Contract For Sale Of Commercial Land And Buildings (22.09.08)

BLACK = Old Item/Clause | RED = New Item/Clause | BLUE = Comments About Change (Not Part of Form) | STRIKEOUT = Wording Deleted

Item 6 Header

PROPERTY LAND

Item 11

Inspection Date: …………………………..…………………………………... (Date to be completed by)

Unless otherwise specified the Inspection Date will be 14 days from the Date of Contract

Item 13 Header

EXCLUDED IMPROVEMENTS

Item 13

Fixtures:

Item 14 Header

INCLUDED CHATTELS

Item 14

Chattels:

Note: includes all Improvements unless excluded in Item (13).

Item 22

Special Conditions:

(a) Were inserted under instruction by a party to this Contract; and/or

(b) Precedents used by the Agent as Special Conditions were prepared by an Australian Legal Practitioner, not by the Agent who gives no warranty in respect of same and in accordance with the warning in Item (23), legal advice should be sought as to the meaning and effect of such Special Conditions before signing.

Item 23

The parties have been advised to seek legal advice with respect to this Contract including the Special Conditions.

Clause 1(16)

Improvements: All fixed or permanent structures on the Land and any items fixed to them all buildings and improvements including fixed carpets and tiles, curtains, blinds and fixtures and fittings, stoves, hot water systems, fixed antennae, fixed satellite dishes, fixed security systems, and all in-ground plants, on the Property unless excluded in Item (13).

Clause 1(22)(1)

all government and Local Government rates and charges assessed on the Land including land tax, water and sewerage rates, general rates, fire levy and all periodic charges up to and including the Adjustment Date; and or

Clause 1(23)

Property: The Land described in Item (6) together with Improvements described in Clause 1(16) thereon and the included chattels described in Item (14) of the Item Schedule.

Clause 3.4

The Buyer may pay the Deposit (in whole or in part) by Bank Bond or Bank Guarantee in a form acceptable to the Seller, in which case on receipt of the Bank Bond the Buyer's obligation to pay the Deposit shall have been satisfied to the extent of the Bank Bond.

Clause 3.5

The Deposit is payable to the Seller:

(a)	on Settlement; or
(b)	in case of the Buyer’s Default, on default

Clause 3.6

Should this Contract be properly terminated by the Buyer, the Deposit will be refunded to the Buyer in which case the Buyer shall have no further claim under this Contract unless there has been a breach of the provisions of this Contract by the Seller, giving rise to a claim for damages.

Clause 3.7

Investment of Deposit: (Note: see Section 380 of the Property Agents and Motor Dealers Act 2000)

Where the Stakeholder is instructed by the parties to invest the deposit, subject to any legislative requirements, then (except in the case of Bank Bond):

(1)

the Deposit Holder will invest the Deposit funds paid with in its name as trustee for the Buyer and Seller in an interest bearing account with a Bank, Building Society or Credit Union until the Settlement Date or as otherwise instructed by the parties. in an interest bearing account in both parties’ names but at the risk of the party who becomes entitled to the Deposit

(2)

the parties will supply to the Deposit Holder, prior to the investment of the Deposit, their tax file numbers and acknowledge that if the tax file numbers are not provided then they accept that the interest earned on the Deposit may be taxed at the highest rate allowable.

the interest on the Deposit will be paid to the party who becomes and is entitled to the Deposit

(3)

the Deposit and the interest are at the risk of the party who is ultimately entitled to the Deposit

(3)

the party who becomes entitled to the income from the invested Deposit will be solely responsible for any tax liabilities on such income. Tax in this context includes Income Tax and G.S.T.

(4)

subject to subclause 5 hereof, the interest on the Deposit will be paid to the party who becomes, and is, entitled to the Deposit at Settlement and such party will be solely responsible for any tax liability on such monies.

(5)

If Settlement of the Contract does not occur, the interest earned on the Deposit will be paid to:

(a)	the Seller, if Settlement did not occur due to breaches of the Contract by the Buyer; or
(b)	the Buyer, if it was for any other reason.

(5)

the parties will supply the Deposit Holder with their tax file numbers in order to assist with the investing of the Deposit.

(6)

all costs in relation to this investment will be borne by the party referred to in Clause 3.7(3).

(7)

a Stakeholder, being a licensed Agent, may not invest the Deposit if the sale is to be completed on a contractually ascertainable day less more than 60 days after the Deposit is received.

Clause 4

4.1	The Contract is subject to and conditional upon the Buyer obtaining, by the Inspection Date (or such extended date as may be agreed) specified in Item (11), a building and/or pest report Item (11), satisfactory to the Buyer, excluding Acknowledged Defects / Exclusions.
4.2	In compliance with this Clause the Buyer will promptly, after the signing of this Contract by the Seller, take all reasonable steps to obtain the building and/or pest report.
4.3	If required by relevant legislation licensed inspectors should be employed to provide inspection reports.
4.3	Should the Buyer not notify the Seller in accordance with the provisions of Clause 4.3 the Buyer will be deemed to be satisfied with the Inspections.
4.4	If any inspection report specified in Clause 4.1 is not satisfactory to the Buyer, the Buyer must, promptly upon receipt of the inspection report, may by notice to the Seller terminating this Contract. by 5.00 p.m. on the Inspection Date terminate this Contract. The Buyer may however, waive the benefit of this condition at any time prior to termination of the Contract.
4.4	This Contract is not terminated until notice is given.
4.5	The Buyer must at all times act reasonably.
4.6	Should the Buyer not give notice to the Seller in accordance with Clause 4.4 by 5.00 p.m. on the Inspection Date the Buyer will be deemed to be satisfied with the Inspections.
4.6	The Buyer will, if required by the Seller, promptly provide copies of the relevant sections of any inspection reports relied upon to terminate this Contract.
4.7	Where the Buyer has given notice of termination in accordance with Clause 4.4 but has failed, when requested by the Seller, to provide a copy of the relevant report, the termination will not take effect until after such copy has been provided to the Seller.
4.7	If the Buyer refuses to comply with a request in accordance with Clause 4.6 the Buyer will be deemed to be not acting reasonably.
4.8	All monies paid by way of Deposit will be forthwith refunded to the Buyer once this Contract is terminated in accordance with this clause.
4.9	In respect of white-ants, risk in itself will not constitute a reason for termination of this Contract.

Clause 5.4

If the Buyer, through no default on the Buyer’s part, has not obtained the Finance approval by the Finance Date then the Buyer may by notice to the Seller:

(a)	terminate this Contract; or
(b)	prior to termination, waive the benefit of this condition

Clause 5.7

Should the Buyer not obtain Finance Approval by the Finance Date and then subsequently: obtains Finance Approval and notifies the Seller prior to the Seller giving notice to terminate this Contract in accordance with Clause 5.5, then the Buyer will have complied with the requirement to obtain a loan in the Finance Amount.

(a)	obtains finance approval; or
(b)	waives the benefit of Clause 5.1,

and notifies the Seller prior to the Seller giving notice to terminate this Contract in accordance with Clause 5.5, then the Buyer will have complied with the requirement to obtain a loan in the Finance Amount.

Clause 6

6.1

The Seller is entitled to the Rents and Income and is liable for and will make payment of all Outgoings including rates, land tax and other taxes on the Property up to and including the Adjustment Date. Thereafter the Buyer shall be entitled to Rents and Income and be liable for all Outgoings including rates, land tax and other taxes.

6.2

No apportionment will be made at the Adjustment Date for unpaid Rents or Income.

6.3

Bonds, rental or otherwise retained by the Seller shall be an adjustment to the Purchase Price in favour of the Buyer provided the Buyer will indemnify the Seller against any claims in respect of such Bonds made by Tenants subsequent to Settlement.

Should rental or other Bonds be the subject of an Adjustment, the Buyer will indemnify the Seller to the extent thereof.

6.4

All Outgoings, paid and Rents and Income paid or received under Clause 6.1 must be apportioned when received by either party based on the Adjustment Date. This excludes water rates charges based on usage. Payment must be made within 14 days of monies being received.

6.5

All Outgoings, Rents and Income received by the Seller in relation to periods subsequent to after the Adjustment Date shall be apportioned as at based on the Adjustment Date.

6.6

Where Outgoings have not been assessed at the Adjustment Date any apportionment will be based on the sum advised by the relevant authority or where no such information is available, on the latest assessment.

6.7

Land tax will be apportioned as if the Land was at midnight on the 30th June preceding the Date of Contract the Seller's only land in Queensland and the Seller is a natural person.

6.8

Any amount adjustable under this provision which relates to land other than that included in the Property shall be (where no specific assessment is issued) adjusted proportionately based on the area of the whole of the Land relative to the area of the Land included in the Property.

6.9

Should the Commissioner of Land Tax not have issued a Land Tax Clearance Certificate to the Buyer by the Adjustment Date, then in such case the parties agree the Buyer will retain in his Solicitor’s Trust Account such sum, from the Settlement monies, as the Commissioner of Land Tax specifies in writing would be prudent to cover any land tax liability outstanding for the period up to and including 30th June immediately preceding the Adjustment Date and upon a Land Tax Clearance Certificate issuing. The Buyer undertakes and agrees to direct the Solicitor to pay from the funds held in the Trust Account so much of those funds as may be necessary to obtain for the Buyer a Land Tax Clearance Certificate. Any balance funds remaining shall be paid to the Seller.

This obligation is a continuing obligation and does not lapse at Settlement.

6.10

Should the Seller be entitled to any discount on Outgoings then, for the purpose of this Clause, the discount shall not be taken into account, unless already received paid.

6.11

Adjustments will be made with respect to water rates when the rates charged are based on the average daily usage using the following formula:

Adjustment = TC/RD x AD

Where:

TC =	Total Usage Charge as at the Adjustment Reading Date
RD =	Days between the previous reading and Adjustment Reading Date
AD =	Adjustment Days. The number of days between the Adjustment Reading Date and Settlement Date.

(ie. Settlement Date minus Adjustment Reading Date. where The Adjustment Reading Date is the date the water metre was read for the purpose of issue of Local Government water usage assessment)

6.12

The Buyer is responsible for;

(1)	obtaining an accurate water meter reading within a reasonable time period prior to Settlement for the purpose of Clause 6.11
(2)	determining an Adjustment amount to be paid in accordance with Clause 6.11
(3)	disclosing the information in Clause 6.12 (1) & (2) to the Seller not less than 48 hours prior to the Adjustment Date

6.13

The Seller may direct the Buyer to provide on Settlement a cheque payable to the relevant authority for Outgoings assessed but unpaid at the Adjustment Date. It shall be the Buyer's responsibility to forward such cheque to the relevant assessing authority forthwith. This will be an adjustment for purposes of Clause 6.1.

6.14

It shall be the Buyer's responsibility to obtain, at its own cost, details of all Outgoings from relevant government and Local Government authorities.

6.15

All Adjustments made will exclude G.S.T.

6.16

Monies expended by the Buyer prior to Settlement are not adjustable items unless previously agreed by both parties.

Clause 7.4

The Seller will, upon request, have provided to the Buyer prior to Settlement and upon request current, true and correct written records of:

(1)	all Rents, Income profits and Outgoings in respect to the Property whether discoverable by search or not
(2)	all relevant information and documents relating to the Property, in particular those documents relating to Leases and or Service Contracts (if any) licenses, warranties, and any unregistered dealings as required by the Buyer
(3)	photocopies of other relevant documents executed by the Seller; and

Clause 8.3

On payment of the Balance Purchase Price, adjusted as provided in this Contract, by Bank Cheque/s (as directed by the Seller or its Solicitor in writing) and compliance by the Buyer with the conditions of this Contract the Seller must deliver (or cause to be delivered) to the Buyer (or as directed by the Buyer the Buyer’s solicitor ):

(1)	vacant possession of the Property (unless leased)
(2)	Transfer Documents executed by the Seller in a form capable of immediate registration in accordance with the Land Title Act 1994 provided however; should the title documents with respect to the Land relate also to other land, the Seller shall produce the title document to allow registration of the transfer, cost of production will be borne by the Seller and costs in relation to any new title will be borne by the Buyer.
(3)	such declarations as may be required under the Duties Act 2001; Land Title Act 1994; Land Act 1994.
(4)	any title document in respect to the Land free from Encumbrances unless detailed in Item (17) of the Item Schedule.
(5)	title to the balance of Property exclusive of Land.
(6)	all the Seller’s keys and including other devices and codes for entry, exit and security unless an alternative time and place for delivery is agreed in writing.
(7)	the right to and benefit of all records and/or documentation, including transfers (or renewals if required) of Bonds, and Guarantees and Bank Guarantees, to give effect to and comply with the provisions of any Lease and/or Service Contract in force which are required for the management of in relation to the Property at the time of Settlement.
(8)	assignment to the Buyer effective from the Settlement Date and the benefit of all Leases more particularly set out in Item (20) of the Item Schedule and Service Contracts more particularly set out in Item (21) of the Item Schedule. The Seller will provide duly executed assignment documentation on the Settlement Date together with appropriate notice to the Tenants regarding assignment.
(9)	Rents and Income unpaid for any period prior to the Settlement Date and not adjusted between the parties at Settlement is not assigned to the Buyer but remains a debt due to the Seller in which case the provisions of Section 117 of the Property Law Act 1974 are not applicable.
(10)	title to any chattel forming part of the Property including assignable warranties and documentation and relating thereto, to which the Buyer may be reasonably entitled.
(11)	any valid Certificate of Classification applicable to the uses of the Property stated in Item (15) of the Item Schedule which is required and must be issued prior to use or occupation as outlined under Section 95 (1) of the Standard Building Regulation 1993.
(12)	any other documents, including construction drawings and plans held by the Seller essential for the ongoing management of the Property.
(13)	any other relevant records or documents, including construction drawings and plans held by the Seller essential for the ongoing management of the Property. with respect to Bonds, Guarantees, Leases and Service Agreements which are required for the management of the Property.

Clause 9.1

The Seller must hand over the Property at the Settlement Date without damage or loss to the condition, as at the Date of Contract (fair wear and tear excepted). Should there be damage or loss to the condition of the Property the Buyer may not delay Settlement or withhold monies. However, the Buyer may claim the reasonable costs of effecting rectification from the Seller as liquidated damages notwithstanding Settlement may have taken place. The Buyer must however notify the Seller, prior to Settlement, of its intention to make a claim.

Clause 10.2(1)

claim forfeiture of the Deposit or call up any Bank Bond or Bank Guarantee provided in accordance with Clause 3.4; and/or

Clause 11

Seller’s Warranties / Buyer's Right to Rescind

Clause 11.1(8)

there are no outstanding or unsatisfied Notices, Orders or demands at the Date of Contract with respect to any Act, Regulation or By-Law, required to be complied with by the Seller pursuant to Clause 31.1, which have not been fully complied with or which may adversely affect:

(a)	the Property, unless disclosed in Item (16); or
(b)	the Seller’s ability to complete this Contract.

Clause 11.1(11)

any Improvements to the Property not excluded in Item (13) will not have not been removed by the Seller. Any claim by the Buyer to the contrary must be directed to the Seller

Clause 11.1(12)

in the case of vacant Land, the Property has Buyer may terminate this Contract if the Property has not been provided with a separate sewerage connection, unless otherwise disclosed in Item (22) (Special Conditions). This clause shall not apply to Property where other disposal systems are required and permissible by the local authority or council.

Clause 11.2

If a warranty set out in Clause 11.1 is incorrect or is breached by the Seller, the Buyer may: (except in the case of matters disclosed in Item (16) with relation to Clause 11.1 (8) or otherwise in Item (22)):

(a)	where the Buyer is materially prejudiced, by notice given to the Seller given not later than 5pm on the Business Day immediately preceding prior to the Settlement Date, (except in the case of matters disclosed in Item (16) with relation to Clause 11.1 (8) or otherwise disclosed in Item (22)), rescind this Contract; or and claim damages for any resultant loss; or
(b)	elect to complete the Contract and reserve its rights to affirm the Contract and at the time of Settlement, by notice in writing, claim compensation from the Seller. providing notice to this effect has been given to the Seller in writing at or prior to Settlement.

Clause 11.3

Any notice given to the Seller under Clause 11.2 must set out clearly, details of the incorrect or breached warranty.

Clause 13.2

The Buyer will, if required, upon receipt of the request for consent do all things as may reasonably be necessary to assist in obtaining such consent.

Clause 13.3

If consent is not obtained by the Settlement Date, providing neither party is in default, either party may by with written notice to the other party terminate this Contract.

Clause 16

On the giving of reasonable notice to the Seller, the Buyer, or designated representative, may at reasonable times, prior to Settlement, inspect the Property for the purposes of:

(1)	Inspections in accordance with as per Clause 4
(2)	valuation, if required (under Clause 5 or otherwise)
(3)	reading of the water meter
(4)	one pre-settlement inspection in addition to Clauses 16 (1) & 16 (2).

Clause 17

Any monies payable under this Contract, (or any judgment given in respect of this Contract) not paid when due will attract Interest from the due date, for payment, to the date of payment, which shall be the Settlement Date (except as otherwise prescribed in the case of a judgment) at the rate prescribed in Item (18) and the party, to whom those monies are owed, when such monies are paid, may recover the interest thereon from the other party as liquidated damages.

Clause 18.6

Occupation of the Property shall be at the Buyer’s risk. The Buyer will adequately insure the Property in both the Buyer’s and Seller’s name.

Clause 18.7

The Buyer indemnifies the Seller against any loss or damage the Seller may incur arising from the Buyer’s occupancy of the Property.

Clause 18.8

The Buyer will insure the Property, in a sum and on terms approved by the Seller, in both the Buyer’s and Seller’s names.

Clause 19

Property Survey Description

The Buyer may inspect the Property survey the Land and in so doing cause a survey to be made of the Land and fixed and permanent structures thereon and should there be an error or misdescription with respect to the dimensions of the Land in this Contract or an encroachment onto or from the Land the Buyer may:

(a)	in the case of an material error, misdescription or encroachment, any one of which is of a material nature, elect (in writing to the Seller) to complete this Contract or terminate before Settlement; or
(b)	in the case of an immaterial error, misdescription or encroachment, any one of which is of an immaterial nature, disclosed by survey or otherwise, in the dimensions of the Land or any immaterial encroachment or mis-description, the Buyer must complete the purchase in accordance with the terms of this Contract.

In the case of Clause 19.1 (b) or should the Buyer elect to complete, in the case of Clause 19.1 (a), any compensation claim by the Buyer will be limited to monetary compensation only.

Clause 20

In the case of a material or immaterial error or misdescription of the Property, including the Seller’s title thereto, the Buyer may:

(a)	in the case of an error or misdescription, either of which are material, elect (in writing to the Seller) to complete this Contract or terminate before Settlement.
(b)	in the case of an error or misdescription, either of which are immaterial, the Buyer must complete the purchase in accordance with the terms of the Contract

Clause 21

Where the Buyer elects to complete under Clause 19(a) or 20(a) or must complete under Clause 19(b) or 20(b):

(a)	The Buyer shall only be entitled to claim compensation if notice of such claim is given at or before Settlement and such notice clearly details the error, misdescription or encroachment giving rise to such claim. Any claim for compensation shall be limited to monetary compensation only.
(b)	Any such claim for compensation does not entitle the Buyer to delay Settlement or withhold any of the purchase monies.

Clause 23.2(c)

compliance with or application of any proposals, notices or statutory requirements of an authorised authority, statutory or otherwise, (including transport infrastructure) with respect to the Land or adjoining land will materially adversely affect the Property; or

Clause 23.2(f)

the Land and Improvements are is classified as a protected area under Section 14 or bound by a conservation agreement under Section 45 of the Nature Conservation Act 1992 or otherwise affected by the Nature Conservation Act 1992

Clause 26

From 5.00pm on the next Business Day after the signing of this Contract the Property shall be at the risk of the Buyer, however, as long as the Seller continues to occupy the Property the Seller shall maintain any current insurance policies and will use and maintain the Property with reasonable care (as provided in Clause 9).

Clause 31

31.1

(1)	The Seller must, by Settlement, fully comply with any Work Orders or Notices issued by a competent authority, pursuant to Clause 11.1 (8), made on, or before or subsequent to the Date of Contract that require compliance by Settlement. and the Buyer shall comply with any Work Orders or Notices issued subsequent to the Date of Contract.
(2)	Provided however, should the Buyer direct the Seller not to carry out the works, the Buyer will indemnify the Seller against any claims in respect of such Work Orders or Notices.

31.2

The Buyer must comply with any Work Orders or Notices issued by a competent authority subsequent to the Date of Contract that require compliance after Settlement.

31.3

The Costs incurred by one party in complying with of any Work Order or Notice complied with by one party which, under Clause 31.1, is the responsibility of the other party shall be, to the extent of such costs, an Adjustment to the Purchase Price in favour of the party who has incurred the costs.

31.4

The Buyer shall bear all costs towards construction or repair of any dividing fences between the Land and any adjoining land, unless a Notice served under the provisions of the Dividing Fences Act 1953, Section 8, is in force as at the date of this Contract, in which case such Notice shall be treated in the same manner as a Notice referred to in Clauses 31.1and 31.3.

31.5

In accordance with Clause 31.1 the Seller will forthwith provide the Buyer with copies of all Work Orders and Notices (including those under the Dividing Fences Act 1953) received after the Date of Contract and will not carry out any work without written consent of the Buyer which consent will not be unreasonably withheld.

31.6

Should the Contract not settle other than through default of the Buyer, the Seller will reimburse to the Buyer any monies reasonably expended by the Buyer in accordance with matters disclosed in Item (16).

Clause 33

From the Date of Contract as per Item (1) until and including the Settlement Date, the Seller shall continue to fulfill all its obligations as owner of the Property including:

(1)	the maintenance of any current insurance policies
(2)	ensuring the Property is used and maintained with reasonable care
(3)	exercising authority with the prior consent of the Buyer to enforce and make decisions regarding any/all Lease agreements in force, with the prior written consent of the Buyer
(4)	exercising authority with the prior written consent of the Buyer to serve notices as per Clause 31.4 with the prior written consent of the Buyer.

Clause 34.5

A Seller’s Agent shall, for the purpose of this Clause, be recognised as a party and may receive Notices in accordance with Clause 34.1 on the Seller’s behalf if authorised by the Seller. Where notice cannot otherwise be served on the Seller in accordance with this Clause, notice may be served on the Seller’s Agent.

Clause 43.1

the Leases Contracts referred to in Clause 43.1 hereof represent the entire agreement between the Seller and any Lessee.

Clause 47

47.1	By signing this Contract all parties agree to having given prior approval, in accordance with the Electronic Transactions (Queensland) Act 2001, for electronic transmission of this Contract and any other related contracts, for signing purposes or otherwise, as far as such means of communication have been indicated in this document (ie. Facsimile numbers & email addresses).
47.2	This Contract may be executed in any number of counterparts. Together all counterparts make up one instrument.
47.3	This Contract may be entered into by and becomes binding on the parties by one party signing the Contract that has been signed by the other (or a photocopy or facsimile of that Contract) and transmitting a facsimile of it to the other or to the other party’s Agent or Solicitor.