in relation to a sewer easement that benefits a ... ”

“ An easement in gross will have a servient tenement, being the property over which the easement exists, but will not have an identifiable dominant tenement. An easement in gross can only be created in favour of a government authority or service provider, such as a municipal council or an electricity ... ”

“ At common law, it was fundamental to the existence of an easement that the dominant and servient tenements be in different ownership. If the two properties came into common ownership the easement merged and disappeared in a legal sense. This principle has been modified by statute. ”

“ Easements may be created in five ways. By statute ”

“ By merger If both dominant and servient tenements come into the same ownership then at common law the easement will cease to exist. This principle has been modified by statute. ”

“ Some easements may require maintenance or repair - for instance, an easement of way may need to be maintained to allow continuous passage. If the easement was created in writing the document may determine liability for maintenance but, in the absence of direction in the document, it is unclear ... ”

“ Frequently the drafter of one of the more usual types of easement will refer to a short form of expression which is expanded in the Conveyancing Act. Four common types of easements have had short forms in existence since 1931. A further eleven types of easements have had short forms added in 1996. ... ”

“ The extent to which the easement can be used, and the continued use of the land by the owner, can also be the subject of dispute. S S & M Ceramics P/L v Kin (1996) 2 Qd R 540 - no right to use laneway for unloadingRobmet Investments P/L v Don Chen P/L (1997) 8 BPR 15,461 - did include right to ... ”

“ A profit a prendre is a right to enter another person’s land and take away part of the soil or the natural produce of that soil. This may include, for instance, crops, timber, soil or minerals. The creation and extinguishment of profits a prendre are broadly similar to the procedures applicable to ... ”

“ Generally2 Obligations2 ”

“ The role of an estate agent has long been governed by legislation. For many years the relevant legislation was the Property, Stock and Business Agents Act 1941. That Act was repealed and replaced by the Property, Stock and Business Agents Act 2002, which together with the Property, Stock and ... ”

“ An agent must be licensed, and have a written agreement signed by or on behalf of the principal and the licensee. A copy of the agency agreement must be served on the principal within 48 hours after the agreement is signed. Sections 8, 9, and 55 Property, Stock and Business Agents ActHawk Australia ... ”

“ A number of the prescribed terms applying to all agency agreements deal with the authority of the agent and the principal. In particular: The principal must warrant that the principal has authority to enter into the agency agreement. ”

“ The details of the vendor’s agent are required to specify who holds and invests the deposit under clause 2 and who holds money if there is a claim under clause 7. If more than one agent is involved, you need to distinguish between the listing agent (the one who has the agency agreement with the ... ”

“ In New South Wales, the agent generally earns commission by: procuring a purchaser who enters into a contract which proceeds to completion; and ”

“ Article:Estate agent - Agent's commission If the sale does not proceed to completion - for example, if a purchaser exercises cooling off rights, or if the vendor terminates the contract for breach of an essential provision - the agent will not be entitled to commission. In some limited ... ”

“ Where the agency agreement relates to the sale of residential property and the agreement is for a fixed term which exceeds 90 days, the agreement must include a term that entitles the principal to terminate the agreement (without penalty) by giving 30 days notice in writing to the agent at any time ... ”

“ The terms of an agency agreement can include provisions that make commission payable if the property is sold after the expiration of the authority period to a person who was ‘introduced to the property’ during the authority period, even if the agent is not directly involved in negotiating the sale. ... ”

“ A contract for the sale of land will not be enforceable against a party unless signed by the party against whom the contract is to be enforced or on by someone lawfully authorised to sign. Section 54A Conveyancing Act ”

“ An agent who provides financial or investment advice to a person in connection with a sale or purchase of land must provide warnings and information to that person. The warnings and information relate to the advice being general only and not taking into account the individual circumstances of the ... ”

“ The holder of a licence is prohibited from acting for both the buyer and the seller of land at the same time. Section 48 Property, Stock and Business Agents Act ”

“ The Act allows a real estate agent or an associated person to obtain a beneficial interest in a property listed by the agent, but only with the informed consent of the client, and with an overriding obligation on the person obtaining the interest to act fairly and reasonably. Section 49 Property, ... ”

“ A licence is required for carrying on business as an agent for a real estate transaction. That phrase is widely defined to include sale and purchase. There was no specific recognition of a ‘buyer’s agent’ under the former Act. Now, the holder of a licence or certificate of the appropriate class can ... ”

“ The Act requires an agent acting on the sale or purchase of land to disclose to the client (and where the agent is the seller’s agent, to any prospective buyer) details of any personal or ”

“ An agent owes a fiduciary duty to its principal. In the normal situation the agent’s principal is the vendor and the agent will not owe a fiduciary duty to the purchaser, although the agent will be liable to the purchaser for negligence or misrepresentation. An agent has a statutory duty not to ... ”

“ Article:Estate agent - Agent beware Although the basic principle of property law is caveat emptor (buyer beware), there is no doubt that an agent will be responsible to the purchaser for any loss flowing from a misrepresentation made by the agent. This may be on the basis of the common law, ... ”

“ A real estate agent must not offer residential property for sale unless the agent holds a copy of the proposed contract for sale, the vendor disclosure documents required to be attached to the contract, and a copy of any proposed option agreement. Section 63(2) Property, Stock and Business Agents ... ”

“ The Act contains detailed provisions regarding the conduct of auctions of real estate and livestock. Matters dealt with include the prohibition of certain collusive practices, record keeping requirements, misrepresentations by or on behalf of the auctioneer and the supply of information by the ... ”

“ The Act and regulation contain additional provisions about the conduct of auctions of residential property or rural land. Those provisions were included to address concerns about the practice of ‘dummy bidding’. The Act restricts a vendor to one and only one bid, and limits the way in which the bid ... ”

“ Generally2 Threshold issues2 ”

“ GST (goods and services tax) is meant to impose a tax of 10% on consumers, but it is in truth a tax on suppliers, requiring the supplier to remit one-eleventh of the price to the Australian Tax Office (ATO) as a tax on the supply. The principal Act governing GST is A New Tax System (Goods and ... ”

“ Not all supplies attract GST. The four threshold requirements are: Consideration: This may be monetary or otherwise, but not a gift. ”

“ By far the most significant threshold issue is whether the supplier is engaged in an enterprise. The concept of an enterprise connotes activities conducted on a regular, recurring basis with a view to making a profit. On this basis the sale by private individuals of their family home will not be an ... ”

“ GST only applies to supplies made by a registered entity, or an entity obliged to be registered. However it is dangerous to accept an argument that, as the vendor or landlord is not registered, GST is not payable. Certainly that may in some cases be a true statement - for instance, if a landlord ... ”

“ It is important to remember that a supplier making a taxable supply is obliged to deliver a Tax Invoice. If a tax invoice is not issued at the time of supply, the supplier must issue a tax invoice within 28 days of being requested to do so by the recipient. Section 29-70 GST Act ”

“ Farm The farming business must have been carried on for five years before sale, but it need not have been carried on as such by the present vendor. The purchaser only needs an intention that a farming business be carried on; again that need not be personally carried on. ”

“ Unless an exemption applies, the sale of real estate will be a taxable supply if the transaction satisfies the threshold requirements. If it does not satisfy the threshold requirements on the basis that it is a ‘non-enterprise transaction’, then GST will not be payable. This means that a ‘mum and ... ”

“ Article:GST - Margin scheme The margin scheme has two applications: ”

“ The 2008 Budget papers foreshadowed significant legislative amendment to the margin scheme. These foreshadowed changes are incorporated into the GST legislation by the enactment of Sch 1 to the Tax Laws Amendment (2008 Measures No 5) Act 2008.  Those amendments took effect from 8 December 2008, ... ”

“ The ATO takes the view that, if GST is payable on the contract price, then GST is also payable on the rates, as the rates form part of the supply. If the rates have been paid by the vendor before settlement and there is an adjustment in favour of the vendor, then GST is payable on the increased ... ”

“ GST is payable on supply, which usually equates to possession given at settlement. It is unlikely that early possession will advance the time for payment of GST. ”

“ Usually, a mortgagee exercising the power of sale will be doing so in the course of an enterprise and would be making a taxable supply. This would be the case even if the mortgagor would not have been making a taxable supply on sale. In rare cases a mortgagee may not be making a taxable supply ... ”

“ A tenant is not liable to pay GST or reimburse a landlord for GST payable by the landlord unless the lease so provides. One way that the liability can be passed on to the tenant is through an outgoings clause. An outgoings clause will not extend to make the tenant liable for GST unless it refers to ... ”

“ A vendor who forfeits a deposit upon default by a purchaser is liable to pay GST on the deposit. Commissioner of Taxation v Reliance Carpet Company P/L [2008] HCA 22 ”

“ The contract price may be rectified if it does not truly reflect the agreement of the parties in relation to the GST consequences of the sale. Moobi v Les Gunn Properties P/L [2008] NSWSC 719See also Cityrose Trading P/L v Booth & Anor [2008] VSC 495 ”

“ Generally2 Home Building Act 19892 ”

“ At common law a builder who constructs a building will have contractual and tortious duties. The contractual duties will be owed to a party with whom the builder enters into a contract in relation to the building (the owner of the land) and tortious duties will be owed to those who are reasonably ... ”

“ Warranties – Section 18B The statutory warranty period is 6 years for a breach that results in a major defect and 2 years for any other defect. ”

“ Generally2 Legal interest takes priority2 ”

“ The law recognises that a number of interests in a piece of land may exist at any one time. Where two or more interests exist in the same piece of land, a method of determining how those interests relate to each other must be established. This will determine the order in which those interests ... ”

“ The first priority rule is that a legal interest prevails over all other interests. In the Torrens system, an interest will only be a legal interest if it is registered on title. The Torrens system is a system of title by registration, not just a system of registration of title. Breskvar v Wall ... ”

“ The second priority rule is that in a competition between two otherwise equal interests, the first in time prevails. In the Torrens system, time refers to the time of registration on title. Thus, in a dispute between two registered interests, both of which are legal interests by virtue of their ... ”

“ The third, and often determinative, consideration in determining priority is the conduct of the parties. This conduct may be overt, in that the parties actually achieve a change in priorities, or it may be implied from the conduct of the parties. An example of a deliberate or overt change is a ... ”

“ The most obvious example of conduct that justifies a court in overturning the priority of registered interests is fraud. At common law a fraudulent document was a nullity, of no effect. An interest gained by fraud or forgery was invalid and unenforceable and any person affected by such an interest ... ”

“ Given that fraud defeats indefeasibility, the first question is – whose fraud? There is no doubt that the person who committed the fraud will be denied indefeasibility and their registered interest will be set aside. The question is whether the fraud of another person, one step removed from the ... ”

“ Applying the three priority rules to disputes between registered interests results in: Legal interest prevails both are registered, therefore both are legal. ”

“ Continuing to consider disputes only between competing registered interest holders, even if fraud cannot be established, a subsequently registered interest holder may still be able to challenge the priority of a prior registered interest on the basis of an in personam right. These rights arise out ... ”

“ The Torrens system rewards registered interests with indefeasibility, but that does not mean that it does not recognise unregistered interests. In personam rights are merely one example of rights relating to land that are recognised and enforceable notwithstanding that they are not registered. ... ”

“ Resolution of priority disputes between competing unregistered Torrens system interests does not involve the concept of indefeasibility, because indefeasibility only attaches to registered interests. These disputes are resolved according to the general law principle that all else being equal, the ... ”

“ Indefeasibility is a powerful concept. Even a document that would otherwise be void is protected by registration. Breskvar v Wall [1971] HCA 70 ”

“ A person who suffers a financial loss as a result of the operation of the Torrens system may, subject to some limited exceptions, make a claim against the Assurance Fund for compensation. Section 129 Real Property Act ”

“ If one joint proprietor/borrower has forged the signature of another joint proprietor, the lender’s interest will be indefeasible upon registration. However the mortgage will only be enforceable against the ‘innocent’ joint proprietor to the extent of the mortgage debt, so reference must be had to ... ”

“ This Act makes the most far-reaching changes to the two key property law statutes in New South Wales for over two decades. The Amendment Act amongst other things amends the central indefeasibility section of the Real Property Act – s 42 – by identifying 33 provisions in 23 Acts where ... ”

“ Generally2 Personal insolvency2 ”

“ The consequences of the owner of real estate becoming insolvent are significant. These consequences ripple through to affect all those parties who have a relationship with the insolvent, including co-owners, mortgagees, tenants and simple creditors. The basic effect of insolvency is to remove from ... ”

“ Personal insolvency is governed by the Bankruptcy Act, which provides two layers of insolvency, the first being a half-way house involving a formalised arrangement with creditors and the second involving formal bankruptcy. A person will be presumed to be insolvent if that person is unable to pay ... ”

“ A person who is unable to pay his or her debts may be technically insolvent but may not need to proceed to formal bankruptcy. A number of alternatives are available under part X of the Bankruptcy Act 1966. Deed of assignment ”

“ If the insolvent is unable to reach agreement with creditors, then bankruptcy is the last alternative. There are two ways bankruptcy may be achieved. Voluntary bankruptcy ”

“ The trustee in bankruptcy becomes the legal owner of all of the bankrupt’s assets. A caveat may be lodged to immediately protect the trustee’s interest and a bankruptcy application (form 04BAP) lodged to transfer real estate into the name of the trustee. There is no longer a requirement to provide ... ”

“ The date of appointment of a trustee is not the date of commencement of bankruptcy. The bankruptcy ‘relates back’ to the first act of bankruptcy committed by the bankrupt in the six months preceding the date of presentation of the petition. By this principle the trustee may ‘claw back’ certain ... ”

“ Voluntary transactions Voluntary transactions that occurred within a period of two years before the date of commencement may be clawed back, unless made bona fide. Some voluntary transactions up to five years prior to commencement may also be clawed back in certain circumstances. ”

“ Apart from the limited exceptions relating to corporate insolvency, secured creditors are not affected by insolvency of the debtor and may proceed to realise the security if default occurs. s 5 and s 58(5) Bankruptcy Act 1966 ”

“ The legal personal representative may lodge a voluntary petition or a creditor may lodge a creditor’s petition. All assets of the estate are vested in the trustee and the legal personal representative merely assumes the role of a creditor of the estate, on trust for the beneficiaries. ”

“ A trustee is able to disclaim assets that are burdened with onerous obligations. Thus an insolvent’s representative may disclaim a lease, thereby ending the representative’s obligations. This disclaimer does not reduce any liability that existed prior to disclaimer, nor prevent an action for ... ”

“ All of a bankrupt’s property vests in the trustee, with minor exceptions. All court proceedings by a bankrupt are stayed, with the exception of some personal injury claims, until the trustee elects to proceed. ”

“ Corporate insolvency is governed by the Corporations Act, including reference to the Bankruptcy Act. It has a number of layers consisting of various levels of formalised arrangements with creditors and culminating in winding up, which is the corporate ”

“ Scheme of arrangement These may vary from being informal, such as creditors agreeing to an extension of time for payment, to a formal deed appointing an administrator. In the latter case the administration is subject to supervision by ASIC (Australian Securities and Investments Commission) and all ... ”

“ If the corporate insolvent is not able to reach an agreement with its creditors then, just as in the case of a personal insolvent, corporate bankruptcy may be the last alternative. In the corporate world, this exercise is known as ‘winding up’ and is performed by a liquidator. Winding up may be ... ”

“ If there is a perceived risk of dissipation of the corporation’s assets between the date of application and the expected date of appointment of a liquidator, the applicant may apply for a provisional liquidator to be appointed. ”

“ Unlike the vesting of all a bankrupt’s assets in a trustee, corporate bankruptcy leaves the assets in the corporation and vests control of the corporation in the liquidator. Thus any document requiring the seal of the corporation is sealed by the liquidator and supported by a statutory declaration ... ”

“ Liquidation commences from the time of appointment of the liquidator. However the date that the proceedings were commenced is important as the ‘relation-back’ day (see below). ”

“ The Act creates rights similar to the clawback rights that apply to personal bankruptcy: Unfair preferences given within a period of six months prior to the relation-back day may be clawed back, if the corporation was insolvent at the time that those preferences were given. ”

“ A liquidator is able to disclaim assets that are burdened with onerous obligations. Thus an insolvent’s representative may disclaim a lease, thereby ending the representative’s obligations. This disclaimer does not reduce any liability that existed prior to disclaimer, nor prevent an action for ... ”

“ The liquidator becomes an agent of the insolvent corporation, with power to deal with all of the corporation’s property. All court proceedings by a company in liquidation are stayed until the liquidator elects to proceed. ”

“ Generally2 Lease or tenancy2 ”

“ The owner of real estate may give possession of that real estate to another person, such that the other person has the right to use and enjoy the real estate to the exclusion of the entire world, including the owner. Such a right is recognised as a proprietary right and thus protected by the law. ... ”

“ Whilst there may have been a difference in the past between the meaning of lease and tenancy, the terms are now effectively interchangeable. To lease premises is the same as to rent. The landlord is the same as the lessor, and the tenant is the same as the lessee. This commentary uses the word ... ”

“ A lease is as a proprietary right and, as such, enjoys the protection of the law. The lessee is entitled to enjoy the right until it expires and may enforce that right against the entire world. A licence however is merely a contractual right that exists between the parties to the contract. It is ... ”

“ Whilst there is little doubt that a lease for one year is of a fixed duration, a lease from week to week may go on forever. However such an arrangement is still regarded as a lease for a fixed duration as it is capable of termination by either party at the end of each repeating period. An ... ”

“ A lease must have a specified or definable commencing date. A lease that does not have a commencing date capable of precise definition will be void. Darling Point Securities P/L v Industrial Equity P/L (1991) NSW ConvR 55-589(2001) 76 ALJ 86 ”

“ Validity The common law has traditionally required proprietary rights to be established in a formal way; indeed the fundamental requirement in relation to interests in land is that they be created by deed, which is a document formally executed by seal. An arrangement that does not satisfy this ... ”

“ Equity is a concept, now applied by all our courts, that allows the court to achieve justice, notwithstanding technical legal rules. Thus the rule that would invalidate a lease of more than three years if it were not in the form of a deed was overcome by the creation of what is known as an ... ”

“ As equity has shown itself prepared to enforce an agreement to lease, it is often said that an agreement to lease is as enforceable as a lease. This concept has been merged with modern legal concepts to establish the principle that, where it would be unconscionable for either party to resile from ... ”

“ Leases for terms including option periods that in total exceed three years should be registered to protect the interest of the lessee. The registered copy of the lease is in effect the title of the lessee to its estate and interest in the land. By virtue of section 41 of the Real Property Act ... ”

“ Incorrectly defining or describing the premises may give the lessee a right to damages. Foong & Leong v Great Union P/L [2001] VCAT 1540 ”

“ The lessee is bound to use the premises in accordance with any specified use and a failure to do so will constitute a breach of the lease. If the lease provides that the use may be altered with the consent of the lessor, there is no implied obligation on the lessor not to withhold consent ... ”

“ Written leases are traditionally prepared in duplicate so that both lessor and lessee will have a ‘copy’ for their records. The lease is the basis of the lessee’s right to possess the property and as such it is the lessee’s title. The lessor is entitled to retain the certificate of title to the ... ”

“ It is normal for the lessor to arrange for preparation of the lease. As a result, it is normal for the lease to provide that the lessee will be responsible to pay the lessor’s legal cost. However these provisions are negotiable in all circumstances and in fact prohibited by statute in relation to ... ”

“ Many leases provide for the lessee to pay a security deposit to be held to secure the lessee’s compliance with the terms of the lease. Special rules apply in relation to residential and retail tenancies. Generally speaking there is no presumption that the lessor is to hold the security deposit in ... ”

“ Unless the proposed lessee ensures that the mortgagee of the freehold consents to the lease, the lessee will be liable to lose possession of the premises if the lessor defaults under the mortgage and the mortgagee wants to take possession. The prior-in-time interest of the mortgagee will defeat the ... ”

“ Whether it is the lessor or the lessee who is responsible to pay outgoings in relation to the leased premises will depend entirely on the agreement. Leases often require the lessee to pay outgoings, such as rates and taxes, but what is included depends entirely on the words used. Insurance premiums ... ”

“ The lessee is entitled to possession of the leased premises, free of interruption from the lessor or any other person. This right is known as the right to quiet enjoyment, but it is ”

“ A tenant of an agricultural property enjoys the additional common law right to the produce of the land. This may be enforced even after termination of the lease. Hohn & Anor v Mailler [2003] NSWCA 122 ”

“ From an early period the common law permitted tenants to remove fixtures they had brought onto the land, provided that the fixtures were installed for trade, domestic or ornamental purposes. This remains the law. Leases often give the lessee the right to remove fixtures within a limited time ... ”

“ As the lessor generally prepares the lease, it usually creates rights in favour of the lessor. These rights are generally created by requiring the lessee to enter into covenants to do, or not do, certain things and empowering the lessor to enforce those covenants. A lessee will normally covenant to ... ”

“ The lease has traditionally been prepared by the lessor’s solicitor. This gave the lessor the ability to specify the terms and conditions, and it was normal practice to require a lessee to deliver up the premises at the expiration of the lease in the same condition that they were at the beginning ... ”

“ Leases often require the lessee to repair and/or maintain the premises and further to deliver the premises up at the end of the term in their original condition, which implies a need to repair and maintain. Repair may involve the replacement of parts of the premises but such clauses usually stop ... ”

“ Lessors have traditionally sought to pass the obligation to repair onto the lessee; but, if the lease does create an obligation on the lessor to repair, responsibility to do so will usually only arise after the lessor receives notice of the need for repair. O’Brien v Robinson [1973] UKHL 1 ”

“ The lessor has traditionally been in a position of strength. Federal competition and consumer legislation has sought to equalise negotiating power and many lessees have relied upon concepts such as misleading and deceptive conduct in disputes arising out of the economic downturn of the early 1990s. ... ”

“ In the absence of a review clause, rent will remain the same during the full term of the lease and, depending upon the option clause, possibly even through a further term. However, most leases do have a rent review clause which may provide for rent to be reviewed during the term of the lease and, ... ”

“ Recorded information is available by phone on 1300 135 070. Information is also available at the Australian Bureau of Statistics. ”

“ Errors may be rectified by the court. Thermoplastic Foam Industries P/L v Imthouse P/L (1990) ANZ ConvR 532 ”

“ Surrender by agreement The parties may agree, or be deemed to have agreed, to terminate the lease by the lessee surrendering, and the lessor accepting. ”

“ The consequences of a breach depend on the terms of the agreement between the parties. The lease may have detailed and specific clauses relating to breach and its consequences. Broadly speaking, a breach that is not remedied will entitle the other party to bring the lease to an end by termination. ... ”

“ Forfeiture is the process whereby the lessor, relying on a breach of a fundamental term of the lease by the lessee, forfeits the lease and thereby becomes entitled to re-take possession of the premises and re-enter. It was usually aided by a clause in the lease authorising re-entry upon forfeiture. ... ”

“ If the lease is terminated by the lessee for breach by the lessor, then the lessee will be entitled to damages. However such situations are rare, as the lessee would ordinarily be satisfied to be free of the lease or else have sought specific performance. If the lease is terminated by the lessor ... ”

“ The lease passes to the lessee the right to possession. If the lease is terminated, the lessee’s right to possession ceases and the lessor is again entitled to possess the property. If the lessor is able to effect re-entry and take possession of the premises without creating a disturbance of the ... ”

“ If a lease has been terminated and the lessee refuses to deliver up possession the lessor may issue proceedings. Avin Operation P/L v Clover Pines P/L [2003] VSCA 58 ”

“ Article:Lease - Abandoned goods If a lessee vacates the premises, leaving goods on the premises, ownership of those goods remains with the lessee and the lessor has no claim to ownership of them. If the lessee requests access to the premises for the purposes of removing the goods, the lessor will ... ”

“ Periodic leases roll on until terminated by notice of either party. In the absence of a contrary agreement, the notice must expire at the end of the period after the period in which it is given. ”

“ A lease is fundamentally a contract and the normal rules of privity of contract apply. But a lease also relates to real estate, and property law has traditionally affected more than just the parties to the contract. Rights arising from property law may therefore result in the ”

“ Sublease It is the intention of the parties that the lessee will return to ownership of the leasehold at some time prior to expiration of the lease. It is not intended that the lessee’s obligations will be diminished, merely temporarily assumed by the sublessee, so the lessee remains primarily ... ”

“ Whilst there was some doubt about this and some lessors would require the guarantor to specifically confirm the extension of the guarantee, that is no longer necessary as it has been held that the guarantee is enforceable by the freehold purchaser. Lang v Asemo P/L [1989] VicRp 67Gumland Property ... ”

“ Options generally require that the lessee not be in default in relation to any covenant as a condition of exercising the right to renew. This is construed strictly against the lessee. BS Stillwell and Co P/L v Budget Rent–A-Car System P/L [1990] VicRp 52 ”

“ The lessee is entitled to a lease that is identical to the expired lease and a renewal does not present the lessor with an opportunity to review the lease. The only justified changes are those necessary to reflect the effluxion of time and any change in the parties. The lessor retypes, prints out, ... ”

“ A right of first refusal or right of pre-emption in favour of a lessee may be included in a lease. Such a right is regarded as different to an option to purchase. It is a purely contractual right, giving the lessee no additional interest in the land. Attorney-General v Methodist Church of New ... ”

“ There are two ways that the lessee may change. ”

“ Lessor A may enter into a lease with lessee X, thus passing possession of the property to X for the duration of the lease. But A still enjoys ownership of the property, which at that stage is known as the right of reversion or reversionary interest. As property, that right may be transferred to ... ”

“ There is no automatic right to use existing foreshore maritime structures, such as jetties, boat ramps and boat sheds, enjoyed by a waterfront property. When acting for vendors or purchasers of waterfront property, you must check if there are existing leases or licences covering any maritime ... ”

“ Retail lease2 Application2 ”

“ Consumer protection considerations have dominated the development of the law for the last quarter of the twentieth century. One area of concern was the relationship between a landlord and a tenant of premises used for retail purposes. With the development of shopping malls, ownership of such ... ”

“ The Retail Leases Act applies to all retail shop leases and subleases entered into after 1 August 1994. A retail shop lease is considered to have been entered into if a person enters into possession of a retail shop as lessee or begins to pay rent, even if neither party has executed the lease. The ... ”

“ The Retail Leases Act applies to any retail shop, which means either a premises in a retail shopping centre, or a premises, used or proposed to be used, wholly or predominantly for the purposes of carrying on one or more listed businesses. Professional offices and licensed premises are not ... ”

“ Even if the premises is a retail shop, the Act will not apply to: leases for a term, including options, of 25 years or more; ”

“ The term lettable area is not defined exhaustively in the Retail Leases Act. A shop with a ground floor gross retail lettable area of 470 square metres was held to have a total lettable area of 1035 square metres - and so outside the Act - once mezzanine floor, toilets, stairway, car park, air ... ”

“ Consumer protection requires information. A consumer is more likely to make a good decision if the consumer has access to all relevant information. Lessor's disclosure ”

“ At common law, the right to renew a lease depended on the lease itself. If there was no option to renew, then the lessee's rights ceased upon expiration of the term. The Retail Leases Act provides that, if the lease does not contain an option, the lessor must give notice to the lessee between six ... ”

“ Key-money is money paid to the lessor by way of a premium as a condition for the lessor granting a lease or further option, or consenting to an assignment of lease. Key-money is prohibited by the Retail Leases Act, and a breach is an offence carrying a monetary penalty. ”

“ One issue of protection for lessees has been rent reviews. The Retail Leases Act provides a number of restrictions. In summary, these are: generally, not more than one review per year; ”

“ Retail shopping centres often charge turnover rent. The Retail Leases Act excludes from turnover rent such matters as deposits which are refunded, finance charges, returns to wholesalers, GST, the amount received from the sale of lottery or similar tickets, other than the commission earned on such ... ”

“ From 1 July 2005 lessors are unable to recover legal costs on lease preparation expenses. This includes production and consent fees from the lessor's mortgagee. There are a limited number of exceptions, including stamp duty on the lease, registration fees and lease preparation expenses in ... ”

“ Leases often require lessees to pay outgoings, such as rates and services charges, in relation to the property. As retail tenancies are often located in shopping centres, it is also common for such leases to require the lessee to contribute to the body corporate and common area expenses. The ... ”

“ Disturbance A lessor must not carry out alterations or refurbishment to the shop or retail shopping centre unless the lessee has been given two months notice in writing, or the alterations or refurbishment are necessitated by an emergency, in which case the lessee must be given the maximum period ... ”

“ The venue for dispute resolution is the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal. The Retail Leases Act 1994 requires all disputes to first go to mediation. Either party to a lease may refer a dispute to the NSW Small Business Commissioner's Dispute Resolution ... ”

“ The Retail Leases Act requires any security bond paid by the lessee to be lodged with the Secretary of the Department of Industry, Skills and Regional Development within 20 business days of the earlier of: receipt of the security bond; ”

“ The Retail Leases Act prohibits unconscionable conduct and, since 1 January 2006, misleading and deceptive conduct. The latter regime broadly mirrors s 52 of the Trade Practices Act, but applies only to a party or former party to a lease (including a guarantor or covenantor). Sections 62C to 62E ... ”

“ Retail Leases Act 1994 - Schedule 1 (Section 3) ”

“ (Section 5(d)) Retail Leases Act 1994 - Schedule 1A ”

“ Generally2 Doctrine of merger2 ”

“ The common law doctrine of merger grew out of the principle that, when a lesser estate was vested in the same person as a greater estate, the lesser estate merged into the greater estate and was extinguished. A common example of this principle is where the dominant and servient tenements in an ... ”

“ The classical statement of the doctrine is: Where an executory contract is intended to be carried out by a deed of conveyance, it is merged in the conveyance; the final contract is that which is contained in the deed, and the executory contract cannot be used for the purpose of enlarging, ... ”

“ The doctrine was developed prior to the Torrens system. It had some validity in a system that replaced a contract with a conveyance, which was a lengthy document that set out the ”

“ Vendor’s obligations The obligation to deliver vacant possession.Cumberland Consolidated Holdings P/L v Ireland [1946] KB 264Australasian Conference Association Ltd v Carver (1988) NSW ConvR 55-435 ”

“ Generally2 Misdescription2 ”

“ This chapter is concerned with two topics. A frequent cause of dispute between vendors and purchasers is the identification of what is being sold – the subject matter of the sale. Historically, the uncertainties of old system title and the lack of precision of surveying practice meant that a common ... ”

“ Whether a misdescription may also constitute a defect in title will depend upon determining exactly what it is that the vendor has contracted to sell to the purchaser. The vendor must make title to that which the vendor has agreed to sell, but need not make title to something which the vendor has ... ”

“ A vendor has a fundamental duty to make title to land that the vendor has contracted to sell before a purchaser can be required to complete the transaction. This obligation consists of: a duty to show good title to the land sold; ”

“ If 10 Smith Street is sold by description, then the vendor will be obliged to make title to the land physically occupied by 10 Smith Street. If 10 Smith Street occupies less land than the title to the property - that is, there is an excess of title or deficiency of land - then there will not be a ... ”

“ If 10 Smith Street is sold by title, then the vendor will be obliged to make title to the land described in the title. If 10 Smith Street occupies less land than the title to the property - that is, there is an excess of title or deficiency of land - then there will not be a defect in title as the ... ”

“ Land was traditionally sold by description. Conveyancing predates photocopiers. The sale of a piece of land could only be made by reference to a written description of that land. This could have been by recitation of a long description of the measurements of the land, the admeasurements, and by ... ”

“ The common law took a strict view of errors in description and held that any discrepancy between the property described in the contract and the property available for transfer justified the purchaser terminating the contract. Travinto Nominees P/L v Vlattas [1973] HCA 14 ”

“ To determine whether there has been a misdescription, it is first necessary to determine what was agreed to be sold. This is precisely the same inquiry as is made to determine whether there has been a failure to make title. This returns us to the issue of sale by description as opposed to sale by ... ”

“ Whilst the common law takes the strict view that any misdescription will justify avoidance by the purchaser, equity ameliorates this view with the requirement that the misdescription must be material or substantial. Thus equity will require the purchaser to proceed with the contract if the ... ”

“ If the contract is silent on the point, equity will save a vendor from avoidance, provided that the misdescription is immaterial, but will nevertheless require the vendor to pay compensation for that misdescription. The standard form contract expressly permits claims for compensation, recognises ... ”

“ If equity excuses the misdescription because it is immaterial but requires compensation, then the issue is how to calculate compensation. In the absence of a condition in the contract dealing with this issue, it would simply be a matter of the parties agreeing on some method of valuing the loss ... ”

“ The parties are capable of agreeing to the terms of their contract. It is open to the parties to agree that the purchaser shall not have the right to avoid the contract for a misdescription. However this right is subject to the overriding principle that, if the misdescription is material and ... ”

“ As a rule of thumb, a discrepancy in measurements that affects 5% of the area of the property is regarded as material or substantial misdescription. Ventura v Maladale (1987) V ConvR 54-206 ”

“ The parties are capable of agreeing to the terms of their contract. It is open to the parties to agree that the purchaser shall not have the right to claim compensation. ”

“ The common law provides that any discrepancy will justify avoidance. Equity overrides this by providing that a material discrepancy will justify avoidance, but that an immaterial discrepancy will only justify compensation. The parties are free to agree to their own terms and a contract may provide ... ”

“ Where the purchaser makes a claim which exceeds 5% of the price, it is arguable that if the vendor had to meet such a claim then there would be a material and substantial difference between what the vendor agreed to sell and what was in fact sold. By analogy with Flight v Booth, contracts ... ”

“ An area, bearing or dimension expressed in the standard form contract is only approximate. Standard form contract 20.3 ”

“ There is no obligation on the vendor to provide a survey. Svanosio v McNamara [1956] HCA 55 ”

“ It is fundamental to the operation of the land titles system that boundaries of each lot be identified precisely. In some plans, the location of a boundary will be ascertained by a measurement (typically this will be the case for a deposited plan, and will also apply to external boundaries in a ... ”

“ An off-the-plan sale may relate to a property which is fully constructed and simply awaiting registration of the plan but, at the other end of the spectrum, it may relate to a property which, at the time of sale, consists of nothing but thin air. Some such contracts give the vendor five years in ... ”

“ The law relating to fences is set out in the Dividing Fences Act. Useful background material can be found in Chapter 34 of The Law Handbook, published by Redfern Legal Centre Publishing (12th ed.) and on the website for the Local Court. A retaining wall is not a fence. ”

“ Trees may sometimes grow along or near boundaries, thus complicating the question of measurement of those boundaries. They may also force the ‘temporary’ relocation of fences delineating those boundaries and raise issues of adverse possession. For useful material on liability of property owners for ... ”

“ There is a rebuttable presumption that the boundary constituted by a river is the middle line of the river. The presumption extends to Torrens title land. However, the ability to use and enjoy the property ‘owned’ is frequently restricted by other legislation. Section 45A Real Property ActNote ... ”

“ Interested parties may seek an order from the court in relation to building encroachments. Section 3 Encroachment of Buildings Act ”

“ Generally2 Old system mortgage2 ”

“ Mortgage is a totally fictional concept. It has no physical presence and, whilst it may be represented in a physical form by a document, that is not necessary. It is a legal concept created to represent a form of proprietary interest recognised by the law. It arises when an owner of property ... ”

“ The consequence of a mortgage of old system land is that ownership in law transferred to the mortgagee, subject to the right of the mortgagor to regain ownership upon repayment. This right was known as the equity of redemption. That is not the effect of a Torrens mortgage, where ownership remains ... ”

“ Like all interests in land, the fundamental formality requirement for a mortgage is that it be created by a deed, being a document executed under seal. s 23B Conveyancing Act 1919 ”

“ In order to reduce the occurrence of identity fraud and the number of claims made against the Torrens Assurance Fund, the government has introduced new procedures which require ”

“ Whilst the common law insisted on the formality of a deed, equity was more prepared to look at the intention of the parties and enforce relationships as mortgages, notwithstanding that they did not achieve the formality requirements of the common law. Equity merely needed to be satisfied that the ... ”

“ The simplest mortgage relationship involves two parties: the lender who provides the money and the borrower who receives it and gives a mortgage over the borrower’s property. However a third party may become involved if the borrower, whilst receiving the money and promising to repay, has no ... ”

“ As legal entities, corporations can enter into mortgages over property owned by the corporation. The risk for the mortgagee however relates to the execution of mortgage documents. A document that is fraudulently executed is a nullity at common law. A mortgagee who accepts a mortgage signed by ... ”

“ Most documents establishing a trust will authorise the trustee to borrow for the purposes of the trust. It is beyond the trustee power and in breach of trust for the trustee to borrow for purposes other than the trust. A lender might not have notice of the existence of the trust and therefore not ... ”

“ A loan agreement does not of necessity require the payment of interest. The agreement may simply require repayment of the principal sum. Interest is only payable if the agreement between the parties provides for the payment of interest. ”

“ Care of expression is the key to this issue. The law strikes down penalties as contrary to public policy. Thus a provision in a mortgage that the mortgagor will pay interest at the penalty or higher rate in the case of default will be struck out. Steindlberger v Mistroni (1992) 29 NSWLR 351 at 356 ”

“ A mortgage is a contract. If the mortgage provides that repayment is to be on an ascertainable date, then that is the date for and early or late repayment will be a breach of the contract. Early repayment ”

“ Legal costs In the absence of an agreement between the parties, the mortgagor is not liable to pay the mortgagee’s legal costs. However, most mortgage documents provide that the mortgagor will pay those costs. Costs will be on a party-party basis only, unless otherwise agreed, but may provide for ... ”

“ There is absolutely no difference in the form of a second or subsequent mortgage. There may be any number of mortgages granted over a property, it is just a matter of whether the mortgagee is satisfied that the mortgagor still retains sufficient equity in the property to support another mortgage, ... ”

“ Where there is more than one mortgage affecting a property, priority will be determined on the basis of time. In a Torrens environment it will be time of registration, with the first registered mortgage taking priority. If neither mortgage is registered, it will be time of creation, with the ... ”

“ Mortgagees may agree amongst themselves as to the priority of their mortgages. If those mortgages are registered, they may vary that priority by the registration of a postponement of mortgage. Section 56A Real Property Act 1900 ”

“ The terms of a mortgage may be varied and the variation may be registered. The following provisions of a mortgage can be varied: ”

“ A further advance made pursuant to an existing mortgage is covered by the doctrine of tacking. The doctrine was established by the case of: Hopkinson v Rolt [1861] EngR 641See Oversea Chinese Banking Corporation (OCBC) v Malaysian Kuwaiti Investment Co Sdn Bhd (MKIC) [2003] VSC 495 ”

“ Marshalling relates to realising of security when two mortgagees have security over assets of the mortgagor.  If one mortgagee has security over two assets and a second mortgagee has security over only the first of those assets, marshalling allows the second mortgagee to rely on the second security ... ”

“ Material alteration of a mortgage will invalidate the mortgage. If the alteration is authorised by some, but not all of the mortgagors it will be unenforceable against the mortgagor who did not authorise the alteration. Farrow Mortgage Services P/L v Williams (1994) ANZConvR 41 ”

“ Once the principal or secured sum has been repaid, a discharge of mortgage can be obtained from the mortgagee. The approved form must be used for this purpose. This approved form must be lodged, accompanied by the certificate of title. Once the discharge has been registered, the property ceases to ... ”

“ The law relating to minors is to be found in the Minors (Property and Contracts) Act 1970. A beneficial civil act is presumptively binding on a minor. ”

“ A mortgage that comes into existence earlier in time to a lease will not be subject to the tenant’s rights under the lease. If default occurs, the mortgagee is entitled to take possession of the premises and may ignore the tenant’s right under the lease. A mortgage that comes into existence later ... ”

“ If a property that is subject to a mortgage is subdivided, then the mortgagor has the right to ask the mortgagee to apportion the mortgage money and accept a new mortgage or a discharge in relation to individual lots. This right does not give the mortgagor any additional rights in relation to ... ”

“ No action for recovery of money due under a mortgage may be commenced after 12 years from the date when the right to the money accrued. s 42 Limitation Act 1969 ”

“ A mortgage creates a caveatable interest, so a caveat may be lodged. However, the power of sale can only be exercised pursuant to a registered mortgage, not a mortgage protected by caveat. ”

“ If one joint proprietor/borrower forges the signature of the other joint proprietor/borrower, the lender’s mortgage will become indefeasible upon registration. However the mortgage will only allow the lender to enforce against the ‘innocent’ joint proprietor to the extent of the mortgage debt, ... ”

“ Generally2 Mortgagee's rights2 ”

“ A mortgage creates a security interest in the land in favour of the mortgagee. If the mortgagor breaches any of the requirements of the mortgage, as to payment or otherwise, the mortgagee is entitled to bring the mortgage to an end and rely on the property as security for the advance. The common ... ”

“ Power of sale The mortgagee’s fundamental right is the power of sale. This allows the mortgagee to sell the property and apply the proceeds towards discharge of liabilities relating to the property. This power can only be exercised by a registered mortgagee. ”

“ The Real Property and Conveyancing Legislation Amendment Act 2009 makes the most far-reaching changes to the two key property law statutes in New South Wales for over two decades. The duty of a mortgagee when exercising a power of sale ”

“ Power of sale Notice ”

“ If the mortgagor complies with a notice within the time limits set out in that notice, the default is deemed not to have occurred. Section 57(4) Real Property Act ”

“ Purchaser from mortgagor Mortgages generally forbid the sale of the property during the course of the mortgage without the consent of the mortgagee. If a sale is made, the mortgagee may elect to cooperate and provide a discharge or may refuse to provide a discharge, thus aborting the sale. ”

“ A mortgagee sale is effected by a special form of transfer known as a O1TP. The effect of registration of that document is to transfer the interest of the mortgagor as registered proprietor to the purchaser/transferee. Section 58 Real Property Act ”

“ The Farm Debt Mediation Act 1994 and amending legislation provide a compulsory mediation procedure before a farmer’s creditors can take possession of property or exercise other enforcement acts under a farm mortgage. For a discussion of the legislation see: ”

“ If one joint proprietor forges the signature of another joint proprietor, the lender’s interest will gain the benefit of indefeasibility upon registration. However the mortgage will only be enforceable against the ‘innocent’ party to the extent of the mortgage debt and so reference must be made to ... ”

“ Generally2 Notices - the fundamentals2 ”

“ Ownership of land requires the owner to have a relationship with many other people and organisations in relation to the land - for instance, neighbours, local councils and other authorities. These relationships may result in these third parties taking a particular interest in the property and may ... ”

“ The most fundamental definition of a notice is that it is a written document. Nothing less than a written document - for instance, a verbal request or warning or even threat - could be considered a notice. It must be in writing. Property owners receive many written documents relating to their ... ”

“ If an owner can ignore a document without legal consequences, then it is not a notice. If however the document is supported by some legal framework creating consequences for non-compliance, then it is a notice. For instance: A neighbour might verbally complain to an owner about noise made by ... ”

“ The fact that a property is subject to a notice would mean that the property suffers from a latent defect in title and the vendor would remain responsible for compliance with the notice, unless liability is transferred to the purchaser by the contract. Carlish v Salt [1906] 1 Ch 335 ”

“ Local councils have long had power to issue orders requiring demolition of improvements on the property. If such an order has issued prior to exchange it is clearly a work order and standard form contract 11 applies. The situation where no order has issued prior to exchange, but the potential for ... ”

“ A purchaser may be left lamenting if: the communication was not a notice; or ”

“ Generally2 Application of the Act2 ”

“ It is common for one person to want to appoint another to represent him or her in undertaking some activity on his or her behalf. The law has always recognised this arrangement, which at its simplest is governed by the law of agency. The need for the person acting on behalf of another to prove the ... ”

“ The Powers of Attorney Act generally does not affect powers of attorney created before 2004, and the repealed provisions of the Conveyancing Act continue to apply to powers created prior to 2004. Section 6 Powers of Attorney Act ”

“ A general power of attorney that is in or to the effect of the form specified in the Powers of Attorney Act will constitute a prescribed power of attorney. It may appoint one or more attorneys - either individually, jointly, or jointly and severally - and may appoint an alternative attorney to act ... ”

“ This is a power of attorney that endures even though the donor may have lost mental capacity. The attorney can continue to make decisions on the donor's behalf even after the donor has lost mental capacity to make those decisions. Schedule 2 Powers of Attorney Regulation 2016 sets out a prescribed ... ”

“ A power of attorney that does not restrict the authority of the attorney through specific conditions and limitations is considered to be a general power of attorney, and authorises the attorney to do any act that the principal is able to and does authorise, subject to restrictions that limit the ... ”

“ An interstate power of attorney is valid in NSW if it is valid under the laws of the state or territory in which it was made, but it does not operate to confer power on an attorney in NSW which cannot be conferred on an attorney under an enduring power of attorney made in NSW. Section 25 Powers of ... ”

“ It is necessary to register the power of attorney at Land and Property Information for a conveyance or other deed affecting land - other than a lease for a term of less than three years - for the attorney to have effect. This is done by lodging the power of attorney for registration and paying the ... ”

“ A donor must have the capacity to validly grant a power of attorney. The Law Society of NSW provides guidelines for assessing competence re the granting of an enduring power of attorney: When a client’s capacity is in doubt: A Practical Guide for Solicitors. ”

“ A power of attorney may be expressed to be irrevocable. Section 15 Powers of Attorney Act ”

“ A power of attorney may be reviewed by the Guardianship Division of the NSW Civil and Administrative Tribunal and the Supreme Court, and the Supreme Court may order the termination of an irrevocable power of attorney. Section 28 Powers of Attorney Act ”

“ There is a vacancy in the office of the attorney if the appointment is revoked; the attorney renounces the power; the attorney dies; the attorney becomes bankrupt; where the attorney is a corporation, the corporation is dissolved; or where the attorney, by reason of any physical or mental ... ”

“ An attorney cannot appoint a substitute, delegate or sub-attorney unless the instrument creating the power expressly provides for the attorney to do so. Section 45 Powers of Attorney Act ”

“ A power of attorney only authorises the attorney to act on financial matters. An enduring guardian can be appointed to make decisions relating to medical treatment, lifestyle and other personal decisions, to take effect from when the donor is not capable of making those decisions. There is a ... ”

“ A corporation may expressly or impliedly authorise an agent to enter into a contract on its behalf; and the corporation has all the powers of a legal person, such as the power to grant a power of attorney recognised by the common law. Sections 124 and 126 Corporations Act ”

“ Although most constitutions permit the appointment of an alternate director, not many permit the appointment of an attorney by a director. A general power of attorney by a director does not enable the attorney to exercise the donor’s directorial duties. The donor is not empowered to make the ... ”

“ A prescribed power of attorney does not confer authority to act as trustee. Section 10 Powers of Attorney Act ”

“ A liquidator may appoint an attorney to act on behalf of the liquidator in the administration of the company. Australian Guarantee Corporation Ltd v Registrar of Titles (1992) 7 ACSR 577 ”

“ The basic rule is that an executor or administrator cannot delegate and therefore cannot appoint an attorney. ”

“ If attorneys are appointed to act jointly, then all the attorneys must sign documents or act together; and, if one attorney dies or renounces or the principal revokes the power of attorney for less than all of the attorneys, the power of attorney is terminated. If attorneys are appointed to act ... ”

“ Of donor As a general rule, the appointment of an attorney by an insolvent donor will be ineffective, as the insolvent has lost the legal ability to control his/her affairs. Equally, a power of attorney given by a donor who subsequently becomes insolvent will cease to be effective. ”

“ Generally2 Classification of requisitions and objections2 ”

“ The submission of requisitions on title by a purchaser’s solicitor following exchange of contracts has long been part of conveyancing practice. The practice traditionally arose from the complexity of old system title and the need of a purchaser to make demands or objections arising out of ... ”

“ The first traditional differentiation is between ‘requisitions’ and ‘objections’. Strictly, a requisition is a request by the purchaser for the vendor to take some action, or to provide some information. By contrast, an objection is a statement by the purchaser that the vendor is unable to complete ... ”

“ The contract has, since 1996, used an extended definition of requisition to cover objections and questions as well. Apart from some re-wording consequential upon this change, the new clause was substantially unchanged from the 1992 edition. The contract continues the philosophy of not attempting to ... ”

“ The standard form contract identifies three different time limits for the making of requisitions: matters arising out of the contract or general questions within 21 days after the contract date - clause 5.1; ”

“ A practice has developed with some practitioners acting for vendors to supply answers to requisitions served out of time on a ‘without prejudice’ or ‘by way of courtesy’ basis. This practice has been criticised judicially on the basis that ‘one cannot blow hot and cold’. It is likely that ... ”

“ If a purchaser fails to serve within time, a purchaser loses nothing by then serving out of time. ”

“ A purchaser will sometimes raise a requisition which is invalid. Most commonly this is because the requisition is precluded by the contract. Standard form contract clause 10 ”

“ A purchaser should allow a reasonable time for the supply of answers and, failing that, issue a notice to perform. The failure to comply with such a notice may give rise to a right of termination (which realistically a purchaser may not want) or a right to seek specific performance of the vendor’s ... ”

“ A purchaser is entitled to make supplementary requisitions properly arising out of the answers to valid initial requisitions. Blacklow v Laws [1842] EngR 1212 ”

“ A vendor who supplies a deliberately false answer to a requisition is liable in damages for deceit if the answer is intended to, and does, induce the purchaser to complete. This extends not only to the original replies, but to situations where the vendor is unaware of the error when delivering ... ”

“ With the complexity of old system title, unwelcome requisitions were common and the vendor typically gave itself an ‘out’ by drafting a clause giving the vendor a right to rescind in the face of such a requisition. The standard form contract contains such a clause. Standard form contract clause 8 ”

“ It is common for solicitors involved in conveyancing transactions to act in relation to the sale of a business, either as part of a sale of real estate or independently. Business law is a discrete specialist area and this chapter is merely a guide to some of the common considerations and issues ... ”

“ Unlike a contract for sale of land that must be in writing, there is no strict legal requirement that a contract of sale of business be in writing. It is however prudent and usual for the parties to a sale of business to enter into a written agreement. There is no prescribed form. Parties can write ... ”

“ Unlike real property, there are no disclosure obligations for sale of business in NSW, except where there is also an assignment of a retail lease, in which case there are disclosure obligations under the Retail Leases Act 1994. When acting for a vendor, in order to assist the client to achieve a ... ”

“ A sale of business generally envisages the sale of a going concern, i.e: that the purchaser will continue to operate the business after settlement from the premises occupied by the vendor prior to settlement, using the same equipment. If it is intended that the purchaser will remove the plant and ... ”

“ Occasionally a purchaser might wish to buy the goodwill or intellectual properties associated with a business and not want to take over any plant and equipment or premises. Such a sale will still be a sale of business. For a discussion of the meaning of ‘goodwill’ see: ”

“ The purchaser may have a claim based on pre-contract misrepresentations, such as anticipated improvements to the property or anticipated business growth. The By Lawyers contract minimises the risk of such claims. Sourlos v Luv a Coffee Lismore P/L & Anor [2007] NSWCA 203 ”

“ Generally2 Who attends settlement?2 ”

“ To some extent a conveyancing transaction culminates in settlement or completion. This is the event that has been eagerly awaited by vendor and purchaser and, while there are still some matters to be attended to after settlement, this is the important event when the purchaser pays the balance due ... ”

“ If the vendor or purchaser are representing themselves then they will have to attend settlement. If they are represented by a solicitor or conveyancer then usually that representative will attend settlement on behalf of the vendor and purchaser, who will not attend in person, although they may do ... ”

“ Standard form contract clause 16.7 provides that payments may be made in cash (up to $2,000) or by a ‘settlement cheque’, defined as a bank or similar financial institution (standard form contract clause 1). Otherwise, the purchaser could attend settlement with a personal cheque, which could later ... ”

“ The vendor’s directions must be given a reasonable time before settlement. Conveyancing transactions are conducted in the real world with all the normal constraints of commercial reality. It is reasonable to expect that the vendor will provide details of cheque requirements a minimum of 48 hours ... ”

“ Certainly the purchaser is entitled to receive possession of the property from the time of settlement and the keys are the ultimate indication of possession. However, if the parties are represented by a solicitor it may be inconvenient to transport keys from settlement to the property immediately ... ”

“ A sale of real estate is subject to a rebuttable presumption that vacant possession will be given on completion. Minister of State for the Army v Dalziel [1944] HCA 4 ”

“ The vendor is obliged only to hand over the property in the condition sold, fair wear and tear excepted (see Deterioration and insurance). This means that the property may be in a slightly less attractive condition as compared with the day of sale: grass may have grown, walls and carpet may have ... ”

“ Standard form contract clause 12.3 allows the purchaser to make one inspection of the property in the three days before a time appointed for completion. The purchaser is entitled to one inspection on each occasion that an appointment to complete is made. This right is given to the purchaser and ... ”

“ Where the sale involves a sale of a strata unit off the plan, a sale of a strata unit within 12 months of registration of the plan, or a sale of a land and house package, the vendor must provide an occupation certificate at least 14 days before completion. Conveyancing (Sale of Land) Regulation ... ”

“ Standard form contract clauses 16.11-16.13 provide that settlement will ordinarily be at the discharging mortgagee’s address or the vendor’s solicitor’s address, unless the contract states a different venue. If the vendor wants settlement to occur other than as provided in provision 16, the vendor ... ”

“ Standard form contract provides for a completion date 42 days after the contract date but also allows for the insertion of a specific date. ”

“ It is common practice for a settlement date to be changed. One party may contact the other suggesting a change and, if agreement is reached, the new date is generally regarded as the settlement date. To prove the agreement, it is common to record it in writing, but an oral agreement is often relied ... ”

“ A party in breach of contract may quickly cure that breach and seek to settle to minimise liability for compensation. But practicalities often mean that a party who was able to settle on the due date is not able to settle instantly the breach is cured. For instance, if the breach is caused by the ... ”

“ If one party breaches the contract, the other party has rights to compensation under the common law. But, if the first party cures the breach and it is then discovered that the other party in fact had not been in a position to settle anyway, the party who was in breach will not be liable to pay ... ”

“ Disputes often arise when the vendor claims that the purchaser is in breach for not settling, but the purchaser claims that the vendor is in breach by failing to make title. Standard form contract clauses 16.1 and 16.2 require the vendor to give the purchaser any document of title relating only to ... ”

“ If settlement falls on a weekend or holiday, settlement shall be automatically extended to the next business day. Standard form contract clause 21.5 ”

“ The parties will need to notify a number of rating authorities after settlement about the change of ownership. ”

“ Generally2 Basis of the relationship2 ”

“ This chapter is concerned with the relationship between solicitor and client and, to a lesser extent, between solicitors. See generally the Protocols and guidelines available on the Law Society of New South Wales website. ”

“ The relationship between solicitor and client is multi-layered. The fundamental basis of the relationship is the retainer. This is essentially a contractual relationship that may be evidenced by a written document, oral agreements or implied conditions. In addition, the proximity of the parties to ... ”

“ An actual conflict of interest between solicitor and client is in breach of the solicitor’s duty to the client. Such a conflict may arise directly where the solicitor’s personal interests conflict with the client’s interests, or indirectly where the interests of another of the solicitor’s clients ... ”

“ A solicitor facing a potential conflict of interest may be able to avoid that conflict becoming real by ensuring that the client is given, or at least realistically offered, independent legal advice. If the client wants the solicitor to continue to act after having received that advice, the ... ”

“ If a solicitor has acted for two parties and, as a result of a potential conflict maturing into an actual conflict, is unable to continue to act, then the solicitor must cease to act for both parties: Rule 11 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015. This follows from ... ”

“ The solicitor is authorised by the relationship to act on the client’s behalf. By this, the solicitor becomes the client’s agent but, owing to the fiduciary nature of the relationship, must exercise that authority strictly in the client’s interests. As regards third parties, the solicitor will have ... ”

“ The solicitor’s tortious liability is centred on negligence. Any failure to achieve the standard of a reasonably competent solicitor in the performance of the retainer will expose a solicitor to an action for negligence by the client. As mentioned above, such acts or omissions may also constitute ... ”

“ A solicitor may be liable to a third party in negligence if a duty of care can be established. This will be so even if no retainer can be established. Eksteen v White (2000) ANZ ConvR 128Seymour v Seymour (1996) 40 NSWLR 358 ”

“ Barristers have always been immune from liability for negligence in relation to ‘court work’, which may include work performed in preparation for an appearance. D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 ”

“ Solicitors who obtain specialist accreditation and then hold out those specialist skills to their clients have a higher duty of care. Yates Property Corporation P/L v Boland and Others (1998) 89 FCR 78Boland v Yates Property Corporation P/L [1999] HCA 64 ”

“ Articles:Solicitors - Executor's commissionSolicitors - Executor's commission - 2 It is common for solicitors to be named as executors in their clients’ wills. An executor is entitled to charge executor’s commission in the following cases: ”

“ Giving an undertaking as a solicitor is a very serious matter. Failure to comply with an undertaking is a breach of the rules and may result in disciplinary proceedings. An undertaking given by an employee binds the solicitor. Rule 6 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules ... ”

“ A solicitor has a general retaining lien under Rule 15 Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 over a client’s documents until the solicitor’s costs have been paid. This is a possessory lien and also covers documents held on the client’s behalf in relation to matters ... ”

“ Problems may arise between practitioners where a solicitor taking over a matter does not protect the first solicitor’s costs.  This can happen where the first solicitor’s client file is not needed or the second solicitor can reconstruct it. The kinds of undertakings to be sought or given need ... ”

“ On termination of the solicitor–client relationship, and payment of costs, the client is entitled to the file. However the solicitor is entitled to retain anything in the file that is the solicitor’s property. Thus the client is not entitled to: the file cover, which may include the instructions ... ”

“ It is professional misconduct to lodge a caveat on a client’s behalf unless the solicitor is reasonably satisfied that the client has a legitimate interest in the land. The fact that the landowner owes the client money is not sufficient to create a caveatable interest in the land. ”

“ Solicitors must make any payments from the trust account by cheque or electronic funds transfer. Section 144 Legal Profession Uniform Law (NSW) ”

“ The fundamental rules relating to costs are set out in Part 4.3 of the Legal Profession Uniform Law (NSW). Information ”

“ Solicitors may recover money paid to third parties in the proper conduct of the file. These must be itemised. Terms such as ‘sundry disbursements’ are unacceptable. Photocopying and fax transmissions undertaken in the solicitor’s office are not disbursements, but rather professional services. ”

“ Communications between solicitor and client are privileged if the communication was made for the purposes of giving legal advice or for use in existing or anticipated legal proceedings. The privilege is in reality that of the client to resist compulsory disclosure of confidential information ... ”

“ The police or other authorised persons - ATO, ASIC, et cetera - may be authorised to search and remove documents from a solicitor’s office. Guidelines for such searches are in place. The solicitor will normally be entitled to photocopy any documents that are to be removed. Most documents relating ... ”

“ Stamp duty2 Unstamped documents inadmissible2 ”

“ Stamp duty is imposed on most property transactions. There is absolutely no legal reason for this. It is simply an opportune occasion for the government to raise revenue. Property transactions generally involve high value assets and an element of formality that creates the opportunity to police the ... ”

“ Duty is payable on documents that evidence transactions. To ensure compliance with the imposition of duty, the Duties Act provides that a document that is not duly stamped will generally not be admissible in a court or tribunal, except in criminal proceedings. To be able to rely on and enforce a ... ”

“ A liability to pay duty arises immediately the document is first executed. Duty must be paid within three months of first execution of the document. Sections 17 and 209 Duties Act ”

“ An application for refund of duty on cancelled agreement must be made on a prescribed form (ODA 015 - Application for Reassessment and Refund) available from Revenue NSW and must be made within five years of the initial assessment or within 12 months of the contract being cancelled (whichever is ... ”

“ Stamp duty is payable on the transfer of dutiable property. This is defined to include land, transferable floor space, a land use entitlement, shares, business assets including goodwill, intellectual property and statutory licences, dealings with goods together with other dutiable property, options ... ”

“ Ad valorem duty Duty on the transfer of dutiable properties is calculated on what is known as an ad valorem basis, meaning that the rate of duty increases as the transfer consideration increases (ad valorem is Latin for ‘according to the value’). Duty on transfers of less than $14,000 is 1.25% and ... ”

“ The Duties Act specifies that duty on the acquisition of dutiable property is to be paid by the transferee (s13) and duty on a mortgage is to be paid by the mortgagor (s 207). Mortgages generally impose the obligation to pay duty on the borrower. Failure to pay duty will therefore constitute a ... ”

“ Water allocations attract duty at the same rate as transfers of shares and units (60 cents per $100.00). Land sale attracts duty at the higher ad valorem rates. When a water allocation is sold as part of the sale of land an apportionment of part of the consideration to the value of the water rights ... ”

“ The shift of emphasis from documentary assessment to transactional based assessment means that Revenue NSW seeks to aggregate the consideration for all parts of a transaction into one assessment, resulting in a higher rate of duty applying. Transfers of separate properties must be aggregated for ... ”

“ Stamp duty is payable on the unencumbered value of the land and improvements sold. If Revenue NSW considers that the agreement is to transfer both land and improvements, stamp duty will be payable on the gross value. Revenue Ruling DUT 18 ”

“ First Home Owner Grant (New Homes) Scheme – from 1 October 2012 Eligibility only applies to first home owners purchasing or building a new home. First home owners purchasing an existing home are not eligible. A substantially renovated home is a home within the meaning of s 40-75(1)(b) of the A New ... ”

“ Not available for contracts entered into after 30 June 2017. From 1 July 2012 purchasers of new homes, either newly built or off the plan and valued up to $650,000, or vacant land intended to be the site of a new home, and valued up to $450,000, were eligible to receive a $5000 New Home Grant. ”

“ The Regional Relocation Home Buyers Grant which commenced on 1 July 2011 closed on 30 September 2014, with the final deadline for lodgement being 31 March 2015. ”

“ The Skilled Regional Relocation Incentive which commenced on 1 January 2014 closed on 31 March 2015. Applications and supporting documents for employment commencing on or before 31 March 2015 must be received by the OSR on or before 30 September 2015. ”

“ For more information on completed schemes, see the OSR Completed Schemes page. ”

“ Liability for duty in relation to off the plan purchases for non foreign persons arises on the earlier of completion of the agreement, assignment of the purchaser’s interest, or 12 months from the date of the agreement provided it will be a principal place of residence, and is payable within 3 ... ”

“ A person may purchase a property with an approved equity partner. Subject to eligibility the home buyer may apply for first home buyer’s assistance and grants. Subsequent transfers from the equity partner to the home buyer are exempt from duty. Principal place of residence land tax exemption is ... ”

“ Whilst the basic proposition is that all transfers of land are dutiable, there are a number of exemptions. These are set out in Parts 6and 7 of the Duties Act. Correction of error ”

“ Duty is payable on value. Revenue NSW takes the view that the value of real estate includes any goods and services tax payable on the supply of that real estate. Therefore, if the transfer constitutes a taxable supply and the contract requires the purchaser to pay the GST, then duty is payable on ... ”

“ Declaration of trust A settlement is in the nature of a trust, where it is declared that land is held for the benefit of another. Legal ownership is with the trustee and beneficial ownership with the beneficiary. ”

“ Duty on sale of land can be as high as 5.5% of value (or 7% if premium property). If land is owned by a corporation, one way of avoiding the high land rate is to sell the shares in the corporation rather than the land. Special provisions were introduced in the late 1980s to bring to duty, at the ... ”

“ Normally the party described as a purchaser in the contract will be the transferee. In some circumstances the transferee is not the party described as the purchaser under the contract, and if Revenue NSW regards the transfer to be a transfer not in conformity with the contract then the transfer ... ”

“ Options are dutiable under s 11(1)(k) of the Duties Act although there is often no duty on a put and call option. If the grantee assigns the option the grantee is liable to pay duty on the value of the option. Section 107 Duties Act ”

“ Generally2 Body corporate2 ”

“ As a result of the popularity of strata and community based schemes of ownership, legislation and regulations were introduced to govern the operation of the various types of bodies corporate. The principal Acts governing this area are the Strata Schemes Management Act and Community Land Management ... ”

“ Both strata and community title living use the concept of a body corporate. In strata schemes which are not part of a community title subdivision the body corporate is called an ‘owners corporation’. In community schemes the bodies corporate are described as community, precinct, neighbourhood or ... ”

“ When the concept of regulated strata title ownership was introduced in the 1960s the concept of a separate legal entity which owned the common property was utilised. Such entities were traditionally known as a body corporate but since 1997 the term ‘owners corporation’ has been used. The ... ”

“ The key management areas of the owners corporation are the management and control of use of common property for the benefit of the owners and the administration of the strata scheme. Specifically, the four main areas of responsibility of the owners corporation are set out in Strata Schemes ... ”

“ There are special considerations for two lot strata schemes. Executive committee ”

“ Generally2 Subdivision regulation2 ”

“ The law has long recognised the ability of owners of land to divide their land into parts and to transfer ownership of those parts to another. Physically this does not cause too much difficulty, as the subdivider simply passes possession of the new piece of land to the new owner. Passing of title ... ”

“ The regulation of subdivision and consolidation of parcels of land is spread across a number of different statutes. Unlike the position in some other jurisdictions, there is no single ‘Subdivision Act’. The major types of title, and the corresponding statutes, are set out below: Old system title ”

“ Traditionally the owner of land owned that land down to the centre of the earth and up to the heavens. In Australia, this was modified somewhat when many Crown grants were expressed to be limited to a depth of 50 feet, thus preserving ownership below this depth to the Crown; however, ownership to ... ”

“ Most early subdivisions in Australia were undertaken by the Crown when selling land to citizens. Pieces or parcels of land were generally known as allotments on the Crown plan and each allotment was entitled to the creation of a certificate of title when the transfer from the Crown to the citizen ... ”

“ Unlike the position in some jurisdictions, it is not illegal in New South Wales to enter into a contract to sell a piece of land which does not have a separate title (or an entitlement to a separate title). Such a contract is taken to be conditional on the registration of a proposed plan of ... ”

“ Articles:Subdivision - Off the plan salesSelling off the plan – best endeavours - Part 1Selling off the plan – best endeavours - Part 2 Developers frequently market properties for sale 'off the plan' – that is, subject to and conditional upon registration of a proposed subdivision (most frequently, ... ”

“ Whilst contracts for the sale of lots on a proposed plan may be entered into, settlement of those contracts cannot take place until the plan is registered and the land is then entitled to a separate title. Contracts are therefore generally expressed to be due for settlement ‘14 days after ... ”

“ A plan of subdivision may range from a simple two lot subdivision of land through to the subdivision of a multistorey building in strata. Because the plan cannot be registered and new titles created until the registration process has been complete, there may be a substantial time gap between the ... ”

“ It is fundamental to the operation of the land titles system that boundaries of each lot be identified precisely. In some plans, the location of a boundary will be ascertained by a measurement. Typically this will be the case for a deposited plan, and will also apply to external boundaries in a ... ”

“ The identification of boundaries within a strata scheme can frequently create problems in practice. Typically, the external boundaries (the boundaries between the land contained in a strata plan and adjoining land) are easy to ascertain. The more difficult issue is identifying the boundaries ... ”

“ The objective of a subdivision of land is to allow two or more people to own parts of land that was formerly owned by one person. The simplest form of subdivision was a sideways or horizontal subdivision of a piece of land so that it became two pieces of adjoining land, each capable of being owned ... ”

“ The success of strata subdivision prompted developers to consider whether the basic principles of strata schemes could be adapted for use in two-dimensional subdivisions. Some of the uses which were considered included: ‘gated’ communities – roads within a development forming common property rather ... ”

“ Matters relating to the ongoing management of strata and community titles are considered in the Strata Title chapter. ”

“ Other forms of community living include retirement villages and time share schemes. Very little has been written on these relatively obtuse proprietary concepts and a consideration of these concepts is beyond the realms of this work. Occasional seminar papers are produced on these topics. ”

“ Apart from ‘pure’ Torrens title, strata title and, to a much lesser extent, community title would be the most frequently encountered systems of title. Some brief comments about some of the less common title systems follow. For more detailed analyses reference should be made to any of the standard ... ”

“ Generally2 Termination2 ”

“ The fundamental elements of a conveyancing transaction are the contract of sale and completion. The contract establishes the rights and obligations of the parties and completion puts those rights and obligations into effect. However, circumstances may arise that prevent completion of the contract. ... ”

“ Termination is a remedy available for breach of contract. A contract may be terminated by one party for a breach, by the other party, of an essential term of the contract. A term will be an essential term if: ”

“ Rescission may be either: statutory rescission, based on a breach of a statutory obligation, such as the statutory disclosure obligation or breach of a statutory warranty; or ”

“ A party that serves a notice to complete but then fails to terminate within a reasonable time may be required to make time of the essence once again before being entitled to terminate. Green v Sommerville [1979] HCA 60Mt Pleasant Estate Co Ltd v Withell [1996] 3 NZLR 324 ”

“ Time for performance potentially arises twice. The first time is the settlement date as fixed by the contract. However, if settlement does not take place, the second focus is the last day fixed by a notice to complete. Failure to comply with the contract is not instantly fatal, but failure to ... ”

“ Time for On the basis that the defaulting party may not be in default until midnight, a notice to complete should not be issued until the day after settlement was due. ”

“ Subject to the vendor being ready, willing and able to settle, the vendor will be entitled to terminate if the purchaser fails to perform the purchaser’s contractual obligations in an essential respect. A vendor who has lost the duplicate certificate of title is not ready, willing and able to ... ”

“ Where completion of the contract is time is of the essence, a purchaser who wishes to rescind is obliged to show that the purchaser was ready, willing and able to settle on the due date. A purchaser who was not able to settle on the due date is unable to rescind and will be in breach of contract. ... ”

“ Where a party exercises a right of rescission, the general rule is that the contract is rescinded from the beginning. Standard form contract clause 1 – definition of ‘rescind’ ”

“ If the vendor is in breach of a term that has been made essential the purchaser has the choice of seeking specific performance of the contract or terminating the contract. ”

“ If the purchaser has breached the contract in an essential respect, or has failed to comply with a valid notice to complete, and the vendor has elected to terminate the contract by serving a notice of termination, then the contract is at an end. Standard form contract clause 9 ”

“ A charge over land - for example, the charge created by standard form contract 2.8 - is a caveatable interest. Gibson v Co-ordinated Building Services P/L (1989) 4 BPR 9630 ”

“ Where a party to a contract behaves in a way which shows that the party is, without justification, totally refusing to perform a contract, the party may be said to have repudiated the contract. The innocent party can elect to accept the repudiation and sue for damages, or to reject the repudiation ... ”

“ Generally2 The fund2 ”

“ The Real Property and Conveyancing Legislation Amendment Act 2009, effective 13 May 2009, makes significant amendments to the operation of the Torrens Assurance Fund. ”

“ The Torrens Assurance Fund: extends the classes of entities who are precluded from exercising rights of subrogation against the fund from professional indemnity insurers to all insurers (an amendment presumably aimed at the title insurance sector); ”

“ Generally2 Fundamental trade practices principles2 ”

“ NOTE: The Australian Consumer Law changes imposed by the Competition and Consumer Act 2010 (Cth) came into force on 1 January 2011 and replaced the Trade Practices Act and the NSW Fair Trading Act. This chapter is a general overview of the principles developed pursuant to the previous trade ... ”

“ The two fundamental trade practices principles are: ”

“ The decision of the Supreme Court in Zhang v VP302 SPV & Ors [2009] NSWSC 73; BC200900869 (23/2/09, White J) received some publicity in the popular press ('Judge tears up $1m property contract', Sydney Morning Herald, 24 February 2009, page 3). The focus of the Herald article was a successful claim ... ”

“ Like all legal principles, trade practices has limits and boundaries. However, as principles developed for the purposes of consumer protection, those principles have shown a remarkable ability to stretch those limits and the area should be regarded as something of a movable feast rather than a ... ”

“ Article:Contract - Entire contractTrade practices - Fair Trading Act Trade practices principles are likely to impact on the sale of land in two ways : ”

“ Estate agents are no doubt subject to trade practices principles. They are usually incorporated, certainly use post & telegraph facilities and are engaged in trade and commerce. Therefore agents will be subject to  the legislation and an agent who engages in misleading and deceptive conduct or ... ”

“ Whilst the liability of vendors and agents has tended to be established on the basis of their statutory liability for misleading and deceptive conduct, claims against mortgagees based on trade practices principles have tended to be based on the principle of unconscionability. This was initially a ... ”

“ Trade practices principles were fundamentally designed to protect consumers. They allowed contractual and even proprietary rights to be set aside if the bargain struck between the ”

“ The influence of trade practices principles has also been felt in another transaction that is essentially a commercial transaction, the sale of a business. Misleading, deceptive or unconscionable conduct, generally by the vendor and often in relation to financial records, will be subject to trade ... ”

“ An attempt to limit liability under trade practices principles by the use of a disclaimer clause will usually fail. Henjo Investments P/L v Collins Marrickville P/L (1988) 79 ALR 83Tantipech v IOOF Aust Ltd (1998) NSW ConvR 55-840 ”