Contract for Sale - Yallingup v2

Transcription

APARTMENT ___________
CONTRACT OF SALE BY OFFER AND ACCEPTANCE
Ph: +61 (08) 9325 2222
PO Box 100, Burswood, WA, 6100
Fax: +61 (08) 9325 2233
e:[email protected]
REF:Harve001:001D Contract for Sale (150420)
INDEX
REIWA CONTRACT FOR SALE OF LAND OR STRATA TITLE BY OFFER & ACCEPTANCE (“OFFER AND
ACCEPTANCE”) WHICH CONTAINS:
ANNEXURE A – SPECIAL CONDITIONS ................................................................................................................... 1
ANNEXURE B - GENERAL CONDITIONS ................................................................................................................ 23
ANNEXURE C – SIMPLIFIED FLOOR PLANS ......................................................................................................... 27
ANNEXURE D – INDICATIVE SPECIFICATIONS AND FINISHES .......................................................................... 35
ANNEXURE E - STRATA DISCLOSURE STATEMENT ........................................................................................... 39
ATTACHMENT 1 - FORM 29 ........................................................................................................................................ 47
ATTACHMENT 2 - STRATA PLAN ................................................................................................................................. 59
ATTACHMENT 3 – PROPOSED UNIT ENTITLEMENT ....................................................................................................... 69
ATTACHMENT 4 – NON STANDARD BY-LAWS .............................................................................................................. 71
ATTACHMENT 5 – INDICATIVE STRATA COMPANY DRAFT BUDGET AND LEVIES ........................................................... 131
ATTACHMENT 6 –STRATA MANAGER AGREEMENT .................................................................................................... 135
ANNEXURE F - GUARANTEE................................................................................................................................. 149
ANNEXURE G – POWER OF ATTORNEY ............................................................................................................. 153
ANNEXURE H – PROXY .......................................................................................................................................... 159
ANNEXURE I – HOME BUILDING INDEMNITY INSURANCE, NOTICE OF EXEMPTION ................................... 165
Lot 1 Harmony Apartments
Contract for Sale of Strata Lot by Offer & Acceptance
ANNEXURE A – SPECIAL CONDITIONS
ANNEXURE B - GENERAL CONDITIONS.
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1
DEFINITIONS AND INTERPRETATIONS
1.1
Definitions
In the Contract unless the context otherwise requires:
“Adjustment Date” means:
(a)
where at the Contract Date the Strata Plan is not yet registered at Landgate, the date of such
registration; and
(b)
where at the Contract Date the Strata Plan is registered at Landgate, the Settlement Date.
“Builder” means the registered builder that the Seller engages to construct the Development and intended
to be Pindan Constructions;
“Building Contract” means the contract entered into or to be entered into between the Seller and Builder in
respect of the construction of the Development;
“By-laws” means the by-laws of the Strata Company;
“Commercial Lot” means a lots zoned for commercial and or retail use in the Development and intended to
be Lots 78 – 83 inclusive;
“Common Property” means so much of the Land comprised in the Strata Plan as is not comprised in any
Strata Lot;
“Contract” means the Offer and Acceptance, these Special Conditions and includes all Annexures and
Attachments;
"Defect Liability Period" means the period commencing on the Practical Completion Date and ending six
(6) months thereafter;
“Deposit Holder” means the person referred to as the “Deposit Holder” in the Offer and Acceptance;
“Detailed Plans” mean the detailed plans and Builder’s contract drawings for the Development available for
inspection at the office of the Seller’s Real Estate Agent or representative;
“Development” means the buildings and other improvements which are to be, are in the course of being or
are erected (as the case may be) on the Land in accordance with the Detailed Plans and comprising:
(a)
seventy seven (77) residential apartments;
(b)
six (6) Commercial Lot; and
(c)
the Future Developments Lot (which forms part of lot 83 and contains a Commercial Lot).
“Floor Plans” means the simplified floor plans for the Development a copy of which forms Annexure C;
“Future Developments Lot” means what is, was or is intended to be part of Lot 83 and proposed lot 84 on
the Strata Plan or the Proposed Strata Plan (as the case may be);
“Future Developments” means the proposal to create further strata lots by the re-subdivision in one or more
stages of the Future Developments Lot to create (at the discretion of the Seller) approximately a further:
(a)
one hundred and fifty five (155) residential apartments; and
(b)
communal recreational facilities in including pool;
“Future Developments Resolution” means any resolution of the Strata Company reasonably required to
facilitate the Future Developments, including but not limited to any resolution to:
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(i)
facilitate the re-subdivision of the Strata Plan or the consolidation of strata lots on one or more
occasions by the re-subdivision of the Future Developments Lot in accordance with Sections 8, 8A
and 9 of the Act;
(ii)
alter and reallocate the Unit Entitlement of each Strata Lot including the Property in accordance with
Section 15 of the Act, on one or more occasions, with each such alteration or reallocation of the unit
entitlement to be determined by a licensed valuer in accordance with Section 14 of the Act;
(iii)
make additions or amendments to the by-laws to regulate specific uses and activities occurring on
the Development and Future Developments (for example to make by-laws to regulate the activities
on either or to grant exclusive rights);
(iv)
make by-laws to allocate car parking bays to strata lots and comply with the requirements of the
Local Authority;
(v)
make by-laws to ensure that the Future Developments comply with the requirements of any Authority;
(vi)
allocate areas of Common Property for specific uses and purposes;
(vii)
allow the Strata Company to enter into contracts with the Seller or a related corporation of the Seller
for the management of activities occurring on the Future Developments; or
(viii)
enable the Seller to be granted certain rights in relation to the Common Property to enable it to
properly complete the Future Developments;
“General Conditions” means the Joint Form of General Conditions for the Sale of Land (2011 Revision)
which comprise Annexure B of the Contract;
“Guarantor” means the person/s if any specified in Annexure F as the guarantor of this Contract;
“Land” means the land known or formerly known as Lot 100 on Deposited Plan 402491 and commonly
known as 884 - 888 North Lake Road, Cockburn Central;
“Latest Date” means the date thirty six (36) months after the Contract Date;
“Local Authority” means the local authority for the Land being the City of Cockburn;
“Management Statement” means a management statement substantially in the form set out in Attachment
4 of Annexure E with such variations as the Seller reasonably requires and are notified to the Buyer;
“Neighbouring Land” means the land known or formerly known as Lot 9000 on Deposited Plan 402491
commonly referred to as 35 Kentucky Court Cockburn Central, Western Australia and which is or was owned
by the Seller;
“Neighbouring Land Resolution” means any resolution/s of the Strata Company reasonably required by
the Seller (or its successor in title to the Neighbouring Land) to facilitate or assist in the development
(including by way of subdivision) of the Neighbouring Land. For the avoidance of doubt such resolutions may
include:
(i)
the granting of rights of access or use over the Common Property (such as a carriageway easement)
to the Neighbouring Land;
(ii)
permitting services to run through the Land to service the Neighbouring Land;
(iii)
supporting any application for any approval, consent, licence, permit or the like associated with any
development of the Neighbouring Land; and
(iv)
making additions or amendments to the by-laws to regulate specific uses and activities occurring on
the Land to facilitate or assist the development of the Neighbouring Land;
“Offer and Acceptance” means the Contract for Sale of Land or Strata Title by Offer and Acceptance, 2011
Revision which appears immediately before these Special Conditions;
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“Practical Completion Date” means the date on which the Development reaches practical completion as
certified by the Seller’s architect for the Development or the Builder;
“Power of Attorney” means means the power of attorney document forming Annexure G appointing the
Seller as the Buyer’s attorney to do the things the attorney is entitled to do under Special Conditions 10.1(a),
13.2 and 15.2;
“Property” means the property being purchased by the Buyer as described in the Offer and Acceptance
which comprises:
(a)
the Strata Lot specified in the Offer and Acceptance;
(b)
that undivided interest in the Common Property applicable to the Strata Lot specified in the Offer and
Acceptance; and
(c)
the Property Chattels (if applicable);
“Proposed Road Realignment” means the proposal by the Department of Main Roads to widen and or
realign part of North Lake Road and its proposed intersection with Kentucky Court;
“Proposed Strata Plan” means the plan or plans attached to the Disclosure Statement being Attachment 2
of Annexure E of this Contract, as amended, varied or supplemented from time to time;
“Proxy” means means the proxy document forming Annexure H appointing the Seller as the Buyer’s proxy
under Special Conditions 13.2 and 15.2;
“Resolutions” means the following resolutions of the Strata Company:
(a)
to enter into the Strata Manager’s Agreement;
(b)
to accept the Management Statement (if not already registered);
(c)
to accept the administration levy referred to in the Strata Company Draft Budget (as amended from
time to time); and
(d)
any other resolutions required to undertake the construction, strata titling and sale of the
Development in accordance with the terms and conditions of this Contract;
“Schedule of Unit Entitlements” means the proposed schedule of Unit Entitlements shown in Attachment
3 of Annexure E;
“Seller” means Harvest Properties (WA) Pty Ltd ACN 161 065 381 of 2/8 Callan Place Waterford, Western
Australia;
“Seller’s Real Estate Agent” means the Seller’s real estate agent named in the Offer and Acceptance;
“Seller’s Settlement Agent” means the Seller’s settlement agent as stated in the Offer and Acceptance or
such other person the Seller nominates in writing to the Buyer;
“Settlement Date” means the later of:
(a)
the date specified in the Contract as the Settlement Date (if any); or
(b)
where at the date of execution of this Contract the Strata Plan is not registered, such date nominated
by the Seller’s Settlement Agent and notified in writing to the Buyer or their representative that is no
earlier than seven (7) days but no later than twenty eight (28) days after a separate certificate of title
for the Property has been issued by Landgate.
“Specifications” means the indicative specifications for the fitting out of the Property which comprises
Annexure D of this Contract;
“Strata Company” means the Strata Company referred to in section 32 of the Strata Titles Act created upon
registration of the Strata Plan;
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“Strata Company Draft Budget” means the draft annual strata company budget contained in Attachment
5 of Annexure E;
“Strata Disclosure Statement” means the statement made pursuant to section 69 and section 69A and 69B
of the Strata Titles Act which comprises Annexure E of this Contract and includes all Attachments;
“Strata Lot” means a strata lot on the Strata Plan;
“Strata Manager” means the person appointed by the Seller to be the strata manager of the Strata Plan and
at the Contract Date intended to be PRDnationwide Project Marketing (WA) ;
“Strata Manager’s Agreement” means the agreement entered into or to be entered into between the Strata
Company and the Strata Manager, the expected form of which comprises Attachment 6 of Annexure E;
“Strata Plan” means the Proposed Strata Plan in the form it is registered at Landgate, as amended varied
or supplemented from time to time;
“Unit Entitlement” means the unit entitlement or proposed unit entitlement (as the case may be) of each
Strata Lot.
1.2
Interpretation
In these Special Conditions, unless the context requires otherwise:
(a)
clause 26 of the General Conditions shall apply to the interpretation as if a reference to ‘document’
was a reference to these Special Conditions;
(b)
a word defined in the General Conditions and not defined in Special Condition 1.1 shall have the
meaning given to that term in the General Conditions;
(c)
headings are for convenience of reference only and do not affect interpretation;
(d)
wherever the term Common Property, Development, Future Developments, Future Developments
Lot, Neighbouring Land, Property, Property Chattels, Strata Lot or Strata Plan are used those terms
shall, where the context permits, be construed as if the words “or any part thereof” were inserted
immediately following each occasion upon which those terms are used;
(e)
where there is any inconsistency between the General Conditions and the Special Conditions, the
Special Conditions will prevail; and
(f)
words of inclusion are not words of limitation.
2
SPECIAL CONDITIONS
2.1
These are the Special Conditions referred to in the Offer and Acceptance.
2.2
These Special Conditions form part of the Contract between the Seller and the Buyer.
3
CONSTRUCTION OF DEVELOPMENT
3.1
The Buyer acknowledges that at the Contract Date the Development and Property may not have been
constructed.
3.2
Subject to the provisions of this Contract the Seller will procure that the Builder completes the Development
in a good and proper workmanlike manner in accordance with the Detailed Plans in conformity with all
applicable Australian standards, regulations and by-laws.
3.3
Subject to and without affecting the Buyer’s rights under the Strata Titles Act, the Buyer acknowledges that
the Seller may carry out all such works of demolition, construction, and development for the purpose of
carrying out the Development, in accordance with the Detailed Plans and the Buyer will not make any
objection to any such works and will do all such acts and things as may be necessary to facilitate the
execution of such works by the Seller.
3.4
The Seller undertakes to use its best endeavours to:
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(a)
cause the construction of the Development to be completed; and
(b)
do all things necessary at the Seller’s cost to procure all approvals so as to cause the proposed
Strata Plan to be registered at Landgate;
by the Latest Date (but will not be responsible for any delay where the delay is a result of any circumstances
or events beyond its control).
3.5
The issue of a certificate of practical completion by the Seller's architect for the Development will be
conclusive evidence that the Development has been constructed in accordance with the requirements of this
Contract.
4
CONDITIONAL ACCEPTANCE OF CONTRACT
4.1
At any time the Seller may, by notice in writing to the Buyer, terminate this Contract if:
(a)
any Authority refuses to issue an approval, licence (including but not limited to building licence),
consent, permit or the like (or any pre-requisite for any such approval, licence, consent, or the like)
required to strata title, complete, occupy and use the Development in the manner intended by the
Seller;
(b)
any Authority imposes a condition on any approval, licence, consent, permit or the like (or any prerequisite for any such approval, licence, consent, permit or the like) required to strata title, complete,
occupy and use the Development in the manner intended by the Seller, and the Seller is unable or
unwilling in its absolute discretion, to comply with that condition;
(c)
within twelve (12) months of the Contract Date, the Seller has not entered into such number of
contracts that the Seller, in its absolute discretion, deems necessary to feasibly undertake the
Development in an economically viable manner;
(d)
within twelve (12) months of the Contract Date, the Seller fails to receive all the necessary finance
approvals (on terms and conditions to the Seller’s absolute satisfaction) and satisfy the conditions
attached to such finance approvals (including any required amount of preselling of lots in the
Development) reasonably required for the Seller to carry out and complete the Development;
(e)
at any time any finance obtained by the Seller for the Development is withdrawn or rescinded; and
(f)
the Strata Plan is not, or the Seller (acting reasonably) forms the opinion that the Strata Plan will not
be, registered by the Latest Date (such opinion may for the avoidance of doubt be due to difficulties
in obtaining any necessary approval to strata title, complete, occupy and use the Development in
the manner intended by the Seller).
4.2
If the Seller terminates this Contract in accordance with Special Condition 4.1, the Deposit (including any
interest that may have accrued on the Deposit) and all other monies, if any, paid by the Buyer under this
Contract must be repaid to the Buyer without deduction and upon repayment this Contract shall be at an end
and cease to have any further effect and neither party shall have any claim against the other, other than
Special Conditions 27, 28, 29, 31 and 32.
5
STRATA TITLES ACT
5.1
The parties agree that the Buyer may only exercise the Buyers rights under Section 70(4) of the Strata Titles
Act if the Strata Plan has not been registered within six (6) months after the Latest Date.
6
FLOOR PLANS
6.1
The Floor Plans form Annexure C of this contract for the Buyer’s ease of reference.
6.2
The Detailed Plans for the Development are available for inspection by the Buyer at the office of the Seller’s
Real Estate Agent or representative during normal business hours.
6.3
If there is any inconsistency between the Detailed Plans and the Floor Plans then the Detailed Plans will
prevail.
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6.4
The Seller will complete the Development in accordance with the Detailed Plans subject to the terms and
conditions of this Contract.
6.5
The Buyer acknowledges that it has had an opportunity to inspect the Detailed Plans before entering into
this Contract and accordingly the Buyer is deemed to be fully aware of the exact nature, extent and details
of the Detailed Plans whether or not the Buyer has inspected them.
7
VARIATIONS BY SELLER
7.1
The Seller may make any change to the Development, Future Developments, Detailed Plans, Proposed
Strata Plan, Property or Specifications (provided that any change shall not involve materials of a lesser
quality)after the Contract Date:
(a)
where arising from any condition imposed by an Authority (including due to the Proposed Road
Realignment or compulsory acquisition of any part of the Land) on the Seller, Builder, Development,
Future Developments or Property;
(b)
for the purpose of meeting practical methods of construction according to good building practice;
(c)
in accordance with any recommendation of the Seller’s architect, builder, structural engineer,
mechanical engineer or electrical engineer and not adversely affecting the Buyer’s use and
enjoyment of the Property.
(d)
due to the availability of materials or products;
(e)
due to materials or products being superseded or discontinued;
(f)
due to increases in the cost of materials or products described in the Detailed Plans or Specifications
it is reasonable for the Seller to substitute those materials or products with equivalent materials or
products;
(g)
due to matters that arise which the Seller could not have reasonably foreseen; or
(h)
where the Seller believes the changes will enhance the Development, Future Developments or
Property.
7.2
Provided that a change pursuant to Special Condition 7.1 does not materially prejudice the Buyer or reduce
the internal floor area of the Property by more than five percent (5%) the Buyer shall have no right to make
any objection requisition or claim for compensation in respect of such change;
7.3
If the internal floor area of the Property as shown on the Strata Plan is less than the internal floor area of the
Property as shown on the Proposed Strata Plan by more than five per cent (5%), the Purchase Price will be
reduced on a pro-rata basis to the extent that the reduction is in excess of five per cent (5%). For the sake
of clarity if the internal floor area is reduced by six per cent (6%) the Buyer will be entitled to a one per cent
(1%) reduction of the Purchase Price;
7.4
Any change pursuant to Special Condition 7.1 does not create any right for the Buyer to;
(a)
delay Settlement; or
(b)
terminate this Contract.
8
VARIATIONS BY BUYER
8.1
If the Buyer wishes to make any variations to the Specifications or the colour scheme and finishes in respect
of the Property the Buyer shall apply in writing to the Seller at its address appearing in this Contract specifying
in detail the variations required and requesting the Seller’s approval.
8.2
The Seller is not obliged to give its approval to the variations requested by the Buyer and may withhold
approval without assigning any reason.
8.3
If the Seller consents to the variations requested by the Buyer with or without conditions then the Seller will
procure that the Builder provide to the Buyer a written quotation for the cost of the materials and labour
required to complete the variations.
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8.4
If the Buyer accepts the Builder’s quotation for the cost of the variations then the Seller shall, upon receipt of
payment in full from the Buyer for the whole cost of the variations and any GST, on the Buyer’s behalf instruct
the Builder to proceed to incorporate the variations during the construction of the Property.
8.5
Nothing in this Special Condition 8 will:
(a)
impose any obligation on the Seller to pay or contribute to the cost of any of the variations which
may be approved and undertaken by the Builder at the request of the Buyer; or
(b)
entitle the Buyer to delay Settlement on this Contract or claim compensation from the Seller or seek
a reduction in the Purchase Price if the Builder has not completed the variations requested by the
Buyer or the variations completed by the Builder have not been completed in a good and
workmanlike manner.
9
TITLE
9.1
The Property is sold and the Buyer shall take title to the Property subject to the relevant matters referred to
in the General Conditions, the provisions of the Strata Titles Act and the Contract and in particular, and
without prejudice to the generality of the foregoing, subject to the following matters:
(a)
the Unit Entitlement and all other matters contained in or endorsed upon or annexed to the Strata
Plan;
(b)
the easements for the support, shelter and services expressed or implied in favour of or against a
proprietor of a Strata Lot and/or all ancillary rights by virtue of the Strata Titles Act;
(c)
the By-laws;
(d)
the benefits burdens and obligations of the proprietor of a Strata Lot expressed or implied in favour
of or against the proprietor of a Strata Lot by virtue of the Strata Titles Act and the By-laws;
(e)
any transfer, lease, easement or other right over any part of the Common Property given to any
Authority, the Seller, the proprietor of any Strata Lot or the proprietor of the Neighbouring Land
provided that it does not detract from the Buyers reasonable use of the Common Property;
(f)
any easement, memorial or notification that is required by any Authority to be lodged by the Seller
over the Land, the Property or any part of the Common Property provided that it does not detract
from the Buyers reasonable use of the Property or the Common Property;
(g)
any memorial or notification concerning matters associated with the neighbourhood in which the
Development is located, including but not limited to street parking restrictions;
(h)
notification concerning the fact that the Property and/or the area that the Land is situated in may be
the subject of potential noise impacts that may adversely affect the use and enjoyment of the
Property and or such area, such notification may be registered on the certificate of title to the
Property;
(i)
notification concerning the impact that all or some of the provisions of the Local Authorities local
planning scheme may have concerning the use and management of the Land and/or surrounding
area, such notification may be registered on the certificate of title to the Property.
(j)
every lease, licence right or special privilege granted to a third party in respect of the Common
Property and disclosed to the Buyer;
(k)
the Proposed Road Realignment and Seller’s entitlement to any resulting compensation;
(l)
the obligations contained in these Special Conditions,
but otherwise free from encumbrances.
9.2
The Seller shall not, by virtue of the Contract, in any way be restricted from encumbering the Property or any
Strata Lot provided that if the Property becomes encumbered by a mortgage the Seller will procure and
register at Landgate a discharge of such mortgage on or before the Settlement Date and, for that purpose,
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the Deposit and all other moneys payable under the Contract (other than any money payable in excess of
the amount required to so discharge the mortgage) shall be held by the Deposit Holder and applied by it to
discharge any such mortgage.
10
CAVEAT
10.1
The Buyer must not before the issue of a separate Certificate of Title for the Property by Landgate, lodge
any caveat against the title of the Land or any part of the Land to protect the Buyer’s interest under this
Contract. Should the Buyer lodge any such caveat they:
(a)
appoint the Seller and each of their directors, agents and employees jointly and severally as their
attorney to take all such actions and execute all such documents in the Buyer’s name as the Seller,
in their absolute discretion, deems necessary to withdraw and/or remove such caveat (including but
not limited to lodging any applications or forms at Landgate); and
(b)
indemnify the Seller and shall keep the Seller indemnified against all costs, expenses and/or
damages that they may suffer as a result of registering such caveat, the Seller taking any action to
withdraw and/or remove the caveat and any delay the caveat may cause in the completion, strata
titling or sale of resulting Strata Lots in the Development.
10.2
Nothing contained or implied in this Special Condition 10.2 prejudices, limits or otherwise affects the Seller's
right to claim damages from the Buyer from any breach of Special Condition 10.2.
11
AMENDMENTS TO GENERAL CONDITIONS
Conditions 1.3, 3.8, 3.10(b), 4.2, 4.5, 7.3, 7.4, 7.5, 7.6, 9, 10.2, 10.3, 10.4, 10.6, 13, 15 and 24.4 of the
General Conditions do not apply to the Contract.
12
OUTGOINGS AND INSURANCE
12.1
All rates and taxes and other outgoings (periodical or otherwise) including but not limited to land tax (on an
actual amount payable, not single ownership, basis) charged against or payable for the Property shall be
paid by the Seller up to and including the day prior to the Adjustment Date from which date they shall be paid
by the Buyer.
12.2
Subject to Special Condition 12.3, the rates taxes and other outgoings shall be apportioned at Settlement.
12.3
If separate assessments of rates and taxes and other outgoings have not been issued for the Property by
the relevant authorities before the Settlement Date then the Seller’s Settlement Agent will prior to the
Settlement Date notify the Buyer (via their settlement agent, if any) of a reasonable estimate of the proper
proportion of rates and taxes and other outgoings likely to be payable in respect of the Property as at the
Settlement Date and the Buyer will pay this amount to the Seller’s Settlement Agent to be held by them in
their trust account until an actual assessment of the rates and taxes and other outgoings have been received
whereupon the Seller’s Settlement Agent will apportion the amount of rates and other outgoings payable in
respect of the Property and deduct from their trust account the Buyer’s proportion. If after the apportionment
there is any balance due to the Buyer then the Seller will direct the Seller’s Settlement Agent to pay that
balance to the Buyer as soon as is practicable. If after the apportionment there is any shortfall in the amount
due by the Buyer then they shall pay that amount to the Seller or at the Seller's direct demand.
12.4
If the Seller pays any premiums in respect of any insurance required to be effected by the Strata Company
there shall be an adjustment between the Seller and the Buyer on the Settlement Date of that part of such
premium which bears the same proportion of the total premium as the Unit Entitlement of the Property bears
to the total entitlement of all lots comprised in the Strata Plan.
13
STRATA COMPANY AGREEMENTS AND RESOLUTIONS
13.1
The Buyer acknowledges that the Seller will convene and hold the first annual general meeting of the Strata
Company before the Settlement Date and that the Buyer is not entitled to vote at that meeting in accordance
with Special Condition 13.2 and shall not receive notice of that meeting.
13.2
In consideration of the Seller agreeing to accept the Buyer’s offer to purchase the Property and enter into
this Contract the Buyer irrevocably appoints the Seller and each of its directors and secretary jointly and
severally, to be their true and lawful attorney and where applicable proxy from the Settlement Date until the
date twelve (12) months after the later of completion of the Future Development of the development of the
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Neighbouring Land (or where such period exceeds the maximum period permitted by law, the maximum
period permitted by law) to attend and vote at the first annual general meeting and subsequent meetings of
the Strata Company for the purposes of passing any Resolution, Future Developments Resolution,
Neighbouring Land Resolution or taking any other action to give effect to any matter required by or disclosed
in this Contract or which the Seller reasonably believes is desirable for completion of the Development,
Future Developments and development of the Neighbouring Land in the manner the Seller envisages. Such
action may include but is not limited to that required to;
(a)
control the use and occupation of the Common Property including, without limitation, the power to
make by-laws in accordance with section 42(8) of the Strata Titles Act to permit a proprietor to have
the exclusive use and enjoyment of, or special privileges in respect of, the Common Property or any
part of it;
(b)
ensure that the external appearance of the Development, Future Developments and the presentation
of the Common Property are preserved to a high quality;
(c)
approving and making any physical or structural changes to any of the improvements on the Land
which the Seller considers in their absolute discretion to be necessary or appropriate for any reason;
(d)
pass any resolution required for the Seller (or its successor in title) to deal with the Future
Developments Lot and facilitate its development, including but not limited to the Future Development
Resolutions;
(e)
pass any resolution required for the Seller (or its successor in title) to deal with the Neighbouring
Land and facilitate its development, including but not limited to the Neighbouring Land Resolutions;
and
(f)
executing and lodging at Landgate any documents required to give effect to the above.
14
GENERAL PROVISIONS FOR PROXY AND ATTORNEY
14.1
The Buyer irrevocably agrees to:
14.2
(a)
ratify and confirm all things whatsoever done under the attorney and proxy conferred under Special
Conditions 10.1(a), 13.2 and 15.2;
(b)
deliver to the Seller the Power of Attorney and the Proxy, signed by the Buyer, on signing this
Contract;
(c)
the Seller dating and/or completing any blank spaces in the Power of Attorney and/or Proxy following
its execution by the Buyer.
If, for any reason:
(a)
the Buyer fails to execute the Power of Attorney and/or Proxy; or
(b)
the Buyer’s execution of the Power of Attorney and/or Proxy is defective in any way,
then the Buyer acknowledges and agrees that the Seller may produce and provide a copy of this Contract
as evidence of the Seller’s appointment as the Buyer’s attorney and/or Proxy in accordance with Special
Condition 13.2 to any party requiring evidence of that appointment, including but not limited to the Strata
Company and the Registrar of Titles of Western Australia.
14.3
The provisions of Special Conditions 13.2 and 15.2 shall have effect whether or not the Buyer is given notice
of or is present at any such meeting of the Strata Company.
14.4
Any person, including but not limited to the Strata Company and Landgate, dealing with the attorney and/or
proxy or a person purporting to be an attorney and/or proxy under Special Conditions 10.1(a), 13.2 and 15.2,
is entitled to rely on execution of any document by that person as conclusive evidence that:
(a)
the person holds the office set out in the power;
(b)
the power of attorney/proxy has come into effect;
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(c)
the power of attorney/proxy has not been revoked; and
(d)
the right or power being exercised or being purported to be exercised is properly exercised and that
the circumstances have arisen to authorise the exercise of that right and power,
and is not required to make any inquiries in respect of any of the above matters.
14.5
The Buyer must not do anything or seek to do anything that would interfere with or otherwise conflict with the
Seller or its delegate acting as the Buyer’s proxy and/or attorney, including but not limited to voting or
attempting to vote in respect of any motion considered by any meeting of the Strata Company or the strata
council that the Seller seeks to vote on as the Buyer’s proxy and/or attorney.
14.6
If the Seller sells, transfers, assigns or otherwise disposes of its interest in the Land, Development, Future
Developments or Neighbouring Land the Buyer acknowledges and agrees that:
(a)
the benefit of the powers of attorney and proxy granted under Special Conditions 10.1(a), 13.2 and
15.2 and any other special condition of this Contract may be assigned in whole or part by the Seller
to that other person and if that other person is a corporation, to the officers of that corporation (without
the requirement for obtaining consent from the Strata Company, Buyer or any other person); and
(b)
the Buyer must at the request of the Seller, enter into and execute such further deed or instrument
that the Seller may require, to be prepared by the Seller's solicitor at the Seller's cost and expense,
within ten (10) Business Days of such request being made in writing, to give full effect to Special
Conditions 10.1(a), 13.2 and 15.2 and this Special Condition 14.
14.7
As a condition of the Seller entering into the Contract and agreeing to sell the Property to the Buyer, the
Buyer must not dispose of or grant any interest in the Property unless the transferee or party taking an
interest in the Property (Transferee) at the cost of the Buyer executes a deed in favour of the Seller on terms
prepared by the Seller at the cost of the Buyer under which the Transferee agrees to be bound by the ongoing
provisions of this Contract (including but not limited to Special Conditions 13, 14 and 15 and the appointment
of the Seller as their attorney pursuant to the provisions of those Special Conditions).
14.8
To secure the performance by the Buyer of the Buyer’s obligations set out in this Contract (including but not
limited to Special Conditions 13, 14 and 15) the Buyer charges all of its right title and interest in the Property
for the benefit of the Seller and authorises the Seller to lodge an absolute or subject to claim caveat (the form
being at the discretion of the Seller) against the certificate of title to the Property.
15
FUTURE DEVELOPMENTS AND NEIGHBOURING LAND
15.1
The Buyer acknowledges that this Special Condition 15 is included in this Contract because the Seller
requires control of the Strata Company until the Future Developments and development of the Neighbouring
Land are completed so as to ensure that:
15.2
(a)
the Future Developments are completed on terms consistent with the Seller’s intentions;
(b)
the Seller (or its success in title) can develop the Neighbouring Land in the manner it wishes (this
intended to be consistent and complimentary with the Development); and
(c)
all necessary Strata Company resolutions are passed.
The Buyer acknowledges and agrees that:
(a)
it is aware that the Seller intends to develop both the Future Developments Lot and Neighbouring
Land;
(b)
details of the Seller’s intended development of the Future Developments Lot and Neighbouring Land
are available from the Seller’s Real Estate Agent
(c)
the Future Developments may be constructed in one or more stages and these may be constructed
separately or concurrently in the Seller’s absolute discretion;
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(d)
the development of the Neighbouring Land may be constructed in one or more stages and these
may be constructed separately or concurrently in the Seller’s absolute discretion;
(e)
the Seller makes no representations as to whether either:
(f)
the Future Developments; or
(g)
development of the Neighbouring Land,
will be undertaken and if undertaken what this will comprise (including the final mix of uses and
number of apartments/units).
(h)
the Seller retains absolute control over determining the final mix of uses, the number of strata lots,
the timing, the number of stages and whether to grant any reciprocal usage rights over the Common
Property or any other facilities that any Future Developments or development of the Neighbouring
Land may involve (if such development is undertaken).
(i)
the Future Developments may require construction works on the Land after Settlement and the Buyer
has no rights to claim compensation or losses against the Seller or any other party relating to
inconvenience or disruption caused by such construction works (including but not limited to noise
and traffic);
(j)
the development of the Neighbouring Land may require access to or construction works on the Land
after Settlement (such as for the provision of services through the Common Property to the
Neighbouring Land) and the Buyer has no rights to claim compensation or losses against the Seller
or any other party relating to inconvenience or disruption caused by such access or any construction
works that the development may involve (whether on the Land or not and including but not limited to
noise and traffic);
(k)
the Future Developments will require certain strata company resolutions to be passed (including but
not limited to the Future Developments Resolutions). The Buyer has pursuant to Special Condition
13.2 irrevocably appointed the Seller as its proxy to vote on such resolutions and should for any
reason such proxy be invalid must vote in favour of them if the Seller so directs;
(l)
development of the Neighbouring Land may require certain strata company resolutions to be passed
(including but not limited to the Neighbouring Lot Resolutions). The Buyer has pursuant to Special
Condition 13.2 irrevocably appointed the Seller as its proxy to vote on such resolutions and should
for any reason such proxy be invalid must vote in favour of them if the Seller so directs.
15.3
The Buyer warrants that it will not make any objection to the resolutions referred to in Special Conditions
15.2(k) and 15.2(l) nor will it make any objection to the construction of the Future Developments or any
development of the Neighbouring Land.
15.4
The Buyer warrants to ensure that, at the Buyer’s cost and for the purpose of facilitating the Future
Developments and any development of the Neighbouring Land:
15.5
(a)
each person or corporation with a registered interest in the Property consents to the amendment of
the Unit Entitlement, the re-subdivision of the Strata Plan and (if required) to the resolutions referred
to in clause 15.2(k) and 15.2(l);
(b)
the certificate of title for the Property is produced at the Titles Office, if production is required to
enable the amendment of the Unit Entitlement and the re-subdivision of the Strata Plan.
The Buyer buys the Property on the understanding that:
(a)
the Future Developments or any part thereof (including Common Property facilities such as
swimming pool); and
(b)
any development of the Neighbouring Land or part thereof,
may not be constructed or completed and the Buyer warrants that it has not relied on any representation,
warranty, statement or condition by the Seller or its agents that the Future Developments or development of
the Neighbouring Land or any part thereof will be constructed or completed or what the Future Developments
or any development of the Neighbouring Land may comprise.
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15.6
The Buyer shall not make any claim or delay payment of the Purchase Price on the basis that the Future
Developments, any development of the Neighbouring Land or any part thereof will not be constructed or
completed or may be delayed.
16
PROPOSED ROAD REALIGNMENT
16.1
The Seller notifies the Buyer, who acknowledges receipt of such notice, that the Department of Main Roads
and or Local Authority are proposing to undertake (though are under no obligation to do so) the Proposed
Road Realignment.
16.2
The Buyer acknowledges and agrees that:
(a)
whilst it is currently intended that the resumption will not include any part of the Land, but rather only
Lot 300 on Deposited Plan 402491, this may be subject to change by the relevant authorities
(b)
the Seller retains all rights, title and interest to any compensation that may be payable concerning
any acquisition of part of the Land that may at any time be associated with the Proposed Road
Realignment, this includes where such acquisition occurs following registration of the Strata Plan
and therefore involves the transfer/resumption of Common Property.
(c)
the strata company must consent to any surrender of easement benefit the Proposed Road
Resumption may require and the Strata Company shall irrevocably, unconditionally and to the
exclusion of itself appoint the Seller and its officeholders and agents as its lawful attorney to conduct
any and all associated negotiations concerning a surrender of such easement and to executed any
and all documentation that this may require;
(d)
where any acquisition of part of the Land is to occur following registration of the Strata Plan:
(e)
(a)
the Strata Company irrevocably, unconditionally and to the exclusion of itself appoints the
Seller and its officeholders and agents as its lawful attorney to conduct any and all
associated negotiations (including but not limited to negotiating any compensation payable)
and to enter into any and all associated agreements;
(b)
any compensation payable shall be paid direct to the Seller or its nominee; and
(c)
should the Strata Company receive any compensation, it shall immediately remit that
amount to the Seller and until such time that it does so the Strata Company holds that
amount on trust for the Seller;
at the first meeting of the Strata Company, the Strata Company shall enter into a deed prepared by
the Seller giving effect to the provisions of this Special Condition 16.2, such deed may permit the
registration of a caveat, notification or similar encumbrance on the Strata Plan to provide notice of
this obligation and give effect to that appointment of the Seller and its officeholders and agents as
the lawful attorney of the Strata Company.
17
DEPOSIT
17.1
The Deposit shall be paid to the Deposit Holder, as specified in this Contract who, for the purpose of Section
70(1) of the Strata Titles Act, shall hold the Deposit in its trust account.
17.2
Should any part of the Deposit be paid by way of deposit bond, bank guarantee or similar instrument:
(a)
the Buyer shall ensure that that instrument does not expire prior to Settlement;
(b)
the Buyer irrevocably authorises the Deposit Holder to make a claim on such instrument and convert
it to a cash Deposit should the Buyer fail to renew the instrument no less than 3 months prior to its
expiry (where Settlement has not yet occurred);
(c)
such instrument shall be issued by a reputable Australian financial institution reasonably approved
by the Seller; and
(d)
such instrument shall be unconditional, provide for the Deposit Holder as the beneficiary and refer
to the Contract.
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17.3
The Deposit Holder shall invest any cash Deposit into an interest bearing trust account within a reasonable
period of receiving:
(a)
the Deposit as cleared funds; and
(b)
the tax file number and any other information that the Deposit Holder may reasonably require to
effect such investment of the Deposit,
until a reasonable period prior to the Deposit being payable to a person pursuant to the Contract.
17.4
Should the Deposit be invested in an interest bearing trust account:
(a)
the Deposit Holder shall be entitled to a reasonable administration fee for administering such
account. Such fee shall be deducted from any interest that may accrue on the Deposit;
(b)
interest shall accrue for the benefit of the Buyer provided that:
(i)
the Buyer shall not be entitled to any interest during any period in which the Buyer is in default
of the Contract or the Seller becomes a Deposit Claimant, with the Seller entitled to any
interest during such periods;
(ii)
the Seller shall be entitled to any and all interest that may have accrued should the Deposit
be forfeited pursuant to the Contract; and
(iii)
the right of the Buyer and if applicable Seller to any interest is subject to Special Condition
17.4(a).
17.5
The risk of the Deposit and any interest that may accrue is that of the person who is ultimately entitled to
those amounts. For the avoidance of doubt the Deposit Holder is not responsible for any loss on any
investment of the Deposit pursuant to the Contract.
17.6
Where the Buyer is in default and the Seller validly terminates the Contract the Deposit and any interest that
has accrued shall be for the Seller’s benefit. In all other circumstances the Deposit shall be applied for the
Buyer’s benefit and any interest that has accrued shall be shared equally between the Buyer and Seller.
18
ERRORS, MISDESCRIPTIONS, REQUISITIONS
18.1
The Buyer is not entitled to terminate or rescind this Contract or to make any objection requisition or claim
for compensation or damages or retain any part of the Purchase Price by reason of:
(a)
the description or name of the Development, or any part of the Future Developments being other
than that described in this Contract;
(b)
any development or failure to develop the Future Developments Lot or the Neighbouring Land;
(c)
a Strata Lot number being allocated to the Property that is different from that given in this Contract;
(d)
any non-material variation in the construction or finish of any part of the Development from the
Proposed Strata Plan, Detailed Plans or Floor Plans;
(e)
any variation of five per cent (5%) or less from the internal floor area shown on the Proposed Strata
Plan to the internal floor area of the Property;
(f)
any alteration in the Unit Entitlement from the Schedule of Unit Entitlement;
(g)
any alteration to the By-Laws, the Strata Manager Agreement and/or any other information,
document, agreement, notice or material forming part of the Contract that is required by any Authority
or otherwise permitted pursuant to these Special Conditions;
(h)
any change in the Strata Manager or the terms of the Strata Manager’s Agreement;
(i)
any alteration in the size and/or location of the Common Property or rights in relation to the use of it
provided that the Unit Entitlement of the Property and the aggregate Unit Entitlement of all Strata
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Lots will not be substantially different from the aggregate shown in the Schedule of Unit Entitlement
(for the avoidance of doubt an alteration due to any Proposed Road Realignment does not amount
to a substantially different Unit Entitlement);
(j)
any fences erected on or about the Common Property or the amalgamation or subdivisions or internal
rearrangement of any lot or lots on the Proposed Strata Plan other than the Property;
(k)
any alteration or variation referred to in clause 7.1;
(l)
any mains, pipes, transformers, wires or connections of any water, sewerage, drainage, gas,
electricity, telephone or other system or service (whether to the Development or not) running through,
under over or near the Land;
(m)
the compulsory acquisition, ceding or disposal of any part of the Land or Common Property to any
Authority in association with the Development or Future Developments (including but not limited to
any associated with the Proposed Road Realignment) and any alteration to the Development or
Future Developments that this may require (including design, number of Strata Lots,
type/configuration of Strata Lots and mix of uses);
(n)
any variation to the administration levy from that contained in the Strata Company Draft Budget that
is actually levied by the Strata Company for which the Buyer is notified of prior to the Settlement
Date; and
(o)
any materials (including advertising and sales brochures) provided to the Buyer by the Seller or their
agents being incorrect in anyway.
18.2
The Buyer shall not make any requisition or objection to the Sellers title and any rights to do so are expressly
waived.
19
BUYER’S ACKNOWLEDGMENTS
Without limiting the generality of the Contract, the Buyer expressly acknowledges and agrees as follows:
(a)
the Annexures and Attachments to this Contract, including the Strata Disclosure Statement and the
Attachments to the Strata Disclosure Statement, form part of this Contract;
(b)
it has read and understood this Contract including the Offer and Acceptance, Special Conditions,
the Annexures and the Attachments;
(c)
it is deemed to have inspected the Detailed Plans which the Buyer acknowledges and agrees are
subject to variations by the Seller;
(d)
the Proposed Strata Plan and Floor Plan have been reduced for convenience and may therefore not
be to scale. Full copies of the Proposed Strata Plan and the Detailed Plans may be inspected at the
offices of the Seller’s Real Estate Agent by prior appointment;
(e)
the Seller has used reasonable endeavours to ensure that so far as is possible the Strata Company
Draft Budget is sufficient for the control and management of the Common Property, for the payment
of any premiums of insurance and the discharge of any other obligations of the Strata Company but
if the Strata Company Draft Budget for any reason is found not to be adequate and the Strata
Company subsequently levies the proprietors (including the Buyer) for further contributions to make
up any deficiency then the Buyer shall not make any claim on the Seller to meet that further
contribution or for any compensation to be paid by the Seller to the Buyer;
(f)
the Seller is at liberty to assign all or any of its rights under this Contract at any time without notice;
(g)
all materials provided to the Buyer by the Seller or their agents (including advertising, sales
brochures, plans and specifications) have been prepared and provided in good faith and are believed
to be correct. The Buyer shall have no recourse against the Seller or their agents in the event of any
error or omission from such material;
(h)
the Seller retains all right and entitlement to any and all compensation that may be payable by reason
of the Proposed Road Realignment;
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(i)
all illustrations, photographs and models relating to the Development or Future Developments are
artist impressions only and not necessarily to scale or absolute likeness;
(j)
it has waived all rights to make any objection whatsoever to any of the methods used by the Seller,
its servants, agents or contractors in their efforts to sell or market any Strata Lot (other than the
Property), including but not limited to the use of any signs, any public auction or any use of the
Common Property and provided that the Seller shall endeavour not to cause any unreasonable
inconvenience to the Buyer; and
(k)
it has had the opportunity to provide the Contract to professional advisors for the purpose of receiving
independent legal and/or financial advice and enters into the Contract having obtained such advice
or electing, at its free will, not to obtain such advice.
20
NO REPRESENTATIONS
20.1
Except as otherwise expressly stated in these Special Conditions, the Seller makes no representations nor
gives any warranty regarding the Land, Development, Future Developments, any development of the
Neighbouring Land or Property.
20.2
The Buyer must make and rely on its own inquiries concerning:
20.3
(a)
the Land;
(b)
the Future Developments (including what this may comprise and the likelihood of any such
development occurring);
(c)
the standards and materials of construction of the Development, the Future Developments and any
other improvements on the Land;
(d)
the services and utilities provided to the Land, locality of the Land, the Future Developments and to
be provided to the Development;
(e)
what development may occur on the Neighbouring Land and other properties in the area that the
Land is situated;
(f)
whether any buildings and improvements on the Land or to be erected on the Land comply with all
statutes, regulations and by-laws affecting the Land;
(g)
the state of repair, condition and quality of the buildings or improvements on or to be erected on the
Land;
(h)
the state of repair, condition and quality of the chattels, plant and equipment included in the Property;
(i)
the Proposed Road Realignment
(j)
the By-laws and other affairs of the Strata Company for the Strata Plan;
(k)
any restrictions on the use of any part of the Development (including Property) or the Future
Developments including but not limited to those imposed by the By-Laws or Local Authority;
(l)
value of the Property and any financial or economic returns it may generate; and
(m)
any tax, duty or similar amount payable in connection with the Contract and ownership of the
Property.
The Buyer acknowledges that it has, and is taken to have, satisfied itself:
(a)
by physical examination of the state of repair and condition and quality of the buildings and
improvements erected on the Land (if any) and the chattels and plant and equipment included in the
Property and in particular in relation to any environmental matters (including any contamination) in
relation to the Land;
(b)
by inquiry of the appropriate persons and authorities as to the use to which the Land and
neighbourhood in which it is located (including the Neighbouring Land) may be put and its zoning
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and of any development which may take place on the Land and all restrictions in relation to any such
development;
(c)
by inquiry and survey, of the location of the boundaries of the Land;
(d)
by its own calculations or projections and receipt of any professional advice the Buyer may have
thought fit to obtain as to the value of the Property and as to the financial or economic returns derived
or which may be derived from the Property; and
(e)
by its own calculations or projections and receipt of any professional advice the Buyer may have
thought fit to obtain as to the taxes, duties (including transfer duty) and the like payable in connection
with the Contract and ownership of the Property,
and the Buyer enters into and is deemed to enter into this Contract in reliance solely upon that examination
and inquiry and not upon any alleged statement, warranty, condition, or representation whatsoever made to
or alleged to have been made to the Buyer by the Seller or any agent of the Seller.
21
DEFECT LIABILITY PERIOD
21.1
As soon as practicable after being notified of them the Seller will use reasonable endeavours to procure the
Builder to remedy any faults, omissions or other defects whatsoever in the Property whose existence is
notified in writing to the Seller before the expiry of the Defect Liability Period.
21.2
The Seller will use reasonable endeavours to ensure that the Builder makes good in accordance with the
provisions of the Building Contract all faults, omissions and defects to be remedied by the Seller in
accordance with Special Condition 21.1.
21.3
For the purpose of this Special Condition 21 the terms fault, omission or defect do not include any fault,
omission or defect wholly or partially due to condensation, natural shrinkage, drying out, misuse or abuse by
any person.
21.4
The Buyer must grant the Seller, or the Builder as the case may be, reasonable access to the Property to
enable the Seller to comply with its obligations under this Special Condition 21 and its defect liability
obligations to other Strata Lot in the Development and the Seller must use reasonable endeavours to ensure
that in complying with its obligations it causes as little disturbance or inconvenience as is reasonably
practicable to the Buyer or the occupier of the Property.
21.5
Should there be any dispute as to the existence or rectification of any defect, the matter shall be referred to
the Seller's architect for the Development for determination. Such determination shall be binding and final
and binding on the parties.
21.6
The Buyer shall not delay or refuse to effect Settlement or withhold or threaten to withhold any part of the
monies payable to the Seller at Settlement, by reason of the existence of any defect or fault in the Property
or Development.
22
GOODS AND SERVICES TAX
22.1
Where the Property is a residential apartment the parties acknowledge that the Purchase Price is stated
inclusive of GST and the Buyer is not required to pay GST in addition to the Purchase Price.
22.2
Where the Property is a Commercial Lot, unless expressly stated otherwise in the Offer and Acceptance, the
parties acknowledge that:
(a)
the Purchase Price is stated exclusive of GST;
(b)
GST is to be paid in addition to the purchase price; and
(c)
clause 18.3 of the General Conditions shall apply.
23
TRUST
23.1
If the Buyer has entered into and executed the Contract as trustee of a trust, whether or not this is disclosed,
then it has done so on its own behalf and as trustee of the trust.
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23.2
The Buyer and its successors as trustee of that trust from time to time will be liable under the terms and
conditions of the Contract as such trustee to the intent that all assets from time to time both present and
future of the trust will be available to satisfy the liabilities of the Buyer or under or in relation to the Contract.
23.3
The Buyer’s right of indemnity out of the trust fund is charged with the payment of the Purchase Price and
other moneys payable by the Buyer under the Contract.
23.4
The Buyer warrants in favour of the Seller that:
23.5
(a)
all of the powers and discretions conferred by the deed establishing the trust are at the Contract
Date capable of being validly exercised by the Buyer as trustee and that the deed has not been
varied or revoked and that the trust is a valid and subsisting trust as at the Contract Date;
(b)
the Buyer is the sole trustee of the trust and as such has full and unfettered power pursuant to the
terms of the deed establishing the trust to enter into the Contract and that the Contract is being
executed and entered into as part of the due and proper administration of the trust and for the benefits
of the beneficiaries under the trust; and
(c)
no restrictions on the Buyer’s right of indemnity out of or lien over the assets of the trust exists or will
be created or permitted to exist and such right will have priority over the rights of the beneficiaries to
the assets of the trust.
The Buyer must not permit and it will be an event of default under the Contract if there occurs without the
Seller’s prior written consent (entitling the Seller to terminate the Contract by notice in writing):
(a)
any resettlement, apportionment or distribution of the capital of the trust;
(b)
any retirement or replacement of the trustee or any appointment of a new trustee of the trust;
(c)
any amendment of the deed establishing the trust;
(d)
any further encumbrance or charging whatsoever of the assets of the trust;
(e)
any termination of the trust or variation of the vesting date; or
(f)
if the trust is a unit trust, there is any transfer of or dealing with the units.
If any of the events mentioned in this Special Condition occur then the Buyer must inform the Seller
immediately.
23.6
The Buyer expressly acknowledges and agrees that if the Seller has entered into this Contract as trustee of
a trust and in no other capacity, the Seller will not be personally liable to the Buyer for any breach of the
covenants, conditions and stipulates contained or implied in this Contract and that in any such breach the
Buyer will be able to claim damages from the Seller only to the extent that the Seller is liable to be reimbursed
from the net assets of that trust and no officers of the Seller will be personally liable to the Buyer.
24
FOREIGN INVESTMENT REVIEW BOARD APPROVAL
24.1
If the Buyer is a foreign person as defined in the Foreign Acquisitions and Takeovers Act 1975 (Cth):
24.2
(a)
the sale and purchase of the Property pursuant to the Contract is conditional on the Buyer obtaining
approval from the Foreign Investment Review Board to purchase the Property pursuant to the
Contract, by no later than 30 days from the Contract Date (FIRB Deadline);
(b)
the Buyer will use its best endeavours to obtain the approval referred to in Special Condition 24.1(a)
as soon as possible after the Contract Date;
(c)
the Buyer will keep the Seller reasonably informed as to the status of its application for approval;
and
(d)
the Buyer will notify the Seller as to whether or not the Buyer has obtained the approval referred to
in Special Condition 24.1(a) as soon as the Buyer becomes aware of this.
(Non-approval) If the condition referred to in Special Condition 24.1(a) is not satisfied by the FIRB Deadline:
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(a)
the Contract will automatically terminate without any requirement for notice;
(b)
the Deposit must be returned to the Buyer; and
(c)
neither party will have any further rights or obligations under the Contract, except for any rights or
obligations:
(i)
arising out of a breach of the Contract before the date of termination pursuant to Special
Condition 24.2(a); or
(ii)
arising pursuant to Special Conditions 27, 28, 29, 31 and 32, which shall survive termination.
25
COMMERCIAL LOT
25.1
The Buyer acknowledges that:
25.2
(a)
it is proposed that the Development will include Commercial Lots, being Strata Lot 78-83 on the
Proposed Strata Plan;
(b)
the precise number of Commercial Lots and their location in the Development may being subject to
change without notice;
(c)
a Commercial Lot may be used only in accordance with its classified commercial use under the town
planning scheme of the Local Authority;
(d)
the classified commercial use for a Commercial Lot may be changed from time to time in accordance
with the policy and procedures of the Local Authority;
(e)
a Commercial Lot may be granted by the Seller a licence for the exclusive use of part of the Common
Property (such as for the use of an alfresco dining area); and
(f)
a Commercial Lot may be licenced for the sale of alcohol (Liquor Licence);
The Buyer agrees that they will support and will not raise (or cause to be raised) any objection to any
application to:
(a)
approve any particular commercial use;
(b)
change the permitted commercial use; or
(c)
obtain or amend the terms of any Liquor Licence;
for a Commercial Lot should such application have the support of the Seller.
25.3
The Buyer expressly and irrevocably consents to, and undertakes not to raise (or cause to be raised) any
objection to any Liquor Licence for a Commercial Lot and any application that the Seller may make for or in
association with obtaining or administering the Liquor Licence (including any application concerning
operating hours).
26
EXEMPTION FROM HOME BUILDING INDEMNITY INSURANCE
26.1
The Home Building Contracts Act makes it unlawful for a builder to perform residential building work unless
it has in force a policy of insurance that complete is with the Home Building Contracts Act.
26.2
The Home Building Contracts (Home Indemnity Insurance Multi-Storey Multi-Unit Developments Exemption)
Regulations 2002 provide an exemption to the requirement to take out a policy of insurance referred to above
in the case of specified multi storey developments.
26.3
The Buyer is notified that the Development falls within this exemption and is unlikely to be covered by such
insurance and the requisite statutory form is contained in Annexure I.
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27
CONFIDENTIALITY
27.1
The Buyer may not release any of the contents of the Contract without the prior written consent of the Seller.
27.2
Clause 27.1 does not apply to:
(a)
information which is available to the public generally (except as a result of a previous breach of this
Special Condition by the Buyer);
(b)
a disclosure which is required by law;
(c)
a disclosure which is necessary or advisable for the purpose of obtaining any authorisation from any
government agency;
(d)
a disclosure which is made on a confidential basis to the officers, employees or agents of the Buyer
or to the professional advisers of the Buyer for the purpose of obtaining professional advice in relation
to the Contract, the enforcement of the Contract or for the purpose of consulting those professional
advisors; or
(e)
a disclosure which is required or desirable to be made in relation to any procedure for discovery of
documents in any proceedings before any court, tribunal or regulatory body.
27.3
The Buyer acknowledges that the Seller may freely disclose the Buyer’s details, so far as they relate to the
Contract and purchase of the Property, to its financiers or professional advisers and irrevocably consents
and authorises such disclosure.
28
ENTIRE AGREEMENT
The Contract constitutes the entire agreement between the Seller and the Buyer. There are no prior or other
agreements which shall have any effect on the Contract nor shall any correspondence or documents which
may have passed between the Seller and the Buyer before execution have any effect whatsoever on the
Contract.
29
GOVERNING LAW AND JURISDICTION
The Contract is governed by the laws in force in Western Australia and each party irrevocably and
unconditionally submits to the exclusive jurisdiction of the courts of Western Australia.
30
MERGER
Any General Condition or Special Condition to which effect is not given on or before Settlement or registration
of the transfer of the Property to the Buyer, that is capable of taking effect after Settlement and/or registration
of the transfer of the Property to the Buyer, remains in full force and effect notwithstanding Settlement and/or
registration of the transfer.
31
32
WAIVER
(a)
The failure, delay, relaxation or indulgence on the part of any party in exercising any power or right
conferred upon that party by the Contract does not operate as a waiver of that power or right, nor
does any single exercise of any power or right preclude any other or further exercise of it or the
exercise of any other power or right under the Contract.
(b)
A waiver of a power or right conferred upon a party by the Contract is not valid or binding on the
party granting that waiver unless made in writing.
SEVERABILITY
If any part of the Contract can be read in a way that makes it illegal, unenforceable or invalid, but can also
be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any part of
the Contract is illegal, unenforceable or invalid, that part is to be treated as removed from the Contract, but
the rest of the Contract is not affected.
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CONFIRMATION OF RECEIPT
ANNEXURE A – SPECIAL CONDITIONS
________________________________________
Signature(s) of Seller(s)/Sellers(s) agent
Signature(s) of Buyer(s)/Buyer(s) agent
Date ___________________________________
Date
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ANNEXURE B - GENERAL CONDITIONS
ANNEXURE B - GENERAL CONDITIONS.
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ANNEXURE B - GENERAL CONDITIONS
________________________________________
Date ___________________________________
Date
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ANNEXURE C – SIMPLIFIED FLOOR PLANS
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ANNEXURE C – SIMPLIFIED FLOOR PLANS
________________________________________
Date ___________________________________
Date
The Buyer acknowledges that the following Floor Plans are simplified floor plans for ease of reference. The Seller
will complete the Development in accordance with the Detailed Plans, copies of which are available for inspection at
the office of the Seller’s Real Estate Agent or representative during normal business hours.
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ANNEXURE D – INDICATIVE SPECIFICATIONS AND
FINISHES
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ANNEXURE D – INDICATIVE SPECIFICATIONS AND FINISHES
________________________________________
Date ___________________________________
Date
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ANNEXURE E - STRATA DISCLOSURE STATEMENT
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Annexure E
Attachment 1 - Form 29
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Annexure E
Attachment 2 - Strata Plan
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Annexure E
Attachment 3 – Proposed Unit Entitlement
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Annexure E
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Attachment 4 – Non Standard By-Laws
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ANNEXURE “B”
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ANNEXURE “E”
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Annexure E
Attachment 5 – Indicative Strata Company Draft Budget and Levies
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ATTACHMENT 5A
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ATTACHMENT 5B
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Annexure E
Attachment 6 –Strata Manager Agreement
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ANNEXURE E – STRATA DISCLOSURE STATEMENT
________________________________________
Date ___________________________________
Date
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ANNEXURE F - GUARANTEE
ANNEXURE
NOTE: THIS ANNEXURE IS ONLY APPLICABLE TO A BUYER WHO IS A CORPORATION.
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I/We _______________________________________________________________________________ [full name]
of __________________________________________________________________________________ [address]
_________________________________________ [suburb] _______________[state] ______________[post code]
(“the Guarantor”) hereby guarantee the performance of the Contract pursuant to the terms of this Annexure.
1. Guarantee
In consideration of the Seller entering into the Contract at the request of the Guarantor as is testified by the execution
by the Guarantor of this Annexure, the Guarantor now guarantees to the Seller the due performance and observance
by the Buyer of all the terms covenants, agreements and stipulations in the Contract contained or implied to be
performed and or observed including (but without limiting the generality of the foregoing) the due payment of the
Purchase Price.
2. Indemnity
The Guarantor now (and if more than one jointly and severally) agrees to indemnify and keep indemnified the Seller
against all losses, costs, expenses and damages sustained or incurred by the Seller arising out of or in respect of
any breach or default by the Buyer in payment of the Purchase Price or in duly performing and observing any of the
terms, covenants, agreements or conditions of the Contract to be performed and or observed.
3. Continuing Guarantee and Indemnity
The guarantee and indemnity contained in this Annexure shall be irrevocable and continuing and (but without limiting
the generality of the foregoing) shall not be revoked by notice or by reason of the death, insolvency, bankruptcy,
liquidation or mental incapacity of the Guarantor or of any of them or of the Buyer and the said guarantee and
indemnity shall not be discharged or released by any arrangement made between the Seller and the Buyer or by
any forbearances on the part of the Seller whether as to payment time performance or otherwise or by any
assignment, sub-license, variation, extension or termination of the whole or any part of the Contract or by any delay,
neglect, omission, dealing or other cause or reason whatsoever.
4. Not Claim in Competition to Seller
In the event that the Buyer shall go into compulsory or voluntary liquidation or become bankrupt or shall enter into
any composition arrangement with or assignment for the benefit of the Buyer's creditors or shall have appointed
under any Act or instrument or by order of any Court a manager or an administrator or a trustee or a receiver or a
receiver and manager or liquidator in relation to any part of the Buyer's undertakings or assets or property the
Guarantor shall not prove or claim in any such liquidation, bankruptcy, composition, arrangement or assignment or
in respect of such appointment until the Seller has received one hundred (100) cents in the dollar in respect of the
moneys owing by the Buyer to the Seller and the Guarantor shall hold in trust for the Seller such proof and claim.
5. Joint and Several Liability
Where there is more than one Guarantor to the Contract, liability for those Guarantor’s pursuant to this Annexure
shall be joint and several, and not in any way limited to any interest they may hold in the Buyer.
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EXECUTED AS A DEED
Guarantor’s Signature
Guarantor’s Signature
Date
Date
Witness’s Signature
Full Name
Full Name
Address
Address
Occupation
Occupation
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ANNEXURE G – POWER OF ATTORNEY
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THIS POWER OF ATTORNEY is made the ________ day of _____________________________ 201___
1. Appointment
I/We ____________________________________________________________________________________
_______________________________________________[full name of Buyer/s] of ______________________
________________________________________________________________________________ [address]
________________________________________ [suburb] ________ [state] ________ [post code] (Donor)
being the owner/s of Lot __________ on Strata Plan 68908 (Property) irrevocably and exclusively appoint the
Attorney as the Donor’s lawful attorney for the Term the purposes of:
(a) attending all meetings of the Strata Company and/or the strata council on behalf of the Donor;
(b) proposing and/or voting on all motions of the Strata Company and/or the strata council on behalf of the
Donor;
(c) executing any deed or document in the name of the Donor, including where applicable, any document
required to be entered into pursuant to the Strata Titles Act 1985 (WA) or Transfer of Aland Act 1893 (WA)
and
(d) doing any other thing, in the name of the Donor, that the Attorney may deem expedient,
to give effect to the powers granted to the Donor pursuant to the Contract, such powers being incorporated into
and forming part of this Deed.
2. Donor’s Covenants
The Donor covenants and agrees that it will not, nor will it attempt to, during the Term:
(a) do anything or seek to do anything that would interfere with or otherwise conflict with the exercise by the
Attorney of its powers under this Deed; and
(b) exercise a vote in respect of any motion considered at any meet of the Strata Company or the strata council
that the Attorney seeks to vote on;
any such action that the Donor attempts to make shall be invalid and of no effect.
3. Sub-attorneys
(a) The Attorney may freely appoint a sub-attorney or sub-attorneys to do anything which the Attorney may do
on behalf of the Donor, and may remove a sub-attorney and appoint another person in place of the subattorney removed.
(b) If there is more than one sub-attorney any act by the sub-attorneys may be done by any two or more of the
sub-attorneys jointly or by any one sub-attorney severally.
4. Ratification and indemnity
The Donor irrevocably agrees to:
(a) ratify and confirm;
(b) hold the Attorney harmless; and
(c) indemnify and keep indemnified the Attorney against all claims, costs, damages, losses and expenses
arising from,
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all things whatsoever done by the Attorney lawfully under this Deed.
5. Reliance
Any person, including but not limited to the Strata Company and Landgate, dealing with the Attorney or is subattorney, is entitled to rely on execution of any document by that person as conclusive evidence that:
(a) the person holds the office set out in the power;
(b) the power of attorney has come into effect;
(c) the power of attorney has not been revoked; and
(d) the right or power being exercised or being purported to be exercised is properly exercised and that the
circumstances have arisen to authorise the exercise of that right and power,
and is not required to make any inquiries in respect of any of the above matters.
6. Resale of Property
The Donor must not contract to sell the Property unless it is a condition of such sale that the buyer must grant a
power of attorney to the Attorney in the same terms as this Deed on and from settlement of such sale.
7. Irrevocability
(a) The Donor declares that the power of attorney granted by this Deed is given for valuable consideration and
is irrevocable for the Term.
(b) The Donor declares that the Donor and a person (including, but not limited to, a substitute or assignee)
claiming under the Donor are bound by anything the Attorney or its sub-attorney does in exercising powers
of proxy under this Deed.
(c) The Donor acknowledges that this power of attorney is an irrevocable and will continue in force
notwithstanding the subsequent death, mental incapacity or bankruptcy of the Donor.
8. Caveat
To secure the performance by the Donor of its obligations set out in this Deed the Donor charges all of its right
title and interest in the Property for the benefit of the Seller and authorises the Seller to lodge a subject to claim
caveat against the certificate of title to the Property
9. Governing law and jurisdiction
(a) This Deed is governed by the law in force in Western Australia.
(b) The Donor irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western
Australia and any courts which may hear appeals from those courts in respect of any proceedings in
connection with this Deed.
10. Definitions
In this Deed:
(a) Contract means the Contract for the Sale of Strata Titled Property by Offer and Acceptance between the
Seller and the Donor concerning the Property;
(b) Deed means this deed of proxy;
(c) Attorney means:
(i) the Seller;
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(ii) each of director and secretary of the Seller (jointly and severally); and
(iii) any assignee or nominee of the Seller;
(d) Seller means Harvest Properties (WA) Pty Ltd ACN 161 065 381 of 35 Richardson Arcade, Winthrop,
Western Australia;
(e) Strata Company means the strata company referred to in section 32 of the Strata Titles Act 1985 (WA)
created upon registration of the Strata Plan;
(f) Strata Plan means the strata plan of which the Property forms part being Strata Plan 68908;
(g) Term means the period commencing upon registration of the Strata Plan and ending seven years thereafter
(provided that where such period is greater than the maximum period permitted by law the period shall be the
maximum period permitted by law).
EXECUTED AS A DEED
[Execution for Individual/s]
Signed by the said
)
)
[Full Name] )
in the presence of:
Signature
Witness Full Name
Witness Address
Witness Occupation
Signed by the said
in the presence of:
)
)
[Full Name] )
Signature
Witness Full Name
Witness Address
Witness Occupation
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[Execution for Company/ies]
SIGNED for and on behalf of
ACN
[Full Name]
____ by authority of its directors in accordance with s127(1) of the Corporations Act 2001:
Director
Director/Secretary
Full Name
Full Name
ACN
[Full Name]
Director
Director/Secretary
Full Name
Full Name
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ANNEXURE H – PROXY
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THE OWNERS OF 884 - 888, NORTH LAKE ROAD, COCKBURN CENTRAL
STRATA PLAN 68908
THIS DEED is made the ________ day of _____________________________ 201___
1. Appointment
I/We ____________________________________________________________________________________
_______________________________________________[full name of Buyer/s] of ______________________
________________________________________________________________________________ [address]
________________________________________ [suburb] ________ [state] ________ [post code] (Appointor)
being the owner/s of Lot __________ on Strata Plan 68908 (Property) irrevocably and exclusively appoint the
Proxy as the Attorney’s proxy for the Term the purposes of:
(a) attending all meetings of the Strata Company and/or the strata council on behalf of the Appointor; and
(b) proposing and/or voting and/or vote on all motions of the Strata Company and/or the strata council on behalf
of the Appointor,
to give effect to the powers of proxy set out in the Contract, such powers being incorporated into and forming
part of this Deed.
2. Appointor’s Covenants
The Appointor covenants and agrees that it will not, nor will it attempt to, during the Term:
(a) exercise a vote on a matter which the Proxy seeks to vote on;
(b) revoke the proxy; or
(c) grant any other proxy to any other person dealing with the same matters in this Deed,
any such action that the proxy attempts to make shall be invalid and of no effect.
3. Ratification
The Appointor irrevocably agrees to:
(a) ratify and confirm; and
(b) hold the Proxy harmless,
for all things whatsoever done by the Proxy lawfully under this Deed.
4. Resale of Property
The Appointer must not contract to sell the Property unless it is a condition of such sale that the buyer must grant
a proxy to the Proxy in the same terms as this Deed on and from settlement of such sale.
5. Irrevocability
(a) The Appointor declares that the proxy granted by this Deed is given for valuable consideration and is
irrevocable for the Term.
(b) The Appointor declares that the Appointor and a person (including, but not limited to, a substitute or
assignee) claiming under the Appointor are bound by anything the Attorney does in exercising powers of
proxy under this Deed.
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(c) The Appointor acknowledges that this proxy is an irrevocable appointment and will continue in force
notwithstanding the subsequent death, mental incapacity or bankruptcy of the Appointor.
6. Caveat
To secure the performance by the Appointor of its obligations set out in this Deed the Buyer charges all of its right
title and interest in the Property for the benefit of the Seller and authorises the Seller to lodge a subject to claim
caveat against the certificate of title to the Property
7. Strata Titles Act
Notwithstanding any other provision of this deed, the appointment, extent and rights/authority afforded by this
deed to the Proxy is subject to section 50A of the Strata Titles Act 1985 (WA).
8. Governing law and jurisdiction
(a) This Deed is governed by the law in force in Western Australia.
(b) The Appointor irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of
Western Australia and any courts which may hear appeals from those courts in respect of any proceedings
in connection with this Deed.
9. Definitions
In this Deed:
(a) Contract means the Contract for the Sale of Strata Titled Property by Offer and Acceptance between the
Seller and the Appointor concerning the Property;
(b) Deed means this deed of proxy;
(c) Proxy means:
(i) the Seller;
(ii) each of director and secretary of the Seller (jointly and severally); and
(iii) any assignee or nominee of the Seller;
(d) Seller means Harvest Properties (WA) Pty Ltd ACN 161 065 381 of 35 Richardson Arcade, Winthrop,
Western Australia;
(e) Strata Company means the strata company referred to in section 32 of the Strata Titles Act 1985 (WA)
created upon registration of the Strata Plan;
(f) Strata Plan means the strata plan of which the Property forms part being Strata Plan 68908;
(g) Term means the period commencing upon registration of the Strata Plan and ending seven years thereafter
(provided that where such period is greater than the maximum period permitted by law the period shall be the
maximum period permitted by law).
EXECUTED AS A DEED
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[Execution for Individual/s]
Signed by the said
)
)
[Full Name] )
in the presence of:
Signature
Witness Full Name
Witness Address
Witness Occupation
Signed by the said
in the presence of:
)
)
[Full Name] )
Signature
Witness Full Name
Witness Address
Witness Occupation
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[Execution for Company/ies]
ACN
[Full Name]
Director
Director/Secretary
Full Name
Full Name
ACN
[Full Name]
Director
Director/Secretary
Full Name
Full Name
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ANNEXURE I – HOME BUILDING INDEMNITY
INSURANCE, NOTICE OF EXEMPTION
____________________________________________
_______________________________________
Signature(s) of seller (s)/sellers(s) agent
Signature(s) of purchaser(s)/purchaser(s) agent
Date ________________________________________
Date ___________________________________
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21 April 2015 3:15 PM
Page 169
Torrens Legal©
21 April 2015 3:15 PM
Page 170

Contract for Sale - Yallingup v2

Transcription

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