By Russell Cocks, Solicitor

First published in the Law Institute Journal

Last month I discussed the recent changes to the Sale of Land Act 1962 in relation to terms contracts. I made the point that those changes appear to mean that it is no longer possible to create a terms contract by multiple payments, although it remained possible to create a terms contract by the giving of possession. This occurs where the contract provides that the purchaser is entitled to possession of the property before final payment, in contradistinction to a cash contract where possession is given upon final payment.

The recent case of Munro & Anor v Humphries [2008] VSC 600 illustrates how a cash contract can be converted into a terms contract ‘accidentally’. The vendor intended to sell vacant land for cash but the purchaser wanted an extended settlement (10 months) and also wanted the right to access the property prior to settlement to obtain planning and building permits and (probably ambitiously) to commence building. The estate agent conducting the negotiations on behalf of the vendor did not recognise the significance of such changes and a special condition was hand-written into the contract granting the purchaser ‘immediate possession’.

Sometime thereafter the purchaser would appear to have had second thoughts about the transaction and sought to avoid on the basis that the contract was a terms contract and that the vendor had failed to comply with the provisions of the Sale of Land Act. The vendor argued that the contract had been drawn as a cash contract and that the meaning of the special condition was that the purchaser was only entitled to access to the land during the contract, not to have possession of it during that time. Whether such an argument would have been successful even if accepted is uncertain, but in any event the court concluded that the condition meant what it said and the purchaser was entitled to avoid. One hopes, but doubts, that this might be a lesson to estate agents not to dabble in the learned art of drafting special conditions. Perhaps a liability for the vendor’s substantial losses might have been a more salutary lesson.

The breach relied upon by the purchaser in this case was the failure of the vendor to transfer the property to the purchaser when requested to do so and take a mortgage back. All terms purchasers have this right – see s 29H Sale of Land Act (previously s 4(1)) – but a vendor who has a substantial mortgage over the property (which is common) and is unable to offer substituted security to the vendor’s lender is caught between a rock and a hard place – the vendor must transfer the property ‘freed and discharged from all mortgages’ but does not have the resources to discharge the mortgage.

Failure by the vendor to comply with the purchaser’s request to transfer entitles the purchaser to avoid the contract: see s 29J Sale of Land Act (previously s 4(4)(a)). A purchaser might also be entitled to avoid for breach of these provisions as a result of the vendor’s failure to provide in the contract that the sale is subject to a mortgage and giving the required particulars of the mortgage or failing, if the vendor elects not to give those required particulars, to provide in the contract that the mortgage is to be discharged prior to preliminary settlement and in fact discharging that mortgage within 90 days of contract.

The standard form contracts in general use do include the necessary wording to satisfy the first requirement (although those words were deleted in Munro v Humphries as it was intended that the contract would be a cash contract), and if the mortgage is discharged within 90 days of the contract the second requirement will be satisfied. However if the vendor fails to comply with any of these requirements (as was the case in Munro v Humphries) the vendor may nevertheless be saved from avoidance if the vendor has acted honestly and reasonably and the purchaser is in no worse a position: see s 29F(2) Sale of Land Act (previously s 14).

This will often save a vendor when the purchaser is complaining that the contract became a terms contract because of variations that were agreed to during the course of the contract. In such cases the court can be satisfied that the purchaser was aware of the consequences of those variations and thus in no worse a position: see Australian Horizons (Vic) P/L v Ryan Land Co P/L and Ors [1994] VicRp 70. Byrne J. in Munro v Humphries tentatively reached the conclusion that the equivalent provision in the old Act applied to assist the vendor in relation to both a breach relating to failure to disclose information and also a breach relating to the failure, as in that case, of the vendor to comply with the purchaser’s request for a transfer and mortgage back. However he could not be satisfied that the purchaser was in ‘as good a position’ notwithstanding the vendor’s breach and therefore held that the purchaser was entitled to avoid. He concluded that the purchaser’s inability to take title prevented him from commencing construction as an owner-builder and also prevented him from seeking second mortgage funds to assist with the building project.

Terms contracts remain something of a mystery to the average property lawyer. It is not so much their proper use that creates a problem; it is their ‘improper’ use, due to a lack of understanding as to how they are created and of their consequences, that continues to mean that the occasional terms contract will reach out of the dark recesses of the filing cabinet and haunt the unsuspecting author.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

By Russell Cocks, Solicitor

First published in the Law Institute Journal

Terms contracts are relatively rare, but still common enough to create difficulties. In short, they may arise in one of two ways:

• by payment, where the contract price is spread over a number of payments, in contradistinction to a cash contract that has just two payments, being a deposit at the start and a final payment at the end; or
• by possession, where the purchaser is entitled to possession of the property before final payment, in contradistinction to a cash contract where possession is given only upon final payment.

Many terms contracts exhibit both of these characteristics, with the typical terms contract providing for the payment of a deposit and then a number of payments over a period of time, with the purchaser taking possession shortly after initial payment and well before final payment. But a contract will be a terms contract if either of the criteria is satisfied and may thus be a terms contract on the basis of payment or possession.

Terms contracts are not intrinsically bad. They just create additional obligations that must be fulfilled at the time of contract and face the risk that, if those obligations are not fulfilled, the contract might be voidable. This may have unexpected consequences for the vendor who, in such circumstances, would be entitled to look to his or her solicitor for compensation for any loss. These additional obligations principally arise in relation to selling a property under a terms contract when the property is, at the time of contract, subject to a mortgage. It is therefore important to be able to identify a terms contract and here resort must be had to the Sale of Land Act.

Until recently the terms contract provisions were contained in ss 2 to 7 of the Act.

Inexplicably (and without any consultation with the profession) the government took upon itself the task of reviewing those provisions and last year introduced legislation (Consumer Credit (Victoria) and other Acts Amendment Act 2008) that repealed those terms contract provisions and inserted new, similar provisions at s 29A of the Act.

Most of the new sections are a simple ‘pick up and put down’ transfer from the start of the Act to the middle of the Act, but someone took the opportunity to ‘clean up’ some of the provisions. Gender neutrality has resulted in ‘he’ becoming ‘the purchaser’ or ‘a person’. The definition of terms contract has been moved from the definition section (s 2) to a substantive section (s 29A), headed ‘What is a terms contract?’

The old (s 2) definition of a terms contract was in two parts: s 2(1) and 2(4). Section 2(1)(b) related to creating a terms contract by early possession and, apart from changing ‘he’ to ‘the purchaser’ in s 29A(1)(b), nothing has changed. But s 2(1)(a), which relates to creating a terms contract by payments, relied on a further definition in s 2(4); and the new section 29A(1)(a) has taken it upon itself to merge these two parts of the definition, with perhaps unforeseen consequences.

The ‘old’ definition of a terms contract was where a contract obliged the purchaser to make two or more payments ‘after the execution of the contract and before becoming entitled to a transfer’, excluding any payment ‘on or before the execution of the contract’ and any payment upon ‘which he becomes entitled to a transfer’.

The ‘new’ definition provides that a terms contract is a contract ‘under which the purchaser is obliged to make 2 or more payments (other than a deposit or final payment) to the vendor after the execution of the contract and before the purchaser is entitled to a transfer’. The concepts of ‘deposit’ and ‘final payment’ have been incorporated directly into the definition. But what do these new terms ‘deposit’ and ‘final payment’ mean? Section 29A(2) defines ‘final payment’ (somewhat circuitously) as being ‘a payment on the making of which the purchaser becomes entitled to a …transfer’, and ‘deposit’ is defined as ‘a payment made to the vendor … before the purchaser becomes entitled to possession’. The problem is that according to this definition all payments made before the final payment are ‘deposit’, and so there can never be ‘2 or more payments (other than a deposit or final payment)’ as all payments are either deposit or final payment.

How this juggling of the terms contract provisions could have gained priority over desperately needed legislative reform, such as s 27 and owner-builders, is a mystery. That it was done without consultation with the profession and without a proper understanding of the consequences is damning.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

By Russell Cocks, Solicitor

First published in the Law Institute Journal

The law relating to terms contracts has been governed, principally, by the Sale of Land Act 1962 for half a century. Essentially, the Act seeks to protect consumers from unfair contracts and is an early example of consumer protection.

Traditionally, a terms contract was created if the purchaser was obliged to pay multiple payments before becoming entitled to possession of the property or became entitled to possession of the property before paying all payments due under the contract. This was in contradistinction to a cash contract, where the purchaser pays two payments – deposit and settlement – and becomes entitled to possession upon payment of the second payment. The evils that the Act sought to avoid were the possibility that the purchaser might pay a large part of the purchase price without ever becoming entitled to ownership, or that the vendor might encumber the property further notwithstanding that the purchaser was in possession. The protection offered to the purchaser was the ability to terminate the contract for breach of the Act.

The Act was ‘updated’ in 2008, and I have previously (Law Institute Journal, May and June 2009) written about what appeared to be an error in the legislation relating to the creation of terms contracts by multiple payments. The original words of the Act referred to payments ‘on or before execution of the contract’ and when the purchaser ‘becomes entitled to a transfer’. A terms contract by payments was any contract that had more than one payment between these bookends – that is, more than three payments. The 2008 amendments defined these bookends as ‘deposit’ and ‘final payment’ respectively, fairly innocuous changes in themselves, but an existing definition of deposit from another part of the Act was adopted and ‘deposit’ was defined as ‘a payment made to the vendor … before the purchaser becomes entitled to possession’. The effect of this misdescription of ‘deposit’ was to squeeze the gap between deposit and final payment to nil.

All payments before final payment are, by this definition, deposit and so it is impossible, under this definition, to have a terms contract by multiple payments.

Judicial consideration of these amendments was part of the judgment in the recent case of Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd & Anor [2011] VSC 222. The case related to a $6.5 million land purchase. The purchaser defaulted and the vendor sought to forfeit the deposit. The purchaser purported to terminate the contract and claim a refund of the deposit on the basis of a breach of the terms contract requirements. There were, arguably, four payments due under the contract, which had undoubtedly begun as a cash contract with just two payments but which was varied to require a deposit in two parts, potentially in fact two payments, an ‘interim payment’ and, finally, the ‘balance’.

The potentially offensive payment, the interim payment, was in fact contingent upon a rezoning prior to settlement, which did not happen and so that payment became due upon settlement. The contingent obligation may well have been sufficient to constitute a breach under the ‘old’ terms contract condition; however the purchaser faced the difficulty of the ‘new’ definition of ‘deposit’ in the Act. If deposit includes all payments made ‘before the purchaser becomes entitled to possession’, then there were no payments other than the (expanded) deposit and the ‘balance’ and therefore no breach of the Act. The vendor relied upon this interpretation of the amendments to support the argument that the interim payment was either deposit or, as it happened, due at settlement and therefore not in breach of the Act.

The purchaser argued that this could not have been the intention of parliament. To so interpret the section was to accept that parliament had abandoned half a century of consumer protection on a whim, without debate. The purchaser argued that words requiring payment of the ‘deposit’ to be contemporaneous with signing of the contract (as had existed prior to the amendment) ought be implied into the contract, with the result that the interim payment did indeed offend the Act and the purchaser was entitled to terminate the contract.

Dixon J. rejected this argument and concluded that the plain words of the section were not ambiguous and the purchaser was not entitled to avoid, describing the purchaser’s arguments as ‘the desperate ex post facto search for a ground to avoid a major commercial obligation’. Be that as it may, a purchaser is nevertheless entitled to rely on any failure by the vendor to comply with its statutory obligations and the fact that the purchaser’s argument is based on a technical breach should not in any way lessen the validity of that argument.

In any event, the discussion was somewhat academic. The purchaser had purported to terminate after 4 pm on the settlement day, by which time the purchaser was in default and had thereby lost the right to terminate.

It would appear that we will have to wait for parliament to recognise and correct this obvious error.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

By Russell Cocks, Solicitor

First published in the Law Institute Journal

A contract of sale of land essentially involves two parties – the vendor and the purchaser. The common law undoubtedly recognises the right of the named purchaser to nominate an alternative purchaser. Additionally, most standard form contracts (including General Condition 18 of the 2008 prescribed contract of sale) include a contractual right to nominate although sometimes conditionally, such as by requiring the inclusion of the words ‘and/or nominee’ or compliance with time limitations.

Nomination often occurs in an environment where the named purchaser is ‘related’ to the nominated purchaser and little formality is associated with the nomination process. A non-prescribed form of nomination, simply reciting the essential terms of the contract and the fact of nomination, is completed and provided to the vendor, almost by way information only. In fact, the form of nomination is important to the vendor as it is the vendor’s authority to hand over a transfer of land to a person other than the contracting party. However, in all other respects, the vendor is essentially superfluous to the nomination process; almost a disinterested bystander. This is essentially because the legal consequences of the contract are not affected by the purchaser’s nomination. The vendor retains all contractual rights against the named purchaser and, correspondingly, gains no rights against the nominated purchaser.

This situation may be contrasted with the alternatives of assignment, or novation. The consequences of an assignment are that the assignee becomes a party to what is now a tripartite contract and a novation involves the original parties agreeing to replace their contract with a new contract between the vendor and a replacement purchaser. By contrast, a nomination does not bring the vendor and nominated purchaser into a contractual relationship and they remain separated by the wall established by the doctrine of privity of contract.

A vendor is therefore not overly concerned with the terms of the nomination as the vendor’s rights are not diminished. However, a nominee needs to consider how the nominee is going to enforce any rights against the vendor in the situation where the contract ‘runs off the rails’. In circumstances where the nomination is in a ‘commercial’ environment, the named purchaser (the party with the contractual and other rights arising from the contract) may be unwilling to ‘buy back’ into a contract that the purchaser had nominated itself ‘out’ of. Even in a situation where the named purchaser and nominee are ‘related’ and the named purchaser may therefore be willing to take up the cudgels on behalf of the nominee, the named purchaser may have no standing as it will generally be the nominee who is likely to suffer adverse consequences or damages, rather than the named purchaser.

The case of 428 Little Bourke Street P/L v Lonsdale Street Café P/L illustrates the problem. The named purchaser nominated the plaintiff, a company associated with interests related to the purchaser. During the course of the contract the purchaser and nominee became aware of various alleged misrepresentations. A decision was made by the representatives of the named purchaser/nominee not to pursue those issues during the course of the contract (and thereby perhaps face rescission and/or proceedings that would delay settlement). Settlement was conducted and then proceedings issued for breach of contract and breach of the Trade Practices Act and Fair Trading Act in respect of alleged misrepresentations in relation to the net lettable area of the premises.

The party who would suffer loss if these claims were successful was the transferee as subsequent owner of the property and therefore proceedings were issued by the nominee as plaintiff. These proceedings were summarily struck out as failing to disclose a cause of action. Relying on the doctrine of privity, the Court held that the nominee lacked the ability to enforce a contract that it was not a party to, thereby defeating the contractual claims. In relation to the claims based on breach of statute, the Court held that by the time the plaintiff nominee resolved to settle the contract it knew of the alleged deficiencies in the property and it chose to settle, notwithstanding the fact that as a non-party to the contract it had no obligation to do so. Thus the cause of the plaintiff’s loss was its own decision, not the alleged misrepresentations. It could have, as a mere nominee, walked away from the contract but it chose to proceed, thereby inflicting damage upon itself.

Vendors will never voluntarily agree to nominees ‘inheriting’ contractual or statutory rights, but can they be ‘conscripted’? Section 134 Property Law Act allows for the assignment of a ‘legal thing in action’ – legal rights. Could it be argued that a nomination amounts to an assignment of the purchaser’s contractual and statutory rights and that the nominee, whilst not a party to the contract, is nevertheless able to enforce it?

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

By Russell Cocks, Solicitor

First published in the Law Institute Journal

It is relatively common for a purchaser of land to want to nominate an additional or substitute purchaser to complete the purchase. Most commonly this arises in a family situation where one spouse or family member has signed the contract and desires to add another spouse or family member or in a commercial situation where the named purchaser would prefer to complete the purchase in the name of another associated entity.

In such circumstances the nomination takes place in what might be described as ‘innocuous’ circumstances. The named purchaser is not seeking to make a gain or profit, simply adjusting the purchase to better suit its purposes. In such circumstances a vendor ought to have no concern as the purchaser remains responsible for performance of the contract and the vendor retains all contractual rights against the purchaser in the case of a default. The vendor is entitled to be provided with a written direction, signed by the named purchaser and confirmed by the nominated purchaser, authorizing the vendor to transfer the property to the nominated purchaser and thereupon the vendor fulfils its contractual obligations by handing over a Transfer of Land in favour of the nominated purchaser at settlement. It is true that this exercise does require the vendor to consider one further, relatively simple, document in the conveyancing process – the form of nomination – but the exercise hardly seems sufficient to justify a claim for additional costs when taken in the context of a conveyancing transaction generally. Such transactions do not involve the named purchaser receiving any ‘additional consideration’ and do not attract additional duty. It is for the nominated purchaser to satisfy the SRO by statutory declaration that no additional duty is payable and just as the vendor has no obligation to determine how much duty, if any, a purchaser is liable to pay, so too the vendor has no obligation to determine how much additional duty, if any, the nominated purchaser is liable to pay. The vendor need not concern itself with the duty declaration and is only obliged and entitled to be satisfied that the form of nomination has been signed and accepted.

Sometimes a nomination may take place in ‘commercial’ circumstances. A purchaser may have secured a bargain and proposes to on-sell the property to another party without completing the contract. Such transactions involve ‘additional consideration’ and are structured so that the named purchaser receives a premium or reward for nominating the new purchaser. Such transactions are truly described as ‘on-sales’ and additional duty is payable, but again it is not the responsibility of the vendor to ensure the payment of duty – this is a matter between the nominated purchaser and the SRO. Indeed the nominated purchaser may well accept that additional duty is payable and will complete the transaction on that basis. Again the vendor, despite any personal disappointment with the turn of events, is only entitled to be satisfied that the form of nomination is in order and need not be concerned with any duty issues.

The copyright contract recognises the purchaser’s right to nominate, but places two restrictions on it (GC5). The words ‘and/or nominee’ must be used and the nomination must be made at least 14 days before settlement. The new 2008 contract removes these restrictions and recognises an unrestricted right to nominate, as does the common law. A purchaser under the current copyright contract may avoid these restrictions by simply relying on the unrestricted common law right rather than the restricted contractual right and purchasers under the 2008 copyright contract will enjoy a similar unrestricted contractual right.

A practice does exist of inserting special conditions that ‘complicate’ the nomination process. Such conditions serve no useful purpose and those that require a purchaser to pay costs in respect of the nomination appear to be in breach of s 42(3) of the Property Law Act. This section states that ‘no contract of sale relating to land shall contain a clause or condition stipulating for the payment by the purchaser to the vendor or to the legal practitioner of the vendor any costs or expenses’ except certain stipulated exceptions, such as costs arising from default. A purchaser who wishes to nominate but is confronted with one of these restricting conditions ought to simply point out that the purchaser is not seeking to nominate pursuant to the contract but rather is exercising the unrestricted common law right to nominate. Further, any condition that seeks to impose a monetary penalty on nomination is in breach of s 42(3).

It is to be hoped that the arrival of the 2008 copyright contract, which gives an unrestricted right to nominate, will encourage participants in the conveyancing process to recognise that nomination can be a simple exercise and that its unnecessary complication brings the practice of conveyancing into disrepute. After all, vendors are generally totally oblivious to these issues and the whole exercise smacks of an attempt to complicate a simple process for the purposes of inflating costs.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

By Russell Cocks, Solicitor

First published in the Law Institute Journal

The prescribed Contract of Sale of Real Estate has now been in use for 12 months. The contract was prescribed pursuant to the Estate Agents (Contracts) Regulations 2008, which came into effect on 28 September 2008.

These regulations bind estate agents but not other participants in the conveyancing industry, such as lawyers and conveyancers. However the regulations have been the traditional vehicle for establishing a standard form of contract that has wide acceptance across the industry. Both the Law Institute and the Real Estate Institute have produced versions of the prescribed contract, as have most proprietary conveyancing software programs. Thus the new contract has been widely adopted in the first 12 months, and its widespread use is likely to extend into the future.

One significant structural change was the elimination of the Contract Note. Previous regulations had allowed for two forms of contract: the ‘full’ Contract of Sale and the shorter Contract Note. The current regulations do not include the shorter version. Another structural change was to abandon the tool of incorporating conditions into the contract by reference to Table A and including all of the standard conditions in the printed document.

The Law Institute of Victoria form of contract follows the regulations and includes the signing clause on the front page. The Real Estate Institute of Victoria form moves the signing clause to the back of the document. There is no particular significance in this difference. The signing clause includes provision for any person signing the contract to also print that person’s name after the signature. This was designed to assist with identification of signing parties but experience to date indicates that most people are not going to the trouble of printing names. This is perhaps a product of the heady environment in which contracts are signed, with participants in the process riding a wave of emotion rather than calm reflection.

The Particulars of Sale page contains all of the specific information that needs to be inserted in relation to the transaction. The second half of this page has room for inclusion of information relating to GST, settlement, sale subject to lease, terms contract, sale subject to mortgage, special conditions and finance, generally in a ‘fill in the box’ format. Many contracts do not require some or all of this information and it is permissible to delete reference to boxes that do not apply to the particular transaction. For instance, the sale of a typical residential property does not require any information about GST, registration of a plan, lease, terms contract or subject to mortgage and it is permissible to delete all reference to these possibilities.

If this method is adopted the contract becomes a much simpler document and it is possible to include all of the Particulars of Sale on one page. Whilst it is permissible to leave in all the boxes, or strike them out if inapplicable, it is also quite acceptable to delete them altogether if they are not relevant.

The General Conditions (1 to 28) appear to have been well received. General Condition 2 replaces the old procedure of delivery of requisitions with contractual warranties and most practitioners appear to have caught on that requisitions are now a thing of the past. General Condition 2.1 warrants that the General Conditions are in the prescribed form and so it is inappropriate for any of the General Conditions to be amended. The General Conditions can be changed, but this must be by Special Condition and in this way changes will be transparent.

Many lawyers are married to their Special Conditions and unfortunately some lawyers have simply adopted the habit of inserting all their old Special Conditions into the new contract. Most of these Special Conditions were a waste of time in the old contract. For instance, it is not necessary to say that the deposit will be held in accordance with the Sale of Land Act because that is what the Act requires. Inserting those Special Conditions into the new contract is an equal waste of time. Special Conditions that refer to Table A (no longer applicable to the contract) merely show that the lawyer has not thought about the contract and belittle the profession.

One Special Condition that agents like to see in a contract is an Auction Condition. But the conduct of an auction is governed by Act and Regulation and the procedure to be followed is not a matter between vendor and purchaser. Auction Conditions are unnecessary and probably unenforceable anyway.

One glitch appears at General Condition 12 in relation to stakeholding. This condition is aspirational, in that it cannot override the stakeholding provisions of the Sale of Land Act. It was designed to facilitate release of deposit in situations where there is no mortgage and to establish a benchmark of 80 per cent debt as being a reasonable maximum below which purchasers should agree to release of deposit. The condition requires 28 days to have elapsed since the day of sale but it probably should have required 28 days from service of details (which will be the same if there is no mortgage, as notice of that is given by annexing a title search showing a clear title). Release of deposit remains a vexed question and a terrible waste of resources but will only be cured by legislative change.

General Condition 24 is a new provision designed to isolate minor disputes arising in relation to the state of the premises at settlement. Some lawyers exclude it by Special Condition but, by and large, it appears to have been accepted.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

By Russell Cocks, Solicitor

First published in the Law Institute Journal

A sub-committee (consisting of Richard Park, Murray McCutcheon, Russell Cocks and David Lloyd)of the Property Committee of the Law Institute has been working on a new form of contract of sale of land that is expected to become available for general use from 30 September 2007.

The use of a particular form of contract by a legal practitioner is not compulsory by any law. However it has long been common practice to use the form of contract produced by the Law Institute. Use of a widely accepted form of contract has the virtue of making the common terms of the agreement instantly recognizable and avoids the need for every term of the contract to be analysed in detail. The form of contract developed by the Law Institute was adopted by the government as part of the supervisory regime affecting estate agents. The preparation of a contract creating legal relations between parties is legal work. However the government permitted estate agents to prepare such documents, provided that the document is in the form prescribed by the Estate Agents (Contracts) Regulations 1997 or a form prepared by a legal practitioner. Those regulations prescribe the form developed by the Law Institute, The regulations sunset in 2007, hence the need for a new form of contract.

The sub-committee consulted with the REIV in accordance with past practice and to ensure wide acceptance of the new form. The form published by the LIV will continue to be known as the LIV/REIV contract and carry the logos of both Institutes. Conveyancers have also generally used the standard form of contract. The new Conveyancers Act 2006 makes it clear that conveyancers will in future be entitled to prepare contracts. It may be expected that the new form of contract will be the form most commonly used in conveyancing transactions into the future.

The most significant change is the merging of the Contract Note into the Contract of Sale, so that instead of two alternative documents, there will now only be one.

The existence of a separate Contract Note (really a mini-contract) is a quirk of history and has long been a part of the conveyancing process. The Contract Note incorporates all the provisions of the Contract of Sale (except the finance condition) and so replacing a Contract Note with a Contract of Sale has long been recognised as a pyrrhic exercise. Agents prefer to use Contract Notes as they give the impression of a ‘simpler’ document and so the new Contract has been designed to replicate the Contract Note by being a single sheet document. Formal recitals and signing clauses are on the front and all operative information will be completed on the back.

The other major change will be abandoning the practice of incorporating additional terms by reference to Table A of the Seventh Schedule of the Transfer of Land Act by the inclusion of all terms into the General Conditions. The operative part of the Contract will be a single sheet and the General Conditions (numbering approximately 26) will be appended by way of a booklet similar in style to the Memorandum of Common Provisions used in mortgages. In this way the parties will have all relevant conditions before them at the time that the contract is entered into.

The most significant change to the General Conditions will be the replacement of the right to requisition with a number of contractual warranties. An identity clause will also be standard, meaning that a purchaser will be required to accept that the property complies with title, subject to normal common law constraints. These changes recognise the practical effect of the disclosure obligations imposed on vendors by s 32 Sale of Land Act and in particular that a purchaser is thereby provided with the information required to make an informed decision in relation to the legal issues regarding the purchase of real estate prior to signing a contract.

The document is written in plainer English, although established words and phrases in the current documents have been retained where possible. An attempt has been made to provide solutions to some of the more common problems that have developed in the practice of conveyancing since the contract was last reviewed. However, regrettably, the sub-committee was not able to think of a condition that would encourage banks to answer the telephone.

HAPPY ANNIVERSARY

The prescribed Contract of Sale of Land has now been in use for 12 months. The contract was prescribed pursuant to the Estate Agents (Contract) Regulations 2008 that came into effect on 28 September 2008.

These Regulations bind estate agents but not other participants in the conveyancing industry, such as lawyers and conveyancers. However the Regulations have been the traditional vehicle for establishing a standard form of contract that has wide acceptance across the industry. Both the Law Institute and the Real Estate Institute have produced versions of the prescribed contract, as have most proprietary conveyancing software programs. Thus the new contract has been widely adopted in the first 12 months and its widespread use is likely to extend into the future.

One significant structural change was the elimination of the Contract Note. Previous Regulations had allowed for two forms of contract; the ‘full’ Contract of Sale and the shorter Contract Note. The current Regulations do not include the shorter version. Another structural change was to abandon the tool of incorporating conditions into the contract by reference to Table A and including all of the standard conditions in the printed document.

The LIV form of contract follows the Regulations and includes the signing clause on the front page. The REIV form moves the signing clause to the back of the document. There is no particular significance in this difference. The signing clause includes provision for any person signing the contract to also print that person’s name after the signature. This was designed to assist with identification of signing parties but experience to date indicates that most people are not going to the trouble of printing names. This is perhaps a product of the heady environment in which contracts are signed, with participants in the process riding a wave of emotion rather than calm reflection.

The Particulars of Sale page contains all of the specific information that needs to be inserted in relation to the transaction. The second half of this page has room for inclusion of information relating to GST, settlement, sale subject to lease, terms contract, sale subject to mortgage, special conditions and finance, generally in a ‘fill in the box’ format. Many contracts do not require some or all of this information and it is permissible to delete reference to boxes that do not apply to the particular transaction. For instance, the sale of a typical residential property does not require any information about GST, registration of a plan, lease, terms contract or subject to mortgage and it is permissible to DELETE all reference to these possibilities.

If this method is adopted the contract becomes a much simpler document and it is possible to include all of the Particulars of Sale on one page. Whilst it is permissible to leave in all the boxes, or strike them out if inapplicable, it is also quite acceptable to delete them altogether if they are not relevant.

The General Conditions (1 to 28) appear to have been well received. GC 2 replaces the old procedure of delivery of requisitions with contractual warranties and most practitioners appear to have caught on that requisitions are now a thing of the past. GC 2.1 warrants that the General Conditions are in the prescribed form and so it is inappropriate for any of the General Conditions to be amended. The General Conditions can be changed, but this must be by Special Condition and in this way changes will be transparent.

Many lawyers are married to their Special Conditions and unfortunately some lawyers have simply adopted the habit of inserting all their old Special Conditions into the new contract. Most of these Special Conditions were a waste of time in the old contract. For instance, it is not necessary to say that the deposit will be held in accordance with the Sale of Land Act because that is what the Act requires. Inserting those Special Conditions into the new contract is an equal waste of time. Special Conditions that refer to Table A (no longer applicable to the contract) merely show that the lawyer has not thought about the contract and belittle the profession.

One Special Condition that agents like to see in a contract is an Auction Condition. But the conduct of an auction is governed by Act and Regulation and the procedure to be followed is not a matter between vendor and purchaser. Auction Conditions are unnecessary and probably unenforceable anyway. One glitch appears at GC 12 in relation to stakeholding. This condition is aspirational, in that it cannot override the stakeholding provisions of the Sale of Land Act. It was designed to facilitate release of deposit in situations where there is no mortgage and to establish a benchmark of 80% debt as being a reasonable maximum below which purchasers should agree to release of deposit. The condition requires 28 days to have elapsed since the day of sale but it probably should have required 28 days from service of details (which will be the same if there is no mortgage, as notice of that is given by annexing a title search showing a clear title). Release of deposit remains a vexed question and a terrible waste of resources but will only be cured by legislative change.

GC 24 is a new provision designed to isolate minor disputes arising in relation to the state of the premises at settlement. Some lawyers exclude it by Special Condition but, by and large, it appears to have been accepted.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.

By Russell Cocks, Solicitor

First published in the Law Institute Journal

Umbers v Kelson confirms a silly decision.

The case concerned a finance condition in a contract for the sale of a business. The wording in that condition is effectively the same as the wording in the finance clause in the standard contract of sale and so the case has important ramifications for contracts for the sale of land.

However the circumstances surrounding the case make it dangerous to regard the decision as strong authority in relation to finance conditions generally and the legal analysis, with respect, appears defective.

THE FACTS

The purchaser had not obtained finance and sought an extension, adding that if the extension was not granted, the vendor ‘may treat this letter as written notice ending the contract’. The vendor in fact was prepared to grant the extension, but the agent failed to communicate that to the purchaser. The parties thereafter treated the contract as at an end, however one month later the agent re-enlivened negotiations and the purchaser undertook a trial of the business.

Negotiations continued for another 2-3 months, during which time the purchaser first stated that he had sufficient cash resources to complete, but then claimed to be unable to obtain finance. Ultimately the vendor resold the property and claimed damages for loss on resale. It is fair to say that the vendor was the innocent party and entitled to succeed.

MAGISTRATES COURT

The initial hearing was conducted on the basis that the parties assumed that the purchaser’s letter had terminated the contract. The issue was raised, but not argued, as it was not in contention. However there was no specific finding by the Magistrate that the letter had ended the contract, although the Magistrate’s reasons were, by his own admission, ‘slightly garbled’.

The decision was based on the purchaser’s subsequent conduct and the vendor was successful on an estoppel argument.

SUPREME COURT

On appeal, the Judge heard all the evidence and then decided that he wanted submissions on whether the letter had ended the contract. He concluded that the purchaser had ‘tried to have his cake and eat it’ and that the letter had not been effective to terminate the contract. It had merely given the vendor the option to do so.

By doing so the Judge decided the case on grounds entirely different to those argued at the hearing and whilst the parties had an opportunity to make submissions, that can be but a poor substitute for arguments in the context of a hearing. The vendor’s willingness to grant an extension is clear evidence that the vendor accepted the letter as capable of ending the contract and an argument based on misleading and deceptive conduct would have been open to the purchaser but could not be pursued in the unusual circumstances of the case.

COURT OF APPEAL

Hansen JA. delivered the judgment of the Court. He confirmed that ‘it is apparent from his reasons’ that the Magistrate concluded ‘that in the absence of a response to the 18 July letter, that the letter operated to terminate the contract’.

He was referred to a number of cases relating to termination notices and relied upon Catley v Watson. That case related to a notice of rescission of a contract of sale of land under the provisions previously contained in Table A and established a test that a reasonable person ‘would be left in no doubt as to its meaning’ and that the reasonable person would have ‘knowledge of the relevant circumstances of the transaction’ in making that decision.

His Honour concluded that the letter failed that test, that it left determination of the contract up to the vendor and was thereby equivocal. But the facts are entirely against this conclusion. The purchaser clearly thought that the letter ended the contract if an extension was not granted and the vendors also did so and they tried, unsuccessfully, to grant the extension. The representatives of the parties at the hearing assumed that to be the case, as did the Magistrate. It was only the afterthought of the Judge on appeal that first doubted the question and the test applied appears to be more the test of ‘a reasonable judge’ with years of finely tuned analytical skills, rather than ‘a reasonable person’. To penalise the polite use of the phrase ‘you may treat this letter as’ in lieu of ‘this letter is’ smacks of a legalistic, rather than reasonable test.

Further, the analogy with rescission notices appears misplaced. A notice terminating a contract based on a finance condition is a positive notice that takes immediate effect – it ends the contract instantly (unless an extension is granted). A rescission notice is a negative notice given upon default and will only end the contract if the other party fails to remedy that default and gives a period of time (usually 14 days) for the default to be remedied. Requiring absolute precision when specifying a breach that a party is required to remedy is reasonable, but imposing such a strict requirement on a notice terminating the contract based on a finance condition is a false analogy. The operative event has occurred – finance has not been obtained. The vendor is not required to take action, so absolute precision is not required. That failure to be absolutely precise results in sudden death cannot be the outcome anticipated by ‘a reasonable person’.

The right result may have been reached, but by a wrong, and dangerous, route.

Tip Box

Whilst written for Victoria this article has interest and relevance for practitioners in all states.