Henry William Lawyers

Sunset clauses in off-the-plan contracts Off-the-plan vendors should be aware of the Conveyancing Amendment (Sunset Clauses) Act 2015 (NSW), known as the Sunset Clauses Law (Sunset Clauses Law), which limits the circumstances that vendors can rescind an off the plan contract of sale under a sunset clause. This law is introduced in Division 10, section 66ZL of the Conveyancing Act 1919 (NSW) (the Act) (the relevant part of the Act is section 66ZS). A sunset clause is a common provision in an off-the-plan contract which provides a timeframe for when the subject lot must be created by registration of the relevant plan. If the subject lot is not created by the date specified in the sunset clause, the vendor may rescind the contract. Section 66ZS(3) of the Act provides that a vendor may only rescind under a sunset clause if: (a)  the purchaser consents to the vendor’s rescission notice (see below); or (b)  the vendor has obtained an order of the Supreme Court permitting rescission; or (c)  the regulations otherwise permit rescission by the vendor under the sunset clause. However, if a sunset date is missed, a vendor can only rescind if the contract is within the constraints of section 66ZS(4) of the Act. This section mandates that the vendor provides the purchaser with at least 28 days’ notice of their intent to rescind the contract. This notice must include the reasons for the proposed rescission and an explanation for the delay in creating the lot. Read more below: https://lnkd.in/g5-n2AFV #propertylaw #conveyancing

Enforcement of covenants in a contract for sale Bellevue Station Pty Ltd v Consolidated Pastoral Company Pty Ltd & Anor (2024) QCA 47 A recent case in the Queensland Court of Appeal, Bellevue Station Pty Ltd v Consolidated Pastoral Company Pty Ltd & Anor (2024) QCA 47 explores the construction of a covenant in a Contract for Sale. A covenant is a promise or obligation contained in a deed. A restrictive covenant restricts the land from being used a particular way by the covenantor. A positive covenant requires the owner of the land to carry out a certain act and does not ‘run with the land’. For a Covenant to run with the land it must not be personal, and it must benefit or concern the land rather than the individual/person. The Case Bellevue Station Pty Ltd (Bellevue) and NBT Pty Limited as trustee for the Astor Superannuation Trust (NBT) entered into a contract for sale of a property known as Bellevue Station. As part of the sale, NBT disclosed an agreement signed in 2009 (Historical Agreement) between NBT and Consolidated Pastoral Company Pty Ltd (Consolidated). Clause 6 of the Historical Agreement specifically requires any incoming purchaser to be notified of the Historical Agreement and for the parties to enter a new and ‘similar arrangement [agreement] with the continuing party [Bellevue]’. Consolidated refused to sign the agreement with Bellevue. Subsequently NBT and Bellevue entered into a Deed of Assignment whereby NBT sought to assign its rights under the Historical Agreement to Bellevue. Parties proceeded to litigate and the ultimate questions before the court were: 1.   whether there was an implied obligation by Consolidated to enter into the proposed new agreement; and 2.   whether Consolidated entered into a covenant which runs with the land. Read more: https://lnkd.in/gsSwFH67

Gidon Kangisser is promoted to Senior Associate in the corporate law team. Gidon is a corporate and commercial lawyer, with expertise in mergers and acquisitions, capital raisings, corporate advisory and governance, commercial contracts, and board and shareholder disputes.   Gidon has significant experience advising a diverse range of national and international clients of various sizes and from different sectors, including retailers, wholesalers, professional services, logistics, technology, security, education, insurance, health care, and private wealth. Gidon constantly produces excellent quality work, receives glowing client feedback and possesses an impressive drive for continuous learning. It is extremely pleasing for the firm to be able to provide career progression opportunities to outstanding and deserving lawyers. https://lnkd.in/gmUdvk7T

Incentives and clawback provisions in leases Landlords may offer incentive/s to prospective tenants to encourage and attract them to sign a lease. Lease incentives may include rent-free periods, fit-out contributions or rent discounts and sometimes allow the tenant to elect which of these incentives or combination of incentives the contribution is to apply to. It is common practice for the incentive clauses to include clawback provisions which require the tenant to repay the incentive to the landlord if the tenant has defaulted under the lease, or if the tenant assigns the lease prior to the expiry of the term (collectively known as ‘trigger events’). Enforceability In recent years, landlords and tenants have litigated the clawback provision in incentive clauses to determine whether the tenant is obligated to repay the incentives if a trigger event occurs. The courts have frequently referred to the decision made by the Queensland Supreme Court in GWC Property Group Pty Ltd v Higginson [2014] QSC 264 (‘GWC’) in determining whether the tenant’s obligation to repay the incentive was considered a penalty and unenforceable on the tenant instead of a mechanism to protect the landlord’s interests and rights. https://lnkd.in/gbnkYgrc

Agency Agreements – what to be aware of To sell a home in New South Wales (NSW), an agent must hold a real estate agent’s licence issued by NSW Fair Trading. Before marketing the property, the agent must sign a contract with the vendor known as an ‘Agency Agreement’. This legal binding contract outlines the relationship between the agent and the property vendor. Enforceability Under the Property and Stock Agents Act 2002, for an agreement to be enforceable, it must be in writing, signed by both the vendor and the agent, include specific warnings and notices as required by the regulations, and be provided to the vendor by the agent within 48 hours of signing. If any of these requirements are not met, the vendor may still be liable to pay the agent’s commission upon the sale of the property if a Court or Tribunal determines that the non-compliance is minor, the vendor has not suffered any loss and it would be unjust not to enforce the agreement. Exclusivity Period In NSW there are five standard types of agency agreements, including: exclusive, auction, sole, general listing / open, and multiple. Each type serves a different purpose and determines how commission is paid. The most common type is the exclusive agency agreement, which means you engage the named agent exclusively for a certain period. Under an exclusive agency agreement, the agent is entitled to their commission even if the purchaser is introduced to the property by the vendor or someone else. Conversely, a non-exclusive agency agreement allows you to appoint multiple agents, with only the agent who sells the property being entitled to the commission. Agent’s Commission There is no ‘standard’ agents commission fee for agents; however, vendors can negotiate the commission paid to the agent. In NSW, no legislation dictates what real estate agents can charge for selling your property. The commission rate depends on various factors, including your location, the property’s value, the current market conditions, and the specific real estate agent you choose. The best way to evaluate an agent’s commission fee is to assess the value of their services. We recommend creating a checklist of what constitutes value in a real estate agent, as they play a crucial role in negotiating your financial future. #propertylaw https://lnkd.in/dxiXVuJx

Best Law Firms in Australia in 2025 Henry William Lawyers is delighted to announce that our firm has been recognised by Best Lawyers as one of the Best Law Firms in Australia in 2025. The Best Law Firms – Australia publication ranks only the very best – 2% of firms in the market are awarded for professional excellence. Henry William Lawyers has been recognised in the following areas: - Bet-the-Company Litigation - Alternative Dispute Resolution - Insolvency and Reorganization Law - International Arbitration - Litigation - Superannuation Law - Labour and Employment Law We are very proud of our staff and extend a huge thanks to them for helping us achieve this prestigious award. #bestlawyers https://lnkd.in/g-WWFAg2

The Duty of Care of Conveyancers Patterson & Anor v Mamou (t/as De Novo Conveyancing) (2024) NSWDC 47 A recent case in the District Court of NSW Patterson & Anor v Mamou (t/as De Novo Conveyancing) explored the duty of care obligations owed by a conveyancer to a purchaser of property. In addition the case emphasised the importance for building inspectors to carry out a thorough and complete inspection of the entire property. The Case The plaintiffs purchased a property that contained works which had taken place without council approval. Prior to the expiry of the cooling off period under the contract for sale of the property (Contract), the conveyancer’s attention was drawn to Special Condition 14 of the Contract. Special Condition 14 disclosed the conversion of a garage to living area, a conversion of a rear awning and the construction of a sunroom that had been carried out without council approval, and that the purchaser accepted the Property including these works and “shall not make any objection, requisition claim for compensation or purport to rescind this Contract due to this disclosure.” The main issues before the court were: 1. whether the conveyancer disclosed to the purchaser the details of Special Condition 14 of the Contract:- the vendor had carried out building works to the property without council approval ('Special Condition 14'); 2. if not, whether the conveyancer had advised the plaintiff to obtain a building inspection report; and 3. if so, whether there was any proportionate liability attributed to the building inspector. #propertylaw #conveyancing https://lnkd.in/giKcWgii