New South Wales Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

CONVEYANCING ACT 1919 - SECT 66ZL

Rescission under sunset clauses

66ZL Rescission under sunset clauses

(1) In this section:

"off the plan contract" means a contract for the sale of a residential lot (the
"subject lot" ) that has not been created at the time that the contract is entered into.

"residential lot" means a lot (whether a strata lot or otherwise) that is residential property within the meaning of section 66Q.

"sunset clause" means a provision of an off the plan contract that provides for the contract to be rescinded if the subject lot is not created by the sunset date.

"sunset date" means the date set out in the off the plan contract as the latest date (subject to any extension provided for in the contract) by which the subject lot must be created.
(2) For the purposes of this section, a lot is created when the plan creating the lot becomes a registered plan.
(3) A vendor may rescind an off the plan contract under a sunset clause if the subject lot has not been created by the sunset date, but only if:
(a) each purchaser under the contract, at any time after being served with the notice under subsection (4), consents in writing to the rescission, or
(b) the vendor has obtained an order of the Supreme Court under this section permitting the vendor to rescind the contract under the sunset clause, or
(c) the regulations otherwise permit the vendor to rescind the contract under the sunset clause.
(4) It is a term of an off the plan contract that a vendor who is proposing to rescind the contract under a sunset clause must serve each purchaser under the contract notice in writing at least 28 days before the proposed rescission that specifies why the vendor is proposing to rescind the contract and the reason for the delay in creating the subject lot.
(5) A sunset clause cannot automatically rescind an off the plan contract and, if it purports to do so, it is to be read as if it instead permits the contract to be rescinded on or after the sunset date in accordance with this section.
(6) The Supreme Court may on the application of a vendor under an off the plan contract make an order permitting the vendor to rescind the contract under a sunset clause but only if the vendor satisfies the Court that making the order is just and equitable in all the circumstances.
(7) In determining whether it is just and equitable in all the circumstances the Court is to take the following into account:
(a) the terms of the off the plan contract,
(b) whether the vendor has acted unreasonably or in bad faith,
(c) the reason for the delay in creating the subject lot,
(d) the likely date on which the subject lot will be created,
(e) whether the subject lot has increased in value,
(f) the effect of the rescission on each purchaser,
(g) any other matter that the Court considers to be relevant,
(h) any other matter prescribed by the regulations.
(8) The vendor is liable to pay the costs of a purchaser in relation to the proceedings for an order under this section unless the vendor satisfies the Court that the purchaser unreasonably withheld consent to the rescission of the off the plan contract under the sunset clause.
(9) Nothing in this section limits any right that a purchaser may have to rescind an off the plan contract under a sunset clause.
(10) Notice may be served on a purchaser by serving it on a person who is authorised under the off the plan contract as a representative of the purchaser.
(11) A provision of an off the plan contract has no effect to the extent that it is inconsistent with this section.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback