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Conveyancing (QLD), Companies and Family Law

This bundle includes guides from the following three publications, as well as our Practice Management guide as an extra bonus!


Recent updates can be viewed on Obiter - our blog. 


Conveyancing (QLD)


A complete matter management solution so that conveyancers and support staff can run a busy conveyancing practice. Each step in the transaction is set out in sequential order with all of the required precedents and commentary in the one place. 

Commentary covers issues that arise regularly and the more complex issues that arise from time to time. Includes reference manual, 1001 Conveyancing Answers.


Some of the most popular precedents included in this publication:



  • Letter to seller's solicitor submitting transfer

  • Letter to buyer's solicitor returning signed transfers

  • Settlement notice

  • Letter to buyer after settlement

  • Initial letter to seller's solicitor

  • Disclosure notice

  • Order on the agent

  • Letter to buyer enclosing CSA and disclosure notice

  • Letter to council paying rates

  • Settlement instructions sale with mortgagee

  • Client service agreement (CSA)


Companies, Trusts, Partnerships and Superannuation


This valuable publication provides a simple guide to companies, trusts, partnerships, joint ventures and superannuation, with all commonly required documents, allowing you to advise and service your clients with confidence.


Superannuation is explained simply and comprehensively, and is accompanied by a full suite of precedents, including everything needed to set-up, run and amend a self managed superannuation fund.


The commentary provides a tax and succession planning overview sufficient for most circumstances found in general practice.


Some of the most popular precedents included in this publication:



  • Comparative table of business structures

  • Limited recourse borrowing documentation

  • Company constitution

  • Company resolution

  • Shareholder agreement (long and short forms)

  • Agreement for sale of shares

  • SMSF trust deed and rules

  • Binding death benefit nomination

  • Unit trust

  • Discretionary trust deed

  • Hybrid trust

  • Joint venture agreement

  • Partnership agreement

  • Put and Call option

  • Charitable trust


Family Law


A comprehensive and easy to follow guide to Family Law in the Family Court of Australia and the Federal Circuit Court, with our valuable reference work "101 Family Law Answers". 

This publication also provides all commonly required precedents, including applications, affidavits and orders, plus correspondence.


The guide covers all aspects of a Family Law matter, from negotiations prior to commencing proceedings to interim applications, then preparation and conduct of final hearings and enforcement. The commentary includes the conduct of interim hearings and conciliation conferences, together with tools for analysing contributions and s 75(2) factors.


Some of the most popular precedents provided in this publication include:



  • Consent orders

  • Initial letter to client with costs agreement and copy letter to spouse

  • Initial pre-action letter to spouse

  • Financial agreement s 90C - After separation

  • Parenting plan

  • Affidavit - Separation under the one roof

  • Summary of assets and liabilities



MATTER PLAN
  • “ GST withholding – applies from 1 July 2018 to sales of residential premises. see the Withholding payment of GST on purchase of certain real property commentary. Contents ”
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  • “ Queensland A full commentary on the law and practice as it currently applies to the sale of real property. ”
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      • “ Welcome to 1001. This publication will provide you with a complete suite of tools to both understand the conveyancing process and solve problems when they arise. 1001 includes comprehensive information to provide a quick answer to resolve questions and areas of uncertainty in relation to ... ”
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        • “ Generally3 Legal basis for adjustment4 ”
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        • “ Adjustments is the exercise undertaken towards the end of a conveyancing transaction and put into effect at settlement, which is the time when the buyer pays the balance of purchase price to the seller and becomes entitled to the property. Ownership of property involves outgoings, such as rates, ... ”
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        • “ The mutual right and obligation of the parties to a contract of sale of land generally arises out of the agreement between them. In the case of a contract in the form of the contract prescribed under the REIQ Contract for the Sale of Houses and Land, which is the common form of contract in ... ”
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        • “ A contract that contains minimum information, such as the parties, property and price without more, is known as an open contract. Such a contract does not usually address the issue of adjustments and there may not be a right to adjust. A contract that does not include an adjustment provision will ... ”
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        • “ Standard condition 2.6 does not specify whether the rates must be adjusted on a ‘rates paid’ or a ‘rates owing’ basis, so it is for the parties to agree. If the rates are in fact paid at settlement, adjustment will be on a ‘rates paid’ basis. The buyer of land is required to pay municipal rates ... ”
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        • “ Whilst a buyer might prefer to settle on a ‘rates paid’ basis to ensure that all rates are paid at settlement, it is open to a buyer to postpone payment of rates but receive an adjustment from the seller for their share of the unpaid rates. The problem with this method is that it leaves the buyer ... ”
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        • “ If the rates are paid in full then it is no business of the buyer how they were paid, whether by the seller personally or with the assistance of a rebate. Therefore the whole rate is simply adjusted as paid and the appropriate allowance made in favour of the seller. Standard condition 2.6(2) ... ”
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        • “ Standard condition 2.6 states that adjustments shall be made for the period up to and including ‘settlement date’, which will be specified in the Reference Schedule. In a normal contract the settlement date will be the day that the buyer becomes entitled to vacant possession (or receipt of rent ... ”
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        • “ The seller is liable to pay the rates, and is entitled to receive the rent, for settlement day. Standard condition 2.6(1). ”
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        • “ Adjustments are linked to actual possession, and so if settlement is delayed adjustments should be recalculated to take effect on the day that settlement actually takes place whether or not the delay is caused by the seller or the buyer. If caused by the seller then the buyer will have suffered no ... ”
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        • “ Rates The first inquiry is to establish who is responsible for payment of the rates. If the landlord/seller is responsible for payment, then adjustments are made in the normal way. If the tenant is responsible for payment of rates and they are paid, then there is no adjustment. ”
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        • “ A buyer who fails to adjust rates will be deemed to have waived the right to adjust. Mansez v Roberts [1991] 7 SR (WA) 222 ”
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        • “ Adjustments made in error may be readjusted after settlement. Thus a seller may claim an amount underpaid or a buyer 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 ... ”
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        • “ 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. There is no hard-and-fast rule. In the absence of a special condition in the contract a proportionate rate should be calculated on the basis of ... ”
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        • “ Supplementary rates that relate to the period prior to settlement are recoverable by the buyer from the seller on the basis that they relate to the period when the seller was entitled to possession of the land. ”
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        • “ Articles:Land tax - Part 1Land tax - Part 2 Land tax is based on unimproved capital value and is assessed on the basis of ownership on 30 June in each year. There are different thresholds for individuals, companies, and trusts. These thresholds, and the tax rates, are available on the Office of ... ”
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        • “ Those charges that are in the nature of a quarterly levy are apportionable outgoings within the meaning of condition 2.6 and are therefore adjustable. It is the recurring nature of the charge, be it monthly, quarterly or annually, that brings it within the definition of periodic outgoing. One-off ... ”
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        • “ These belong to the owners corporation and are not adjustable unless a special condition is included in the contract. ”
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        • “ Section 95 Local Government Act 2009 creates a charge over land for unpaid rates and charges. Nothing prevents the council from reassessing a concession previously granted as it is personal to the ratepayer to whom the concession applies. Part 10 Local Government (Finance, Plans and Reporting) ... ”
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        • “ Although the correct method of adjustment is to deduct rates and adjust as paid, if rates are adjusted as unpaid the buyer is entitled to the benefit of any of the payment methods that were available to the seller, such as instalments. ”
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        • “ Generally13 Period of possession13 ”
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        • “ 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 ... ”
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        • “ The Limitation of Actions Act requires proof of 12 years' possession. An adverse possessor can make an application for registration of their interests under s 99 Land Title Act. s 13 Limitations of Actions Act Land Titles Practice Manual [11-0070] ”
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        • “ Traditionally this was done with the aid of a survey plan, but it is now possible to rely on aerial photographs as proof. Traykof v Shanco Holdings P/L [2001] VSCA 56 ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ Councils may close roads or laneways and gain title to the land. Such an exercise defeats the interest of an adverse possessor as the title issues to the council or a third party purchaser from the council, free of all encumbrances. s 98(1)(c)(ii) Land Title Act 1994 ”
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        • “ 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 ... ”
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        • “ Adverse possession is essentially a defence to an action for trespass. However an application for adverse possession is not possible with respect to encroachments. s 98(2) Land Title Act ”
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        • “ Generally17 Mutual obligations18 ”
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        • “ 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 ... ”
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        • “ The obligations of the seller and buyer are concurrent and mutual. The seller is obliged to make title and the buyer 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 on the ... ”
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        • “ Standard conditions 9.7, 9.8 and 9.9 require the payment of compensation and interest in the case of breach of contract. A party who suffers loss as a result of a breach will want to recover that loss as a part of the settlement. However the party who committed the breach will generally want ... ”
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        • “ It would be most unusual for the seller to owe any money to the buyer and, as interest is payable on money not paid when due, a buyer is not likely to be entitled to claim interest. ”
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        • “ The seller’s primary obligation is to deliver possession of the property to the buyer on settlement day. If the seller breaches this obligation and is unable to settle, the buyer may suffer loss; but the REIQ contract does not provide for compensation to the buyer for reasonably foreseeable loss, ... ”
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        • “ Article:Breach of contract - Penalty interest The seller may claim interest at the rate prescribed in standard condition 9.9, usually defaulting to the then current rate published by the Queensland Law Society, on any amount owing under the contract. This would include interest on an unpaid ... ”
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        • “ Article:Breach of contract - Loss In addition to penalty interest in accordance with standard condition 9.9, the seller may claim compensation for loss suffered by the buyer's default, but the panels have taken a limited view of what is reasonably foreseeable and have refused seller’s claims for: ”
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        • “ There is no doubt that additional legal costs are a reasonably foreseeable consequence of default. Either party in breach will be obliged to pay the legal costs of the innocent party occasioned by the breach, on an indemnity basis. As those costs are capable of exact quantification, they are ... ”
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        • “ Standard condition 5.2 requires the buyer to deliver the transfer at a reasonable time before settlement. Failure to comply is a breach of contract, so if settlement is delayed as a result, the seller would be entitled to claim interest and reasonably foreseeable losses pursuant to standard ... ”
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        • “ The seller is in breach if the seller cannot produce the duplicate title at settlement. The buyer may claim losses under standard condition 9.8 and/or rescind the contract under standard condition 9.1. If the buyer does not rescind the contract and awaits replacement of the title, the question will ... ”
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        • “ Traditionally the availability of the original title for searching has been regarded as a problem for the buyer and did not constitute a breach of contract by the seller. The buyer was obliged to settle or risk rescission. If a rescission notice was served, the registrar would ”
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        • “ Some settlements occur when the duplicate title is in the titles office for other purposes. Standard condition 5.3(1) requires the seller to deliver to the buyer any instrument of title required to register the transfer, thus recognising that the seller may not have the ability at settlement to put ... ”
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        • “ Whilst standard condition 6.1 makes time of the essence, 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 settle at that time, settlement may still be conducted at a later time that day. ”
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        • “ 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. As standard condition 5.1(1) requires settlement by 5.00pm on the settlement day, the breach occurs at that time and the first day after settlement is the ... ”
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        • “ 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 the instant the breach is cured. For instance, if the breach is caused by the ... ”
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        • “ If one party breaches the contract, the other party has a right to damages under standard conditions 9.7 and 9.8. But if the first party cures the breach and it is then discovered that the other party in fact was not in a position to settle on the settlement date, the party who was in breach may ... ”
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        • “ Disputes often arise when the vendor claims that the buyer 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 as set out in standard condition 5.3(1). This is the contractual expression of the vendor’s ... ”
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        • “ Generally31 What work is insurable?31 ”
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        • “ 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 ... ”
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        • “ Builders are required to pay insurance premiums to the Queensland Building and Construction Commission (QBCC) for the following work over the value of $3,300: the construction of a house, duplex, townhouse, villa unit, any residential unit (provided it is not a multiple storey dwelling of more than ... ”
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        • “ The maximum benefit available under a policy is the lower of either the replacement value of the insured work or: $200,000- Prior to Practical Completion (covers Non ”
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        • “ There are two categories of defective building work, Category 1 and Category 2, for which a contractor may be held responsible and required to rectify. The Queensland Building Services Board Rectification of Building Work Policy defines Category 1 and Category 2 defective building work. It is ... ”
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        • “ The Domestic Building Contracts Act requires that all contracts for domestic building work over $3,300 must be in writing: s 26.The prescribed contents of the contract are set out on s 27. See the QBCC checklist: Domestic Building Contracts Act 2000 – What contractors need to know ”
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        • “ A builder who builds a building for an owner will be liable in contract and negligence to that owner. A builder who builds a building and then sells that building to an owner will be liable in contract and negligence to that owner. ”
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        • “ There will be no contractual link between the builder and a subsequent owner, so liability rests in tort and is based on foreseeability. The High Court has held that a builder does owe a duty to a subsequent owner to exercise reasonable care in the construction of the property. Bryan v Maloney ... ”
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        • “ The liability of builders for their work has been the subject of attention by the legislature for many years. It is an area high on the list of consumer protection proponents, particularly in relation to domestic building contracts. The Queensland Building and Construction Commission Act requires ... ”
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        • “ The original schemes did not extend to multistorey developments built over a number of levels, with apartments built over other apartments. ”
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        • “ Condition reports may be obtained from BSS - (03) 9377 3000Insurance may be obtained from BIS - (03) 8791 7691 ”
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        • “ Generally36 Caveatable interest37 ”
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        • “ 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 endorsed on title that, while ... ”
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        • “ Section 122 of the Land Title Act allows ‘any person claiming any estate or 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); ”
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        • “ Having established the nature of the estate or interest claimed, the caveator must set out the grounds or basis of the claim. As s 11 of the Property Law Act 1958 requires all interests in land to be created or disposed of in writing, normally such a claim will be based on a document. Examples of ... ”
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        • “ The existence of a debt is never, of itself, sufficient grounds to justify a caveat. The debt must be supported by a document in writing evidencing the debt and charging the land with liability to pay the debt. A document that evidences the debt, but does not charge the land, is not a good basis ... ”
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        • “ Section 11 Property Law Act 1958 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 only one of the parties. The ... ”
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        • “ 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. Hohol v Hohol ... ”
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        • “ 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. Doherty & Chiodo ... ”
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        • “ An agreement that charges the chargor’s land with performance of an obligation, including the payment of money, will support a caveat. Dominion Lifestyle Tower Apartments P/L v Global Capital Corporation P/L [2004] VSC 307See however Sigma Constructions (Vic) P/L v Marvell Investments P/L [2004] ... ”
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        • “ 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. However, a mere right to possession of the site for ... ”
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        • “ The Land Title Act gives the Registrar the power to register a caveat over a lot to prevent a dealing that may prejudice a state, the Commonwealth or local government, and also to protect persons with a legal disability: s 17 Land Title Act. ”
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        • “ 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; however, some agents may include in their engagement or appointment authority a clause by which the owner charges the ... ”
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        • “ Article:Caveats - Tenant's caveats ”
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        • “ 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 ”
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        • “ 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 ”
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        • “ Although it may be difficult to exactly identify the land (and some subdividers attempt to discourage individual purchasers from lodging caveats), a buyer does have a caveatable interest. Lintel Pines P/L v Nixon [1991] VicRp 20Jessica Holdings P/L v Anglican Property Trust Diocese of Sydney (1992) ... ”
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        • “ 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 notice from the registrar of the lodgement of any dealing affecting the land. Fourteen days after notice is served on the caveator, the caveat automatically ... ”
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        • “ A caveat that has lapsed or been removed shall not be renewed by or on behalf of the same person in respect of the same interest. s 129 Land Title Act ”
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        • “ Lodgement of a caveat does not prevent registration of a transfer by a mortgagee where mortgagee registered interest before lodgement of the caveat and caveator claims an interest as security for payment of money. Land Title Practice Manual [11-0100] ”
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        • “ Part 7 Division 2 Land Title Act authorises both a caveat and a withdrawal of caveat. A caveat may be signed by the caveator, or a solicitor acting for the caveator. A withdrawal may be signed by the caveator, or a solicitor acting for the caveator. If the caveat was not signed by the caveator, a ... ”
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        • “ Section 129 Land Title Act provides a mechanism for the removal of a caveat if the caveator refuses to withdraw or cannot be located. Land Title Practice Manual [11-0200] ”
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        • “ If the caveator will not provide a withdrawal, then s 127 allows a caveatee to apply to the Supreme Court for removal. (2004) LIJ Apr 58Shaw v Yarranova P/L [2005] VSC 94 – discussion about appropriate procedure ”
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        • “ A caveat lodged by a buyer 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 the ... ”
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        • “ Section 130 Land Title Act states that a person lodging a caveat without reasonable cause shall be liable for any loss or damage that follows. Bolton v Excell (1993) ANZ ConvR 562Farvet P/L v Frost [1997] 2 Qd R 39Edmonds & Ors v Donovan & Ors; Disctronics Ltd v Kingston Links Country Club P/L ... ”
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        • “ 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. ”
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        • “ A caveat is not as powerful as a mortgage. A caveat does not give any right to sell the subject property in the case of default. A caveat prevents the registration of an instrument affecting the lot; it does not create an interest in land. A subsequent dealing will generate a ”
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        • “ Generally49 Chattels49 ”
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        • “ 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 buyer expects to receive all improvements and the ‘doctrine of fixtures’ ... ”
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        • “ ‘movable, tangible articles of property’ - Osborn’s Law Dictionary ‘movable goods’ - CCH Macquarie Law Dictionary ”
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        • “ '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 ”
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        • “ There are basically two tests to be applied: The degree of annexation; and ”
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        • “ Buyer against seller The most common dispute is between a seller and a buyer 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. ”
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        • “ The Duties Act requires the whole contract consideration, including any notional value of the chattels, to be included when calculating stamp duty. The intention is to aggregate the ”
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        • “ Generally55 Form of contract56 ”
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        • “ The contract between a seller and buyer 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 buyer of the purchase ... ”
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        • “ Articles:Contract - Changing the contract by special conditionContract - New contract - Contract of sale tweakedContract - New contractContract - New contract - Happy Anniversary The REIQ Standard Contract for Sale of Houses and Land has been prepared to comply with PAMDA (Property Agents And Motor ... ”
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        • “ Article:Contract - Trust transactions All contracts must be supported by consideration. Mutual promises are adequate consideration. ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ Article:Contract - Electronic signatures Section 59 of the Property Law Act requires the contract to be in writing and signed by the 'party to be charged'. This means that, if the seller is seeking to enforce the contract against the buyer, then the vendor needs to prove that the buyer has signed ... ”
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        • “ 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, although even then the court may decide that the relevant intention was absent. If a ... ”
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        • “ Section 59 of the Property Law 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 59 to enforce the contract. However, the principle is extremely limited in relation ... ”
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        • “ The requirement in s 59 of the Property Law Act of a signature would mean that the absence of a signature by one joint seller would preclude enforcement of the contract against that seller. Although it might be argued that the contract can be enforced against the seller who has signed, it is likely ... ”
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        • “ If one joint buyer has signed and one has not, the contract could not be enforced against the buyer who has not signed. Whether it could be enforced against the buyer who has signed will depend upon intention. It is likely that a court would hold that the buyer who has signed only intended to be ... ”
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        • “ Auction contracts are no different to any other type of contract from this point of view, and until the contract is signed it is not enforceable. This means that a buyer can walk away at any time until he/she has signed the contract and that the seller is not obliged to proceed until the seller has ... ”
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        • “ Any variation to a contract must comply with the same formality rules as for creation of a contract – in writing and signed by the parties. Variations made by representatives (either oral or in writing) will not be binding unless the representative has written authority to bind. This includes a ... ”
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        • “ 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 55-446IVI P/L v Baycrown [2004] QSC 430 (Email communications also considered)Hickory Developments P/L v ... ”
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        • “ Article:Contract - Nomination A contract may include a right to nominate. However, the common law has always recognised a right to nominate independent of any contractual right. ”
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        • “ A buyer remains liable under a nominated contract, the nominee merely being permitted to exercise the buyer’s rights. An assigned contract results in the nominee standing in the place of the buyer. A novation is where the original contract is cancelled and the new buyer enters into a new contract ... ”
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        • “ A nomination does not require a new contract, unless the buyer is relying on a contractual right and the contract condition requires a new contract. ”
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        • “ Article:Contract - Rights of nominees The seller can enforce the contract against the original buyer and any notice of default must be served on that buyer. ”
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        • “ There is conflicting authority as to whether only the buyer may rely on a condition to terminate a contract or whether the seller is also able to use non-fulfilment of the condition as grounds to avoid. The crucial issue is whether both parties can be said to gain a benefit from the condition, in ... ”
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        • “ If a special condition is for the benefit of one party only, that party may waive the benefit. In such a case the contract would proceed as if the condition had been satisfied. Best practice dictates that a special condition should express for whose benefit it has been included. Sandra Investments ... ”
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        • “ Standard condition 10.2 warrants that the buyer has consent from the Treasurer to purchase the property, or the Treasurer's consent is not required. A condition giving 45 days to obtain Foreign Investment Review Board approval is for the benefit of both parties and either party may rely on ... ”
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        • “ Articles:Contract - Finance conditionsContract - Finance conditions 2 - A silly decisionContract - Finance conditions 3 A standard form ‘subject to finance’ or ‘subject to sale of buyer’s home’ condition has been held to be for the benefit of the buyer only and therefore the failure to satisfy that ... ”
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        • “ There is an implied obligation that the parties will take all reasonable steps to comply with a standard condition. Standard conditions 3.1 and 4.1 place an express obligation on the buyer to take all reasonable steps to comply with the condition. A buyer who fails to take steps to satisfy a ... ”
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        • “ Failure to satisfy a minor requirement of a special condition, or the imposition of some minor encumbrance, will not entitle a party to avoid the contract. Bosbury P/L v Comgrigg P/L (1992) 57 SASR 241 ”
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        • “ If a leasehold land contract requires the consent or licence of a lessor or mortgagee, the contract will be ‘null and void’ if that consent is not obtained. The seller is responsible for obtaining such consent. Standard condition 5.7 ”
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        • “ A contract is an instalment contract if the buyer is obliged by the contract to make a payment or payments (other than a deposit) before becoming entitled to a conveyance of the property: s71 Property Law Act. Braidotti v Queensland City Properties Ltd [1991] HCA 19As to possession see Munro & Anor ... ”
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        • “ A seller of land sold on terms cannot subsequently mortgage that land without the consent of the buyer. s 73(1) Property Law Act ”
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        • “ A buyer who signs a contract and pays a deposit to the seller will support a buyer's lien over the land that is the subject of the contract for the amount of the deposit. ”
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        • “ Must an option be in writing? Traditionally an option has been regarded as a document that creates an interest in land. As such it will not be enforceable unless it is in writing and signed. ”
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        • “ 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 ... ”
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        • “ Generally73 Qualifications73 ”
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        • “ 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 ... ”
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        • “ The qualification for cooling off for residential property is within five clear business days of signing. s 369 PAMDA ”
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        • “ A buyer who exercises the right to cool off is entitled to a refund of the deposit less 0.25% of the purchase price. The seller may retain this penalty subject to the appointment of agent, which usually provides that the termination penalty is shared between the seller and the agent equally. ”
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        • “ This means that the day of signing is not counted and the right may be exercised right up until the end of the fifth business day, commencing on the first business day after signing. A business day is a day other than a weekend or public holiday. If a contract is signed on a Saturday, the first day ... ”
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        • “ It is the day the buyer is bound by the contract that is the trigger for time to commence to run. Once the buyer has signed, the five-day period commences. Lebdeh v Smith [1985] VicRp 78Hollingsworth v Noakes (1992) V ConvR 54-446 ”
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        • “ The notice must be in writing. Casey v Ryan [2009] VCC 1475 ”
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        • “ A buyer can waive or shorten the cooling-off period by providing a lawyer's certification in the approved form. s 369 and s 370 PAMDA ”
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        • “ The seller may be estopped from denying the existence of a right to cool off if the contract includes a notice that suggests that the right applies but in fact it does not. This will not arise in the situation where the right does not apply because of one of the statutory exceptions, as the notice ... ”
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        • “ Generally76 Presumption of tenants in common77 ”
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        • “ If more than one person owns land then those owners are co-owners. There are two common forms of co-ownership: joint tenancy; and ”
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        • “ There is a presumption in favour of tenants in common: s 35 Property Law Act. This presumption is confirmed in s 56(2) of the Land Title Act, and the registrar will register co-owners as tenants in common unless a contrary intention is expressed. Consequently, there is no need to describe co-owners ... ”
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        • “ If words of severance are used in the creation of the interest then it must be a tenancy in common, with the co-owners owning the property in the shares specified by the words of severance - for example, equally, one-third shares, quarters. Even if words of severance are not used at the time of ... ”
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        • “ 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 ... ”
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        • “ 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. Taylor & Harman v Warners noted in (1988) PLB Dec 12 ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ Co-owners who are legally married to each other will be subject to the Family Law Act 1975 and the Family Court may make orders in relation to co-owned property which the court deems appropriate. This now applies to de facto relationships. Generally see Family Law Act 1975 ”
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        • “ 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 Property Law Act 1974 specifically recognises the ability of a corporation to be a joint tenant and ... ”
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        • “ A joint tenant is entitled to mortgage or sell that joint tenant’s interest in the property. Katsaitis v Commonwealth Bank of Australia (1987) 5 BPR 12,049. ”
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        • “ One tenant in common can certainly mortgage that tenant in common’s interest in the land but one tenant in common cannot unilaterally mortgage the interest of another tenant in common in the property. Caldwell v Bridge Wholesale Acceptance Corporation (Aust) Ltd NSW Sup Crt 15/7/93Rossfreight ... ”
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        • “ It is possible for tenants in common to apply for the issue of separate titles for their shares in the land. s 57 Land Title Act ”
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        • “ Mutual transfers between co-owners, where essentially the parties 'trade' equally valued property interests, are aggregated for stamping purposes. Public Ruling DA 030.11 ”
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        • “ Generally84 Execution of documents85 ”
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        • “ 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 is unable to make a statutory declaration as such a document requires ... ”
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        • “ 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, ... ”
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        • “ 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 ... ”
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        • “ The Corporations Act 2001 specifically authorises an individual, acting with the express (written) 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. s 126 Corporations Act 2001 ”
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        • “ 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 ... ”
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        • “ 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. s 128 Corporations Act 2001ANZ Banking Group Ltd v Australian Glass & Mirrors ... ”
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        • “ 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. ... ”
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        • “ 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. s 59 Property Law Act (re-enacting Statute of Frauds) ”
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        • “ A transfer does not have to be sealed; it only has to be signed. And where signed by a company (specifically its directors/secretary) the signatures need not be witnessed. As a company seal is no longer mandatory, a transfer may be executed by the company by simply being signed on behalf of the ... ”
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        • “ Although most constitutions permit the appointment of an alternate director, not many permit the appointment of an attorney by a director. If the constitution does permit a director to appoint an attorney, which is rare, then the attorney cannot affix the company seal in a dual role as director or ... ”
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        • “ The Property Law Act 1974 has some specific sections that deal with conveyancing aspects of execution of documents, but they are of fairly limited application. s 46 Property Law Act ”
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        • “ Joint proprietors 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. s 34 Property Law Act ”
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        • “ Transfers pertaining to landholders are subject to special rules since duty on share transfers was abolished. 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 otherwise attract no stamp ... ”
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        • “ All legal entities are capable of creating interests in, or charging their assets in favour of, third parties. A buyer of a charged property will take subject to the rights of the chargee, if the buyer has notice of the charge. However the principle of indefeasibility will allow the buyer to defeat ... ”
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        • “ Given that a buyer will be subject to the interest of a prior chargee until registration, the buyer may insist upon the vendor satisfying the buyer that the charge has been withdrawn as part of the seller’s obligation to make title. Naval and Military Club v Southraw P/L & Anor [2008] VSC 593 ”
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        • “ The chargee may also be a mortgagee of the property and will provide a discharge of mortgage at settlement. General condition 7 of the 2008 prescribed contract provides that the vendor’s contractual obligation to produce a withdrawal of charge does not apply if the chargee is also a mortgagee of ... ”
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        • “ ASIC has the power to deregister a corporation that has not complied with the Corporations Act 2001. 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 ”
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        • “ 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. s 601AE Corporations Act 2001 ”
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        • “ 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. s 601AH Corporations Act 2001ASIC Regulatory Guide 83Pilarinos v Australian Security & Investments ... ”
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        • “ A certificate of reinstatement from ASIC or an authenticated copy of the court order would prove reinstatement. ”
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        • “ 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 ”
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        • “ Generally94 Proprietary right94 ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ As a covenant is essentially a contract between two people, it can be positive or negative. The Property Law Act states it confers no right to register a restrictive covenant. Section 97A of the Land Title Act allows registration of restrictive covenants under a BMS or against state or local ... ”
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        • “ 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 ... ”
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        • “ There must be both dominant and servient tenements and they must be in different ownership, as mutuality of ownership will result in a merger of the covenantor’s obligations. The lands must be proximate to each other. Mitcham City Council v Clothier [1994] SASC 5102Baramon Sales P/L v Goodman ... ”
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        • “ 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. ”
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        • “ 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. Byrns v Davie [1991] VicRp 9327 Hopetoun Rd P/L v Sanctuary International ... ”
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        • “ 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 ... ”
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        • “ Articles:Covenant - Removal of covenantsCovenant - Removal of covenants 2 By agreement ”
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        • “ Generally99 Defect in title99 ”
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        • “ 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 ... ”
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        • “ 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 seller will have no grounds for complaint. Likewise, occupation of adjoining land outside the title boundary is capable of discovery by inspection. Such defects are ... ”
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        • “ The basic rule that still applies to the sale of real estate in Queensland is ‘buyer beware’ (caveat emptor) and any defect other than a latent title defect will not benefit the buyer. Once a buyer has signed an unconditional contract to buy then the seller is only obliged to deliver the property ... ”
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        • “ Illegal works are simply one variety of defects in quality and are treated the same as any other such defect. The buyer must conduct an inspection of the property before signing the contract, and once the contract is signed the buyer accepts the condition of the property. The fact that there is a ... ”
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        • “ Articles:Defects - Occupancy and insurance certificatesDefects - Essential safety measuresDefects - Essential safety measures - Part 2 The existence of substantial cracks in the brickwork (Kadissi v Jankovic [1987] VicRp 20). ”
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        • “ The prescribed contract provides that notices served after the date of the contract become the responsibility of the buyer. It will fall to the buyer to comply with the notice, either before or after settlement, at the buyer’s expense. ”
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        • “ A defect in quality will not assist the buyer on the basis of caveat emptor (buyer beware). But there are exceptions to that principle which, if satisfied, will allow the buyer to rely on the quality defect to avoid the contract or claim damages. These exceptions are: Agreement ”
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        • “ The basic principle of caveat emptor is that a seller is not responsible for quality defects, even if those defects are known to the seller or indeed were caused by the seller. It follows from this that a seller is under no obligation or duty to inform the purchaser of quality defects; therefore, ... ”
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        • “ Misrepresentation by silence has been recognised under the Competition and Consumer Act (formerly the Trade Practices Act) and Fair Trading Act 1989 as misleading and deceptive conduct. Provided that the Acts apply, they give a buyer who can prove misrepresentation by silence the right to avoid the ... ”
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        • “ A seller will be vicariously responsible for a misrepresentation made by the agent. Pricom P/L v Sgarioto (1994) V ConvR 54-508 ”
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        • “ Generally105 Deposit or penalty105 ”
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        • “ The deposit is a payment made by the buyer at the commencement of a transaction to indicate that the buyer proposes to complete the transaction. In a conveyancing transaction the deposit is usually paid at the time that the contract is signed by the buyer and is usually, but does not need to be, up ... ”
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        • “ 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 condition will not be enforced. A condition that the buyer will forfeit the ... ”
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        • “ The deposit is usually paid when the buyer signs the contract, but the parties may agree to other arrangements. Payment must be made to a trust account in the name of the seller’s agent or solicitor, to be held as a stakeholder, or into a special-purpose bank account in the names of the seller and ... ”
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        • “ Putting aside the rare situation of the deposit going into a joint seller/buyer account, all deposits must be held by the agent or solicitor as stakeholder. This means that the stakeholder holds the deposit on behalf of both parties, not just one of them, and the agreement of both parties is ... ”
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        • “ Articles:Deposit - Deposit releaseDeposit - Deposit release - A solution? Deposit - Deposit release - Tough decisions? Deposit - Deposit release – Why take the risk? The primary obligation of the stakeholder is to hold the deposit until settlement. After settlement the deposit, less any amount owed ... ”
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        • “ The deposit may be released only if: There is no condition enuring for the benefit of the buyer (see above); and ”
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        • “ If the deposit is not released, it is released by settlement. However, a small number of transactions do not proceed to settlement as one of the parties rescinds the contract as a ”
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        • “ It is possible for the parties to agree that the deposit will be non-refundable. Gribbon v Lutton [2001] EWCA Civ 1956 ”
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        • “ The court has a discretionary power to relieve a defaulting purchaser from forfeiture. A buyer will have to establish exceptional circumstances to gain relief. s 70 Property Law ActPoort v Development Underwriting (Vic) P/L (No 2) [1977] VicRp 52Burke & Riversdale Road P/L v Gemini Investments P/L ... ”
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        • “ A deposit bond is a guarantee by an insurer that a buyer will pay the deposit when it falls due, at settlement or upon rescission. The buyer pays an insurance premium and a certificate of guarantee is given to the seller or agent. No money is paid until settlement, so the seller is unable to obtain ... ”
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        • “ Generally111 Risk111 ”
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        • “ 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 compared with a contract for the sale of an ice-cream, which is completed at the time that the agreement is made. This ... ”
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        • “ The common law held that risk passed upon sale and that, while the seller was in the position of a trustee for the buyer during the contract period, the risk of any deterioration to the property during that period fell upon the buyer. The standard REIQ contract confirms the common law position and ... ”
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        • “ Standard condition 8.3 requires the seller to not do anything that would significantly alter the property or result in later expense to the buyer. ”
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        • “ The seller’s fundamental obligation under the contract is to deliver either vacant possession or receipts of the rents and profits. A buyer who is offered a property at settlement that has substantial rubbish on it may not be able to argue that the property has deteriorated if it is in the same ... ”
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        • “ Whether the existence of such rubbish would entitle the buyer to delay settlement will depend on the buyer being able to establish that the rubbish amounted to ‘a substantial impediment to the undisturbed enjoyment of the property’. Point Glebe P/L v Lidofind P/L (1988) 4 BPR 9489Austral Standard ... ”
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        • “ Even if there has been some minor deterioration in the property during the contract period the seller may still have no liability, as standard condition 8.3 only discusses significant alteration of the property. This means that a deterioration that is just part of the normal pattern of property ... ”
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        • “ Article:Deterioration - A matter of degree If the property is in fact in a worse condition than when sold and that deterioration is beyond fair wear and tear, the buyer is entitled to regard the seller as being in breach of contract. Deterioration may fall into a number of categories. ”
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        • “ Article:Lease - Abandoned goods A buyer of leased property is vitally interested in decisions made in relation to the property during the contract period that might have an impact on the value of the property after settlement, such as rent reviews and assignments of lease. ”
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        • “ Although the risk remains with the seller under the contract, there are still grey areas. A buyer is entitled to avoid if the house is unliveable under the Property Law Act, but this does not cover all possibilities. There is no compulsion on the seller to have insurance. In all the circumstances ... ”
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        • “ There is no compulsion on a seller to give early possession. ”
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        • “ Generally116 Two properties116 ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ It is fundamental to the existence of an easement that the dominant and servient tenements be in different ownership. If the two properties come into common ownership, the easement will merge and disappear in a legal sense. ”
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        • “ Easements may be created in four ways. By statute under the Torrens system ”
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        • “ By merger If both dominant and servient tenements come into the same ownership, the easement will cease to exist. ”
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        • “ 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 ... ”
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        • “ Most laneways began their life as easements. A subdivider would transfer out of the parent title all the land comprised in the residential blocks and create an easement over the land remaining, which would be laneways for rear access to the blocks for the purpose of removal of nightsoil. These ... ”
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        • “ The extent to which the easement can be used, and the continued use of the land by the owner, also can 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 ... ”
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        • “ Generally123 Obligations123 ”
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        • “ The role of an estate agent has long been governed by legislation. Agents have strict obligations in relation to trust money and ethical obligations in relation to their conduct. Most agents belong to the Real Estate Institute of Queensland (REIQ) and comply with the rules of that body. An agent ... ”
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        • “ An agent must be licensed, have a written engagement or appointment signed by the principal, advise the principal that commission is negotiable, and include details of the method of calculation of commission in the engagement authority. ss 133, 139 Property Agents and Motor Dealers Act ”
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        • “ In Queensland, the agent generally earns commission by procuring a buyer who signs a contract, whether or not the sale actually proceeds. Thus a seller who fails to complete a sale may nevertheless have an obligation to pay commission. Scott v Willmore & Randell [1949] VicLawRp 21Hudson Conway Ltd ... ”
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        • “ Article:Estate agent - Agent's commission Commission usually forms part of the deposit paid by the buyer to the agent. The agent must hold any deposit paid in respect of the sale of land as stakeholder pending settlement of the transaction, rescission of the contract, or early release of the ... ”
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        • “ The Act prescribes forms of authority. s 134 Property Agents and Motor Dealers ActForm 22A Appointment of agent ”
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        • “ The standard authorities 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. Di Dio ... ”
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        • “ The current legislation permits a person associated - relationship/interest must be disclosed, s 138 Property Agents and Motor Dealers Act - with the agent to buy with the written consent of the owner and establishes a procedure that may allow the agent to buy. An agent may not claim commission on ... ”
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        • “ A licence is required for ‘negotiating for the sale or purchase’ of real estate. However, legal practitioners do not need a licence to perform tasks that are part of their ‘ordinary functions’. ”
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        • “ A contract to find a suitable property for a buyer for a fee is different to a contract to sell a property for a seller for a commission. Whether the agent will be entitled to the fee depends more on the terms of the contract than the Act. David Leahey (Aust) P/L v McPherson’s Ltd [1991] VicRp ... ”
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        • “ 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 buyer, although the agent will be liable to the buyer for negligence or misrepresentation. An agent has a statutory duty not to mislead ... ”
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        • “ 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 buyer for any loss flowing from a misrepresentation made by the agent. This may be on the basis of the common law, statutory ... ”
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        • “ Although it is common practice for a managing agent to claim a re-letting fee when an assignment takes place, there may in fact be no proper basis for such a claim and each situation should be considered carefully. ”
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        • “ Auction contracts generally authorise a seller to bid personally or by an agent. It has been suggested that such a practice may be contrary to the Fair Trading Act 1989, but no case has yet confirmed that opinion. Seller's bids must be announced as such by the auctioneer. ”
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        • “ Generally129 Foreign person129 ”
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        • “ Australian government policy is to limit foreign ownership of Australian real estate. There are prohibitions on foreign persons buying real estate without approval from the Foreign Investment Review Board, which is located in Canberra. See their website and particularly the Resources page. The ... ”
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        • “ Section 4 Foreign Acquisitions and Takeovers Act 1975 defines ‘foreign person’ as: an individual not ordinarily resident in Australia; or ”
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        • “ The definition of real estate is broad, covering all land in Australia. There is no threshold for residential land - it is all included - but purchases of commercial land and rural land of less than $55 million are not covered. There is a special exemption for ‘pre-approved off-the-plan ... ”
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        • “ It is an offence to buy without prior approval, so the application must be made and approval obtained prior to buying. However, it is permissible to enter into a contract that is conditional upon FIRB approval being obtained. See ss 15, 81 and 84 Foreign Acquisitions and Takeovers Act 1975. The ... ”
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        • “ The Act requires a condition that provides the contract does not become binding unless approval is obtained, so some care must be taken in drawing the condition. ”
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        • “ For a specific example of a buyer avoiding a contract for non-fulfilment of a Foreign Investment Review Board condition see: Yashima v Carroll [1995] ANZ ConvR 112. And this was notwithstanding that the purchaser advised of non-approval after the time limit imposed by the condition. However, compare ”
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        • “ Conditional contracts generally are considered under the heading of Contract, but for a specific example of a Foreign Investment Review Board condition that was held to be for the benefit of both parties and therefore exercisable by the vendor to bring the contract to an end see Re Wickham ... ”
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        • “ The Foreign Investment Review Board is obliged to respond to applications for approval within 40 days of all relevant information being provided. Contract conditions should reflect this timing, so an approval period of seven days is unrealistic. ”
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        • “ There are severe criminal penalties if a foreign interest purchases real estate without FIRB approval and a divestment order may be made. Is the contract illegal? ”
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        • “ New dwelling exemption certificates Previously known as an advanced off-the-plan certificate, developers can apply for a new dwelling exemption certificate to sell new dwellings to foreign persons without the need for them to obtain individual FIRB approval. ”
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        • “ Foreign persons who apply for approval, or who purchase is covered by a new dwelling exemption certificate, after 9 May 2017 will be subject to an annual charge where the property is not rented out or occupied for more than six months each year. The annual vacancy charge is not a condition of the ... ”
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        • “ The Foreign Resident Capital Gains Withholding Payments provisions of the Taxation Administration Act 1953 came into force on 1 July 2016. The provisions were amended from 1 July 2017 by the Treasury Laws Amendment (Foreign Resident Capital Gains Withholding Payments) Act 2017. Essentially when a ... ”
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        • “ Generally135 Threshold issues135 ”
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        • “ 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. In property transactions such as sales and leases the supplier is ... ”
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        • “ However not all supplies attract GST. The four threshold requirements are: Consideration: This may be monetary or otherwise, but not a gift. ”
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        • “ 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 ... ”
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        • “ 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 seller or landlord is not registered, GST is not payable. Certainly that may in some cases be a true statement - for instance, if a landlord ... ”
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        • “ It is important to remember that a supplier making a taxable supply is obliged to deliver a GST 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. s 29-70 GST Act ”
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        • “ Farm The farm must have been carried on for five years before sale, but it need not have been carried on as such by the present seller. The buyer only needs an intention that a farming business be carried on; again that need not be personally carried on. A short cessation of the farming business ... ”
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        • “ Sale of residential land Vacant land can never be ‘residential premises’. A building capable of being occupied as a residence must exist on the land before it can be regarded as residential premises. ”
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        • “ Article:GST - GST margin scheme The margin scheme has two applications: ”
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        • “ 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 seller before settlement and there is an adjustment in favour of the seller, then GST is payable on the increased ... ”
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        • “ GST is payable on supply, which logically equates to possession. On this basis GST would be payable upon preliminary settlement, when possession is given. However the ATO generally takes the view that supply is made at final settlement, even on terms contracts. Payment of instalments may trigger a ... ”
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        • “ Usually a mortgagee exercising the power of sale will be doing so in the course of an enterprise and thus making a taxable supply. This would be the case even if the mortgagor would not have been making a taxable supply if the mortgagor were selling. However the mortgagee will not be making a ... ”
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        • “ 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 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 ... ”
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        • “ A seller who forfeits a deposit upon default by the buyer is liable to pay GST on the deposit, but only if the underlying transaction would have attracted GST. Commissioner of Taxation v Reliance Carpet Company P/L [2008] HCA 22ATO Decision Impact Statement ”
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        • “ The consideration expressed in the transfer should reflect the full consideration and should include any GST paid by the buyer in addition to the purchase price. Duty is payable on the GST inclusive price. ”
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        • “ It may be possible to rectify a contract if the GST consequences do not truly reflect the agreement of the parties. Where it can be independently established that the parties agreed that the price was to be plus GST but the contract erroneously specified an inclusive price, the contract was ... ”
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        • “ Generally149 Guarantee or indemnity149 ”
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        • “ A guarantee is an obligation assumed by a third party (the guarantor) in favour of a second party (the beneficiary) to secure the performance of the obligations of a first party (the debtor). If a contract exists between A and B, C may guarantee to A that B will perform the contract. If B fails to ... ”
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        • “ A guarantee is a secondary contract or obligation that depends upon the continuation of the principal contract or obligation. An indemnity is a primary obligation, accepted by the third party surety, and liability is independent of the principal obligation. To rely on a guarantee alone, breach of ... ”
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        • “ A court would normally expect a contract of guarantee to be evidenced by a document. A contract of guarantee may be in writing or may be constituted by an oral agreement, or a combination of both. The modern statutory equivalents to the statute of frauds require a guarantee to be in writing before ... ”
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        • “ Unless the guarantee is given under seal, consideration is an essential element of the contractual relationship between guarantor and beneficiary. However it will normally be satisfied by the beneficiary agreeing to enter into the principal contract. Section 56 of the Property Law Act provides if ... ”
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        • “ A person who signs a guarantee will normally be bound by it. Even a sole signatory of a guarantee that has provision for two guarantors may be bound by his or her signature. Taubmans P/L v Loakes [1991] 2 Qd R 109 ”
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        • “ Whilst it has long been established that a material alteration to a guarantee after execution will render the guarantee void, not all alterations will be material. Westpac Banking Corporation v Chan and Others (1991) 104 FLR 37 ”
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        • “ Most guarantees will provide that the beneficiary of the guarantee will be entitled to enforce the debt against the original debtor or the guarantor, at the beneficiary’s discretion. Whilst those actions must be bona fide, the guarantee document may restrict the ability of the guarantor to inquire ... ”
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        • “ Guarantees will usually be drawn such that all guarantors are jointly and severally liable for the debt. The beneficiary may choose to pursue just one of several guarantors. Whilst there is an underlying equity in that there must be equality of burden between co-guarantors, they may agree to place ... ”
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        • “ A guarantor is entitled to an indemnity from the debtor in relation to any payment made by the guarantor in reduction of the guaranteed debt. O’Donovan and Phillips, The modern contract of guarantee ”
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        • “ The benefit of a guarantee may be assigned, provided normal formalities are observed. Market Services P/L v Westpac Banking Corporation (1997) V ConvR 54-569 ”
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        • “ Guarantors have been described as ‘favoured debtors, the darlings of the law’. Guarantees often arise through family ties and the law has shown a willingness to forgive such foolhardiness. There are many well established escape routes and some of more recent invention, and far wider application. ... ”
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        • “ A guarantee may involve the guarantor providing security over land owned by the guarantor in favour of the beneficiary. This security may be in the form of a mortgage over the land, which may or may not be registered on the title, or just a charging clause whereby the guarantor charges the property ... ”
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        • “ It is common for a landlord to seek a guarantee of a tenant’s obligations under a lease. The guarantor’s obligations continue notwithstanding the termination of the lease for breach. Nangus P/L v Charles Donovan P/L (In Liquidation) [1989] VicRp 17 ”
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        • “ A guarantor of a lease has a contract of guarantee with the landlord; but, if the landlord sells the freehold, the guarantor has no direct contractual relationship with the new owner. Nevertheless, the new owner may enforce the guarantee as a covenant that touches and concerns the land. Lang v ... ”
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        • “ A guarantee of a purchaser will remain enforceable notwithstanding rescission of the contract for breach. Womboin P/L v Savannah Island Trading P/L (1990) 19 NSWLR 364 ”
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        • “ Generally157 Personal insolvency158 ”
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        • “ 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 ... ”
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        • “ Personal insolvency is governed by the Bankruptcy Act 1966, 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 ... ”
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        • “ 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 ”
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        • “ 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 ”
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        • “ Severance of joint tenancy Bankruptcy constitutes a severance of a joint tenancy and the trustee in bankruptcy will automatically become a tenant in common in equity from the date of appointment and will be a tenant in common at law from the date of registration of the transmission application. The ... ”
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        • “ 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 ... ”
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        • “ 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. ”
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        • “ 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 ”
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        • “ 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. ”
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        • “ 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 ... ”
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        • “ All of a bankrupt’s property vests in the trustee, with minor exceptions. ”
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        • “ Corporate insolvency is governed by the Corporations Act 2001, 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 equivalent to personal bankruptcy. A ... ”
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        • “ 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 ... ”
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        • “ 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 ”
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        • “ 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. ”
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        • “ 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 ”
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        • “ 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). ”
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        • “ Specific statutory provisions create 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. ”
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        • “ 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 ... ”
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        • “ 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. ”
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        • “ Generally168 Lease or tenancy169 ”
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        • “ 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 all of the world, including the owner. Such a right is recognised as a proprietary right and thus protected by the law. ... ”
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        • “ 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 chapter uses the word lessor ... ”
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        • “ 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 all of the world. A licence however is merely a contractual right that exists between the parties to the contract. It is ... ”
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        • “ 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 ... ”
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        • “ 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 ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ Whilst it is possible to register a lease of more than three years on the certificate of title, it is not normally done in Victoria because of the protection offered to a tenant in possession by the Act. ”
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        • “ Incorrectly defining or describing the premises may give the lessee a right to damages. Foong & Leong v Great Union P/L [2001] VCAT 1540 ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 tenancies. Generally speaking there is no presumption that the lessor is to hold the security deposit in trust for ... ”
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        • “ 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 ... ”
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        • “ 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. ”
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        • “ 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 virtually the only right that the lessee enjoys. The right is created by the lessor covenanting with the lessee to ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ”
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        • “ 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. ... ”
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        • “ The Building Energy Efficiency Disclosure Act (Commonwealth) imposes disclosure obligations in respect of properties over 2000 square metres. ”
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        • “ 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, ... ”
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        • “ Recorded information is available by phone on 1300 135 070. Information is also available at the Australian Bureau of Statistics. ”
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        • “ Errors may be rectified by the court. Thermoplastic Foam Industries P/L v Imthouse P/L (1990) ANZ ConvR 532 ”
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        • “ 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. ”
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        • “ 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. ... ”
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        • “ 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. ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ If a lease has been terminated and the lessee refuses to deliver up possession, the lessor may issue proceedings in the Magistrates Court. s 141 and s 142 Property Law Act ”
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        • “ 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 be liable to an action for ... ”
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        • “ Periodic leases roll on until terminated by notice of either party. In the absence of a contrary agreement, the lease will continue indefinitely until determined by proper notice. ”
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        • “ 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 lease affecting more ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 52Compare with: Caltex Properties Ltd v Pittard ... ”
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        • “ 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 either retypes, ... ”
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        • “ 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 ... ”
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        • “ A consideration of residential tenancies is outside the scope of this work. See Residential Tenancies and Rooming Accommodation Act. ”
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        • “ A consideration of caravan parks, which are governed by the Residential Tenancies and Rooming Accommodation Act 2008, is outside the scope of this work. ”
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        • “ There are two ways that the lessee may change. Sublease ”
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        • “ 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 ... ”
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        • “ Generally195 Application196 ”
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        • “ 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 ... ”
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        • “ The Act applies to all retail shop leases, whether entered into or renewed before or after 28 October 1994. Limited parts of the former 1984 Act continue to apply. s 13 Retail Shop Leases Act ”
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        • “ The Act applies to any premises in a retail shopping centre or premises used predominantly for the carrying on of a retail business. An extensive list of retail businesses is found in the Schedule to the Retail Shop Leases Regulation 2006. ”
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        • “ Even if the premises are used for retail purposes, the Act will not apply if: the floor area is over 1000 square metres and leased by a corporation/subsidiary; or ”
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        • “ Consumer protection requires information. A consumer is more likely to make a good decision if the consumer has access to all relevant information. The Retail Shop Leases Act requires a lessor to provide a prospective lessee with a copy of the proposed lease and disclosure statement at least seven ... ”
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        • “ Disclosure provisions apply to assignment. s 22B and s 22C RSLA ”
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        • “ Notice if no option exists If the lease does not contain an option, the landlord must give notice to the tenant between six and 12 months prior to expiry of the term that the landlord will offer the tenant a renewal on specified terms, or that no renewal is available. If the landlord fails to give ... ”
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        • “ Key-money is the demand for money by a landlord as a condition to the landlord granting a lease, agreeing to the exercise of an option, or consenting to an assignment or sublease. Acceptance of key-money or any consideration for goodwill is prohibited by the Act. ”
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        • “ Section 27 of the Act provides: that the lease specify the time and method of review; and ”
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        • “ Traditionally leases drawn on behalf of landlords have included a requirement that the tenant pay the landlord’s legal costs in relation to preparation of the lease and also any matters arising during the lease, such as upon assignment or default by the tenant. However the Act prohibits the lease ... ”
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        • “ Leases often require tenants to pay outgoings, such as rates and service 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 tenant to contribute to body corporate and common area expenses. The Act ... ”
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        • “ Many retail premises are located in retail shopping centres. The Act imposes penalties if the landlord fails to maintain the centre or interferes with the conduct of the tenant’s business. The tenant must be consulted in relation to changes within the centre. s 43 RSLAFernandes v Lam P4/1999 [1999] ... ”
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        • “ The primary venue for retail tenancy disputes is QCAT (Queensland Civil and Administrative Tribunal). However the Act seeks to ensure that all disputes first go to mediation. Either ”
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        • “ The Retail Shop Leases Act has no provision re security deposit. Non-refundable bonds are deemed key-money and are unlawful. s 39 RSLA ”
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        • “ The Act prohibits unconscionable conduct. s 46A RSLABarbcraft P/L v Geobel P/L [2003] VCAT 1700Tenth Vandy P/L v Natwest Markets Australia P/L [2010] VSC 2Australian Competition and Consumer Commission v Dukemaster P/L (ACN 050 275 226) [2009] FCA 682 ”
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        • “ Generally203 Misdescription204 ”
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        • “ This chapter is concerned with the issue of the physical dimensions of a property, the boundaries. Conveyancing is concerned with the transfer of ownership of land, including improvements, and the measurements or dimensions of the property sold are of critical importance to the parties. Disputes in ... ”
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        • “ The law requires the transfer of ownership of land to be in the form of a deed, which is a document in writing executed under seal. This is known as the document of assurance. s 10 Property Law Act ”
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        • “ A seller has a fundamental duty to make title to land that the seller has contracted to sell before a buyer can be required to complete the transaction. This obligation consists of: A duty to show good title to the land sold; ”
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        • “ Whether a misdescription may also constitute a defect in title will depend upon determining exactly what it is that the seller has contracted to sell to the buyer. The seller must make title to that which the seller has agreed to sell, but need not make title to something which the seller has not ... ”
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        • “ If 10 Smith St is sold by description, then the vendor will be obliged to make title to the land physically occupied by 10 Smith St. If 10 Smith St 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 ... ”
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        • “ If 10 Smith St is sold by title, then the seller will be obliged to make title to the land described in the title. If 10 Smith St 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 seller ... ”
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        • “ 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 ... ”
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        • “ 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 ”
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        • “ 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 ... ”
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        • “ If there is an error in the land boundaries or mistake/admission in describing the property, a buyer's only remedy if they wish to complete the contract is for compensation. This is only possible if claimed in writing before settlement: standard condition 7.5(2). ”
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        • “ 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 ... ”
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        • “ The parties are capable of agreeing to the terms of their contract. It is open to the parties to agree that the buyer 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 ... ”
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        • “ 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. Venture v Maladale (1987) V ConvR 54-206 ”
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        • “ The parties are capable of agreeing to the terms of their contract. It is open to the parties to agree that the buyer shall not have the right to claim compensation. ”
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        • “ 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 ... ”
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        • “ Trifling errors ought be ignored. Black v Apps [2005] NSWSC 943However see PCH Melbourne P/L v Break Fast Investments P/L [2007] VSC 87 ”
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        • “ There is no obligation on the seller to provide a survey. Svanosio v McNamara [1956] HCA 55 ”
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        • “ A plan of subdivision must clearly show all proposed lots and easements and be certified by a cadastral surveyor: s 50(1) Land Title Act 1994. ”
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        • “ It is possible to sell land off the plan, which means that at the time of sale the property being sold and the title to that property may not exist. All that exists is a proposed plan of subdivision that will describe the property by way of a diagram. When the property is built and the new title ... ”
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        • “ The law relating to fences is set out in the Neighbourhood Dispute Resolution Act 2011. ”
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        • “ 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. Re liability of property owners for the ‘acts’ of their ... ”
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        • “ The boundary constituted by a river is the middle line of the river. If the course of the river changes naturally, the boundary line changes with the river. If the course of the river changes suddenly, the boundary does not change; however, if the parties agree to change the line of the river, the ... ”
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        • “ Generally216 The doctrine of the merger216 ”
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        • “ 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 ... ”
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        • “ 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, ... ”
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        • “ 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 ongoing obligations of the parties. It has little relevance to a Torrens transfer, particularly the modern form of ... ”
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        • “ Seller’s obligations The obligation to deliver vacant possession.Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264 ”
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        • “ Generally221 Verification of identity222 ”
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        • “ 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 ... ”
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        • “ Legal representatives are required to identify their clients in a number of circumstances. Although there are no formal requirements as a matter of good practice new clients should be identified, for example by sighting a driver licence or other common document There are more formal requirements ... ”
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        • “ 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 ... ”
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        • “ An instrument of mortgage must be executed in the approved form. s 73 Land Title Act ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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. However s 78(1)(a) Property Law Act 1974 implies into ... ”
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        • “ 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 ”
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        • “ A mortgage is a contract. If the mortgage provides that repayment is to be on an ascertainable date, then that is the date for repayment and early or late repayment will be a breach of the contract. Early repayment ”
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        • “ 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 ... ”
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        • “ 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, ... ”
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        • “ 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 ... ”
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        • “ Mortgagees may agree amongst themselves as to the priority of their mortgages. If those mortgages are registered, they may lodge a variation of priority. A variation can only be registered in relation to registered mortgages. If one mortgage is not registered, a variation cannot be registered, even ... ”
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        • “ The terms of a mortgage may be varied and the variation may be registered. The following provisions of a mortgage can be varied: ”
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        • “ Section 82 of the Property Law Act effectively abolishes the general right to tack with the exception of the tacking of a further advance. A mortgagee may advance as much and as often as the mortgagee wishes to. The doctrine of tacking merely affects the priority that the mortgage will enjoy over ... ”
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        • “ Marshalling equitable doctrine 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 ... ”
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        • “ 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 ”
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        • “ Most discharge documents simply refer to the discharge of the land from the obligations under the mortgage. This does not necessarily constitute a discharge of the personal covenants that bind the mortgagor pursuant to the mortgage contract. Industrial Acceptance Corporation Ltd v Tarulli [1974] ... ”
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        • “ The Torrens system enables a minor to be recorded as the proprietor of land. Principles of indefeasibility would remain in place to protect the minor. s 28(1) Land Title Act ”
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        • “ 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. Apollo 169 Management P/L v Pinefield ... ”
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        • “ If a property that is subject to a mortgage is subdivided, the mortgage will register against all of the newly created lots. The mortgagor might wish to ask the mortgagee to apportion the mortgage money and accept a new mortgage or a discharge in relation to individual lots but there is no ... ”
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        • “ No action for recovery of money due under a mortgage may be commenced after 15 years from the date when the right to the money accrued. s 26 Limitation of Actions Act ”
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        • “ 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. ”
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        • “ If one joint proprietor/borrower forges the signature of the other joint proprietor/borrower, the lender's mortgagee will become indefeasible upon registration. However the mortgage ”
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        • “ Generally238 Mortgagee's rights238 ”
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        • “ 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 ... ”
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        • “ Power of sale The mortgagee’s fundamental right is the right of power of sale. This allows the mortgagee to sell the property and apply the proceeds towards discharge of liabilities relating to the property. ”
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        • “ Power of sale Notice ”
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        • “ Once the mortgagor has committed a default, the mortgagor’s only rights are to ensure that the mortgagee fulfils the duties outlined above. If the mortgagor is of the view that the mortgagee is in breach of any of those duties, the mortgagor may approach the court for help. Traditionally a ... ”
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        • “ Buyer 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. ”
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        • “ A mortgagee sale is effected by a registered transfer. The effect of registration of that document is to transfer the interest of the mortgagor as registered proprietor to the buyer/transferee. s 79 Land Title Act ”
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        • “ Foreclosure is the alternative to a mortgagee’s sale. As a result of the foreclosure procedure, the mortgagee becomes the registered proprietor, rather than selling the property to a third party. Foreclosure is rare. ”
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        • “ Generally249 Legal obligation250 ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ Notice served prior to sale The fact that a notice is in existence when a property is sold would mean that the property suffers from a latent defect in title and the seller would remain responsible for compliance with the notice, unless liability is transferred to the buyer by the contract. ”
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        • “ A buyer may be left lamenting if the communication was not a notice. ”
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        • “ Generally253 Owner-builder notices254 ”
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        • “ The liability of builders is dealt with under the heading of Builder's liability. This chapter is concerned with liability for the construction of a building by a person who is generally referred to as an ‘owner-builder’. For the purposes of this chapter, an owner-builder is a person who is the ... ”
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        • “ Owner-builders are required to provide prospective purchasers with a notice in relation to the work carried out on the property under an owner-builder permit if the sale is within six years of the completion date of the owner-builder work. When should the notice be given and what should it contain? ”
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        • “ An owner-builder who sells a property to a buyer would have contractual and tortious duties to the buyer, but those duties might be very limited. In relation to the contract, any implied conditions relating to standard of workmanship are likely to be restricted and tortious duties will be limited ... ”
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        • “ Every sale by an owner-builder or builder-owner must include the following warranties in the contract: That all building work was carried out in a proper and workmanlike manner; ”
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        • “ Generally256 Common law power of attorney257 ”
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        • “ It is common for one person to want to appoint another person to be his or her representative for the purpose of 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 ... ”
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        • “ Traditionally, powers of attorney were in long, detailed form setting out the specific powers of the attorney, but the law was simplified by making provision for powers of attorney to be in a short form. This, however, does not mean that a long form of power of attorney is invalid; it just ... ”
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        • “ Chapter 2 of the Powers of Attorney Act created a statutory form of power of attorney called a General Power of Attorney. This is the simplest type of power, but it ceases to be enforceable if the donor of the power loses mental capacity. For this reason, an Enduring Power of Attorney (see below) ... ”
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        • “ Chapter 3 of the Powers of Attorney Act authorises a power of attorney that endures notwithstanding that the donor may have lost mental capacity. The attorney is able to continue making decisions on behalf of the donor even after the donor has lost legal capacity to make those decisions. This ... ”
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        • “ Individuals have the right to make decisions about and decisions for their future health care. Under an advance health directive a person can appoint one or more attorneys to make decisions for a health matter if directions are inadequate. s 35 Powers of Attorney Act ”
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        • “ Conditions or limitations may be imposed on the attorney’s power. ”
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        • “ An enduring power of attorney may be given to two or more attorneys. If the power is joint then all attorneys must agree, but if the power is joint and several then each attorney is capable of making decisions. s 13 and s 43 Powers of Attorney Act ”
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        • “ Alternate attorneys may be appointed to act when the attorney is unable to act.The difficulty with alternate attorneys is they have to prove that the named attorney is unable to act, and that may be difficult in some circumstances. ”
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        • “ Two or more principals may jointly appoint an attorney. In this instance the attorney can only act for all principals jointly. ”
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        • “ The Corporations Act 2001 does not contain a specific power for a corporation to grant a power of attorney; however a corporation may expressly or impliedly authorise an agent to enter into a contract on its behalf. Further a corporation has all the powers of a legal person, which would include the ... ”
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        • “ 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 ... ”
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        • “ 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 ”
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        • “ The basic rule is that a trustee should not delegate authority to another. However the Trusts Act authorises a trustee to appoint an agent to transact business on behalf of the trustee, and this power is often used to authorise solicitors and others to perform administrative functions on behalf of ... ”
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        • “ The basic rule is that an executor or administrator cannot delegate and therefore cannot appoint an attorney. In rare circumstances the Registrar of the Supreme Court may allow a personal representative to appoint an attorney to apply for a grant of representation. ”
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        • “ A power of attorney may be expressed to be irrevocable if it is made to secure a proprietary interest of the attorney or the performance of an obligation owed to the attorney. ”
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        • “ The death of the donor revokes an enduring power: s 51 Powers of Attorney Act. The death of a donor revokes a general power: s 19. ”
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        • “ An enduring power must be signed by the donor and must be witnessed and dated by two adult witnesses who sign in the presence of the donor. s 44 Powers of Attorney Act ”
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        • “ At the time of signing the witnesses must certify on the document that the donor signed freely and had capacity to make the power. If the power was signed on behalf of the donor, the witnesses must certify that this was done with the donor’s consent and capacity. ”
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        • “ A power of attorney may be registered at the Titles Registry. ”
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        • “ Of donor As a general rule, the appointment of an attorney by an insolvent will be ineffective, as the insolvent has lost the ability to control his/her affairs. Equally, a power of attorney given by a donor who subsequently becomes insolvent will cease to be effective upon insolvency. ”
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        • “ The best proof is the original document itself. An alternative is a photocopy of the original with a certificate by the donor or a solicitor or other authorised person to the effect that it is a true and complete copy. s 45 Powers of Attorney Act ”
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        • “ When signing documents pursuant to the power, the attorney must make it clear in the signing clause that the attorney is signing on behalf of the donor. Provided it is clear that the attorney is signing on behalf of the donor, the attorney may sign either in the name of the attorney or in the name ... ”
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        • “ The Registrar must keep a register of powers of attorney: s 133 Land Title Act. A power of attorney may be revoked by registering the revocation: s 135 Land Title Act. ”
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        • “ The powers of an attorney are very wide. Acting within the limits of the fiduciary duty to the donor, the attorney may undertake almost all legal actions that the donor could have undertaken. However, acts that breach the fiduciary relationship between the parties will be struck down. Powell v ... ”
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        • “ Even if there is an irregularity in the relationship between donor and attorney, the donor will be liable to innocent third parties for the actions of the attorney. National Australia Finance Ltd v Fahey [1990] 2 NZLR 482 ”
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        • “ If there is some formal defect in the power or the appointment, the donor may ‘save’ a transaction by confirming the actions of the attorney pursuant to the power. Land Title practice manual [16-0010] ”
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        • “ An enduring power of attorney must be signed by the attorney to confirm acceptance of the appointment. The acceptance must be attached to the power and be in the approved form. By acceptance, the attorney accepts responsibility to maintain records of all dealings and transactions made under the ... ”
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        • “ A Queensland power may be recognised in another state, but that is not a certainty. There is no uniformity of laws relating to powers of attorney throughout Australia and, while the laws are similar, they are not identical. Some jurisdictions still require registration and the payment of stamp duty ... ”
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        • “ The same arguments apply as for interstate enforceability. Although a Queensland power may satisfy formal requirements, there is every chance that it will not. And so, if possible, instructions should be given to overseas solicitors or one of the firms in Queensland that have a knowledge of the ... ”
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        • “ A power made in another state or territory will be recognised in Queensland if it complies with the laws of that state or territory. s 34 Succession Act ”
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        • “ Generally267 Legal interest takes priority267 ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ 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 ... ”
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        • “ Applying the three priority rules to disputes between registered interests results in: Legal interest prevails - both are registered, therefore both are legal. ”
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        • “ 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 ... ”
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        • “ 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 ”
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        • “ Applying the priority rules to a dispute between a prior registered interest and a subsequent unregistered interest, the outcome is: legal interest prevails - the registered interest is legal; ”
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        • “ 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 ... ”
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        • “ Indefeasibility is a powerful concept. Even a document that would otherwise be void is protected by registration. Breskvar v Wall [1971] HCA 70 ”
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        • “ 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 for compensation or damage against the state. s 188A Land Title Act ”
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        • “ Generally284 Rescission285 ”
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        • “ The fundamental elements of a conveyancing transaction are the contract of sale and settlement. The contract establishes the rights and obligations of the parties and settlement puts those rights and obligations into effect. If one of the parties fails to honour contractual obligations, either ... ”
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        • “ Rescission has a somewhat wider meaning in general contract law but, for the purposes of this chapter, it is the implementation of the rights created by standard condition 9.1. ”
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        • “ This is a common law concept that refers to the consequences of terminating a contract such that the contract is brought to an end as of the very beginning, as if the contract never existed. This might occur in cases such as fraud or mistake, but it is not relevant to rescission pursuant to ... ”
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        • “ Rescission and termination are virtually interchangeable, in that they both mean that the contract comes to an end as of the date of rescission/termination. Rescission is the word used to describe the consequences of breach of contract. Termination is the word used to ”
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        • “ Repudiation and rescission are different concepts. Rescission is the acceptance by one party of a breach by another party as a basis for bringing the contract to an end. Rescission in this sense is a confirmation of the contract by the implementation of the rights created by the contract. ”
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        • “ 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 ... ”
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        • “ Standard condition 6 of the REIQ contract makes time for performance of contractual obligations of the essence, which means that parties are required to perform their contractual obligations according to the time established by the contract. Any divergence from that timetable, such as a failure to ... ”
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        • “ Upon a fundamental breach of the contract the other party has the right to affirm or terminate the contract: standard condition 9.1. Immer (No. 145) P/L v Uniting Church (1993) 9 Leg Rep 16Marathon Holdings P/L v Thurio P/L (1991) ANZ ConvR 236McMahon v Shadbolt [2009] VCC 746 ”
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        • “ A party who affirms the contract notwithstanding a breach by the other party must, before taking steps to enforce the contract, give adequate notice to the other party that time is again of the essence. Green v Sommerville [1979] HCA 60Mt Pleasant Estates Co Ltd v Withell [1996] 3 NZLR 324Naval and ... ”
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        • “ Aussie Invest Corp P/L v Pulcesia P/L [2005] VSC 362Compare Smilie P/L v Bruce (1998) NSW ConvR 55-841 As standard condition 5.1 now requires settlement by 5.00 pm, it might be argued that a party that failed to settle at an agreed earlier time might be entitled to insist on settlement at any time ... ”
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        • “ Ready, willing and able Subject to the seller being ready, willing and able to settle, the seller will be entitled to rescind if the buyer fails to perform the buyer’s contractual obligations. ”
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        • “ Many of the matters discussed in relation to the seller apply to rescission by the buyer. Standard condition 9.1 is drawn so as to apply to both seller and buyer and standard ”
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        • “ To satisfy the need to tender, a buyer must calculate precisely the amount due to the buyer pursuant to the contract, including adjustment of outgoings. This amount must be tendered by bank cheque in accordance with standard condition 2.5(1). Tender will not be necessary if the seller indicates to ... ”
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        • “ If breach remedied In default the buyer may be obliged to pay penalty interest and legal costs on an indemnity basis. If the seller is the defaulting party and remedies the default, the seller may be obliged to pay legal costs on an indemnity basis arising from the rescission. ”
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        • “ Standard condition 9 gives the seller contractual rights to affirm or terminate the contract. These contractual rights are in addition to any rights that the seller may have under the common law and the seller may rely on both these contractual and common law rights. Standard condition 9.4 - the ... ”
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        • “ Upon rescission, the buyer’s interest in the property ceases. The seller is entitled to lodge an application for removal of the caveat. ”
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        • “ Rescission is a fundamental confirmation of the efficacy of the contract as it relies upon the terms of the contract. A party who successfully rescinds brings the contract to an end, but does not renounce the contract. However it is sometimes argued that a party who unsuccessfully rescinds a ... ”
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        • “ Generally298 Contract of sale298 ”
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        • “ 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 issues that arise in simple ... ”
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        • “ A sale of business is fundamentally a contract, an agreement between two parties that is enforceable in a court. Unlike a contract for sale of land that must be in writing, there is no legal requirement that a contract of sale of business be in writing. Thus it is possible to enforce even a verbal ... ”
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        • “ The seller's statutory disclosure obligations depend on the type of business sold rather than arising from the sale of the business per se - see Retail Shop Leases Act 1994 and Franchising Code of Conduct. See also Buying and selling businesses and franchises. ”
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        • “ A sale of business generally envisages that the buyer will continue to operate the business after settlement from the premises occupied by the seller prior to settlement. If in fact it is intended that the buyer will remove the plant and equipment that have been used by the business from the ... ”
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        • “ Very occasionally a buyer might wish to buy the goodwill or intellectual property associated with a business and not want to take over any plant and equipment or premises. Such a sale may still be a sale of business, at least of a business asset. Arguably some intellectual property assets such as ... ”
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        • “ As well as the possibility of a claim based on misrepresentations contained in the disclosure documents, the buyer may have a claim based on other precontract misrepresentations, such as anticipated improvements to the property or anticipated business growth. Moorna Constructions (NSW) P/L v ... ”
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        • “ As most transactions use the copyright form of contract, it is convenient to consider some of its important conditions. Cooling off ”
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        • “ Generally304 Who attends settlement304 ”
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        • “ To some extent a conveyancing transaction culminates in settlement. This is the event that has been eagerly awaited by seller and buyer and, while there are still some matters to be attended to after settlement, this is the important event when the buyer pays the balance due under the contract and ... ”
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        • “ If the sellers or buyers 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 seller and buyer, who will not attend in person, although they may do so if ... ”
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        • “ Standard condition 2.5 provides that the buyer shall pay the money due to the seller; or the seller’s legal practitioner or conveyancer; or as the seller, legal practitioner or conveyancer directs. ”
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        • “ Payments required under the contract may be made by cash or ‘bank’ cheque, but not by trust account or personal cheque as these may be stopped or dishonoured. Standard condition 2.5(1) ”
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        • “ Standard condition 2.5 requires the buyer to pay the settlement money to, or in accordance with a direction from, the seller, the seller’s legal practitioner or the seller's conveyancer. The seller can request more than two cheques but will be responsible for payment. ”
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        • “ The buyer is entitled to receive possession of the property from the time of settlement, and the keys are the ultimate indication of possession. It is common practice for keys to be left with the estate agent, who is usually located in the general vicinity of the property. After settlement the ... ”
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        • “ Standard condition 5.5 entitles the purchaser to ‘vacant possession’ of the property upon payment of the balance due under the contract, unless the contract is expressed to be subject to a lease. This means that the vendor must have vacated the property and left it in a condition that will allow ... ”
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        • “ Standard condition 5.5 requires the seller to hand over the property in the same condition it was on the day of sale, fair wear and tear excepted. This means that the property may be in a less attractive condition as compared with the day of sale: grass may have grown, walls and carpet may have ... ”
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        • “ Standard condition 8.2 gives the buyer and its consultants the right to inspect the property once before settlement. The right is to ‘inspect’, which would appear to be a singular right, exercisable once only. Any further inspections would need to be with the consent of the seller. If the buyer ... ”
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        • “ This issue has generally been considered from the point of view of the seller’s obligation to make title and, as the certificate of occupancy is not a document going to title, the seller is not obliged to provide it. A Queensland case has considered the issue from the point of view of vacant ... ”
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        • “ The buyer is obliged to seek out the seller. This is often referred to as ‘settlement follows the title’ and allows the seller to nominate the place of settlement. If the seller has a clear title, settlement may be at any place nominated by the seller. If the seller has a mortgage over the title, ... ”
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        • “ Calculating the day for settlement depends upon the wording used in the contract. The standard contract calls for a specific date for settlement to be nominated. If a specific day for settlement is set - for example, 13 April - then settlement is due on that day. If the contract requires settlement ... ”
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        • “ Whilst standard condition 6.7 makes time of the essence, 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 settle at that time, settlement may still be conducted at a later time that day. Aussie ... ”
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        • “ 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 a letter, but an oral agreement is often ... ”
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        • “ 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 ... ”
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        • “ If one party breaches the contract, the other party has a right to damages under standard condition 9.7 and 9.8. But if the first party cures the breach and it is then discovered that the other party in fact was not in a position to settle on the settlement date, the party who was in breach may ... ”
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        • “ Disputes often arise when the seller claims that the buyer is in breach for not settling, but the buyer claims that the seller is in breach by failing to make title. The seller’s contractual obligation as set out in standard condition 5.3 is to deliver to the buyer any instrument required to ... ”
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        • “ Generally316 Basis of the relationship316 ”
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        • “ This chapter is concerned with the relationship between solicitor and client and, to a lesser extent, between solicitors. ”
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        • “ 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 ... ”
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        • “ 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 personal interests of the solicitor conflict with the interests of the client, or indirectly, where the interests of another of the ... ”
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        • “ A solicitor facing a potential conflict of interest may be able to avoid that conflict becoming actual 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 ... ”
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        • “ 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. This follows from the fiduciary nature of the relationship, a fundamental obligation ”
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        • “ The solicitor is authorised by the relationship to act on behalf of the client. By this, the solicitor becomes the agent of the client but, owing to the fiduciary nature of the relationship, must exercise that authority strictly in the interests of the client. As regards third parties, the ... ”
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        • “ The solicitor’s tortious liability is centred around 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 ... ”
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        • “ 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 ”
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        • “ 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 ”
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        • “ Solicitors who obtain specialist accreditation and then hold out to their clients that the solicitor has specialist skills have a higher duty of care to their clients. Yates Property Corp P/L v Boland and Others (1998) 89 FCR 78Boland v Yates Property Corporation P/L [1999] HCA 64 ”
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        • “ Articles:Solicitors - Executor's commission 1 - Horns of a dilemmaSolicitors - Executor's commission 2 - A fiduciary duty 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: ”
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        • “ The giving of an undertaking by 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 is binding on the solicitor. Hammond v Hamlin (1993) ANZ ConvR 1Legal Services ... ”
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        • “ A solicitor is entitled to retain a client’s documents until the solicitor’s costs have been paid. This includes documents held on behalf of the client in relation to matters other than the matter in relation to which the costs are owed. The lien does not apply if it is the solicitor who brings the ... ”
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        • “ Upon 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 property of the solicitor. Thus the client is not entitled to: The file cover, which may include Instructions ... ”
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        • “ It is professional misconduct to lodge a caveat on behalf of a client unless the solicitor is reasonably satisfied that the client has a legitimate interest in the land. It is not sufficient that the owner of the land owes money to the client. This does not create an interest in the land such as to ... ”
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        • “ Solicitors must make any payments from the trust account by cheque or electronic funds transfer. Solicitors are obliged to report cash receipts exceeding $10,000 to AUSTRAC (Australian Transaction Reports and Analysis Centre). ”
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        • “ The fundamental rules relating to costs are set out in the Legal Profession Act 2007. Information ”
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        • “ 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. These ... ”
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        • “ 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. Privilege will rarely arise in relation to conveyancing transactions. For a case involving alleged privilege ... ”
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        • “ 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. ”
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        • “ Generally334 Unstamped documents inadmissible335 ”
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        • “ 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 ... ”
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        • “ Duty is payable on documents that evidence transactions, and where no document evidences a transaction a declaration pertaining to same. To ensure compliance with the imposition of duty, the Duties Act 2001 provides that a document that is not duly stamped will not be admissible in court, except in ... ”
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        • “ A transfer of dutiable property attracts duty. s 9 Duties Act ”
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        • “ An application for refund of overpaid duty may be made to the Office of State Revenue. Depending on the circumstances in which a refund is required, the application will require specific documentation and will need to be lodged by a certain time. ss 115, 499, 156 Duties Act ”
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        • “ Duty on a transfer of land is calculated on what is known as an ad valorem basis, meaning that the rate of duty increases as the transfer consideration increases. ”
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        • “ From 1 October 2016 an additional foreign aquirer duty of 3% will apply to direct and indirect aquisitions of residential property by foreign acquirers. ”
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        • “ The Act specifies that duty on a transfer is to be paid by the statutory entity under the transaction. Usually the buyer is compelled by the contract to pay the duty. s 17 Duties Act ”
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        • “ Transfer of land is a dutiable transaction and attracts duty based on the greater of the consideration paid and the dutiable value of the property. s 9 Duties Act ”
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        • “ Whilst the basic proposition is that all transfers of land are dutiable, there are a number of exemptions. Exemptions apply to: ”
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        • “ Duty is payable on value. The Office of State Revenue takes the view that the value of real estate includes any GST payable on the supply of that real estate. Therefore, if the transfer constitutes a taxable supply and the contract requires the buyer to pay the GST, then duty is payable on the ... ”
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        • “ The consideration expressed in the transfer should reflect the full consideration, irrespective of any stamp duty concessions or other discounts, and should include any GST paid by the purchaser in addition to the purchase price. Titles Registry will compare the amount paid in duty with the ... ”
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        • “ The Duties Act levies duty on creation or termination of a trust. s 62 Duties Act ”
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        • “ There is no duty on mortgages, caveats and leases under the Duties Act 2001. ”
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        • “ Ownership of shares in some companies gives a right to use land owned by the company. Common examples are company share flats and timeshare accommodation. Traditionally transfers of these forms of ownership were assessed for duty at the land rich duty transfer rate. They may now be dutiable under ... ”
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        • “ Duty on the sale of shares was abolished. 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 land rate, sales of shares in corporations ... ”
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        • “ The Duties Act states that no double duty will be imposed on a property transaction that constitutes more than one dutiable transaction for nominations or agency transfers that comply with the Act. There are two ways in which an agency transfer or nomination is carried out: ”
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        • “ A nomination has consequences at two levels: ”
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        • “ Duty is payable on any transfer of beneficial ownership, unless an exemption applies. A dutiable transaction may occur in the absence of a written document. Buyers under a contract of sale gain an equitable beneficial interest in the property that is converted to a legal interest by registration of ... ”
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        • “ Generally349 Height and depth limitations350 ”
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        • “ 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 ... ”
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        • “ 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 Crown ownership below this depth; however, ownership to the ... ”
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        • “ 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 ... ”
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        • “ The basic rule is that it is illegal to sell a piece of land unless the land has, or is entitled to have, its own separate title as at the date of the contract. This protects the interests of property consumers and ensures proposed lots are clearly identified. s 2 Land Sales Act ”
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        • “ Articles:Subdivision - Off the plan sales - Not so solidOff the plan sales - Best endeavours - Part 1Off the plan sales - Best endeavours - Part 2 The one exception to the general rule that a separate title must exist relates to pieces of land that are the subject of a ‘proposed’ plan of ... ”
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        • “ 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 ‘7 or 14 days after ... ”
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        • “ A plan of subdivision may range from a simple two-lot subdivision of land only, 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 completed, there may be a substantial time gap between ... ”
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        • “ Plans lodged under the Land Title Act must comply with the Survey and Mapping Infrastructure Act 2003: s 165(2) Land Titles Act. Further, in relation to strata plans: ”
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        • “ An off the plan sale may relate to a property that is fully constructed and simply awaiting registration of the plan. But, at the other end of the spectrum, it may relate to a property that, at the time of sale, consists of nothing but thin air. Some such contracts give the vendor five years in ... ”
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        • “ 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 ... ”
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        • “ Land Title Act 1994 and Body Corporate and Community Management Act 1997 It is possible to subdivide land only on a purely horizontal basis, or land and buildings (presently existing or proposed) on a vertical and horizontal basis. Plans may create common property, but do not have to. If no height ... ”
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        • “ Common property may be created on any plan and, if common property is created, an owners corporation automatically comes into existence. This will be so even if the only common property is below the surface and above the buildings, as was often the case with strata title plans. If the plan has a ... ”
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        • “ What is a body corporate? A body corporate is a legal entity created when land is subdivided and registered under the Land Title Act 1994 to establish a community titles scheme. ”
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        • “ It is possible for two owners of adjoining land to combine to prepare a subdivision affecting both of their properties. This is often done by neighbours to achieve a re-alignment of boundaries, and may be used by a unit owner and the body corporate to re-align boundaries between a unit and common ... ”
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        • “ Generally362 Fundamental trade practices principles363 ”
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        • “ 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 ... ”
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        • “ The two fundamental trade practices principles are: A prohibition on misleading and deceptive conduct; and ”
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        • “ 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 ... ”
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        • “ Article:Contract - Entire contractTrade practices - Fair Trading in property transactions Trade practices principles are likely to impact on the sale of land in two ways: ”
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        • “ Estate agents are no doubt subject to trade practices principles. They are usually incorporated, certainly use post and telegraph facilities and are engaged in trade and commerce. Therefore agents will be subject to both the Competition and Consumer Act 2010and the Fair Trading Act 1989 and an ... ”
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        • “ Whilst the liability of sellers 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 ... ”
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        • “ 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 trader and the consumer was unjust, either due to misleading conduct or simply on the basis that it would be ... ”
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        • “ 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 ... ”
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        • “ An attempt to limit liability under trade practices principles by the use of a disclaimer clause will usually fail. Re Henjo Investments Pty Limited; Henry Saade, Saade Developments Pty Ltd v Collins Marrickville Pty Ltd [1988] FCA 40John Pravit Tantipech & Anor v IOOF Australia Trustees (NSW) Ltd ... ”
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        • “ Generally373 Verification of identity standard373 ”
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        • “ Legal representatives are required to identify their clients in a number of circumstances. Although there are no formal requirements as a matter of good practice new clients should be identified, for example by sighting a driver licence or other common document More formal requirements apply when ... ”
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        • “ Face-to-face regime The verification of identity must be conducted during a face-to-face in-person interview between the verifier and the person being identified. ”
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        • “ Generally378 Judgment378 ”
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        • “ Real estate owned by one person may be affected by the owner’s (debtor) indebtedness to another person (creditor). Where a creditor obtains judgement/order of court against a debtor, enforcement proceedings may be initiated to sell the real property of the debtor to satisfy the debt. The judgment ... ”
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        • “ It is not sufficient to merely be a creditor. The applicant for a warrant must have a judgment against the debtor. ”
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        • “ An applicant for a warrant must also swear an affidavit identifying the judgment and the amount due pursuant to the judgment, including costs and interests. The sheriff must serve a copy of the affidavit on the owner when serving the warrant. ”
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        • “ The warrant is prepared by the judgment creditor and issued by the court. It then constitutes the sheriff’s authority to seize and sell the judgment debtor’s property. A warrant is valid for one year after issue. To extend the writ of execution period, it is necessary to lodge a general request to ... ”
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        • “ A sale of Torrens land cannot be made until a request to register and an office copy of the warrant is registered on the title to the land. The sheriff will not act on a warrant until notification is received from the Titles Registry that the recording has been made. In addition to an office copy ... ”
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        • “ The registering of the warrant on title does not create an interest in the land in favour of the judgment creditor. It simply creates the ability to have the land sold to satisfy the debt. Australian Eagle Insurance Co P/L v Parry (1992) ANZ ConvR 166 ”
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        • “ Article:Sheriff's sale - Part 1Sheriff’s sale – Part 2 After the receipt of the warrant and affidavit, the sheriff awaits notification from the Titles Registr