Contract for the Sale of Residential House and Land - AUWAREPS018

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BLACK = Old Item/Clause  | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted

 

21 Sep 2021 v1.8

Additions / Changes:

 

Item 9

DEPOSIT HOLDER

Name: ………………………………………………………………………………………………………………

Trust Account: …………………………………………………………………………………..…………………

Bank: …………………………  BSB: ...|...|…|...|…|... Account No.: …|…|…|…|…|…|…|…|…|...|…

 

Item 21

SIGNING

By signing this Contract:

1) The Buyer offers to purchase the Property for the Purchase Price and otherwise on the terms and conditions as set out in this Offer contained in this Contract which includes the Item Schedule and the Conditions for Sale of a Residential House and Land together with any Special Conditions.

 

Buyer:         …………………………..       (*) Witness:  ……………………….    Date:   …… / …… / ……

Print name:  …………………………..        Print name:  ……………………….

Buyer:         …………………………..       (*) Witness:  ……………………….    Date:   …… / …… / ……

Print name:  …………………………..        Print name:  ……………………….

 

If Executed by a Corporation: (in accordance with Section 127 of the Corporations Act 2001)

Director:        ……………………………..          Director/Secretary:   ……………………………..

Print Name:   ……………………………..          Print Name:    ……………………………..

Date of signing:  …… / …… / ….                    Date of signing:  …… / …… / ……

 

2)   The Seller accepts the above offer.

 

Seller:          …………………………..     (*) Witness:    …………………………..   Date:   …… / …… / ……

Print name:   …………………………..     Print name:    …………………………..

Seller:          …………………………..     (*) Witness:    …………………………..   Date:   …… / …… / ……

Print name:   …………………………..     Print name:    …………………………..

 

If Executed by a Corporation: (in accordance with Section 127 of the Corporations Act 2001)

Director:            ……………………………..      Director/Secretary:  ……………………………..

Print Name:       ……………………………..      Print Name:            ……………………………..

Date of signing:  …… / …… / ……                  Date of signing:       …… / …… / ……

 

(*) Witness signing is not required where a party signs electronically (refer Clause 42.9)

 

IMPORTANT NOTES:

Provision of incorrect answers or information in this Item Schedule can result in penalties or legal action.

All Parties MUST sign annexures and initial any alterations to this Contract.

 

Clause 47

Withholding – Capital Gains

47.1

The parties acknowledge (subject to Clause 47.2), where the Purchase Price of the Property is seven hundred and fifty thousand dollars ($750,000) or more, the Buyer 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:

47.2

Where the Seller 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 Buyer’s obligation under Clause 47.1 will not apply.

(1)

The Buyer’s obligation under Clause 47.1 will not apply where:

 

(a)

the Seller provides to the Buyer, a clearance certificate from the ATO in accordance with Schedule 1, valid at the time of Settlement; or

 

(b)

the Seller is a mortgagee exercising a power of sale; and

 

 

(i)

the residue payable to the mortgagee after payment of sale costs and mortgage debt is zero or less than zero; and

 

 

(ii)

the mortgagee provides a written declaration to the Buyer, in accordance with Schedule 1, that the amount to withhold is varied to nil.

(2)

Where the Seller provides a certificate under Clause 47.2(1)(a) or a declaration under Clause 47.2(1)(b), such notice must be provided not less than 3 Business Days (or such shorter time as the parties may agree) prior to Settlement.

 

31 Oct 2019 v1.7

Additions / Changes:

 

Clause 1(13)

Data Collection Agency: means an agency or organisation that collects real estate data to provide information to the real estate, finance and property valuation industries to enable data analysis.

 

Clause 1(16)

ECA: means Electronic Conveyancing Act 2014 (WA).

 

Clause 1(19)

ECNL: means the Electronic Conveyancing National Law as adopted in Western Australia by the Electronic Conveyancing Act 2014 (WA).

 

Clause 1(23)

Electronically Signed: means an electronically generated signature and includes a digital signature as defined in the ECNLA.

 

Clause 1(24)

ELN: means an Electronic Lodgment Network under the ECNLA.

 

Clause 1(29)

Financial Settlement Schedule: means a schedule within the electronic workspace listing financial settlement details for source and destination accounts necessary to complete Financial Settlement.

 

Clause 1(39)

Participation Rules: means the rules determined under section 23 of the ECNLA.

 

Clause 1(40)

Personal Information: means personal information as defined in the Privacy Act 1988 (CTH).

 

Clause 1(55)

Workspace: for an e-conveyance, means a shared electronic workspace within an ELN that allows the participating subscribers to the e-conveyance:

(a)

to lodge a document electronically under the ECNLA; and

(b)

if relevant, to authorise or complete financial settlement of the e-conveyance.

Once opened such Workspace will be an electronic address designated by the parties for the purpose of the delivery of Electronic Communications to relevant recipients.

 

Clause 7.2

(1)

Where an amount is required to be paid to the Australian Taxation Office (ATO) in accordance with the GST Withholding Notice (Item 20.3) the Buyer is authorised to withhold from the Balance Purchase Price and remit to the ATO the amount as required in Item 20.3(2) in accordance with section 14-250 of the Taxation Administration Act 1953 (Cth).

(2)

Notwithstanding the provisions of Clause 7.2(1) the Buyer will if requested by the Seller provide to the Seller at settlement a bank cheque for the GST Withholding amount payable to the Commissioner of Taxation.

(3)

Where the Buyer has provided a bank cheque to the Seller in accordance with Clause 7.2(2) the Seller must forthwith forward such bank cheque to the ATO.

 

Clause 7.4

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

(1)

not less than 14 days prior to Settlement, a GST Property Settlement Withholding Notification (Form 1); and

(2)

at or before Settlement, a GST Property Settlement Date Confirmation (Form 2).

 

Clause 7.5

On or before Prior to Settlement the Buyer must provide to the Seller a copy of:

(1)

the confirmation email response received from the ATO following lodgement of the Form 1 GST Property Settlement Withholding Notification showing the lodgement and payment reference numbers; and

(2)

the Form 2 GST Property Settlement Date Confirmation form lodged with the ATO.; and

(3)

a competed ATO payment slip.

 

Clause 15.2(1)

Where Settlement is to be effected by e-conveyance, this Clause 15.2 will apply and Settlement including the lodgment of Transfer Documents and payment of the Balance Purchase Price, adjusted as provided in this Contract, will proceed electronically in accordance with the ECNLA.

 

Clause 15.2(5)

Each party must:

(a)

be, or engage a representative who is a Subscriber (as defined in the ECNLA) for the purposes of the ECNLA; and

(b)

conduct this transaction in accordance with the ECNLA and Participation Rules.

 

Clause 15.2(13)

The parties agree payments of the GST Withholding amount as provided by Clause 7 will be complied with where at Settlement Time payment of the required amount is provided for and required in the Financial Settlement Schedule.

 

Clause 24

The Buyer warrants either:

(1)

the purchase is not a notifiable action with respect to It is not required to obtain consent to this purchase under the Foreign Acquisitions and Takeovers Act 1975 (CTH) (FATA); or

(2)

where the purchase is a notifiable action under the FATA the Buyer has obtained any and all approvals It has obtained any and all consents under the Foreign Acquisitions and Takeovers Act 1975 to this purchase.

 

Clause 45

Privacy Statement

45.1

The Seller’s Agent for either party to this Contract must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988 (CTH)) and where required maintain a Privacy Policy.

45.2

The Privacy Policy outlines how the Seller’s Agents collects and uses pPersonal iInformation provided by you (all parties) the parties as a party to this Contract, or obtained by other means, to provide the services required by you or on your behalf those parties.

45.3

The parties to this Contract agree that the Seller’s Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such information to:

 

(1)

third parties as may be required by the Seller’s Agent for the purposes of marketing, sales promotion, administration relating to the use of the Seller’s Agent’s products and services and  complying with legislative and regulatory requirements; and/or

 

(2)

property data collection agencies.

45.3

You as a party to this Contract agree Agents may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such information to third parties as may be required by the Agent for the purposes of facilitating electronic conveyancing, marketing, sales promotion and administration relating to the use of the Agent’s products and services,  but must do so in compliance with legislative and regulatory requirements.

45.4

Without provision of certain information your the Seller’s Agent may not be able to act effectively or at all on your behalf.

45.5

You as party to this Contract The parties have the right to access such pPersonal iInformation and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

45.6

The Seller’s Agent may from time to time provide information to a data collection agency such as RP Data Limited.  Data collection agencies provide information to the real estate, finance and valuation industries to enable accurate valuations of properties.

45.6

The Seller’s An Agent will provide (where applicable), on request, a copy of its Privacy Policy.

 

Clause 46

Data Collection

Upon signing this Contract the parties agree the Agent for either party to this Contract, and the form completion service provider providing this form, may without disclosing Personal Information collect, use and disclose to Data Collection Agencies information contained in this Contract.

 

11 Sep 2018 v1.6

Additions / Changes:

 

All fax fields removed.

 

Item 21 Note

(*) Witness signing is not required where a party signs electronically (refer Clause 42.9)

IMPORTANT NOTE:

All Parties MUST sign annexures and initial any alterations to this Contract.

 

Clause 1(41)

Related Document: means any written communication (including Notices), with regard to this matter, between the parties, including any Electronic Documents.

 

Clause 42

Related Documents / Notices / Electronic Communication

42.1

The parties agree and confirm any documents and communications in relation to this Contract may be forwarded served electronically in accordance with this clause and where this Contract has been forwarded electronically (either for signing or otherwise) the party receiving the Contract confirms having consented to the delivery of the Contract (and any other materials) by way of the electronic means of delivery before receiving the documentation.

42.2

Any Related Document, including this Contract, to be served on any party under this Contract shall be in writing and may be served on that party:

 

(1)

by delivery to the party personally; or

 

(2)

by leaving it for the party at that the party’s address as stated in this Contract the Item Schedule; or

 

(3)

by posting it to the party by ordinary mail or security mail as a letter addressed to the party at the address as stated in this Contract the Item Schedule; or

 

(4)

by as an electronic communication by facsimile transmission or email to the party at the appropriate electronic address as stated in this Contract the Item Schedule; or

 

(5)

by delivery to the other party’s solicitor’s or settlement agent’s office; or

 

(6)

by delivery to an alternative address, provided in writing by the party, by any of the methods outlined in Clauses 42.2(1) to (5) above.

42.3

A Related document posted shall be deemed to have been served, unless the contrary is shown, at the time when, by the ordinary course of post, the Related document would be delivered.

42.4

A Related document sent by electronic communication will be deemed to have been received in accordance with Section 14 of the Electronic Transactions Act 2011 (WA).

42.5

Related Documents given by a party's solicitor or settlement agent will be deemed to have been given by and with the authority of the party.

42.6

Related Documents must be served before 5pm on a Business Day, failing which, such Related document will be deemed to have been served on the next Business Day.

42.7

The parties acknowledge and agree an Electronic Document readily accessible via a link within a Related Document is received when the Related Document is served and will be opened when the Related Document is opened.

42.8

The parties may agree and consent to execution, delivery and service by any party, of Related documents electronically using by a method provided by an DocuSign or such other agreed electronic signing signature service provider.

42.9

Where a party signs this Contract electronically that party’s signature is not required to be witnessed.

 

01 Jul 2018 v1.5

Item 20

GST WITHHOLDING

20.1

The Property is: (tick one of the following)

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

20.2

(The Buyer is to complete this Item 20.2 where the purchase is of Potential Residential Land.)

The Buyer 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 Item 20.3(2) is not required to be completed.

20.3

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

 

(1)

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

 

(2)

Only complete the following details where payment is required:

 

 

(a)

Seller’s Name: ………………………………           ABN:………………………………..

 

 

(b)

Payment amount: $…………………………………

 

 

(c)

When payable: ……/……/……

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

 

 

(d)

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

 

Important Note to Buyer: Failure by the Seller to complete this Item does not affect the Buyer’s obligation to make a payment under section 14‑250 (Clause 7).

Clause 7

GST Withholding

7.1

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 Seller must give to the Buyer a GST Withholding Notice (Item 20.3) in accordance with section 14-255 of the Taxation Administration Act 1953 (Cth).

7.2

Where an amount is required to be paid to the Australian Taxation Office (ATO) in accordance with the GST Withholding Notice (Item 20.3) the Buyer is authorised to withhold from the Balance Purchase Price and remit to the ATO the amount as required in Item 20.3(2) in accordance with section 14-250 of the Taxation Administration Act 1953 (Cth).

7.3

Where the GST Withholding Notice (Item 20.3) is not completed by the Seller, the Buyer 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).

7.4

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

 

(1)

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

 

(2)

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

7.5

Prior to Settlement the Buyer must provide to the Seller a copy of:

 

(1)

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

 

(2)

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

Clause 15.2(11)

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

(a)

Settlement (including Financial Settlement) occurs electronically on the Settlement Date; or

(b)

where the parties have complied with the provisions of Clauses 15.2 and Settlement cannot occur by e-conveyance, and neither party is in default, and Settlement including Financial Settlement will be completed:

 

(i)

by e-conveyance on the next Business Day after the Settlement Date; or if the parties agree;

 

(ii)

if the parties agree, in accordance with Clause 15.3, in which case Settlement must be within 3 Business Days of the Settlement Date,

 

and in either case, time remains of the essence.

 

26 May 2018 v1.4

Additions / Changes:

 

Clause 14.2(11)

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

(a)

Settlement (including Financial Settlement) occurs electronically on the Settlement Date; or

(b)

where the parties have complied with the provisions of Clause 14.2 and Settlement cannot occur by e-conveyance, and neither party is in default, and Settlement including Financial Settlement will be completed:

 

(i)

by e-conveyance on the next Business Day after the Settlement Date; or if the parties agree;

 

(ii)

if the parties agree, in accordance with Clause 14.3, in which case Settlement must be within 3 Business Days of the Settlement Date,

 

and in either case, time remains of the essence.

 

12 Oct 2017 v1.3

Additions / Changes:

 

Clause 27

On the giving of reasonable notice to the Seller, the Buyer, and/or Buyer’s designated representative, may, at reasonable times (deemed to be on a Business Day between 9am and 4pm), prior to Settlement, inspect the Property for the purposes of:

(1)

inspections in accordance with Clause 4;

(2)

valuation, if required (under Clause 5 or otherwise made a condition of this Contract);

(3)

reading water meter or other utilities;

(4)

survey in accordance with Clause 29;

(5)

where the Property has been damaged, determining the extent of damage for the purposes of Clause 33.2 and 33.5;

(6)

one pre-Settlement inspection in addition to those above.

 

01 Jul 2017 v1.2

Additions / Changes:

 

Clause 45.1

The parties acknowledge (subject to Clause 45.2) where the Purchase Price (plus applicable GST less any input tax credit) of the Property is two million seven hundred and fifty thousand dollars ($2,000,000 $750,000) or more, the Buyer 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:

(1)

withhold from the purchase monies a sum equal to 10 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

(2)

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

(3)

promptly provide evidence of payment made in accordance with Clause 45.1(2) to the Seller

 

16 Jan 2017 v1.1

Additions / Changes:

 

Contract Title

CONTRACT FOR THE SALE OF A RESIDENTIAL HOUSE AND LAND

(can be used for Residential Land)

The Seller and Buyer agree to be bound by this Contract.

 

Clause 14.4(7)

vacant possession of the Land (except if subject to a lease noted in Item 15) of, and title to all the Property.