auction contract besm,269 besm road norley qld 4492
TRANSCRIPT
2937654 Contract i
Dated 2020
Auction contract " Besm",269 Besm Road Norley QLD 4492
To be offered for sale by public auction
11am 8 October 2020 Nutrien Harcourts -GDL;- Selling Agent D K Cowan Pty Ltd ACN 001 809 749
as Vendor
Contact Christine Lea Solicitor 36 Marshall Street, Goondiwindi Qld 4390 Telephone: 07 4671 6027 Email: [email protected]
Individual liability limited by a scheme approved under professional standards legislation
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Contents
1. Auction procedure ....................................................................................................... 1
2. Definitions and interpretation ....................................................................................... 1
3. Agent .......................................................................................................................... 3
4. Subject Property ......................................................................................................... 4
5. Reservations ............................................................................................................... 4
6. Purchase Price and payment ...................................................................................... 4
7. Dealings with Deposit.................................................................................................. 4
8. Apportionment............................................................................................................. 5
9. Adjustments ................................................................................................................ 5
10. Completion and delivery .............................................................................................. 6
11. Completion Date – Christmas/New Year period .......................................................... 6
12. Transfer of title ............................................................................................................ 6
13. Trusts .......................................................................................................................... 7
14. Requisitions on title, Vendor's statement and warranties............................................. 7
15. Production of documents .......................................................................................... 11
16. Authority to enquire ................................................................................................... 11
17. Risk ........................................................................................................................... 12
18. Removal of items reserved from sale ........................................................................ 12
19. Depasturing of livestock ............................................................................................ 12
20. Conduct of business ................................................................................................. 12
21. Boundaries ................................................................................................................ 14
22. Warranties ................................................................................................................ 14
23. Warranty negatived ................................................................................................... 15
24. Statement as to finance ............................................................................................ 16
25. Conditions of Lease .................................................................................................. 16
26. Default ...................................................................................................................... 16
27. Default interest .......................................................................................................... 17
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28. Electrical safety switch .............................................................................................. 18
29. Smoke Alarms........................................................................................................... 18
30. Foreign Purchaser Approval ...................................................................................... 18
31. GST .......................................................................................................................... 19
32. Water licences .......................................................................................................... 21
33. Grids ......................................................................................................................... 22
34. Foreign resident capital gains withholding ................................................................. 22
35. Notices ...................................................................................................................... 24
36. Directors' Guarantee ................................................................................................. 26
37. Counterparts ............................................................................................................. 26
38. Electronic Contract and Disclosure ........................................................................... 27
39. Electronic Settlement ................................................................................................ 27
40. Time .......................................................................................................................... 30
41. Costs and outlays ..................................................................................................... 32
42. No merger ................................................................................................................. 32
43. Entire understanding ................................................................................................. 32
44. Further assurances ................................................................................................... 32
45. Exercise of rights ...................................................................................................... 32
46. Waiver ...................................................................................................................... 33
47. Survival of indemnities .............................................................................................. 33
48. Governing law ........................................................................................................... 33
49. Keys .......................................................................................................................... 33
2937654 Contract 1
Agreement dated 2020.
Terms of sale
1. Auction procedure
1.1 The property is offered for sale subject to a reserve price and to the following rights of D K Cowan Pty Ltd ACN 001 809 749 (Vendor):
(1) to bid in person or by its agent or the auctioneer; and
(2) to withdraw the Property at any time before the same is actually sold without declaring the reserve price.
1.2
(1) the bidding must be at a GST exclusive lump sum for the whole of the Property;
(2) the bidder of the highest bid above the reserve for the Property must be the Purchaser;
(3) if any dispute arises as to any bidding the Property will be put up at a former bidding and resold. The Auctioneer (at the Auctioneer's discretion) may resolve any other dispute arising during the auction;
(4) the Auctioneer may in its absolute discretion refuse to accept any bid; and
(5) no person may advance a less sum at any bidding than must be named by the auctioneer and no person must retract any bid.
1.3 The Purchaser must immediately after the sale sign the Contract and will be bound by the Contract.
2. Definitions and interpretation
2.1 Definitions
In this Contract:
(1) ATO means the Australian Taxation Office;
(2) Balance Purchase Price means the Purchase Price, less the Deposit, adjusted pursuant to clause 9 of this Contract;
(3) Business Day means a day other than:
(a) a Saturday or Sunday;
(b) a public holiday in the place where an act is to be performed or payment is to be made under this Contract; or
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(c) a day in the period 27 to 31 December (inclusive);
(4) Completion Date means 42 days from the Contract Date;
(5) Contract means this document, including any schedule or annexure to it;
(6) Contract Date means the date of this contract;
(7) Department means the Department of Natural Resources & Mines;
(8) Deposit means the amount of deposit specified in clause 6.1;
(9) Deposit Holder means Nutrien Harcourts - GDL
(10) Electronic Signature means an electronic method of signing that identifies the person and indicates their intention to sign the contract;
(11) Encumbrances means all unregistered encumbrances, statutory encumbrances and all security interests registered on the Personal Property Securities Register established under the Personal Properties Securities Act 2009 (Cth);
(12) Land means the land described in Schedule 1;
(13) Minister means the Minister for Natural Resources & Mines;
(14) Outgoings means land tax and all rates, charges and licence fees on the Property by any competent authority (including council rates, water charges, water licence fees and rents to the Crown);
(15) Property means:
(a) the Land;
(b) the Water Rights, if any; and
(c) the other property described in Schedule 1.
(16) Reserved Property means the items set out in Schedule 2.
(17) Transfer Documents means:
(a) the form of transfer under the Land Title Act 1994 required to transfer title in the Land to the Purchaser;
(b) the form of transfer required to transfer any other part of the Property to the Purchaser; and
(c) any other document to be signed by the Vendor necessary for stamping or registering those transfers.
(18) Water Rights means the water licences, water allocations or interim water allocations held by the Vendor which are to be transferred to the Purchaser pursuant to this Contract.
2.2 Interpretation
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(1) Reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a party includes the party's executors, administrators, successors and permitted assigns;
(e) a statute, regulation or provision of a statute or regulation (Statutory Provision) includes:
(i) that Statutory Provision as amended or re-enacted;
(ii) a statute, regulation or provision enacted in replacement of that Statutory Provision; and
(iii) another regulation or other statutory instrument made or issued under that Statutory Provision; and
(f) money is to Australian dollars, unless otherwise stated.
(2) "Including" and similar expressions are not words of limitation.
(3) Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(4) Headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.
(5) A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
(6) If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
2.3 Parties
(1) If a party consists of more than 1 person, this Agreement binds each of them separately and any 2 or more of them jointly.
(2) An obligation, representation or warranty in favour of more than 1 person is for the benefit of them separately and jointly.
(3) A party which is a trustee is bound both personally and in its capacity as a trustee.
3. Agent
3.1 Nutrien Harcourts- GDL is the agent effecting this sale and the Vendor must pay the agent's commission.
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4. Subject Property
4.1 The Vendor agrees to sell the Property to the Purchaser and the Purchaser agrees to purchase the Property from the Vendor, free from Encumbrances other than as disclosed in this Contract, on the terms of this Contract.
5. Reservations
5.1 The Reserved Property is reserved from sale.
6. Purchase Price and payment
6.1 The Purchase Price is the purchase price bid at auction and must be paid by the Purchaser as follows:
(1) a Deposit of 10% of the Purchase Price must be paid on the signing of this Contract to the Deposit Holder who, subject to the provisions (if any) of this Contract relating to investment, will hold the Deposit as Deposit Holder pending completion of this Contract when it will be paid to the Vendor; and
(2) the Balance Purchase Price must be paid by bank cheque on the Completion Date as directed by the Vendor's solicitors.
7. Dealings with Deposit
7.1 Default in payment of Deposit
The Purchaser will be in default if it:
(1) does not pay the Deposit when required;
(2) pays the Deposit by post-dated cheque; or
(3) pays the Deposit by cheque which is dishonoured on presentation; and
the Vendor (in addition to any rights at law or in equity) may exercise its rights under clause 26.
7.2 Entitlement to Deposit
(1) The party entitled to receive the Deposit is:
(a) if this Contract settles, the Vendor;
(b) if this Contract is terminated without default by the Purchaser, the Purchaser; and
(c) if this Contract is terminated owing to the Purchaser's default, the Vendor.
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(2) If this Contract is terminated, the Purchaser has no further claim once it receives the Deposit, unless the termination is due to the Vendor's default or breach of warranty.
7.3 Investment of Deposit – intentionally deleted
8. Apportionment
8.1 The Vendor and the Purchaser have not reached agreement as to the apportionment of the purchase price and each party may apportion the purchase price as they wish.
9. Adjustments
9.1 Subject to the terms of this Contract, the Vendor is responsible for all Outgoings with respect to the Property up to and including the date the Purchaser takes possession of the Property. The Purchaser is responsible for all Outgoings after that date.
9.2 Except for water charges based on the quantity of water taken pursuant to the Water Rights, all Outgoings will be apportioned:
(1) in the case of those paid by the Vendor, on the amount actually paid;
(2) in the case of those levied but unpaid, on the amount payable disregarding any discount for early payment;
(3) in the case of those not levied but the amount can be ascertained by advice from the relevant authority, on the amount advised by the relevant rating and taxing authority disregarding any discount for early payment; and
(4) in the case of those not levied and not ascertainable from the relevant rating and taxing authority and where a separate assessment was issued for the assessment period immediately prior to the date of possession, on the amount payable in that separate assessment disregarding any discount for early payment.
9.3 In relation to any water charges based on the quantity of water taken, the Purchaser may read any water meter installed on the Land no more than 3 days before the Completion Date. The water charges payable pursuant to that reading will be payable by the Vendor. All water charges after that reading will be paid by the Purchaser.
9.4 If the Purchaser pays Outgoings which relate to any period before the Completion Date for which an adjustment in favour of the Purchaser has not been made pursuant to this clause 9, the Vendor must refund to the Purchaser on demand a proportion of the Outgoings for the period prior to the Completion Date. The Vendor is entitled to the benefit of any credit or refund which accrues in reduction of the Outgoings for the period prior to the Completion Date and the Purchaser must account to the Vendor for the amount of any credit or refund received by the Purchaser.
9.5 Land tax will be apportioned:
(1) where a separate assessment has issued for the Land only, on the basis of that assessment; or
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(2) where an assessment has issued to the Vendor which includes the Land and other land:
(a) if there is a separate valuation for the Land, then on that valuation; or
(b) if there is no separate valuation for the Land, then on that proportion of the assessment which is the same proportion as the area of the Land bears to the area of the parcel of which the Land forms part in the assessment;
and on the basis that the Land is the Vendor's only land.
(3) If land tax is unpaid at the Completion Date and the Office of State Revenue advises that it will issue a final clearance by payment of a specified amount, then the Purchaser must deduct the specified amount from the Balance Purchase Price at completion and pay it promptly to the Office of State Revenue.
10. Completion and delivery
10.1 Delivery and, subject to the terms of this Contract, vacant possession of the Property must be given and taken on the Completion Date.
10.2 Pending the payment of the Balance Purchase Price and all other monies payable under this Contract including all duty payable on this Contract and the Transfer Documents, possession of the Property by the Purchaser will be as agent only and in trust for the Vendor.
10.3 Subject to the terms of this Contract the Vendor reserves to himself and its employees the use free of charge of the Property and of the grasses, pasturage, water and other facilities up to the Completion Date.
11. Completion Date – Christmas/New Year period
11.1 If the Completion Date falls on a date when either or both of the parties' legal representatives are closed for the Christmas and New Year holiday period then:
(1) completion will occur within 5 Business Days of the re-opening of both legal representative’s offices following the Christmas and New Year holiday period or in any event prior to 18 January 2021; and
(2) the Vendor will not be entitled to claim interest during the closure of each legal representative’s offices during the Christmas and New Year holiday period, unless such interest is claimed 48 hours prior to the closure of either of the offices of the parties' legal representatives for the Christmas and New Year holiday period.
12. Transfer of title
12.1 The Purchaser must prepare the Transfer Documents and deliver them to the Vendor in sufficient time to allow them to be executed before the Completion Date.
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12.2 On the payment by the Purchaser of the Balance Purchase Price, the Vendor must deliver to the Purchaser or its solicitors:
(1) properly executed Transfer Documents capable of immediate registration after stamping;
(2) any instrument of title for the Property required to register the Transfer Documents;
(3) registrable releases of any Encumbrances over the Property not disclosed in this Contract;
(4) all other documents necessary to vest the Property in the Purchaser or register the Transfer Documents.
12.3 The parties agree that completion must be effected at the place nominated by the Vendor's solicitors and failing nomination at the office of the Vendor's solicitors in Goondiwindi.
12.4 The Vendor assigns to the Purchaser at completion the benefit of all warranties capable of assignment held by the Vendor in respect of the Property.
13. Trusts
13.1 If the Purchaser is buying the Property as Trustee, then between the date of this Contract and the Completion Date the Purchaser:
(1) must not do anything to prejudice any right of indemnity it has under the Trust;
(2) warrants that it has power under the Trust to enter into and complete this Contract;
(3) acknowledges that it is personally liable under this Contract;
(4) warrants that it has a right of indemnity under the Trust; and
(5) must not allow the variation of the Trust or the advance or distribution of capital of the Trust or the resettlement of the Trust property.
14. Requisitions on title, Vendor's statement and warranties
14.1 Requisitions on title
The Purchaser is not entitled to deliver to the Vendor requisitions or enquiries on or to the Vendor's title to the Property.
14.2 Vendor's statement and warranties
(1) The Vendor states that, except as disclosed in this Contract, each of the following statements is accurate at the time the Vendor executes this Contract:
(a) the Vendor has (subject to the consent of the Minister in relation to leasehold land) free and unqualified capacity and power to contract and to complete this Contract;
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(b) the Vendor is not (subject to the consent of the Minister in relation to leasehold land) under any legal disability which affects the Vendor's capacity to contract and to complete this Contract; and
(c) if the Vendor is a trustee, the Vendor has free and unqualified power of sale under the Instrument creating the trust and that Instrument does not require the consent or authority of any person in respect of the completion of this Contract;
(2) The Vendor states that, except as disclosed in this Contract, each of the following statements will be accurate at the Completion Date:
(a) there is no current litigation by any person claiming an estate or interest in the Property;
(b) there is no unsatisfied judgment, order or writ of execution which affects the Property;
(c) no order has been made under Part 11 of the Property Law Act 1974 which operates as a charge on the Land;
(d) there is no order of a Court or other competent authority affecting the ability of the Vendor to complete this Contract;
(e) no notice has been issued by a competent authority or proceedings instituted in a Court pursuant to any statute which renders the interest of the Vendor in the Property liable to forfeiture to the Crown;
(f) any Crown leasehold title included in the sale is not rendered liable to forfeiture by reason of the non-observance or non-performance of the covenants or conditions of the lease;
(g) the Vendor is not a bankrupt nor has the Vendor signed any authority under section 188 of the Bankruptcy Act 1966;
(h) if the Vendor is a corporation within the meaning of the Corporations Law or any similar legislation applicable in the Vendor's place of incorporation:
(i) the Vendor is not in liquidation;
(ii) no action has been taken by or against the Vendor which could lead to the winding up of the Vendor;
(iii) the Vendor is not under official management;
(iv) an administrator, controller or managing controller has not been appointed to the Vendor in respect of the whole or any part of the Property; and
(v) a compromise or arrangement has not been proposed between the Vendor and its members or creditors nor agreed to by the members or creditors sanctioned by a Court; and
(vi) the Vendor is the registered owner or the lessee of the Land (according to the title expressed or implied in this Contract).
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(3) If a statement contained in either clause 14.2(1) or clause 14.2(2) is not accurate then the Purchaser may terminate this Contract by notice in writing to the Vendor.
(4) If this Contract is terminated pursuant to clause 14.2(3), the Deposit must be refunded to the Purchaser and the Vendor will be liable by way of damages as compensation for the loss suffered by the Purchaser in such sum as at the time this Contract was made was reasonably foreseeable as the loss liable to result, and which does in fact result from a termination of this Contract due to a statement contained in this clause not being accurate.
(5) If requested by the Purchaser in writing, the Vendor must within 14 days:
(a) produce to the Purchaser all unregistered documents relating to the Property and full and proper particulars of all unregistered dealings that relate to the Property; and
(b) deliver to the Purchaser photocopies of such documents or dealings (if the dealings are in writing) certified by the Vendor or the Vendor's solicitor as being true copies;
(6) No requisition or objection will be made or compensation allowed if:
(a) there is any stock route, road or reservation of a road traversing the Land;
(b) local authority approval has not been obtained in relation to the construction or installation of any buildings or other improvements on the Property;
(c) there is any gate erected across a road traversing the Land;
(d) the Vendor does not hold any permit or authority to enclose any road within the boundaries of the Land or to carry rabbit proof or other fencing across any road dividing or adjoining the Land;
(e) an order concerning the Land has issued under the Land Protection (Pest and Stock Route Management) Act 2002;
(f) there is any proposal for realignment, widening or siting of a road by any competent authority affecting the Land;
(g) there is any transmission line for electricity or telephone purposes traversing the Land above or below ground;
(h) there is any easement or wayleave agreement allowing transmission lines for electricity or telephone purposes to traverse the Land;
(i) electricity or telephone services to the Property traversing other lands are not supported by easements or wayleave agreements;
(j) any lease licence, authority or application under the Mineral Resources Act or the Petroleum Act affects the Land;
(k) the boundaries of the Land are incorrect;
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(l) any of the boundary fences are "give and take" fences;
(m) any of the boundary fences are not erected on the actual boundaries of the Land or are not owned (partly or wholly) by the Vendor;
(n) any boundaries of the Land are unfenced;
(o) the Purchaser is required to do any work in respect of any improvements on the property in relation to workers accommodation;
(p) any noxious weeds are growing on any part of the Land or any notice or order exists requiring that noxious weeds be cleared and destroyed;
(q) the access to the Land is other than by way of adjoining road dedicated for public use as a road or by way of registered easement to a road dedicated for public use;
(r) the Vendor does not hold any licence or permit in relation to works on the Land or works purported to be used in conjunction with the Land or that the works or the use of the works do not conform with the terms of any licence or permit issued in respect of the works;
(s) any native vegetation on the Land has been given a particular classification, any restriction exists in relation to the clearing of native vegetation on the Land or in relation to any other matter relating to native vegetation arising out of any legislation or regulation with respect to native vegetation;
(t) there exists any dealing or notice registered on the title under or pursuant to the Vegetation Management Act 1999;
(u) there exists any claim for an interest in the property by any Australian Aboriginal people under or pursuant to the Aboriginal Land Act 1991, the Native Title Act 1993 (Commonwealth) or the Native Title (Queensland) Act 1993;
(v) a livestock dip and spray race has been operated on the Land, which the Vendor hereby discloses and the Purchaser acknowledges having received written notice of same prior to signing this Contract;
(w) the Vendor has not complied with any relevant legislation, regulation, code or other similar instrument in relation to asbestos materials on the Property; and
(x) any adjoining or other landholder disputes the use of the Property or conduct of business on the Property when notice of such claim is made following the date of this Contract.
(7) The Vendor may continue any claims for compensation in respect of any matters referred to in this clause after completion of this Contract where such compensation rights have arisen prior to the execution of this Contract and all compensation received will belong to the Vendor.
(8) The Purchaser must permit the Vendor or persons nominated by the Vendor to have reasonable access to the Property to continue any claim for compensation provided reasonable notice is first given.
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(9) If it is established that, at the date of this Contract:
(a) the present use of the Property was not lawful under the relevant town planning scheme;
(b) the Property or any part thereof is dedicated as a protected area of any class mentioned in section 14 of the Nature Conservation Act 1992 or is affected by a conservation agreement or conservation plan pursuant to that Act;
(c) the Property or any part thereof is entered on the Contaminated Land Register or Environmental Management Register as a contaminated probable, confirmed or restricted site pursuant to the Environmental Protection Act 1994 or has ever been utilised for any of the purposes listed as prescribed purposes in the Schedule to that Act, other than a purpose disclosed in this Contract, and the Property is not a released or a former site;
(d) the Property is affected by the Queensland Heritage Act 1992 or is included in the World Heritage List;
(e) the Property is not classified with the relevant government department as:
(i) clear under the Brucellosis and Tuberculosis Eradication Scheme;
(ii) no ERP status under the National Organochlorine Residue Management Program;
(iii) not subject to any quarantines, directions, restrictions or undertakings for diseases of stock; and
(iv) not known to be infected with cattle ticks;
and any such facts are not disclosed in this Contract, the Purchaser may by notice in writing to the Vendor given on or before the Completion Date, terminate this Contract.
15. Production of documents
15.1 If the Purchaser requires any of the following he must obtain them at its cost:
(1) all documents and evidence of title and evidence in support of the Vendor's title not in the Vendor's possession; and
(2) all abstracts or copies of the documents of title.
16. Authority to enquire
16.1 The Vendor authorises the Purchaser to make enquiries with respect to the Property with any Government Department, Statutory or quasi Statutory Authority (relevant authority). The parties agree that the production of a copy of this clause to any such
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relevant authority together with a certificate from the solicitor for the Purchaser certifying that the Vendor has given such authority, must be sufficient authority to any such relevant authority for the production of the information requested by the solicitors for the Purchaser.
17. Risk
17.1 The Property is at the Purchaser's risk from, and including, the date of this Contract.
18. Removal of items reserved from sale
18.1 Subject to the terms of this Contract and unless the parties agree otherwise the Vendor must remove the Reserved Property from the Land before Completion.
18.2 If the Vendor is prevented from removing the Reserved Property from the Land due to rain, fire, flood, storm or act of God, the Vendor will be allowed an extra day after completion to remove that Reserved Property for each day the Vendor is so delayed.
19. Depasturing of livestock
19.1 The Vendor must not depasture or permit to be depastured on the Land prior to the Completion Date any more livestock than are presently depasturing on the Land and their progeny.
20. Conduct of business
20.1 Subject to the terms of this Contract, the Vendor must conduct the business at present carried on by him on the Land in a good and husbandlike manner and in accordance with approved methods and must take all steps necessary to maintain the Property in at least as good order and condition as it is at the date of this Contract (fair wear and tear normal use natural causes and damage by fire storm tempest or other act of God excepted).
20.2 Subject to any specific provision in that respect elsewhere contained in this Contract, the Vendor is under no obligation to farm, cultivate, spray or maintain any parts of the Land which are cultivated or have been cultivated in the past.
20.3 The Vendor must keep all necessary registrations in respect of the business conducted by the Vendor on the Land in full force and effect until completion.
20.4 If the parties agree that possession of the Property is to be given to the Purchaser before the Completion Date then:
(1) Until completion the Purchaser must maintain the Property in good order, repair and condition and carry on any business activities on the Land to a standard commensurate with a prudent grazier and farmer.
(2) The Purchaser must not sublet, licence or part with possession of the Property or any part of the Property.
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(3) The Purchaser must not remove any items from the Property and must not make any alterations to the Property.
(4) Any entry into possession before completion will not:
(a) give rise to a relationship of landlord and tenant between the Vendor and Purchaser; or
(b) amount to a waiver of either party's rights under the Contract.
(5) If this Contract is terminated by the Vendor as a result of default by the Purchaser, the Purchaser must immediately deliver up possession of the Property in the same condition as it was in when possession was given to the Purchaser, fair wear and tear excepted, and remove all of the Purchaser's property from the Land.
(6) Possession of the Property will be deemed to be non-exclusive with respect to the Vendor. The Vendor may on reasonable notice to the Purchaser, enter on the Property:
(a) to inspect the Property and its condition;
(b) to carry out any repair or other work the Vendor considers necessary for the maintenance and preservation of the Property; and
(c) for any other purposes the Vendor considers appropriate.
(7) The Purchaser has no claims for damages or compensation against the Vendor if completion of this Contract is not be effected for any reason other than the wilful default of the Vendor.
(8) If the Vendor has authorised the Purchaser to depasture livestock on the Property and completion of this Contract is not effected for any reason:
(a) the Purchaser must, within 7 days of the Vendor's request, remove the Purchaser's livestock from the Land;
(b) if the Purchaser does not remove its livestock from the Land within the time frame above, the Vendor may move such livestock to the nearest stock route or surveyed road and advise the Purchaser thereof;
(c) the Purchaser must pay the Vendor agistment calculated at the rate of $4 plus GST per head per week for cattle and 50¢ plus GST per head per week for sheep that the livestock have been depastured on the Property;
(d) if the Deposit is to be refunded to the Purchaser the agistment is to be deducted from the Deposit; and
(e) if the Deposit is forfeited to the Vendor, the agistment is to be paid within 7 days of termination of this Contract.
(9) The Purchaser indemnifies and agrees to keep indemnified the Vendor against any expense, loss or damage incurred by the Vendor as a result of the Purchaser's use, occupation and possession of the Property.
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(10) The Purchaser must before taking possession of the Property produce to the Vendor a public liability policy for an amount of not less than $20 million noting the interest of the Vendor as owner of the Property, such policy to be taken out with a reputable and apparently solvent insurance company licensed to carry on business in Australia.
21. Boundaries
21.1 The Vendor does not guarantee the correctness of the area or the boundaries of the Land but the title to the same being under the Land Title Act and Land Act in force in Queensland and the area having been taken from the records of the Land Titles Office of the Department therefore such area and boundaries must be presumed to be correct and no objection or requisition can be made in respect of any alleged incorrectness of area or boundaries and no abstract of title can be required.
21.2 No claim for compensation can be made or allowed if:
(1) the existing boundary fences of the Land do not agree with the boundary fences in the Title Deed for the Land;
(2) any of the boundary fences must be "give-and-take" fences;
(3) the boundary fences are not on the actual boundaries of the Land;
(4) any part of the boundary of the Land is unfenced;
(5) any encroachments exist from the Land onto other lands or from other lands onto the Land.
21.3 The Vendor warrants that he has not received any notice of any outstanding claims in respect of any boundary fences. The Purchaser must accept liability with respect to any claims made following the date of this Contract regarding fencing by any adjoining owners, occupiers, Crown tenants or other persons or any charges for the erection, substitution or repairing of the boundary fences or fences purporting to be the boundary fences of the Land after the date of this Contract.
21.4 The Vendor will not be liable under the provisions of the Neighbourhood Disputes Resolution Act 2011 or otherwise in relation to the erection of any dividing or boundary fence between the Land and any other land.
21.5 The Vendor does not warrant or guarantee that the Vendor owns a half or any other interest in the boundary fences and the Vendor does not warrant or guarantee that there is no encroachments from the Land onto other lands or from other lands onto the Land.
22. Warranties
22.1 Other than as disclosed in this Contract, the Vendor warrants as follows:
(1) all rents, rates, fees or charges and taxes affecting the Property, and Water Rights if any, other than current assessments, have been paid;
(2) there are no agreements for the supply of water to or from the Land;
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(3) there are no agreements for the agistment of stock in or on the Land or any other agreements affecting the Property;
(4) all requisitions, notices, orders, demands, declarations and the like received by the Vendor from any government or statutory council, department or authority in relation to the Land or the business conducted thereon have been complied with;
(5) it has not received any notice of resumption or intended resumption affecting the Land;
(6) it is not aware of any claim in respect of any boundary fence or fences purporting to be boundary fences and are not aware of any outstanding obligations in respect of any of the boundary fences whether under the legislation or otherwise;
(7) it holds a valid licence, where required for any grids on roads traversing the Property and is not in breach of the terms of any such licence;
(8) there is no access, conduct or compensation agreement, Land and Resources Tribunal or Land Court decision or like arrangements entered into whereby the owner of the Land has compromised any rights or entitlements to compensation, make-good provisions or any common law or other rights or entitlements whatsoever under the provisions of any Statutory Provision relating to resources under the Land or likely to be binding or affect the interest of the Purchaser after Completion;
(9) it has not received any expression of interest by Queensland Parks & Wildlife Service in respect of the Property and it has not received notice of any proposal to declare all or any part of the Land a National Park or of any orders or declarations (or proposed orders or declarations) under the Nature Conservation Act; and
(10) the Property is classified with the relevant government department as:
(a) clear under the Brucellosis and Tuberculosis Eradication Scheme;
(b) no ERP status under the National Organochlorine Residue Management Program;
(c) not subject to any quarantines, directions, restrictions or undertakings for diseases of stock; and
(d) not known to be infected with cattle ticks.
23. Warranty negatived
23.1 No Warranty is given or implied as to the nature, state or condition of the Property, the carrying capacity of the Land, the sufficiency, capacity, extent of or structural integrity of any tanks, dams, bores or other water facilities or works, the extent of any natural or artificial water or the amount of water available pursuant to the Water Rights, if any.
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23.2 Any work required in relation to any building on the Land pursuant to the Workers' Accommodation Act, the Pastoral Workers' Accommodation Act, the regulations under either of those Acts, the State Shearing Industry Award, any legislation regulating workplaces or any combination of them must be carried out by the Purchaser at its own cost.
23.3 The Purchaser acknowledges that it purchases the Property relying on its own inspection or knowledge or enquiries and not on any brochure or advertisement issued or published in respect of this sale (whether prepared for the purpose of this sale or otherwise) or on any representations made by or on behalf of the Vendor or its agent.
23.4 Any warranty which would otherwise be implied with respect to any chattels or improvements included in the sale pursuant to the Sale of Goods Act or any other statute is hereby expressly negatived.
24. Statement as to finance
24.1 The Purchaser acknowledges that neither the Vendor nor the Agent have made any representations as to finance being available to the Purchaser to assist with their acquisition of the Property.
25. Conditions of Lease
25.1 The Crown leasehold land (Lease) included in the Property is sold subject to:
(1) the terms of the Lease, the provisions of and the regulations, decisions and proclamations under the Land Act 1994 and any other Act affecting the Lease so far as they now remain to be observed and performed;
(2) the payment of Crown rent falling due after the Completion Date;
(3) any stock routes or roads passing through or over the Land; and
(4) the resumption rights of the Crown.
25.2 The Land is sold on a present title basis and, if the Lease is a freeholding lease, subject to the Purchaser paying a proportionate part as from the Completion Date of all freeholding instalments which may become payable in respect of the Lease.
25.3 The last payment of rent pursuant to the Lease must be accepted as conclusive evidence of the validity of the Lease and that the Vendor has complied with the Lease up to the date of this Contract.
26. Default
26.1 If the Purchaser does not comply with a provision of this Contract the Vendor (in addition to any other rights which may be conferred on it by law or in equity) may affirm or terminate this Contract.
26.2 If the Vendor affirms this Contract under clause 26.1, it may sue the Purchaser for:
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(1) damages;
(2) specific performance or;
(3) damages and specific performance.
26.3 If the Vendor terminates this Contract under clause 26.1, it may do all or any of the following:
(1) resume possession of the Property;
(2) forfeit the Deposit and interest earned on its investment;
(3) recover from the Purchaser as a liquidated debt, any part of the Deposit which the Purchaser has failed to pay;
(4) sue the Purchaser for damages; and
(5) resell the Property.
26.4 The Vendor may recover from the Purchaser as liquidated damages:
(1) any deficiency on price on a resale; and
(2) its expenses connected with this Contract, any repossession, any failed attempt to resell and the resale;
provided the resale settles within 2 years of termination of this Contract.
26.5 Any profit on a resale belongs to the Vendor.
26.6 Any liability for taxation on a capital gain which accrues to the Vendor if the Deposit (or any part of it) is forfeited or which is in excess of the liability which would have accrued on the sale of the Property if this Contract was completed, will be included in the assessment of damages for breach recoverable from the Purchaser under this clause 26.
27. Default interest
27.1 Without affecting the Vendor's other rights, if any money payable by the Purchaser under this Contract is not paid when due, the Purchaser must pay the Vendor at completion, interest on that money calculated at the rate of 10% from the due date for payment until payment is made.
27.2 The Vendor may recover that interest from the Purchaser as liquidated damages.
27.3 Any judgment for money payable under this Contract will bear interest from the date of judgment to the date of payment and the provisions of this clause 27 apply to the calculation of that interest.
27.4 It is a fundamental term of this Contract that the Purchaser pay any interest calculated pursuant to this clause, on or before completion of this Contract. The Purchaser will be in material and substantial default under this Contract until payment of interest is made. For removal of doubt, if the Purchaser does not pay the interest on completion the Vendor may do one or both of the following:
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(1) refuse to effect completion of this Contract until payment is made;
(2) exercise any of its rights contained in clause 26.
28. Electrical safety switch
28.1 This clause 28 only applies if the Land is not vacant.
28.2 In this clause 28:
(1) Approved Safety Switch means a residual current device defined in the Electricity Safety Regulation 2013;
(2) General Purpose Socket Outlet means an electrical socket outlet defined in the Electricity Safety Regulation 2013; and
(3) Regulator means the regulator defined in the Electricity Safety Regulation 2013.
28.3 The Vendor gives notice to the Purchaser that an Approved Safety Switch for the General Purpose Socket Outlet is:
*not installed in the residence
*installed in the residence
*mark whichever is applicable.
28.4 The Vendor makes no other representations about the number, condition, quality or working order of any such switches.
29. Smoke Alarms
29.1 This clause 29 only applies if the land is not Vacant.
29.2 The Vendor gives notice to the Purchaser that a Compliant Smoke Alarm(s) is/are:
*not installed in the residence
*installed in the residence.
*mark whichever is applicable.
29.3 The Vendor makes no other representations about the number, condition, quality or working of any such alarms.
30. Foreign Purchaser Approval
30.1 The Purchaser warrants that either:
(1) the Purchaser’s purchase of the Property is not a notifiable action; or
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(2) the Purchaser has received a no objection notification under the Foreign Acquisition & Takeovers Act 1975.
30.2 The Vendor's rights will not be affected by any illegality of this Contract if the Treasurer's consent to the purchase of the Property by the Purchaser is necessary but has not or is not obtained.
31. GST
31.1 Definitions
(1) GST means the goods and services tax under the GST Act.
(2) GST Act means A New Tax System (Goods and Services Tax) Act 1999 and includes other GST related legislation.
(3) GST Withholding Amount means the amount (if any) determined under section 14-250 of the Withholding Law required to be paid to the Commissioner for Taxation.
(4) Withholding Law means Schedule 1 to the Taxation Administration Act 1953 (Cth).
31.2 Sale of farmland – GST free
(1) In respect of the supply of a freehold interest in or the lease by an Australian Government Agency of or the long term lease of Land with respect to which section 38 - 480 of the GST Act applies, the following provisions apply:
(a) the Vendor and the Purchaser agree that the supply being made pursuant to this agreement is a supply of farm land in accordance with section 38-480 of the GST Act;
(b) the Vendor warrants that the Land is land on which a farming business has been carried on for at least five years preceding the supply;
(c) the Purchaser warrants that the Purchaser intends that a farming business be carried on on the Land;
(d) in the event that either party breaches this clause:
(i) the Purchaser will, in addition to any consideration or other amount payable for the relevant supply, pay to the Vendor an additional amount on account of GST, such amount to be calculated by multiplying the consideration or other amount payable for the relevant supply by the prevailing GST rate;
(ii) the Vendor agrees not to use the margin scheme in determining the GST to be paid on any supply the subject of this Contract;
(iii) the breaching party will in addition pay to the non-breaching party damages calculated as being interest on the amount of the GST payable calculated at the rate 13% per annum for a period of three months;
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(iv) if the breaching party is the Purchaser, an additional amount being equivalent to any penalties and interest paid by the Vendor under the GST Act.
(2) In respect of any supply in respect of which the provisions of sections 38 - 480 of the GST Act do not apply, the following provisions apply:
(a) the consideration payable by the Purchaser is exclusive of GST;
(b) if any supply (including the supply of any goods, services, other rights, benefits or other things) made under or in connection with this agreement is or becomes subject to GST, the Purchaser will, in addition to any consideration or other amount payable for the relevant supply, pay to the Vendor an additional amount on account of GST, such amount to be calculated by multiplying the consideration or other amount payable for the relevant supply by the prevailing GST rate;
(c) where GST is payable on the supply, the Vendor must give to the Purchaser a Tax Invoice on the Completion Date.
(3) Dispute resolution
If any difference or dispute arises as to:
(a) the interpretation of any provisions of this clause;
(b) whether or not a supply has or will take place or as to the consideration payable with respect to that supply;
(c) the liability of the respective parties in respect of the payment of GST or the payment of any other money referred to in this clause;
the matter in dispute must be referred to a Certified Practising Accountant nominated by the solicitor for the Vendor for that purpose and the decision of such accountant will be given as an expert and not as an arbitrator and will bind the parties.
31.3 GST Withholding Law
(1) The Purchaser warrants that it:
*is registered for GST and acquiring the land for a creditable purpose.
*is not registered for GST and acquiring the land for a creditable
purpose.
*mark whichever is applicable.
(2) The Vendor gives notice to the Purchaser in accordance with section 14-255(1)(a) of the Withholding Law (Taxation Administration Act 1953 (Cth) Schedule 1) that:
the Purchaser is not required to make a payment under section 14-250
of the Withholding Law in relation to the supply of the Property.
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the Purchaser is not required to make a payment under section 14-250
of the Withholding Law in relation to the supply of the Property. Under section 14-255(1) of the Withholding Law, the Vendor is required to give further details prior to settlement.
*mark whichever is applicable.
(3) If the Purchaser is required to pay the GST Withholding Amount to the Commissioner of Taxation at settlement pursuant to section 14-250 of the Withholding Law:
(a) the Vendor must give the Purchaser a notice in accordance with section 14-255(1) of the Withholding Law;
(b) prior to settlement the Purchaser must lodge with the ATO:
(i) a GST Property Settlement Withholding Notification form (“Form 1”); and
(ii) a GST Property Settlement Date Confirmation form (“Form 2”);
(c) on or before settlement, the Purchaser must give the Vendor copies of:
(i) the Form 1;
(ii) confirmation from the ATO that the Form 1 has been lodged specifying the Purchaser’s lodgement reference number and payment reference number;
(iii) confirmation from the ATO that the Form 2 has been lodged; and
(iv) a completed ATO payment slip for the Withholding Amount.
(d) the Vendor irrevocably directs the Purchaser to draw a bank cheque for the GST Withholding Amount in favour of the Commissioner of Taxation and deliver it to the Vendor at settlement; and
(e) the Vendor must pay the GST Withholding Amount to the ATO in compliance with section 14-250 of the Withholding Law promptly after settlement.
(4) The Purchaser warrants the statements made by the Purchaser in this clause are true and correct.
32. Water licences
32.1 The Vendor is the holder of the following water licences (Licences)
(a) Licence No. : 50640E
Authorised activity : The taking of underground water from the Eromanga South Hooray (Great Artesian Basin) with the point of take under Lot 4 on WN234
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Authorised purpose : Stock
Location : Attached to the land described as Lot 4 on WN234
(b) Licence No. : 06704E
Authorised activity : The taking of underground water from the Eromanga Wallumbilla (Great Artesian Basin) with the point of take under Lot 4 on WN234
Authorised purpose : Stock
Location : Attached to the land described as Lot 4 on WN234
32.2 From the Completion Date the Purchaser:
(1) must accept and take over from the Vendor all the Vendor's rights duties and obligations in relation to the Licences including the obligation of the Vendor to pay any licence fees required to be paid in respect of the issue use or retention of the Licences; and
(2) indemnifies the Vendor against all liabilities, losses or expenses the Vendor incurs as a result of the Purchaser, or any of its assignee's, transferees, employees, officers or others authorised by it, not complying with the provisions and conditions of the Licences or the Water Act 2000.
33. Grids
33.1 From the Completion Date, the Purchaser will:
(1) assume the Vendor's obligations under any permits for road grids held for the Land; and
(2) indemnify the Vendor against any damages and expenses connected with the permits or the use of the grids.
34. Foreign resident capital gains withholding
34.1 Definitions
In this clause 34:
(1) Words defined or used in Subdivision 14-D of the Withholding Law have the same meaning in this special condition unless the context requires otherwise;
(2) Act means the Taxation Administration Act 1953 (Cth);
(3) CGT Withholding Amount means the amount determined under section 14-200(3) of the Withholding Law or, if a copy is provided to the Purchaser prior to settlement, a lesser amount specified in a variation notice under section 14-235;
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(4) Clearance Certificate means a certificate issued under s14-220(1) of the Withholding Law which is current on the date it is given to the Purchaser;
(5) Property means the interest in land and fixtures to that land being transferred pursuant to this document;
(6) Purchase Price means the amount required to be paid by the Purchaser to the Vendor in relation to the Transaction;
(7) Purchaser means the person to whom the Property is being transferred under this document;
(8) Settlement means the settlement, completion or other time of taking effect of the Transaction;
(9) Transaction means the transfer of ownership of the Property pursuant to this document; and
(10) Vendor means the person who is transferring the Property under this document; and
(11) Withholding Law means Schedule 1 to the Act.
34.2 This clause only applies if:
(1) the Property has or will have a market value of $750,000 or more at the date of this document;
(2) the Transaction is not excluded under section 14-215(1) of the Withholding Law; and
(3) the Vendor is a foreign resident.
34.3 The Vendor is deemed to be a foreign resident for the purposes of this clause unless:
(1) the Vendor gives the Purchaser before that date that is 10 Business Days before the Completion Date for each person comprising the Vendor either:
(a) a Clearance Certificate; or
(b) a variation notice under s14-235 of the Withholding Law which remains current at the Completion Date varying the CGT Withholding Amount to nil; and
(2) the specified period in the Clearance Certificate must include the actual Completion Date.
34.4 The Purchaser may deduct the CGT Withholding Amount from the Vendor's entitlement to the Purchase Price at Settlement. The Vendor must pay to the Purchaser at Settlement such part of the CGT Withholding Amount as is:
(1) represented by non-monetary consideration; or
(2) in excess of the Purchase Price.
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34.5 The Vendor irrevocably directs the Purchaser to draw a bank cheque for the CGT Withholding Amount in favour of the Deputy Commissioner of Taxation or, if the Purchaser's Solicitor requests, the Purchaser's Solicitor's Trust Account.
34.6 The Purchaser must lodge a Foreign Resident Capital Gains Withholding Purchaser Notification Form with the Australian Taxation Office for each person comprising the Purchaser and give copies to the Vendor with the payment reference numbers (PRN) on or before Settlement.
34.7 The Vendor must return the bank cheque in paragraph 34.5 to the Purchaser's Solicitor (or if there is no Purchaser's Solicitor, the Purchaser) at Settlement.
34.8 The Purchaser must pay the CGT Withholding Amount to the Commissioner in accordance with s14-200 of the Withholding Law and give the Vendor evidence that it has done so within 2 Business Days of Settlement.
34.9 The Vendor must provide the Purchaser with all information required by the Purchaser to comply with the Purchaser's obligation to pay the CGT Withholding Amount in accordance with section 14-200 of the Withholding Law. The information must be provided within 5 business days of request by the Purchaser. The Vendor warrants that the information the Vendor provides is true and correct.
34.10 The Purchaser is responsible for any penalties or interest payable to the Commissioner on account of late payment of the CGT Withholding Amount, except to the extent the Purchaser is prevented from paying the CGT Withholding Amount to the Commissioner due to the default of the Vendor.
34.11 For the purposes of clause 34.2(1) and section 14-215 of the Withholding Law, the market value of the Property is taken to be the Purchase Price less any GST included in the Purchase Price for which the Purchaser is entitled to an input tax credit unless:
(1) the Property includes items in addition to the land and improvements; and
(2) no later than 2 Business Days prior to the Completion Date, the Vendor must give the Purchaser a valuation of the Property prepared by a registered valuer; and
(3) the market value of the Property will be as stated in the valuation.
34.12 The Purchaser will not be obliged to reduce the CGT Withholding Amount in accordance with any:
(1) Clearance Certificate; or
(2) document evidencing variation of the CGT Withholding Amount in accordance with section 14-235(2) of the Withholding Law;
unless that is given to the Purchaser at least 10 Business Days before the Completion Date.
35. Notices
35.1 A notice or other communication connected with this Contract (Notice) has no legal effect unless it is in writing.
2937654 Contract 25
35.2 Notices under this Contract or notices required to be given by law may be given by the party or the party's solicitor.
35.3 Notices under this Contract or notices required to be given by law may be given by:
(1) delivering or posting to the other party or its solicitor; or
(2) sending it to the facsimile number of the other party or its solicitor (or another facsimile number notified by the recipient to the sender);
(3) sending to the email address of the other party or its solicitor stated in this Contract (or another email address notified by the recipient to the sender).
35.4 Subject to clause 35.5, a Notice given after this Contract is entered into in accordance with clause 35.2, will be treated as given:
(1) 7 Business Days after posting if sent to an address within Australia and the Notice is sent from within Australia;
(2) 14 Business Days after posting if sent to an address outside Australia or if the Notice is sent from outside Australia;
(3) if sent by facsimile, at the time indicated on a clear transmission report; and
(4) if sent by email, at the time it is sent.
35.5 Notices given by facsimile, by personal delivery or by email between 5pm on a Business Day (first Business Day) and 9am on the next Business Day (second Business Day) will be treated as given or delivered at 9am on the second Business Day.
35.6 Despite clauses 35.4(3) and 35.4(4):
(1) a facsimile or electronic mail message is not treated as given or received if it is not received in full and in legible form and the addressee notifies the sender of that fact within 3 hours after the transmission ends or by 12 noon on the Business Day on which it would otherwise be treated as given and received, whichever is later; and
(2) an electronic mail message is not treated as given or received if the sender's computer reports that the message has not been delivered.
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35.7 If two or more notices are treated as given at the same time under clause 35.5, they will be given in the order in which they were sent or delivered.
35.8 The Vendor's address for service is.
Name : Fox and Thomas Attention : Address : 36 Marshall Street Goondiwindi Qld 4390 Facsimile no : 07 4671 6010 Email : [email protected]
35.9 The Purchaser's address for service is.
Name : Attention : Address : Facsimile no : Email :
35.10 A party may change its address for service by giving Notice of that change to each other party.
35.11 Notices or other written communications by a party's solicitor will be treated as given with that party's authority.
35.12 For the purposes of clause 35.3(3) and clause 38.2 the notice or information be contained within an email, as an attachment to an email or located in an electronic repository accessible by the recipient by clicking a link in an email.
36. Directors' Guarantee
36.1 If the Purchaser is a proprietary limited company (whether in its own right or acting as trustee):
(1) the obligations of the Vendor under this Contract is conditional on the form of Directors' Guarantee annexed to this Contract being duly executed by at least 2 natural persons who are officeholders or shareholders of the Purchaser and that Guarantee is to be witnessed, dated and delivered to the Vendor at the time of exchange or execution by the Purchaser of this Contract;
(2) the provision of the Guarantee referred to in clause 36.1(1) is a fundamental term of this Contract and the Purchaser will be in material and substantial default under this Contract if this provision is not fulfilled;
(3) if this provision is not fulfilled both the bidder and the company must be deemed in substantial breach of this Contract and the Vendor may proceed under the powers contained in this Contract as if both the bidder and the company had been named as Purchaser.
37. Counterparts
37.1 This Contract may be executed in two or more counterparts, all of which will together be deemed to constitute one and the same contract.
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37.2 A counterpart may be electronic and signed using an Electronic Signature.
38. Electronic Contract and Disclosure
38.1 If the Contract is signed by any person using an Electronic Signature, the Purchaser and the Vendor:
(1) agree to enter into this Contract in electronic form; and
(2) consent to either or both parties signing the Contract using an Electronic Signature.
38.2 The Purchaser consents to the Vendor's use of electronic communication to give any notice or information required by law to be given to the Purchaser and which was given before the Purchaser signed this Contract.
39. Electronic Settlement
39.1 This clause applies if the Vendor, Purchaser and each Financial Institution involved in the transaction agree to an Electronic Settlement and overrides any other provision of this Contract to the extent of any inconsistency.
39.2 Acceptance of an invitation to an Electronic Workspace is taken to be an agreement for clause 39.1.
39.3 Clause 39 (except clause 39.7) ceases to apply if either party gives notice under clause 39.7 that settlement will not be an Electronic Settlement.
39.4 Completion of Electronic Workspace
(1) The parties must:
(a) ensure that the Electronic Workspace is completed and all Electronic Conveyancing Documents and the Financial Settlement Schedule are Digitally Signed prior to settlement; and
(b) do everything else required in the Electronic Workspace to enable settlement to occur on the Completion Date.
(2) If the parties cannot agree on a time for settlement, the time to be nominated in the Electronic Workspace is 4pm AEST.
(3) If any part of the Purchase Price is to be paid to discharge an Outgoing:
(a) the Purchaser may, by notice in writing to the Vendor, require that the amount is paid to the Purchaser’s Solicitor’s trust account and the Purchaser is responsible for paying the amount to the relevant authority;
(b) for amounts to be paid to destination accounts other than the Purchaser’s Solicitor’s trust account, the Vendor must give the Purchaser a copy of the current account for the Outgoing to enable the
2937654 Contract 28
Purchaser to verify the destination account details in the Financial Settlement Schedule.
(4) If the Deposit is required to discharge any Encumbrance or pay an Outgoing at settlement:
(a) the Deposit Holder must, if directed by the Vendor at least 2 Business Days prior to Settlement, pay the Deposit (and any interest accrued on investment of the Deposit) less commission as clear funds to the Vendor’s Solicitor;
(b) the Purchaser and the Vendor authorise the Deposit Holder to make the payment in clause 39.4(4)(a);
(c) the Vendor’s Solicitor will hold the money as Deposit Holder under the Contract;
(d) the Vendor and Purchaser authorise the Vendor’s Solicitor to pay the money as directed by the Vendor in accordance with the Financial Settlement Schedule.
39.5 Electronic Settlement
(1) Clause 12.3 does not apply.
(2) Payment of the Balance Purchase Price electronically as directed by the Vendor’s Solicitor in the Financial Settlement Schedule satisfies the Purchaser’s obligation in clause 6.1(2).
(3) The Vendor and Purchaser will be taken to have complied with:
(a) clause 31.3(3)(d) and 31.3(3)(e):
(as applicable) if at settlement the Financial Settlement Schedule specifies payment of the relevant amount to the account nominated by the Commissioner of Taxation.
(4) The Vendor will be taken to have complied with clause 12.2(1) and 12.2(2), if, at settlement, the Electronic Workspace contains Transfer Documents and (if applicable) releases of the Encumbrances (other than releases of Encumbrances referred to in clause 39.5(5) for Electronic Lodgement in the Land Registry.
(5) The Vendor will be taken to have complied with clause 12.2(3) and 12.2(4) and 49.1 if the Vendor’s Solicitor:
(a) confirms in writing prior to settlement that it holds all relevant documents which are not suitable for Electronic Lodgement and all Keys in escrow on the terms contained in the QLS E-Conveyancing Guidelines; and
(b) gives a written undertaking to send the documents and Keys (if applicable) to the Purchaser or Purchaser’s Solicitor no later than the Business Day after settlement; and
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(c) if requested by the Purchaser, provides copies of documents in the Vendor’s Solicitors possession.
(6) A party is not in default to the extent it is prevented from complying with an obligation because the other party or the other party’s financial institution has not done something in the Electronic Workspace.
(7) Any rights under the Contract or at law to terminate the Contract may not be exercised during the time the Electronic Workspace is locked for Electronic Settlement.
39.6 Computer System Unavailable
(1) If settlement fails and cannot occur by 4pm AEST on the Completion Date because a computer system operated by the Land Registry, Office of State Revenue, Reserve Bank, a Financial Institution or PEXA is inoperative, neither party is in default and the Completion Date is deemed to be the next Business Day. Time remains of the essence.
(2) A party is not required to settle if Electronic Lodgement is not available. If the parties agree to Financial Settlement without Electronic Lodgement, settlement is deemed to occur at the time of Financial Settlement.
39.7 Withdrawal from Electronic Settlement:
(1) Either party may elect not to proceed with an Electronic Settlement by giving written notice to the other party.
(2) A notice under clause 39.7(1) may not be given later than 5 Business Days before the Completion Date unless an Electronic Settlement cannot be effected because:
(a) the transaction is not a Qualifying Conveyancing Transaction; or
(b) a party’s solicitor is unable to complete the transaction due to death, a loss of legal capacity or appointment of a receiver or administrator (or similar) to their legal practice or suspension of their access to PEXA; or
(c) the Purchaser’s or Vendor’s financial institution is unable to settle using PEXA.
(3) If clause 39.7(2) applies:
(a) the party giving the notice must provide satisfactory evidence of the reason for the withdrawal; and
(b) the Completion Date will be extended to the date 5 Business Days after the Completion Date.
39.8 Each party must pay its own fees and charges of using PEXA for Electronic Settlement.
39.9 Definitions in clause 39:
(1) Digitally Sign and Digital Signature have the meaning in the ECNL.
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(2) ECNL means the Electronic Conveyancing National Law (Queensland).
(3) Electronic Conveyancing Documents has the meaning in the Land Title Act 1994.
(4) Electronic Lodgement means lodgement of a document in the Land Registry in accordance with the ECNL.
(5) Electronic Settlement means settlement facilitated by PEXA.
(6) Electronic Workspace means a shared electronic workspace within PEXA that allows the Purchaser and Vendor to affect Electronic Lodgement and Financial Settlement.
(7) Financial Settlement means the exchange of value between Financial Institutions in accordance with the Financial Settlement Schedule.
(8) Financial Settlement Schedule means the electronic settlement schedule within the Electronic Workspace listing the source accounts and destination accounts.
(9) PEXA means the system operated by Property Exchange Australia Ltd for settlement of conveyancing transactions and lodgement of Land Registry documents.
(10) Qualifying Conveyancing Transaction means a transaction that is not excluded for Electronic Settlement by the rules issued by PEXA, Office of State Revenue, Land Registry, or a Financial Institution involved in the transaction.
40. Time
40.1 Time of the essence
(1) Time is of the essence of this Contract except regarding any agreement between the parties on a time of day for settlement and except as otherwise provided in this Contract.
(2) If the parties agree to vary a time requirement, the time requirement so varied is of the essence of this Contract.
(3) An agreement to vary a time requirement must be in writing.
40.2 Suspension of Time
(1) Definitions in this clause 40:
(a) Affected Party means a party referred to in clause 40.2(1);
(b) Delay Event means:
(i) a tsunami, flood, cyclone, earthquake, bushfire or other act of nature;
(ii) riot, civil commotion, war, invasion or a terrorist act;
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(iii) a public health emergency of international concern or pandemic declared by the World Health Organisation;
(iv) a human bio security emergency or health related quarantine, isolation order or entry and exit restriction declared or imposed by a Government Agency;
(v) an imminent threat of an event in paragraphs 40.2(1)(a), 40.2(1)(b), 40.2(1)(c) or 40.2(1)(d); or
(vi) compliance with any lawful direction or order by a Government Agency;
(c) Government Agency means the government of the Commonwealth of Australia or an Australian State, Territory or local government and includes their authorities, agencies, government owned corporations and authorized officers, courts and tribunals;
(d) Settlement Obligations means:
(i) in the case of the Purchaser, its obligations under clauses 6.1(2) and 12.1; and
(ii) in the case of the Vendor, its obligations under clauses 12.2 and 18.1.
(e) Suspension Period means the period during which the Affected Party (or if both the Purchaser and Vendor are Affected Parties, either of them) remains unable to perform a Settlement Obligation solely as a consequence of a Delay Event.
(2) This clause 40.2 applies if a party is unable to perform a Settlement Obligation solely as a consequence of a Delay Event but does not apply where the inability is attributable to:
(a) damage to, destruction of or diminution in value of the Property or other property of the Vendor or Purchaser; or
(b) termination or variation of any agreement between a party and another person whether relating to the provision of finance, the release of an Encumbrance, the sale or purchase of another property or otherwise.
(3) Time for the performance of the parties' Settlement Obligations is suspended and ceases to be of the essence of the contract and the parties are deemed not to be in breach of their Settlement Obligations.
(4) An Affected Party must take reasonable steps to minimise the effect of the Delay Event on its ability to perform its Settlement Obligations.
(5) When an Affected Party is no longer prevented from performing its Settlement Obligations due to the Delay Event, the Affected Party must give the other party a notice of that fact, promptly.
(6) When the Suspension Period ends, whether notice under clause 40.2(5) has been given or not, either party may give the other party a Notice to Settle.
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(7) A Notice to Settle must be in writing and state:
(a) that the Suspension Period has ended; and
(b) a date, being not less than 5 nor more than 10 Business Days after the date the Notice to Settle is given, which shall become the Completion Date;
(c) that time is of the essence.
(8) When Notice to Settle is given, time is again of the essence of the contract.
41. Costs and outlays
41.1 The Purchaser must pay all duty on this Contract and all costs, including duty and registration fees, in relation to the preparation, stamping and registration of the Transfer Documents.
41.2 Each party will bear their own costs in relation to the preparation of this Contract.
42. No merger
42.1 Subject to the terms of any warranties in this Contract the warranties cease to apply on settlement but the other undertakings and indemnities in this Contract continue after settlement.
43. Entire understanding
43.1 This Contract:
(1) is the entire agreement and understanding between the parties on everything connected with the subject matter of this Contract; and
(2) supersedes any prior agreement or understanding on anything connected with that subject matter.
43.2 Each party has entered into this Contract without relying on any representation by the other party or any person purporting to represent that party.
44. Further assurances
44.1 If requested by the other party, at its own expense each party will do everything reasonably necessary to give effect to this Contract and the transactions contemplated by it.
45. Exercise of rights
45.1 A party may:
(1) exercise a right, power or remedy:
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(a) at its discretion; and
(b) separately or concurrently with another right, power or remedy; or
(c) exercise singly, partially or fail to exercise a right, power or remedy, without being prevented from further exercising that or any other right, power or remedy.
46. Waiver
46.1 No waiver is effective unless it is in writing signed by the party waiving the right, power or remedy.
47. Survival of indemnities
47.1 Each indemnity in this Contract is a continuing obligation separate and independent from the other obligations of the Purchaser and survives termination of this Contract.
48. Governing law
48.1 The law of Queensland governs this Contract.
48.2 The parties submit to the non-exclusive jurisdiction of the Courts of Queensland and of the Commonwealth of Australia.
49. Keys
49.1 On completion, the Vendor will deliver all Keys in the possession or control of the Vendor in accordance with any notice given in writing by the Purchaser to the Vendor. Failing the delivery of any such Notice, the Vendor will deliver the Keys:
(1) to the Purchaser, if the Purchaser is present at completion;
(2) to the Purchaser's solicitor, if the Purchaser is not present at completion;
(3) to the Agent, if neither the Purchaser nor the Purchaser's solicitor is present at completion.
49.2 For the purposes of clause 49.1, Keys mean implements or instruments necessary for the purposes of fastening or unfastening:
(1) the lock on any gate, door, grille, shutter or lift which secures any means of entrance to or exit from the Land (whether or not such gate, door, grille, shutter or lift forms part of the Property); and
(2) any other lock attached to or included in the property and includes electronic devices and written record of all codes and combinations necessary for the purposes of fastening or unfastening any lock or control of any security system on the Property.
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Schedule 1 Property included in the sale
(c) The following land:
Title reference Description Area Encumbrances/ Administrative Advices
40069228
TL 0/238103
Lot 4 on CPWN234 45,600 hectares
716206278 Land Management Agreement
710102108 Vegetation Notice
718036742 NT determination
718076139 NT Determination
(d) The following fixed improvements
(i) Shearing sheds
(ii) Steel cattle yards;
(iii) Homestead;
(iv) Cottage;
(v) Shearers quarters;
(vi) 1x solar pump
(vii) Aircraft hangar;
(e) Unless excluded below all fixed improvements, fixed items of plant and machinery, all fixed gates, grids and branding cradles, fixed radio aerials, overhead gear (if any) in shearing shed, all fixed pumps and piping, water troughs and float valves and all stoves, hot water systems, wall to wall floor coverings, drapes, tracks, blinds, light fittings, clothes lines hoist, fixed television antenna and in-ground shrubs.
(f) The right and title of the Vendor in and to the electricity and telephone service (if any) to the Land but subject to the terms and conditions on which the Vendor holds the same.
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Schedule 2 Property reserved from the sale
(a) All livestock, hides, skins, all brands and earmarks used in connection with the property.
(b) All stores, fuel, fuel tanks and other material on the Land or in the course of transit thereto and therefrom, all items of plant, furniture, motor vehicles, machinery and other chattels (other than those referred to in Schedule 1).
(c) The private and personal effects of the Vendor, its employees, and their respective families.
(d) All growing crops (including crops of grass seed) if any.
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Guarantee and indemnity
1. Consideration
The Guarantor acknowledges:
(a) incurring obligations and giving rights under this Guarantee for valuable consideration; and
(b) receiving $1 from the Vendor.
2. Guarantee
The Guarantor unconditionally and irrevocably guarantees the due and punctual performance by the Purchaser of the Purchaser's obligations under the Contract including the obligation to pay money.
3. Indemnity
As a separate undertaking the Guarantor indemnifies the Vendor against all liability or loss arising from or in connection with:
(a) a breach by the Purchaser of the Contract, including a breach of the obligations to pay money;
(b) a breach by the Purchaser of a representation or warranty by the Purchaser in the Contract, including if a representation or warranty is incorrect or misleading when made or taken to be made;
(c) a liquidator of the Purchaser disclaiming the Contract under section 568 of the Corporations Act 2001; or
(d) a Court discharging or rescinding the Contract under section 568 of the Corporations Act 2001.
4. Access to Contract
The Guarantor acknowledges having a copy of the Contract and having had full opportunity to consider its provisions and obtain independent legal advice on its effect before entering into this Guarantee.
5. Interest
The Guarantor agrees to pay interest at the Default Interest Rate on any amount payable under this Guarantee from when the amount becomes due for payment until it is paid. Accumulated interest is payable at the end of each month.
6. Continuing security
This Guarantee is a continuing security and is not discharged by any one payment. The Guarantor waives any right to require the Vendor to commence proceedings or enforce any other right against the Purchaser or any other person before claiming under this Guarantee.
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7. Guarantee not affected
(a) The Guarantor's liability as a guarantor, principal debtor or indemnifier and the Vendor's rights under this Guarantee are not affected by anything which might otherwise affect them at law or in equity including:
(a) the Vendor or another person granting time or other indulgence to, compounding with or comprising with or releasing the Purchaser or another person;
(b) acquiescence, delay, acts, omissions or mistakes by the Vendor;
(c) any variation or novation of a right of the Vendor;
(d) alteration of the Contract;
(e) settlement of the Contract; or
(f) the invalidity or unenforceability of an obligation or liability of a person other than the Guarantor.
(b) The liability of the Guarantor under this Guarantee is not affected because any other person who was intended to sign this Guarantee has not done so or has not done so effectively.
8. No set-off
Without the consent of the Vendor the Guarantor may not:
(a) raise a set-off or counterclaim available to it or the Purchaser against the Vendor in reduction of its liability under this Guarantee;
(b) claim to be entitled by way of contribution, indemnity, subrogation, marshalling or otherwise to the benefit of any security or guarantee held by the Vendor in connection with the Contract;
(c) make a claim or enforce a right against the Purchaser or its property (or any other guarantor or their property); or
(d) prove in competition with the Vendor if a liquidator, provisional liquidator, receiver, receiver and manager or trustee in bankruptcy is appointed in respect of the Purchaser or the Purchaser is otherwise unable to pay its debts when they fall due;
until the date of expiration or sooner termination of the Contract or until all money payable to the Vendor under the Contract is paid, whichever is longer.
9. Reinstatement of Guarantee
If a claim that a payment or transfer to the Vendor in connection with the Contract is void or voidable is upheld, conceded or compromised, then the Vendor is entitled immediately as against the Guarantor to the rights to which it would have been entitled under this Guarantee if the payment or transfer had not occurred.
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10. Costs
(a) The Guarantor agrees to pay or reimburse the Vendor on demand for:
(i) the Vendor's costs, charges and expenses in making, enforcing and doing anything in connection with this Guarantee including, but not limited to, legal costs and expenses on a full indemnity basis; and
(ii) all stamp duty and other charges payable in connection with this Guarantee.
(b) Money paid to the Vendor by the Guarantor must be applied first against payment of costs, charges and expenses under this clause 10 then against other obligations under the Guarantee.
Dated day of , 2020.
Signed by )
____________________________________ ) ......................................................
as Guarantor in the presence of: )
........................................................................ Witness Signed by )
____________________________________ ) ......................................................
as Guarantor in the presence of: )
........................................................................ Witness
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Memorandum of sale and purchase Nutrien Harcourts – GDL agents for the Vendor, have today sold the Property described in
the Contract to ...........................................................................................................................
………………………………………………………………………………………... (Purchaser)
for the sum of $............................ ………………………. (Purchase Price) and on behalf of
the Vendor agrees that the Vendor will comply with the provisions of the Contract.
............................................. ............................................. Witness Per: Vendor's Agents
I/We, the Purchaser, have this day purchased from the Vendor the Property for the Purchase
Price subject to the Contract and have paid to Nutrien Harcourts – GDL the sum of
$......................................................... (Deposit) by way of deposit and I/we agree to pay the
Balance Purchase Price and other monies in the manner and at the time set out in the
Contract and agree to comply with the other provisions of the Contract.
Dated this day of , 2020. ............................................. ............................................. Purchaser Purchaser ............................................. ............................................. Purchaser Purchaser Witness: ........................................... Acknowledgement of receipt of the Deposit ................................................... Deposit Holder: Nutrien Harcourts – GDL Confirmed: ..................................................... Endorsed on behalf of the Vendor
End of document
