DIPLOMA IN LAW

LEGAL PROFESSION LAW EXTENSION COMMITTEE

ADMISSION BOARD

LAW EXTENSION COMMITTEE SUBJECT GUIDE

14 CONVEYANCING
WINTER SESSION 2016 (Corrected 23/6/16)
This Guide includes the Law Extension Committee’s course information and teaching program and the
Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading
“Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the
NSW Admission Board Rules 2015.

Course Description and Objectives 1

Lecturers 1
Assessment 1-2
September 2016 Examination 2
Lecture Program
Prescribed Topics and Course Outline (Course Outline cont. on page 9) 3-6
Weekend Schools 1 and 2 6
Texts and Materials 7
Compulsory Assignment 8
Assignment Question 8
Sample Examination Question 8
Prescribed Topics and Course Outline (Cont. from page 3) 9-17

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LAW EXTENSION COMMITTEE WINTER 2016

14 CONVEYANCING

COURSE DESCRIPTION AND OBJECTIVES

The objective of the Conveyancing course is to familiarise students with the concept of conveyancing.
Particular emphasis is placed on the structure of the Standard Form Contract for Sale of Land 2005 and how
the new 2014 edition relates to it.

Whilst the course is to some degree involved with practical issues of conveyancing, a good deal of relevant
case law is discussed in order that students will be in a position to recognise problem areas in practice. The
course also provides for a consideration of various issues of contract law, equity and planning law.

LECTURERS

Mr W A Henningham, PSM, LLB (Syd)

Mr Bill Henningham, who teaches the evening lecture students, is a solicitor and mediator in private practice
who has long specialised in conveyancing. He also specialises in local government and environmental
planning law which has important implications for conveyancing. Mr Henningham has written and addressed
conferences and seminars on topics covered in the course. He is the author of chapters on Local Government
Law and Practice in Lexis-Nexis Local Government and Planning Service (NSW) Vol C and is the teacher of
the subject Local Government and Planning in the Diploma in Law course.

If you wish to discuss any aspect of the subject matter of the Conveyancing course, you may consult Mr
Henningham, whose telephone number is (02) 9427 0519.

Mr D H W Ross, LLB (Syd)

Mr David Ross, who teaches the external (Weekend) students, has been a solicitor in private practice for
over 50 years and has also long specialised in conveyancing practice. In 1996 he taught Property Law and
Commercial Law at Seaforth TAFE and has been the weekend lecturer and examiner in Conveyancing since
Winter Semester 2010.

His experience in also practising in Business and Commercial Law and in related litigation gives him a very
relevant understanding of the pitfalls which can arise in conveyancing practice. Mr Ross’s three years of legal
practice in Byron Bay gave him a valuable insight into legal issues faced by rural conveyancing practitioners.
He is able to be contacted by leaving a message with (02) 9546 7362.

ASSESSMENT

To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning
program, the first step of which is to ensure that you have registered online with the LEC in each subject for
which you have enrolled with the Board. This gives you access to the full range of learning resources offered
by the LEC.

To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the
instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the
Course Information Handbook, and on the Webcampus.

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Eligibility to Sit for Examinations

In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s
performance in a subject in order for the student to be eligible to sit for the examination, conducted by the
Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.

Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for
examinations. However, a category of “deemed eligible” has been introduced to offer students whose
assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances
students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the
examination.

Assignments as part of the Board’s Examinations

Assignment results contribute 20% to the final mark in each subject.

The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages
the LPAB’s Examiners to assess or supervise the assessment of assignments.

Submission

Assignments must be submitted by 11:59pm on the due date unless an extension has been granted.
Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided.
Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one
mark out of 20, or 5% of the total marks available, per day.

Assessment

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the
Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be
returned to students and results posted on students’ individual results pages of the LEC Webcampus.
Students are responsible for checking their results screen and ascertaining their eligibility to sit for the
examination.

Review

Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that
subject will be included in the Revising Examiner’s review. The final examination mark is determined in
accordance with this review. Assignment marks will not otherwise be reviewed.

SEPTEMBER 2016 EXAMINATION

Candidates will be expected to have a detailed knowledge of the prescribed topics set out and referred to on
pages 3–6 and 9–17 in this Subject Guide.

Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and
to have analysed cases contained in the Law Extension Committee's course outline.

Please contact the Legal Profession Admission Board for any enquiries in relation to examinations.

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LECTURE PROGRAM

Lectures in Conveyancing will be held on Mondays, commencing 9 May 2016, from 6.00pm until 9.00pm. In
the first half of semester they will be held in New Law School Lecture Theatre 026 (New LSLT 026). Lecture
venues for the second half of the semester have yet to be confirmed. Weekend lectures will be held in Lecture
Theatres at times as advised on page 6. A map of the University of Sydney’s main campus showing the
location of these lecture venues is included at the back of the Course Information Handbook.

PRESCRIBED TOPICS AND COURSE OUTLINE

(COURSE OUTLINE CONT. ON PAGE 9)
LECTURE TOPICS KEY READING
1 Introduction to conveyancing – what
9 May transactions are involved
Residential Conveyancing Protocol
entered into by the Law Society of NSW
and the Real Estate Institute on behalf of
their members: see
www.lawsociety.com.au Skapinker, (5th ed 2010) Ch 1
Formation of an enforceable contract - Rossiter, Ch 1
what is required? exchange of contracts;
what is involved in a typical conveyancing
matter

2 The Standard Form of Contract for Sale of Skapinker, Ch 3

16 May Land, 2014 ed., formerly 2005 ed. (CSL) Note that the 2010 ed of Skapinker
The Law Society of NSW and the Real cannot canvas the 2014 contract
Estate Institute of NSW have issued the amendments.
new Contract for Sale and Purchase of
Land 2014 Edition in electronic format
only. The 2005 Edition of the Contract for
Sale of Land will be available in both
hardcopy and electronic format until 30
June 2016

An (amended) Summary of the Main

Changes in the 2014 Edition prepared by
the Law Society appears on the LEC
Webcampus.

Subject matter of the sale

Caveat emptor and the vendor’s general
law duty of disclosure
Vendor’s statutory duties of disclosure Skapinker, Ch 3
Consequences of active concealment of Rossiter, Ch 5
defects
What is a “proposal” in the context of Skapinker, Ch 4
adverse affectations?
“Prescribed documents” under S 52A of Note: 2010 ed of Skapinker (5th
Conveyancing Act 1919 and edition) quotes superseded editions
Conveyancing (Sale of Land) Regulation of the Conveyancing (Sale of Land)
Prudent pre-contract inquiries and Regulation
actions by a purchaser and a purchaser’s
solicitor Henningham, Planning Law
Unfulfilled conditions of consent implications for conveyancing –
Whether to choose E-Conveyancing; see negotiating the planning control
Cl 30 CSL minefield (LEC Website)
Requirements under the Home Building
Act 1989 (as amended 2014) and
Swimming Pool Act 1992 and

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Swimming Pool Regulation 2008

Swimming Pools Act 1992 and
Swimming Pools Regulation 2008
3 Deposit and deposit-bond alternatives Skapinker, Ch 7
23 May to a cash deposit; cll 2 & 3 CSL Rossiter, Ch 4
Deposit and penalty; status of vendor’s
agent holding the deposit as Skapinker, Ch 8
“stakeholder”; forfeiture of deposit;
issues related to part-paid deposits; Skapinker, Ch 8
“cooling off” provisions; vendor’s duty of
care pending completion Henningham, More Pitfalls for the
Status of vendor between exchange and Unwary Conveyancing Practitioner
completion – trustee? (LEC Website)
Passing of risk and protecting purchaser’s Skapinker, Ch 8
beneficial interest prior to completion
Need for vendor to maintain
comprehensive insurance until after
completion and desirability of purchaser
obtaining comprehensive “replacement”
cover after exchange of contracts
Caveats by purchasers and their
relevance; in what circumstances should
they be lodged including compensation
from caveator who is taken to have
lodged a caveat without reasonable cause
Do caveats have any limitations?

4 Requisitions and objections - cl 5 CSL Skapinker, Ch 10; Rossiter, Ch 6

30 May Responses to requisitions et al.
Vendor’s entitlement to rescind (cl 8.1)
and purchasers right to terminate (cl 8.2)
of the CSL
Misrepresentation/misleading and
deceptive conduct in conveyancing
transactions - Australian Consumer Law
and common law
Who could have actionable liability apart
from parties?
Henningham, More Pitfalls for the
Unwary Conveyancing Practitioner
(LEC Website)
Izaz Khan, Barrister,
“Misrepresentations in Land
Transactions” (LEC Website)
Stephen Climpson, The Impact of
Misleading and Deceptive Conduct
on Contracts for the Sale of Land
(LEC Website)

5 Title defects and their effect upon a Skapinker, Ch 5; Rossiter, Ch 5

6 Jun vendor’s title
Rule in Flight v Booth; purchaser’s Skapinker, Ch 6
remedies for undisclosed defects;
Undisclosed stormwater mains Skapinker, Ch 11
What is a material or substantial defect?
Prescribed term in contract re Rossiter, Ch 8
encroachments
Prescribed warranties in contracts Note: 2010 ed of Skapinker quotes
Errors and misdescriptions superseded editions of the
Claims under cl 7 of the standard form of Conveyancing (Sale of Land)
contract Regulation
Consequence of changes in planning
controls after issue of s 149(2) cert.
attached to contract

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 5

New opportunities for relief for purchasers

now available by virtue of clause 8.2 of
CSL 2014 ed

No Lecture on Monday 13 June 2016 – Queen’s Birthday Public Holiday

Study Break: Saturday 18 June – Sunday 3 July 2016

No Conveyancing Lecture on Monday 4 July

6 Survey certificates and their importance Skapinker, Ch 5

11 Jul Building certificates – relevance to Skapinker, Ch 4
prescribed warranty in the context of Skapinker, Ch 12
unlawful building work Skapinker, Ch 6.40 et seq
Regularisation of breaches of Planning
Law
Section 52A of the Conveyancing Act Henningham, More Pitfalls for the
cannot be excluded Unwary Conveyancing Practitioner
Inquiries and adverse affectations (LEC Website)
Purchaser’s right to rescind and
limitations on rights
Doctrine of election
What constitutes affirmation of a contract?
Does the purchaser’s solicitor have any
responsibility to enquire in relation to
surrounding properties? How should a
solicitor for a purchaser deal with a
request that such enquiries be made?

7 Preparing for completion Skapinker, Ch 14;

18 Jul Rates and adjustments; what constitutes
vacant possession
Existing uses; what are the duties of a
solicitor acting for a purchaser if it is
asserted that there is an existing use?
Heritage and conservation issues
Issues relating to s 149 certificates
Should information under s149(5) be
supplied by vendor in contract and
obtained by purchaser if not provided?
Occupation certificates, what is their
importance?
Status under Planning Law of restrictive
covenants and easements. Can their
operation be suspended?
Butt, Ch 14 [1447], [20116] Rossiter,
Ch 8
Skapinker, Ch 13
Henningham, Exemptions from
Rating and other Rating Issues (LEC
Website)
Henningham, Planning Law
implications for conveyancing –
negotiating the planning control
minefield (LEC Website)
Henningham, More Pitfalls for the
Unwary Conveyancing Practitioner
(LEC Website)
Butt, Ch 7 [17138-17142], [16134]

Suggested special conditions. What

special conditions should be rejected by a
solicitor for the purchaser?
Is interest required to be paid on the
balance of purchase price after the
completion date a penalty? Note interest
rate guideline in cl 18.5.2 CSL.

8 Time Skapinker, Ch 15; Rossiter, Chs 4,

25 Jul 6, 7

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Precautions on behalf of purchaser prior Skapinker, [8.35]; Rossiter, Ch 7

to completion Butt, [2048-2049]
Requirements for valid notice to complete Henningham, More Pitfalls for the
Unwary Conveyancing Practitioner
(LEC Website)

9 Remedies including rescission and Skapinker, Chs 16, 17, 18; Rossiter,
1 Aug termination Chs 1, 2, 8
In what circumstances can repudiation of CSL cll 7,8.1, 8.2, 9, 17.3, 19, 23.9,
a contract be inferred? 27.4-27.6, 28.3, 29.5-29.8.
Alternative dispute resolution
The options for consensual resolution of
conveyancing disputes

10 The elements of Torrens Title Butt, Ch 20

8 Aug Strata Title and Community Title
Mortgages, leases, easements and other
interests
What is e-Conveyancing and how will it
provide an electronic environment for
participating practitioners to conduct the
financial settlement of conveyancing
transactions.
(Cl 30 CSL)
Butt, Ch 21
Butt, Ch 18, 15, 16
For Registrar Generals FAQs on
e-conveyancing visit…………………..
http://rgdirections.lpi.nsw.gov.au/e-
dealings/faqs

11 Revision which will take the form of a

15 Aug review and discussion of the whole
subject

WEEKEND SCHOOLS 1 AND 2

There are two weekend schools principally for external students. Lecture students may attend on the
understanding that weekend school classes aim to cover the same material as provided in weekly lectures
and are primarily for the assistance of external students. External students should refer to the detailed
material in the Prescribed Topics and Course Outline

It may not be possible to cover the entire course at the weekend schools.

Weekend School 1 Prescribed topics covered in Lectures 1 - 5

Friday 27 May 2016 5.00pm – 9.00pm in Carslaw Lecture Theatre 373 (CLT 373) and Saturday 28
May 2016 Noon – 4-00pm in New Law School Lecture Theatre 106 (New LSLT 106)

Weekend School 2 Prescribed topics covered in Lectures 6 – 10

and Revision, being a review and discussion of the whole subject of Conveyancing

Friday 22 July 2016 5.00pm – 9.00pm in New Law School Lecture Theatre 026 (New LSLT 026) and
Saturday 23 July 2016 Noon – 4.00pm in New Law School Lecture Theatre 106 (New LSLT 106)

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TEXTS AND MATERIALS

For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on purchases made
through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting the promo code LECW2016 will receive a 15%
discount on all text titles (except for those authored by John Carter). This discount is not limited to the prescribed or recommended texts
for our courses. Students should, however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop,
for example, offers a discount on texts sold to its members.

Course Materials

 Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Prescribed Materials

 Skapinker and Lane, Sale of Land: Commentary and Materials, 5th ed. Thomson Reuters, 2010
 Butt, Land Law, 6th ed. Thomson Reuters, 2009
 Rossiter, Principles of Land Contracts and Options in Australia, LexisNexis, 2003
 Standard Form of Contract for Sale of Land, 2014 ed. approved by the Law Society of New South Wales
and the Real Estate Institute of New South Wales
with other materials Note: The Standard Form of Contract for Sale of Land 2005 ed approved by the Law
Society of New South Wales will continue to be included with other materials for cross reference with
texts published before 2014, as well as the 2014 ed. CSL, including A Summary of the Main Changes in
the 2014 Edition prepared by the Law Society, in the Course Materials section of the LEC Webcampus.

Relevant Legislation

Internet access to the relevant legislation can be readily obtained through:

http://www.austlii.edu.au for section by section references and for unbroken presentation (more convenient
for printing), www.legislation.nsw.gov.au and www.commlaw.gov.au

 Conveyancing Act 1919 and Conveyancing (General) Regulation 2013

 Real Property Act 1900 and Regulations NSW
 Conveyancing (Sale of Land) Regulation 2010 NSW (CSL Reg 2010) with amended Schedule 1 which
took effect on 29 April 2016
 Environmental Planning and Assessment Act 1979 NSW
 Environmental Planning and Assessment Regulation 2000 NSW
 Strata Schemes Management Act 1996 NSW; it is anticipated that this Act will be replaced by the Strata
Schemes Management Act 2015 (NSW) on 1 July 2016 July
 Competition and Consumer Act 2010 and Fair Trading Act 1987 – Australian Consumer Law (Cwlth)
 Community Land Management Act 1989 NSW
 Electronic Conveyancing (Adoption of National Law) Act 2012 NSW
 Home Building Act 1989 (as amended 2014)
 Encroachment of Buildings Act 1922
 Swimming Pools Act 1992 and Swimming Pools Regulation 2008

LEC Webcampus

Once you have registered online with the LEC, you will have full access to the facilities on the LEC
Webcampus including the Course Materials section containing links to cases and legislation as well as three
papers by Bill Henningham:
 Planning Law Implications for Conveyancing – Negotiating the planning control minefield
 More Pitfalls for the Unwary Conveyancing Practitioner
 Exemptions from Rating and other Rating Issues,
 a paper by David Ross, The Advent of Electronic Conveyancing, January 2015

And a paper by Stephen Climpson, Barrister, entitled “The Impact of Misleading and Deceptive Conduct on
Contracts for the Sale of Land”, 2014.

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COMPULSORY ASSIGNMENT
In Conveyancing, there is only ONE ASSIGNMENT. This assignment is compulsory and must be
submitted by all students. Students must submit the assignment by the due date. A pass mark is 50%.
Refer to the Guide to the Presentation and Submission of Assignments for the assignment grading
and assessment criteria. Students who fail to satisfy the compulsory requirements will be notified
through the Results screen on the Webcampus before the examination period of their ineligibility to
sit the examination in this subject. The maximum word limit for the assignment is 2000 words
(inclusive of all footnotes but not bibliography).

The rules regarding the presentation of assignments and instructions on how to submit an assignment are
set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the
LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.

The completed assignment should be lodged through the LEC Webcampus by 11:59pm on the following
date:

Compulsory Assignment Thursday 21 July 2016 (Week 9)

ASSIGNMENT QUESTION

To obtain the Conveyancing assignment question for the Winter Session 2016, please follow the
instructions below:

1. Register online with the LEC (see page 26 of the Course Information Handbook for detailed
instructions). Once you have registered, you will have full access to all the facilities on the LEC
Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the
assignment question for this subject.

SAMPLE EXAMINATION QUESTION

Attempt BOTH parts of this question.

(i) You act for the Vendor in a Contract for Sale of a property (2014 ed.) which specifies a Completion
Date of 9 September 2016. A special condition provides “If completion does not take place on the
Completion Date, either party may serve on the other a notice to complete stipulating a date for
completion 14 days following the date of service of the notice making time for completion of the
essence. The parties agree that such time is reasonable and sufficient notice.” The Purchaser has
failed to complete on the Completion Date. The Vendor requires you to enforce completion.

What are the prerequisites to doing so? Refer to relevant legislation and decided cases.

(10 marks)

(ii) Referring to decided cases, explain any pitfalls for a vendor of real estate who is requested
by an intending purchaser to accept as a deposit 5% of the purchase price on exchange of
contracts (2014 ed.), with provision to pay a further 5% on completion or default, whichever
occurs first.
(10 marks)

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PRESCRIBED TOPICS AND COURSE OUTLINE (CONT. FROM PAGE 3) INCLUDING

RELEVANT CASES

1. INTRODUCTION LECTURE 1

(1) Sale and purchase of land

(2) Mortgages

(3) Leases

(4) Other interests and dealing

2. FORMATION OF AN ENFORCEABLE CONTRACT FOR THE SALE OF LAND LECTURE 1

(1) Certainty of agreement

Air Great Lakes P/L v KS Easter (Holdings) P/L (1985) 2 NSWLR 209
Hall v Busst (1960) 104 CLR 206
Bushwall Properties v Vortex Properties [1976] 1 WLR 591
Sudbrook Trading Estate v Eggleton [1982] 3 WLR 315
Booker Industries v Wilson Parking (Queensland) (1982) 149 CLR 600
Meehan v Jones (1982) 149 CLR 571
Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd (2006) ANZ ConvR 143

(2) Intention to be immediately bound

Masters v Cameron (1954) 91 CLR 353

Guilfoyle Developments P/L v Frumar [2012] NSWSC 859
Allen v Carbone (1975) 49 ALJR 161
G R Securities v Baulkham Hills Private Hospital (1986) 40 NSWLR 631
Waltons Stores (Interstate) v Maher (1988) 164 CLR 87
Arfaris v Vosnakis [2016] NSWCVA 65
Welch v Welch [2012] NSWSC 1128
Teviot Downs Estate Pty Ltd v MTAA Superannuation Fund (Flagstone Creek and Spring Mountain Park)
Property Pty Ltd (2004) ANZ ConvR 152
Peter Warren (Properties) Pty Ltd v Jalvoran Pty Ltd (2005) ANZ ConvR 52
Article : “Is there a Binding Contract?” : Peter Butt (2005) 79 ALJ 205
Grave v Blazevic Holdings P/L [2012] NSWCA 329

(3) Conveyancing Act, s 54A – contracts for sale must be in writing

(4) Conveyancing Act, s 66S – 66Y – cooling off provisions

(5) Methods of exchange of contracts

Eccles v Bryant [1948] 1 Ch 93

Domb v Isoz [1980] 1 All ER 942
Sindel v Georgiou (1984) 154 CLR 661
Longpocket Investments v Hoadley (1985) NSW Conv R 55-244

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3. SUBJECT MATTER OF SALE LECTURE 2

(1) Standard contract

Changes made by CSL Reg 2010 including the warning required in relation to a landowner’s obligations
under the Swimming Pools Act 1992 requiring Certificates of Compliance for properties sold with a pool after
29 April 2016.

The Law Society of NSW and the Real Estate Institute of NSW have issued the new Contract for Sale and
Purchase of Land 2014 Edition (CSL 2014 ed.) in electronic format only. The 2005 Edition of the Contract for
Sale of Land will be available in both hardcopy and electronic format until 30 June 2016.

A table prepared by the Law Society containing a summary of the main changes in the CSL 2014 ed. appears
on the LEC Webcampus.

(2) Description of the subject of the sale

Travinto Nominees P/L v Vlattas (1973) 129 C1 LR (also lecture 5)

Palumberi v Palumberi (1986) NSW ConvR 55-287
Abraham v Mallon (1975) 1 BPR 9157
Nicita v Maloney (1971) 1 BPR 9105
Avim v Guilianotti [1989] NSW Conv R 55-479
Harris v Harris [2008] NSWSC 545

4. CAVEAT EMPTOR AND PRE-CONTRACT ENQUIRIES LECTURE 2

(1) Vendor's general law duty of disclosure

Best v Glenville [1960] 3 All ER 478

Dormer v Solo Investments (1974) 1 NSWLR 428
Anderson v Daniels (1983) NSW Conv R 55-144
Tsekos v Finance Corporation of Australia (1982) 2 NSWLR 347

(2) Vendor's statutory duty of disclosure

Conveyancing Act, s 52A(2)(a)

Lismore CC v Stewart (1989) 68 LGRA 445
Verman v McLaughlin (1990) NSW Conv 55-521
Port Stephens SC v Booth (2006) 148 LGERA 351
Mid Density Developments v Rockdale MC (1993) 81 LGERA 104
Conveyancing (Sale of land) Regulation 2010
Standard Form Contract for Sale of Land
Gibson v Francis (1989) NSW Conv R 55-458
Argy v Blunts and Lane Cove Real Estate (1990) 94 ALR 719
Pisano v Dandris [2014] NSWSC 1070
Williams v Pisano [2015] NSWCA 177 (The High Court refused leave to appeal) See also Anderson v Daniels
((1) above)

(3) Prudent Pre-Contract Enquiries

Hillpalm Pty Limited v Heaven’s Door Pty Limited [2004] HCA 59

Article: “Indefeasibility Overriden – Significantly”: Peter Butt and Scott Freidman (2003) 77 ALJ 88
Adderton v Festa Holdings Pty Limited & Ors [2003] NSWSC 1065
Luxford v Sidhu [2007] NSWSC 1356
Article: ”The importance in Evidence of Usual Practice” Tony Cavanagh (2009) July LSJ 48

(4) Vendor's contractual duty of disclosure

Standard Form Contract for Sale of Land, case law, legislation and the Regulation.

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(5) Requirements under the Home Building Act 1989 as amended 2014

5. DEPOSIT LECTURE 3

(1) Functions of a deposit

Brien v Dwyer (1978) 141 CLR 378 (HCA)

(2) Status of agent in relation to the deposit

(3) Holding and contractual deposits

Sorrell v Finch [1976] 2 WLR 833

(4) Split Payment of Deposits– steps to take if the deposit is only part paid on exchange

CSL cl 2 2014 ed.

Luong Dinh Luu v Sovereign Developments Pty Ltd and 2 Ors (2006) NSWCA 40
Ianello v Sharpe [2007] NSWCA 61
Ashdown v Kirk [1999] 2 Qd 1
Boyarsky v Taylor [2008] NSWSC 1415; (22-12-2008); [2009] NSWSC 468; (1-5-2009);
Cloud Top PL v Toma Services PL [2008] NSWSC 568
Rana v Dalla Costa [2014] NSWSC 1113; @para 35-72

(5) Forfeiture of deposit {see also Remedies Lecture 9 Chap 21(3) (d)}

CSL: cl 9 2014 ed.

Conveyancing Act, s 55(2A)
Lucas and Tait (Investments) v Victoria Securities (1973) 2 NSWLR 268
Romanos v Pentagold (2003) ANZ Conv R 601
Tsekos v Finance Corporation of Aust Ltd (1982) 2 NSWLR 347
Timanu PL v Clurstock PL (1988) 15 NSWLR 338

(6) Deposit-Bond CSL 2014 ed. Cl 3

(7) Cooling-Off Provisions Conveyancing Act S 66V

(8) GST on Deposits

Commissioner of Taxation v Reliance Carpet Co P/L (2008) 236 CLR 342

ATO Decision Impact Statement 4/6/08 (Skapinker 7.230)

6. RISK AND DUTY OF CARE PENDING COMPLETION LECTURE 3

(1) Vendor's duty of care

Bunny Industries v F S W Enterprises [1982] ANZ Conv R 627

Phillips v Lamdin [1949] 2 KB 33
Trust Company of Australia Ltd v Commissioner of State Revenue [2007] VSC 451

(2) Status of vendor between exchange and completion – trustee?

Bunny Industries LTD v FSW Enterprises Pty Ltd (1982) ANZ ConvR 627
Kern Corporation v Walter Reid Trading Pty Ltd (1987) 163 CLR 164
Carpenter v McGrath (supra; lecture 6 Chapter 11)
Chang v Registrar of Titles (1976) 137 CLR 177

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(3) Protection of purchaser's equitable interest – Insurance & Passing of Risk

(a) Caveats
Black v Garnock [2007] HCA 31
Credit Finance Australia Ltd (in liq) v Panella [2011] NSWSC 311
Beca Developments v Idameneo (No. 92) Pty Ltd(1990) 21 NSW LR 459
Source and Resources Pty Ltd v Porada [2007] NSWSC 883
Hillpalm Pty Ltd v Wilson [2009] NSWSC 362
Real Property Act 1900 Part 7B (Priority notices); Ss74S to 74Z amended by Real Property Act
(Electronic Conveyancing) Act 2015 assented 15/9/15

(b) Insurance and passing of risk

Insurance Contracts Act 1984, s 50
Conveyancing Act, ss 66J-0 (comm 1.5.1986)
Stephenson v State Bank of NSW (1996) 39 NSWLR 101
Shadlow v Skiadopolous (1988) NSW Conv R 55-383
Robert Pryke Investments v Blazai [2000] NSWCA 222 (18 August 2000)
Nevitoro Investments v Turner [2004] NSWSC 1315
Ziel Nominees v V A C C Insurance Co (1978) 50 ALJR 106 (pre 1984)
Kern Corporation Ltd v Walter Reid Trading PL (supra) Qld law (dissenting Deane J )

7. REQUISITIONS AND OBJECTIONS LECTURE 4

(1) Types of requisitions and objections

Godfrey Constructions v Kanangra Park (1972) 128 CLR 529

Gardiner v Orchard (1910) 10 CLR 722
Sullivan & Ors v Dan & Ors (1999) ANZ ConvR 32
Crowe v Rindock [2005] NSWSC 375
Avim v Guilianotti (supra lecture 2)

(2) Time for making requisitions and objections

CSL 2014 cl 5

(3) Vendor's entitlement to rescind

CSL 2014 cl 8
Duddell v Simpson [1866] LR 2 Ch App 102
Pierce Bell Sales v Frazer (1973) 130 CLR 575
Noske v McGinnes (1932) 47 CLR 563
Crowe v Rindock (supra)

8. BREACHES OF COMPETITION AND CONSUMER ACT 2010 (Australian Consumer Law)

& REMEDIES; MISREPRESENTATION UNDER THE GENERAL LAW LECTURE 4

Statewide Developments P/L v Higgins [2011] NSWCA 35

Ackers v Austcorp International Ltd [2009] FCA 432
Kyriacou v Kogarah MC (1995) 88 LGERA 110
Havyn PL v Webster 2005 NSWCA 182
Butcher v Lachlan Elders Realty PL (2004) 218 CLR 592
Zhang v VP302SPV PL [2009] NSWSC 73
Boyana PL v Jainran [2010] NSWCA37

9. TITLE DEFECTS LECTURE 5

(1) General law position

Flight v Booth (1834) 131 ER 1160

Lee v Rayson [1917] 1 Ch 613

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Fuller’s Theatre Ltd v Musgrove (1923) 31CLR524 @538

Hamilton v Munro (1951 SR (NSW) 250 @253-4
Carpenter v McGrath (1996) 40 NSWLR 39
Sullivan & Ors v Dan & Ors (1999) ANZ ConvR 32
Festa Holdings Pty Ltd v Adderton & Ors (2004) ANZ Conv R 341

(2) Contract

CSL Cl 6 (errors and misdescriptions)

Travinto Nominees PL v Vlattas (1973) 129 CLR 1 @14

(3) Statutory position

CSL Reg 2010 Sched 2(1) (prescribed terms); Sched 3 Part 1

(4) Undisclosed stormwater mains and other underground pipes of service authorities

Micos v Diamond (1970) 92 WN (NSW) 513

(5) Changes in planning controls after the date of the s 149 certificate attached to the contract or controls
omitted from that certificate.

Verman v McLaughlin (1990) 70 LGRA 19

10. ERRORS AND MISDESCRIPTIONS LECTURE 5

(1) General law position

(2) Contract

(3) CSL cl 6 2014 ed.

Travinto Nominees v Vlattas (1973) 129 CLR 1

Drummoyne MC v Beard (1970) 1 NSWLR 432
Owmist v Twynam Pastoral (1984) NSW Conv R 55-165

11. LEGALITY OF STRUCTURES AND USER LECTURE 6

(1) Survey certificates

CSL cl 10.1.1 2014 ed.

Svanasio v McNamara (1956) 96 CLR 186

(2) Illegal and non-complying buildings

Environmental Planning and Assessment Act 1979

CSL Reg 2010– Sched 3 Part 1
Carpenter v McGrath (1996) 40 NSWLR 39
(but see now Conveyancing (Sale of Land) Regulation 2010 Sched 3 Part 1(d))
Tambel v Field (1982) NSW Conv R 55-077

(3) Building certificates

Cramer v Leichhardt MC (1992) 130 LGERA 182

Ireland v Cessnock CC (1999) 110 LGERA 311
Mineral Wealth v Gosford CC (2003) 127 LGERA 74

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12. INQUIRIES AND AFFECTATIONS LECTURE 6

(1) Statutory duty of disclosure & Purchaser’s right to rescind

Conveyancing Act, s 52A(2)(b)

CSL Reg 2010 Cll 16-18
CSL cll 19, 23.9, 29.5, & 29.8; 2014 ed.

(2) Limitations on purchaser's right to rescind

Arias v Brigden [1986] NSW Conv R 55-278

Korbol Holdings v Johnson [1987] NSW Conv R 55-337
Chantaloup v Thomas (1975) 2 NSWLR 38
Little v Piccin [1983] NSW Conv R 55-152
Jones v Assef (1976) 1 NSWLR 467
Marinkovic v Pat McGrath Engineering [2004] NSWSC 571
Timanu v Clurstock (1988) 15 NSWLR 338 @ 339

(3) Doctrine of Election

Sargent v A S L Developments (1974) 131 CLR 634

Turner v Labafox International (1974) 131 CLR 660
Zucker v Straightlace (1987) 11 NSWLR 87
Molotu v Solar Power [1989] NSW Conv R 55-490
Uremovic v P E I [1986] NSW Conv R 55-311
Copmar Holdings v The Commonwealth [1988] NSW Conv R 55-404; [1989] NSW Conv R 55-451

(4) Is there any obligation on a purchaser’s solicitor to make enquiries about surrounding properties?

Luxford & Anor v Sidhu & Ors [2007] NSWSC 1356 (See Lecture 4 (3) supra.)

13. RATES AND NOTICES LECTURE 7

(1) Council and water rates

(2) Land tax

Lynch v Olympic Bowling Centres (1969) 90 WN (pt 1) (NSW) 44

D and B Eastern Units v C A G A [1981] NSW Conv R 55-034
Dainford v Yulora [1984] NSW Conv R 55-184; [1984] NSW Conv R 55-185

14. VACANT POSSESSION LECTURE 7

Cumberland Consolidated Holdings v Ireland [1946] 1 KB 264

Point Glebe v Lidofind [1988] NSW Conv R 55-412
Austral Standard Cables v Walker Nominees (1992) NSW Conv R 55-630
Smilie v Bruce (1999) NSW Conv R 55-886

15. EXISTING USES, OTHER LAWFUL USES AND EXISTING CONSENTS LECTURE 7

Environmental Planning and Assessment Act 1979, ss106, 107 and 109
Shire of Perth v O’Keefe (1964) 110 CLR 529
Lane Cove MC v Lujeta (1986) 58 LGERA 157
Kyriacou v Kogarah MC (1995) 88 LGERA 110
Caltex Australia Petroleum v Manly Council (2007) 155 LGERA 255
Grace & Anor v Thomas Street Café & Ors (2007) 159 LGRA 57
Grace & Anor v Thomas Street Café & Ors (No 2) [2008] NSWCA 72
North Sydney MC v Boyts Radio & Electrical (1989) 67 LGRA 344

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16. ISSUES RELATING TO s 149 (5) CERTIFICATES LECTURE 7

Mid Density Developments v Rockdale MC (1993) 81 LGERA 104

17. OCCUPATION CERTIFICATES LECTURE 7

Environmental Planning and Assessment Act 1979 ss 109C – 109I and ss 109M and 109 N

18. STATUS OF RESTRICTIVE COVENANTS AND EASEMENTS LECTURE 7

Environmental Planning and Assessment Act 1979 s 28

Lennard v Jessica Estates [2008] NSWCA 121 (30 May 2008)
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2010] NSWCA 214 (2 September 2010)
Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27 (3 August 2011)
Challister Ltd v Blacktown CC (1992) 76 LGRA 10
Ludwig v Coshott (1994) 83 LGERA 22
Cracknell v Lonergon v Sydney CC (2007) NSWLEC 392; 155 LGERA 29

19. TIME FOR COMPLETION LECTURE 8

(1) Historical background

Conveyancing Act, s 13

(2) Time clauses in contracts

Raineri v Miles [1980] 2 WLR 847

Neeta (Epping) v Phillips (1974) 131 CLR 286
Louinder v Leis (1982) 149 CLR 509
Sindel v Georgiou (1984) 154 CLR 661
Pastizzi Café Pty Ltd v Hossain (No. 4) (2011) NSWSC 808

(3) Time and requirements for notices to complete

Michael Realty v Carr (1977) 1 NSWLR 553

Ng v Chong [2005] NSWSC 270 (31.3.05)
Castle Hill Tyres PL v Luxspice PL (1996) 7 BPR 14,959 @14,964
McNally v Waitzer (1981) 1 NSWLR 294
Balog v Crestani (1975) 132 CLR 289
Laurinda v Capalaba Park Shopping Centre (1989) 166 CLR 623
Sindel v Georgiou (1984) 154 CLR 661
Wood v Lyons (2009) NSWSC 419
Galifassi v Kelly [2014] NSWCA 190 (13.6.14)

20. RESCISSION and TERMINATION for REPUDIATION LECTURE 9

Shimden Pty Ltd v Rona [2006] NSWCA 256 (19 September 2006)
Foran v Wight [1989] 168 CLR 385
Laurinda v Capalaba Park Shopping Centre (1989) 166 CLR 623
McQueen v Leduva Pty Ltd [2008] NSWSC 284 (3 April 2008)
Sunbird Plaza Pty Ltd v Maloney [1988] 166 CLR 245
Galifassi v Kelly [2014] NSWCA 190 (13.6.14)

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21. REMEDIES LECTURE 9

Ogle v Comboyuro Investments [1976] HCA 21; (1976) 136 CLR 444
DTR Nominees Pty Ltd v Mona Homes [1978] NCA 12; (1978) 138 CLR 423

(1) Rescission

(2) Termination for breach CSL 2014 cll 8.2 & 9

(3) Equitable remedies

(a) Specific performance

(b) Injunctions

(c) Relief against forfeiture of deposit

(d) Relief against forfeiture of interest in land

Tanwar Enterprises Pty Limited v Cauchi (2003) 77 ALJR 1853

Romanos v Pentagold Investments Pty Limited (2003) 77 ALJR 1882
Fairmede Pty Ltd v Von Pein [2004] QSC 220 (5 August 2004)

(4) Statutory remedies Orders for repayment of deposit

Conveyancing Act, ss 55, 55(2A)

Tsekos v Finance Corporation Aust Ltd [1982] 2 NSWLR 347
Lucas and Tait (Investments) v Victoria Securities (1973) 2 NSWLR 268
Shimden Pty Ltd v Rona (2007) ANZ Conv R 15
Chambers v Borness [2014] NSWSC 890
Donald on Danks PL v Alio PL [2014] NSWSC 753

(5) Alternative dispute resolution

Options for consensual resolution of conveyancing disputes

22. ELEMENTS OF TORRENS TITLE LECTURE 10

23. STRATA TITLE AND COMMUNITY TITLE LECTURE 10

Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 52-54

Lin v Owners – Strata Plan 50276 (2004) BPR 21,463 at [27], [30} and [34]
Halpin v Sydney City Council [2000] NSWLEC 218

24. MORTGAGES, LEASES AND OTHER INTERESTS LECTURE 10

Breskvar v Wall (1971) 126 CLR 376

Epic Feast v Mawson KLM Holdings (1998) 71 SASR 161
Farrow Mortgage Services v Victor Tunevitsch (1998) 8 Tas R 65
Darling Point Securities v Industrial Equity (1991) NSW Conv R 55-589
City of Rockingham v PMR Quarries (2001) 118 LGERA 93
Abbeyfield (Harpenden) Society v Woods [1968] 1 WLR 374
Fush v McKendrick (2004) V Conv R 54-686
195 Crown Street v Hoare [1969] 1 NSWR 193
Castle Constructions P/L v Sahab Holdings P/L [2013] HCA 11 (10 April 2013)

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25. E-CONVEYANCING LECTURE 10

National e-Conveyancing NSW

NSW Land & Property Information advises that Property Exchange Australia (PEXA) was formed to fulfil a
Council of Australian Governments (COAG) agenda item to deliver a national electronic conveyancing
solution to the Australian property industry.

Supported by the NSW Government PEXA will enable industry participants to settle property transactions,
lodge instruments with land registries, and pay associated duty and other disbursements.

Electronic conveyancing went live in New South Wales on 8 October 2013. The initial release provided
functionality for financial institutions to lodge Mortgages and Discharges through the PEXA platform.

On 10 November 2014 the second release of electronic conveyancing expanded the range of functions to
include financial settlement and the lodgment of transfers and caveats. This release allows subscribers
such as solicitors and conveyancers to transact through PEXA. Legislation in NSW has introduced priority
notices as part of our electronic conveyancing reforms. At the present time, the take-up of electronic
transactions has been slow, due to the conservative nature of the conveyancing profession, what seems to
be a mistaken belief in its complexity, the need to subscribe to PEXA and the need for all parties to a
transaction to agree to participate electronically. An energetic program is being run by PEXA to win the
profession over.

The Electronic Conveyancing National Law is an appendix to NSW Electronic Conveyancing (Adoption of
National Law) Act 2012.

See paper by David Ross on ‘Advent of Electronic Conveyancing’ on WebCampus. Note amendments have
been made to Real Property Act 1900 to accommodate electronic conveyancing to the Torrens System by
the Real Property Act (Electronic Conveyancing) Act 2015 assented 15/9/15.

REVISION LECTURE 10
At the conclusion there will be Revision which will take the form of a review and discussion of the whole
subject.

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