Part 2Contracts for sale of land or businesses

Part 2—Contracts for sale of land or businesses 5—Cooling-off (1) Subject to this section, a purchaser under a contract for the sale of land or a small business may, by giving the vendor written notice before the prescribed time of the purchaser's intention not to be bound by the contract, rescind the contract. (2) The notice may be given— (a) by giving it to the vendor personally; or (b) by posting it by registered post to the vendor at the vendor's last known address (in which case the notice is taken to have been given when the notice is posted); or (c) by transmitting it by fax or email to a fax number or email address provided by the vendor to the purchaser for the purpose (in which case the notice is taken to have been given at the time of transmission); or (d) without limiting the foregoing, if an agent is authorised to act on behalf of the vendor— (i) by leaving it for the agent with a person apparently responsible to the agent at the agent's address for service; or (ii) by posting it by registered post to the agent at the agent's address for service, (in which case the notice is taken to have been given when the notice is left at or posted to that address). (3) If in any legal proceedings the question arises whether a notice has been given in accordance with this section, the onus of proving the giving of the notice lies on the purchaser. (4) If a contract is rescinded under this section, the purchaser is entitled to the return of money paid under the contract, but the vendor may retain money paid by the purchaser— (a) in consideration of an option to purchase the land or small business subject to the sale; or (b) by way of deposit in respect of the sale if the deposit does not exceed— (i) $100; or (ii) if a greater amount is fixed by regulation—that amount. (5) A vendor or stakeholder who, before the prescribed time, demands or requires the payment of money by a purchaser in respect of the sale of land or a small business other than— (a) money payable in consideration of an option to purchase the land or small business; or (b) a deposit— (i) in the case of the sale of land—of $100 or such greater amount as may be fixed by regulation; or (ii) in the case of the sale of a small business—of an amount not exceeding 10% of the total consideration for the sale specified in the contract, (6) In proceedings for an offence against subsection (5), if it is proved that the defendant received money from the purchaser, it will be presumed, in the absence of proof to the contrary, that the defendant demanded or required the payment of that money. (7) This section does not apply in respect of a contract for the sale of land or a small business where— (a) in the case of a contract for the sale of land other than residential land, the purchaser is a body corporate; or (b) the purchaser has, before entering into the contract, received independent advice from a legal practitioner and the legal practitioner has signed a certificate in the form approved by regulation as to the giving of that advice; or (c) the sale is by auction; or (d) the land or business is offered for sale, but not sold, by auction and a person by whom, or on whose behalf, a bid for the land or business was made at the auction enters into the contract on the same day as the auction; or (e) the sale is by tender and the contract is made— (i) in the case of the sale of land—not less than five clear business days after the day fixed for the closing of tenders and not less than two clear business days after the vendor's statement is served on the purchaser; or (ii) in the case of the sale of a small business—not less than five clear business days after the day fixed for the closing of tenders and not less than five clear business days after the vendor's statement is served on the purchaser; or (f) the contract is made by the exercise by the purchaser of an option to purchase the land or business subject to the sale and the option is exercised— (i) in the case of the sale of land—not less than five clear business days after the grant of the option and not less than two clear business days after the vendor's statement is served on the purchaser; or (ii) in the case of the sale of a small business—not less than five clear business days after the grant of the option and not less than five clear business days after the vendor's statement is served on the purchaser; or (g) in the case of a contract for the sale of a small business (including any such contract that also provides for the sale of land), the vendor's statement has been served on the purchaser not less than five clear business days before the making of the contract; or (h) in the case of a contract for the sale of land, the contract provides also for the sale of a business that is not a small business. (8) In this section— agent's address for service of a notice means the address last notified to the Commissioner as the agent's address for service under the Land Agents Act 1994 or an address nominated by the agent to the purchaser for the purpose of service of the notice; prescribed time means— (a) in relation to the sale of land— (i) where the vendor's statement is served on the purchaser before the making of the contract—the end of the second clear business day after the day on which the contract was made; or (ii) where the vendor's statement is served on the purchaser after the making of the contract—the end of the second clear business day from the day on which the statement was served, or the time settlement takes place (whichever is the earlier); (b) in relation to the sale of a small business— (i) the end of the fifth clear business day after the day on which the vendor's statement is served on the purchaser; or (ii) the time settlement takes place, whichever is the earlier. 6—Abolition of instalment purchase or rental purchase arrangements (1) A contract for the sale of land or a business that provides for the payment of part of the purchase price of the land or business (except a deposit) before the date of settlement is void. (2) Money paid under a contract that is void under subsection (1) may be recovered by action in any court of competent jurisdiction. (2a) A contract under which a person has— (a) a right or obligation to purchase land; but (b) an obligation to pay rent in respect of a period of occupation of the land of more than 6 months before the right is exercised or the purchase completed, is voidable at any time at the option of that person. (2b) A person will not be taken to have elected to affirm a contract that is voidable under subsection (2a) by reason of a payment made under the contract. (2c) If a person avoids a contract that is voidable under subsection (2a), the person may, by action in any court of competent jurisdiction, recover any amount paid under the contract in excess of what would have been fair market rent for any period for which the person has occupied the land under the contract. deposit means an amount paid by a purchaser in a lump sum, or in not more than three instalments, towards the purchase price of land or a business before the date of settlement; rent includes any amounts payable in respect of a right to occupy land. (4) This section does not apply in relation to— (a) a contract for the sale of land by the South Australian Housing Trust; and (b) a contract for the sale of land by a body specified by regulation; and (c) a contract for the sale of land of a kind prescribed by the regulations. 7—Particulars to be supplied to purchaser of land before settlement (1) A vendor of land must, at least 10 clear days before the date of settlement, serve, or cause to be served, on the purchaser a statement in the form required by regulation (signed by the vendor) setting out— (a) the rights of a purchaser under section 5; and (b) the particulars required by regulation of— (i) all mortgages, charges and prescribed encumbrances affecting the land subject to the sale; and (ii) if the vendor acquired a relevant interest in the land within 12 months before the date of the contract of sale—all transactions relating to the acquisition of the interest occurring within that period; and (iii) any prescribed matters. (2) For the purposes of subsection (1)(b)(ii), where a person enters into a transaction for the purpose of obtaining title to land and an instrument of transfer, conveyance or other instrument relating to the transaction is lodged at the Land Titles Registration Office or the General Registry Office, the person will be taken to have obtained title to the land not later than the day on which the instrument of transfer, conveyance or other instrument is so lodged. (3) The statement need not include reference to charges arising from the imposition of rates or taxes less than 12 months before the date of service of the statement. (4) This section— (a) applies only to the sale of land where the interest being sold is an estate in fee simple or leasehold interest granted by the Crown under an Act; (b) does not apply where land is sold under a contract for the sale of a business. acquired a relevant interest in the land means— (a) obtained title to the land; or (b) obtained an option to purchase the land; or (c) entered into a contract to purchase the land (whether on the vendor's own behalf or on behalf of another); or (d) obtained an interest in the land of a category prescribed by regulation for the purposes of this definition. 8—Particulars to be supplied to purchaser of small business before settlement (1) A vendor of a small business must, at least five clear business days before the date of settlement, serve, or cause to be served, on the purchaser a statement in the form required by regulation (signed by the vendor) setting out— (a) the rights of a purchaser under section 5; and (b) the prescribed particulars in relation to the business; and (c) where land is sold under the contract for sale of the business—the particulars that would be required in a vendor's statement under section 7 if the land were sold separately. (2) The statement must have endorsed on, or attached to, it a certificate in the form required by regulation (signed by or on behalf of a qualified accountant, not being the vendor) certifying— (a) that the accountant or a person acting on behalf of the accountant has examined the accounts of the business; and (b) that the financial particulars disclosed under subsection (1)(b) appear to be in conformity with the accounts. 9—Verification of vendor's statement (1) Where a vendor's statement is required to contain particulars in relation to land, and an agent acts on behalf of the vendor— (a) the agent must ensure that the prescribed inquiries are made into the matters as to which particulars are required in the statement; and (b) the agent must sign a certificate in the form required by regulation— (i) that the responses to the inquiries confirm the completeness and accuracy of the particulars contained in the statement; or (ii) that, subject to stated exceptions, the responses to the inquiries confirm the completeness and accuracy of those particulars; and (ba) the agent must ensure that a copy of the certificate is given to the vendor within 48 hours after the signing of the certificate; and (c) the vendor must ensure that the certificate is endorsed on, or attached to, the vendor's statement at the time of service on the purchaser. (2) Where a vendor's statement is required to contain particulars in relation to land and no agent acts on behalf of the vendor but an agent acts on behalf of the purchaser— (a) the agent must ensure that the prescribed inquiries are made into the matters as to which particulars are required in the statement; and (b) the agent must sign a certificate in the form required by regulation— (i) that the responses to the inquiries confirm the completeness and accuracy of the particulars contained in the statement; or (ii) that, subject to stated exceptions, the responses to the inquiries confirm the completeness and accuracy of those particulars; and (ba) the agent must ensure that a copy of the certificate is given to the vendor within 48 hours after the signing of the certificate; and (c) the agent must serve the certificate or cause it to be served on the purchaser— (i) when the vendor's statement is required under section 7—at least ten clear days before the date of settlement; (ii) when the vendor's statement is required under section 8—at least five clear business days before the date of settlement. 10—Variation of particulars (1) A vendor's statement must be accurate as at the date of service on the purchaser. (2) If after the service of a vendor's statement but before the purchaser signs the contract circumstances change so that if a fresh statement were to be prepared there would have to be some change in the particulars contained in the statement, then the vendor's statement will be regarded as defective until a notice of amendment is served and when such a notice is served it will be presumed that the vendor's statement was served, as amended by the notice, on the date of service of the notice. 11—Agent or auctioneer to make statements available before auction (1) If land or a small business is to be offered for sale by auction, the following provisions apply: (a) if an agent is acting on behalf of the vendor in the sale, the agent must ensure that— (i) the vendor's statement is available for perusal by members of the public— (A) at the office of the agent or auctioneer for at least 3 consecutive business days immediately preceding the auction; and (B) at the place at which the auction is to be conducted for at least 30 minutes immediately before the auction commences; and (ii) all reasonable steps are taken to give prospective purchasers notice of the times and places at which the vendor's statement may be inspected before the auction; (b) if no agent is acting on behalf of the vendor in the sale, the auctioneer must ensure that the vendor's statement is available for perusal by members of the public— (i) at the office of the auctioneer for at least 3 consecutive business days immediately preceding the auction; and (ii) at the place at which the auction is to be conducted for at least 30 minutes immediately before the auction commences. (2) An agent will be taken to have complied with subsection (1)(a)(ii) in relation to a prospective purchaser if the agent or a sales representative employed by the agent— (a) incorporates the notice with promotional material for the sale that the agent or sales representative delivers to the purchaser; or (b) offers to deliver the notice, or promotional material for the sale incorporating the notice, to the purchaser but the purchaser refuses to take it; or (c) publishes the notice in a prominent position— (i) in promotional material for the sale on the agent's website or in a newspaper circulating generally throughout the State or the area in which the land or business is situated; or (ii) on the signboard advertising the sale at the land or at the premises of the small business. 12—Councils, statutory authorities and prescribed bodies to provide information (1) A council must within eight clear business days after receiving a request for information under this section provide the applicant with information reasonably required as to— (a) any charge or prescribed encumbrance over land within the council's area of which the council has the benefit; or (b) insurance under Division 3 of Part 5 of the Building Work Contractors Act 1995, in relation to a building on land within the council's area. (2) A statutory authority or prescribed body must within eight clear business days after receiving a request for information under this section provide the applicant with information reasonably required as to— (a) any charge or prescribed encumbrance over land of which the statutory authority or prescribed body has the benefit; or (b) any other prescribed matter. (3) An application under this section must be accompanied by the fee fixed by regulation and any documents that are, in accordance with the regulations, to accompany the application. 13—False certificate A person who gives a certificate under this Part knowing it to be false in a material particular is guilty of an offence. Maximum penalty: $20 000 or imprisonment for 1 year. 13A—Prescribed notice to be given to purchaser (1) A vendor of residential land must take all reasonable steps to deliver the prescribed notice to a purchaser when the purchaser is present on the land at the invitation of the vendor in order to inspect the land prior to its sale. (2) A vendor of land will be taken to have complied with subsection (1) in relation to a purchaser who is present on the land if the vendor— (a) incorporates the prescribed notice with promotional material that the vendor delivers to the person; or (b) offers to deliver the notice, or promotional material incorporating the notice, to the person but the person refuses to take it; or (c) has delivered the notice, or promotional material incorporating the notice, to the person when the person has been present on the land on a previous occasion; or (d) in the case of an inspection that is open to the general public—displays the notice in a prominent position on the land and so as to indicate to persons inspecting the land that a copy of the notice may be taken by those persons. (3) A vendor of residential land must ensure that the prescribed notice is attached to a vendor's statement when the vendor's statement is served on a purchaser under this Part. (4) An auctioneer who proposes to offer residential land for sale by auction must ensure that the prescribed notice is attached to a vendor's statement when the vendor's statement is made available for perusal by members of the public before the auction. (5) If an agent is acting on behalf of a vendor of residential land in connection with sale of the land, this section applies as if the obligations imposed by this section on the vendor were instead imposed on the agent. (6) In this section— prescribed notice means a notice, in the form prescribed by regulation, containing information of the kind required by regulation relating to matters concerning land that might adversely affect— (a) a purchaser's enjoyment of the land; or (b) the safety of persons on the land; or (c) the value of the land. 14—Offence to contravene Part A person who contravenes or fails to comply with a provision of this Part other than section 13 (whether or not the contravention or non-compliance is declared to be an offence) is guilty of an offence. Maximum penalty: $10 000. 15—Remedies (1) Where a vendor's statement is not given or certified as required by this Part, or the statement given is defective, the purchaser may apply to a court of competent jurisdiction for an order under this section. (2) On the hearing of an application under subsection (1) the Court may, if satisfied that the purchaser has been prejudiced by the failure to comply with this Part, exercise any one or more of the following powers: (a) avoid the contract and make such other orders as the Court thinks necessary or desirable to restore the parties to the contract to their respective positions before entering into the contract; (b) award such damages as may, in the opinion of the Court, be necessary to compensate loss arising from the non-compliance; (c) make such other orders as may be just in the circumstances. (3) Damages may be awarded under subsection (2)(b) against— (a) the vendor; (b) if it appears that the purchaser has been prejudiced by a failure on the part of an agent to carry out duties imposed by this Part—the agent, or both. 16—Defences It is a defence to a charge of an offence, or to civil proceedings, under this Part arising from an alleged contravention or non-compliance with a requirement of this Part if the defendant proves— (a) that the alleged contravention or non-compliance was unintentional and did not occur by reason of the defendant's negligence or the negligence of an officer, employee or agent of the defendant; or (b) that the alleged contravention or non-compliance was due to reliance on information provided by a person or body to which an inquiry to obtain the information is, in accordance with the regulations, required to be made; or (c) that— (i) the purchaser received independent advice from a legal practitioner in relation to waiving compliance with that requirement; and (ii) the legal practitioner signed a certificate in the form required by regulation as to the giving of that advice; and (iii) the purchaser waived compliance with that requirement by signing an instrument of waiver in the form required by regulation. 17—Service of vendor's statement etc A vendor's statement, a notice of amendment to a vendor's statement or a certificate of an agent acting on behalf of a purchaser may be served on a purchaser— (a) by delivering it to the person personally; or (b) by posting it by registered post to the person at the person's last known address.