New South Wales Consolidated Acts

RETIREMENT VILLAGES ACT 1999 - SECT 36

36 Consequences of resident's rescission of residence contract

(1) A rescission notice in relation to a residence contract is taken also to apply to the service contract and any other village contract entered into by the resident concerned, and each of those contracts is taken to be void.

(2) As soon as is reasonably practicable (and no later than one month) after a rescission notice that applies to a residence contract takes effect--

(a) the rescinding party is to be repaid all money paid by or on behalf of the party under the residence contract, and

(b) if the residence contract related to residential premises that are subject to a community land scheme, company title scheme or strata scheme and was rescinded under section 33, the rescinding party must--

(i) execute such instruments as may be necessary to enable re-registration of the shares (in the case of premises that are subject to a company title scheme) or title (in any other case) in the name of the operator under the rescinded contract, and

(ii) deliver up to the operator the relevant share documents.

(3) The Tribunal may do either or both of the following--

(a) on the application of the rescinding party--order the other party to the contract to comply with subsection (2) (a),

(b) on the application of the operator--order the rescinding party to comply with subsection (2) (b).

(4) Any fees or costs associated with a rescission during the cooling-off period are to be paid by the party incurring them.

(5) Any fees or costs associated with a rescission at any other time (including registration fees) are payable by the operator, and the Tribunal may, on the application of the rescinding party, order the operator to make the relevant payment.

(6) The rescinding party is not liable to make any payment to the operator in relation to the rescinded contract unless ordered to do so by the Tribunal.

(7) Any order under subsection (5) is subject, in the case of a rescinding party to whom subsection (2) (b) applies, to his or her compliance with that paragraph.

(8) Either party to a rescinded residence contract is entitled to make a claim to the Tribunal for--

(a) such compensation, adjustment or accounting as is just and equitable between the parties if the rescinding party has received the benefit of possession of the residential premises concerned, or

(b) the payment of damages, costs, or expenses arising out of a breach of any term, condition or warranty contained or implied in the contract (other than a term, condition or warranty referred to in section 52A of the Conveyancing Act 1919 ),

but not so as to affect rights and obligations under this section.

Note : Section 52A of the Conveyancing Act 1919 provides (among other things) that a vendor under a contract for the sale of land is taken to have included in the contract such terms, conditions and warranties as may be prescribed. The remedies and relief available to a purchaser under such a contract (and the penalties that may be incurred by a vendor) for a breach of a prescribed term, condition or warranty are specified in the regulations made under that Act.

(9) This section has effect despite the provisions of Division 8 of Part 4 of the Conveyancing Act 1919 .

Note : Division 8 of Part 4 of the Conveyancing Act 1919 provides (among other things) for a cooling off period in relation to a contract for the sale of residential property (within the meaning of that Division) and allows such a contract to be rescinded during that period. However, the rights and obligations of the parties under that Division differ from those under this section. Division 8 of Part 4 does not allow rescission after completion of the contract, and the purchaser under the rescinded contract forfeits 0.25% of the purchase price to the vendor.
See section 50 of the Duties Act 1997 for refund of duty paid on a rescinded agreement for the sale or transfer of dutiable property.