Contract of Sale of Real Estate - AUVICREPS006

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21 Jan 2019 v1.9

Additions / Changes:


Item 15

3.

Settlement – the parties agree Settlement will be by way of Electronic Conveyancing in accordance with the following Special Condition:  E-Conveyance (Electronic Conveyancing).       __ Yes  __No


E-Conveyance (Electronic Conveyancing)


1.

Settlement including lodgment of transfer documents and payment of balance purchase monies will proceed electronically in accordance with the Electronic Conveyancing National Law (“National Law”).


2.

Where an inconsistency exists between this and other general conditions in the contract this special condition will apply.


3.

Where a party, acting reasonably, is not able to proceed with e-conveyance written notice, including advice regarding the reason for such inability must be given as soon as possible prior to due date for settlement and the provisions of special condition 3(10)(b)(ii) will apply with regards to settlement.


4.

Each party must be or engage a representative who is a subscriber for the purposes of the National Law and conduct this transaction in accordance with the National Law.


5.

Once the contract has become unconditional the vendor must promptly cause an Electronic Workspace (“Workspace”) to be opened and populated with all necessary information and documents to facilitate settlement and advise all relevant parties, including relevant financial institutions, and invite them to join the Workspace.


6.

Upon being invited to join the Workspace the remaining parties together with relevant financial institutions must promptly join the Workspace and cause the Workspace to be populated with all necessary information and documents, to facilitate settlement.


7.

A party will not be in default where it is prevented from complying with an obligation under this special condition due to failure by the other party or a financial institution to comply with an obligation under this special condition.


8.

The parties will confirm through the Workspace a settlement time. Neither party may terminate this contract while the Workspace is locked for settlement.


9.

Settlement occurs when the Workspace for the e-conveyance records that:



(a)

there has been an exchange of value within an Electronic Lodgement Network between financial institutions in accordance with the parties instructions; or



(b)

if there is no exchange of value, the documents necessary to transfer title have been accepted for electronic lodgment by the registrar.


10.

Each party must do everything reasonably necessary and in a reasonable timeframe to ensure:



(a)

settlement occurs electronically on the due date for settlement; or



(b)

where the parties have complied with general conditions in the contract in respect of settlement and the provisions of this special condition and settlement cannot occur by e-conveyance and on the due date neither party is in default, settlement will be completed:



 

(i)

by e-conveyance on the next business day after the due date for settlement; or



 

(ii)

if the parties agree, using a method other than e-conveyance, in which case settlement must be within 3 business days of the due date for settlement,



 

and in either case, time remains of the essence.


11.

All monies required for e-conveyance settlement must be cleared funds prior to settlement time.


12.

Where monies have been paid to an incorrect account the parties must take all reasonable steps to recover such monies for payment to the intended recipient.


13.

Each party will be responsible for their own costs in respect to e-conveyance.


14.

On settlement in accordance with the general conditions of the contract the vendor must deliver (or cause to be delivered) to the purchaser (or as directed by the purchaser):



(a)

the instrument of title (if any) and any other documents in the vendor’s possession reasonably required by the purchaser relating to the property.



(b)

all keys and other devices and codes for entry, exit and security.

 

20 Sep 2018 v1.8

Additions / Changes:


Fax and DX fields removed.


Title

CONTRACT OF SALE OF REAL ESTATE

PARTICULARS OF SALE

Form 1

Estate Agents Act 1980 (Regulation 5(a))

Part 1 of the standard form of contract prescribed by the Estate Agents (Contracts) Regulation 2008

This Contract is prepared by an Australian Legal Practitioner in accordance with section 53A(1)(b)(i) of the Estate Agents Act.

(Note: Where there is insufficient space in any Item place details in an Annexure and refer to the Annexure in the Item - e.g. ‘Refer Additional Expenses Annexure’)


Item 15 Warning

WARNING: THIS IS A LEGALLY BINDING AGREEMENT.  YOU SHOULD READ THIS CONTRACT BEFORE SIGNING IT.

 

Purchasers should ensure that prior to signing this contract, they have received-

A copy of the section 32 statement required to be given by a vendor under section 32 of the Sale of Land Act 1962 in accordance with Division 2 of Part II of that Act; and

A copy of the full terms of this contract.

 

The authority of a person signing-

under power of attorney; or

as director of a corporation; or

as an agent authorised in writing by one of the parties

must be noted beneath the signature.

 

Any person whose signature is secured by an estate agent acknowledges being given by the agent at the time of signing a copy of the terms of this contract.

WARNING: By signing this Contract the parties confirm that no legal advice as to the conditions contained herein was provided by the Agent. The parties have been advised to seek legal advice with respect to this Contract.


Terms and Conditions Title

Form 2

 

Estate Agents Act 1980 (Regulation 5(a))

Part 2 of the standard form of contract prescribed by the former Estate Agents (Contracts) Regulations 2008


Terms and Conditions Heading

Contract of Sale of Real Estate - General Conditions (GC) being Form 2 of the former Estate Agents (Contracts) Regulations 2008


Clause 2.1

The vendor warrants that these general conditions 1 to 28 are identical to the general conditions 1 to 28 in the standard form of contract of sale of real estate prescribed by the former Estate Agents (Contracts) Regulations 2008 for the purposes of section 53A of the Estate Agents Act 1980.

 

01 Jul 2018 v1.7

Additions / Changes:


Item 15

2.

Withholding – GST


1.

Where the Property the subject of this Contract is, within the meaning of the GST Act a ‘new residential premises’ or ‘potential residential land’ the Vendor must give to the Purchaser a GST Withholding Notice (Sub-Clause 8 of this Special Condition) in accordance with section 14-255 of the Taxation Administration Act 1953 (Cth).


2.

Where an amount is required to be paid to the Australian Taxation Office (ATO) in accordance with the GST Withholding Notice (Sub-Clause 8 of this Special Condition) the Purchaser is authorised to withhold from the Balance Purchase Price and remit to the ATO the amount as required in Sub-Clause 8(b) of this Special Condition in accordance with section 14-250 of the Taxation Administration Act 1953 (Cth).


3.

Where the GST Withholding Notice (Sub-Clause 8 of this Special Condition) is not completed by the Vendor, the Purchaser is authorised to withhold from the Balance Purchase Price and remit to the ATO, in compliance with the GST Act, an amount calculated in accordance with section 14-250(6) of the Taxation Administration Act 1953 (Cth).


4.

Where the Purchaser is required to make a payment in accordance with section 14-250 (Taxation Administration Act 1953 (Cth)) the Purchaser must lodge with the ATO the following forms:



(a)

not less than 14 days prior to Settlement, a GST Property Settlement Withholding Notification; and



(b)

at or before Settlement, a GST Property Settlement Date Confirmation.



(c)

promptly provide evidence of payment made in accordance with Sub-Clause 1(b) of this Special Condition to the Vendor


5.

Prior to Settlement the Purchaser must provide to the Vendor a copy of:



(a)

the response received from the ATO following lodgement of the GST Property Settlement Withholding Notification showing the lodgement and payment reference numbers; and



(b)

the GST Property Settlement Date Confirmation form lodged with the ATO.


6.

The Property is: (tick one of the following)

__ Existing Residential Premises  __ New Residential Premises  __ Potential Residential Land


7.

(The Purchaser is to complete this Sub-Clause 7 where the purchase is of Potential Residential Land.)

The Purchaser is registered for GST and acquiring the Property for a ‘creditable purpose’ (as defined in the GST Act):  __ Yes __ No

Note: where the answer is ‘yes’ and the acquisition is for Potential Residential Land Sub-Clause 8(b) is not required to be completed.


8.

GST Withholding Notice (to be completed by Vendor - section 14-255 Taxation Administration Act 1953 (Cth))



(a)

The Purchaser <is/is not> required to make a payment to the ATO in compliance with section 14-250 of the Taxation Administration Act 1953 (Cth) in relation to the Property.



(b)

Only complete the following details where payment is required:



 

(i)

Vendor’s Name: ……………………….…………… ABN: …………………………..



 

(ii)

Payment amount: $………………………………….



 

(iii)

When payable: …… / …… / ……

Note: Where no date is inserted payment will be on the Settlement Date.



 

(iv)

Where the Purchase Price is not expressed as an amount of money insert the GST inclusive market value of the Property: $……………..

 

07 May 2018 v1.6

Additions / Changes:


Title

CONTRACT OF SALE OF REAL ESTATE

PARTICULARS OF SALE

Form 1

Estate Agents Act 1980 (Regulation 5(a))

Part 1 of the standard form of contract prescribed by the Estate Agents (Contracts) Regulation 2008

(Note: Where there is insufficient space in any Item place details in an Annexure and refer to the Annexure in the Item - e.g. ‘Refer Additional Expenses Annexure’)


Item 15

SPECIAL CONDITIONS (if insufficient space attach schedule)

Note: Each special condition should be numbered and each page initialled.

This contract does not include any special conditions unless the words

‘special conditions’ appear in this box:

 

If the contract is subject to ‘special conditions’ then particulars of the special conditions are:

1.

Withholding – Capital Gains


1.

The parties acknowledge (subject to Sub-Clause 2 of this Special Condition) where the Purchase Price of the Property is seven hundred and fifty thousand dollars ($750,000) or more, the Purchaser will on or before Settlement, in compliance with the foreign resident capital gains withholding payments provisions of Schedule 1 of the Taxation Administration Act 1953 (Cth) (Schedule 1) be required to:



(a)

withhold from the purchase monies a sum equal to 12.5% of the Purchase Price or such lesser sum as determined in a notice of variation provided in accordance with section 14-235 of Schedule 1; and



(b)

pay the withheld monies to the Australian Taxation Office (ATO) in accordance with Schedule 1 and, in addition,



(c)

promptly provide evidence of payment made in accordance with Sub-Clause 1(b) of this Special Condition to the Vendor


2.

Where the Vendor has, not less than 3 Business Days (or such shorter time as the parties may agree) prior to Settlement, provided a clearance certificate from the ATO in accordance with Schedule 1, valid at the time of Settlement, the Purchaser’s obligation under Sub-Clause 1 of this Special Condition will not apply.

 

11 Jun 2015 v1.5

Copyright statement updated.

 

01 Oct 2014 v1.4

Additions / Changes:


Changes made as a result of Estate Agents (Contracts) Amendment Regulations 2014

 

11 Nov 2013 v1.3

Additions / Changes:


Optional Initialling Feature Added

 

01 Mar 2012 v1.2

Additions / Changes:


Warning Page

Property Address: ……………………………………………………………………………………................

                            .……………………………………………………………………………………...............

 

The Vendor agrees to sells and the purchaser agrees to buys the property, being the land and the goods, for the price and on the terms conditions set out in this contract.

The terms of this contract are contained in the:

 

Particulars of Sale; and

Special Conditions, if any; and

General Conditions; and

Vendor’s Statement

and in that order of priority.

 

The Vendor’s Statement required by Section 32(1) of the Sale of Land Act 1962 is attached to and forms part of this Contract. The parties should ensure that when they sign the Contract they receive a copy of the Vendor’s Statement, the General Conditions and any Special Conditions.

 

WARNING

 

IMPORTANT NOTICE TO PURCHASERS

 

Cooling-off period                                                                          Section 31 Sale of Land Act 1962

 

You may end this Contract within 3 clear Business Days of the day that you sign the Contract if none of the exceptions listed below applies to you.

 

You must either give the Vendor or the Vendor’s agent written notice that you are ending the contract or leave the notice at the address of the Vendor or the Vendor’s agent to end this Contract within this time in accordance with this cooling-off provision.

 

You are entitled to a refund of all the money you paid EXCEPT for $100 or 0.2% of the purchase price (whichever is more) if you end the Contract this way.

 

EXCEPTIONS

 

The 3-day cooling-off period does not apply if –

You bought the property at or within 3 clear business days before or after a publicly advertised auction; or

You received independent advice from a legal practitioner before signing the contract;

The property is used primarily mainly for industrial or commercial purposes; or

The property is more than 20 hectares in size and is used primarily mainly  for farming; or

You and the Vendor have previously signed a contract for the sale of the same land in substantially the same terms property; or

You are an estate agent or a corporate body


Item 6

PROPERTY ADDRESS

…………………….…………………………………………………………………………………………………

…………………….…………………………………………………………………………………………………


Item 6

The Land is described in the table below: (tick where applicable)

Certificate of Title Reference

Being Lot

On Plan

Volume ………........………….   Folio: …………........………….



Volume …………........……….   Folio: …………........………….



OR

__ Described in the copy title(s) and plan(s) as attached to the Vendor’s Statement if no title or plan references are recorded in the table above or if the Land is general law land.

__ in the attached copy title(s): ………………__________………………………………____………………

__ and Plan(s): …………………………………………………………………………….__…………………….

__ as: …….…[insert title particulars]………………………………………………….………………………….

The Land and includes all improvements and fixtures.


Item 7

PROPERTY ADDRESS

The address of the Land is:

…………………….………………………………………………………………………………………………….

…………………….………………………………………………………………………………………………….


Item 8

GOODS SOLD WITH THE LAND (list or attached schedule)


Item 11

Settlement is due on: ……./……./…….

 

unless the land is a lot on an unregistered plan of subdivision, in which case Settlement is due on the later of: above date or 14 days after the Vendor gives notice to the purchaser of registration of the plan, whichever is the later.

The above date; or

14 days after the Vendor gives notice in writing to the purchaser of registration of the plan of subdivision.

 

At Settlement the purchaser is entitled to vacant possession of the property unless the words ‘subject to lease’ appear in this box, in which case refer to General Condition 1.1.

 

 

If ‘subject to lease’ then particulars of the lease are:

 

 

If this Contract is intended to be a terms contract within the meaning of the Sale of Land Act 1962 then add the words 'terms contract' in this box and refer to General Condition 23 and add any further provisions by was of Special Conditions:

 


Item 12

At Settlement the purchaser is entitled to vacant possession of the property unless the words ‘subject to lease’ appear in this box, in which case refer to General Condition 1.1.

 

 

If ‘subject to lease’ then particulars of the lease are:

 

 

 


Item 13

If this Contract is intended to be a terms contract within the meaning of the Sale of Land Act 1962 then add the words 'terms contract' in this box and refer to General Condition 23 and add any further provisions by was of Special Conditions:

 


Item 12

This sale is NOT subject to an existing mortgage unless the words ‘subject to existing mortgage’ appear in this box:

 

 

If the sale is ‘subject to existing mortgage’ then particulars of the mortgage are:

 


Item 15

This Contract does not include any Special Conditions unless the words

'Special Conditions’ appear in this box:

 

 

If the Contract is subject to ‘special conditions’ then particulars of the special conditions are:

 

 


Item 16 Warning

WARNING: THIS IS A LEGALLY BINDING AGREEMENT. YOU SHOULD READ THIS CONTRACT BEFORE SIGNING IT.

 

Purchasers should ensure that prior to signing this Contract, they have received a copy of the full terms of this Contract.

 

The authority of a person signing:

under power of attorney; or

as director of a corporation; or

as an Agent authorised in writing by one of the parties

must be noted beneath the signature.

 

Any person whose signature is secured by an estate agent acknowledges being given by the Agent at the time of signing, a copy of the terms of this Contract. this Contract comprising:

Form 1 (Contract of Sale of Real Estate – Particulars of Sale);

Special Conditions, if any;

Form 2 (Contract of Sale of Real Estate – General Conditions);

Vendor’s Statement.


Clause 1.3

if the particulars of sale provide that the purchaser is taking over an existing mortgage:

(a)

the purchaser assumes liability for the mortgage; and

(b)

the price is satisfied to the extent of any mortgage money owing at Settlement; and

(c)

the Vendor must treat any payment made by the purchaser under the mortgage as a payment made to the Vendor under this Contract.


Clause 3.1

An omission or mistake in the description, measurements or area of the land property or any deficiency in the area, description or measurements of the land does not invalidate the sale.


Clause 7

Release of company charge security interest

The Vendor must provide at Settlement a release of the property from any registered charge lodged under the Corporations Act 2001 (Cth) if requested in writing to do so at least 21 days before Settlement. This obligation does not apply if the charge is the proprietor of a registered mortgage over the land. The Vendor must pay the registration fee if either party requires registration of that release.

7.1

This General Condition applies if any part of the property is subject to a security interest to which the Personal Property Securities Act 2009 (Cth) applies.

7.2

Subject to General Condition 7.3 and 7.4, the Vendor must ensure that at or before Settlement, the purchaser receives:

(a)

a release from the secured party releasing the security interest in respect of the property; or

(b)

a statement in writing in accordance with Section 275(1)(b) of the Personal Property Securities Act 2009 (Cth) setting out that the amount or obligation that is secured is nil at the due date for Settlement; or

(c)

a written approval or correction in accordance with Section 275(1)(c) of the Personal Property Securities Act 2009 (Cth) indicating that, on the due date for settlement, the personal property included in the Contract is not or will not be property in which the security interest is granted.

if the security interest is registered in the Personal Property Securities Register.

7.3

The Vendor is not obliged to ensure that the purchaser receives a release, statement, approval or correction in respect of any personal property that is sold in the ordinary course of the Vendor’s business of selling personal property of that kind unless, in the case of goods that may or must be described by serial number in the Personal Property Securities Register, the purchaser advises the Vendor at least 21 days before the due date for Settlement that the goods are to be held as inventory.

7.4

The Vendor is not obliged to ensure that the purchaser receives a release, statement, approval or correction in respect of any personal property that:

(a)

is not described by a serial number in the  Personal Property Securities Register; and

(b)

is predominantly used for personal, domestic or household purposes; and

(c)

has a market value of not more than $5000 or, if a greater amount has been prescribed for the purposes of section 47(1) of the Personal Property Securities Act 2009 (Cth), not more than that prescribed amount.

7.5

A release for the purposes of General Condition 7.2(a) must be in writing and in a form published by the Law Institute of Victoria, Law Council of Australia or the Australian Bankers Association.

7.6

If the purchaser receives a release under General Condition 7.2(a), the purchaser must provide the Vendor with a copy of the release at or as soon as practicable after settlement.

7.7

In addition to ensuring a release is received under General Condition 7.2(a), the Vendor must ensure that at or before settlement the purchaser receives a written undertaking from a secured party to register a financing change statement to reflect that release if the property being released includes goods of a kind that are described by a serial number in the Personal Property Securities Register.

7.8

The purchaser must advise the Vendor of any security interest that the purchaser reasonably requires to be released at least 21 days before the due date for settlement.

7.9

If the purchaser does not provide an advice under General Condition 7.8, the Vendor may delay settlement until 21 days after the purchaser advises the Vendor of the security interests that the purchaser reasonably requires to be released.

7.10

If settlement is delayed under General Condition 7.9, the purchaser must pay the Vendor:

(a)

interest from the due date for settlement until the date on which settlement occurs or 21 days after the Vendor receives the advice, whichever is the earlier; and

(b)

any reasonable costs incurred by the Vendor as a result of the delay

as though the purchaser was in default.

7.11

Words and phrases used in General Condition 7 which are defined in the Personal Property Securities Act 2009 (Cth) have the same meaning in General Condition 7.


Clause 8

The Vendor must provide at Settlement details of any current builder warranty insurance warrants that the Vendor will provide at settlement details of any current builder warranty insurance in the Vendor’s possession relating to the property if requested in writing to do so at least 21 days before Settlement.


Clause 11.2(b)

must be paid: to the Vendor’s estate agent, legal practitioner or conveyancer and held by the estate agent, legal practitioner or conveyancer on trust for the purchaser until the registration of the plan of subdivision.

(i)

to the Vendor's licensed estate agent or legal practitioner or conveyancer and held by the estate agent or legal practitioner or conveyancer on trust for the purchaser until the registration of the plan of subdivision; or

(ii)

if the Vendor directs, into a special purpose account in an authorised deposit-taking institution in Victoria specified by the Vendor in the Contract in the joint names of the purchaser and the Vendor and held in that account until the registration of the plan of subdivision.


Clause 11.4(b)

by draft or cheque drawn on an authorised deposit-taking institution; or


Clause 11.6

At settlement, the purchaser must pay the fees on up to three cheques drawn on an authorised deposit-taking institution. If the Vendor requests that any additional cheques be drawn on an authorised deposit-taking institution, the Vendor must reimburse the purchaser for the fees incurred.

The purchaser must pay bank fees on up to three bank cheques at Settlement, but the vVndor must pay the bank fees on any additional bank cheques requested by the Vendor.


Clause 12.1(a)

the Vendor provides proof, to the reasonable satisfaction particulars, to the satisfaction of the purchaser, that either:


Clause 12.1(b)

at least 28 days have elapsed since the day of sale particulars were given to the purchaser under paragraph (a); and


Clause 12.1(c)

all conditions of Section 27 of the Sale of Land Act 1962 have been satisfied.


Clause 13.1(b)

if the particulars of sale specify that the supply made under this Contract is a farming business and the supply (or a part of it) does not satisfy the requirements of section 38-480 of the GST Act; or


Clause 13.1(c)

if the particulars of sale specify that the supply made under this Contract is a going concern and the supply is of a going concern and the supply (or part of it) does not satisfy the requirements of section 38-325 of the GST Act.


Clause 17.2(c)

in any manner authorised by law or the Supreme Court for service of documents, including any manner authorised for service on or by a legal practitioner.


Clause 17.3

This General Condition applies to the service of any demand, notice or document by or on any party, whether the expression ‘give’ or ‘serve’ or any other expression is used.


Clause 19

Any signatory for a proprietary limited company purchaser is personally liable for the due performance of the purchaser's obligations as if the signatory were the purchaser in the case of a default by a proprietary limited company purchaser.


Clause 23.1(a)

any mortgage affecting the land sold must be discharged as to that land before the purchaser becomes entitled to possession or to the receipt of rents and profits unless the Vendor satisfies sections 6(1) and 6(2) Section 29M of the Sale of Land Act 1962; and


Clause 27.1

A party is not entitled to exercise any rights arising from the other party's default, other than the right to receive interest and the right to sue for money owing, until the other party is served given and fails to comply with a written default notice.


Clause 27.2(b)

state that it is the offended party's intention to exercise the rights arising from the default unless, within 14 days of service of the notice of the notice being given:

 

19 Apr 2010 v1.1

Additions / Changes:


Item 7

The Land is described: (tick where applicable)

__ in the attached copy title(s): …………………………………………………

__ and Plan(s): ……………………………………………………………………

__ as: …….…..................................………………………………………….

and includes all improvements and fixtures