8A Land which can be disposed of without being subdivided
(1) The following land can be dealt with without being subdivided—
(a) any land under the operation of the Transfer of Land Act 1958 which is—
S. 8A(1)(a)(i) amended by No. 48/1991 s. 53(2)(a).
(i) a lot on a plan of subdivision certified or registered under the Subdivision Act 1988 and which is not the subject of a later registered plan; or
S. 8A(1)(a)(ii) amended by No. 48/1991 s. 53(2)(b).
(ii) an allotment on the latest Crown plan for disposal in fee simple of Crown land which is not the subject of a later registered plan; or
S. 8A(1)(a)(iii) amended by No. 48/1991 s. 53(2)(c).
(iii) an allotment on a plan of subdivision approved by the Registrar under section 97 of the Transfer of Land Act 1958 or on any map or plan deposited or lodged under section 97 of the Transfer of Land Act 1954 or a corresponding previous or subsequent enactment, which is not the subject of a later registered plan; or
S. 8A(1)(a)(iv) substituted by No. 48/1991 s. 53(2)(d).
(iv) a lot on a registered plan of strata subdivision, subject to any restriction on the plan, which is not the subject of a later registered plan; or
S. 8A(1)(a)(v) substituted by No. 48/1991 s. 53(2)(d).
(v) a lot on a registered cluster plan, subject to any restriction on the plan, which is not the subject of a later registered plan; or
(vi) a parcel of land for which a declaration has been given under section 569D(3A) of the Local Government Act 1958 if the registration of any instrument or dealing to which the declaration relates occurs within 5 years of the commencement of section 44 of the Subdivision Act 1988; or
S. 8A(1)(a)(vii) amended by No. 48/1991 ss 53(2)(e), 57.
(vii) the whole of the land in a folio of the Register under the Transfer of Land Act 1958 which is not the subject of a later registered plan; or
S. 8A(1)(a)(viii) substituted by No. 48/1991 s. 53(2)(f).
(viii) a separate parcel of land or a separate part of a parcel of land if the parcel or part existed and could be sold separately prior to the commencement of section 44 of the Subdivision Act 1988 (whether the land is disposed of before or after that commencement); or
S. 8A(1)(a)(ix) repealed by No. 48/1991 s. 53(2)(g).
(b) any land not under the Transfer of Land Act 1958 which is—
S. 8A(1)(b)(i) substituted by No. 48/1991 s. 53(3)(a).
(i) an allotment on the latest Crown plan for disposal in fee simple of Crown land which is not the subject of a later plan of subdivision sealed under section 569B of the Local Government Act 1958; or
S. 8A(1)(b)(ii) amended by No. 48/1991 s. 53(3)(b).
(ii) a parcel of land or a separate part of a parcel of land granted by a conveyance dated more than 15 years before the commencement of section 44 of the Subdivision Act 1988; or
S. 8A(1)(b)(iia) inserted by No. 48/1991 s. 53(3)(c).
(iia) a separate parcel of land or a separate part of a parcel of land granted by a conveyance dated 15 or less than 15 years before the commencement of section 44 of the Subdivision Act 1988 and which lawfully subdivided the land; or
(iii) a parcel of land on a plan of subdivision sealed under section 569B of the Local Government Act 1958 before 1 March 1963; or
(iiia) a parcel of land on a plan of subdivision containing not more than 2 allotments sealed under section 569B of the Local Government Act 1958 on or after 1 March 1963; or
S. 8A(1)(b)(iv) substituted by No. 48/1991 s. 53(3)(d).
(iv) a separate parcel of land or a separate part of a parcel of land if the parcel or part existed and could be sold separately prior to the commencement of section 44 of the Subdivision Act 1988 (whether the land is disposed of before or after that commencement); or
(c) any land (whether or not under the operation of the Transfer of Land Act 1958) which is a part of any land referred to in a subparagraph of paragraph (a) or (b), if the remainder of that land—
S. 8A(1)(c)(i) amended by No. 48/1991 s. 53(4)(a).
(i) was disposed of under section 569(2A) of the Local Government Act 1958, to the Crown or a public statutory body; or
(ii) was compulsorily acquired by an acquiring authority under the Land Acquisition and Compensation Act 1986 or any corresponding previous enactment; or
S. 8A(1)(c)(iii) amended by No. 48/1991 s. 53(4)(a)(b).
(iii) was disposed of to an adjoining owner under section 569D(3A) of the Local Government Act 1958; or
S. 8A(1)(c)(iv) inserted by No. 48/1991 s. 53(4)(b).
(iv) was purchased by a person or transferred to a municipality under section 527 of the Local Government Act 1958 or any corresponding previous enactment; or
S. 8A(1)(c)(iva) inserted by No. 48/1991 s. 53(4)(b).
(iva) was proclaimed as a public highway before the commencement of the Subdivision Act 1988; or
S. 8A(1)(c)(v) inserted by No. 48/1991 s. 53(5).
(v) is transferred or disposed of under section 207 of the Local Government Act 1989 and a plan of subdivision is not required under that section.
S. 8A(2) inserted by No. 48/1991 s. 53(6).
(2) Expressions used in this section and defined in the Subdivision Act 1988 have the same meanings in this section as they have in that Act.
S. 8A(3) inserted by No. 48/1991 s. 53(6).
(3) For the purposes of subsection (1)(a)(viii) and (b)(iv), land must be taken to be a separate parcel or a separate part of a parcel of land which existed and could be sold separately prior to the commencement of section 44 of the Subdivision Act 1988 only if the parcel or part existed prior to that commencement and—
(a) the land—
(i) is under the operation of the Transfer of Land Act 1958; and
(ii) does not fall under subsection (1)(a)(i) to (vii); and
(iii) is not part of a plan of consolidation; and
(iv) either—
(A) is not part of an allotment on a plan sealed by a Council or confirmed under the Local Government Act 1958 or of a Crown grant issued on or after 1 August 1969 and showing the allotment in two or more pieces; or
(B) is part of an allotment on a plan or of a Crown grant mentioned in sub-subparagraph (A) but is dealt with by a person who is the registered proprietor of that and no other part of the land in the allotment or grant; or
(C) is part of the land in a folio of the register, but that part does not touch on any other land in the folio and is not part of an allotment on a plan or of a Crown grant mentioned in sub‑subparagraph (A); or
(b) the land—
(i) is not under the operation of the Transfer of Land Act 1958; and
(ii) does not fall under subsection (1)(b)(i) to (iiia); and
(iii) either—
(A) is not part of an allotment on a plan sealed by a Council or confirmed under the Local Government Act 1958 on or after 1 August 1969 showing that allotment in two or more pieces; or
(B) is part of an allotment mentioned in sub-subparagraph (A) but is dealt with by a person who is the owner of an estate in fee simple in that part and no other part; or
(C) is part of a parcel of land granted by a conveyance which lawfully brought about a subdivision, if that part does not touch on any other part of the parcel and is not part of an allotment mentioned in sub-subparagraph (A); or
(c) the land is part of a plan of consolidation approved by the Registrar and is dealt with by a person who is the registered proprietor of that part and no other part of the land in the plan.
S. 9
amended by Nos 7052 s. 2(g)(i)(ii), 8661 s. 40(a)(b), 9128
s. 8(2)(a)–(c), 10216
s. 4(a)–(c), repealed by No. 53/1988 s. 45(Sch. 2 item 43).
S. 9AA inserted by No. 10216 s. 5.
9AA Sale of land prior to approval of plan
S. 9AA(1) amended by Nos 53/1988 s. 45(Sch. 2 items 44, 46), 48/1991 s. 55(1)(a)(b), 14/2019 s. 5(1).
(1) A vendor must not enter into an off-the-plan contract with any person, except a statutory body or authority, unless—
S. 9AA(1)(a) amended by Nos 53/1988 s. 45(Sch. 2 item 45), 14/2019 s. 5(2).
(a) the off‑the-plan contract provides that the deposit moneys payable by the purchaser are to be paid—
S. 9AA(1)(a)(i) amended by Nos 53/1988 s. 45(Sch. 2 item 45), 35/1996 s. 453(Sch. 1 item 73.2(a)(i)), 75/2006 s. 192(Sch. 2 item 5.2), 63/2010 s. 57(1)(a)(i).
(i) to a legal practitioner, conveyancer or licensed estate agent acting for the vendor to be held by the legal practitioner, conveyancer or licensed estate agent on trust for the purchaser until the registration of the plan of subdivision; and
S. 9AA(1)(a)(ii) amended by Nos 53/1988 s. 45(Sch. 2 item 45), 35/1996 s. 453(Sch. 1 item 73.2(a) (ii)), 11/2001 s. 3(Sch. item 67.2(a)), repealed by No. 63/2010 s. 57(1)(a)(ii).
S. 9AA(1)(b) amended by No. 53/1988 s. 45(Sch. 2 item 45).
(b) the deposit moneys payable under the contract do not exceed 10 per cent of the purchase price of the lot.
Note to s. 9AA(1)(b) inserted by No. 63/2010 s. 57(1)(b).
Note
The expression "does not exceed 10 per cent" means that a deposit may be up to and including 10 per cent.
S. 9AA(1A) inserted by No. 63/2010 s. 57(2) (as amended by No. 56/2012 s. 26), amended by No. 14/2019 s. 5(3).
(1A) An off-the-plan contract must contain a conspicuous notice to the purchaser stating—
(a) that subject to the limit set by subsection (1)(b), the purchaser may negotiate with the vendor about the amount of deposit moneys payable under the contract; and
S. 9AA(1A)(b) amended by No. 14/2019 s. 5(4).
(b) that a substantial period of time may elapse between the day on which the purchaser signs the off-the-plan contract and the day on which the purchaser becomes the registered proprietor of the lot; and
S. 9AA(1A)(c) amended by No. 14/2019 s. 5(5).
(c) that the value of the lot may change between the day on which the purchaser signs the off‑the-plan contract and the day on which the purchaser becomes the registered proprietor.
S. 9AA(2) amended by Nos 53/1988 s. 45(Sch. 2 items 46, 47), 35/1996 s. 453(Sch. 1 item 73.2(b)), 11/2001 s. 3(Sch. item 67.2(b)), 75/2006 s. 192(Sch. 2 item 5.2), substituted by No. 63/2010 s. 57(3), amended by No. 14/2019 s. 5(6).
(2) The deposit moneys paid by the purchaser before the registration of the plan under an off-the-plan contract must be paid to the legal practitioner, conveyancer or licensed estate agent acting for the vendor.
S. 9AA(3) amended by No. 35/1996 s. 453(Sch. 1 item 73.2(c)), repealed by No. 63/2010 s. 57(4).
S. 9AA(4) amended by Nos 35/1996 s. 453(Sch. 1 item 73.2(d)), 11/2001 s. 3(Sch. item 67.2(b)), repealed by No. 63/2010 s. 57(4).
S. 9AA(5) repealed by No. 53/1988 s. 45(Sch. 2 item 48), new s. 9AA(5) inserted by No. 48/1991 s. 55(2), amended by No. 14/2019 s. 5(7).
(5) A person may sell land under an off-the-plan contract despite anything in section 8A.
S. 9AA(6) amended by Nos 53/1988 s. 45(Sch. 2 items 49, 50) (as amended by No. 47/1989 s. 19(z)), 48/1991 s. 55(1)(c), 11/2001 s. 3(Sch. item 67.2(c)), substituted by No. 63/2010 s. 57(5).
(6) In this section (except subsection (1)(b)) and section 9AF, deposit moneys in relation to the sale of a lot includes any moneys which are part of the purchase price received by the vendor or on behalf of the vendor before the purchaser becomes entitled to a transfer or conveyance of the lot.
S. 9AA(7) amended by No. 53/1988 s. 45(Sch. 2 item 50) (as amended by No. 47/1989 s. 19(za)), repealed by No. 14/2019 s. 5(8).
S. 9AAA inserted by No. 53/1988 s. 45(Sch. 2 item 51) (as amended by No. 47/1989 s. 19(zb)(i)(ii)), substituted by No. 69/2006 s. 217.
9AAA Insurance
If an owners corporation for a plan of subdivision will be required by the Owners Corporations Act 2006 to effect insurance after the plan is registered, the vendor must effect insurance in accordance with that Act as if the vendor were the owners corporation, until—
(a) if the owners corporation meets within 6 months after the plan is registered, the end of one month after its first meeting; and
(b) in any other case, the end of 6 months after the plan is registered.
S. 9AB inserted by No. 10216 s. 5.
9AB Disclosure of works
S. 9AB(1) amended by Nos 53/1988 s. 45(Sch. 2 items 53, 54), 14/2019 s. 6(1).
(1) The vendor must disclose in an off-the-plan contract details of any works affecting the natural surface level of the land in the lot to which the contract relates or any land abutting the lot which is in the same subdivision as the lot which to the vendor's knowledge—
S. 9AB(1)(a) amended by No. 53/1988 s. 45(Sch. 2 item 52).
(a) have been carried out on that land after the certification of the plan of subdivision and before the date of the contract; or
(b) are at the date of the contract being carried out or proposed to be carried out on that land.
S. 9AB(2) amended by Nos 53/1988 s. 45(Sch. 2 items 53, 54), 14/2019 s. 6(2).
(2) The vendor under an off-the-plan contract must disclose to the purchaser details of any works affecting the natural surface level of the land in the lot to which the contract relates or of any land abutting the lot which is in the same subdivision as the lot which have not been disclosed in the off-the-plan contract and which to the vendor's knowledge—
S. 9AB(2)(a) amended by No. 53/1988 s. 45(Sch. 2 item 55).
(a) have been carried out on that land after the date of the contract and before the registration of the plan of subdivision; or
S. 9AB(2)(b) amended by No. 53/1988 s. 45(Sch. 2 item 55).
(b) after the date of the contract and before the registration of the plan of subdivision have been commenced to be carried out or are proposed to be carried out on the land.
S. 9AB(3) amended by No. 14/2019 s. 6(3).
(3) The vendor must make a disclosure under subsection (2) in writing as soon as practicable after the details required to be disclosed come to the knowledge of the vendor.
S. 9AB(4) amended by No. 14/2019 s. 6(4).
(4) If—
(a) any works referred to in subsection (1) or (2) have been, are being or are to be carried out at the direction of a municipality or public authority; and
(b) the vendor has been required to submit plans of the works or proposed works to the municipality or public authority—
the vendor must—
S. 9AB(4)(c) amended by No. 14/2019 s. 6(5).
(c) in the case of a disclosure under subsection (1), include a copy of the plans in the off‑the-plan contract; and
(d) in the case of a disclosure under subsection (2), provide the purchaser with a copy of the plans at the time of that disclosure.
S. 9AB(5) amended by No. 14/2019 s. 6(6).
(5) If the vendor under an off-the-plan contract knowingly or recklessly—
(a) supplies false information to the purchaser under this section; or
(b) fails to supply all the information required to be supplied to the purchaser under this section—
the vendor shall be guilty of an offence and liable to a penalty of not more than 50 penalty units.
S. 9AC inserted by No. 10216 s. 5.
9AC Amendments to plan
S. 9AC(1) amended by Nos 53/1988 s. 45(Sch. 2 item 56), 14/2019 s. 7(1).
(1) If after an off-the-plan contract has been entered into and before the registration of the relevant plan of subdivision an amendment to the plan is required by the Registrar or requested by the vendor, the vendor shall within 14 days after the receipt of the requirement of the Registrar or the making of the request by the vendor (as the case requires) advise the purchaser in writing of the proposed amendment.
S. 9AC(2) amended by Nos 53/1988 s. 45(Sch. 2 item 57), 14/2019 s. 7(2).
(2) The purchaser may rescind an off-the-plan contract within 14 days after being advised by the vendor under subsection (1) of an amendment to the plan of subdivision which will materially affect the lot to which the contract relates.
S. 9AD inserted by No. 10216 s. 5.
9AD Possession
S. 9AD(1) amended by Nos 53/1988 s. 45(Sch. 2 items 58, 59) (as amended by No. 47/1989 s. 22(c)), 14/2019 s. 8(1).
(1) The purchaser under an off-the-plan contract is not entitled to possession of the lot to which the contract relates before the registration of the relevant plan of subdivision.
S. 9AD(2) amended by Nos 53/1988 s. 45(Sch. 2 item 59) (as amended by No. 47/1989 s. 22(c)), 14/2019 s. 8(2).
(2) The vendor under an off-the-plan contract must not require the purchaser under the contract to take possession of the lot to which the contract relates before the registration of the relevant plan of subdivision.
50 penalty units.
S. 9AD(3) amended by Nos 53/1988 s. 45(Sch. 2 item 58) (as amended by No. 47/1989 s. 22(c)), 14/2019 s. 8(3).
(3) The vendor must allow the purchaser under an off-the-plan contract reasonable access to the lot for any purpose connected with the proposed development or use of the lot.
S. 9AD(4) inserted by No. 53/1988 s. 45(Sch. 2 item 58) (as amended by No. 47/1989 s. 19(zc)).
(4) This section does not apply to possession of a lot by a purchaser in consideration of a payment of an occupation fee.
S. 9AE (Heading) inserted by No. 14/2019 s. 9(1).
S. 9AE inserted by No. 10216 s. 5.
9AE Rescission of an off-the-plan contract
S. 9AE(1) amended by Nos 53/1988 s. 45(Sch. 2 items 60, 61), 56/2012 s. 27, 14/2019 s. 9(2).
(1) If the vendor under an off-the-plan contract fails to comply with section 9AA(1) or (2) or 9AB the purchaser may rescind the off-the-plan contract at any time before the registration of the plan of subdivision.
S. 9AE(2) amended by Nos 53/1988 s. 45(Sch. 2 items 60, 62) (as amended by No. 47/1989 s. 19(zd)), 48/1991 s. 55(3)(a)(b), 14/2019 s. 9(3).
(2) If the plan of subdivision is not registered within 18 months after the date of an off-the-plan contract for the sale of a lot on that plan of subdivision, or, if the contract specifies another period, before the end of that specified period, the purchaser may, at any time after the expiration of that period but before the plan is so registered, rescind the contract.
S. 9AF inserted by No. 10216 s. 5.
9AF Repayment of deposit moneys
(1) If—
S. 9AF(1)(a) amended by Nos 53/1988 s. 45(Sch. 2 item 63), 14/2019 s. 10(1).
(a) the vendor rescinds an off-the-plan contract as a result of a default by the purchaser, the vendor is immediately entitled to be paid the deposit money in the vendor's own right; or
S. 9AF(1)(b) amended by Nos 53/1988 s. 45(Sch. 2 item 63), 48/1991 s. 55(4), 14/2019 s. 10(2).
(b) the purchaser rescinds an off-the-plan contract as a result of a default by the vendor or pursuant to section 9AC or 9AE, the purchaser is entitled to the immediate return of the deposit moneys less the amount of any occupation fees paid by the purchaser.
(2) Nothing in subsection (1) shall limit or affect the power of the court—
(a) to order the repayment of the deposit moneys (whether that order is made pursuant to section 49(2) of the Property Law Act 1958 or otherwise); or
(b) to relieve a purchaser against forfeiture of the deposit.
S. 9AG inserted by No. 53/1988 s. 46 (as amended by No. 47/1989 s. 19(s)(t)(u)), repealed by No. 48/1991 s. 55(5).
S. 9AH inserted by No. 53/1988 s. 46 (as amended by No. 47/1989 s. 19(v)).
9AH Where land sold does not accord with land in plan
(1) This section applies to the sale of land if, at date the contract is entered into, section 20A of the Subdivision Act 1988 applies to the land and has not been complied with.
(2) If a contract for the sale of land to which this section applies has been entered into, the purchaser may avoid the sale if—
(a) the contract has not been completed; and
(b) the purchaser has not disposed of the land; and
(c) after the date the contract is entered into, the applicant under the Subdivision Act 1988 gives to the Council advice by a licensed surveyor under section 20A of that Act that there is a substantial discrepancy between any boundary of the land and that boundary as shown on the plan; and
(d) not more than 18 months have passed since the contract was entered into.
(3) If the purchaser avoids the sale, all money paid by the purchaser under the contract is recoverable by the purchaser except for any money paid by the purchaser as an occupation fee for any time during which the purchaser was in actual occupation of the land the subject of the sale.
S. 9A
inserted by No. 9128 s. 8(1), amended by Nos 9427 s. 6(1)(Sch. 5 item 163), 9720 s. 3(2)(Sch. item 90), 44/1987 s. 36(2), repealed by No. 53/1988 s. 45(Sch. 2 item 64).
S. 10 amended by Nos 7228 s. 7(Sch. 5 Pt 3(a)(b)), 8661
s. 40(c)–(e), 121/1986 s. 112, substituted by No. 53/1988 s. 45(Sch. 2 item 64) (as amended by No. 47/1989 s. 19(ze)(i)).