55Residential terms contracts

55 Residential terms contracts

old residential terms contract means a terms contract for the sale of any residential land entered into before the commencement of section 20 of the 2019 Act and in force immediately before that commencement, that would, if it were entered into on or after that commencement, be a terms contract to which sections 29EA to 29EC apply.

(2) Despite the commencement of section 20 of the 2019 Act, the amendments made to this Act by sections 19, 20 and 21 of the 2019 Act do not apply to an old residential terms contract.

(3) A purchaser under an old residential terms contract may apply to a court or to VCAT to terminate the contract.

(4) In any proceeding on an application under subsection (3), the court or VCAT may order that the contract is terminated.

(5) The court or VCAT must not make an order under subsection (4) unless the court or VCAT is satisfied that—

(a) at the time the contract was entered into, there was a reasonable prospect that the purchaser would not be able to—

(i) make or, at any time, continue to make the payments required under the contract; or

(ii) obtain, on reasonable terms, the finance necessary to complete the contract; or

(b) the purchaser no longer occupies the land purchased under the contract because the purchaser could not afford the payments required under the contract.

(6) In addition to subsection (5), the court or VCAT must not make an order under subsection (4) unless the court or VCAT is satisfied that it is just and equitable for the contract to be terminated.

(7) In addition to an order made under subsection (4), in any proceeding on an application under subsection (3), the court or VCAT may make an order providing for all or any of the following—

(a) that the purchaser is relieved of any liability under the contract, including any liability for breach of any term or condition of the contract;

(b) that the vendor must repay to the purchaser the whole or any part of the payments made by the purchaser under the contract, except for a sum that represents fair market rent for any period for which the purchaser was—

(i) in actual possession of the land; or

(ii) entitled to the receipt of rents and profits of the land.

(8) The court or VCAT must not make an order under subsection (7) if the court or VCAT is satisfied that the order—

(a) would result in undue financial hardship for the vendor; or

(b) would otherwise not be just and equitable taking into account—

(i) all the circumstances of the matter; and