Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Part 2A Off-the-plan contracts
19A Definitions—pt 2A
(1) In this part:
"delay event", in relation to an off-the-plan contract—
(a) means any event delaying or preventing completion of the contract including—
(i) an event delaying or preventing the construction of a building or other related works; and
(ii) a delay in obtaining any approval, registration, permission, exemption, insurance or any other thing necessary for completion of the contract; but
(b) does not include—
(i) an event delaying or preventing completion of the contract that the buyer has caused or substantially contributed to; and
(ii) an event prescribed by regulation.
"off-the-plan contract" means a contract for the sale of—
(a) a unit for residential use before the units plan for the unit is registered; or
(b) a residence (other than a unit) on land identified in the contract before the certificate of occupancy for the residence is issued; or
(c) vacant land for residential use identified in the contract before the Crown lease for the land is registered.
"rescission provision", in an off-the-plan contract, means a provision that allows the contract to be rescinded—
(a) if a sunset event stated in the contract does not happen before the sunset date for the event; or
(b) if a delay event stated in the contract happens; or
(c) for any other reason prescribed by regulation.
"sunset date", in relation to a sunset event in an off-the-plan contract, means a date, or period in which, the sunset event must happen.
"sunset event", in relation to an off-the-plan contract, means—
(a) for the sale of a unit for residential use—the registration of the units plan for the unit; or
(b) for the sale of a residence—the issue of a certificate of occupancy for the residence; or
(c) for the sale of vacant land for residential use—the registration of the Crown lease for the land; or
(d) the issue of a certificate of occupancy in relation to the unit; or
(e) the issue of a certificate of compliance for the Crown lease for the unit or land; or
(f) an event prescribed by regulation.
(2) In this section:
"certificate of compliance"—see the Planning and Development Act 2007
, dictionary.
"certificate of occupancy"—see the Building Act 2004
, dictionary.
"registered" means registered with the registrar-general under the—
; or
(b) Land Titles (Unit Titles) Act 1970
.
19B Rescission under rescission provision
A seller under an off-the-plan contract containing a rescission provision may only rescind the contract under the provision if—
(a) each buyer under the contract, after being given a notice under section 19C, consents in writing to the rescission; or
(b) the Supreme Court has made an order under section 19D allowing the seller to rescind the contract under the provision; or
(c) a circumstance prescribed by regulation applies.
19C Notice of intention to rescind under rescission provision
(1) A seller under an off-the-plan contract proposing to rescind the contract under a rescission provision must give each buyer under the contract written notice at least 28 days before the day of the proposed rescission.
(2) The written notice must state the following:
(a) the reason for the seller's proposed rescission of the contract;
(b) a statement to the effect that the buyer may, but need not, consent to the proposed rescission;
(c) a statement explaining the effect of section 19B and section 19D (4).
19D Supreme Court may allow rescission
(1) A seller under an off-the-plan contract containing a rescission provision may apply to the Supreme Court for an order allowing the seller to rescind the contract under the provision.
(2) The Supreme Court must not make the order unless the seller satisfies the court that it is just and equitable to make the order.
(3) In deciding whether it is just and equitable to make the order, the Supreme Court must take into account the following:
(a) the terms of the off-the-plan contract, including whether a term is intended to avoid the operation of this part;
(b) whether the seller has acted unreasonably or in bad faith;
(c) whether factors beyond the seller's reasonable control have affected the seller's ability to complete the contract or the viability of the seller's business;
(d) what reasonable actions the seller has taken to—
(i) avoid a rescission event; or
(ii) if a rescission event has happened—minimise the effect of the event on the seller's ability to complete the contract;
(e) whether there is a reasonable prospect of the seller completing the contract;
(f) whether the unit or land the subject of the contract has increased in value;
(g) the effect of the rescission on the buyer;
(h) whether the buyer has been performing their obligations under the contract;
(i) the effect of completing the contract on the seller;
(j) any other matter that the court considers relevant;
(k) any other matter prescribed by regulation.
Examples—par (c)
1 disruption to supply of building materials
2 significant increase in cost of goods and services
3 inability to obtain or retain finance for the development
4 changes in the law affecting the development, building standards etc
5 imposition of conditions on development approval that require major changes to the development
Example—par (e)
the extent to which a development has been completed
Example—par (g)
the ability of the buyer to enter the housing market after rescission of the contract
(4) The seller must pay the costs of the buyer in relation to a proceeding for the order unless the seller satisfies the Supreme Court that the buyer unreasonably withheld consent to the rescission of the off-the-plan contract under the rescission provision.
(5) The Supreme Court may, in dealing with an application made under this section, make any other order, including an order for damages, that the court thinks fit.
(6) In this section:
"rescission event" means—
(a) a delay event; or
(b) an event prescribed by regulation under section 19A (1), definition of "rescission provision", paragraph (c).
19E No automatic rescission of off-the-plan contracts
(1) A rescission provision in an off-the-plan contract—
(a) does not automatically rescind the contract on an event allowing the contract to be rescinded happening; and
(b) only operates to allow the contract to be rescinded by the seller under the contract in accordance with this part.
(2) This section does not affect any right that a buyer under an off-the-plan contract may have to rescind the contract.
19F Review—pt 2A
(1) The Minister must review the operation of this part as soon as practicable after the end of its 2nd year of operation.
(2) The Minister must present a report of the review to the Legislative Assembly within 6 months after the day the review is started.
(3) This section expires 5 years after the day this part commences.