Contract For Sale Of Residential Lots In A Community Titles Scheme (30.09.08)

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

Item 6 Header

LOT DESCRIPTION

Item 7

Unless otherwise stated in Special Conditions the Purchase Price includes, where applicable, GST.

Item 11

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

Item 15 Header

EXCLUDED IMPROVEMENTS

Item 15

Fixtures:

Item 16 Header

INCLUDED CHATTELS

Item 16

Chattels:

Note: includes all Improvements unless excluded in Item (15).

Item 17 Header

RESIDENTIAL TENANCIES & SHORT TERM/ HOLIDAY LETTINGS

Item 17

17.1 Residential Tenancies

Item 26

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 (27), legal advice should be sought as to the meaning and effect of such Special Conditions before signing.

Item 27

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

Clause 1(17)

Improvements: All fixed or permanent structures comprising on the Lot Land and any items fixed items to them, including domestic dwelling, sheds, car accommodation, pergolas, in-ground or fixed pools, fixed carpets and tiles, curtains, blinds and fittings, stoves, hot water systems, fixed antennae, fixed satellite dishes, fixed security systems, fixed clothes lines and all in-ground plants, unless excluded in Item (15).

Clause 1(21)(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(31)

Tenancies: The Residential Tenancies as per Item (17.1).

Clause 1(31)

Tenancy Documents: All Tenancy Agreements, residential or otherwise, and documents ancillary thereto.relating to the Residential Tenancies.

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, if requested by either of the parties, invest the Deposit in its name as trustee for the Buyer and the Seller in and interest bearing account in both parties’ names with a Bank, Building Society or Credit Union its name as trustee for the Buyer and the Seller until the Settlement Date or as otherwise instructed by the parties.

(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.

(3)

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

(4)

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)

the interest is payable to the party entitled to the Deposit in accordance with Clauses 3.5 and 3.6.

(5)

(1)

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.

(2)

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.

(6)

the Deposit Holder will lodge any necessary taxation return, and may pay any tax out of the Deposit and interest. The Buyer and the Seller equally indemnify the Deposit Holder against any tax payable.

(7)

all costs in relation to this investment will be borne by the party referred to in Clause 3.7(3) and may be recovered by the Deposit Holder out of the Deposit and interest.

(8)

the Deposit Holder does not have to account to the Buyer or the Seller for interest for distribution until the investment of the Deposit matures and the bank debits tax and any other charges or expenses are deducted from the interest.

(9)

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, 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 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.
4.3	Should the Buyer not notify the Seller in accordance with the provisions of Clause 4.2 the Buyer will be deemed to be satisfied with the Inspections.
4.4	The Buyer must at all times act reasonably.
4.5	Should the Buyer not give notice to the Seller in accordance with Clause 4.3 by 5.00 p.m. on the Inspection Date the Buyer will be deemed to be satisfied with the Inspections.
4.5	This Contract is not terminated until notice is given.
4.6	Where the Buyer has given notice of termination in accordance with Clause 4.3 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.
4.6	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	All monies paid by way of Deposit will be forthwith refunded to the Buyer once this Contract is terminated in accordance with respect to this clause.
4.7	If the Buyer refuses to comply with a request in accordance with Clause 4.5 the Buyer will be deemed to be not acting reasonably.
4.8	In respect of white-ants, risk in itself will not constitute a reason for termination of this Contract.
4.9	Inspectors who conduct building inspections for the purposes of this Contract must be specifically licensed as Building Inspectors in accordance with the Queensland Building Services Authority Act 1991.

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)	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 6.1

The Seller is entitled to the Rents and Income profits and is liable for and will make payment of all Outgoings 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.

Clause 6.2

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

Clause 6.3

All Rents and Income received by the Seller in relation to periods subsequent to the Adjustment Date must be apportioned as at the Adjustment Date.

Clause 6.4

Unpaid Rent, as at Settlement, will not be adjusted until paid. No apportionment will be made at the Adjustment Date for unpaid rent.

Clause 6.4

All Outgoings, rent and income received by the Seller in relation to periods after the Adjustment Date shall be apportioned based on the Adjustment Date.

Clause 6.5

Land tax will be apportioned as if the Land was, at midnight on the 30th June proceeding the date of this Contract, were the Seller's only land in Queensland and the Seller is a natural person, resident in Queensland.

Clause 6.9

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.

Clause 6.10

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)

Clause 7.3

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):

(1)	the instrument of title, if any, for the Lot.
(2)	Transfer Documents free of un-notified Encumbrances executed by the Seller in a form capable of immediate registration (save for stamping) in accordance with the Land Title Act 1994.
(3)	all the Seller’s keys and other devices and codes for entry, exit and security unless an alternative time and place for delivery is agreed to in writing.
(4)	all Tenancy records and/or Documentsation, including all documents and forms required to including transfers (or renewals if required) of Bonds, Guarantees and Bank Guarantees, to give effect to and comply with the provisions of any tenancy under the Residential Tenancies Act 1994 including Bond transfers and notice to Tenants advising of the sale in force which are required for the management of the Lot at the time of Settlement.
(5)	in the case of short term and/ or holiday lettings where the Buyer agrees to accept same, any monies paid by way of letting deposits of where such deposits have been paid to a letting Agent, and assignment thereof in favour of the Buyer.
(6)	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.
(6)	duly executed assignment documentation on the Settlement Date together with appropriate notice to the tenants regarding assignment and copies of notification in accordance with Clause 12.1 (9).
(7)	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.
(8)	a properly completed property transfer information form in accordance with the Fire and Rescue Service Amendment Act 2006.
(9)	documents in the Seller’s possession reasonably required by the Buyer relating to the Property, in particular those relating to tenancies, licenses, warranties and any unregistered dealings.

Clause 10.2

The Buyer may terminate this Contract by written notice to the Seller if any action taken or resolution passed by the Body Corporate, after the Date of Contract, constitutes a material breach of any matters contained in Item (24) of this Contract. Such Notice to be given within 7 days after the Buyer is given notice in accordance with Clause 10.1 hereof, but no later than the Settlement Date.14 days after the Buyer's copy of the signed Contract being received by the Buyer.

Clause 11.2(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 12

Seller’s Warranties/ Buyer’s Right to Rescind

Clause 12.1(4)

the Seller is not insolvent or bankrupt nor has the Seller entered into an arrangement or composition with the Seller’s creditors.

Clause 12.1(6)

there are, at the Date of Contract, no outstanding or unsatisfied Notices, Orders or demands with respect to any Act, Regulation or By-Law, required to be complied with by the Seller pursuant to Clause 32.1, which have not been fully complied with or which may adversely affect:

Clause 12.1(10)

any Improvements to the Property not excluded in Item (15) will not have not been removed by the Seller. Any claim by the Buyer to the contrary must be directed to the Seller.

Clause 12.1(11)

in the case of vacant land, the Property has the Buyer may terminate this Contract if the Property has not been provided with a separate sewerage connection, unless otherwise disclosed in Item (26) (Special Conditions). This clause shall not apply to Property where other disposal systems are required and permissible by the local authority or council.

Clause 12.4

If a warranty set out in:

(1)	Clause 12.1 (excluding matters disclosed in Item (19) with relation to Clause 12.1 (6) or disclosed otherwise in Item (26))
(2)	Clause 12.3 (excluding matters disclosed in Item (25))

is incorrect or is breached by the Seller, the Buyer may:

(a)	where and the Buyer is materially prejudiced, the Buyer may by notice given to the Seller given not later than 5pm on the Business Day immediately preceding prior to the Settlement Date, rescind this Contract; or
(b)	the Buyer may elect to complete this Contract and reserve its rights to claim, in writing, compensation from the Seller providing notice to this effect has been given to the Seller in writing at or the claims are made prior to Settlement.

Clause 12.5

Any notice given to the Seller under Clause 12.4 must set out clearly, details of the incorrect or breached warranty.

Clause 14

14.1	If the Seller must obtain consent to transfer the Property, the Seller shall at his own cost promptly take every reasonable action to obtain such consent.
14.2	The Buyer will, if required, do all things as may reasonably be necessary to assist in obtaining such consent.
14.3	If consent is not obtained by Settlement Date, providing neither party is in default, either party may terminate this Contract.

Clause 16(1)

Inspections in accordance with as per Clause 4.

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, to the date of payment at the rate prescribed in Item (20) 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. for payment to 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 (20).

Clause 18.2(c)

compliance with or application of any Government or local Government requirements or proposals, statutory or otherwise (including Transport Infrastructure), with respect to the Land or adjoining land will materially adversely affect the Property; or

Clause 20.6

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 20.7

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

Clause 20.8

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 21

Property Survey Description

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

(a)	in the case of an material error, mis-description 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 21.1 (b) or should the Buyer elect to complete in the case of Clause 21.1 (a), the Buyer will be entitled to monetary compensation only.

Clause 22

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 23

Where the Buyer elects to complete under Clause 21(a) or 22(a) or must complete under Clause 21(b) or 22(b):

(1)	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.
(2)	Any such claim for compensation does not entitle the Buyer to delay Settlement or withhold any of the purchase monies.

Clause 24

24.1	The Seller must, prior to Settlement, provide to the Buyer current copies of all relevant documents in the Seller’s possession reasonably required by the Buyer relating to the Property, in particular those relating to tenancies, licenses, warranties, and any unregistered dealings.
24.2	The Seller by this Contract consents to and authorises the Buyer to inspect the records of relevant authorities including body corporate and obtain any necessary certificates relating to the Land and/or Lot and Improvements.

Clause 31.1

Time shall be of the essence. Settlement must may take place on the Settlement Date at any time between the hours specified in Clause 7.1 of this Contract.

Clause 32

32.1

(1)	The Seller must, by Settlement, fully comply with any Work Orders or Notices, issued by a competent authority, pursuant to Clause 12.1 (6), made on or before 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.

32.2

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.

32.3

The Costs incurred by one party in complying with of any Work Order or Notice complied with by one party which, under Clause 32.1, 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.

32.4

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 32.1and 32.3.

32.5

In accordance with Clause 32.1 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.

32.6

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 (19).

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 35.3

A solicitor appointed by a party shall have full authority to act on behalf of such party with respect to all matters relating to this Contract.

Clause 36

36.1	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).
36.2	This Contract may be executed in any number of counterparts. Together all counterparts make up one instrument.
36.3	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.