Sole Agency Agreement - Residential - AUNSWREPS003

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

 

15 Oct 2018 v4.4

Additions / Changes:

 

All instances of 'fax' removed.

 

Clause 5.1

In consideration of and in accordance with the terms of this Agreement, the Vendor appoints the Agent (and its permitted Assigns) for the duration of this Agreement to sell the Property for the Vendor and the Agent agrees. Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.

 

Clause 5.2

Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.

 

Clause 5.3

In carrying out the duties and services specified in this Agreement 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.

 

Clause 5.4

The Agent (licensee) in charge of the business must properly supervise, in accordance with the guidelines issued by the Commissioner for Fair Trading, all persons (employee or otherwise) engaged in the business carried on by the Agent.

 

Clause 9.5

The services and amounts detailed in this Agreement cannot be varied without agreement in writing signed by the parties.

 

Clause 14.2

This Agreement cannot be varied without agreement in writing signed by the parties.

 

Clause 18.1

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

 

Clause 18.8

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

 

01 Jul 2018 v4.3

Additions / Changes:

 

Item O

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).

 

19 Feb 2018 v4.2

Additions / Changes:

 

Item O

Signature of Vendor           Date:                       Signature of Vendor           Date:

………………………………     …… / …… / ……     ………………………………     …… / …… / ……

By signing below the parties acknowledge and confirm having read and understood this Agreement.

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:

………………………………   …… / …… / ……

 

Clause 1.1(4)

Electronic Document: means any electronic communication (including Notices) as defined in the Electronic Transactions Act 2000 (NSW) including any electronically generated document situated on an external server readily accessible via a link within an electronic communication or other electronically generated document.

 

Clause 1.1(9)

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

 

Clause 2

By signing this Agreement the Vendor(s) warrants and confirms:

(1)

it is the owner of the Property.

(1)

having read this Agreement

(2)

it has having authority to enter into this Agreement.  

(3)

having authority to grant to the Agent selling rights to the Property during the term of this Agreement specified in Item A.


 

Clause 9.8

The parties acknowledge Section 36 of the Act provides that an application to review a statement of claim or itemised account may be made to the Tribunal under the Consumer Claims Act 1998 Fair Trading Act 1987 by the Vendor. If such application is not made within 28 days of a statement of claim or itemised account being served upon you, the licensee may commence action for recovery.

 

Clause 14

Provision of Documents

The parties agree and confirm this Agreement may be forwarded electronically if the recipient has provided an email address or facsimile number in the Item Schedule to this Agreement.

 

Clause 18

Related Documents / Notices / Electronic Communication

18.1

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

18.2

A Related Document to be served on any party under this Agreement shall be in writing and may be served on that party:


(1)

by delivering it to the party personally; or


(2)

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


(4)

by email to the party at the appropriate email  address as stated in this Agreement; or


(5)

by delivery to an alternative address, provided in writing by the party, by any of the methods outlined in Clauses 18.2(1) to (4) above.

18.3

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.

18.4

A document sent by electronic communication will be deemed to have been received in accordance with Section 13A of the Electronic Transactions Act 2000 (NSW).

18.5

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

18.6

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.

18.7

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.

18.8

The parties agree to execution, delivery and service of documents electronically by a method provided by DocuSign or such other agreed electronic signature service provider.

 

01 Jul 2017 v4.1

Additions / Changes:

 

Item N

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.

(1)

Does the Vendor have a Clearance Certificate?           __ Yes  __ No  __ N/A

(2)

If ‘No’ above has the Vendor applied?                           __ Yes on …… / …… / ……  __ No  

 

24 Mar 2017 4.0

Additions / Changes:

 

Item 9

Items 1 to 8 make up the inspection report required by the Act and have been completed by the Agent in Item 3.

 

Agent’s Signature: ………………………………………………………… Date of Report: …… / …… / ……

 

Terms and Conditions Title

Terms of Agreement (in conjunction with the Sales Inspection Report and Sole Selling Agency Agreement (Residential))

 

Clause 10

Financial and Investment Advice

10.1

The Agent makes no representation as to being a financial or investment advisor.

10.2

The Vendor acknowledges any financial and investment advice provided by the Agent is general advice and its preparation has not taken into account the individual circumstances of the person or the person’s objectives, financial situation or needs.

10.3

An intending buyer should assess the suitability of any investment in the Property in the light of the buyer’s own needs and circumstances, which the buyer can do personally or by consulting an appropriately licensed financial adviser.

10.4

If there is any conflict of interest the Agent may have in connection with the provision of the advice referred to above the Agent must disclose full details of any benefits that may accrue to the Agent as a result thereof.

 

Clause 11

Agent’s Opinion (Item 5)

11.1

The Agent makes no representation as to being a financial or investment advisor.

11.2

The Agent’s estimated selling price is applicable as at the date of this Agreement and is the Agent’s honest and fair opinion of the estimated value.

11.1

In respect of the Agent’s estimated selling price (ESP) (Item 5.2) it is:

(1)

applicable as at the date of this Agreement; and

(2)

the Agent’s honest and fair opinion.

11.2

Should the Agent be called upon by the Vendor to provide supporting evidence of the ESP’s reasonableness, the Agent must provide such evidence.

11.3

The parties agree this Agreement will be amended in respect to Item 5.2(1) by the Agent notifying the Vendor in accordance with section 72A(4) of the Act of a Revised Estimated Selling Price.

 

31 Jan 2017 v3.9

Additions / Changes:

 

Item M

LOOSE-FILL ASBESTOS INSULATION QUESTIONNAIRE

Vendors note: Properties constructed before 1980 may contain loose-fill asbestos insulation.

__ Residential Premises Loose-fill Asbestos Insulation Questionnaire has been completed by the Vendor and given to the Agent prior to signing this agreement.

Prior to signing this Agreement the Vendor has completed and provided to the Agent a Residential Premises Loose-fill Asbestos Insulation Questionnaire.     __ Yes  __ No

 

Item N

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

(1)

Does the Vendor have a Clearance Certificate?  __ Yes  __ No  __ N/A

(2)

If ‘No’ above has the Vendor applied?  __ Yes on …... / …... / …...  __ No

 

Clause 6.3

The Agent will be responsible for ensuring all persons engaged by the Agent to perform functions in respect of this Agreement hold, where required, appropriate licenses and comply with relevant legislation and regulations.

 

01 Sep 2016 v3.8

Additions / Changes:

 

Item N

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

 

30 May 2016 v3.7

Additions / Changes:


Item M

LOOSE-FILL ASBESTOS INSULATION QUESTIONNAIRE

__ Residential Premises Loose-fill Asbestos Insulation Questionnaire has been completed by the Vendor and given to the Agent prior to signing this agreement.

 

01 Jan 2016 v3.6

Additions / Changes:


Item 5

5.1

Vendor’s Listing Price the Property is to be listed at: …………………..…… (incl. GST if applicable)

5.2

Agent’s Opinion: - Estimated  Selling Price (or range): ………………………..……….……………..…

(1)

Estimated Selling Price:

Single amount: $..................... OR  Price Range: $ ………..………  and  $ ……...…………

Note: The Selling Price of a property may be expressed as a price range, but only if the highest price in the price range exceeds the lowest by not more than 10% of the lowest price.

(2)

Most suitable method of sale: ……………………………………………………………………..…

WARNING: This is general advice and its preparation has not taken into account the individual circumstances of the Vendor or the Vendor’s objectives, financial situation or needs.


Item K

ESTIMATED SELLING PRICE - EVIDENCE

By signing below the Vendor acknowledges having received the following evidence of the reasonableness of the estimated selling price (Item 5.2(1)):

(1)

__ Comparative Market Analysis

(2)

__ Other (details): ……………………………………………………….……………………………………


Clause 1.1

In this Agreement (which includes the Item Schedule) the        following terms mean:


Clause 1.1(2)

Agreement: this Agency Agreement, consisting of the attached:

(a)

the Item Schedule – Sales Inspection Report; and

(b)

the Item Schedule – Sole Selling Agency Agreement; and

(c)

the Terms of Agreement.; and

(d)

any additional annexures, schedules or documents that may be attached.


Clause 1.1(8)

Vendor’s Listing Price (Item (5.1)): means the price at which the Vendor has instructed the Agent to list the Property having taken into account the Agents advice as to Estimated Selling Price.


Clause 7.6

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.


Clause 9.7(2)

In accordance with Section 55 of the Act, there will be no entitlement to commission or expenses for services performed unless a copy of this Agreement is served on the Vendor not more than 48 hours after being signed by the Vendor.


Clause 10.3

The parties agree this Agreement will be amended in respect to Item 5.2(1) by the Agent notifying the Vendor in accordance with section 72A(4) of the Act of a Revised Estimated Selling Price.


Clause 18

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.

 

11 Jun 2015 v3.5

Copyright statement updated.

 

01 Mar 2015 v3.4

Additions / Changes:


Item 5

LIST PRICE & AGENT OPINION Note: Item 5.2 is not a valuation & excludes GST.

5.1

Price the Property is to be listed at: …………………………………………… (incl. GST if applicable)

5.2

Agent’s Opinion - Estimated Selling Price range(or range): ……………...….. to ……...……..……….

5.3

Most suitable method of Sale: …………………………………….…………………………………………

WARNING: This is general advice and its preparation has not taken into account the individual circumstances of the Vendor or the Vendor’s objectives, financial situation or needs.


Item A

TERM OF AGREEMENT (SOLE AGENCY PERIOD)

The term of this Sole Agency Agreement (Sole Agency Period) commences on ………………..……… and concludes on …………………………… unless extended in writing by the Vendor.


Item B

NON EXCLUSIVE AGENCY

Both parties agree that on the conclusion the Sole Agency Agreement (Item A) this Agreement will continue as Non Exclusive Agency Agreement until terminated in writing by either party, or the Property is sold. Such termination will be without prejudice to either parties existing rights, duties or obligations.


Item B

COMMISSION     Note: Prices for goods and services are GST inclusive. See Clause 9.6

(1)

Subject to this Agreement on the Sale of the Property (at the price listed in Item 5.1) the Agent shall be entitled to a Commission fee of determined as follows:

……………………………………………………………………………………....……………(incl. GST)

(The Agent’s Commission is based on the GST inclusive/ exclusive selling price)

(2)

Based on the Agent’s maximum estimated selling price (Item 5.2) the Commission (Item B(1)) in dollars fee would be: ……………………........………………………………………..………(incl. GST)

(Where a range of value is entered into Item 5.2 the estimated selling price is based on the maximum value in that range)

(Note: the Commission Fee will vary based on the actual Sale price of the Property)

IMPORTANT: This is a sole agency agreement. This means you may have to pay the agent commission even if another agent sells the property or introduces a buyer who later buys the property.

However, if the buyer is introduced by the owner then no Commission is otherwise payable to the Agent.

WARNING: Have you signed an agency agreement for the sale of this property with another agent? If you have you may have to pay 2 commissions (if this agreement or the other agreement you have signed is a sole or exclusive agency agreement).


Item H

VENDOR’S BANK DETAILS (if required)

Vendor’s Details    

Bank:……………………………………Branch:……………………..……BSB  No.:.…………….............…... Account Name:…………………………………………………….…… Account No.: ……………………………


Item J Note

The Special Conditions to this Agreement are where inserted at the direction of under instruction from the Vendor a party to this Agreement and where not prepared by that party, were prepared by the Vendor or an Australian Legal Practitioner instructed by the Vendor and not by the Agent. No warranty is given by the Agent with respect to such clauses. Legal advice should be sought.


Item K

COOLING-OFF PERIOD: You (the vendor) have a cooling-off period for this agreement.  If you do not wish to continue with this agreement you can cancel it until 5 pm on the next business day or Saturday.

Has a Waiver of Right to Cooling-Off Period form been signed? __ Yes __ No


Item N

RECEIPT OF COPY OF AGREEMENT (See Section 55(1)(c) of the Act)

A signed copy of this Agreement must be served, by the Agent, on the Vendor within 48 hours after signing by the Vendor.   If a copy was given at the time of signing, the Vendor(s) confirm having received such copy by initialing. Vendor(s) initials: …..…………………..


Clause 1.1(1)

Act: the Property, Stock and Business Agents Act 2002 and Regulations thereto the Property, Stock and Business Agents Regulation 2014 as amended from time to time.


Clause 1.1(2)

Agreement: this Agency Agreement, consisting of the attached:

(a)

Item Schedule – Sales Inspection Report; and

(b)

Item Schedule – Sole Selling Agency Agreement; and

(c)

Terms of Agreement.


Clause 1.1(5)

Item: an Item in the attached Item Schedules forming part of this Agreement.


Clause 1.1(6)

Material Fact: A Material Fact has, where used in this Agreement, has the meaning as given to it by in Section 52 of the Act.


Clause 4

Non-Exclusive Appointment

Both parties agree that on the conclusion of the Sole Agency Period (Item A) this Agreement will continue as a Non-Exclusive Agency Agreement until terminated in writing by either party, or the Property is sold (the Non-Exclusive Agency Period). Such termination will be without prejudice to either party’s existing rights, duties or obligations.


Clause 6.11

Should the Agent act in conjunction with other Agents to effect a sale, only one Commission Fee will be payable.


Clause 7.2

The Vendor will at all times during the currency of this Agreement keep the Agent advised of and disclose to the Agent in writing all relevant and material facts and changes thereto about in relation to the Property.


Clause 8

Indemnity

The Agent having complied with its obligations under this Agreement 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 Agreement in respect of:

(a)

authorised sales advertising and signage; or

(b)

the Vendor’s failure to comply with this Agreement; or

(c)

the Vendor’s failure to give the Agent prompt and appropriate authority or instruction, or sufficient funds to carry out an instruction or authority; or

(d)

the Agent acting on behalf of the Vendor under this Agreement; or

(e)

the Agent incurring legal costs of employing the services of a credit collection agency to recover unpaid debts; or

(f)

any claim for compensation in respect of damage or loss to the Vendor’s goods.; or

(g)

a 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.

The Agent will be indemnified by the Vendor in respect of actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement or resultant upon any act, omission or negligence on the part of the Vendor.


Clause 9.1

The Vendor acknowledges the Agent is entitled to Commission if:

(a)

during the Sole Agency Period (Item A) or any extension thereof, the Property is sold (whether or not the Agent is the effective cause of the sale) unless the Vendor is the effective cause of the sale;

(b)

during the Non-Exclusive Agency Period (Item B) (Clause 4) the Property is sold to a purchaser who has been effectively introduced by the Agent; or

(c)

after the conclusion of the Sole or Non-Exclusive Agency Periods (Items A and B) (Item A and Clause 4), the Property is sold to a purchaser who has been effectively introduced by the Agent during either of those Agency Periods.


Clause 9.2

Should a binding contract be entered into but not completed due to:

(a)

any default by the Vendor; or

(b)

the Vendor, as Seller, releasing the Purchaser (by mutual agreement or otherwise) from the Purchaser’s contractual obligations; or

(c)

the deposit forfeited to the Seller due to the Purchaser’s non performance

the Vendor agrees the Commission is payable to the Agent forthwith. Provided however, where Clause 9.2(c) applies, Commission will remain due but monies payable shall (subject to the Seller’s rights to claim damages for breach of contract) be limited to the receipted deposit monies.

WARNING: The term immediately above provides that a commission is payable under this agreement even if the sale of the property is not completed.


Clause 9.4

The Agent is entitled to Commission, Fees for services and reimbursement remuneration of for Expenses (including any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Vendor) as set out in Items (B) and (C) respectively, for the execution of services under this Agreement.  


Clause 9.7

(1)

Failure to comply with the Act, Regulations or this Agreement may result in penalties against the Agent and prevent the Agent from recovering Commission and other monies under this Agreement.

(2)

In accordance with Section 55 of the Act, there will be no entitlement to commission for services performed unless a copy of this Agreement is served on the Vendor not more than 48 hours after being signed by the Vendor.


Clause 10.2

The Agent’s estimated selling price range is applicable as at the date of this Agreement and is the Agent’s honest and fair opinion of the estimated value.


Clause 18

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.

 

03 Sep 2014 v3.3

Additions / Changes:

 

The word 'Principal' has been changed to 'Vendor' throughout the Agreement due to the release of the Property, Stock and Business Agents Regulations 2014.

 

Item A

The Term of this Agreement (Sole Agency Period) commences on …………………………………. and concludes on ………………………………………… unless extended in writing by the Vendor Principal.

If the Agreement is for a fixed term that exceeds 90 days, the Agreement entitles the Principal  to terminate the Agreement (without penalty) by giving 30 days notice in writing to the Agent. at any time after the end of the first 90 days of the term. This is not the case for the sale of residential property where the contract for sale provides for the construction by the seller of a dwelling on the land.

 

Item I

__ Principal’s Vendor's Details   or     __ Seller’s Details (please tick one)

Bank: ………………………………………… Branch:…………………………… BSB No.: ……………………. Account Name: ………………………………………………………… Account No.: ……………………………

 

Clause 3

Sole Appointment

3.1

The Vendor by this Agreement appoints the Agent as Sole Agent for the duration of this Agreement and may refer any prospective purchasers of which the Vendor becomes aware to the Agent.

3.2

If the Agreement is for a fixed term that exceeds 90 days the Vendor may, at any time after the end of the first 90 days of the term, terminate the Agreement (without penalty) by giving 30 days notice in writing to the Agent.

3.3

Clause 3.2 does not apply to the sale of residential property where the contract for sale provides for the construction by the seller of a dwelling on the land.

 

12 Mar 2014 v3.2

Additions / Changes:

 

Clause 15

Privacy Statement

15.1

The Agent collects and uses personal information provided by you as the Principal 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.

15.2

The Privacy Policy outlines how the Agent collects and uses personal information provided by you as the Principal, or obtained by other means, to provide the services required by you or on your behalf.

15.3

You as the Principal agree the Agent may, subject to the Privacy Act 1988 (CTH) (where applicable), collect, use and disclose such personal information to:

(1)

potential buyers, to the extent required to prepare a contract for the sale of the Property; and/or

(2)

property data collection agencies; and/or

(3)

Owner’s Corporations & financial institutions; and/or

(4)

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.

15.4

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

15.5

The Principal has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

15.6

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

 

11 Sep 2012 v3.1

Additions / Changes:


Clause 6

The Agent having complied with its obligations under this Agreement, the Principal indemnifies the Agent, its officers and employees, from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:


Clause 6(f)

any claim for compensation in respect of damage or loss to the Vendor’s goods.


Clause 14

Electronic Use of Advertising Photographs

Where the Vendor has authorised and directed the Agent to advertise the Property by electronic means (eg. Website), as set out in Item (F), the Agent will take reasonable care to protect copyright of photos used in such advertising material but the Vendor acknowledges once the advertising material is electronically uploaded, to an advertising site, the Agent has no control over the unauthorised reproduction or use of such photos.


Clause 15.2(2)

property data collection agencies; and/or

 

01 Jan 2012 v3.0

Additions / Changes:


Clause 1.1(2)

Duty Holder: has the meaning given to it under Chapter 3 of the Work Health and Safety Regulation 2011.


Clause 6

The Agent having complied with its obligations under this Agreement, the Principal indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:


Clause 10

Work Occupational Health & Safety

10.1

The Property as detailed in Item (4) is the property of, and is at all times, notwithstanding the appointment of the Agent, under the control of, the Principal as Duty Holder.

10.2

The Principal has carried out inspection of any plant and equipment both new and used included in the sale in accordance with the Occupational Health and Safety Regulations 2001.

10.2

The Principal has complied with its obligations under the Work Health and Safety Act 2011 with respect to ensuring, so far as reasonably practicable, any fixtures, fittings and plant, to which such Act applies, are without risk to the health and safety of any person.


 

02 Aug 2011 v2.9

Additions / Changes:


Item 3

AGENT   *(Where the Agent trades as a corporation, include the corporation’s licence number)

Name: ...........................................................................................................................................

Address: …………………………………………………………………….....…  ACN: …………………………

……………………………………………………………………………………...  ABN: …………………………

Phone: ..(….)……………………….. Fax: ..(…..)…………………….…. Mobile: ……………………………..

Email: ………………………………………….…………………………………………..………………………...

Licence Number/s*: ….………………………………………………….....……….  GST Registered: Yes/No


Clause 7.6

Unless otherwise stated, all prices of goods and services under this Agreement include (where applicable) GST.


Clause 11

The parties agree and confirm this Agreement documents may be forwarded electronically to a person if the recipient that person has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Agreement.


Clause 14.2(4)

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.


Clause 14.4

The Principal has the right to access such personal information and may require correction or amendment of any inaccurate, incomplete, out of date or irrelevant information.

 

04 Feb 2011 v2.8

Additions / Changes:


Item N

A signed copy of this Agreement must be served, by the Agent, on the Principal within 48 hours after signing by the Principal. If a copy was given at the time of signing, the Principal(s) confirm having received such copy by initialing.

The Principal acknowledges having received a copy of this Agreement together with a copy of the Sales Inspection Report.

 

__ Copy received by the Principal(s):   Date received: …./…./….  Principal(s) initials: ……………………


Clause 14

14.1

The Agent collects and uses personal information provided by obtained from you as the Principal to provide the services required by you or on your behalf.

14.2

You as the Principal 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):


(1)

potential buyers; and/or


(2)

data collection agencies; and/or


(3)

Owner’s Corporations & financial institutions; and/or


(4)

other third parties as may be required by the Agent for the purposes of marketing, sales promotion, administration and  complying with legislative and regulatory requirements.


(4)

analysing, verifying and/or checking the Principal’s credit, payment and/or status in relation to provision of services.


(5)

allowing the credit reporting agency to create or maintain a credit information file containing information about you the Principal.

14.2

You as the Principal further agree and consent to the Agent obtaining from a credit report agency a Consumer Credit Report containing personal credit information about you the Principal for the purposes of the collection of overdue payments.  (Section 18k (1) (h) of the Privacy Act 1988 (CTH)).

14.3

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

14.4

The Principal has the right to request the Agent provide details of such information provided and also do all things reasonably necessary to amend or remove correct any inaccurate or out of date information.

 

20 Dec 2010 v2.7

Additions / Changes:


Item 4.2

Included Items included in the sale of the Property:

__  Blinds & Blind Fittings

__  Curtains & Curtain Fittings

__  Fixed Floor Coverings

__  Window Screens

__  Light Fittings

__  Built-in Furniture

__  Range Hood

__  Stove / Oven

__  Dishwasher

__  In ground plants

__  Clothes Line / Hoist

__  Pool Equipment

__  Fixed TV Antenna

__  Satellite Dish

__  Air Conditioning Unit/s

Other: ………………………………………….…………………………………………………………………


Item K

Note

The Special Conditions are inserted under instruction from a party to this Agreement and where not prepared by that party, were prepared by an Australian Legal Practitioner and not the Agent. No warranty is given by the Agent. Legal advice should be sought.


Item M

Signature of Principal

 

………………………………………….

Date: ……/……/……

Signature of Principal

 

………………………………………….

Date: ……/……/……

Signature of Agent

 

………………………………………….

Date: ……/……/……

 

The Principal acknowledges having received a copy of this Agreement together with a copy of the Sales Inspection Report.


Item N

The Principal acknowledges having received a copy of this Agreement together with a copy of the Sales Inspection Report.

__ Copy received by the Principal(s):

Date received: …./…./….    Principal(s) initials: ……………………


Clause 11

The parties agree and confirm documents may be forwarded electronically to a person if that person has provided an email address or facsimile number, for delivery or service of documents, in the Item Schedule to this Agreement.

 

05 Aug 2009 v2.6

Additions / Changes:


Clause 7.1

The Principal acknowledges the Agent is entitled to Commission if:

(a)

during the Sole Agency Period (Item A) or any extension thereof, the Property is sold (whether or not the Agent is the effective cause of the sale) unless the Principal is the effective cause of the sale; or

(b)

during the Non Exclusive Agency Period (Item B) the Property is sold to a purchaser who has been effectively introduced by the Agent and the Agent is the effective cause of sale; or

(c)

after the conclusion of the Sole or Non Exclusive Agency Periods (Items A and B) the Property is sold to a Purchaser who has been effectively introduced by the Agent during either of those Agency periods., and the Agent is the effective cause of the sale

 

03 Apr 2009 v2.5

Additions / Changes:


Clause 7.1(d)

a binding contract is entered into pursuant to Clauses 7.1(a), 7.1(b) or 7.1(c) and not completed due to the default of the Principal.


Clause 7.2

Should a binding contract be entered into but not completed due to:

(a)

any default by the Principal; or

(b)

the Principal, as Seller, releasing the Purchaser (by mutual agreement or otherwise) from the Purchaser’s contractual obligations; or

(c)

the deposit forfeited to the Seller due to the Purchaser’s non performance

the Principal agrees the Commission is payable to the Agent forthwith. Provided however, where Clause 7.2(c) applies, Commission will remain due but monies payable shall (subject to the Seller’s rights to claim damages for breach of contract) be limited to the receipted deposit monies.

 

17 Nov 2008 v2.4

Additions / Changes:


Clause 1.1(4)

Material Fact: A Material Fact has, where used in this Agreement, the meaning given to it by Section 52 of the Act.


Clause 7.7

The parties acknowledge Section 36 of the Act provides that an application to review a statement of claim or itemized account may be made to the Tribunal under the Consumer Claims Act 1998 by the Principal. If such application is not made within 28 days of a statement of claim or itemized account being served upon you, the licensee may commence action for recovery.

 

20 Dec 2007 v2.3

Additions / Changes:


Item L

The Principal acknowledges having received a copy of this Agreement together with a copy of the Sales Inspection Report.

This Agreement must include a copy of the Sales Inspection Report prepared by the Agent and given to the Principal under Clause 2 of Schedule 2 of the Regulations to the Act.


Clause 4.1

The Agent is authorised and directed, by the Principal, to disclose all relevant and material facts in relation to the Property.


Clause 4.2

The Agent must, in compliance with Section 52 of the Act, not make any promise that is false, misleading or deceptive or conceal any material facts.


Clause 5.1

The Principal has at the time of entering into this Agreement disclosed to the Agent all relevant and material facts about the Property and has not provided information that is or is likely to be misleading or deceptive.


Clause 5.3

There is a positive obligation on the Principal to disclose relevant and material facts. Any failure to disclose information known to the Principal which may detract from this sale will be a breach of this Agreement.


Clause 6

The Principal indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of this Agreement in respect of:

(a)

authorised sales advertising and signage; or

(b)

the Principal’s failure to comply with this Agreement; or

(c)

the Principal’s failure to give the Agent prompt and appropriate authority or instruction, or sufficient funds to carry out an instruction or authority; or

(d)

the Agent acting on behalf of the Principal under this Agreement.

(e)

the Agent incurring legal costs of employing the services of a credit collection agency to recover unpaid debts

This means The Agent will be indemnified by the Principal in respect of for such actions, claims, demands, losses, costs, damages and expenses so arising out of this Agreement or resultant upon any act, omission or negligence on the part of the Principal.

 

23 Oct 2007 v2.2

Additions / Changes:


Clause 5.3

There is a positive obligation on the Principal to disclose relevant facts.  Any failure to disclose information known to the Principal which may detract from this sale will be a breach of this Agreement.

 

14 Aug 2007 v2.1

Additions / Changes:


Clause 10

10.1

The Property as detailed in Item (4.1) is the property of and is at all times, notwithstanding the appointment of the Agent under the control of the Principal.

10.2

The Principal has carried out inspection of any plant and equipment both new and used included in the sale in accordance with the Occupational Health and Safety Regulations 2001.

 

12 June 2007 v2.0

Additions / Changes:


Item C

(The Agent's Commission is based on the GST inclusive/exclusive selling price)


Clause 6(e)

the Agent incurring legal costs of employing the services of a credit collection agency to recover unpaid debts.


Clause 13

13.1

The Agent collects and uses personal information obtained from you as the Principal to provide the services required by you or on your behalf.  You as the Principal agree the Agent may collect, use and disclose such personal information in accordance with and subject to the Privacy Act 1988 (CTH) for (where applicable): arketing, sales promotion and administration and as required for legislative and regulatory requirements relating to promotion, administration and use of the Agent’s products and services.  Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf.  The Principal has the right to request the Agent provide details of such information and also correct any inaccurate or out of date information.


(1)

marketing; and/or


(2)

sales promotion and administration; and/or


(3)

legislative and regulatory requirements relating to promotion, administration and use of the Agent's products and services; and/or


(4)

analysing, verifying and/or checking the Principal’s credit, payment and/or status in relation to provision of services.


(5)

allowing the credit reporting agency to create or maintain a credit information file containing information about you the Principal.

13.2

You as the Principal further agree and consent to the Agent obtaining from a credit report agency a Consumer Credit Report containing personal credit information about you the Principal for the purposes of the collection of overdue payments. (Section 18k (1) (h) of the Privacy Act 1988 (CTH)).

13.3

Without provision of certain information the Agent may not be able to act effectively or at all on the Principal’s behalf. The Principal has the right to request the Agent provide details of such information and also correct any inaccurate or out of date information.

 

05 Apr 2007 v1.9

Additions / Changes:


Item H

The Agent is / is not authorised to conjunct with other agents for a Conjunctional Sale of the Property for the duration of this Agreement. If so Commission is:

 

Commission Apportionment as a %: (If not completed Commission will be apportioned equally)

 

Appointment Agent: ...........................  Conjuncting Agent: ..................................

 

01 Mar 2007 v1.8

Additions / Changes:


Clause 4.10

Should the Agent have a relevant interest in the sale of the Property, no advertisement relating to the sale of the Property shall be published unless the relevant interest is disclosed in the advertisement in accordance with Section 50 (2) of the Act.

 

20 Oct 2006 v1.7

Many of the changes are due to this form being reformatted. Only the major changes appear below.

Additions / Changes:


Item 5

5.1 Price the Property is to be listed at: ........................................ (incl. GST if applicable)

5.2 Estimated Selling Price Range: $ ............... to $ ................

5.3 Most suitable method of Sale: ................................................................................


Item 7

See Items (E) and (F) for special instructions about showing and marketing of the Property.


Item 8

The Agent must, in accordance with Clauses 1 and 2 of Schedule 2 of the Regulations to the Act:

(1)

conduct an inspection of the Property prior to the Agent acting on behalf of the Principal under this Agreement.

(2)

give the Principal a completed copy of this Sales Inspection Report once the inspection is complete.


Item A

This Agreement (Sole Agency Period) commences on ............................. and concludes on .............................. unless extended in writing by the Principal


Item B

If this box is ticked Both parties agree that on the conclusion date (Item 8) of this the Sole Agency Agreement (Item A) this Agreement will continue as an Extended a Non Exclusive Agency Agreement until terminated in writing by either party, or the Property is sold. Such termination will be without prejudice to either parties existing rights, duties or obligations. The Agent will be contracted with non-exclusive selling right of the Property.


Item C

10.1 Price  the Property is to be listed at: ......................... q (incl. GST)

10.2 The Agent shall be entitled to a fee of ........................ % (incl. GST)

10.3 The Agent’s remuneration is based on the GST inclusive/ GST exclusive Selling Price

(1)

Subject to this Agreement on the Sale of the Property (at the Price listed in Item 5.1) the Agent shall be entitled to a Fee of: ............... (incl. GST) (The Agent’s Commission is based on the GST inclusive selling price)

(2)

Based on the Agent’s maximum estimated selling price (Item 5.2) the Fee would be ................ (incl. GST) (Note: the fee will vary based on the actual sale price of the Property).

10.4 Based on the Agent’s maximum estimated selling price (Item 5.1) the fee would be ................ (incl. GST)  (Note: this amount will vary based on the actual sale price of the Property).


Item H

The Agent is / is not authorised to conjunct with other agents for a Conjunctional Sale of the Property for the duration of this Agreement. If so Commission is:

 

Commission Apportionment as a %: (If not completed Commission will be apportioned equally)

 

Appointment Agent: ...........................  Conjuncting Agent: ..................................


Item J

¨ Principal’s Details  or  ¨ Seller’s Details (please tick)

Bank: .......................................... Branch: ...........................................

BSB No.: ......................... Account No.: ...............................................

Account Name: ....................................................................................


Item M

This Agreement must include a copy of any Sales Inspection Report prepared by the Agent and given to the Principal under Clause 2 of Schedule 2 of the Regulations to the Act. or the Property, Stock and Business Agents Regulation 2003.


Clause 1.1(3)

Item: an Item in the Item Schedule forming part of this Agreement.


Clause 1.1(4)

Property: the land and improvements thereon the subject of this Agreement (as described in Item (4)).


Clause 2

The Principal warrants it is the owner of the Property and has full authority to enter into this Agreement.

By signing this Agreement the Principal(s) warrants and confirms:

(1) it is the owner of the Property

(2) it has read this Agreement

(3) it has authority to enter into this Agreement.


Clause 3

In consideration of and in accordance with the terms of this Agreement, the Principal appoints the Agent and its permitted Assigns to sell the Property for the Principal and the Agent agrees. and the Agent agrees to sell the Property for the Principal. Authority vested in the Agent by this Agreement shall be deemed to be vested in the Agent’s authorised employees.


Clause 4

The Agent does not represent itself as a financial or investment advisor.


Clause 4.3

(1)

The Agent must provide financial statements and account to the Principal/Principal’s Solicitor with respect to all monies collected, received, paid or used by the Agent carrying out the Agent’s Obligations under this Agreement.

(2)

The Agent will issue tax invoices when necessary in respect of all monies owing by the Principal to the Agent.


Clause 4.8

This Agreement does not authorise the Agent to contract on behalf of the Principal with respect to the Property.


Clause 5.3

By completing Item (2) of the Item Schedule the Principal confirms it has authorised and instructed the Solicitor or Conveyancer named therein to act on their behalf and to:


Clause 6

The Principal indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of or in respect of this Agreement in respect of from:

(a)

authorised sales advertising and the promotional signage; or

(b)

the Principal’s failure to comply with this Agreement; or

(c)

the Principal’s failure to give the Agent appropriate authority or instruction, or sufficient funds to carry out an instruction or authority; or

(d)

the Agent acting on behalf of the Principal under this Agreement.

This means the Agent will be compensated by the Principal for such actions, claims, demands, losses, costs, damages and expenses so arising. in respect to this clause.


Clause 7.1

The Principal acknowledges the Agent is entitled to Commission during the Exclusive Agency Period (Item 8) if:

(a)

during the Sole Agency Period (Item A) or any extension thereof, the Property is sold (whether or not the Agent is the effective cause of the Sale) unless the Principal is the effective cause of the Sale; or the Property is sold by another Agent; or

(b)

during the Non Exclusive Agency Period (Item B) the Property is sold and the Agent is the effective cause of Sale; or the Agent is the effective cause of the Property being sold.

(c)

after the conclusion of the Sole or Non Exclusive Agency Periods (Items A and B) the Property is sold to a Purchaser introduced by the Agent during either of those Agency periods and the Agent is the effective cause of the Sale; or

(d)

a binding Contract is entered into pursuant to Clause 7.1(a), 7.1(b) or 7.1(c) and not completed due to the default of the Principal.


Clause 7.2

The Commission as detailed in Item (C) of the Item Schedule will be payable on settlement of the Sale, or if Clause 7.1(d) applies, on demand. The Agent will be entitled to the Commission if a contract of sale is entered into and not completed due to the default of the Principal.


Clause 7.3

The Agent is entitled to remuneration/reimbursement for Fees for services and remuneration of Expenses (including any taxes or deductions debited by financial institutions against the Agent’s account and attributable to the affairs of the Principal) in the amounts as set out in Items (C) and (D) respectively, for the execution of services under this Agreement. incurred while executing the services under this Agreement including any taxes or deductions debited by banks or other financial institutions against the Agent’s account and attributable to the affairs of the Principal.


Clause 7.4

The services and amounts detailed in this Agreement cannot be varied except with the without Agreement in writing signed by the parties. Principal.


Clause 7.5

All prices of goods and services under this Agreement include GST.


Clause 7.6

Failure to comply with the Act, Regulations or this Agreement may result in penalties against the Agent and prevent the Agent from recovering Commission and other monies under this Agreement.


Clause 8

8.1

The Agent makes no representation as to being a financial or investment advisor.

8.2

The Agent’s estimated selling price range is applicable as at the date of this Agreement and is the Agent’s honest and fair opinion of the estimated value.


Clause 9

The Agent is entitled to retain any Rebates, Discounts and/or Commissions in connection with services performed by the Agent in the capacity of the Agent for or on behalf of the Principal as disclosed in Item (G).


Clause 11

Each party has received a signed copy of and understands this Agreement or has had the opportunity to obtain professional advice with respect to the Agreement and each party acknowledges it is bound by the terms of this Agreement.


Clause 12

Any Special Condition to this Agreement shall form part of this Agreement. Should there be inconsistency between the terms of this Agreement and a Special Condition, the Special Condition shall apply.

 

23 May 2006 v1.6

Additions / Changes:


Item 10

IMPORTANT: This is a Sole Agency Agreement. This means you may have to pay the Agent Commission even if another agent sells the Property or introduces a buyer who later buys the Property. However, if the buyer is introduced by the owner then no commission is otherwise payable to the Agent.

 

14 Mar 2006 v1.5

Additions / Changes:


Item 2

Solicitor/Conveyancer: .....................................................................

Company: ......................................................................................


Item 10

10.3 The Agent's remuneration is based on the GST inclusive/GST exclusive Selling Price


Item 15

The Agent is authorised to allow a purchaser to inspect the Property according to the following instructions (unless the Principal instructs otherwise):


Clause 5.4

By completing Item (2) of the Item Schedule the Principal authorises and instructs the Solicitor or Conveyancer named therein to act on their behalf and to:


(1)

Carry out all necessary searches


(2)

Prepare the Contract


(3)

Forward the Contract to the Agent for completion.

 

06 Jan 2006 v1.4

Additions / Changes:


Item 7

Items (1) to (6) make up the inspection report required by the Act and has been completed by the Agent in Item (3).


Clause 2

In consideration of and in accordance with the terms of this Agreement, the Principal appoints the Agent and its permitted Assigns, and the Agent agrees to sell the Property for the Principal. Authority vested in the Agent by this appointment shall be deemed to be vested in the Agent’s authorised employees.


Clause 5.1

The Principal has at the time of entering into this Agreement disclosed to the Agent all relevant facts about the Property and has not provided information that is or is likely to be misleading or deceptive.


Clause 6

The Principal indemnifies the Agent from and against all actions, claims, demands, losses, costs, damages and expenses arising out of or in respect of this Agreement from:


(a)

the promotional signage; or


(b)

the Principal’s failure to comply with this Agreement; or


(c)

resulting from in any way the Principal’s failure to give the Agent appropriate authority or instruction, or timely, appropriate or sufficient funds to carry out an instruction or authority; or


(d)

and the Agent acting on behalf of the Principal in the capacity of Agent of the Principal under this Agreement.

This means the Agent will be compensated by the Principal for such actions, claims, demands, losses, costs, damages and expenses in respect to this clause.


Clause 9

By signing this Agreement all parties agree to having given prior approval, in accordance with the Electronic Transactions Act 2000 No. 8, for electronic transmission of this Agreement and any other related agreements, for signing purposes or otherwise, as far as such means of communication have been indicated in this document (ie. Facsimile numbers & email addresses).


Clause 10

10.1

In this Agreement (which includes the Item Schedule) the following terms mean:


(1)

Act: means the Property, Stock and Business Agents Act 2002 and the Property, Stock and Business Agents Regulations 2003 as amended.


(2)

GST: where used in this Agreement has the meaning used in a New Tax System (Goods & Services Tax) Act 1999 and “GST” includes any applicable rulings issued by the Commissioner of Taxation.

10.2

Other words and phrases not defined in this Agreement take on those meanings given to them in the Act.

 

31 Mar 2005 v1.3

Additions / Changes:


Clause 8

The Agent collects and uses personal information obtained from you as the Principal to provide the services required by you or on your behalf. You as the Principal agree the Agent may collect, and use and disclose such personal information in accordance with and subject to the Privacy Act 1988 (CTH) to third parties for (where applicable) marketing, and sales promotion and administration and as required for legislative and regulatory requirements and relating to promotion administration and use of the Agent's products and services. Without provision of certain information the Agent may not be able to act effectively or at all on the Principal's behalf. The Principal has the right to request the Agent provide details of such information and also correct any inaccurate or out of date information.


Item 9.2

The Agent shall be entitled to a fee of …………………………..... % (inc. GST)

IMPORTANT: This is a Sole Agency Agreement. This means you may have to pay the Agent commission even if another Agent (or you) sells the Property or introduce a buyer who later buys the Property.