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Property Law tested by Developer

Jobema Developments Pty Limited is the first developer to test the new property law introduced by the Conveyancing Amendment (Sunset Clauses) Act 2015, which requires vendors to either obtain the consent of purchasers before they can rescind an off-the-plan contract in reliance on a sunset clause in the contract, or to obtain the permission of the Supreme Court to do so.

Facts:

In this case, Jobema, the defendant, purchased a development site from Xycom, who had exchanged a number of off-the-plan contracts with a sunset date for the registration of the strata plan of 31 December 2015. As part of the purchase, Jobema would assume Xycom’s obligations under the exchanged off-the-plan contracts, one of which was with Mr Wu.

Xycom had carried out minimal work on the project before it had been sold. While Jobema commenced work immediately, the project was not completed by the sunset date. As required by the new legislation, notice of the proposed rescission was served on Mr Wu and the notice cited several reasons for the delay and the proposed rescission. Mr Wu did not consent to the rescission and Jobema subsequently applied for leave in the Supreme Court under the Conveyancing Act.
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Property Law changes to Off-the-Plan Contract

As of 2 November 2015, property law in New South Wales has changed in relation to off-the-plan contracts, giving purchasers increased protection which make it harder for developers to enact sunset clauses to cancel contracts. This applies to all contracts for sale, even those already entered into.

A sunset clause is traditionally included in an off-the-plan contract in order to allow a buyer or developer to rescind if completion has been delayed. However, some developers have been using abusing these clauses, intentionally delaying a project in order to cancel existing contracts and then resell to new buyers at a higher price to reflect the current market.

With the Conveyancing Amendment (Sunset Clauses) Act 2015 introducing s66ZL into the Conveyancing Act, developers must now provide purchasers with written notice of their intention to rescind no later than 28 days before the sunset date and specify why they are proposing to rescind the contract and the reason for the delay in creating the subject lot.
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New South Wales moving towards a paperless conveyancing future

The introduction of Version 2 of the Conveyancing Rules means that any discharge of mortgage signed on or after 1 March 2017 must be lodged by the discharging mortgagee or its representative, except where the discharge is to be lodged with any other dealing affecting the same folio(s) of the Register (e.g. a transfer of land and/or a mortgage).

Providing a stand-alone discharge to the registered proprietor to lodge at the Land and Property Information shall no longer be allowed

In addition to the above, if the mortgagee is an ADI (authorised deposit-taking institution under the Banking Act 1959 [Cth]):

  • A mortgage or discharge of mortgage to which the National Credit Code applies, signed on or after 1 March 2017 must be lodged electronically, except where lodged with any other dealing affecting the same folio(s) of the Register.
  • If an incoming mortgagee in a refinance transaction is also an ADI, any combination of mortgage and discharges of mortgage signed on or after 1 August 2017 must be lodged electronically, except where they are to be lodged with any other dealing affecting the same folio(s) of the Register
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