HELD LAWYERS

Est.1991

Property & Commercial Law

Law Matters

December 2014 Newsletter

Welcome
With the year 2014 drawing rapidly to a close, we take the opportunity to send you seasons
greetings and wish you a safe and prosperous 2015.
Our Malvern and Carlton Offices will be closed from Christmas Eve until 8 January 2015.
However, if you or your clients require legal assistance during that time, we will be regularly
monitoring telephone, SMS and e-mail and will respond as quickly as possible.
We are happy to visit you in 2015 and provide staff or client briefings about a range of topics
or matters of interest to you. Please feel free to contact us in that regard.
We hope to see you (again) soon in person. See you next year!
Adam Held
Principal

Be diligent
With the recent changes to the Sale of Land Act
1962, vendors are no longer required to provide
supporting certificates or documentation for much of
the information disclosed in the Vendors Section 32
Statement (other than a registered search statement
and plan). This can make the job of due diligence in
reviewing Vendors Section 32 Statements prior to
purchase that much more complicated, especially when:
the information provided does not accord with an
understanding of the property, e.g. the Vendors Section
32 Statement shows that the property is in a termite
area, when a knowledge of the area says it is not.
the information provided is incomplete, e.g. the Vendors
Section 32 Statement indicates that The property
may be identified as land subject to uncontrolled
overland drainage where Council recommends that no
site cuts be carried out on the land unless a minimum
floor level of 600mm above the lowest ground level
on the land is achieved.. Is this statement related to
this property? From where is this information derived?
It did not appear in the Planning Report. No Council
documentation was provided for verification. There
was no reference to drainage issues in the Water

Information Certificate.
Recall that new Section 32K provides that a purchaser
can rescind the contract if the vendor provides false or
inadequate information.

Reviewing sale documentation

As part of our ongoing service to you, we are happy
at no charge to briefly peruse vendors section 32
statements / contracts of sale of real estate on behalf
of your prospective clients. Please note that when
reviewing documentation and then recommending some
further possible action, we utilise a stop light system
regarding matters to be aware of generally:
green would not in our opinion require further action
or prevent you proceeding, unless you determined
otherwise - depending on your clients individual
circumstances
amber could in our opinion require further action/
investigation before proceeding unless you determined
otherwise - depending on your clients individual
circumstances
red would in our opinion require further action/
investigation before proceeding - regardless of your
clients individual circumstances
To assist our review, please provide us with any
additional information and/or documentation, e.g. if the
purchase is to be made on behalf of an SMSF. Here is
an example:

Malvern Office

Carlton Office

Postal Address

Contact Details

Level 1, 180-182
Glenferrie Rd
MalvernVIC3144
(corner Winter St)
Melway59C8

113 Cardigan St
CarltonVIC3053
Melway2BF10

P.O. Box 467

Malvern VIC 3144
W: www.heldlawyers.com

T: 03 9509 0710
M: 0407 548 632
F: 03 9500 0805
E: info@heldlawyers.com

Section

Item

Contract

Comment

Action

Appears to be current September 2014 version, draft only.

Particulars of sale

Subject to lease

Vacant?

General Conditions

Standard GC 1 to 28

As modified by special conditions.

Special Conditions

These appear to have been drawn in an attempt to shift

where possible much of the onus from vendor to purchaser,
whilst attempting to shift where possible any benefit to the
vendor. We assume they are part of the Vendors solicitors
standard sale contract conditions, and are unlikely to be
deleted/amended in any significant way.

SC 11. Settlement

Directions order

A most unusual condition, and the changes are

non-standard and significant. Is this the case here?
Notwithstanding that this scenario is unlikely, why would a
purchaser agree to accept an order to register? Moreover,
any lender might be unwilling to proceed on that basis.

Before proceeding further, we

suggest you write to the Vendors
representatives, seeking either:
further information; and/or deletion
of this SC. We suggest the SC
simply be crossed out and initialled
as part of an offer.

SC 12. GST

Equitable interest

A most unusual condition, and the changes are

non-standard and significant. Why would a Purchaser
agree to this, although we assume prima-facie that GST is
unlikely to apply.

Before proceeding further, we

suggest you write to the Vendors
representatives, seeking deletion
of this amended GC. We suggest
the SC simply be crossed out and
initialled as part of an offer.

SC 16. General
Conditions
amendments

GC 25 Breach by
Vendor

A most unusual amendment of a key general condition,

and the changes are non-standard and significant. It alters
the balance of remedies for breach between the parties.
Why would a Purchaser agree that:

the Vendor is not prima-facie liable for any
damages, costs or interest whatsoever or howsoever
arising? This appears to give the Vendor carte blanche as
to its conduct. Whilst deletion of this clause might be struck
out, read down or against the Vendor as it was drafted for it,
this would require the Purchaser to go to Court to test it.

SC 16. General
Conditions
amendments

GC 28.4(a) Equitable
charge by Vendor to
secure deposit

Before proceeding further,

we suggest you write to the
Vendors representatives, seeking
either: further information; and
re-instatement of GC 25. We
suggest the SC simply be crossed
out and initialled as part of an offer.

A most unusual amendment of a key general condition, Before proceeding further, we

suggest you write to the Vendors
and the changes are non-standard and significant.
representatives, seeking either:
Why would a Purchaser agree that the Vendor is given
further information; and deletion of
an (ongoing) equitable charge over any property of the
this amendment to GC 28.4(a). We
Purchaser as added security for the deposit? It is arguable
suggest the SC simply be crossed
that this would only apply where the 10% deposit has not
out and initialled as part of an offer.
been paid over.

Referrals
Should you require non-legal assistance with various
matters, we are happy to provide you with contact details for
a range of service providers, including financial institutions,
accountants, real estate agents, brokers, etc.

Areas of practice
Property Law including conveyancing and leasing
Commercial and Business Law

Banking and Finance Law including mortgages

and guarantees
Wills and Estates Law
Intellectual and Industrial Property Law
Litigation
If you would like further details or assistance or to discuss
information contained in this publication or generally,
please do not hesitate to contact us. For copies of
this and other publications, visit our website at www.
heldlawyers.com.

Disclaimer
This publication is intended to provide commentary and general information only. It should not be relied upon as legal advice. It is not intended to be a complete
or definitive statement of the law on the subject matter covered. Further professional advice should be sought before any action is taken in relation to the matters
described in this publication. Persons listed may not be admitted in all jurisdictions.
Liability limited by a scheme approved under Professional Standards Legislation

ABN: 55 568 546 729