Victorian Numbered Acts Victorian Numbered Acts(1) After section 10 of the Principal Act insert —
If a sunset clause in a residential off-the-plan contract purports to automatically rescind the contract on the part of the vendor, the sunset clause is taken to permit the contract to be rescinded on the part of the vendor on or after the sunset date, in accordance with this Division.
(1) A vendor must not rescind a residential off-the-plan contract under a sunset clause in that contract except as provided for in this Division.
(2) Subject to subsection (3), a vendor may rescind a residential off-the-plan contract under a sunset clause if—
(a) the relevant plan of subdivision has not been registered by the sunset date; or
(b) an occupancy permit has not been issued by the sunset date.
(3) Before rescinding a residential off-the-plan contract under a sunset clause, the vendor must obtain the written consent of each purchaser to the rescission after giving each purchaser, at least 28 days before the proposed rescission, written notice setting out—
(a) the reason why the vendor is proposing to rescind the contract; and
(b) the reason for the delay in the registration of the plan of subdivision or the issuing of the occupancy permit; and
(c) that the purchaser is not obliged to consent to the proposed rescission.
A provision of a residential off-the-plan contract has no effect to the extent that it is inconsistent with sections 10A and 10B.
The purported rescission of a residential off-the-plan contract in contravention of this Division is taken to be a breach of that contract.".
(2) After section 10D of the Principal Act insert —
(1) A vendor under a residential off-the-plan contract that contains a sunset clause may apply to the Supreme Court for an order permitting the vendor to rescind the contract under the sunset clause.
(2) On the application of a vendor under subsection (1), the Supreme Court may make an order permitting the vendor to rescind the residential off-the-plan contract if the Court is satisfied that making the order is just and equitable in all the circumstances.
(3) In determining whether to make an order under subsection (2), the Supreme Court must have regard to—
(a) the terms of the residential off-the-plan contract; and
(b) whether the vendor has acted unreasonably or in bad faith; and
(c) the reason for the delay in registering the relevant plan of subdivision or in an occupancy permit being issued; and
(d) the likely date on which the relevant plan of subdivision will be registered or the occupancy permit will be issued; and
(e) whether the lot that is the subject of the residential off-the-plan contract has increased in value; and
(f) the effect of the rescission on each purchaser; and
(g) any other matter that the Court considers to be relevant; and
(h) any other prescribed matter.
(4) If the Supreme Court makes an order under subsection (2), the Court may make any other order it considers just and equitable in all the circumstances, including an order for reasonable compensation of the purchaser.
(5) The vendor is liable to pay the costs of a purchaser in relation to the proceeding for an order under this section unless the vendor satisfies the Supreme Court that the purchaser unreasonably withheld consent to the rescission of the residential off-the-plan contract under the sunset clause.".
(3) In section 10C of the Principal Act, for "10A and 10B" substitute "10A, 10B and 10E".