New South Wales Consolidated Acts

CONVEYANCING ACT 1919 - SECT 66ZS

66ZS Rescission under sunset clauses

(1) In this section--

"subject lot" means the residential lot being sold under an off the plan contract.

"sunset clause" means a provision of an off the plan contract that provides for the contract to be rescinded if the sunset event does not occur by the sunset date.

"sunset date" means the date set out in the off the plan contract as the latest date (subject to any extension provided for in the contract) by which the sunset event must occur.

"sunset event" means the creation of the subject lot, the issue of the occupation certificate in relation to the subject lot or another event prescribed by the regulations.

(2) For the purposes of this section--

(a)
"rescind" includes terminate or otherwise bring to an end, and

(b) a lot is created when the plan creating the lot becomes a registered plan.

(3) A vendor may rescind an off the plan contract under a sunset clause, but only if--

(a) each purchaser under the contract, at any time after being served with the notice under subsection (4), consents in writing to the rescission, or

(b) the vendor has obtained an order of the Supreme Court under this section permitting the vendor to rescind the contract under the sunset clause, or

(c) the regulations otherwise permit the vendor to rescind the contract under the sunset clause.

(4) It is a term of an off the plan contract that a vendor who is proposing to rescind the contract under a sunset clause must serve each purchaser under the contract notice in writing at least 28 days before the proposed rescission that specifies why the vendor is proposing to rescind the contract and the reason for the sunset event not occurring by the sunset date.

(5) A sunset clause cannot automatically rescind an off the plan contract and, if it purports to do so, it is to be read as if it instead permits the contract to be rescinded on or after the sunset date in accordance with this section.

(6) The Supreme Court may, on the application of a vendor under an off the plan contract, make an order permitting the vendor to rescind the contract under a sunset clause, but only if the vendor satisfies the Court that making the order is just and equitable in all the circumstances.

(7) In determining whether it is just and equitable in all the circumstances, the Court is to take the following into account--

(a) the terms of the off the plan contract,

(b) whether the vendor has acted unreasonably or in bad faith,

(c) the reason for the sunset event not occurring by the sunset date,

(d) the likely date on which the sunset event will occur,

(e) whether the subject lot has increased in value,

(f) the effect of the rescission on each purchaser,

(g) any other matter the Court considers to be relevant,

(h) any other matter prescribed by the regulations.

(8) The vendor is liable to pay the costs of a purchaser in relation to the proceedings for an order under this section unless the vendor satisfies the Court the purchaser unreasonably withheld consent to the rescission of the off the plan contract under the sunset clause.

(9) Notice may be served on a purchaser by serving it on a person who is authorised under the off the plan contract as a representative of the purchaser.

(10) A provision in an off the plan contract has no effect to the extent that it is inconsistent with this section.

(11) Nothing in this section limits--

(a) the Court's power to award damages against the vendor if an order permitting the vendor to rescind the contract under a sunset clause is made under subsection (6), or

(b) any right that a purchaser may have to rescind an off the plan contract under a sunset clause.