Property Law Act 1974 (Qld)

Property Law Act 1974

An Act to consolidate, amend, and reform the law relating to conveyancing, property, and contract, to terminate the application of certain statutes, to facilitate the resolution of financial matters at the end of a de facto relationship, and for other purposes

Part 1    Preliminary

1   Short title

This Act may be cited as the Property Law Act 1974.

2   Act binds Crown

This Act, except where otherwise provided, binds the Crown not only in right of the State of Queensland but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.

3   Dictionary

The dictionary in schedule 6 defines particular words used in this Act.

4   Act not to be taken to confer right to register restrictive covenant

Nothing in this Act shall be construed as conferring on any person a right, in respect of registered land, to registration of a restrictive covenant.

5   Application of Act

(1)This Act shall—

(a)apply to unregistered land; and

(b)apply to land under the provisions of the Land Title Act 1994, including any lease of such land, but subject to that Act; and

(c)apply to estates, interests, and any other rights in or in respect of land, granted, created or taking effect under any Act or any repealed Act provisions of which continue to apply with respect to this Act, but subject to the provisions of such Act; and

(d)without limiting the generality of paragraph (c)—

(i)subject to the provisions of the Coal Mining Act, apply to land under that Act; or

(ii)subject to the provisions of the Land Act, apply to land under that Act; or

(iii)subject to the provisions of the Mineral Resources Act, apply to leases, and any other rights in or in respect of land, granted, created or taking effect under that Act.

(2)Where, by this Act, including this section, a provision is expressed to apply to land or interests in land under the provisions of a particular Act, such expression shall not be construed to mean that the provision—

(a)applies exclusively to such land; or

(b)does not apply to property other than land.

6   Savings in regard to ss 10–12 and 59

Nothing in section 10 to 12 or 59—

(a)invalidates any disposition by will; or

(b)affects any interest validly created before the commencement of this Act; or

(c)affects the right to acquire an interest in land because of taking possession; or

(d)affects the law relating to part performance; or

(e)affects a sale by the court.

Part 2    General rules affecting property

7   Effect of repeal of Statute of Uses

(1)Interest in land which under the Statute of Uses could before the commencement of this Act have been created as legal interests shall after the commencement of this Act be capable of being created as equitable interests.

(2)Despite subsection (1), an equitable interest in land shall, after the commencement of this Act, only be capable of being validly created in any case in which an equivalent equitable interest in property real or personal could have been validly created before such commencement.

(3)In a voluntary conveyance executed after the commencement of this Act a resulting trust for the grantor shall not be implied merely by reason that the property is not expressed to be conveyed for the use or benefit of the grantee.

8   Lands lie in grant only

(1)All lands and all interests in land shall lie in grant and shall be incapable of being conveyed by livery or livery and seisin, or by feoffment, or by bargain and sale, or by lease and release, and a conveyance of an interest in land may operate to pass the possession or right to possession of land, without actual entry, but subject to all prior rights to the land.

(2)The use of the word ‘grant’ is not necessary to convey land or to create an interest in the land.

9   Reservation of easements etc. in conveyances of land

(1)In a conveyance of land a reservation of any easement, right, liberty, or privilege not exceeding in duration the estate conveyed in the land, shall operate without any execution of the conveyance by the grantee of the land out of which the reservation is made, or any regrant by the grantee, so as to create the easement, right, liberty or privilege, and so as to vest the same in possession in the person (whether or not the person be the grantor) for whose benefit the reservation was made.

(2)This section applies only to reservations made after the commencement of this Act.

10   Assurances of land to be in writing

(1)No assurance of land shall be valid to pass an interest at law unless made by deed or in writing signed by the person making such assurance.

(2)This section does not apply to—

(a)a disclaimer made under any law relating to bankruptcy in force before or after the commencement of this Act, or not required to be evidenced in writing; or

(b)a surrender by operation of law, including a surrender which may, by law, be effective without writing; or

(c)a lease or tenancy or other assurance not required by law to be made in writing; or

(d)a vesting order; or

(e)an assurance taking effect under any Act or Commonwealth Act.

11   Instruments required to be in writing

(1)Subject to this Act with respect to the creation of interests in land by parol—

(a)no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent lawfully authorised in writing, or by will, or by operation of law; and

(b)a declaration of trust respecting any land must be manifested and proved by some writing signed by some person who is able to declare such trust or by the person’s will; and

(c)a disposition of an equitable interest or trust subsisting at the time of the disposition, must be manifested and proved by some writing signed by the person disposing of the same, or by the person’s agent lawfully authorised in writing, or by will.

(2)This section does not affect the creation or operation of resulting, implied, or constructive trusts.

12   Creation of interests in land by parol

(1)All interests in land created by parol and not put in writing and signed by the person so creating the same, or by the person’s agent lawfully authorised in writing, shall have, despite any consideration having been given for the same, the force and effect of interests at will only.

(2)Nothing in this Act shall affect the creation by parol of a lease taking effect in possession for a term not exceeding 3 years, with or without a right for the lessee to extend the term for any period which with the term would not exceed 3 years.

13   Persons taking who are not parties

(1)In respect of an assurance or other instrument executed after the commencement of this Act, a person may take—

(a)an immediate or other interest in land; or

(b)the benefit of any condition, right of entry, covenant or agreement over or respecting land;

even though the person may not have executed the assurance or other instrument, or may not be named as a party to the assurance or other instrument, or may not have been identified or in existence at the date of execution of the assurance or other instrument.

(2)Such person may sue, and shall be entitled to all rights and remedies in respect of the assurance or other instrument, as if the person had been named as a party to and had executed the assurance or other instrument.

14   Conveyances by a person to the person etc.

(1)In conveyances and leases made after 28 December 1867, personal property, including chattels real, may be conveyed or leased by a person to the person jointly with another person by the like means by which it might be conveyed or leased by the person to another person.

(2)In conveyances or leases made after the commencement of this Act freehold land, or a thing in action, may be conveyed or leased by a person to the person jointly with another person, by the like means by which it might be conveyed or leased by the person to another person, and may, in like manner, be conveyed or leased by a husband to his wife, and by a wife to her husband, alone or jointly with another person.

(3)After the commencement of this Act a person may convey or lease land to or vest land in the person but may not convey to or vest in the person an estate in fee simple absolute in such land.

(4)Two or more persons (whether or not being trustees or personal representatives) may convey or lease, and shall be deemed always to have been capable of conveying or leasing, any property vested in them to any 1 or more of themselves in like manner as they could have conveyed or leased such property to a third party.

(4A)However, if the persons in whose favour the conveyance or lease is made are, because of any fiduciary relationship or otherwise, precluded from validly carrying out the transaction, the conveyance or lease shall be liable to be set aside.

(5)In subsection (4)—

or more of themselves includes all the persons by whom the conveyance or lease is or has been made.

15   Rights of husband and wife

A husband and wife shall, for all purposes of acquisition of any interest in property, under a disposition made or coming into operation after the commencement of the Act, be treated as 2 persons.

15A   Rights of aliens

(1)An alien may take, give, buy or sell property as if the alien were an Australian citizen.

(2)The application of succession laws to a person is not different merely because the person is an alien.

(3)This section does not entitle an alien to any right as an Australian citizen other than a right given by this section.

(4)In this section—

property means any interest in real, personal, movable or immovable property.

16   Presumption that parties are of full age

The persons expressed to be parties to any conveyance shall, until the contrary is proved, be presumed at the date of such conveyance to be of full age or of such other lesser age as to have capacity to give effect to the conveyance.

17   Merger

An estate does not merge by operation of law only if the beneficial interest in the estate would not be merged or extinguished in equity.

18   Restrictions on operation of conditions of forfeiture

(1)Where there is a person entitled to income (including an annuity or other periodical income) or any other property, subject to a condition of forfeiture on alienation, whether voluntary or involuntary, and whether with or without words of futurity, then—

(a)unless the instrument containing the condition expressly provides to the contrary, no alienation, whether by way of charge or otherwise, of the income or other property, made or occurring before the person becomes entitled to receive payment of the income, or to call for a conveyance or delivery of the other property, shall operate to create forfeiture under the condition unless the alienation is in operation at the time the person becomes so entitled; and

(b)despite any stipulation to the contrary in the instrument containing the condition no voluntary alienation made by the person, with the sanction of the court, shall operate to create forfeiture under the condition.

(2)This section applies where the condition of forfeiture is contained in an instrument executed, made, or coming into operation before or after the commencement of this Act, but only in cases where such person becomes entitled to receive payment of the income, or to call for an assurance or delivery of the other property, or where the alienation with the sanction of the court is made, after such commencement.

Part 3    Freehold estates

19   Freehold estates capable of creation

After the commencement of this Act the following estates of freehold shall be capable of being created and, subject to this Act, of subsisting in land—

(a)estate in fee simple;

(b)estate for life or lives.

20   Incidents of tenure on grant in fee simple

(1)All tenures created by the Crown upon any grant of an estate in fee simple made after the commencement of this Act shall be taken to be in free and common socage without any incident of tenure for the benefit of the Crown.

(2)Where any quit rent issues to the Crown out of any land, or the residue of any quit rent issues to the Crown out of any land in respect of which quit rent has been apportioned or redeemed, such land or residue is released from quit rent.

(3)In respect of property of any person dying intestate on or after 16 April 1968—

(a)escheat is abolished; and

(b)all such property, whether real or personal, shall, subject to this section, be distributed in the manner and to the person or persons provided by the Succession Act 1981, but subject to the provisions (including part 4) of that Act.

(4)Subject to any other Act, property of any corporation dissolved after the commencement of this Act shall not escheat, but the Crown shall be entitled to and take as bona vacantia all such property, whether real or personal, as would apart from this Act be liable to escheat or pass to the Crown as bona vacantia.

(5)Despite this section, where the Crown, or it is made to appear to the Minister that the Crown, has a right to any property, by escheat or devolution or as bona vacantia, on the death intestate of any person, whether the death occurred before or after the passing of this Act, the Minister, upon application being made for the waiver of that right, may by gazette notice waive such right on such terms (if any), whether for the payment of money or otherwise, in favour of any 1 or more of the following persons, whether belonging to the same or to different classes—

(a)any dependants, whether kindred or not, of the intestate;

(b)any other persons for whom the intestate might reasonably have been expected to make provision;

(c)any persons to whom the State would, if the State’s title had been duly proved by inquisition, have the power to grant such property;

(d)any other persons having in the opinion of the Minister a just claim to the grant of the property;

(e)the trustees of any person as mentioned in paragraphs (a) to (d);

as to the Minister seems reasonable.

(6)Upon a waiver made under subsection (5), the right of the State so waived, subject to subsection (10), shall vest in the person or persons in favour of whom the waiver is made.

(7)For the purpose of giving effect to any waiver under subsection (5) the Minister, by gazette notice or a further gazette notice, may do all or any of the following things—

(a)appoint such person as the Minister considers suitable to be administrator of the property of the person who has died intestate (the deceased);

(b)appoint a person to execute any conveyance or transfer or other document for the purpose of conveying or transferring under the terms of the waiver to the person or persons in whose favour the waiver is made the right of the State so waived;

(c)give directions that the Minister considers necessary or desirable to give effect to the waiver (including the terms of the waiver) and the directions are to be given effect.

(8)The person appointed under subsection (7)(a) to be administrator may apply to the Supreme Court for a grant of letters of administration of the property of the deceased and such letters of administration may be granted accordingly.

(8A)For the purposes of the grant of the letters of administration and the administration under the grant, the property in respect of which the right of the State has been waived shall be deemed to form part of the estate of the deceased to be administered under the terms of the waiver for the benefit of the person or persons in favour of whom the waiver is made.

(9)A waiver under subsection (5) shall have the effect of a grant of the land or other property of whatever kind the subject of the waiver or any part of the waiver, and in the case of land in fee simple or for any less estate, to the administrator appointed under this section or to any person or persons in favour of whom the waiver is made.

(10)This section shall be subject to schedule 1 and all proceedings by way of writ of inquisition or otherwise may be had under that schedule.

(11)Despite this section and that because of the death intestate of any person the State has a right to any property of that person by escheat or devolution or as bona vacantia the public trustee shall have and shall be deemed always to have had the same power—

(a)to obtain from the court or otherwise under the Public Curator Act 1915 or the Public Trustee Act 1978 authority to administer the estate of such person; and

(b)to deal in due course of administration with the estate of such person;

as the public trustee has in a case where the State has no such right.

(12)In this section—

intestate has the meaning given by the Succession Act 1981, section 5.

21   Alienation in fee simple

Land held of the Crown in fee simple may be assured in fee simple without licence and without fine and the person taking under the assurance shall hold the land of the Crown in the same manner as the land was held before the assurance took effect.

22   Abolition of estates tail

(1)In any instrument coming into operation after the commencement of this Act a limitation which, if this section had not been enacted, would have created an estate tail (legal or equitable) in any land in favour of any person shall be deemed to create an estate in fee simple (legal or equitable as the case may be) in that land in favour of that person to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of any such estate tail and to the exclusion of all estates or interests in reversion on any such estate tail.

(2)Where at or after the commencement of this Act any person is entitled, or would, but for subsection (1), be entitled, to an estate tail (legal or equitable) and whether in possession, reversion, or remainder, in any land, that person, subject to subsection (2A), shall be deemed to be entitled to an estate in fee simple (legal or equitable, as the case may be) in that land, to the exclusion of all estates or interests limited to take effect after the determination or in defeasance of the estate tail and to the exclusion of all estates or interests in reversion on the estate tail.

(2A)Where any such person is an infant and such land for any estate or interest would pass to any other person in the event of the death of the infant before attaining full age and without issue, then in such case, the infant shall be deemed to take an estate in fee simple with an executory limitation over of such estate or interest on the happening of such event in favour of such other person.

(3)In this section—

estate tail includes that estate in fee into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred, also an estate in fee voidable or determinable by the entry of the issue in tail, but does not include the estate of a tenant in tail after possibility of issue extinct.

(4)The registrar is authorised, on a request in the approved form, to make the recordings in the register necessary to give effect to this section.

23   Abolition of quasi-entails

In any instrument coming into operation after the commencement of this Act a limitation which, if this section had not been passed, would have created in favour of any person a quasi-entail (legal or equitable) in respect of any estate for life or lives of another or others shall be deemed to create in favour of that person an estate (legal or equitable as the case may be) for the life or lives of that other.

24   Liability of life tenant for voluntary waste

(1)A tenant for life or lives shall not commit voluntary waste.

(2)Nothing in subsection (1) applies to any estate or tenancy without impeachment of waste, or affects any licence or other right to commit waste.

(3)A tenant who infringes subsection (1) is liable in damages to the tenant’s person in remainder or reversioner, but this section imposes no criminal liability.

25   Equitable waste

An estate for life without impeachment of waste shall not confer, or be deemed to have conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right expressly appears by the instrument creating such estate.

26   Recovery of property on determination of a life or lives

(1)Every person having any estate or interest in any property determinable upon a life or lives who, after the determination of such life or lives without the express consent of the person next immediately entitled upon or after such determination, holds over or continues in possession of such property estate or interest, or of the rents, profits or income of the property, shall be liable in damages or to an account for such rents and profits, or both, to the person entitled to such property, estate, interest, rents, profits or income after the determination of such life or lives.

(2)Where a reversion, remainder, or other estate or interest in any property is expectant upon the determination of a life or lives, the reversioner, person in remainder, or other person entitled to such reversion, remainder, or estate or interest may in any proceeding claiming relief on the basis that such life or lives has or have determined, adduce evidence of belief that such life or lives has or have been determined and of the grounds of such belief, and the court may in its discretion order that, unless the person or persons on whose life or lives such reversion, remainder, or other estate or interest is expectant is or are produced in court or is or are otherwise shown to be living, such person or persons shall for the purposes of such proceedings be accounted as dead, and relief may be given accordingly.

(3)If in such proceedings a person in respect of whom it is material that the person be shown to be living or not is shown to have remained beyond Australia, or otherwise absented himself or herself from the place in which if in Australia the person might be expected to be found, for the space of 7 years or upwards, such person, if not proved to be living, shall for the purposes of such proceedings be accounted as dead, and relief may be given accordingly.

(4)If in any such proceedings judgment has been given against the plaintiff, and afterwards such plaintiff brings subsequent proceedings upon the basis that such life has determined, the court may make an order staying such proceedings permanently or until further order or for such time as may be thought fit.

(5)If in consequence of the judgment given in any such proceedings, any person having any estate or interest in any property determinable on such life or lives has been evicted from or deprived of any property or any estate or interest in the property, and afterwards it appears that such person or persons on whose life or lives such estate or interest depends is or are living or was or were living at the time of such eviction or deprivation, the court may give such relief as is appropriate in the circumstances.

27   Penalty for holding over by life tenant

Where any tenant for life or lives or person who is in or comes into possession of any land by, from or under or by collusion with such tenant, wilfully holds over any land after—

(a)termination of the tenancy; and

(b)after demand has been made and notice in writing given for the delivery of possession of the land by the person to whom the remainder or reversion of such land belongs or the person’s agent lawfully authorised;

then, the person so holding over shall, for and during the time the person so holds over or keeps the person entitled out of possession of the land, be liable to the person kept out of possession at the rate of double the yearly value of the land so detained for as long as the land shall have been so detained, to be recovered by action in a court of competent jurisdiction.

28   Abolition of the rule in Shelley’s Case

Where by any instrument coming into operation after the commencement of this Act an interest in any property is expressed to be given to the heir or heirs or issue or any particular heir or any class of the heirs or issue of any person in words which, but for this section would, under the rule of law known as the rule in Shelley’s Case, and independently of section 22, have operated to give to that person an interest in fee simple or an entailed interest, such words shall operate as words of purchase and not of limitation, and shall be construed and have effect accordingly.

29   Words of limitation

(1)A disposition of freehold land to any person without words of limitation, or any equivalent expression, shall pass to the disponee the whole interest which the disponor had power to dispose of in such land, unless a contrary intention appears in the disposition.

(2)A disposition of freehold land to a corporation sole by the disponor’s corporate designation without the word ‘successors’ shall pass to the corporation the whole interest which the disponor had power to dispose of in such land, unless a contrary intention appears in the disposition.

(3)This section applies to dispositions effected after the commencement of this Act.

Part 4    Future interests

30   Creation of future interests in land

(1)A future interest in land validly created after the commencement of this Act shall take effect as an equitable and not a legal interest.

(2)An interest in remainder created after the commencement of this Act must not be registered in the freehold land register.

(2A)Subsection (2) has effect despite anything in the Land Title Act 1994.

(3)This section shall not apply to any future interest—

(a)created before the commencement of this Act whether that interest arose or arises before or after the commencement of this Act; or

(b)created or arising because of section 22.

(4)In this section—

future interest means—

(a)a legal contingent remainder; or

(b)a legal executory interest.

31   Power to dispose of all rights and interests in land

(1)All rights and interests in land may be disposed of including—

(a)a contingent, executory or future interest in any land or a possibility coupled with an interest in any land, whether or not the object of the gift or limitation of such interest or possibility be ascertained; and

(b)a right of entry, into or upon land whether immediate or future, and whether vested or contingent.

(2)All rights of entry affecting a legal estate which are exercisable on condition broken or for any other reason may, after the commencement of this Act, be made exercisable by any person and the persons deriving title under that person, but, in regard to an estate in fee simple (not being a rent charge held for a legal estate) only within the period authorised by the rule relating to perpetuities.

32   Restriction on executory limitations

(1)Where there is a person entitled to—

(a)land, or an equitable interest in land, for an estate in fee simple or for any less estate or interest; or

(b)any other property, or an interest in any other property;

with an executory limitation over on default or failure of all or any of the person’s issue, whether within or at any specified period of time or not, that executory limitation shall be or become void and incapable of taking effect if, and as soon as, there is living any issue who has attained full age and capacity of the class on default or failure of which the limitation over was to take effect.

(2)This section applies where the executory limitation is contained in an instrument coming into operation after the commencement of this Act.

Part 5    Concurrent interest—co-ownership

Division 1 General rules

33   Forms of co-ownership

(1)Any property and any interest, whether legal or equitable, in any property may be held by 2 or more persons—

(a)as joint tenants; or

(b)as tenants in common.

(2)Any 2 or more persons acquiring land after the commencement of this Act in circumstances in which, but for the passing of this Act, they would have acquired the land as coparceners shall acquire such land as tenants in common and not as coparceners.

34   Power for corporations to hold property as joint tenants

(1)A body corporate shall be capable of acquiring and holding any property in joint tenancy in the same manner as if it were an individual, and where a body corporate and an individual or 2 or more bodies corporate become entitled to any property under circumstances or because of any instrument which would, if the body corporate had been an individual, have created a joint tenancy they shall be entitled to the property as joint tenants.

(1A)However, the acquisition and holding of property by a body corporate in joint tenancy shall be subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty.

(2)Where a body corporate is a joint tenant of any property, then on its dissolution the property shall devolve on the other joint tenant.

(3)This section shall apply in all cases of the acquisition or holding of property after the commencement of this Act.

35   Construction of dispositions of property to 2 or more persons together

(1)A disposition of the beneficial interest in any property, whether with or without the legal interest, to or for 2 or more persons together beneficially shall be construed as made to or for them as tenants in common, and not as joint tenants.

(2)This section does not apply—

(a)to persons who by the terms or by the tenor of the disposition are executors, administrators, trustees, or mortgagees, nor in any case where the disposition provides that persons are to take as joint tenants or tenants by entireties; and

(b)to a disposition for partnership purposes in favour of persons carrying on business in partnership.

(3)Subject to the provisions of the Partnership Act 1891, a disposition for partnership purposes of an interest in any property in favour of persons carrying on business in partnership shall, unless a contrary intention appears, be construed as—

(a)a disposition (if any) of the legal interest to those persons as joint tenants; and

(b)a disposition (if any) of the beneficial interest to those persons as tenants in common.

(4)This section applies to any disposition made after the commencement of this Act.

(5)In this section—

disposition includes a disposition which is wholly or partly oral.

36   Tenants in common of equitable estate acquiring the legal estate

Where 2 or more persons entitled beneficially as tenants in common to an equitable estate in any property are or become entitled in their own right, whether as joint tenants or tenants in common, to the legal estate in such property equal to and coextensive with such equitable estate both the legal and equitable estates shall be held by them as tenants in common unless such persons otherwise agree.

Division 2 Statutory trusts, sale and division

37   Definitions for div 2

In this division—

co-owner has a corresponding meaning and includes an encumbrancee of the interest of a joint tenant or tenant in common.

co-ownership means ownership whether at law or in equity in possession by 2 or more persons as joint tenants or as tenants in common.

37A   Property held on statutory trust for sale

Property held upon the statutory trust for sale shall be held upon trust to sell the same and to stand possessed of the net proceeds of sale, after payment of costs and expenses, and of the net income until sale after payment of costs, expenses, and outgoings, and in the case of land of rates, taxes, costs of insurance, repairs properly payable out of income, and other outgoings upon such trusts, and subject to such powers and provisions as may be requisite for giving effect to the rights of the co-owners.

37B   Property held on statutory trust for partition

Property held upon the statutory trust for partition shall be held upon trust—

(a)with the consent of the encumbrancee of the entirety (if any) to partition the property and to provide (by way of mortgage or otherwise) for the payment of any equality money; and

(b)upon such partition being made to give effect to the partition by assuring the property so partitioned in severalty (subject or not to any mortgage created for raising equality money) to the persons entitled under the partition;

but a purchaser shall not be concerned to see or inquire whether any such consent has been given.

38   Statutory trusts for sale or partition of property held in co-ownership

(1)Where any property (other than chattels personal) is held in co-ownership the court may, on the application of any 1 or more of the co-owners, and despite any other Act, appoint trustees of the property and vest the same in such trustees, subject to encumbrances affecting the entirety, but free from encumbrances affecting any undivided shares, to be held by them on the statutory trust for sale or on the statutory trust for partition.

(2)Where the entirety of the property is vested in trustees or personal representatives, those trustees or personal representatives shall, unless the court otherwise determines, be appointed trustees on either of such statutory trusts, but subject, in the case of personal representatives, to, their rights and powers for the purposes of administration.

(3)Where the entirety of the property is vested at law in co-owners the court may appoint a trustee corporation either alone or with 1 or 2 individuals (whether or not being co-owners), or 2 or more individuals, not exceeding 4 (whether or not including 1 or more of the co-owners), to be trustees of the property on either of such statutory trusts.

(3A)On such appointment under subsection (3), the property shall, subject to the Trusts Act 1973, section 90, vest in the trustees.

(4)If, on an application for the appointment of trustees on the statutory trust for sale, any of the co-owners satisfies the court that partition of the property would be more beneficial for the co-owners interested to the extent of upwards of a moiety in value than sale, the court may, with the consent of the encumbrancee of the entirety (if any), appoint trustees of the property on the statutory trust for partition, or as to part of the property on the statutory trust for sale, and as to part on the statutory trust for partition, but a purchaser shall not be concerned to see or inquire whether any such consent has been given.

(5)When such trustees for partition have prepared a scheme of partition they shall serve notice in writing of the scheme on all the co-owners of full age, and any of such co-owners dissatisfied with the scheme may, within 1 month after service upon the co-owner of such notice, apply to the court for a variation of the same.

(5AA)If any of the co-owners is a person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 for the property, the notice must be served on the administrator.

(5A)If any of the co-owners is an incapacitated person within the meaning of the Public Trustee Act 1978, the notice must be served on the person charged by law with the management and care of the incapacitated person’s property, or if there is no person charged, on the public trustee.

(5B)Where any of the co-owners is a person not of full age or a person who cannot be found or ascertained, or as to whom it is uncertain whether the person is living or dead, the trustees may act on behalf of the person, and retain land or other property to represent the person’s share.

(6)In relation to the sale or partition of property held in co-ownership, the court may alter such statutory trusts, and the trusts so altered shall be deemed to be the statutory trust in relation to that property.

(6A)Without limiting the power of the court so to alter the statutory trusts, the court shall, unless for good reason the court otherwise directs, so alter the statutory trusts as to provide in the case of the statutory trust for partition that—

(a)any encumbrance which, prior to the appointment of the trustees, affected any undivided share shall continue to extend and apply to any such share; and

(b)any mortgage created for raising equality money shall rank in priority after any such encumbrance.

(7)Where property becomes subject to such statutory trust for sale—

(a)in the case of joint tenancy—a sale under the trust shall not of itself effect a severance of that tenancy; and

(b)in any case—land shall be deemed to be converted upon the appointment of trustees for sale unless the court otherwise directs.

(8)This section applies to property held in co-ownership at the commencement of this Act and to property which becomes so held after such commencement.

(9)This section does not apply to property in respect of which a subsisting contract for sale (whether made under an order in a suit for partition, or by or on behalf of all the co-owners) is in force at the commencement of this Act, if the contract is completed in due course, nor to land in respect of which a suit for partition is pending at such commencement if a decree for a partition or sale is subsequently made in such suit.

39   Trustee on statutory trusts for sale or partition to consult persons interested

(1)So far as practicable trustees on the statutory trust for sale, or on the statutory trust for partition, shall—

(a)consult the persons of full age and not subject to disability for the time being beneficially entitled to income of the property until sale or partition, and the public trustee or other person charged by law with the management and care of the property of any person for whom an administrator has been appointed under the Guardianship and Administration Act 2000 for the property, or protected person, for the time being beneficially entitled to income of the property until sale or partition; and

(b)so far as consistent with the general interest of the trust, give effect to the wishes of the persons so consulted if they are interested in respect of more than half of the income of the property until sale or partition or, in case of dispute, of such of the persons so consulted as are in agreement and are interested in respect of more than half of the income of the property until sale or partition.

(2)A purchaser shall not be concerned to see that this section has been complied with.

40   Right of co-owners to bid at sale under statutory power of sale

(1)On any sale under a statutory trust for sale the court may allow any of the co-owners of the property to purchase whether at auction or otherwise on such terms as to non-payment of deposit, or as to setting off or accounting for the purchase money or any part of the purchase money instead of paying the same, or as to any other matters as to the court seems reasonable.

(2)A co-owner, with a right to purchase shall not, without the leave of the court, be entitled to act as trustee in connection with the sale.

41   Sale or division of chattels

(1)Where any chattel or chattels belong to 2 or more persons jointly or in undivided shares any such person or persons may apply to the court for an order under this section.

(2)On any application under this section the court may—

(a)order that the chattels in respect of which the application is made, or any 1 or more of them, be sold and the proceeds of sale distributed among the persons entitled to them under their interests in the chattel or chattels; or

(b)order that the chattels or some of them in respect of which the application is made be divided among the persons entitled to them; or

(c)order that 1 or more of such chattels be sold and the others be divided; or

(d)make such other orders and give any consequential directions as it thinks fit.

42   Powers of the court

In proceedings under section 38 or 41 the court may on the application of any party to the proceedings or of its own motion—

(a)determine any question of fact arising (including questions of title) in the proceedings or give directions as to how such questions shall be determined; and

(b)direct that such inquiries be made and such accounts be taken as may in the circumstances be necessary for the purpose of ascertaining and adjusting the rights of the parties.

43   Liability of co-owner to account

(1)A co-owner shall, in respect of the receipt by the co-owner of more than the co-owner’s just or proportionate share according to the co-owner’s interest in the property, be liable to account to any other co-owner of the property.

(2)In this section—

co-owner means a joint tenant, whether in law or in equity, or a tenant in common, whether at law or in equity, of any property.

Part 6    Deeds, covenants, instruments and contracts

Division 1 Deeds and covenants

Subdivision 1 Preliminary

44   Definitions for division

In this division—

accepted method, for electronically signing a document, means a method that—

(a)identifies the signatory for the document and the signatory’s intention in relation to the contents of the document; and

(b)is either—

(i)as reliable as appropriate for the purposes for which the document is made or signed, having regard to all the circumstances, including any relevant agreement; or

(ii)proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and

(c)is consented to by each other signatory to the document.

consent includes consent that can reasonably be inferred from the conduct of the person concerned, but does not include consent given subject to conditions unless the conditions are complied with.

copy, of an electronic document, means a reproduction of the document in either electronic or hard copy form.

counterpart, for a document, see section 45.

document means any record of information however recorded and includes—

(a)anything on which there is writing; and

(b)anything on which there are marks, symbols or perforations having a meaning for persons qualified to interpret them; and

(c)anything from which sounds, images or writings can be reproduced with or without the aid of anything else; and

(d)any record of information that exists in digital form and is capable of being reproduced, transmitted, stored or duplicated by electronic means.

electronically sign, a document, means sign the document using an accepted method.

electronic document means—

(a)

a record of information reproduced from a thing mentioned in definition document, paragraph (c); or

(b)

a document of a type mentioned in definition document, paragraph (d).

information includes information in the form of data, text or images.

physical document means a document of a type mentioned in definition document, paragraph (a) or (b).

seal, of a corporation, includes a common seal of the corporation.

secretary, of a corporation, means the clerk, secretary or other permanent officer of the corporation.

sign, a document, means—

(a)for a physical document—physically sign the document; or

(b)for an electronic document—electronically sign the document.

45    What is a counterpart for a document

(1)A counterpart, for a document, is a copy of the document that includes the entire contents of the document.

(2)Despite subsection (1), a counterpart need not include—

(a)the signatures of the other persons who are to sign the document; or

(b)if a common seal is fixed to the document—the seal.

46    Division does not apply to enduring documents

This division does not apply to an enduring document under the Powers of Attorney Act 1998.

46A    Application of division to powers of attorney

(1)Despite anything in this division, each of the following documents made by an individual must be a physical document that is signed by the individual in the presence of a witness—

(a)a general power of attorney under the Powers of Attorney Act 1998;

(b)a power of attorney given under a deed.

(2)However, a document containing a power of attorney given by an individual under a deed may be an electronic document that is electronically signed by the individual if—

(a)the document is part of a commercial or other arms-length transaction; and

(b)the power of attorney is given for the purpose of the commercial or other arms-length transaction.

Example of a document that may be electronically signed under subsection (2)—

A document containing a power of attorney given by an individual under a deed as security for a proprietary interest of another party to the document or the performance of an obligation owed by the individual.

(3)To remove any doubt, it is declared that—

(a)subsection (2) applies to a document even if the document is executed at a different time from, and is separate to, other documents that form part of the transaction; and

(b)a power of attorney given by an individual under a deed under subsection (2) may be signed under subsection (2) whether or not in the presence of a witness.

(4)This section applies subject to section 46G.

(5)In this section—

individual includes an individual in the individual’s capacity as a sole trader.

46B   Execution of documents under other Acts

This division does not affect the way in which documents are validly executed under the Land Act 1994 or the Land Title Act 1994.

Subdivision 2 General rules

46C   How deed is made generally

(1)A document takes effect as a deed if the document—

(a)is in writing; and

(b)contains a clear statement that the document is a deed; and

(c)is executed under this division; and

(d)is delivered in accordance with section 47.

(2)A document takes effect as a deed under subsection (1) even if—

(a)it is not written on paper or parchment; or

(b)it is not an indenture or stated to be an indenture; or

(c)it is not sealed or stated to be sealed.

46D   Deed may be in form of electronic document and electronically signed

A document that is to have effect as a deed may be in the form of an electronic document and may be electronically signed.

46E   Execution by individual

(1)An individual may execute a document that is to have effect as a deed by signing the document.

(2)An individual may sign a document under subsection (1) whether or not in the presence of a witness.

46F   Execution by corporation

(1)Subject to subsection (2A), a corporation may execute a document that is to have effect as a deed, without using a seal, if the document is signed by—

(a)2 directors of the corporation; or

(b)1 director and 1 secretary of the corporation; or

(c)for a proprietary company that has a sole director—that director, if—

(i)the director is also the sole company secretary; or

(ii)the company does not have a company secretary; or

(d)a lawfully authorised agent or attorney of the corporation, whether or not the agent or attorney is appointed under seal.

(2)Subject to subsection (2A), a corporation with a common seal may execute a document that is to have effect as a deed if the seal is fixed to the document and the fixing of the seal is witnessed by—

(a)2 directors of the corporation; or

(b)1 director and 1 secretary of the corporation; or

(c)for a proprietary company that has a sole director—that director, if—

(i)the director is also the sole company secretary; or

(ii)the company does not have a company secretary.

(2A)A corporation sole or statutory corporation may execute a document that is to have effect as a deed, without using a seal, if the document is signed by a person, or in a way, authorised by the Act or another document under which the corporation is established, incorporated or registered.

(3)For subsection (2), or a corporation sole or statutory corporation if a seal is used, the fixing of a seal to a document is taken to have been witnessed by a person if—

(a)the person observes the fixing of the seal by audio visual link; and

(b)the person signs the document; and

(c)the document includes a statement that the person observed the fixing of the seal by audio visual link.

(5)A corporation that is not incorporated under an Australian law may execute a document that is to have effect as a deed if the document is signed by a person, or in a way, authorised by the law of the place in which the corporation is incorporated.

(6)A document that is to have effect as a deed may be signed under this section whether or not in the presence of a witness.

(7)If a person signs a document that is to have effect as a deed for a corporation as a lawfully authorised agent or attorney for the corporation, the person must—

(a)sign the document in a way that indicates the person is signing as a lawfully authorised agent or attorney; and

(b)if the person is an individual—sign the document under section 46E; and

(c)if the person is a corporation—sign the document under this section.

(8)This section does not limit the ways in which a document that is to have effect as a deed for a corporation may be executed by the corporation.

(9)In this section—

attorney, for a corporation, means a person acting under the authority of a power of attorney given by the corporation under a deed, a general power of attorney under the Powers of Attorney Act 1998, or another law.

audio visual link means facilities that enable reasonably contemporaneous and continuous audio and visual communication between persons at different places and includes videoconferencing.

statutory corporation means an entity established, incorporated or registered under an Act of the Commonwealth or a State, that is not a corporation registered under the Corporations Act.

46G   Execution by partnership or unincorporated association

(1)An individual may execute a document that is to have effect as a deed on behalf of a partnership or unincorporated association by signing the document.

(2)An individual may sign a document under subsection (1) whether or not in the presence of a witness.

(3)If an individual signs a document under subsection (1), the individual must sign the document in a way that indicates the person is executing the document on behalf of the partnership or unincorporated association.

(4)A reference in subsection (1) to a document includes a document containing a power of attorney for the partnership or unincorporated association.

(5)This section does not limit or otherwise affect another law or instrument that requires or permits a document executed on behalf of a partnership or unincorporated association to be executed in a particular way.

Example—

This section does not affect an instrument that requires or permits a document executed on behalf of a partnership to be executed by a stated number of partners.

46GA    Execution by the State

(1)A person who is authorised to execute a document that is to have effect as a deed for the State may execute the document by signing the document.

(2)The person may sign the document under subsection (1) without using a seal and whether or not in the presence of a witness.

(3)If a seal is used to execute a document that is to have effect as a deed for the State, the fixing of the seal to the document is taken to have been witnessed by a person who is authorised to witness the fixing of the seal if—

(a)the person observes the fixing of the seal by audio visual link; and

(b)the person signs the document; and

(c)the document includes a statement that the person observed the fixing of the seal by audio visual link.

(4)This section is subject to section 46F(2A).

(5)This section does not limit the State’s powers or legal capacity under another law.

(6)In this section—

State includes a public sector unit and any other entity that represents the State.

46H   Signing counterpart or true copy

(1)A document that is to have effect as a deed for a person may be signed by or for the person by signing a counterpart or true copy of the document.

(2)For subsection (1), if the counterpart or true copy is electronically signed by a person, the counterpart or true copy need not include any material included in the document about the method used for electronically signing the document.

(3)In this section—

person includes a partnership, an unincorporated association and the State.

47   Delivery of deeds

(1)After the commencement of this Act, execution of an instrument—

(a)in the form of a deed; or

(b)in another form under this subdivision;

shall not of itself import delivery, nor shall delivery be presumed from the fact of such execution only, unless it appears that execution of the document was intended to constitute delivery of the document.

(2)Subject to subsection (1), delivery may be inferred from any fact or circumstance, including words or conduct, indicative of delivery.

(3)In this section—

delivery means the intention to be legally bound either immediately or subject to fulfilment of a condition.

48   Construction of expressions used in deeds and other instruments

(1)In all deeds, contracts, wills, orders and other instruments executed, made or coming into operation after the commencement of this Act, unless the context otherwise requires—

(a)month means calendar month; and

(b)person includes an individual and a corporation; and

(c)words indicating a gender include each other gender; and

(d)words in the singular include the plural and words in the plural include the singular.

(2)A covenant, power or other provision implied in a deed or other instrument because of this or any other Act shall be construed in accordance with subsection (1).

49   Implied covenants may be negatived

(1)Subject to this Act, a covenant, power or other provision implied under this or any other Act shall have the same force and effect, and may be enforced in the same manner, as if it had been set out at length in the instrument in which it is implied.

(2)Any such covenant or power may, unless otherwise provided in this or such other Act, be negatived, varied, or extended by—

(a)an express declaration in the instrument in which it is implied; or

(b)another instrument.

(3)Any such covenant or power so varied or extended shall, so far as may be, operate in the like manner and with all the like incidents, effects and consequences as if such variations or extensions were implied under the Act.

50   Covenants and agreements entered into by a person with himself or herself and another or others

(1)Any covenant, whether express or implied, or agreement entered into by a person with the person and 1 or more other persons shall be construed and be capable of being enforced in like manner as if the covenant or agreement had been entered into with the other person or persons alone.

(2)This section applies to covenants or agreements entered into before or after commencement of this Act, and to covenants implied by statute in the case of a person who conveys or is expressed to convey to the person and 1 or more other persons, but without prejudice to any order of the court made before such commencement.

51   Receipt in instrument sufficient

(1)A receipt for consideration money or securities in the body of a deed or other instrument shall be a sufficient discharge for the same to the person paying or delivering the same without any further receipt for the same being endorsed on the deed or instrument.

(2)This section applies only to deeds or instruments executed after the commencement of this Act.

52   Receipt in instrument or endorsed evidence

(1)A receipt for consideration money or other consideration in the body of a deed or instrument or endorsed on the deed or instrument shall in favour of a subsequent purchaser not having notice that the money or other consideration acknowledged to be received was not in fact paid or given wholly or in part be sufficient evidence of the payment or giving of the whole amount of the money or other consideration.

(2)This section applies to deeds or instruments executed or endorsements made before or after the commencement of this Act.

53   Benefit and burden of covenants relating to land

(1)A covenant relating to any land of the covenantee shall be deemed to be made with the covenantee and the covenantee’s successors in title and the persons deriving title under the covenantee or the covenantee’s successors in title, and shall have effect as if such successors and other persons were expressed.

(2)A covenant relating to any land of a covenantor or capable of being bound by the covenantor, shall, unless a contrary intention is expressed, be deemed to be made by the covenantor on behalf of the covenantor, the covenantor’s successors in title and the persons deriving title under the covenantor or the covenantor’s successors in title, and, shall have effect as if such successors and other persons were expressed.

(2A)Subsection (2) extends to a covenant to do some act relating to the land, even though the subject matter may not be in existence when the covenant is made.

(3)For the purposes of this section in connection with covenants restrictive of the user of land—

successors in title shall be deemed to include the owners and occupiers for the time being of such land.

(4)This section applies only to covenants made after the commencement of this Act, but shall take effect subject, in the case of registered land, to the Land Title Act 1994.

53A   Deposit of deed in registry

(1)This section applies to a deed made under this part that is proposed to be deposited in a registry—

(a)in support of another document lodged or deposited in the registry; or

(b)for registration, enrolment or recording under section 241(1).

(2)If the deed is made in counterparts, each counterpart must be deposited in the registry for the purpose.

(3)If the deed or a counterpart of the deed is in the form of an electronic document, a printed copy of the deed or counterpart certified under subsection (4) must be deposited in the registry for the purpose.

(4)For subsection (3), the printed copy must be certified as a true copy of the original deed or counterpart—

(a)on the last page of the printed copy; and

(b)by 1 of the following persons—

(i)1 of the signatories;

(ii)a lawyer;

(iii)a justice;

(iv)a commissioner for declarations;

(v)a notary public;

(vi)a trustee company under the Trustee Companies Act 1968;

(vii)a stockbroker.

(5)In this section—

registry means—

(a)the land registry; or

(b)the water allocations register under the Water Act 2000.

53B   Protection for third parties

(1)A person may assume that a document has been duly executed by a corporation if—

(a)the document appears to have been signed under section 46F(1); or

(b)both of the following apply—

(i)the common seal of the corporation appears to have been fixed to the document under section 46F(2);

(ii)the fixing of the common seal as mentioned in subparagraph (i) appears to have been witnessed under section 46F(2).

(2)Nothing in this section limits or affects any requirement to be satisfied that a person signing a document is a director, secretary, or lawfully authorised agent or attorney, of a corporation.

Division 2 General rules affecting contracts

54   Effect of joint contracts and liabilities

(1)Subject to this and to any other Act—

(a)a promise made by 2 or more persons shall, unless a contrary intention appears, be construed as a promise made jointly and severally by each of those persons; and

(b)a liability which is joint shall not be discharged, nor shall a cause of action with respect to the liability be extinguished, because of any fact, event, or matter except to the extent that the same would because of the fact, event or matter be discharged or extinguished if the liability were joint and several and not joint.

(2)In this section—

promise includes a promise under seal, a covenant, whether express or implied under this Act, and a bond or other obligation under seal.

(3)This section applies only to a promise, liability or cause of action coming into existence after the commencement of this Act.

55   Contracts for the benefit of third parties

(1)A promisor who, for a valuable consideration moving from the promisee, promises to do or to refrain from doing an act or acts for the benefit of a beneficiary shall, upon acceptance by the beneficiary, be subject to a duty enforceable by the beneficiary to perform that promise.

(2)Prior to acceptance the promisor and promisee may, without the consent of the beneficiary, vary or discharge the terms of the promise and any duty arising from it.

(3)Upon acceptance—

(a)the beneficiary shall be entitled in the beneficiary’s own name to such remedies and relief as may be just and convenient for the enforcement of the duty of the promisor, and relief by way of specific performance, injunction or otherwise shall not be refused solely on the ground that, as against the promisor, the beneficiary may be a volunteer; and

(b)the beneficiary shall be bound by the promise and subject to a duty enforceable against the beneficiary in the beneficiary’s own name to do or refrain from doing such act or acts (if any) as may by the terms of the promise be required of the beneficiary; and

(c)the promisor shall be entitled to such remedies and relief as may be just and convenient for the enforcement of the duty of the beneficiary; and

(d)the terms of the promise and the duty of the promisor or the beneficiary may be varied or discharged with the consent of the promisor and the beneficiary.

(4)Subject to subsection (1), any matter which would in proceedings not brought in reliance on this section render a promise void, voidable or unenforceable, whether wholly or in part, or which in proceedings (not brought in reliance on this section) to enforce a promissory duty arising from a promise is available by way of defence shall, in like manner and to the like extent, render void, voidable or unenforceable or be available by way of defence in proceedings for the enforcement of a duty to which this section gives effect.

(5)In so far as a duty to which this section gives effect may be capable of creating and creates an interest in land, such interest shall, subject to section 12, be capable of being created and of subsisting in land under any Act but subject to that Act.

(6)In this section—

acceptance means an assent by words or conduct communicated by or on behalf of the beneficiary to the promisor, or to some person authorised on the promisor’s behalf, in the manner (if any), and within the time, specified in the promise or, if no time is specified, within a reasonable time of the promise coming to the notice of the beneficiary.

beneficiary means a person other than the promisor or promisee, and includes a person who, at the time of acceptance is identified and in existence, although that person may not have been identified or in existence at the time when the promise was given.

promise means a promise—

(a)which is or appears to be intended to be legally binding; and

(b)which creates or appears to be intended to create a duty enforceable by a beneficiary;

and includes a promise whether made by deed, or in writing, or, subject to this Act, orally, or partly in writing and partly orally.

promisee means a person to whom a promise is made or given.

promisor means a person by whom a promise is made or given.

(7)Nothing in this section affects any right or remedy which exists or is available apart from this section.

(8)This section applies only to promises made after the commencement of this Act.

56   Guarantees to be in writing

(1)No action may be brought upon any promise to guarantee any liability of another unless the promise upon which such action is brought, or some memorandum or note of the promise, is in writing, and signed by the party to be charged, or by some other person by the party lawfully authorised.

(2)A promise, or memorandum or note of a promise, in writing shall not be treated as insufficient for the purpose of this section merely because the consideration for such promise does not appear in writing or by necessary inference from a written document.

57   Effect of provisions as to conclusiveness of certificates etc.

(1)Subject to any other Act, a provision in a contract or instrument to the effect that a certificate, statement or opinion of any person shall be or be received as conclusive evidence of any fact in the certificate, statement or opinion contained shall be construed to mean only that such certificate, statement or opinion shall be or be received as prima facie evidence of that fact.

(2)This section shall not apply to—

(a)a certificate, statement or opinion of a person who, in making the certificate or statement or in forming the opinion, is bound to act judicially or quasi-judicially or as arbitrator or quasi-arbitrator; or

(b)a provision agreed to after a dispute has arisen as to the relevant fact.

(3)This section applies to a contract made or instrument executed after but not before the commencement of this Act, and shall have effect despite any stipulation to the contrary.

(4)In this section—

fact includes any matter, thing, event, circumstance or state of affairs.

57A   Effect of Act or statutory instrument

(1)A statutory instrument, other than prescribed subordinate legislation, does not and can not—

(a)render void or unenforceable any contract or dealing concerning property that is made, entered into or effected contrary to the statutory instrument; or

(b)for a contract for the sale of land—give a party to the contract a right to terminate the contract for a failure by another party to the contract to comply with the statutory instrument.

(2)Where an Act or statutory instrument requires that a certificate, consent or approval relating to any contract or dealing with property (by sale, lease, mortgage or otherwise) be obtained or tendered before or at the time the contract is entered into or the time of the dealing, then, in the absence of greater particularity as to that time in the Act or instrument, it shall be sufficient compliance with that requirement if the certificate, consent or approval is obtained or tendered as required at or immediately before—

(a)in the case of a sale—settlement; and

(b)in the case of a lease—the lessee’s entry into possession under the lease; and

(c)in the case of a mortgage—the mortgagor’s accepting liability under the mortgage; and

(d)in the case of any other dealing—its finalisation.

(3)In this section—

prescribed subordinate legislation means subordinate legislation that is prescribed by regulation.

Note—

See section 357 in relation to the application of this section.

58   Insurance money from burnt building

Where a building is destroyed or damaged by fire a person who has granted a policy of insurance for insuring it against fire may, and shall, on the request of a person interested in or entitled to the building, cause the money for which the building is insured to be laid out and expended, so far as it will go, towards rebuilding, reinstating, or repairing the building, unless—

(a)the person claiming the insurance money within 30 days next after the person’s claim is adjusted, gives sufficient security to the person who has granted that policy that the insurance money will be so laid out and expended; or

(b)the insurance money is in that time settled and disposed of to and amongst the contending parties to the satisfaction and approbation of the person who has granted the policy of insurance.

Division 3 Sales of land

58A   Definitions for div 3

In this division—

conveyancing transaction see the National Law, section 3.

e-conveyance means a conveyancing transaction to be completed using e-conveyancing.

e-conveyancing means a system of land conveyancing that uses an ELN to lodge documents electronically for the purposes of the land titles legislation.

electronic workspace, for an e-conveyance, means a shared electronic workspace within an ELN that allows the participating subscribers to the e-conveyance—

(a)to lodge a document electronically under the National Law; and

(b)if relevant, to authorise or complete financial settlement of the e-conveyance.

ELN means an Electronic Lodgment Network under the National Law.

financial settlement, of an e-conveyance, means the exchange of value, in an ELN, between financial institutions in accordance with the instructions of participating subscribers to the e-conveyance.

land titles legislation see the Electronic Conveyancing National Law (Queensland) Act 2013, section 6.

National Law means the Electronic Conveyancing National Law (Queensland).

participating subscriber, to an e-conveyance, means a subscriber who is involved in the e-conveyance as a party to the e-conveyance or as a representative of a party.

subscriber see the National Law, section 3.

58B   Meaning of settlement of a sale of land in an e-conveyance

(1)In an Act, a reference to the settlement (however described) of a sale of land or a contract for the sale of land has the meaning given by this section if the sale is to be completed using e-conveyancing, unless the Act expressly provides otherwise.

Example of another way to describe a settlement of the sale of land—

completion of the sale of the land

(2)Settlement, of the sale of land, occurs when the electronic workspace for the e-conveyance records that—

(a)financial settlement occurs; or

(b)if there is no financial settlement, the documents necessary to transfer title have been accepted for electronic lodgment by the registrar.

(3)In this section—

sale, of land, includes an exchange for value.

59   Contracts for sale etc. of land to be in writing

No action may be brought upon any contract for the sale or other disposition of land or any interest in land unless the contract upon which such action is brought, or some memorandum or note of the contract, is in writing, and signed by the party to be charged, or by some person by the party lawfully authorised.

60   Sales of land by auction

(1)In the case of a sale of land by auction—

(a)where the sale is not notified in the conditions of sale to be subject to a right to bid on behalf of the vendor—the vendor shall not be entitled to bid or to employ any person to bid at the sale, nor shall the auctioneer be entitled to take any bid from the vendor or any such person; and

(aa)any sale contravening paragraph (a) may be treated as fraudulent by the purchaser; and

(b)a sale may be notified in the conditions of sale to be subject to a reserved or upset price, and a right to bid may also be in the auction expressly reserved by or on behalf of the vendor; and

(c)where a right to bid is expressly reserved, but not otherwise—the vendor or any one person on the vendor’s behalf may bid at the auction.

(2)This section applies to sales effected after the commencement of this Act.

61   Conditions of sale of land

(1)Under a contract for the sale of registered land the purchaser shall be entitled at the cost of the vendor—

(a)to receive from the vendor sufficient particulars of title to enable the purchaser to prepare the appropriate instrument to give effect to the contract; and

(b)to receive from the vendor an abstract of any instrument, forming part of the vendor’s title, in respect of which a caveat is entered upon the register; and

(c)to have the relevant certificate of title or other document of title lodged by the vendor in the land registry to enable the instrument to be registered; and

(d)to have any objection to the registration of the instrument removed by the vendor.

(1A)However, as to any such objection which the purchaser ought to have raised on the particulars or abstract, or upon the investigation of the title, or which arises from the purchaser’s own act, default, or omission, the purchaser shall not be entitled to have the same removed except at the purchaser’s own cost.

(2)Under any contract for the sale of any land there shall be implied a term that—

(a)payment or tender of any money payable under the contract may be made by a financial institution cheque drawn on itself or a bank; and

(b)an obligation on the part of the vendor to execute and deliver a conveyance of the subject land, or instruments of title to the land, free of encumbrances shall be satisfied if the vendor will, upon completion of the contract, be able to and does in fact discharge any existing encumbrance out of the purchase money payable under the contract by the purchaser; and

(c)unless otherwise agreed by the parties, their solicitors or conveyancers, settlement of the contract must take place at the office of the land registry under the Land Title Act 1994 at which the document relating to the conveyance may be lodged or, if there are 2 or more such offices, the office that is nearest to the land.

(3)Where in any contract for the sale of any land the date for payment of the purchase money or any part of the purchase moneys is to be ascertained by reference to a period of time expiring on a day which is a Saturday, a Sunday, or a public holiday, then, unless the contract designates such day as a Saturday, a Sunday, or by the name of the public holiday, completion shall take place—

(a)on such other day as may be agreed by the parties, their solicitors or conveyancers; or

in default of such agreement—

(b)on the day, other than a Saturday, Sunday, or public holiday, next following the day on which the period of time so expired.

(3A)However, if under subsection (2)(c) settlement of the contract must take place at an office of the land registry under the Land Title Act 1994, but the office is not open for business on the day (the relevant day) provided for completion under subsection (3), the completion must take place—

(a)on a day, on which the office is open for business, agreed by the parties, their solicitors or conveyancers; or

(b)if there is no agreement under paragraph (a)—on the next day the office is open for business after the relevant day.

(4)This section applies only if and as far as a contrary intention is not expressed in the contract, and shall have effect subject to the terms of the contract, and to the provisions contained in the contract.

62   Stipulations not of the essence of the contract

Stipulations in contracts, as to time or otherwise, which under rules of equity are not deemed to be or to have become of the essence of the contract, shall be construed and have effect at law under rules of equity.

63   Application of insurance money on completion of a sale or exchange

(1)Where after the date of any contract for sale or exchange of property, money becomes payable under any policy of insurance maintained by the vendor in respect of any damage to or destruction of property included in the contract, the money shall, on completion of the contract, be held or receivable by the vendor on behalf of, and, on completion of the sale or exchange or so soon afterwards as the same shall be received by the vendor, paid—

(a)to any person entitled to the money because of an encumbrance over or in respect of the land; and

(b)as to any balance remaining, to the purchaser.

(2)For the purpose of this section, cover provided by such a policy maintained by the vendor extends until the date of completion, and money does not cease to become payable to the vendor merely because the risk has passed to the purchaser.

(3)This section shall apply only to contracts made after the commencement of this Act, and shall have effect subject to—

(a)any stipulation to the contrary contained in the contract; or

(b)the payment by the purchaser of the proportionate part of the premium from the date of the contract.

(4)This section shall apply to a sale or exchange by an order of court, as if—

(a)for references to the ‘vendor’ there were substituted references to the ‘person bound by the order’; and

(b)for the reference to the completion of the contract there were substituted a reference to the payment of the purchase or equality money (if any) into court; and

(c)for reference to the date of the contract there were substituted a reference to the time when the contract became binding.

64   Right to rescind on destruction of or damage to dwelling house

(1)In any contract for the sale of a dwelling house where, before the date of completion or possession whichever earlier occurs, the dwelling house is so destroyed or damaged as to be unfit for occupation as a dwelling house, the purchaser may, at the purchaser’s option, rescind the contract by notice in writing given to the vendor or the vendor’s solicitor not later than the date of completion or possession whichever the earlier occurs.

(2)Upon rescission of a contract under this section, any money paid by the purchaser shall be refunded to the purchaser and any documents of title or transfer returned to the vendor who alone shall be entitled to the benefit of any insurance policy relating to such destruction or damage subject to the rights of any person entitled to the insurance policy because of an encumbrance over or in respect of the land.

(3)In this section—

sale of a dwelling house means the sale of improved land the improvements on which consist wholly or substantially of a dwelling house or the sale of a lot on a building units plan within the meaning of the Building Units and Group Titles Act 1980 or the sale of a lot included in a community titles scheme under the Body Corporate and Community Management Act 1997 if the lot—

(a)wholly or substantially, consists of a dwelling; and

(b)is, under the Land Title Act 1994—

(i)a lot on a building format plan of subdivision; or

(ii)a lot on a volumetric format plan of subdivision, and wholly contained within a building.

(4)This section applies only to contracts made after the commencement of this Act and shall have effect despite any stipulation to the contrary.

65   Rights of purchaser as to execution

(1)On a sale, the purchaser shall not be entitled to require that the conveyance to the purchaser be executed in the purchaser’s presence, or in that of the purchaser’s solicitor or conveyancer, as such, but shall be entitled to have, at the purchaser’s own cost, the execution of the conveyance attested by some person appointed by the purchaser, who may, if the purchaser thinks fit, be the purchaser’s solicitor or conveyancer.

(2)This section applies only to sales made after the commencement of this Act.

66   Receipt in instrument or endorsed authority for payment

(1)If a financial institution manager, a solicitor or a conveyancer produces an instrument, having in the body of the instrument or endorsed on the instrument a receipt for consideration money or other consideration, the instrument being executed, or the endorsed receipt being signed, by the person entitled to give a receipt for that consideration, or produces a duly executed instrument in respect of registered land, the instrument shall be a sufficient authority to the person liable to pay or give the same for the person’s paying or giving the same to the financial institution manager, solicitor, or conveyancer without the financial institution manager, solicitor or conveyancer producing any separate or other direction or authority in that behalf from the person who executed or signed the receipt or instrument.

(2)In this section—

conveyancer includes the agent of the conveyancer.

financial institution manager means the person performing the function of general manager or manager of a financial institution, and includes an agent of the financial institution manager.

instrument includes a discharge of mortgage.

solicitor includes the agent of the solicitor.

67   Restriction on vendor’s right to rescind on purchaser’s objection

(1)In any contract the vendor shall not be entitled to exercise any right to rescind the contract, whether given by the contract expressly or otherwise, on the ground of any requisition or objection made by the purchaser unless and until the vendor has given the purchaser 7 days notice of the vendor’s intention to rescind so as to enable the purchaser to withdraw or waive the requisition or objection.

(2)This section applies only to contracts made after the commencement of this Act, and shall have effect despite any stipulation to the contrary.

67A   When statutory rights of termination end for land sales if e-conveyancing is used

(1)This section applies if—

(a)an Act provides for a right of termination (however described) in relation to the sale of land or a contract for the sale of land; and

(b)the right is expressed to end on settlement; and

(c)the sale is settled using e-conveyancing.

(2)The right of termination ends on settlement.

(3)However, the right of termination may not be exercised during any period the electronic workspace for the e-conveyance is locked for the purpose of settlement.

(4)In this section—

locked, in relation to an electronic workspace for an e-conveyance, means the ELN for the workspace does not allow a participating subscriber to the e-conveyance to change a document or instruction in the workspace.

68   Damages for breach of contract to sell land

(1)A vendor who in breach of contract fails to perform a contract for the sale of land shall be liable by way of damages as compensation for the loss sustained by the purchaser in such sum as at the time the contract was made was reasonably foreseeable as the loss liable to result, and which does in fact result, from the failure of the vendor to perform the contract and, unless the contract otherwise provides, the vendor shall not be relieved, wholly or in part, of liability for damages measured under this section merely because of the vendor’s inability to make title to the land the subject of the contract of sale, whether or not such inability was occasioned by the vendor’s own default.

(3)This section applies despite any other section of this Act.

350   Approval of forms

The chief executive may approve forms for use under this Act.

350A    Fees for titles registry functions

(1)The fees provided under the Queensland Future Fund (Titles Registry) Act 2021 are payable in relation to a titles registry function performed under this Act.

Note—

See the Queensland Future Fund (Titles Registry) Act 2021, part 3.

(2)In this section—

titles registry function see the Queensland Future Fund (Titles Registry) Act 2021, section 5.

351   Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)The regulations may be about fees, other than titles registry fees, including—

(a)the persons who are liable to pay fees; and

(b)when fees are payable; and

(c)the waiver of fees; and

(d)the recovery of unpaid amounts of fees.

Part 21    Transitional provision for Property Law (Mortgagor Protection) Amendment Act 2008

352   Mortgagor protection

(1)Section 85, as amended by the amending Act, applies to mortgages whether made before or after the commencement of this section.

(2)However, section 85(1A) does not apply to a mortgagee or receiver if, immediately before the commencement, the mortgagee—

(a)was entitled to immediately exercise the power of sale conferred by this Act or otherwise; and

(b)was not prevented from doing so by section 84(1).

(3)In this section—

amending Act means the Property Law (Mortgagor Protection) Amendment Act 2008.

Part 22    Transitional Provision for Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010

353   Amendments do not affect existing matters

(1)The amendment of section 147(5) by the amending Act does not apply in relation to a further matter of complaint as mentioned in section 147(5) if the proceeding in relation to the complaint was commenced before the commencement of this section.

(2)The change to the monetary limit for part 19 brought into effect by amendments of this Act, the Magistrates Courts Act 1921 and the District Court of Queensland Act 1967 by the amending Act does not apply to a proceeding commenced before the commencement of this section.

(3)In this section—

amending Act means the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010.

Part 23    Transitional provisions for Land Sales and Other Legislation Amendment Act 2014

354   Definitions for pt 23

In this part—

amendment Act means the Land Sales and Other Legislation Amendment Act 2014.

commencement means the commencement of this section.

355   Application of s 68A

Section 68A applies only in relation to a contract entered into after the commencement.

356   Existing instalment contracts

(1)This section applies to an instalment contract entered into before the commencement.

(2)Part 6, division 4 as in force before the commencement continues to apply in relation to the instalment contract as if this Act had not been amended by the amendment Act.

Part 24    Transitional provisions for Court and Civil Legislation Amendment Act 2017

357   Application of s 57A

(1)For a statutory instrument other than subordinate legislation, amended section 57A—

(a)applies from the commencement, regardless of when the statutory instrument was made; but

(b)does not apply in relation to a contract or dealing concerning property mentioned in that section if the contract or dealing was made, entered into or effected before the commencement.

(2)For subordinate legislation, amended section 57A—

(a)applies on and from the relevant day, regardless of when the subordinate legislation was made; but

(b)does not apply in relation to a contract or dealing concerning property mentioned in that section if the contract or dealing was made, entered into or effected before the relevant day.

(3)Section 57A, as in force immediately before the commencement, continues to apply in relation to subordinate legislation during the transitional period as if the section had not been amended by the Court and Civil Legislation Amendment Act 2017.

(4)In this section—

amended section 57A means section 57A as amended by the Court and Civil Legislation Amendment Act 2017.

relevant day means the earlier of the following—

(a)the day that is 1 year after the commencement;

(b)the day prescribed by regulation.

transitional period means the period—

(a)starting on the commencement; and

(b)ending immediately before the relevant day.

358   Saving provision for s 57A

Section 57A(3), as in force immediately before the commencement, is declared to be a law to which the Acts Interpretation Act 1954, section 20A applies.

Part 25    Transitional provisions for Justice and Other Legislation Amendment Act 2020

359   Application of s 84A

Section 84A applies in relation to a mortgaged freehold property disclaimed under the Bankruptcy Act 1966 (Cwlth), section 133(1) or the Corporations Act, section 568(1)—

(a)whether the mortgage was made before or after the commencement; but

(b)only if—

(i)for a disclaimer under the Bankruptcy Act 1966 (Cwlth), section 133(1)—the disclaimer was made on or after the commencement; or

(ii)for a disclaimer under the Corporations Act, section 568(1)—the disclaimer took effect on or after the commencement.

360   Application of proceeds of sales that happened before commencement

Section 88(2), as inserted by the Justice and Other Legislation Amendment Act 2020, does not apply in relation to the sale of a mortgaged freehold property that happened before the commencement.

Part 26    Transitional and validating provisions for Justice and Other Legislation Amendment Act 2021

360A    Deed signed by different signatories before and after commencement

(1)This section applies to a deed if—

(a)an individual or corporation signed the deed before the commencement; and

(b)another individual or corporation signs the deed after the commencement.

(2)The individual or corporation signing the deed after the commencement may electronically sign the deed under section 46D.

(3)For subsection (2), the requirement under section 44, definition accepted method, paragraph (c), for the method to be consented to by each other signatory to the deed may be inferred from conduct of the signatory before the commencement.

(4)Also, subsection (2) applies whether or not the individual or corporation who signed the deed before the commencement electronically signed the deed.

(5)To remove any doubt, it is declared that the repealed regulation applied to the individual or corporation signing the deed before the commencement.

Note—

Former section 12O(2) of the repealed regulation did not require the consent of another person to electronically signing the deed.

(6)In this section—

corporation means a corporation as defined under section 44.

repealed regulation means the repealed Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020 as in force from time to time before the commencement.

360B    Execution of deed by corporation sole or State after commencement of Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Amendment Regulation 2020

(1)This section applies in relation to the execution of the following documents—

(a)a document that is to have effect as a deed for a corporation sole signed, during the transition period, by a person, or in a way, authorised by the Act or another document under which the corporation is established, incorporated or registered;

(b)a document that is to have effect as a deed for the State signed, during the transition period, by a person authorised to execute the document.

(2)The execution of the document is taken to be, and always to have been, as valid as if the new provisions were in effect during the transition period.

(3)Without limiting subsection (2)—

(a)anything done under or in relation to the document is, and was, as valid as if the new provisions had been in effect during the transition period; and

(b)the rights and liabilities of all persons under or in relation to the document are taken to be, and to have been, for all purposes the same as if the new provisions had been in effect during the transition period.

(4)Despite the COVID-19 Emergency Response Act 2020, section 5, if this section is inconsistent with the Justice Legislation (COVID-19 Emergency Response—Documents and Oaths) Regulation 2020, this section prevails to the extent of the inconsistency.

(5)In this section—

new provisions means—

(a)section 44, other than the following provisions—

(i)

definition accepted method, paragraph (c);

(ii)

definition consent; and

(b)sections 45, 46B, 46D, 46F(2A), (3) and (6), 46GA and 46H; and

(c)section 46C, but subject to the word ‘clear’ in section 46C(1)(b) being taken to be a reference to the word ‘conspicuous’.

transition period means the period—

(a)starting on the commencement of the Justice Legislation (COVID-19 Emergency Response—Wills and Enduring Documents) Amendment Regulation 2020; and

(b)ending immediately before the commencement of this section.

Schedule 1 Procedure in cases of bona vacantia

section 20

1   Procedure in cases of escheat or other like cases

When any question arises as to the title of the State to any land, or interest in land in any case of escheat or alleged escheat or of bona vacantia or alleged bona vacantia, or in the case of a grant to an alleged alien, or as to the title of the State in any other case in which, prior to the passing of the Escheat (Procedure and Amendment) Act 1891, an inquest of office might have been held, the truth of the matter shall be ascertained in the manner prescribed in this schedule.

2   Writ of inquisition

In any such case a writ called a writ of inquisition shall be issued from the Supreme Court on the fiat of a Crown law officer, which writ shall be addressed to a District Court judge, or a commissioner of the Supreme Court for taking affidavits, and shall command the person to make diligent inquiry into the matter and to certify under the person’s hand and seal such facts respecting the failure of the heirs or next of kin of an intestate, or the alienage of a grantee, or such other facts, as may be necessary to establish the title of the State or otherwise.

3   Return of writ

The writ of inquisition with the certificate shall be immediately returned into the office of the Supreme Court at Brisbane, Rockhampton or Townsville, as the case may be, and any person aggrieved by the certificate shall be entitled to traverse or object to it, in such manner and within such time as may be directed by rules of court, and in the absence of any such rules within 1 month after the return of the writ.

4   Writ to be returned before new grant made

No grant shall be made of any land alleged to be escheated or to have become bona vacantia until after the writ of inquisition and the certificate finding the title of the land has been returned into the office of the Supreme Court, and the time for traversing the same has expired.

5   Effect of certificate

Except as this schedule or rules of court otherwise provide, the certificate shall be conclusive evidence of the facts stated in it.

6   Saving

The proceedings upon a writ of inquisition shall not prejudice any rights which at the time of the death of the person that led to the issue of the writ were vested in some other person.

7   Procedure when waiver by the Crown

(1)If at any time not later than 2 months after the making of an instrument under section 20 waiving the title of the State to any property, any person claiming any estate or interest in or to the property requests that a writ of inquisition in respect of the State’s title be issued, and gives security to the satisfaction of a Crown law officer for the costs of the issue and execution of such writ, such writ may issue under this schedule and the instrument waiving the right of the State shall cease to have effect from the date when it was made.

(2)If the title of the State to the property is established by a certificate returned under this schedule, then, at any time after the time for traversing such certificate has expired, a further instrument (which may or may not differ from the previous order in council) waiving the right of the State may be made under section 20(5) but no further request may be made under this clause.

(3)If an instrument is made waiving the right of the State to any land or interest in land clause 1 shall be read subject to this clause save that a writ of inquisition at the instance of the Crown may issue at any time.

8   Power to regulate procedure with respect to escheats to the Crown

(1)Rules of court may be made prescribing and regulating the procedure of the court on and incidental to writs of inquisition and consequential on the holding of inquiries under such writs.

(2)The rules of court may prescribe that any questions of fact arising upon any such inquiry shall be determined by a jury, and may prescribe the number of jurors, and may direct that any provisions of the laws relating to juries shall apply to such juries and jurors.

9   [Repealed]

10   Interpretation

In this schedule—

a Crown law officer means and includes the Attorney-General and the solicitor-general.

Schedule 2 [Repealed]

Schedule 3 Short forms of covenants in leases

section 109

Direction as to the forms in this schedule

1Parties who use any of the forms in column 1 may substitute for the words ‘lessee’ or ‘lessor’, any name or names, and in every such case corresponding substitutions shall be taken to be made in the corresponding forms in column 2.

2Such parties may substitute 1 gender for another, or the plural number for the singular, in the forms in column 1, and corresponding changes shall be taken to be made in the corresponding forms in column 2.

3Such parties may fill up the blank spaces left in the forms in column 1 so employed by them with any words or figures and the words or figures so introduced shall be taken to be inserted in the corresponding blank spaces left in the forms embodied.

4Such parties may introduce into or annex to any form in column 1 any addition to, exception from, or qualification of the same, or may strike out or omit any words of or from such column, and a proviso which would give effect to the intention indicated by such addition, exception, qualification, striking out, or omission shall be taken to be added to the corresponding form in column 2.

5The covenants in column 2 shall be taken to be made with or by and apply to the lessor or lessee, as the case may be.

Leases

Column 1	Column 2
1  That the lessee covenants with the lessor to pay rent.	1  And the lessee covenants with and promises to the lessor that the lessee, will, during the term, pay to the lessor, the rent reserved, in manner mentioned previously, without any deduction of any kind, other than any deduction which the lessee is by an Act entitled to make.
2  Provided that in the event of damage by fire, lightning, flood, or tempest, rent shall abate until the premises are restored.	2  Provided that in case the demised premises, or any part of the demised premises, shall at any time during the continuance of the lease be destroyed or damaged by fire without fault on the part of the lessee, flood, lightning, storm, or tempest, so, in any such event as to render the same unfit for the occupation and use of the lessee, then, and so often as the same shall happen, the rent reserved, or a proportionate part of the rent, according to the nature and extent of the damage sustained shall abate, and all or any remedies for recovery of the rent or such proportionate part of the rent shall be suspended until the demised premises shall have been rebuilt or made fit for the occupation and use of the lessee.
3  And to pay taxes, except for local improvements.	3  And also that the lessee will pay all taxes, rates and assessments of any kind, whether municipal, local government, parliamentary, or otherwise which are at any time during the term charged upon the demised premises, or upon the lessor, on account of the demised premises, except taxes for local improvements or works assessed upon the property benefited by them.
4  And to maintain and leave the premises in good repair (having regard to their condition at the commencement of the lease), reasonable wear and tear, and damage by fire, lightning, flood and tempest excepted.	4  And also that the lessee will during the term, when, where, and so often as the need shall be, but having regard to the condition of the leased premises at the commencement of the lease and excepting reasonable wear and tear, and damage by fire, lightning, flood and tempest occurring within the term— (a)  well and sufficiently maintain, amend, and keep; and (b)  at the expiration or sooner determination of the term peaceably surrender and yield up to the lessor; in good and substantial repair the leased premises, including all appurtenances, buildings, erections and fixtures belonging to the leased premises, or at any time within the term lawfully made or erected by the lessor upon or within the leased premises.
5  And that the lessor may enter and view state of repair, and that the lessee will repair according to notice in writing, and that in default the lessor may repair.	5  That the lessor, may, by himself or herself or the lessor’s agents, during the term at a reasonable time of the day upon giving to the lessee 2 days previous notice, enter upon the demised premises and view the state of repair of the demised premises, and may serve upon the lessee or leave at the lessee’s last or usual place of abode in the State, or upon the demised premises, a notice in writing of any defect, requiring the lessee, within a reasonable time, to repair same in accordance with any covenant expressed or implied in the lease, and that in default of the lessee so doing it shall be lawful for the lessor from time to time to enter and execute the required repairs.
6  And that the lessor may enter and carry out requirements of public authorities, and repair under the lease.	6  That the lessor may, by himself or herself or the lessor’s agents, at all reasonable times during the term, with workers and others, and all necessary materials and appliances, enter upon the demised premises, or any part of the demised premises, for the purpose of complying with the terms of any present or future legislation affecting the premises, and of any notices served upon the lessor or lessee by licensing, local, municipal, or other competent authority, involving the destruction of noxious weeds or animals, or the carrying out of any repairs, alterations, or works of a structural character, which the lessee may not be bound, or if bound may neglect, to do, and also for the purpose of exercising the powers and authorities of the lessor under the lease. However, such destruction, repairs, alterations, and works shall be carried out by the lessor without undue interference with the occupation and use of the demised premises by the lessee.
7  And to insure from fire in the joint names of the lessor and the lessee.	7  And also that the lessee will immediately insure the demised premises to the full insurable value of the demised premises in some insurance office approved by the lessor in the joint names of the lessor and the lessee, and keep the same so insured during the continuance of the lease, and will upon the request of the lessor show to the lessor the receipt for the last premium paid for such insurance, and as often as the demised premises shall be destroyed or damaged by fire all and every the sum or sums of money which shall be recovered or received for or in respect of such insurance, shall be laid out and expended in building or repairing the demised premises or such parts of the demised premises as shall be destroyed or damaged by fire.
8  And to paint outside every (___) year.	8  And also that the lessee will, in every (___) year during the continuance of the lease, paint all the outside woodwork and ironwork belonging to the demised premises now or usually painted with 2 coats of proper paint, in a well executed manner.
9  And to paint and paper inside every (___) year.	9  And also that the lessee will, in every (___) year, paint the inside wood, iron and other works now or usually painted, with 2 coats of proper paint, in a well executed manner, and also will repaper with paper of a quality as at present such parts of the premises as are now papered, and also wash, stop, whiten, or colour such parts of the demised premises as are now plastered.
10  And to fence.	10  And also that the lessee will, during the continuance of the lease, erect and put up on the boundaries of the demised land or upon such boundaries upon which no substantial fence now exists a good and substantial fence.
11  And to keep up fences.	11  And also will, from time to time, during the continuance of the lease, keep up the fences and walls of or belonging to the demised premises, and make anew any parts of the demised premises that may require to be new-made in a good and careful manner and at proper seasons of the year.
12  And to cultivate.	12  And also that the lessee will at all times during the continuance of the lease cultivate, use, and manage all such parts of the land as are or shall be broken up or converted into tillage in a proper and careful manner, and will not impoverish or waste the same.
13  That the lessee will not cut timber.	13  That also that the lessee will not cut down, fell, injure, or destroy any growing or living timber or timber-like trees standing and being upon the demised land, without the consent in writing of the lessor.
14  That the lessee will not without consent use premises otherwise than as a private dwelling house.	14  And also that the lessee or any subtenant will not convert, use, or occupy the demised premises or any part of the demised premises into or as a shop, warehouse, or other place for carrying on any trade or business of any kind, or suffer the premises to be used for any such purpose or otherwise than as a private dwelling house, without the consent in writing of the lessor.
15  And will not assign or sublet without leave; no fine to be taken.	15  And also that the lessee or any subtenant will not, during the continuance of the lease, assign, transfer, demise, sublet, or part with the possession or by any act or deed, procure the demised premises, or any part of the demised premises, to be assigned, transferred, demised, sublet to or put into the possession of any person or persons, without the consent in writing of the lessor, but such consent shall not be refused in the case of a proposed respectable and responsible assign, tenant or occupier. Provided further, that no fine or sum of money in the nature of a fine shall be payable for or in respect of such licence or consent, but this proviso shall not preclude the right of the lessor to require the payment of a reasonable sum in respect of any legal or other expenses incurred in relation to such license or consent.
16  That the lessee will not carry on any offensive trade.	16  That the lessee or any subtenant will not at any time during the continuance of the lease use, exercise, or carry on, or permit or suffer to be used, exercised, or carried on in or upon the demised premises or any part of the demised premises, any noxious, noisome, or offensive art, trade, business, occupation, or calling, and no act, matter, or thing of any kind shall, at any time during the continuance of the lease, be done in or upon the premises or any part of the demised premises which shall or may be or grow to the annoyance, nuisance, grievance, damage, or disturbance of the occupiers or owners of any neighbouring premises.
17  That the lessee will carry on the business of a licensee within the meaning of the Liquor Act 1992 and conduct the same in an orderly manner.	17  And also that the lessee, or the subtenant for the time being, will at all times during the continuance of the lease, use, exercise, and carry on, in and upon the demised premises, the trade or business of a licensee within the meaning of the Liquor Act 1992, and keep open and use the buildings upon the demised land as and for a hotel, and manage and conduct such trade or business in a quiet and orderly manner, and will not do, commit, or permit, or suffer to be done or committed any act, matter, or thing of any kind by which or by means of which any licence shall or may be forfeited or become void or liable to be taken away, suppressed, or suspended in any manner at all, and will comply in all respects with the requirements of the Liquor Act 1992.
18  And will apply for renewal of licence.	18  And also that the lessee, or the subtenant for the time being, will from time to time, during the continuance of the lease at the proper times for that purpose, apply for and endeavour to obtain at the person’s own expense all such licences as are or may be necessary for carrying on the trade or business of a licensee within the meaning of the Liquor Act 1992 in and upon the demised premises, and keeping the buildings open as and for a hotel.
19  And will facilitate the transfer of licence.	19  And also that the lessee, or the subtenant for the time being, will at the expiration or other sooner determination of the lease sign and give such notice or notices, and allow such notice or notices of a renewal or transfer of any licence as may be required by law to be affixed to the demised premises, to be affixed and remain so affixed during such time or times as shall be necessary or expedient in that behalf, and generally to do and perform all such further acts, matters, and things as shall be necessary to enable the lessor, or any person authorised by the lessor, to obtain the renewal of any licence or any new licence or the transfer of any licence then existing and in force.
20  The (lessor) covenants with the (lessee) for quiet enjoyment.	20  And the lessor covenants with the lessee that the lessee paying the rent reserved, and performing the covenants on the lessee’s part contained, shall and may peaceably possess and enjoy the demised premises for the term granted, without any interruption or disturbance from the lessor or any other person or persons lawfully claiming by, from or under the lessor.
21  And that the lessee may remove the lessee’s fixtures.	21  And also that the lessee may at or prior to the expiration of the lease take, remove, and carry away from the demised premises all fixtures, fittings, plant, machinery, utensils, shelving, counters, safes, or other articles upon the demised premises in the nature of trade or tenants’ fixtures bought upon the demised premises by the lessee, but the lessee shall in such removal do no damage to the demised premises, or shall immediately make good any damage which the lessee may occasion to them.

Schedule 4 Improvements by tenant

section 156

Part 1   

   

1drainage of land

2erection or enlargement of buildings

3making of fences

4formation of silos

5making of water meadows or works of irrigation

6making of dams for the conservation of water, or wells

7clearing of land

Part 2   

   

8liming of land

9manuring or fertilising of land with purchased artificial or other purchased manures or fertilisers

10laying down pasture with clover, grass, lucerne, sainfoin, or other seeds sown more than 2 years prior to the determination of the tenancy

11making of plantations of bananas or pineapples

12planting of sugarcane

13planting of orchards with fruit trees permanently set out

Schedule 5 Rules as to arbitration

section 159

Part 1    Arbitration before a single arbitrator

   Appointment of arbitrator

1The arbitrator shall be a person appointed by agreement between the parties, or in default of agreement between the parties within 14 days of the date of the giving of notice by one party to the other party requiring appointment of an arbitrator, a person appointed by the Minister on the application in writing of either of the parties.

2If a person appointed arbitrator dies, or is incapable of acting, or for 7 days after notice from either party requiring the arbitrator to act fails to act, a new arbitrator may be appointed as if no arbitrator had been appointed.

3Neither party shall have power to revoke the appointment of the arbitrator without the consent of the other party.

4Every appointment, notice, revocation, and consent under this part of these rules must be in writing.

   Time for award

5The arbitrator shall make and sign the award within 28 days of the arbitrator’s appointment or within such longer period as the Minister may (whether the time for making the award has expired or not) direct.

   Removal of arbitrator

6Where an arbitrator has misconducted himself or herself, the court or a judge of the court may remove the arbitrator.

   Evidence

7The parties to the arbitration, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrator, on oath or affirmation, in relation to the matters in dispute, and shall, produce before the arbitrator all samples, books, deeds, papers, accounts, writings, and documents, within their possession or power respectively which may be required or called for, and do all other things which during the proceedings the arbitrator may require.

8The arbitrator shall have power to administer oaths, and to take the affirmation of parties and witnesses appearing, and witnesses shall, if the arbitrator thinks fit, be examined on oath or affirmation.

   Statement of case

9The arbitrator may at any stage of the proceedings, and shall, if so directed by a judge of the court (which direction may be given on the application of either party), state in the form of a special case for the opinion of that court any question of law arising in the course of the arbitration.

   Award

10The arbitrator shall on the application of either party specify the amount awarded in respect of any particular improvement or improvements, and the award shall fix a day not sooner than 1 month nor later than 2 months after the delivery of the award for the payment of the money awarded for compensation, costs, or otherwise, and shall be in such form as may be prescribed by the Minister.

11The award to be made by the arbitrator shall be final and binding on the parties and the persons claiming under them respectively.

12The arbitrator may correct in an award any clerical mistake or error arising from any accidental slip or omission.

13When an arbitrator has misconducted himself or herself, or an arbitration or award has been improperly procured, the court or a judge of the court may set the award aside.

   Costs

14The costs of and incidental to the arbitration and award shall be in the discretion of the arbitrator, who may direct to and by whom and in what manner these costs or any part of these costs are to be paid, and the costs shall be subject to taxation by the proper officer of the court on the application of either party.

15The arbitrator shall, in awarding costs, take into consideration the reasonableness or unreasonableness of the claim of either party, either in respect of amount or otherwise, and any unreasonable demand for particulars or refusal to supply particulars, and generally all the circumstances of the case, and may disallow the costs of any witness whom the arbitrator considers to have been called unnecessarily, and any other costs which the arbitrator considers to have been incurred unnecessarily.

Part 2    Arbitration before 2 arbitrators or an umpire

   Appointment of arbitrators and umpire

1If the parties agree in writing that there be not a single arbitrator, each of them shall appoint an arbitrator.

2If before award an arbitrator dies or is incapable of acting, or for 7 days after notice from either party requiring the arbitrator to act fails to act, the party appointing the arbitrator shall appoint another arbitrator.

3Notice of every appointment of an arbitrator by either party shall be given to the other party.

4If for 14 days after notice by 1 party to the other to appoint an arbitrator, or another arbitrator, the other party fails to do so, then, on the application of the party giving notice, the Minister shall appoint a person to be an arbitrator.

5Where 2 arbitrators are appointed, then (subject to these rules) they shall, before they enter on the arbitration, appoint an umpire.

6If before award an umpire dies or is incapable of acting, or for 7 days after notice from either party requiring the umpire to act fails to act, the arbitrators may appoint another umpire.

7If for 7 days after request from either party, the arbitrators fail to appoint an umpire, or another umpire, then, on the application of either party, the Minister shall appoint a person to be the umpire.

8Neither party shall have power to revoke an appointment of an arbitrator without the consent of the other.

9Every appointment, notice, request, revocation, and consent under this part of these rules shall be in writing.

   Time for an award

10The arbitrators shall make and sign their award in writing within 28 days after the appointment of the last appointed of them, or on or before any later day to which the arbitrators, by any writing signed by them, may enlarge the time for making the award, not being more than 49 days from the appointment of the last appointed of them.

11If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to either party or to the umpire a notice in writing stating that they cannot agree, the umpire may immediately enter on the arbitration instead of the arbitrators.

12The umpire shall make and sign the umpire’s award within 1 month after the original or extended time appointed for making the award of the arbitrators has expired.

13The time for making an award may from time to time be extended by the Minister, whether the time for making the award has expired or not.

   Removal of arbitrator, evidence, statement of case, award, costs, forms

14The provisions of part 1 as to the removal of an arbitrator, the evidence, the statement of a case, the award, costs, and forms shall apply to an arbitration under this part as if the expression arbitrator whenever used in those provisions included 2 arbitrators or an umpire, as the case may require.

Schedule 6 Dictionary

section 3

accepted method, for electronically signing a document, for part 6, division 1, see section 44.

account of a de facto proceeding, for part 19, see section 268.

assurance includes a conveyance and a disposition made otherwise than by will.

backward person ...

bank ...

bankrupt ...

bankruptcy includes any act or proceeding in law having under any Act or Commonwealth Act effects or results similar to those of bankruptcy, and includes the winding-up of an insolvent company.

child of de facto partners, for part 19, see section 259.

Coal Mining Act means the Coal Mining Safety and Health Act 1999.

cohabitation agreement, for part 19, see section 264.

commencement of this Act means the commencement of this Act other than part 18, division 4.

Commonwealth Act, for part 19, see section 259.

consent, for part 6, division 1, see section 44.

conveyance includes a transfer of an interest in land, and any assignment, appointment, lease, settlement, or other assurance in writing of any property.

conveyancing transaction, for part 6, division 3, see section 58A.

copy, of an electronic document, for part 6, division 1, see section 44.

counterpart, for a document, for part 6, division 1, see section 45.

court means—

(a)for part 19—a court having jurisdiction under the part; and

Note—

See section 329.

(b)otherwise—the Supreme Court.

court document, of a proceeding, for part 19, see section 259.

deed includes an instrument having under this or any other Act the effect of a deed.

de facto partner, for part 19, see section 260.

de facto relationship, for part 19, see section 261.

de facto spouse ...

department ...

disposition includes a conveyance, vesting instrument, declaration of trust, disclaimer, release and every other assurance of property by an instrument except a will, and also a release, devise, bequest, or an appointment of property contained in a will.

District Court means the District Court or the District Court judge.

document, for part 6, division 1, see section 44.

e-conveyance, for part 6, division 3, see section 58A.

e-conveyancing, for part 6, division 3, see section 58A.

electronically sign, a document, for part 6, division 1, see section 44.

electronic document, for part 6, division 1, see section 44.

electronic workspace, for part 6, division 3, see section 58A.

ELN, for part 6, division 3, see section 58A.

encumbrance includes a mortgage in fee or for a lesser estate or interest, and a trust for securing money, and a lien and a charge of a portion, annuity or other capital or annual sum.

encumbrancee has a meaning corresponding with that of encumbrance, and includes every person entitled to the benefit of an encumbrance, or to require payment or satisfaction of an encumbrancee.

financial matters, for part 19, see section 262.

financial resources, for part 19, see section 263.

financial settlement, for part 6, division 3, see section 58A.

fine includes premium or foregift, and any payment, consideration, or benefit in the nature of a fine, premium or foregift.

Housing Act means the Housing Act 2003.

Imperial Act means any statute law in force in the realm of England on 25 July 1828.

income, when used with reference to land, includes rents and profits.

information, for part 6, division 1, see section 44.

instrument includes deed, will, and Act.

instrument of subordinate legislation ...

intellectually disabled citizen ...

land ...

Land Act means the Land Act 1994.

land titles legislation, for part 6, division 3, see section 58A.

land under the provisions of the Land Act, or any equivalent expression, means estates, interests, or any other rights in or in respect of land, granted, leased, or granted in trust or reserved and set aside under that Act but does not include registered land or unregistered land.

land under the provisions of the Real Property Acts ...

lease ...

lessee ...

lessor ...

local authority ...

Mineral Resources Act means the Mineral Resources Act 1989.

Miners’ Homestead Leases Act ...

Mining Act ...

monetary limit, for part 19, see section 259.

mortgage includes a charge on any property for securing money or money’s worth.

mortgagee includes any person from time to time deriving title to the mortgage under the original mortgagee.

mortgagee in possession means a mortgagee who in right of the mortgage has entered into and is in possession of the mortgaged property.

mortgage-money means money or money’s worth secured by a mortgage.

mortgagor includes any person from time to time deriving title to the equity of redemption under the original mortgagor, or entitled to redeem a mortgage, according to the mortgagor’s estate, interest, or right in the mortgaged property.

National Law, for part 6, division 3, see section 58A.

nomination of trustees ...

notice includes constructive notice.

order includes judgment and decree of a court.

participating subscriber, for part 6, division 3, see section 58A.

patient ...

physical document, for part 6, division 1, see section 44.

possession, when used with reference to land, includes the receipt of income from land.

president of the Law Society means the president for the time being of the Queensland Law Society Incorporated constituted under the Queensland Law Society Act 1952.

property ...

property adjustment order, for part 19, means an order under section 286.

Public Curator ...

Public Trustee ...

publish, for part 19, see section 267.

purchaser means a purchaser for valuable consideration, and includes a lessee, mortgagee, or other person who for valuable consideration acquires an interest in property.

Real Property Acts ...

recognised agreement, for part 19, see section 266.

registered means the making or recording by proper authority in the appropriate register (if any) or other book, instrument or document of such entries, endorsements, particulars or other information as may be requisite for recording a dealing or other transaction with respect to land.

registered land means land under the provisions of the Land Title Act 1994.

registrar means the registrar of titles.

Registrar of Dealings ...

rent includes yearly or other rent, toll, duty, royalty, or other reservation by the acre, hectare, the ton, tonne or otherwise.

sale means only a sale properly so called.

seal, of a corporation, for part 6, division 1, see section 44.

secretary, of a corporation, for part 6, division 1, see section 44.

securities include stocks, funds, and shares.

separation agreement, for part 19, see section 265.

settlement, of a sale of land or a contract for the sale of land, see section 58B.

sign, a document, for part 6, division 1, see section 44.

State Housing Act ...

subscriber, for part 6, division 3, see section 58A.

title deed includes a certificate of title to, or deed of grant in respect of, registered land.

titles registry fee, for a matter mentioned in a provision of this Act, means the fee payable for the matter under section 350A.

trustee corporation means the public trustee and any corporation authorised by the Trustee Companies Act 1968 to administer the estates of deceased persons and other trust estates.

unregistered land means land that has been granted in fee simple and is not registered land or land granted in trust under the Land Act.

valuable consideration includes marriage but does not include a nominal consideration in money.

warden has the meaning given by the Mineral Resources Act 1989.

will ...