Cancellation – Contractual Remedies Act 1979 – Property Law Act 2007 – Unit Titles Act 2010 – Express Provisions of ADLS Agreement
Remedies Damages Cancellation Forfeiture of Deposit Specific Performance
s7 Contractual Remedies Act 1979 Cancellation available... Repudiation by the other party Actual breach Anticipatory breach Misrepresentation
Substantiality Test The breach or misrepresentation must relate to a matter which: was understood by both parties to be essential to the injured party: or Substantially reduced the benefit or substantially increased the burden or made the benefit/burden substantially different for the injured party
Property Law Act 2007 s28 PLA 2007 The Vendor’s right to cancel an agreement is restricted if the purchaser is in possession The section sets out the procedure that is to be followed.
PLA Procedure Complying notice served Breach must not be remedied prior to expiry of notice period Cancel – Court order – Re-entering land peaceably
Unit Titles Act 2010 s151 applies if the seller does not provide the buyer with the disclosure statements that are required by the Act within the required time frame. The buyer can choose to postpone the settlement date. The buyer can give 10 days notice and then cancel.
ADLS Agreement for Sale & Purchase Cl 2.2 Deposit Cl 4.2 Property destroyed or damaged prior to settlement Cl 5.2 Title, boundaries and requisitions Cl 10.0 Remedies on default
Fair Trading Act 1986 s9 Misleading and deceptive conduct generally No person shall, in trade, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
s14 FTA 1986 Prohibits false representations in relation to land. “Persons” “In trade” “False representation” Gives rise to criminal liability
Remedies Injunction Orders for corrective advertising Other orders eg damages S14 breach – s40 criminal liability
Answer -Define legal misrepresentation -Apply this definition to the facts. I want your opinion on whether there has been misrepresentation. -Identify potential claim under Contractual Remedies Act 1979 -Discuss remedies under CRA 1979 -Damages -Cancellation -Define “substantiality test” that is used to determine whether the contract is able to be cancelled. -Apply this test to the facts.
Homework... Next weeks reading: Real Estate Agents Act 2008 – CCH Conveyancing Law Handbook Chpt 10 – Manual Chpt 5