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BLACK = Old Item/Clause | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted
28 Nov 2023 v3.0
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Item 17
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CAPITAL GAINS WITHHOLDING PAYMENT (To be completed by the Vendor)
Note: For properties with a market value of, at or more than, $750,000 a buyer must withhold 12.5% of the purchase price and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless:
•the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 – (Cth) Subdivision 14-D) and provides it to the buyer in a timely manner prior to settlement; or •the Vendor is a mortgagee exercising power of sale and the residue payable to the mortgagee after payment of sale costs and mortgage debt is not more than zero and the mortgagee provides a written declaration to that effect to the buyer in a timely manner prior to settlement. (1) Does the Vendor have a Clearance Certificate? __ Yes __ No __ N/A
(2) If ‘No’ above has the Vendor applied? __ Yes on …... / …... / …... __ No
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21 Sep 2021 v2.9
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Item 17
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Note: For properties with a market value of, at or more than, $750,000 a bBuyer must withhold 12.5% of the purchase price and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless: the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). If this Property is likely to sell for $750,000 or more and the Vendor is an Australian Resident it would be advisable for the Vendor to obtain a Clearance Certificate from the ATO to prevent purchase monies being withheld.
•the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D) and provides it to the buyer in a timely manner prior to settlement; or •the Vendor is a mortgagee exercising power of sale and the residue payable to the mortgagee after payment of sale costs and mortgage debt is not more than zero and the mortgagee provides a written declaration to that effect to the buyer in a timely manner prior to settlement.
(1) Does the Vendor have a Clearance Certificate? __ Yes __ No __ N/A
(2) If ‘No’ above has the Vendor applied? __ Yes on …... / …... / …... __ No
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Clause 1.1
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(5)
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Conjunctional Sales: means a sale conducted in association with another or other Agents.
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Clause 4
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Conjunctional Sales
The Agent may, during the term of the Appointment, to better facilitate the provisions of the Appointment, utilise the services of another Aagent in which case there may be sharing of the Selling Fee. Before agreeing with another Real Estate Agent to conduct a Conjunctional Sale, an Agent will:
(1)
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disclose to the Vendor the name of the other agent with whom the Agent proposes to act;
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(2)
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advise the other Agent of the Vendor’s instructions for the sale; and
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(3)
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explain to the Vendor general issues about a sale conducted in conjunction with other Agents.
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06 May 2020 v2.8
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Item 5.6
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The Agent is authorised to receive and retain in its trust account:
(1)
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deposit monies paid by the Buyer:
(a)
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as stakeholder in accordance with the Act; or
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(b)
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as trustee for the Buyer in relation to matters contained in Section 163 70 of the Strata Titles Act 1985; and
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(2)
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any monies received from the Vendor during the Term of this Appointment on account of Expenses. See Item 12.2.
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16 Apr 2020 v2.7
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Item 11(a)
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Estimated Sale Price: $ ……………………………… <Including GST (if applicable)/Excluding GST>
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Item 12.2
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The Vendor agrees to pay or reimburse the Agent the amounts listed as follows and/or as outlined in any attached annexures forming part of this Appointment: (initial where applicable)
Description of Expense
(if insufficient room, attach annexure)
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Amount and Method for Calculating
(eg. $ per hour)
(Amounts are inclusive of GST)
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Monies Payable and Date Due
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Vendor Agrees (Initial)
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Agent’s Code of Conduct Article 20(2) - advertising costs (see Clause 7.6)
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maximum of $ ……………..….
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Advertising/Marketing as per Item 12.1
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maximum of $ ……………..….
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Auctioneers Fee
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Additional Auction Expenses
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Clause 1.1(4)
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Code of Conduct: means Code of Conduct for Real Estate and Business Agents and Sales Representatives Code of Conduct 2016.
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Clause 7.6
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The Agent is entitled to reimbursement or payment of the Agent’s Code of Conduct Article 20(2) advertising costs where the Vendor has agreed to such reimbursement in Item 12.2 of the Item Schedule.
Note: In accordance with Section 62(2) of the Act the Agent must include, in any advertisement, such details as are sufficient to identify the Agent. (ie. trading name and contact details)
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31 Oct 2019 v2.6
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Item 11
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The Agent’s Selling Fee will be calculated using one of the Fee Methods set out in Item 11(b):
a.
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Estimated Sale Price: $ …………… (Including GST if applicable) <Including GST/Excluding GST>
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b.
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Fee Method: (tick only one)
__ ……… % (incl. GST) of the Sale Price
__ ……… % (incl. GST) of the first $ …… of the Sale Price plus …… % (incl. GST) of the Balance
__ Fixed Amount of $ ……………….. (incl. GST)
__ Other: ………………………………………………………………………………………………………
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c.
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Selling Fee Amount: $ ………… plus GST of $ …………… Total Payable: $ …………… (incl. GST)
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Note: Where the Fee Method is expressed as a percentage (Item 11(b)) the Selling Fee Amount (Item 11(c)) is an estimated amount calculated on the Estimated Sale Price (Item 11(a)) and the actual Selling Fee for this service will be worked out only on the actual sale price.
Vendor agrees to the Selling Fee being charged as indicated above. Vendor Initials: …………….
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Clause 1.1(6)
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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.
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Clause 1.1(14)
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Personal Information: means personal information as defined in the Privacy Act 1988 (CTH).
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Clause 17
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Privacy Statement
17.1
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The Agent must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988 (CTH)) and where required maintain a Privacy Policy.
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17.2
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The Privacy Policy outlines how the Agent collects and uses pPersonal iInformation provided by you as the Vendor, or obtained by other means, to provide the services required by you or on your behalf.
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17.3
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You as the Vendor agree the Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such information to:
(1)
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potential buyers, to the extent required to prepare a contract for the sale of the Property; and/or
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(2)
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property data collection agencies; and/or
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(2)
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Strata Companies and financial institutions; and/or
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(3)
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other third parties as may be required by the Agent for the purposes of marketing, sales promotion and administration relating to the use of the Agent’s products and services, and but must do so in complianceying with legislative and regulatory requirements.
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17.4
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Documents or copies of documents provided to establish the identity of the Vendor or persons entitled to deal on behalf of the Vendor, will be retained by the Agent in accordance with the Australian Privacy Principles and will not be used for any purpose other than confirming the identity of such person/s.
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17.5
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Without provision of certain information the Agent may not be able to act effectively or at all on the Vendor’s behalf.
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17.6
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The Vendor has the right to access such pPersonal iInformation and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.
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17.7
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The Agent will provide (where applicable), on request, a copy of its Privacy Policy.
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Clause 18
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Data Collection
Upon signing this Appointment the parties agree the Agent, 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 Appointment and any subsequent sales contract.
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28 Feb 2019 v2.5
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Form Heading
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Exclusive Selling Appointment of Agent
Sale by Private Treaty or Auction
(Rural)
(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’.)
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Item 1
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Name/s: ……………..………………………………………………………………………..……………………
Legally Appointed Representative (if applicable): ……………………………………….……..………………
Address: ……………………………..…………………………………………………..…………………………
ABN: …………………Phone:.................................. Fax: ……………....…… Mobile: ……..……………
Email: ………………………………………………………………………..……………………………………
Additional Parties Annexure attached: __ Yes __ No
Basis of Lawful Authority: ………………………...………………………………………………………………
(eg. Owner of the Property Premises, appointed Power of Attorney or Enduring Power of Attorney, executor, mortgagee in possession or a person with an appropriate Court order)
If there is a Legally Appointed Representative, has a certified copy of the legal authority been received:
__ Yes __ No
Identification Check: (to be completed for each owner or legally appointed representative and in the case of a corporate vendor, for each signing Director)
(1) 100 Points of Identification Checklist/s completed and attached: __ Yes __ No
(2) In the case of a Corporate Vendor, ASIC company search obtained: __ Yes __ No
Note: (1) Agent to retain copies of all identifying documents.
(2) If 100 Points of ID check has not been completed, onus will be on the Agent to confirm the Vendor’s identity.
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Item 2
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AGENT (Where the Agent is a corporate licensee include the corporation licence number)
Licensee: …………………………………………………………………………………………………………….
Name/s: ………………………………………………………………………………………………………………
Business Address: …………………………………………………………………………………………………
Service of Documents Address: …………………………………………………………………..………………
ABN: ………………… Phone: (…)………………… Fax: (…)……………… Mobile: .………………………..
Contact: ……………………………………………………………………… Licence No.: ...…….……………..
Email: ………………… Licensed: Real Estate & Business Agent/Real Estate Agent/Business Agent
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Item 3.2
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Property is sold: __ Subject To Tenancy OR __ With Vacant Possession
OR
__ Subject To Tenancy (provide details eg. lease duration, rent amount, etc)
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Item 4
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The Vendor appoints the Agent to perform the service/s as indicated below:
(1)
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__
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Sale by Private Treaty – (see Item 6).
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(2)
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__
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Sale by Auction - (see Items 5 and 6).
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Item 4
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The Vendor appoints the Agent to perform the service/s as indicated below:
(1)
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__
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(a)
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Sale by Auction - (see Item 5)
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__
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(b)
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Where the Property fails to sell at Auction the Vendor agrees/disagrees to continuing this Appointment as an Appointment for Sale by Private Treaty (see Item 6).
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(2)
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__
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Sale by Private Treaty – (see Item 6)
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The Agent agrees to perform such services with due skill, care and diligence.
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Item 5
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Date: …… / …… / …… Time: ……………… Place: ……………………..………………………………………
Auctioneer’s Fee: ……………………………………. Reserve Price: ……………………………………………
Settlement Date: …………………… days from date of contract.
Deposit: ……………. % of the Selling Price Deposit Payable: ……………………………………………
Auction Conditions - (see Clause 8): ………………………………………………………………………………
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Item 6
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6.1
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This Appointment is for an Exclusive Period commencing on ……………….. and concluding on:
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(1)
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where the property is to be auctioned, the auction date, Item 5; otherwise
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(2)
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…………..…………….…………………. (insert date) unless extended in writing by the Vendor.
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6.1
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The Exclusive Period of this Appointment commences on ……………………………………………..* and concludes on: …………..… ….……………. unless extended in writing by the Vendor.
*Note: Where Item 4(1)(b) applies, the Exclusive Period commences immediately after the auction.
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6.2
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Commencing on completion of the Exclusive Period or where the Property fails to sell at Auction the Vendor agrees/disagrees to continuing this Appointment on a non-exclusive basis for Sale by Private Treaty until terminated by either party on the giving of not less than ……… days written notice.
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6.2
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On the conclusion of the Exclusive Period (Item 6.1) this Appointment will terminate unless the Vendor appoints the Agent on a non-exclusive basis as outlined in Item 6.3.
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6.3
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Where the Vendor agrees to continue the Appointment in accordance with Item 6.2 the Vendor agrees/disagrees to pay the Agent the Selling Fee if the Property is sold and the Vendor introduced the Buyer to the Property.
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6.3
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Commencing on completion of the Exclusive Period the Vendor appoints the Agent on a non-exclusive basis for a period of ………… days unless terminated by either party on the giving of not less than ……… days written notice.
Such termination will be without prejudice to either party’s existing rights, duties or obligations.
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Item 8
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8.1
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Improvements*: (eg. dwellings, fencing, sheds, fixed plant and equipment, fixed machinery)
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8.2
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Chattels*: (furnishings, motor vehicles, free standing plant and equipment)
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8.3
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Livestock:
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Item 9
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LISTING PRICE/AUCTION RESERVE PRICE
Vendor’s Property Listing Price: $ ……………… OR Between: $ ………………… and $ ……………………
Auction Reserve Price: $………………………..
If Auction Reserve Price is unknown at the time of Appointment, it can be advised in writing at a later date.
Note: The Property and all inclusions are sold free of any encumbrances.
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Item 11
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The Agent’s Selling Fee will be calculated using one of the Fee Methods set out in Item 11(b):
a.
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Estimated Sale Price: $ …………………………………… (Including GST if applicable)
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b.
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Fee Method: (tick only one)
__ ……… % (incl. GST) of the Sale Price
__ ……… % (incl. GST) of the first $ …… of the Sale Price plus …… % (incl. GST) of the Balance
__ Fixed Amount of $ ……………….. (incl. GST)
__ Other: ………………………………………………………………………………………………………
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c.
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Selling Fee Amount: $ ………… plus GST of $ …………… Total Payable: $ …………… (incl. GST)
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Note: Where the Fee Method is expressed as a percentage (Item 11(b)) the Selling Fee Amount (Item 11(c)) is an estimated amount calculated on the Estimated Sale Price (Item 11(a)) and the actual Selling Fee for this service will be worked out only on the actual sale price.
Vendor agrees to the Selling Fee being charged as indicated above. Vendor Initials: …………….
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Item 11
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The Agent’s Selling Fee, including where the Property is sold by Auction, will be as calculated using one of the following methods: [Tick only one]
__
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………….% of the Selling Price*
*Based on an estimated Selling Price of $ ……. the Selling Fee as an actual dollar amount would be:
Selling Fee: $ ……..……. plus GST of $ ……..……. Total Fee Payable: $ ……..……. (incl. GST)
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__
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Fixed Fee of $ …………… plus GST of $ ……..….… Total Fee Payable: $ …………… (incl. GST)
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__
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Other: ……………………………………………………………………………………………………………
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Vendor agrees to the Selling Fee being charged as indicated above. Vendor Initials: …………….
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Item 12.2
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The Vendor agrees to pay or reimburse the Agent the amounts listed as follows and/or as outlined in any attached annexures schedules forming part of this Appointment: (initial where applicable)
Description of Expense
(if insufficient room, attach schedule annexure)
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Amount and Method for Calculating
(eg. $ per hour)
(Amounts are inclusive of GST)
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Monies Payable and Date Due
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Vendor Agrees (Initial)
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Agent’s Code of Conduct Article 20(2) - advertising costs (see Clause 7.5)
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maximum of $ ……………..….
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Advertising/Marketing as per Item 12.1
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maximum of $ ……………..….
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Auctioneers Fee
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Additional Auction Expenses
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Item 13 Heading
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DISPUTES MAKING A COMPLAINT
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Item 14
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RESIDUAL CURRENT DEVICES / SMOKE ALARMS
14.1
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Residual Current Devices (RCDs): not less than 2 RCDs are installed in relation to the residential premises on the Property in compliance with the Electricity Regulations 1947: __ Yes __ No
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14.2
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Smoke Alarms: are installed in the residential premises on the Property in compliance with the Building Regulations 2012: __ Yes __ No
(Owners of all domestic dwellings being sold in Western Australia must install and maintain smoke alarms in compliance with Section 60(2) of the Building Regulations 2012 as amended.)
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Item 16
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SPECIAL CONDITIONS (if insufficient space attach schedule)
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Item 17
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Note: For properties with a market value of, at or more than, $750,000 a Buyer must withhold 12.5% of the purchase price and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). If this Property is likely to sell for $750,000 or more and the Vendor is an Australian Resident it would be advisable for the Vendor to obtain a Clearance Certificate from the ATO to prevent purchase monies being withheld.
Has the Vendor received from the ATO a:
Clearance Certificate: __ Yes __ Have Applied on: …… / …… / ……. __ N/A
(1) Does the Vendor have a Clearance Certificate? __ Yes __ No __ N/A
(2) If ‘No’ above has the Vendor applied? __ Yes on …... / …... / …... __ No
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Item 18
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GST WITHHOLDING
All sales of ‘residential property’ will require the Vendor to complete a notice in accordance with section 14-255 of the Taxation Administration Act 1953 (Cth).
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Item 19
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SIGNATURES
By signing below the parties acknowledge and confirm having read and understood this Appointment.
Signature of Vendor(s): Date: Date:
………………………………………… …… / …… / …… ……………………………… …… / …… / ……
………………………………………… …… / …… / …… ………………………………. …… / …… / ……
Note: Where signed by Vendor’s authorised representative or the Vendor is a corporation evidence of authority to sign must be provided.
Signature of Agent: Date:
………………………………………. …… / …… / ……
Important Note:
All parties should sign annexures and initial any alterations to this Appointment (Failure to do so does not invalidate this Appointment).
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Item 19
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SIGNATURES
By signing this Appointment each party acknowledges having received a copy of this Appointment and has read and understood this Appointment and had the opportunity to obtain professional advice with respect to this Appointment and each party acknowledges it is bound by the terms of this Appointment.
Signature of Vendor(s):
Vendor (1): …………………………………… Name: ……………………………… Date: …… / …… / ……
Vendor (2): …………………………………… Name: ……………………………… Date: …… / …… / ……
Vendor (3): …………………………………… Name: ……………………………… Date: …… / …… / ……
Signed by the Agent:
Signature: ………………………………………. Date: …… / …… / ……
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Item 20
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A true copy of this Appointment must be given to the Vendor(s) immediately after signing it’s signed.
__ Copy received by the Vendor(s): Date received: …… / …… / …… Vendor(s) initials: ………………
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Clause 1.1
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In this Appointment, which includes the Item Schedule, the following terms mean:
(3)
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Appointment: this Appointment of Agent, consisting of:
this Exclusive Selling Appointment consisting of the Item Schedule and Terms of Appointment and any additional schedules that may be attached including the Property Details Sheet.
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(a)
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the Item Schedule for Exclusive Selling Appointment of Agent;
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(b)
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the Terms of Appointment; and
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(c)
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any additional annexures, schedules or documents that may be attached including a Property Details Sheet.
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(4)
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Code of Conduct: means Code of Conduct for Real Estate and Business Agents and Sales Representatives 2016.
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(5)
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Conjunctional Sales: means a sale conducted in association with another or other Agents.
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(6)
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Electronic Document: means any electronic communication (including Notices) as defined in the Electronic Transactions Act 2011 including any electronically generated document situated on an external server readily accessible via a link within an electronic communication or other electronically generated document.
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(6)
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GST Act: refers to the A New Tax System (Goods & Services Tax) Act 1999.
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(7)
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Exclusive Agency: means an agency whereby the Agent is entitled, on the sale of the Property and in accordance with the terms of this Appointment, to receive the agreed selling fee, whether or not the Agent is the effective cause of the sale.
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(10)
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Introduced: means where the Property has been presented, shown or offered by any medium, to a prospective buyer.
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(13)
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Property: means the land, and improvements, chattels and livestock thereon, the subject of this Appointment (as described in Items 3 and 8).
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(14)
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Related Document: means any written communication (including Notices) with regard to this matter between the parties, including any Electronic Documents.
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(15)
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Settlement: has the meaning given this term in section 61 of the Act in relation to completion of the conveyance of the Property from the seller to the buyer.
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Clause 2
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By signing this Appointment the Vendor(s) warrants and confirms:
(1)
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it is the owner of the Property;
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(1)
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being authorised and having the legal capacity to enter into this Appointment
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(2)
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it has authority to enter into this Appointment;
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(3)
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having correctly provided all relevant and Material Facts and information necessary for the sale of the Property for, in the case of Pastoral Leasehold, the information in Item 7 is correct.
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(4)
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there are no undisclosed charges, encumbrances or third party interests over the Property.
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Clause 3
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Exclusive Appointment of Agent
3.1
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In consideration of and in accordance with the terms of this Appointment, the Vendor appoints the Agent to an Exclusive Agency for the sale of the Property including (where indicated in Item 4(2)) authority to Auction for the period as outlined in Item 6.1 and the Agent agrees.
The Vendor by this Appointment appoints the Agent as Exclusive Agent for the sale of the Property for the duration of this Appointment and will refer any prospective buyers of which the Vendor becomes aware to the Agent.
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3.2
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Where indicated in Item 6.2, the Vendor agrees to continue this Appointment on a non-exclusive basis.
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3.3
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Authority vested in the Agent by this Appointment shall be deemed to be vested in the Agent’s authorised employees.
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3.4
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In carrying out the duties and services specified in this Appointment the Agent is authorised to utilise the services of any suitable person or company, provided however where required under the Act such duties or services must be carried out by a licensed person.
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3.5
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During any Exclusive period of this Appointment the Vendor will refer any prospective buyers, of which the Vendor becomes aware, to the Agent.
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3.6
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This Appointment cannot be varied without agreement in writing signed by the parties.
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Clause 4
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Conjunctional Sales
The Agent may, during the term of the Appointment, to better facilitate the provisions of the Appointment, utilise the services of another Agent in which case there may be sharing of the Selling Fee. Before agreeing with another Real Estate Agent to conduct a Conjunctional Sale, an Agent will:
(1)
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disclose to the Vendor the name of the other agent with whom the Agent proposes to act;
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(2)
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advise the other Agent of the Vendor’s instructions for the sale; and
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(3)
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explain to the Vendor general issues about a sale conducted in conjunction with other Agents.
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Clause 5.2
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The Agent is authorised and directed, by the Vendor, to disclose all Material Facts in relation to the Property including, in the case of property under the Strata Titles Act 1985, to sign the compulsory information certificate to be given to the Buyer.
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Clause 5.4
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The Agent will comply with the Codes of Conduct prescribed under the Act or to which the Agent otherwise subscribes.
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Clause 5.9
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The Agent may, during the term of the Appointment, to better facilitate the provisions of the Appointment, utilize the services of another Agent in which case there may be sharing of the Selling Fee.
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Clause 7.1
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The Vendor acknowledges the Agent is entitled to a Selling Fee if a binding contract is entered into:
(1)
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during the Exclusive Period (Item 6.1) and the Property is sold; or
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(a)
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the Property is sold; or
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(b)
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the Agent was the effective cause of sale, his initial introduction of the prospective Buyer having led directly to the Property being sold; or
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(c)
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a binding Contract is entered into pursuant to Clause 6.1(1)(a) and 6.1(1)(b) and not completed due to the default of the Vendor.
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(2)
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during any agreed non-exclusive period (Item 6.2) the Property is sold to a buyer:
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(a)
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the Agent having Introduced by the Property Agent and the Agent is and being the effective cause of sale; or
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(b)
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where the Property has been Introduced by the Vendor during the Exclusive Period; and
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(3)
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within 1 month of the expiry of the Exclusive Period and where no non-exclusive period has been agreed to, the Property is sold to a person Introduced to the Property during the Exclusive Period where such introduction has been the effective cause of sale.
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Clause 7.2
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Where the Agent is entitled to a Selling Fee in accordance with Clause 7.1 the Selling Fee as detailed in Item 11, will be payable by the Vendor: on Settlement of the sale or, if Clause 6.1(c) applies, on demand.
(1)
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on Settlement of the sale; or
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(2)
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on demand if the contract is not completed due to the default of:
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(a)
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the Vendor; or
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(b)
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the buyer, but only to the extent of the deposit paid.
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Clause 7.3
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Where chattels and livestock are included in the Property (Item 8) the Agent will be entitled to the Selling Fee in respect of the chattels and livestock notwithstanding they may be subject to a contract separate from the land and improvements.
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Clause 7.7
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The Vendor acknowledges and confirms the Agent is entitled to retain any rebates, and/or discounts and/or fees that relate to a service by a stocktaker or tradesperson, or to advertising or a service provided by the Agent provided by another party with respect to a matter falling within the Agent’s obligations and authority under this Appointment where the Agent has disclosed to the Vendor, by separate notice in writing, the full nature, extent and amount of such rebates, and/or discounts and/or fees.
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Clause 7.11
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Unless otherwise stated, all prices of Goods and Services under this Appointment, exclude GST.
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Clause 8.10
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Prior to the auction date the Agent may sell the Property by private treaty in which case Should the Property be sold prior to Auction, the provisions of Clause 7.1(1) will apply as if the property were sold during an Exclusive Selling Appointment.
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Clause 10
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Any monies payable under this Appointment by the Vendor to the Agent (or any judgment given in respect of this Appointment) not paid when due will attract Interest from the due date for payment, to the date of payment at the rate prescribed in the Regulations to the Civil Judgments Enforcement Act 2004.
Where monies payable under this Appointment by the Vendor to the Agent are not paid when due, the Agent may take appropriate steps, including legal action to recover such monies.
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Clause 12
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Termination
12.1
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Either party may, where the other party is in breach of this Appointment, give written notice to the other party specifying the breach complained of and requiring the party against whom the breach is alleged to rectify such breach within 7 days of service of the notice (breach rectification period) and:
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(1)
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either party may, prior to expiration of the breach rectification period, refer the matter to mediation or arbitration in accordance with Clause 13; or
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(2)
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where Clause 12.1(1) does not apply and the breach has not been rectified within the breach rectification period, this Appointment may be terminated by the party alleging the breach giving 7 days written notice of termination.
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12.2
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In the case of a fundamental breach the Appointment may be terminated forthwith.
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12.3
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Any termination shall be without prejudice to either party's rights under this Appointment.
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12.4
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Upon termination of this Appointment all monies owing under this Appointment must be paid or reimbursed up to and including the end date of this Appointment on a pro rata basis if necessary.
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Clause 12
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Provision of Documents
The parties agree and confirm documents may be forwarded electronically if the recipient has provided an email address or facsimile number in the Item Schedule to this Appointment.
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Clause 13
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In the case of a disputes and/or complaints not being in relation to a breach of this Appointment either party may serve on the other a notice containing full details of the dispute and/or complaint in which case both parties will use their best endeavours to settle the dispute without recourse to litigation and may refer such dispute to mediation or arbitration by a relevant professional or government body or authority, provided however in the case of Arbitration the matter will be referred to a single arbitrator appointed by the President of the Institute of Arbitrators in the State of Western Australia pursuant to the Commercial Arbitration Act 2012.
The provisions of this clause do not limit either party’s rights with respect to other legal remedies.
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Clause 14
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Related Documents / Notices / Electronic Communication
14.1
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The parties agree and confirm any documents and communications in relation to this Appointment may be forwarded electronically and where this Appointment has been forwarded electronically (either for signing or otherwise) the party receiving the Appointment confirms having consented to the delivery of the Appointment (and any other materials) by way of the electronic means of delivery before receiving the documentation.
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14.2
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A Related Document to be served on any party under this Appointment shall be in writing and may be served on that party:
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(1)
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by delivering it to the party personally; or
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(2)
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by leaving it for the party at that party’s address as stated in this Appointment; or
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(3)
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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 Appointment; or
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(4)
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as electronic communication to the party at the appropriate electronic address as stated in this Appointment; or
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(5)
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by delivery to an alternative address, provided in writing by the party, by any of the methods outlined in Clauses 14.2(1) to (4) above.
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14.3
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A 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 document would be delivered.
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14.4
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A document sent by electronic communication will be deemed to have been received in accordance with Section 14 of the Electronic Transactions Act 2011.
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14.5
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Documents given by a party's solicitor will be deemed to have been given by and with the authority of the party.
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14.6
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Documents must be served before 5pm on a business day, failing which, such document will be deemed to have been served on the next business day.
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14.7
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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.
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14.8
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The parties agree and consent to execution, by any party, of documents electronically using a method provided by an electronic signing service provider.
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Clause 18
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Severability
If a provision of this Appointment is held to be void or unenforceable by any court of competent jurisdiction then such provision may be excised from this Appointment which, in all other respects, will remain in full force and effect.
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Clause 19
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Applicable Law
This Appointment is governed in accordance with the laws of Western Australia and any dispute in relation thereto shall be determined in accordance with such laws.
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01 Jul 2018 v2.4
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Item 1
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Name/s: ……………..………………………………………………………………………..……………………
Legally Appointed Representative (if applicable): ……………………………………….……..………………
Address: ……………………………..…………………………………………………..…………………………
ABN: …………………Phone:.................................. Fax: ……………....…… Mobile: ……..……………
Email: ………………………………………………………………………..……………………………………
Basis of Lawful Authority: ………………………...………………………………………………………………
(eg. Owner of the Premises, appointed Power of Attorney or Enduring Power of Attorney, executor, mortgagee in possession or a person with an appropriate Court order)
If there is a Legally Appointed Representative, has a certified copy of the legal authority been received:
__ Yes __ No
Identification Check: (to be completed for each owner or legally appointed representative and in the case of a corporate vendor, for each signing Director)
(1) 100 Points of Identification Checklist/s completed and ID check/s has/have been made as attached: __ Yes __ No
(2) In the case of a Corporate Vendor, ASIC company search obtained: __ Yes __ No
Note: (1) Agent to retain copies of all identifying documents
(2) If 100 Points of ID check has not been completed, onus will be on the Agent to confirm the Vendor’s identity
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24 Jul 2017 v2.3
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Item 12.2
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The Vendor agrees to pay or reimburse the Agent the amounts listed as follows &/or as outlined in any attached schedules forming part of this Appointment: (initial where applicable)
Description of Expense
(if insufficient room, attach schedule)
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Amount & Method for Calculating
(eg. $ per hour)
(Amounts are inclusive of GST)
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Monies Payable & Date Due
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Landlord Agrees (Initial)
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Agent’s Code of Conduct Article 1720(2) - advertising costs (see Clause 6.5)
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maximum of $ ……………..….
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Advertising/Marketing as per Item 12.1
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maximum of $ ……………..….
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Other Expenses
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Clause 6.4
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The Agent is entitled to reimbursement or payment of the Agent’s Code of Conduct Article 1720(2) advertising costs where the Vendor has agreed to such reimbursement in Item (12.2) of the Item Schedule.
Note: In accordance with Section 62(2) of the Act the Agent must include, in any advertisement, such details as are sufficient to identify the Agent. (ie. trading name & contact details)
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01 Jul 2017 v2.2
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Item 16
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Note: For properties with a market value of, at or more than, $2,000,000 $750,000 a Buyer must withhold 10 12.5% of the purchase price and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). If this Property is likely to sell for $2,000,000 $750,000 or more and the Vendor is an Australian Resident it would be advisable for the Vendor to obtain a Clearance Certificate from the ATO to prevent purchase monies being withheld.
Has the Vendor received from the ATO a:
Clearance Certificate: __ Yes __ Have Applied on: …… / …… / ……. __ N/A
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08 Aug 2016 v2.1
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Item 3.1
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Address: .………………………………………………………………………………………………………………
Lot No.: …………. on Plan/Deposited Plan/Diagram/Strata-Survey/Strata
Deposited Plan/Survey Plan/Strata Plan/Survey-Strata Plan/Diagram: ………………………………...
Certificate of Title Reference: …………… Volume: ……………. Folio: …...………… Area: ………. (approx.)
Local Government: ……………………………………………………………...............................................
Encumbrances: ………………………………………………………………………………………………………
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Item 16
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CAPITAL GAINS WITHHOLDING PAYMENT (To be completed by the Vendor)
Note: For properties with a market value of, at or more than, $2,000,000 a Buyer must withhold 10% of the purchase price and pay such monies to the Australian Taxation Office (ATO) on or before settlement, unless the Vendor has obtained a Clearance Certificate from the ATO (Taxation Administration Act 1953 (Cth) – Subdivision 14-D). If this Property is likely to sell for $2,000,000 or more and the Vendor is an Australian Resident it would be advisable for the Vendor to obtain a Clearance Certificate from the ATO to prevent purchase monies being withheld.
Has the Vendor received from the ATO a:
Clearance Certificate: __ Yes __ Have Applied on: …… / …… / …… __ N/A
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Clause 5.4
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Where a product, fixture or fitting provided with the Property has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.
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Clause 16
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Where a product, fixture or fitting provided with the Property has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.
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13 Jul 2015 v2.0
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Item 4
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The Vendor appoints the Agent to perform the service/s as indicated ticked below:
Vendor’s Initials: ………………
(1)
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__ (a) Sale by Auction - (see Item 5)
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__ (b) Where the Property fails to sell at Auction the Vendor agrees / disagrees to continuing this Appointment as an Appointment for Sale by Private Treaty (see Item 6) Sale by Private Treaty where the Property is not sold at Auction – (see Item 6)
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(2)
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__ Sale by Private Treaty – (see Item 6)
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The Agent agrees to perform such services with due skill, care and diligence. Vendor Initials: ……...……
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Item 5
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AUCTION DETAILS (only complete if the Property is to be sold by public auction)
Date: ……………… Time: ……………… Place: ……………………..…………………………………………..
Auctioneer’s Fee: ……………………………………. Reserve Price: …………………………………………....
Settlement Date: ……………… days from date of Contract Vendor Agrees: …………….
Deposit: ……… % of the Selling Price Deposit Payable: ………………………………………………..
Auction Conditions - (see Clause 7): ……………………………………………………………………………..
Vendor Initials: ….........………
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Item 6
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6.1
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The Exclusive Period of this Appointment commences on ………..…………………………………..* and concludes on ………..…………………………………. unless extended in writing by the Vendor.
*Note: Where Item 4(1)(b) applies, the Exclusive Period commences immediately after the auction.
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6.2
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On the conclusion of the Exclusive Period (Item 6.1) this Appointment will terminate unless the Vendor appoints the Agent continue on a non-exclusive basis as outlined in Item 6.3. for a period of ………… days unless terminated by either party on the giving of not less than ……… days written notice. Such termination will be without prejudice to either parties existing rights, duties or obligations.
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6.3
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Commencing on completion of the Exclusive Period the Vendor appoints the Agent on a non-exclusive basis for a period of ………… days unless terminated by either party on the giving of not less than ……… days written notice.
Such termination will be without prejudice to either party’s existing rights, duties or obligations.
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The Vendor Agrees: __ Yes __ No Vendor’s Initials: ……..………..
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Item 11
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Vendor Agrees changed to Vendor Initials
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Item 12.1
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Advertising & Marketing: The Vendor authorises the Agent to advertise/market the Property as set out below: Vendor Initials Agrees: ......………
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Item 12.2
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The Vendor agrees to will pay to or reimburse the Agent the amounts listed as follows below &/or as outlined in any attached schedules forming part of this Appointment: (initial where applicable)
Vendor Agrees: ……........……
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Item 15
Heading
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SPECIAL CONDITIONS (if insufficient space attach schedule)
The Vendor and the Agent agree to the following Special Conditions
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Item 16
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SIGNATURES
By signing this Appointment each party acknowledges having received a signed copy of this Appointment and has read and understood this Appointment and had the opportunity to obtain professional advice with respect to this Appointment and each party acknowledges it is bound by the terms of this Appointment.
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Clause 6.1(2)
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during any agreed non-exclusive period (Item 6.3) the Property is sold to a Buyer:
(a)
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introduced by the Agent and the Agent is the effective cause of sale; or
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(b)
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introduced by the Vendor during the Exclusive Period
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Clause 6.1(3)
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within 1 month of the expiry of the Exclusive Period and where no non-exclusive period has been agreed to, the Property is sold to a person introduced to the Property during the Exclusive Period where such introduction has been the effective cause of sale.
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Clause 8
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The Agent having complied with its obligations under this Appointment and not having been negligent, the Vendor indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Appointment in respect of:
(a)
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authorised sales advertising and signage; or
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(b)
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the Vendor’s failure to comply with this Appointment; or
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(c)
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the Vendor’s failure to give the Agent appropriate authority or instruction, or sufficient funds to carry out an instruction or authority; or
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(d)
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the Agent acting on behalf of the Vendor under this Appointment; or
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(e)
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warning label or safety instructions having been removed, damaged or defaced where a product or fitting has been supplied to the Property with such a label or instruction attached.
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This means the Agent, having complied with its obligations under this Appointment and not having been negligent, will be compensated by the Vendor in relation to such actions, claims, demands, losses, costs and damages so arising.
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Clause 16
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Safety
Where a product, fixture or fitting provided with the Property has a warning label or safety instructions attached the Vendor is not to deface, damage or remove such label.
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11 Jun 2015 v1.9
Copyright statement updated.
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12 Mar 2014 v1.8
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Clause 15
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Privacy Statement
15.1
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The Agent collects and uses personal information provided by you as the Vendor to provide the services required by you or on your behalf.
The Agent must comply with the provisions of the Australian Privacy Principles (Privacy Act 1988) and where required maintain a Privacy Policy.
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15.2
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The Privacy Policy outlines how the Agent collects and uses personal information provided by you as the Vendor, or obtained by other means, to provide the services required by you or on your behalf.
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15.3
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You as the Vendor agree the Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such personal information to:
(1)
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potential buyers, to the extent required to prepare a contract for the sale of the Property (including sales agents) for the purpose of advising them of the Agent’s business or part thereof; and/or
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(2)
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property data collection agencies; and/or
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(3)
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Strata Companies & financial institutions; and/or
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(4)
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other third parties as may be required by the Agent for the purposes of marketing, sales promotion, administration, facilitating, to the extent necessary, its obligations under Item (4) of the Item Schedule and Clause 4 of the Terms of Appointment and complying with legislative and regulatory requirements.
other third parties as may be required by the Agent for the purposes of marketing, sales promotion and administration relating to the use of the Agent’s products and services and complying with legislative and regulatory requirements.
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15.4
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Documents or copies of documents provided to establish the identity of the Vendor or persons entitled to deal on behalf of the Vendor, will be retained by the Agent in accordance with the National Australian Privacy Principals and will not be used for any other purpose other than confirming the identity of such person/s.
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15.5
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Without provision of certain information the Agent may not be able to act effectively or at all on the Vendor’s behalf.
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15.6
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The Vendor has the right to access such information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.
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15.7
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The Agent will provide (where applicable), on request, a copy of its Privacy Policy.
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11 Sep 2012 v1.7
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Clause 8
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The Agent having complied with its obligations under this Authority, the Vendor indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses (including Fees and Expenses) which the Agent may suffer or incur in respect of:
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Clause 12
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The parties agree and confirm documents may be forwarded electronically if the recipient has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Appointment.
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Clause 15.2(2)
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property data collection agencies; and/or
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14 Nov 2011 v1.6
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Item 1
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VENDOR (Must be The registered proprietors on the Certificate of Title or legally their properly appointed representative)
Name/s: ……………..………………………………………………………………………..…………………………..
Legally Appointed Representative (if applicable): ……………………………………….……..…………………....
Address: ……………………………..…………………………………………………..……………………………….
ABN: ……………………Phone:.................................. Fax: ……………....…… Mobile: ……..……………….
Email: ………………………………………………………………………..……………………………………………
Basis of Lawful Authority: ………………………...…………………………………………………………………….
(eg. Owner of the Premises, appointed Power of Attorney or Enduring Power of Attorney, executor, mortgagee in possession or a person with an appropriate Court order)
If there is a Legally Appointed Representative, has a certified copy of the legal authority been received:
__ Yes __ No
Identification Check: (to be completed for each owner or legally appointed representative & in the case of a corporate vendor, for each signing Director)
(1) 100 Points of ID check/s has/have been made as attached: __ Yes __ No
(2) In the case of a Corporate Vendor, ASIC company search obtained: __ Yes __ No
Note: (1) Agent to retain copies of all identifying documents)
(2) If 100 Points of ID check has not been completed, onus will be on the Agent to confirm the Vendor’s identity)
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Clause 15.3
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Documents or copies of documents provided to establish the identity of the Vendor or persons entitled to deal on behalf of the Vendor, will be retained by the Agent in accordance with the National Privacy Principles and will not be used for any other purpose than confirming the identity of such person/s.
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01 Nov 2011 v1.5
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Item 1
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VENDOR (Must be the registered proprietors on the Certificate of Title or their properly appointed representative)
Name/s: …………………………………………………………………………………………………………………..
Business Name: …………………………………………………………..…………………………………………….
Address: ………………………………………………………………………………………………………………….
ABN:……………………… Phone:.................................... Fax:…………………… Mobile:……………………
Email: ………………………………………………………………………..…………………………………………..
Basis of lawful authority: ………………………………………………………………………………………………..
(eg. Owner of the Premises, appointed Power of Attorney or Enduring Power of Attorney, executor, mortgagee in possession or a person with an appropriate Court order)
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Item 4
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The Agent agrees to perform such services with due skill, care, skill and diligence.
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Item 12.2
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Description of Expense
(if insufficient room, attach schedule)
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Amount & Method for Calculating
(eg. $ per hour)
(Amounts are inclusive of GST)
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Monies Payable & Date Due
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Vendor
Agrees
(Initial)
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Agent’s Code of Conduct Article 17(2) - advertising costs (see Clause 6.5)
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maximum of $ …………….....
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Advertising/ marketing as per Item 12.1
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maximum of $ …………….....
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Clause 6.5
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The Agent is entitled to reimbursement or payment of the Agent’s Code of Conduct Article 17(2) advertising costs where the Vendor has agreed to such reimbursement in Item (12.2) of the Item Schedule.
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28 Sep 2011 v1.4
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Item 13
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The Vendor may seek assistance from the Commissioner for Consumer Protection in relation to disputes as to the Selling Fee (Commission) or other valuable consideration to be received by the Agent.
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07 Jul 2011 v1.3
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Item 13
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The Vendor may seek assistance from the Commissioner REBA (Real Estate & Business Agents Supervisory Board) in relation to disputes as to the Selling Fee (Commission) or other valuable consideration to be received by the Agent.
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22 Jun 2011 v1.2
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Item 2
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Licensee: ..............………………………………………………………………………………………..…………
Name/s: .......……………………………………………………………………………………………………….….
Business Address: .…………………………………………………………………………………………………..
Service of Documents Address: ...………………………………………..…………………………………………
ABN: ………………….... Phone: ……………...………. Fax: ……..…….………. Mobile: …………...……….
Contact: ……………………..……..………….. Email: ………..………..…………………....…….…………..…
Licensed: Real Estate & Business Agent/ Real Estate Agent/ Business Agent
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Clause 6.11
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Unless otherwise stated, all prices of Goods and Services under this Appointment, unless otherwise specified, exclude GST.
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Clause 12
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The parties agree and confirm documents may be forwarded electronically if the recipient has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Appointment.
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Clause 15
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15.1
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The Agent collects and uses personal information provided by obtained from you as the Vendor to provide the services required by you or on your behalf.
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15.2
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You as the Vendor agree the Agent may subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such personal information to: in accordance with and subject to the Privacy Act 1988 (CTH) for (where applicable):
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(1)
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potential buyers (including sales agents) for the purpose of advising them of the Agent’s business or part thereof; and/or
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(2)
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data collection agencies; and/or
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(3)
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Strata Companies & financial institutions; and/or
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(4)
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other third parties as may be required by the Agent for the purposes of marketing, sales promotion, administration, facilitating, to the extent necessary, its obligations under Item (4) of the Item Schedule and Clause 4 of the Terms of Appointment and complying with legislative and regulatory requirements.
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15.3
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Without provision of certain information the Agent may not be able to act effectively or at all on the Vendor’s behalf.
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15.4
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The Vendor has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.
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