Victorian Current Acts Victorian Current ActsS. 51(1) substituted by No. 86/1994 s. 24.
(1) This section applies if an estate agent or auctioneer (or any employee or person acting on behalf of an estate agent or auctioneer) makes any promise to a person with respect to the obtaining of a loan of money to defray some or all of the cost of the purchase price of any real estate or business.
S. 51(1A) inserted by No. 86/1994 s. 24.
(1A) Before obtaining any signature from the person (or any agent of the person) on any document that legally binds, or that is intended to legally bind, the person in respect of the purchase of the real estate or business, the estate agent or auctioneer must—
(a) give to the person, or to any other person signing the document on behalf of that person, a statement in writing as provided for in this section; and
(b) obtain from the person to whom the statement is given an acknowledgement in writing of the receipt of that statement.
S. 51(2) amended by No. 86/1994 s. 25(a).
(2) Notwithstanding anything in subsection (1A)—
(a) it shall not be necessary in any case where there are two or more purchasers to give a statement in writing to more than one of the purchasers; and
(b) a statement in writing shall be deemed to be duly given if it is given to a person who is authorized by the purchaser to receive it on his behalf or who is authorized by one of two or more purchasers to receive it on their behalf.
(3) Every statement given under this section—
(a) shall set out so that it can be readily identified the situation or description of the real estate or business in relation to which the statement is given;
(b) shall state the name and address of the seller and of the purchaser;
(c) shall—
S. 51(3)(c)(i) amended by Nos 86/1994 ss 25(b), 47(zf), 17/2004 s. 10(1).
(i) set out in accordance with the requirements of subsection (4) particulars of any promise made by the auctioneer or agent (or by any employee or agent's representative) with respect to the obtaining of a loan of money for defraying wholly or in part the purchase price and state whether the loan is to be obtained by the auctioneer or agent and state also that any other promise which may previously have been made with respect to the obtaining of a loan of money for defraying wholly or in part the purchase price is withdrawn.
S. 51(3)(c)(ii) repealed by No. 86/1994 s. 25(c).
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(d) shall state the date on which the statement is given; and
(e) shall be signed by the auctioneer or agent or by a person authorized in writing by the auctioneer or agent.
S. 51(4) amended by Nos 86/1994 s. 47(zg), 17/2004 s. 10(1).
(4) The particulars required to be set out by subsection (3)(c)(i) shall be the terms of the promise actually made by the auctioneer or agent (or by any employee or agent's representative) save that it shall not in any circumstances be necessary to set out any particulars other than or in addition to—
(a) the amount of the loan;
(b) the rate of interest payable under the loan (but not any higher rate which may be payable if default is made in complying with the terms and conditions upon which the loan is obtained);
(c) the date by which (if the terms and conditions upon which the loan is obtained are complied with) the loan is to be repaid;
(d) if the loan is to be repayable by instalments, the amount of each instalment and the intervals at which the instalments are to be payable; and
(e) the person, body, or institution from whom or which the loan is to be obtained.
S. 51(5) amended by Nos 86/1994 s. 47(zg), 17/2004 s. 10(1).
(5) If a statement containing substantially—
S. 51(5)(a) amended by No. 86/1994 s. 25(b).
(a) the particulars and information required to be set out and stated by subsection (3)(c)(i)—
S. 51(5)(b) repealed by No. 86/1994 s. 25(c).
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is given in accordance with the provisions of this section the purchaser shall not be entitled, under or by virtue of the provisions of this section, to avoid any such contract agreement or document on the ground that the auctioneer or agent (or his employee or agent's representative) has made a promise with respect to the obtaining of a loan of money which is not set out in the statement.
(6) If a statement containing substantially—
S. 51(6)(a) amended by No. 86/1994 s. 25(b).
(a) the particulars and information required to be set out and stated by subsection (3)(c)(i)—
S. 51(6)(b) repealed by No. 86/1994 s. 25(d).
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is not given in accordance with the provisions of this section, the purchaser may at his option by notice in writing given to the seller or to the auctioneer or agent—
(a) within one month after he first signs any contract, agreement or document in respect of the sale; and
(b) before the purchaser has—
(i) paid the whole of the purchase money; or
(ii) taken possession of the property; or
(iii) accepted title to the property—
avoid the contract agreement or document; and in any civil proceedings arising out of or connected with the contract agreement or document the onus of proving that the statement was duly given shall lie upon the party so alleging.
(7) If in respect of any sale to which this section applies—
(a) a loan of money is not obtained by or on behalf of the purchaser in compliance with any promise set out in any statement given to the purchaser pursuant to this section; and
(b) the purchaser has not already paid the whole of the purchase money or taken possession of the property or accepted title to the property—
the purchaser, if he has done all things reasonably required to be done to obtain the loan of money, may by notice in writing given, within three months after he first signs any such contract agreement or document in respect of the sale, to the seller or to the auctioneer or agent avoid that contract agreement or document.
S. 51(8) amended by No. 57/1989 s. 3(Sch. item 66.4).
(8) Upon any avoidance under this section of a contract agreement or document—
(a) the seller shall be liable for the repayment to the purchaser of all money paid by the purchaser under the contract agreement or document; and
(b) the auctioneer or agent (as the case may be) shall be liable for the repayment to the purchaser of such part of the said money as was paid to him by the purchaser—
and the money shall be recoverable by the purchaser accordingly as a civil debt recoverable summarily in the Magistrates' Court or in any court of competent jurisdiction.
S. 51(9) amended by No. 57/1989 s. 3(Sch. item 66.4).
(9) Where an auctioneer or agent has under subsection (8) been required to pay and has paid any money to the purchaser that money, to the extent of any amount received by the seller in respect of the transaction, shall be recoverable by the auctioneer or agent from the seller as a civil debt recoverable summarily in the Magistrates' Court or in any court of competent jurisdiction unless the seller proves to the satisfaction of the court that the promise with respect to the obtaining of a loan of money was made without his knowledge connivance or consent.
(10) Where a promise is made without the knowledge connivance or consent of the seller, the seller may recover from the auctioneer or agent concerned any money paid under the contract and not received by the seller which the seller has repaid to the purchaser and in addition any damage suffered by the seller consequent on the avoidance by the purchaser of the contract.
(11) Every contract or agreement made or entered into with intent, or the effect of which would be, to evade or avoid the operation of any provision of this section shall to the extent of the evasion or avoidance be absolutely void and of no legal effect.
S. 51(12) amended by Nos 9945
s. 3(1)(Sch. 1 item 14), 86/1994 s. 25(e).
(12) An auctioneer or agent who, being so required by the provisions of subsection (1A) fails to give in respect of a sale of any real estate or business a statement in writing containing substantially the particulars and information required by subsection (3) shall be guilty of an offence against this Act and liable to a penalty of not more than 10 penalty units.
(13) Notwithstanding anything to the contrary in this section a contract agreement or document in respect of the sale of any real estate or business shall not be voidable by the purchaser by reason only of a contravention by the auctioneer or agent of any of the provisions of this section if the court is satisfied that the auctioneer or agent acted honestly and reasonably and that the purchaser is substantially in as good a position as if all the relevant provisions of this section had been complied with.
(14) In this section promise does not include—
(a) a promise that a seller of land will transfer the land to the purchaser conditionally upon his at the same time executing a proper mortgage in favour of the seller to secure payment of all or any part of the moneys payable or that would thereafter but for the execution of the mortgage become payable by the purchaser pursuant to the contract of sale; or
(b) a promise that the terms of a sale will be or will include a provision that the purchase price or any part thereof shall be or may be paid by instalments.