Australian Capital Territory Current Acts Australian Capital Territory Current Acts(1) A seller under an off-the-plan contract containing a rescission provision may apply to the Supreme Court for an order allowing the seller to rescind the contract under the provision.
(2) The Supreme Court must not make the order unless the seller satisfies the court that it is just and equitable to make the order.
(3) In deciding whether it is just and equitable to make the order, the Supreme Court must take into account the following:
(a) the terms of the off-the-plan contract, including whether a term is intended to avoid the operation of this part;
(b) whether the seller has acted unreasonably or in bad faith;
(c) whether factors beyond the seller's reasonable control have affected the seller's ability to complete the contract or the viability of the seller's business;
(d) what reasonable actions the seller has taken to—
(i) avoid a rescission event; or
(ii) if a rescission event has happened—minimise the effect of the event on the seller's ability to complete the contract;
(e) whether there is a reasonable prospect of the seller completing the contract;
(f) whether the unit or land the subject of the contract has increased in value;
(g) the effect of the rescission on the buyer;
(h) whether the buyer has been performing their obligations under the contract;
(i) the effect of completing the contract on the seller;
(j) any other matter that the court considers relevant;
(k) any other matter prescribed by regulation.
Examples—par (c)
1 disruption to supply of building materials
2 significant increase in cost of goods and services
3 inability to obtain or retain finance for the development
4 changes in the law affecting the development, building standards etc
5 imposition of conditions on development approval that require major changes to the development
Example—par (e)
the extent to which a development has been completed
Example—par (g)
the ability of the buyer to enter the housing market after rescission of the contract
(4) The seller must pay the costs of the buyer in relation to a proceeding for the order unless the seller satisfies the Supreme Court that the buyer unreasonably withheld consent to the rescission of the off-the-plan contract under the rescission provision.
(5) The Supreme Court may, in dealing with an application made under this section, make any other order, including an order for damages, that the court thinks fit.
(6) In this section:
"rescission event" means—
(a) a delay event; or
(b) an event prescribed by regulation under section 19A (1), definition of "rescission provision", paragraph (c).