Conveyancing (Passing of Risk) Amendment Act 1986 (NSW)

CONVEYANCING (PASSING OF RISK) AMENDMENT

ACT 1986 No. 6

NEW SOUTH WALES

TABLE OF PROVISIONS

1. Short title
2. Commencement

3.     Amendment of Act No. 6, 1919

4. Existing contracts not affected

SCHEDULE 1—AMENDMENTS TO THE CONVEYANCING ACT 1919

CONVEYANCING (PASSING OF RISK) AMENDMENT ACT 1986

No. 6

NEW SOUTH WALES

Act No. 6, 1986

An Act to amend the Conveyancing Act 1919 with respect to the passing of risk between vendor and purchaser under a contract for the sale of land. [Assented to 24 April 1986.]

2   Act No. 6

Conveyancing (Passing of Risk) Amendment 1986

BE it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows:

Short title

1. This Act may be cited as the "Conveyancing (Passing of Risk)

Amendment Act 1986".

Commencement

2. (1) Sections 1 and 2 shall commence on the date of assent to this

Act.

(2) Except as provided by subsection (1), this Act shall commence on such day as may be appointed by the Governor and notified by proclamation published in the Gazette.

Amendment of Act No. 6, 1919

1. The Conveyancing Act 1919 is amended in the manner set forth in

Schedule 1.

Existing contracts not affected

1. The amendments made by this Act to the Conveyancing Act 1919 do

not apply to or in respect of a contract for the sale of land which was made

before the day appointed and notified under section 2 (2).

SCHEDULE 1

(Sec. 3)

AMENDMENTS TO THE CONVEYANCING ACT 1919

(1) Section 52 (Application of Part IV to land under Real Property Act

1900)—

Section 52 (2)—

At the end of section 52, insert:

(2) Division 7 shall apply to land under the provisions of the

Real Property Act 1900.

Conveyancing (Passing of Risk) Amendment 1986

SCHEDULE I—continued

AMENDMENTS TO THE CONVEYANCING ACT 1919—continued

(2) Part IV, Division 7—

After Division 6, insert:

DIVISION 7—Passing of risk between vendor and purchaser

Interpretation

66J. (1) In this Division—

"damage" includes destruction;
"land" includes buildings and other fixtures;
"sale" includes exchange.

(2) For the purposes of this Division, land damaged after the making of a contract for the sale of the land is substantially damaged if the damage renders the land materially different from that which the purchaser contracted to buy.

Postponement of passing of risk to purchaser

66K. (1) The risk in respect of damage to land shall not pass

to the purchaser under a contract for the sale of the land until—

(a) the completion of the sale; or

(b)	the time stipulated by the parties to the contract, being a
time after the purchaser enters into, or is entitled to enter

into, possession of the land,

whichever first occurs.

(2) The reference in subsection (1) to possession of land

includes a reference to—

(a) the occupation of the land (whether pursuant to a licence or otherwise) pending completion of the sale of the land; and

(b) the receipt of income from the land.

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Conveyancing (Passing of Risk) Amendment 1986

SCHEDULE 1—continued

AMENDMENTS TO THE CONVEYANCING ACT 1919—continued

Power to rescind contract where land substantially damaged

66L. (1) Where land is substantially damaged after the making

of a contract for the sale of the land and before the risk in respect of the damage passes to the purchaser, the purchaser may rescind the contract by notice in writing served on the vendor before the completion of the sale and—

(a)	within 28 days after the purchaser first became aware of the damage; or
(b)	within such longer period as may be agreed to by the vendor and purchaser.

(2) A notice under subsection (1) which is served—
(a) by a solicitor or an agent acting for the purchaser; or

(b) on a solicitor or an agent acting for the vendor,

shall be deemed to have been served by the purchaser or on the

vendor, as the case may be.

(3) A notice under subsection (1) may be served—

(a) in any manner prescribed by section 170; or

(b) in any manner prescribed by the contract to which it relates for the service of notices under that contract.

(4) Where the purchaser rescinds a contract for the sale of land pursuant to the right conferred by subsection (1)—

(a) all money paid by the purchaser under the contract shall

be repaid to the purchaser; and

(b) the vendor and purchaser shall be relieved from all liability under the contract, except a liability arising out of a breach of any term or condition contained or implied in the contract occurring before the date of rescission.

(5) Subsection (4) does not affect any provision in a contract relating to an adjustment between the vendor and purchaser where the purchaser has received the benefit of possession of the land.

Conveyancing (Passing of Risk) Amendment 1986

SCHEDULE 1—continued

AMENDMENTS TO THE CONVEYANCING ACT 1919—continued

(6) A purchaser is not entitled to exercise the right conferred by subsection (1) if the damage was caused by a wilful or negligent act or omission on the part of the purchaser.

Abatement of purchase price where land damaged

66M. (1) Where land is damaged after the making of a contract for the sale of the land and before the risk in respect of the damage passes to the purchaser, the purchase price shall be reduced on completion of the sale by such amount as is just and equitable in the circumstances.

(2) Subsection (1) applies whether or not the land concerned is substantially damaged.

(3) Subsection (1) does not apply where the damage was caused by a wilful or negligent act or omission on the part of the purchaser.

(4) If the purchase price is not reduced on completion of the sale of land as required by subsection (1), the amount by which the purchase price should have been reduced may be recovered by the purchaser from the vendor as a debt.

Refusal to enforce specific performance against vendor

66N. The Court may, if it thinks that it would be unjust or inequitable to require the vendor to complete the sale of land

the sale of the land and before the risk in respect of the damage	that is substantially damaged after the making of the contract for
passes to the purchaser—
(a)	refuse to enforce against the vendor specific performance of the contract;
(b)	order the repayment of any money paid by the purchaser under the contract; and
(c)	make such other orders as the Court considers appropriate in the circumstances.

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Conveyancing (Passing of Risk) Amendment 1986

SCHEDULE 1—continued

AMENDMENTS TO THE CONVEYANCING ACT 1919—continued

Contracting out

66o. (1) In this section—

"dwelling-house" means premises (including a lot under the Strata Titles Act 1973) used, or designed for use, principally as a place of residence, and includes—

(a)	outbuildings and other appurtenances to a dwelling-house; and
(b)	a dwelling-house which is in the course of construction.

(2) This Division has effect—

(a)	in the case of the sale of a dwelling-house— notwithstanding any stipulation to the contrary; or
(b)	in any other case—subject to any stipulation to the contrary.