New South Wales Consolidated Acts
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CONVEYANCING ACT 1919 - SECT 66ZL
Rescission under sunset clauses
(1) In this section:
"off the plan contract" means a contract for the sale of a residential lot
"subject lot" ) that has not been created at the time that the contract is
"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for the contract to be rescinded if the subject lot is not created by the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" 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.
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:
purchaser under the contract, at any time after being served with the notice
under subsection (4), consents in writing to the rescission, or
vendor has obtained an order of the Supreme Court under this section
permitting the vendor to rescind the contract under the sunset clause, or
the regulations otherwise permit the vendor to rescind the contract under the
(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.
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be rescinded on or after the sunset date in accordance with this section.
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.
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
(c) the reason for the delay in creating the subject lot,
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
(g) any other matter that the Court considers to be relevant,
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
(11) A provision of an off the plan contract has no effect to the
extent that it is inconsistent with this section.
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