8 April, 2010
Are you ready for the Australian Consumer Law (ACL) expected to commence 1 July 2010?
Get ready for the ACL’s impact on property transactions, which will void a term in a consumer contract if (1) the term is in a standard form contract and (2) the term is unfair. Business-to-consumer (not business-to-business) agreements will be caught including multi-lot contracts of sales and shopping centre leases.Some example of unfair terms may include:
- a term that permits a party to vary a contract unilateral (i.e. vendor’s right to extend date for completion of construction)
- a term that permits a party to vary the upfront price without the right of another party to terminate (i.e. landlord’s right in Agreement for Lease to determine costs for variation)
- a term permitting a party to unilaterally vary the characteristics of goods or services to be supplied (i.e. vendor’s right to unilaterally substitute materials or chattels – but if requirement to substitute for similar quality materials, likely not be a unfair term)
- a term that permits a party to terminate a contract (i.e. vendor’s or landlord’s right to terminate if planning approval not obtained); and
- a term that permits a party to unilaterally determine whether a contract has been breached or to interpret the contract (or have that effect).
If the term is unfair and void, the parties cannot enforce it BUT the contract binds both parties IF it is capable of operating without the unfair term.
There is a presumption that a contract is standard form unless a party proves otherwise. Relevant considerations for proof include (1) if contract was prepared by one party before any discussions commenced, (2) one party had most of the bargaining power, (3) the contract was take-it-or-leave-it (4) was the other party given an opportunity to negotiate and (5) did the contract terms take in specific characteristics of the other party
In determining whether a term is unfair, three matters must be satisfied: (1) would the term lead to a significant imbalance in party’s rights (3) is the term not reasonably necessary to protect a party’s legitimate interests and (3) would the term cause detriment to the other party.
IT’S THEREFORE TIME TO REVIEW YOUR STANDARD FORM CONTRACTS AND CONSIDER SUSPECT TERMS THAT MAY BE UNFAIR.
AT this stage, the ACL will commence to operate on contracts entered into, renewed or varied from 1 July 2010.
31 March, 2010
Highton Views, Maribyrnong
Asia Pacific Lawyers has been recently involved in this large 34 apartment development just behind Highpoint shopping centre. We have negotiated the Section 173 Agreement with council’s lawyers and advised on site remedial works and the proposed plan of subdivision. We are currently preparing the master contract of sale.
23 February, 2010
AXF Group sells 116 Doncaster apartment complex
Asia Pacific Lawyers recently completed for the AXF Group the Contract of Sale documentation for the 116 apartment “The Berkeley” development in Doncaster just behind Westfield Doncaster shoppingtown. This involved advising the AXF Group on the initial purchase of the land, planning issues relating to the planning permit application and subdivision of the land into 116 apartments and associated car parks and common areas.
Designed by Carabott Holt architects, The Berkeley is a contemporary residential apartment tower within the heart of Doncaster
2 February, 2010
The Dorking, Box Hill
Another contemporary 10 town house development currently selling is “The Dorking”, townhouses priced from $569,900 to $749,900. Asia Pacific Lawyers negotiated the land purchase and prepared individual contracts of sale.
1 November 2009
The Kinnears Site just behind Victoria University, Footscray
This superb 3 ha site is currently being developed by the AXF Group. It is a massive undertaking and will take some years to develop in stages. Asia Pacific Lawyers has been involved in this project from the ground up – assisting AXF with the land purchase and now involved in the preliminary planning work.
