Page 3118 - Week 11 - Tuesday, 9 November 2021
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determines the buyer unreasonably withheld consent. This means that if a buyer does unreasonably withhold consent then they may have costs awarded against them.
Additionally, the bill provides that the Supreme Court must not make an order allowing the rescission of an off-the-plan contract unless they are satisfied that it is just and equitable to do so. The bill provides a non-exhaustive list of matters which the court must take into consideration before making an order, including the terms of the contract, the prospects of the seller being able to complete the contract, the impact of the rescission on the buyer, the impact of completing the contract on the seller and whether the property in question has increased in value.
This process also provides further protection for buyers, should an order for rescission be granted by the court. As previously mentioned, the seller must pay the costs of the buyer in relation to the court proceedings unless the buyer has been found to have unreasonably withheld consent. The court is also provided with the power to make any order that they see fit, including an order for damages.
The reforms do not remove a buyer’s contractual rights of rescission and there is no automatic rescission should a delay or sunset event occur. However, a seller may only exercise their rights under a relevant rescission clause in accordance with the pathways provided in the bill.
The government recognises that the property market is a dynamic environment which is driven by several factors. Accordingly, the bill also includes regulation-making powers to allow the government to refine the operations of the provisions if needed. This regulation-making power will also allow the government to prescribe additional sunset events or provisions in off-the-plan contracts, should further rescission clauses be drafted to subvert the consumer protections achieved by the bill.
The bill also includes a requirement for a review of the amendments to be undertaken as soon as practicable after two years of operation. A report on the review to the Legislative Assembly must be provided within six months after the day that the review is started. This provision will ensure that there will be active and transparent monitoring of the effects of the amendments on the ACT property market.
The bill will be taken to have commenced on its introduction in the Assembly, today. This commencement date means that the proposed amendments are taken to have effect before the bill is passed and notified. While, in general, retrospective effect is avoided when undertaking legislative reform, the current circumstances warrant this application. There is clearly a need for quick and decisive action to prevent the proliferation of this practice. These important protections are needed with the absolute minimum of delay, and commencement on a standard time line carries with it the risk that developers could exploit the window between introduction and passage in order to potentially abuse any rescission triggers in that interim period.
However, we must also recognise the important functions of our parliamentary processes. I look forward to review and any feedback from the scrutiny of bills committee, if the committee seeks to look at this legislation, and the opposition, before bringing the bill on for debate in the last two sitting weeks of this year. My
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