South Australian Current Acts South Australian Current Acts (1) Subject to this
section, a purchaser under a contract for the sale of land or a small business
may, by giving the vendor written notice before the prescribed time of the
purchaser's intention not to be bound by the contract, rescind the contract.
(2) The notice may be
given—
(a) by
giving it to the vendor personally; or
(b) by
posting it by registered post to the vendor at the vendor's last known address
(in which case the notice is taken to have been given when the notice is
posted); or
(c) by
transmitting it by fax or email to a fax number or email address provided by
the vendor to the purchaser for the purpose (in which case the notice is taken
to have been given at the time of transmission); or
(d)
without limiting the foregoing, if an agent is authorised to act on behalf of
the vendor—
(i)
by leaving it for the agent with a person apparently
responsible to the agent at the agent's address for service; or
(ii)
by posting it by registered post to the agent at the
agent's address for service,
(in which case the notice is taken to have been given when the notice is left
at or posted to that address).
(3) If in any legal
proceedings the question arises whether a notice has been given in accordance
with this section, the onus of proving the giving of the notice lies on the
purchaser.
(4) If a contract is
rescinded under this section, the purchaser is entitled to the return of money
paid under the contract, but the vendor may retain money paid by the
purchaser—
(a) in
consideration of an option to purchase the land or small business subject to
the sale; or
(b) by
way of deposit in respect of the sale if the deposit does not exceed—
(i)
$100; or
(ii)
if a greater amount is fixed by regulation—that
amount.
(5) A vendor or
stakeholder who, before the prescribed time, demands or requires the payment
of money by a purchaser in respect of the sale of land or a small business
other than—
(a)
money payable in consideration of an option to purchase the land or small
business; or
(b) a
deposit—
(i)
in the case of the sale of land—of $100 or such
greater amount as may be fixed by regulation; or
(ii)
in the case of the sale of a small business—of an
amount not exceeding 10% of the total consideration for the sale specified in
the contract,
is guilty of an offence.
(6) In proceedings for
an offence against subsection (5), if it is proved that the defendant
received money from the purchaser, it will be presumed, in the absence of
proof to the contrary, that the defendant demanded or required the payment of
that money.
(7) This section does
not apply in respect of a contract for the sale of land or a small business
where—
(a) in
the case of a contract for the sale of land other than residential land, the
purchaser is a body corporate; or
(b) the
purchaser has, before entering into the contract, received independent advice
from a legal practitioner and the legal practitioner has signed a certificate
in the form approved by regulation as to the giving of that advice; or
(c) the
sale is by auction; or
(d) the
land or business is offered for sale, but not sold, by auction and a person by
whom, or on whose behalf, a bid for the land or business was made at the
auction enters into the contract on the same day as the auction; or
(e) the
sale is by tender and the contract is made—
(i)
in the case of the sale of land—not less than five
clear business days after the day fixed for the closing of tenders and not
less than two clear business days after the vendor's statement is served on
the purchaser; or
(ii)
in the case of the sale of a small business—not
less than five clear business days after the day fixed for the closing of
tenders and not less than five clear business days after the vendor's
statement is served on the purchaser; or
(f) the
contract is made by the exercise by the purchaser of an option to purchase the
land or business subject to the sale and the option is exercised—
(i)
in the case of the sale of land—not less than five
clear business days after the grant of the option and not less than two clear
business days after the vendor's statement is served on the purchaser; or
(ii)
in the case of the sale of a small business—not
less than five clear business days after the grant of the option and not less
than five clear business days after the vendor's statement is served on the
purchaser; or
(g) in
the case of a contract for the sale of a small business (including any such
contract that also provides for the sale of land), the vendor's statement has
been served on the purchaser not less than five clear business days before the
making of the contract; or
(h) in
the case of a contract for the sale of land, the contract provides also for
the sale of a business that is not a small business.
(8) In this
section—
"agent's address for service" of a notice means the address last notified to
the Commissioner as the agent's address for service under the
Land Agents Act 1994 or an address nominated by the agent to the
purchaser for the purpose of service of the notice;
"prescribed time" means—
(a) in
relation to the sale of land—
(i)
where the vendor's statement is served on the purchaser
before the making of the contract—the end of the second clear business
day after the day on which the contract was made; or
(ii)
where the vendor's statement is served on the purchaser
after the making of the contract—the end of the second clear business
day from the day on which the statement was served,
or the time settlement takes place (whichever is the earlier);
(b) in
relation to the sale of a small business—
(i)
the end of the fifth clear business day after the day on
which the vendor's statement is served on the purchaser; or
(ii)
the time settlement takes place,
whichever is the earlier.