Estate Agents (Contracts) Regulations 1997

Victorian Repealed Regulations

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This legislation has been repealed.

Estate Agents (Contracts) Regulations 1997 - SCHEDULE

FORM 1 Estate Agents Act 1980 CONTRACT NOTE IMPORTANT NOTICE TO PURCHASERS
Cooling-off period Section 31 Sale of Land Act 1962
If none of the exceptions listed below applies to you, you may end this
contract within 3 clear business days of the day that you sign the contract.
To end this contract within this time, you must either give the vendor or the
vendor's agent written notice that you are ending the contract or leave the
notice at the address of the vendor or the vendor's agent. If you end the
contract in this way, you are entitled to a refund of all the money you paid
EXCEPT for $100 or 0×2% of the purchase price (whichever is more).
EXCEPTIONS-the 3-day cooling-off period does not apply if- · You bought the
property at or within 3 clear business days before or after a publicly
advertised auction · You received independent advice from a solicitor before
signing the contract · The property is used mainly for industrial or
commercial purposes · The property is more than 20 hectares in size and is
used mainly for farming · You previously signed a contract for the same
property · You are an estate agent or a corporate body.

THE ESTATE AGENT Phone FAX Attention for THE VENDOR
has obtained from THE PURCHASER
this offer to purchase THE PROPERTY
and THE CHATTELS
for
THE PRICE of $ payable by a

DEPOSIT of $ by (of which $ has been paid) and

THE BALANCE of $ *(a) on or earlier by agreement *OR (b)______________
Complete (a) or (b) SUBJECT TO 1. =___________________________________________
(=) Insert any 2. The vendor providing the purchaser with tenancies, etc.
*vacant possession affecting the property *OR receipt of the rents and profits
of the property upon acceptance of title and payment of the price

*OR_______________________________________

*3. Finance-the lender approving the loan on the security of the property by
the approval date or any later approval date allowed by the vendor. The
purchaser may end the contract if the loan is not approved by the approval
date only if the purchaser- (a) has made immediate application for the loan
(b) has done everything reasonably required to obtain approval of the loan (c)
serves written notice ending the contract on the vendor on or before 2
business days after the approval date, and (d) is not in default under any
other condition of this contract when the notice is given. All money must be
immediately refunded to the purchaser if the contract is ended. PURCHASER'S
FINANCE Lender______________________ Loan being not less than $______ Approval
Date________________
4. The general conditions of sale, other than GC 3, contained in the Contract
of Sale of Real Estate, prescribed under section 99 of the
Estate Agents Act 1980.
5. Any special conditions on the back of, or attached to, this contract note.

*delete as appropriate whenever asterisk (*) appears THE VENDOR'S STATEMENT
required by Section 32(1) of the Sale of Land Act 1962 is attached to and
included in, this contract note. Easements and covenants affecting the
property are disclosed in the Vendor's Statement. The purchaser will execute
any further contract required by the vendor to set out all the conditions of
this sale.
This offer is made by the purchaser on / / and will lapse at midnight on / / .
Signature(s) of the purchaser ________________________ BY SIGNING THIS
DOCUMENT YOU WILL BE LEGALLY BOUND BY IT
This offer is accepted by the vendor on / / .
Signature(s) of the vendor __________________________ The parties acknowledge
being given a copy of this contract note by the agent at the time of
signature. VENDOR'S SOLICITOR
Phone FAX Attention
PURCHASER'S SOLICITORS
Phone FAX Attention
SPECIAL CONDITIONS __________________

FORM 2 Estate Agents Act 1980 CONTRACT OF SALE OF REAL ESTATE IMPORTANT NOTICE
TO PURCHASERS Cooling-off period Section 31 Sale of Land Act 1962 If none of
the exceptions listed below applies to you, you may end this contract within 3
clear business days of the day that you sign the contract. To end this
contract within this time, you must either give the vendor or the vendor's
agent written notice that you are ending the contract or leave the notice at
the address of the vendor or the vendor's agent. If you end the contract in
this way, you are entitled to a refund of all the money you paid EXCEPT for
$100 or 0·2% of the purchase price (whichever is more). EXCEPTIONS-The 3-day
cooling-off period does not apply if- · You bought the property at or within 3
clear business days before or after a publicly advertised auction · You
received independent advice from a solicitor before signing the contract · The
property is used mainly for industrial or commercial purposes · The property
is more than 20 hectares in size and is used mainly for farming · You
previously signed a contract for the same property · You are an estate agent
or a corporate body.

The conditions of this contract are contained in the attached- Particulars of
Sale, and Schedule, and General Conditions, and Special Conditions (if any).
The vendor sells and the purchaser buys both the property and the chattels for
the price and upon the conditions set out in this contract. The Vendor's
Statement required by section 32(1) of the Sale of Land Act 1962 is attached
to, and included in, this contract. Where the signature of any party to this
contract is secured by an agent, the parties acknowledge being given a copy of
this contract by the agent at the time of signing.
____________________________________Vendor
__________________________________Purchaser GENERAL CONDITIONS (GC)
Encumbrances
1.1. The purchaser buys the property and the chattels subject to the
encumbrances shown in Item 1 of the Schedule.
1.2. If the purchaser is taking over an existing mortgage-

(a) the purchaser assumes liability for the mortgage

(b) the price is satisfied to the extent of any mortgage money owing at
the settlement date, and

(c) the vendor must treat any payment made by the purchaser under the
mortgage as a payment made to the vendor under this contract.
Loss or Damage Before Settlement
2.1. The vendor carries the risk of loss or damage to the property and the
chattels until settlement.
2.2. The vendor must deliver the property and the chattels to the purchaser at
settlement date in their present condition (fair wear and tear excepted).
2.3. If any chattel is not in its present condition (fair wear and tear
excepted) at settlement, the purchaser is only entitled to compensation from
the vendor.
Finance
3. This contract is subject to the lender approving the loan on the security
of the property by the approval date or any later approval date allowed by the
vendor. The purchaser may end the contract if the loan is not approved by the
approval date only if the purchaser-

(a) has made immediate application for the loan

(b) has done everything reasonably required to obtain approval of the loan

(d) is not in default under any other condition of this contract when the
notice is given. All money must be immediately refunded to the
purchaser if the contract is ended.
Terms Contracts
4. If this is a "terms contract" as defined in section 2(1) of the
Sale of Land Act 1962, then-

(a) the vendor must arrange the discharge of any mortgage affecting the
land by the settlement date

(b) all money payable under the contract must be paid to a duly qualified
legal practitioner or a licensed estate agent to be applied towards
discharging the mortgage

(c) the purchaser must pay interest to the vendor from the settlement date
upon the balance outstanding at the rate, on the days, and with the
adjustments set out in Item 2 of the Schedule

(d) the vendor must apply instalments under this contract first to pay
interest and then to reduce the balance owing.
Nominee
5. If the contract says that the property is sold to a named purchaser "and/or
nominee" (or similar words), the named purchaser may, at least 14 days before
settlement date, nominate a substitute or additional purchaser, but the named
purchaser remains personally liable for the due performance of all the
purchaser's obligations under this contract.
Payment
6.1. The purchaser must pay all money (except the deposit) to the vendor, the
vendor's solicitor or at the direction of the vendor.
6.2. The purchaser must pay the deposit-

(a) to the vendor's estate agent or, if there is no estate agent, to the
vendor's solicitor, or

(b) if the vendor directs, into a special purpose banking account
specified by the vendor in the joint names of the purchaser and the
vendor.
6.3. If the land sold is a lot on an unregistered plan of subdivision then the
deposit-

(a) must not exceed 10% of the price, and

(b) must be paid-

(i) to the vendor's solicitor or estate agent to be held by the solicitor
or estate agent on trust for the purchaser, or

(ii) if the vendor directs, into a special purpose banking account in
Victoria specified by the vendor in the joint names of the purchaser
and the vendor- until the registration of the plan.
Breach
7. A party who breaches this contract must pay to the other party on demand-

(a) compensation for any reasonably foreseeable loss to the other party
resulting from the breach, and

(b) any interest due under this contract as a result of the breach.
Time
8. If the time for performing any action expires on a Saturday, Sunday or bank
holiday, then time is extended until the next business day.
General Conditions in Legislation
9.1. The general conditions in Table A of the Seventh Schedule of the
Transfer of Land Act 1958 apply if the land is under the operation of that
Act.
9.2. The general conditions in the Third Schedule of the Property Law Act 1958
apply if the land is not under the operation of the Transfer of Land Act 1958.
9.3. General Condition 9 in Table A or in the Third Schedule applies as if its
second last sentence ended with the additional words, "as a resident
Australian beneficial owner of the land".

Conflict Between Conditions
10. In case of a conflict between the conditions the order of priority is-

(a) any special conditions in this contract

(b) general conditions in this contract

(c) general conditions in legislation.
Conditions
11. These conditions prevail over the conditions in any earlier contract and
any requisitions and answers properly made and given under that contract are
deemed to be requisitions and answers properly made and given under this
contract.
Service
12. Any document served by post is deemed to be served on the next business
day after posting unless proved otherwise.
Transfer and Settlement
13.1. The purchaser must provide the instrument of transfer required by
General Condition 12 of Table A, or the assurance required by the Third
Schedule (as the case may be), to the vendor or the vendor's solicitor at
least 10 days prior to the settlement date.
13.2. The vendor must pay the bank fees on all bank cheques exceeding 3 that
are required by the vendor for settlement. PARTICULARS OF SALE VENDOR'S ESTATE
AGENT Ref DX Phone Fax VENDOR'S SOLICITOR Ref DX Phone Fax PURCHASER'S
SOLICITOR Ref DX Phone Fax

VENDOR of PURCHASER of LAND *described in the attached copy title/s

*and plan/s

*and being PROPERTY the land together with any improvements known as ADDRESS
CHATTELS

PRICE $_______________ DEPOSIT $______________ by BALANCE $______________
PAYMENT OF BALANCE *on or earlier by agreement

*OR__________________________________ SETTLEMENT DATE is the date upon which-

*vacant possession, or

*receipt of the rents and profits- of the property and chattels must be
provided, namely, upon acceptance of title and payment of the price
*OR ___________________
PURCHASER'S Lender___________________________ FINANCE Loan being not less than
$________________ (GC3) Approval Date_____________________________ DAY OF SALE
is the earlier of the date of this contract or the acceptance date of any
prior contract note,
namely / /

*delete as appropriate wherever the asterisk (*) appears

SCHEDULE ITEM 1 (GC 1) Encumbrances-

*Any easements and covenants disclosed in the Vendor's Statement.

*Leases-

*Mortgage Nos. (Include Schedule 1 particulars as specified in section 6(2) of
the Sale of Land Act 1962). ITEM 2 (GC 4) Interest _____ % p.a. with
_______rests and payable

*delete as appropriate wherever the asterisk (*) appears SPECIAL CONDITIONS
(SC) __________________ FORM 3 Estate Agents Act 1980 CONTRACT OF SALE OF
BUSINESS The vendor sells and the purchaser buys- the business including the
assets in Schedule A (the business) for the price

* and the marketable stock of the business (the stock) for the value of the
stock upon the conditions in this contract. This contract includes-
the Particulars of Sale
the General Conditions

*the Special Conditions

*Schedule A

*Schedule B

*Schedule C

*Statement by a Vendor of a Small Business. The vendor acknowledges that,
before signing this contract, the vendor received a copy of it. The purchaser
acknowledges that, before signing this contract, the purchaser received a copy
of it, and where appropriate-

* a statement from an auctioneer or estate agent about finance under
section 51 of the Estate Agents Act 1980 and,

* a statement by a vendor of a small business under section 52 of the
Estate Agents Act 1980
Signature of vendor Date

Signature of purchaser Date

*delete as appropriate wherever the asterisk (*) appears

WARNING THIS IS A BINDING CONTRACT YOU SHOULD OBTAIN THE ADVICE OF A SOLICITOR
BEFORE YOU SIGN

PARTICULARS OF SALE VENDOR'S ESTATE AGENT Ref DX Phone Fax VENDOR'S SOLICITOR
Ref DX Phone Fax PURCHASER'S SOLICITOR Ref DX Phone Fax VENDOR PURCHASER
BUSINESS NAME

* Registration No ____________________

* Not registered TYPE OF BUSINESS ADDRESS OF BUSINESS PREMISES PRICE
$_____________ DEPOSIT $_____________ due on _________ RESIDUE $_____________
due on _________ SETTLEMENT DATE Is the day that the purchaser pays the price
and the vendor gives possession of the business. STOCK (GC 8) Maximum stock
value $ ___________ PREMISES The business premises are occupied by the vendor
as-

*tenant

*owner

*licensee

*____________
ASSISTANCE PERIOD * days before

(GC 7) *and days after settlement date.

RESTRAINT OF TRADE years

(GC 10) kilometres

FINANCE Lender ______________ (GC 4) Loan not less than $ ______________
(the loan)
Approval date ______________ DATE OF SALE ........../........../..........

*delete as appropriate wherever the asterisk (*) appears GENERAL CONDITIONS
(GC) These conditions can be changed by negotiation
3 Day Cooling-Off Period
1.1. The purchaser may end this contract within 3 clear business days of the
purchaser signing the contract UNLESS the purchaser-

(a) received independent advice from a solicitor before signing the
contract, or

(b) previously signed a similar contract for the same business.
1.2. To end this contract the purchaser must within the 3 clear business days
either-

(a) give the vendor or the vendor's agent written notice, or

(b) leave written notice at the vendor's or agent's address. that the
contract is ended.
1.3. If the purchaser ends this contract under this condition, any payment the
purchaser made must be refunded.
Ownership and Completion
2.1. The vendor must have the right to sell the business on the day of sale.
2.2. (a) The vendor must transfer the business and the stock to the purchaser
at the settlement date free from all encumbrances.

(b) The parties must perform the obligations in this contract by the
settlement date unless otherwise indicated.

(c) Ownership of the business passes when the whole of the price is paid.
2.3. The vendor must deliver the assets to the purchaser on the settlement
date in the same state of repair (fair wear and tear excepted) as at the day
of sale and in proper working order unless otherwise agreed.
2.4. The vendor must sign all documents prepared by the purchaser and do
whatever else is necessary for the vendor to do to enable the transfer on the
settlement date of any- business name equipment hire contracts in Schedule B
quotas and franchises services connected to the premises licences, permits,
approvals and registrations necessary for the business.
2.5. The purchaser must indemnify the vendor against breach of any contract in
Schedule B which occurs after the settlement date.
2.6. The vendor must by the settlement date-

(a) ensure that the business premises can be lawfully used for the
business, and

(b) comply with any order or notice affecting the business or the business
premises issued or made before the settlement date.
2.7. The vendor must give the purchaser quiet possession of the business.
Payments
3.1. The purchaser must pay-

(a) the deposit to the vendor's agent on the date specified in the
particulars; and

(b) the residue on the settlement date. All money payable under this
contract, other than the deposit, may be paid to the vendor, the
vendor's solicitor, or at the vendor's direction.
3.2. Deposit money received by any person must be held as a stakeholder as if
Division 3 of Part 1 (but not section 27) of the Sale of Land Act 1962 applied
and as if a reference in that Division to land was a reference to the
business.
3.3. Payment must be by a bank cheque or by cash, except payment for stock,
which may be by personal cheque.

Finance
4. This contract is subject to the lender approving the loan for the purchase of the business by the approval date or any later approval date allowed by the vendor. The purchaser may end the contract if the loan is not approved by the approval date only if the purchaser-

(a) has made immediate application for the loan,

(b) has done everything reasonably required to obtain approval of the
loan,

(d) is not in default under any other condition of this contract when the
notice is given. All money must be immediately refunded to the
purchaser if the contract is ended.
Lease
5.1. The vendor must make the lease available for inspection by the purchaser
within 7 days of the day of sale.
5.2. The vendor must obtain for the purchaser by the settlement date a lease
of the business premises either-

(a) by transfer of the current lease with the landlord's written consent,
or

(b) by a new lease- in accordance with Schedule C.
5.3. (a) Both parties must take all reasonable steps to obtain the transfer or
the new lease.

(b) The purchaser must prepare the transfer unless the lease provides
otherwise.

(c) The vendor must perform all the vendor's obligations under the lease
up to the settlement date.
5.4. If the freehold of the business premises is subject to a mortgage or
charge, the vendor must provide evidence of consent of the mortgagee or
chargee to the transfer or the new lease.

5.5. The purchaser may end this contract and any money must be repaid to the
purchaser if-

(a) the landlord does not consent to the transfer, or

(b) the landlord does not grant a new lease, or

(i) stamp duty payable on the transfer or new lease, and

(ii) legal costs payable for the preparation of the transfer or the new
lease.

(b) The vendor must pay all other expenses including expenses related to
obtaining the consent of-

(i) the landlord

(ii) any mortgagee or chargee- to the transfer or the new lease.
Vendor's Debts
6.1. The debts of the business incurred by the vendor before the settlement
date remain the responsibility of the vendor.
6.2. The assets of the business do not include debts owed to the vendor on the
settlement date.
Running the Business
7.1. The vendor must maintain the goodwill of the business and carry on the
business in a proper and businesslike manner until the settlement date.
7.2. The vendor must do whatever is reasonably necessary to introduce the
purchaser to customers and suppliers connected with the business and give the
purchaser reasonable assistance and advice about running the business during
the assistance period.
7.3. The business is at the risk of the vendor until the settlement date.
Valuing Stock
8.1. The purchaser must pay the vendor the value of the stock up to the
maximum stock value. If there is no maximum stock value specified then the
purchaser must buy all of the stock.
8.2. The value is-

(a) the value agreed by the parties; or

(b) failing agreement by the settlement date, the value determined by an
independent stocktaker nominated by the parties mutually or, failing
their nomination, nominated by the President of The Real Estate
Institute of Victoria Ltd upon application by either party.
8.3. If the value exceeds the maximum stock value the parties must agree on
which stock is to be withdrawn from the sale, but if the parties cannot agree,
the identification must be made by the nominated stocktaker.
8.4. The stocktaker's decisions are binding on the parties and each party must
pay an equal share of the stocktaker's costs.
Inspection
9.1. The purchaser may inspect the business and the business premises within 3
business days before the settlement date.
9.2. The vendor must allow inspection of the business premises by officers of
the council and officers authorised by any government department at the
request of the purchaser.
Restraint of Trade
10.1. The vendor must not be "involved in any way" in a business of the same
or similar type within the time and in the radial distance from the business
premises specified in the particulars without the prior written consent of the
purchaser. "involved in any way" includes being involved in the business alone
or as a partner, manager, agent, clerk or assistant of any person or
corporation, or as a director or a majority shareholder or a shareholder who
has a capacity to exercise substantial control of any corporation.
10.2. The vendor, if a corporation, must ensure that each officer, majority
shareholder or shareholder who has a capacity to exercise substantial control
of the corporation enters into a written agreement with the purchaser in the
same terms as the restraint of trade in GC 10.1 and produce such written
agreement by no later than the settlement date.
10.3. This condition is for the benefit of the purchaser, the legal personal
representatives and transferees of the purchaser.
Default
11.1. Time is of the essence of this contract.
11.2. If the purchaser defaults in the payment of money, the vendor may sue
for the unpaid money immediately, without mediating, without giving notice and
without affecting any other right.
11.3. If either party defaults, the other party may demand-

(a) reasonable expenses incurred as a result of the default, and

(b) interest on any money overdue during the period of default at a rate
2% higher than the rate for the time being fixed under section 2 of
the Penalty Interest Rate Act 1983 as at the date of the default- and
the price is altered accordingly.
11.4. If either party defaults, the other party may serve a notice which-

(a) specifies the default, the expenses attributable to the default and
the rate of any interest payable, and

(b) allows not less than 7 days for the remedy of the default and payment,
and

(c) states the rights under GC 11.5 and 11.6 which the party serving the
notice intends to exercise if the default is not remedied.
11.5. If the purchaser has defaulted the vendor may in the notice state that,
unless the default is remedied, all money owing under this contract which is
not yet due for payment is now due. If the notice is not complied with then
that money becomes due.
11.6. The party giving the notice may state in it that unless the notice is
complied with this contract is ended, If the notice is not complied with this
contract is ended and no further notice is necessary.
11.7. If the vendor ends this contract, the vendor may keep the deposit and
either-

(a) resell the business by public auction or private contract, and sue the
purchaser for all expenses and any deficiency in price on resale; or

(b) retain the business and sue the purchaser for damages for breach of
contract.
11.8. If the purchaser ends this contract, the vendor must repay any money
paid by the purchaser, and pay the expenses attributable to the default.
Mediation of Dispute
12.1. Except for a claim under GC 11.2, if a dispute arises out of or relates
to this contract (including any dispute as to breach or termination of the
contract) a party to the contract may not commence any court proceedings
relating to the dispute unless it has complied with this clause except where
the party seeks urgent interlocutory relief-

(a) A party to this contract claiming that a dispute ("the dispute") has
arisen under or in relation to this contract must give written notice
to the other party to this contract specifying the nature of the
dispute.

(b) On receipt of that notice by the other party, the parties to this
contract must endeavour in good faith to resolve the dispute
expeditiously using mediation.

(c) The parties must jointly appoint a mediator and agree on the
mediator's remuneration. If the parties fail to agree on the
appointment and remuneration within 5 days of service of the notice or
any other time that the parties agree to in writing, either party may
apply to the President of the body known as the Law Institute of
Victoria or the President's nominee to appoint a mediator and
determine the mediator's remuneration.

(d) The parties must observe the instructions of the mediator about the
conduct of the mediation.

(e) If the dispute is not resolved within 10 days after the mediator is
appointed, or any other time that the parties agree to in writing, the
mediation ceases.
12.2. Each party must pay an equal share of the costs of the mediation to the
mediator and each party agrees to indemnify the mediator against liability in
respect of the mediation of the dispute.
12.3. If the dispute is resolved, each party must sign the terms of the
agreement and the terms are binding on the parties and override the terms of
this contract if there is any conflict.
12.4. The mediation procedure is confidential and-

(a) written statements prepared for the mediator or for a party, and

(b) any discussion between the parties and between the parties and the
mediator before or during the mediation procedure, cannot be used in
any legal proceedings.
Apportionment of Outgoings
13.1. The parties must adjust the price by apportioning the outgoings and
expenses payable by the vendor in relation to the business at the settlement
date including the following- Apportioned Outgoings rent rates land tax
licence fees other recurrent outgoings for which the tenant is responsible
under the terms of the lease. Apportioned Expenses wages holiday pay and
annual leave loading superannuation payments, charges and levies long service
entitlements accrued but not taken sick leave being taken at the settlement
date.
13.2. The parties must not apportion the following expenses of the business
which remain the responsibility of the vendor- advertising contracts business
promotion prizes business, professional or trade subscriptions telephone or
trade directory subscriptions or similar entries.
Service of Notice
14.1. A party may serve a notice, other than a cooling-off notice, or request
by-

(a) personal service on the other party or the solicitor for the other
party

(b) prepaid post to the other party or the solicitor for the other party

(c) facsimile transmission to the other party or the solicitor for the
other party.
14.2. Service is effected 2 days after posting if the notice or request is
posted.
Inquiries
15. (a) The purchaser may within 14 days of the date of sale make written
inquiries of the vendor concerning any matter appearing in this contract.

(b) The vendor must give full and true answers to the inquiries within 14
days of receipt or 2 business days before settlement whichever is the
earlier.
Non Merger
16. A provision of this contract which can, and is intended to, operate after
settlement remains effective.
Severance
17. If any provision of this contract does not comply with any law, then the
provision must be read down so as to give it as much effect as possible. If it
is not possible to give the provision any effect at all, then it must be
treated as severable from the rest of this contract.
Interpretation
18. These general conditions must be read subject to any special conditions
set out below. SPECIAL CONDITIONS E.g. Trial period, Terms Contract etc.

SCHEDULE A (GC 2) ASSETS INCLUDED IN THE PRICE List assets included in the
sale Plant, equipment, fittings and other assets $_______ Goodwill $_______
Total $_______

SCHEDULE B (GC 2.5) EQUIPMENT HIRE CONTRACTS Owner Lessee Commencement Date
Expiry date Term Option Payment $________________ per ________________ Default

Default notice

SCHEDULE C (GC 5) TERMS OF CURRENT OR NEW LEASE Form 3 Landlord Tenant
Commencement date Term Option

Rent $________________ per ________________ Outgoings

Method of rent review Period of rent review Details of previous rent increases

Where the lease can be inspected

Details of previous transfers

---------------

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