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CONVEYANCING ACT 1919 - SECT 66ZS
Rescission under sunset clauses
66ZS Rescission under sunset clauses
(1) In this section--
"subject lot" means the residential lot being sold under an
off the plan contract.
"sunset clause" means a provision of an off the plan contract that provides
for the contract to be rescinded if the sunset event does not occur by the
sunset date.
"sunset date" means the date set out in the off the plan contract as the
latest date (subject to any extension provided for in the contract) by which
the sunset event must occur.
"sunset event" means the creation of the subject lot, the issue of the
occupation certificate in relation to the subject lot or another event
prescribed by the regulations.
(2) For the purposes of this section-- (a)
"rescind" includes terminate or otherwise bring to an end, and
(b) a lot is
created when the plan creating the lot becomes a registered plan.
(3) A
vendor may rescind an off the plan contract under a sunset clause, but only
if-- (a) each purchaser under the contract, at any time after being served
with the notice under subsection (4), consents in writing to the rescission,
or
(b) the vendor has obtained an order of the Supreme Court under this
section permitting the vendor to rescind the contract under the sunset clause,
or
(c) the regulations otherwise permit the vendor to rescind the contract
under the sunset clause.
(4) It is a term of an off the plan contract that a
vendor who is proposing to rescind the contract under a sunset clause must
serve each purchaser under the contract notice in writing at least 28 days
before the proposed rescission that specifies why the vendor is proposing to
rescind the contract and the reason for the sunset event not occurring by the
sunset date.
(5) A sunset clause cannot automatically rescind an
off the plan contract and, if it purports to do so, it is to be read as if it
instead permits the contract to be rescinded on or after the sunset date in
accordance with this section.
(6) The Supreme Court may, on the application
of a vendor under an off the plan contract, make an order permitting the
vendor to rescind the contract under a sunset clause, but only if the vendor
satisfies the Court that making the order is just and equitable in all the
circumstances.
(7) In determining whether it is just and equitable in all the
circumstances, the Court is to take the following into account-- (a) the terms
of the off the plan contract,
(b) whether the vendor has acted unreasonably
or in bad faith,
(c) the reason for the sunset event not occurring by the
sunset date,
(d) the likely date on which the sunset event will occur,
(e)
whether the subject lot has increased in value,
(f) the effect of the
rescission on each purchaser,
(g) any other matter the Court considers to be
relevant,
(h) any other matter prescribed by the regulations.
(8) The vendor
is liable to pay the costs of a purchaser in relation to the proceedings for
an order under this section unless the vendor satisfies the Court the
purchaser unreasonably withheld consent to the rescission of the
off the plan contract under the sunset clause.
(9) Notice may be served on a
purchaser by serving it on a person who is authorised under the
off the plan contract as a representative of the purchaser.
(10) A provision
in an off the plan contract has no effect to the extent that it is
inconsistent with this section.
(11) Nothing in this section limits-- (a) the
Court's power to award damages against the vendor if an order permitting the
vendor to rescind the contract under a sunset clause is made under subsection
(6), or
(b) any right that a purchaser may have to rescind an
off the plan contract under a sunset clause.
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