DIPLOMA IN LAW

LEGAL PROFESSION

ADMISSION BOARD LAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

14 CONVEYANCING SUMMER SESSION 2017-18

This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.

Course Description and Objectives 1 Lecturers 1 Assessment 1-2 March 2018 Examination 2 Lecture Program Prescribed Topics and Course Outline (Course Outline cont. on page 9)

3-6

Weekend Schools 1 and 2 6 Texts and Materials 7 Compulsory Assignment 8 Assignment Question 8 Sample Examination Question 8 Prescribed Topics and Course Outline (Cont. from page 3) 9-17

1

LAW EXTENSION COMMITTEE SUMMER 2017-18

14 CONVEYANCING

COURSE DESCRIPTION AND OBJECTIVES The objective of the Conveyancing course is to familiarise students with the concept of conveyancing. Emphasis is placed on the structure of the Standard Form Contract for Sale of Land 2017. Whilst the course is to some degree involved with practical issues of conveyancing, a good deal of relevant case law is discussed in order that students will be able to recognise problem areas in practice. The course also provides for a consideration of various issues of contract law, equity and planning law.

LECTURERS Mr W A Henningham, PSM, LLB (Syd)

Mr Bill Henningham, who teaches the evening lecture students, is a solicitor and mediator in private practice who has long specialised in conveyancing. He also specialises in local government and environmental planning law which has important implications for conveyancing. Mr Henningham has written and addressed conferences and seminars on topics covered in the course. He is the author of chapters on Local Government Law and Practice in Lexis-Nexis Local Government and Planning Service (NSW) Vol C and is the teacher of the subject Local Government and Planning in the Diploma in Law course.

If you wish to discuss any aspect of the subject matter of the Conveyancing course, you may consult Mr Henningham, whose telephone number is (02) 9427 0519. Mr D H W Ross, LLB (Syd) Mr David Ross, who teaches the external (Weekend) students, has been a solicitor in private practice for over 50 years and has also long specialised in conveyancing practice. In 1996 he taught Property Law and Commercial Law at Seaforth TAFE and has been the weekend lecturer and examiner in Conveyancing since Winter Semester 2010. His experience in also practising in Business and Commercial Law and in related litigation gives him a very relevant understanding of the pitfalls which can arise in conveyancing practice. Mr Ross’s three years of legal practice in Byron Bay gave him a valuable insight into legal issues faced by rural conveyancing practitioners. He can be contacted by leaving a message with 61416262376.

ASSESSMENT To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC. To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.

2

Eligibility to Sit for Examinations In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility. Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination. Assignments as part of the Board’s Examinations Assignment results contribute 20% to the final mark in each subject. The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments. Submission Assignments must be submitted by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day. Assessment Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination. Review Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.

MARCH 2018 EXAMINATION Candidates will be expected to have a detailed knowledge of the prescribed topics set out and referred to on pages 3–6 and 9–17 in this Subject Guide. Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed cases contained in the Law Extension Committee's course outline. Please contact the Legal Profession Admission Board for any enquiries in relation to examinations.

3

LECTURE PROGRAM Lectures in Conveyancing will be held on Mondays, commencing 6 November 2017, from 6.00pm until 9.00pm. A map of the University of Sydney’s main campus is included at the back of the Course Information Handbook.

PRESCRIBED TOPICS AND COURSE OUTLINE (COURSE OUTLINE CONT. ON PAGE 9) WEEK TOPICS KEY READING VENUE

1 6 Nov Lecture 1

Introduction to conveyancing – what transactions are involved Residential Conveyancing Protocol entered into by the Law Society of NSW and the Real Estate Institute on behalf of their members: see www.lawsociety.com.au Formation of an enforceable contract - what is required? exchange of contracts; what is involved in a typical conveyancing matter

Skapinker, (5th ed 2010) Ch 1 Rossiter, Ch 1

New LS LT 024

2 13 Nov Lecture 2

The Standard Form of Contract for Sale of Land, 2017 ed., (CSL) formerly 2005, 2014, & 2016-17 editions. The Law Society of NSW and the Real Estate Institute of NSW have issued the new Contract for Sale and Purchase of Land 2017 edition in electronic format only. Previous editions of the Contract for Sale of Land are no longer available for purchase. A Summary of the Main Changes in the 2017 Edition prepared by the Law Society appears on the LEC Webcampus. A summary of the main changes in the 2014 ed & 2016-17 ed (now incorporated into the 2017 ed) also appears on the LEC Webcampus. Vendor required “Special” Conditions of Contract. Negotiating changes. Delay interest Subject matter of the sale Caveat emptor and the vendor’s general law duty of disclosure Vendor’s statutory duties of disclosure Consequences of active concealment of defects What is a “proposal” in the context of adverse affectations? “Prescribed documents” under S 52A of Conveyancing Act 1919 and Conveyancing (Sale of Land) Regulation 2017 (CSoL). Prudent pre-contract inquiries and actions by a purchaser and a purchaser’s solicitor; Unfulfilled conditions of consent; Whether to choose E-Conveyancing; see Cl 30 CSL Requirements under the Home Building Act 1989 (as amended 2014) and Swimming Pool Act 1992-2012 and Swimming Pool Regulation 2008-2016-2016ools Regulati008

Skapinker, Ch 3 Note that the 2010 ed of Skapinker cannot canvas the 2014 contract amendments. CSL 2017 ed. changes include cll 1, 7.2.5, 7.2.6, 13, 14.4, 16.7, 20.11, 23, 31.1, 31.2.1 & 31.5 District Court (Civil) Practice Note No. 15; Pre-judgment interest rates Skapinker, Ch 3 Rossiter, Ch 5 Skapinker, Ch 4 Note: 2010 ed of Skapinker (5th edition) quotes superseded editions of the Conveyancing (Sale of Land) Regulation (CsoL) and the CSL. Henningham, Planning Law implications for conveyancing – negotiating the planning control minefield (LEC Website)

New LS LT 024

4

3 20 Nov Lecture 3

Deposit and deposit-bond alternatives to a cash deposit; cll 2 & 3 CSL Deposit and penalty; status of vendor’s agent holding the deposit as “stakeholder”; forfeiture of deposit; issues related to part-paid deposits; “cooling off” provisions; vendor’s duty of care pending completion Status of vendor between exchange and completion – trustee? Passing of risk and protecting purchaser’s beneficial interest prior to completion Need for vendor to maintain comprehensive insurance until after completion and desirability of purchaser obtaining comprehensive “replacement” cover after exchange of contracts Caveats by purchasers and their relevance. In what circumstances should they be lodged including compensation from caveator who lodges a caveat without reasonable cause. Do caveats have any limitations? Priority Notices under latest legislation – when should they be used. See adjoining column

Skapinker, Ch 7 Rossiter, Ch 4 Skapinker, Ch 8 Skapinker, Ch 8 Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website) Skapinker, Ch 8 Conveyancing Act Ss. 66S – 66X (cooling-off); 66J – 66O (passing of risk; rights if property damaged pre-completion. Butt 12.980 to 12.1150 Real Property Act Ss. 74F et seq; (Caveats); Ss. 74S - 74Z (Priority Notices)

New LS LT 024

4 27 Nov Lecture 4

Requisitions and objections – cl 5 CSL Purchaser’s right to make requisitions;Vendor’s responses to requisitions et al. Vendor’s entitlement to rescind (cl 8.1). Misrepresentation at general law; Misleading and deceptive conduct in conveyancing transactions - Australian Consumer Law (ACL). What third parties could have actionable liability arising from misleading or deceptive conduct? Unfair Contract Terms under Consumer Contracts and Small Business Contracts where ‘standard form contract’ is used.

Skapinker, Ch 10; Rossiter, Ch 6 Henningham, More Pitfalls for the Unwary Conveyancing Practitioner Izaz Khan, Barr, Misrepresentations in Land Transactions” (LEC Website) Stephen Climpson, The Impact of Misleading and Deceptive Conduct on Contracts for the Sale of Land Competition & Consumer Act 2010 (replacing Trade Practices Act 1974) establishes ACL in Schedule 2 ACL as amended by Treasury Legislation Amendment (Small Business & Unfair Contract terms) Act 2015

New LS LT 024

5 4 Dec Lecture 5

Title defects and their effect upon a vendor’s title Rule in Flight v Booth; purchaser’s remedies for undisclosed defects; Undisclosed stormwater mains What is a material or substantial defect? Prescribed term (CSoL Reg Sch 2) in contract re encroachments Prescribed warranties in contracts (CSoL Reg Sch 3) Errors and misdescriptions (cl 6 of CSL) Claims under cl 7 of CSL Consequence of changes in planning controls after issue of s 149(2) cert. attached to

Skapinker, Ch 5; Rossiter, Ch 5 Skapinker, Ch 6 Skapinker, Ch 11 Rossiter, Ch 8 Note: 2010 ed of Skapinker quotes earlier editions of the CSoL Reg

New LS LT 024

5

contract Clause 8.2 of CSL now provides Purchasers with expressed rights of termination for essential breach.

6 11 Dec Lecture 6

Survey certificates and their importance Building certificates – relevance to prescribed warranty in the context of unlawful building work; relevance to regularisation of breaches of Planning Law. Section 52A of the Conveyancing Act cannot be excluded Inquiries and adverse affectations Sch 3 CSoL Reg Purchaser’s right to rescind and limitations on rights Doctrine of election to affirm contract. What constitutes an affirmation? Does the purchaser’s solicitor have any responsibility to enquire in relation to surrounding properties? How should a solicitor for a purchaser deal with a request that such enquiries be made?

Skapinker, Ch 5 Skapinker, Ch 4 Skapinker, Ch 12 Skapinker, Ch 6.40 et seq Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website)

New LS LT 024

Study Break: Saturday 16 December 2017 – Sunday 7 January 2018

7 8 Jan

No Lecture

8 15 Jan Lecture 7

Preparing for completion Rates and adjustments; what constitutes vacant possession Existing uses; what are the duties of a solicitor acting for a purchaser if it is asserted that there is an existing use? E P & A Act 1979 Ss. 106 – 109B Heritage and conservation issues; Issues relating to s 149(2) & (5) EP&A Act certificates; Should a Vendor attach a S.149(2) & (5) certificate to the contract. Should information under s149(5) be obtained by purchaser if not provided by the vendor? Occupation certificates, what is their importance? EP & A Act 1979 S 109M Status under Planning Law of restrictive covenants and easements. Can their operation be suspended? Suggested special conditions. What special conditions should be rejected by a solicitor for the purchaser? Is interest required to be paid on the balance of purchase price after the completion date a penalty? Note interest rate guideline in cl 18.5.2 CSL.

Skapinker, Ch 14; Butt, [ 6.390], [ 12.940] Rossiter, Ch 8; Skapinker, Ch 13 Henningham, Exemptions from Rating and other Rating Issues (LEC Website) Henningham, Planning Law implications for conveyancing – negotiating the planning control minefield (LEC Website) Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website) Butt, 9.850, 10.980, 15.150

New LS LT 020

6

9 22 Jan Lecture 8

Time for Completion of Contract Difference between common law & equity Making time of the essence to complete. Precautions on behalf of purchaser prior to completion Requirements for valid notice to complete; Notices to perform; options for party if the other fails to complete - termination; damages; specific performance;

Skapinker, Ch 15; Rossiter, Chs 4, 6, 7 Skapinker, [8.35]; Rossiter, Ch 7 Butt, [ 12.980 to 12.1150 Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website)

New LS LT 020

10 29 Jan Lecture 9

Remedies including rescission and termination, & specific performance. In what circumstances can repudiation of a contract be inferred? Alternative dispute resolution The options for consensual resolution of conveyancing disputes

Skapinker, Chs 16, 17, 18; Rossiter, Chs 1, 2, 8 CSL cll 7, 8.1, 8.2, 9, 17.3, 19,

23.9, 27.4-27.6, 28.3, 29.5-29.8.

New LS LT 020

11 5 Feb Lecture 10

The elements of Torrens Title Strata Title and Community Title “See legislation referred to on page 7 under relevant legislation” Mortgages, leases, easements and other interests What is e-Conveyancing and how will it provide an electronic environment for participating practitioners to conduct the financial settlement of conveyancing transactions. (Cl 30 CSL).

Butt, Ch 12 Butt, Ch 13 For Registrar General’s FAQs on e-conveyancing visit: http://rgdirections.lpi.nsw.gov.au/e-dealings/faqs

Butt, Ch 11, 7-8 & -9 For relevant and recent comment on Electronic Conveyancing by Gabrielle Lea, a Sydney Solicitor employed by the Law Society of NSW, visit: https://www.lawsociety.com.au/resources/areasoflaw/ElectronicConveyancing/index.htm

New LS LT 020

12 12 Feb Lecture 11

Revision which will take the form of a review and discussion of the whole subject.

New LS LT 020

WEEKEND SCHOOLS 1 AND 2 There are two weekend schools principally for external students. Lecture students may attend on the understanding that weekend school classes aim to cover the same material as provided in weekly lectures and are primarily for the assistance of external students. External students should refer to the detailed material in the Prescribed Topics and Course Outline. It may not be possible to cover the entire course at the weekend schools.

Weekend School 1 Prescribed topics covered in Lectures 1 – 5.

Friday 24 November 2017 5.00pm – 9.00pm in Abercrombie Case Study Lecture Theatre 2090

Saturday 25 November 2017 Noon – 4-00pm in Abercrombie Case Study Lecture Theatre 2090

New Law School Lecture Theatre 106

(New LSLT 106)

Weekend School 2 Prescribed topics covered in Lectures 6 – 10 and revision, being a review and

discussion of the whole subject of Conveyancing.

Friday 2 February 2018 5.00pm – 9.00pm in New Law School Lecture Theatre 022

Saturday 3 February 2018 Noon – 4.00pm in New Law School Lecture Theatre 022

7

TEXTS AND MATERIALS Course Materials

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus). Prescribed Materials

Skapinker and Lane, Sale of Land: Commentary and Materials, 5th ed. Thomson Reuters, 2010.

Butt, Land Law, 7th ed. Thomson Reuters, 2017.

Rossiter, Principles of Land Contracts and Options in Australia, LexisNexis, 2003.

Standard Form of Contract for Sale of Land, 2017 ed. approved by the Law Society of New South Wales and the Real Estate Institute of New South Wales.

Relevant Legislation

Internet access to the relevant legislation can be readily obtained through:

http://www.austlii.edu.au for section by section references and for unbroken presentation (more convenient for printing), www.legislation.nsw.gov.au and www.commlaw.gov.au. There is also a useful site associated with the NSW Bar at http://www.barnet.com.au/Jade.

Conveyancing Act 1919 and Conveyancing (General) Regulation 2013.

Real Property Act 1900 and Regulations NSW.

Conveyancing (Sale of Land) Regulation 2017 NSW (CSoL Reg 2017) with amendments up to 1 July 2017.

Environmental Planning and Assessment Act 1979 NSW.

Environmental Planning and Assessment Regulation 2000 NSW.

Strata Schemes Management Act 2015. Assented to 5.11.2015. Commencement 30.11.2016, (Part 11, cl 15 of Sch 1 and cl 16 of Sch 3 excepted). Commencement 1.7.2017 for Part 11, cl 15 of Sch 1 and cl 16 of Sch 3.

Strata Schemes Management Regulation 2016 commenced on 30.11.2016.

Competition and Consumer Act 2010 (Cwlth) – Australian Consumer Law (ACL) as amended is set out in Schedule 2 of the Act.

Community Land Management Act 1989 NSW.

Electronic Conveyancing (Adoption of National Law) Act 2012 NSW.

Home Building Act 1989 (as amended 2014).

Encroachment of Buildings Act 1922.

Swimming Pools Act 1992-2012 and Swimming Pools Regulation 2008-2016. LEC Webcampus Once you have registered online with the LEC, you will have full access to the facilities on the LEC Webcampus including the Course Materials section containing links to cases and legislation as well as three papers by Bill Henningham:

Planning Law Implications for Conveyancing – Negotiating the planning control minefield.

More Pitfalls for the Unwary Conveyancing Practitioner.

Exemptions from Rating and other Rating Issues.

a paper by Stephen Climpson, Barrister, entitled “The Impact of Misleading and Deceptive Conduct on Contracts for the Sale of Land”, 2014.

Articles. “Another Edition of the Contract for Sale….?”; P Rosier & G. Lea LSJ Sept 2017 82;

"Relationship between restrictive covenants on land and planning laws" (2013) and "Existing Use rights and NSW planning law" both by Michael Mantei of Planning Law Solutions

Practice Note District Court (Civil) No. 15 (obtainable from

http://www.districtcourt.justice.nsw.gov.au/Pages/practice_procedure/practice_notes.aspx)

8

COMPULSORY ASSIGNMENT In Conveyancing, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. Students must submit the assignment by the due date. A pass mark is 50%. Refer to the Guide to the Presentation and Submission of Assignments for the assignment grading and assessment criteria. Students who fail to satisfy the compulsory requirements will be notified through the Results screen on the Webcampus before the examination period of their ineligibility to sit the examination in this subject. The maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography). The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment. The completed assignment should be lodged through the LEC Webcampus by 11:59pm on the following date:

Compulsory Assignment Tuesday 12 December 2017 Week 6

ASSIGNMENT QUESTION To obtain the Conveyancing assignment question for the Summer Session 2017-18, please follow the instructions below:

1. Register online with the LEC (see page 24 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the

assignment question for this subject.

SAMPLE EXAMINATION QUESTION Attempt BOTH parts of this question. (i) You act for the Vendor in a Contract for Sale of a property (2017 ed.) which specifies a Completion

Date of 5 February 2018. A special condition provides “If completion does not take place on the Completion Date, either party may serve on the other a notice to complete stipulating a date for completion 14 days following the date of service of the notice making time for completion of the essence. The parties agree that such time is reasonable and sufficient notice.” The Purchaser has failed to complete on the Completion Date. The Vendor requires you to enforce completion. What are the prerequisites to doing so? Refer to relevant legislation and decided cases. (10 marks)

(ii) Does the solicitor acting for a purchaser have any responsibility to conduct searches and enquiries

before exchange of contracts in relation to adjoining properties or the surrounding area? Refer to relevant principles and decided cases. (10 marks)

9

PRESCRIBED TOPICS AND COURSE OUTLINE (CONT. FROM PAGE 3) INCLUDING RELEVANT CASES

1. INTRODUCTION LECTURE 1

(1) Sale and purchase of land (2) Mortgages (3) Leases (4) Other interests and dealing 2. FORMATION OF AN ENFORCEABLE CONTRACT FOR THE SALE OF LAND LECTURE 1

(1) Certainty of agreement

Air Great Lakes P/L v KS Easter (Holdings) P/L (1985) 2 NSWLR 209 Hall v Busst (1960) 104 CLR 206 Bushwall Properties v Vortex Properties [1976] 1 WLR 591 Sudbrook Trading Estate v Eggleton [1982] 3 WLR 315 Booker Industries v Wilson Parking (Queensland) (1982) 149 CLR 600 Meehan v Jones (1982) 149 CLR 571 Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd (2006) ANZ ConvR 143 (2) Intention to be immediately bound Masters v Cameron (1954) 91 CLR 353 Feldman v GNM Australia Ltd [2017] NSWCA 107 Guilfoyle Developments P/L v Frumar [2012] NSWSC 859 Allen v Carbone (1975) 49 ALJR 161 G R Securities v Baulkham Hills Private Hospital (1986) 40 NSWLR 631 Waltons Stores (Interstate) v Maher (1988) 164 CLR 87 Arfaris v Vosnakis [2016] NSWCA 65 Welch v Welch [2012] NSWSC 1128 Teviot Downs Estate Pty Ltd v MTAA Superannuation Fund (Flagstone Creek and Spring Mountain Park) Property Pty Ltd (2004) ANZ ConvR 152 Peter Warren (Properties) Pty Ltd v Jalvoran Pty Ltd (2005) ANZ ConvR 52 Article : “Is there a Binding Contract?” : Peter Butt (2005) 79 ALJ 205 Grave v Blazevic Holdings P/L [2012] NSWCA 329 (3) Conveyancing Act, s 54A – contracts for sale must be in writing (4) Conveyancing Act, s 66S – 66Y – cooling off provisions (5) Methods of exchange of contracts Eccles v Bryant [1948] 1 Ch 93 Domb v Isoz [1980] 1 All ER 942 Sindel v Georgiou (1984) 154 CLR 661 Longpocket Investments v Hoadley (1985) NSW Conv R 55-24

10

3. SUBJECT MATTER OF SALE LECTURE 2 (1) Standard contract Changes made by CSoL Reg 2017 including the warning required in relation to a landowner’s obligations under the Swimming Pools Act 1992 requiring either a Certificate of Compliance, a Certificate of Non-Compliance or evidence of registration of the pool and an Occupation Certificate after completion of the pool) for properties sold with a pool after 29 April 2016; requiring to serve on purchaser a Land Tax certificate and for off-the-plan strata units and land-and-house packages, an occupation certificate, at least 14 days before completion.

The Law Society of NSW and the Real Estate Institute of NSW have issued the new Contract for Sale and Purchase of Land 2017 Edition (CSL 2017 ed.) in electronic format only. The 2005, 2014 and 2016-17 Editions of the Contract for Sale of Land will be no longer be available. Tables prepared by the Law Society containing a summary of the main changes in the CSL 2017 ed from 2016-17 ed. appear on the LEC Webcampus. See Article Rosier & Lea LSJ Sept 2017 82 “Another Edition….?”

(2) Description of the subject of the sale Travinto Nominees P/L v Vlattas (1973) 129 C1 LR (also lecture 5) Palumberi v Palumberi (1986) NSW ConvR 55-287 Abraham v Mallon (1975) 1 BPR 9157 Nicita v Maloney (1971) 1 BPR 9105 Avim v Guilianotti [1989] NSW Conv R 55-479 Harris v Harris [2008] NSWSC 545 4. CAVEAT EMPTOR AND PRE-CONTRACT ENQUIRIES LECTURE 2 (1) Vendor's general law duty of disclosure Best v Glenville [1960] 3 All ER 478 Dormer v Solo Investments (1974) 1 NSWLR 428 Anderson v Daniels (1983) NSW Conv R 55-144 Tsekos v Finance Corporation of Australia (1982) 2 NSWLR 347 (2) Vendor's statutory duty of disclosure Conveyancing Act, s 52A(2)(a) Lismore CC v Stewart (1989) 68 LGRA 445 Verman v McLaughlin (1990) NSW Conv 55-521 (also lecture 5.9(5) Port Stephens SC v Booth (2006) 148 LGERA 351 Mid Density Developments v Rockdale MC (1993) 81 LGERA 104 Conveyancing (Sale of land) Regulation 2010 Standard Form Contract for Sale of Land Gibson v Francis (1989) NSW Conv R 55-458 Argy v Blunts and Lane Cove Real Estate (1990) 94 ALR 719 Pisano v Dandris [2014] NSWSC 1070 Williams v Pisano [2015] NSWCA 177 (The High Court refused leave to appeal) See also Anderson v Daniels (1) above) (3) Prudent Pre-Contract Enquiries Hillpalm Pty Limited v Heaven’s Door Pty Limited [2004] HCA 59 Article: “Indefeasibility Overriden – Significantly”: Peter Butt and Scott Freidman (2003) 77 ALJ 88 Adderton v Festa Holdings Pty Limited & Ors [2003] NSWSC 1065 Luxford v Sidhu [2007] NSWSC 1356 Article: ”The importance in Evidence of Usual Practice” Tony Cavanagh (2009) July LSJ 48

11

(4) Vendor's contractual duty of disclosure CSL 2016, case law, legislation and the CSoL Reg. (5) Requirements under the Home Building Act 1989 as amended 2014 5. DEPOSIT LECTURE 3 (1) Functions of a deposit Brien v Dwyer (1978) 141 CLR 378 (HCA) (2) Status of agent in relation to the deposit (3) Holding and contractual deposits Sorrell v Finch [1976] 2 WLR 833 (4) Split Payment of Deposits– steps to take if the deposit is only part paid on exchange CSL cl 2 2016 ed. Luong Dinh Luu v Sovereign Developments Pty Ltd and 2 Ors (2006) NSWCA 40 Ianello v Sharpe [2007] NSWCA 61 Ashdown v Kirk [1999] 2 Qd 1 Boyarsky v Taylor [2008] NSWSC 1415; (22-12-2008); [2009] NSWSC 468; (1-5-2009); Cloud Top PL v Toma Services PL [2008] NSWSC 568 Rana v Dalla Costa [2014] NSWSC 1113; @para 35-72 Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28

(5) Forfeiture of deposit {see also Remedies Lecture 9 Chap 21(3) (d)} CSL: cl 9 2016 ed. Conveyancing Act, s 55(2A) Lucas and Tait (Investments) v Victoria Securities (1973) 2 NSWLR 268 Romanos v Pentagold (2003) ANZ Conv R 601 Tsekos v Finance Corporation of Aust Ltd (1982) 2 NSWLR 347 Timanu PL v Clurstock PL (1988) 15 NSWLR 338 McQueen v Leduva Pty Limited [2008] NSWSC 284 (6) Deposit-Bond CSL 2016 ed. Cl 3 – an alternate to paying a deposit by cheque. (7) Cooling-Off Provisions Conveyancing Act ss 66 S-X (8) GST on Deposits Commissioner of Taxation v Reliance Carpet Co P/L (2008) 236 CLR 342 ATO Decision Impact Statement 4/6/08 (Skapinker 7.230) 6. RISK AND DUTY OF CARE PENDING COMPLETION LECTURE 3 (1) Vendor's duty of care Bunny Industries v F S W Enterprises [1982] ANZ Conv R 627 Phillips v Lamdin [1949] 2 KB 33 Trust Company of Australia Ltd v Commissioner of State Revenue [2007] VSC 451 (2) Status of vendor between exchange and completion – trustee? Bunny Industries LTD v FSW Enterprises Pty Ltd (1982) ANZ ConvR 627

12

Kern Corporation v Walter Reid Trading Pty Ltd (1987) 163 CLR 164, particularly note the dissenting judgment by Deane J Chang v Registrar of Titles (1976) 137 CLR 177 (3) Protection of purchaser's equitable interest – Insurance & Passing of Risk

(a) Caveats and Priority Notices

Black v Garnock [2007] HCA 31 Credit Finance Australia Ltd (in liq) v Panella [2011] NSWSC 311 Beca Developments v Idameneo (No. 92) Pty Ltd (1990) 21 NSW LR 459 Source and Resources Pty Ltd v Porada [2007] NSWSC 883 Hillpalm Pty Ltd v Wilson [2009] NSWSC 362 Real Property Act 1900 Part 7B (Priority notices); Ss74S to 74Z amended by Real Property Act (Electronic Conveyancing) Act 2015 comm 1 October 2016

(b) Insurance and passing of risk Insurance Contracts Act 1984, s 50 – limited usefulness in NSW residential transactions Conveyancing Act, ss 66J-0 (comm 1.5.1986) Stephenson v State Bank of NSW (1996) 39 NSWLR 101 Shadlow v Skiadopolous (1988) NSW Conv R 55-383 Robert Pryke Investments v Blazai [2000] NSWCA 222 (18 August 2000) Nevitoro Investments v Turner [2004] NSWSC 1315 Ziel Nominees v V A C C Insurance Co (1978) 50 ALJR 106 (pre 1984) Kern Corporation Ltd v Walter Reid Trading PL (supra) Qld law (dissenting Deane J) 7. REQUISITIONS AND OBJECTIONS LECTURE 4 (1) Types of requisitions and objections Godfrey Constructions v Kanangra Park (1972) 128 CLR 529 Gardiner v Orchard (1910) 10 CLR 722 Sullivan & Ors v Dan & Ors (1999) ANZ ConvR 32 Crowe v Rindock [2005] NSWSC 375 Avim v Guilianotti (supra lecture 2) (2) Time for making requisitions and objections CSL 2016 cl 5 (3) Vendor's entitlement to rescind CSL 2016 cl 8 Duddell v Simpson [1866] LR 2 Ch App 102 Pierce Bell Sales v Frazer (1973) 130 CLR 575 Noske v McGinnes (1932) 47 CLR 563 Crowe v Rindock (supra) 8A MISREPRESENTATION UNDER THE GENERAL LAW LECTURE 4 (2 types: negligent and fraudulent) Anderson v Daniels (1983) NSW Conv R 55-144 (fraudulent misrepresentation) Salmond on Torts 17th ed at p 38 referred to in Anderson v Daniels by Samuels JA Wood v Balfour 2011 NSWCA 382 Kyriacou v Kogarah MC (1995) 88 LGERA 110 8B BREACHES OF THE AUSTRALIAN CONSUMER LAW Statewide Developments P/L v Higgins [2011] NSWCA 35 Ackers v Austcorp International Ltd [2009] FCA 432

13

Havyn PL v Webster 2005 NSWCA 182 Yorke v. Lucas (1985) 158 CLR 661 Butcher v Lachlan Elders Realty PL (2004) 218 CLR 592 Boyana PL v Jainran [2010] NSWCA37 Williams v Pisano [2015] NSWCA 177 Vitek v Estate Homes Pty Ltd [2010] NSWSC 237 Noor Al Houda Islamic College Pty Limited v Bankstown Airport Limited (2005) 215 ALR 625 Article www.austlii.edu.au/au/journals/NatEnvLawRw/2010/34.pdf re Vitek & Noor al Houda 8C UNFAIR CONTRACT TERMS under amendments to ACL comm 12.11.2016 Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 9. TITLE DEFECTS LECTURE 5 (1) General law position Flight v Booth (1834) 131 ER 1160 Lee v Rayson [1917] 1 Ch 613 Fuller’s Theatre Ltd v Musgrove (1923) 31CLR524 @538 Hamilton v Munro (1951 SR (NSW) 250 @253-4 Carpenter v McGrath (1996) 40 NSWLR 39 Sullivan & Ors v Dan & Ors (1999) ANZ ConvR 32 Festa Holdings Pty Ltd v Adderton & Ors (2004) ANZ Conv R 341 (2) Contract CSL Cl 6 2016 (errors and misdescriptions) Travinto Nominees PL v Vlattas (1973) 129 CLR 1 @14 (3) Statutory position CSoL Reg 2010 Sched 2 (cll1-5) (prescribed terms); Sched 3 Parts 1 & 3 (prescribed warranties). (4) Undisclosed stormwater mains and other underground pipes of service authorities Micos v Diamond (1970) 92 WN (NSW) 513 Drummoyne MC v Beard (1970) 1 NSWLR 432 (5) Changes in planning controls after the date of the s 149 certificate attached to the contract or controls

omitted from that certificate. Verman v McLaughlin (1990) 70 LGRA 19 10. ERRORS AND MISDESCRIPTIONS LECTURE 5

(1) General law position

(2) Contract

(3) CSL cl 6 2016 ed.

Flight v Booth (supra) Travinto Nominees v Vlattas (1973) 129 CLR 1 Drummoyne MC v Beard (1970) 1 NSWLR 432 Owmist v Twynam Pastoral (1984) NSW Conv R 55-165 11. LEGALITY OF STRUCTURES AND USER LECTURE 6 (1) Survey certificates CSL cl 10.1.1 2016 ed. Svanasio v McNamara (1956) 96 CLR 186

14

(2) Illegal and non-complying buildings Environmental Planning and Assessment Act 1979 CSoL Reg 2010– Sched 3 Part 1 Carpenter v McGrath (1996) 40 NSWLR 39 (but see now CSoL Reg 2010 Sched 3 Part 1(d)) Tambel v Field (1982) NSW Conv R 55-077 (3) Building certificates Cramer v Leichhardt MC (1992) 130 LGERA 182 Ireland v Cessnock CC (1999) 110 LGERA 311 Mineral Wealth v Gosford CC (2003) 127 LGERA 74 Marinkovic v Pat McGrath Engineering [2004] NSWSC 57112.

12. INQUIRIES AND AFFECTATIONS LECTURE 6

(1) Statutory duty of disclosure & Purchaser’s right to rescind Conveyancing Act, s 52A(2)(b) CSoL Reg 2010 Cll 16-18 CSL cll 19, 23.9, 29.5, & 29.8; 2016 ed. (2) Limitations on purchaser's right to rescind Arias v Brigden [1986] NSW Conv R 55-278 Korbol Holdings v Johnson [1987] NSW Conv R 55-337 Chantaloup v Thomas (1975) 2 NSWLR 38 Little v Piccin [1983] NSW Conv R 55-152 Jones v Assef (1976) 1 NSWLR 467 Marinkovic v Pat McGrath Engineering [2004] NSWSC 571 Timanu v Clurstock (1988) 15 NSWLR 338 @ 339 (3) Doctrine of Election Sargent v A S L Developments (1974) 131 CLR 634 Turner v Labafox International (1974) 131 CLR 660 Zucker v Straightlace (1987) 11 NSWLR 87 Molotu v Solar Power [1989] NSW Conv R 55-490 Uremovic v P E I [1986] NSW Conv R 55-311 Copmar Holdings v The Commonwealth [1988] NSW Conv R 55-404; [1989] NSW Conv R 55-451 (4) Is there any obligation on a purchaser’s solicitor to make enquiries about surrounding properties? Luxford & Anor v Sidhu & Ors [2007] NSWSC 1356 (See Lecture 4 (3) supra.) 13. RATES AND NOTICES LECTURE 7 (1) Council and water rates (2) Land tax McNally v Waitzer {1981] 1NSWLR 294 Lynch v Olympic Bowling Centres (1969) 90 WN (pt 1) (NSW) 44 D and B Eastern Units v C A G A [1981] NSW Conv R 55-034 Dainford v Yulora [1984] NSW Conv R 55-184; [1984] NSW Conv R 55-185 14. VACANT POSSESSION LECTURE 7 Cumberland Consolidated Holdings v Ireland [1946] 1 KB 264 Point Glebe v Lidofind [1988] NSW Conv R 55-412

15

Austral Standard Cables v Walker Nominees (1992) NSW Conv R 55-630 Smilie v Bruce (1999) NSW Conv R 55-886 15. EXISTING USES, OTHER LAWFUL USES AND EXISTING CONSENTS LECTURE 7 Environmental Planning and Assessment Act 1979, ss106, 107 and 109 Shire of Perth v O’Keefe (1964) 110 CLR 529 Lane Cove MC v Lujeta (1986) 58 LGERA 157 Kyriacou v Kogarah MC (1995) 88 LGERA 110 Caltex Australia Petroleum v Manly Council (2007) 155 LGERA 255 Grace & Anor v Thomas Street Café & Ors (2007) 159 LGRA 57 Grace & Anor v Thomas Street Café & Ors (No 2) [2008] NSWCA 72 North Sydney MC v Boyts Radio & Electrical (1989) 67 LGRA 344

Article Michael Mantei “Existing Use Rights and NSW Planning Law LSJ Oct 2017 86

16. ISSUES RELATING TO s 149 (5) CERTIFICATES LECTURE 7

Mid Density Developments v Rockdale MC (1993) 81 LGERA 104 Pyrenees Shire Council v Day [1998] HCA 3 17. OCCUPATION CERTIFICATES LECTURE 7 Environmental Planning and Assessment Act 1979 ss 109C – 109I and ss 109M and 109 N 18. STATUS OF RESTRICTIVE COVENANTS AND EASEMENTS LECTURE 7

Environmental Planning and Assessment Act 1979 s 28

Lennard v Jessica Estates [2008] NSWCA 121 (30 May 2008) Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2010] NSWCA 214 (2 September 2010) Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27 (3 August 2011) Challister Ltd v Blacktown CC (1992) 76 LGRA 10 Ludwig v Coshott (1994) 83 LGERA 22 Cracknell v Lonergon v Sydney CC (2007) NSWLEC 392; 155 LGERA 29 Harrington v Greenwood Grove Estate Pty Ltd [2011] NSWSC 833 Horizons Corporations Law PL v Rizons PL & ors [1999] NSWSC 691 (no implied repeal) Article Michael Mantei “Restrictive Covenants ..and Planning Laws” http://www.sydneycitylawyers.com.au/event-2312965 19. TIME FOR COMPLETION LECTURE 8 (1) Historical background Conveyancing Act, s 13 (2) Time clauses in contracts Raineri v Miles [1980] 2 WLR 847 Neeta (Epping) v Phillips (1974) 131 CLR 286 Louinder v Leis (1982) 149 CLR 509 Sindel v Georgiou (1984) 154 CLR 661 Pastizzi Café Pty Ltd v Hossain (No. 4) (2011) NSWSC 808 Ebadeh-Ahvazi v Namrood [2017] NSWSC 399 5 Ridge PL v Tryname PL [2017} NSWSC 371 (3) Time and requirements for notices to complete Michael Realty v Carr (1977) 1 NSWLR 553 Ng v Chong [2005] NSWSC 270 (31.3.05) Castle Hill Tyres PL v Luxspice PL (1996) 7 BPR 14,959 @14,964 McNally v Waitzer (1981) 1 NSWLR 294

16

Balog v Crestani (1975) 132 CLR 289 Laurinda v Capalaba Park Shopping Centre (1989) 166 CLR 623 Sindel v Georgiou (1984) 154 CLR 661 Wood v Lyons (2009) NSWSC 419 Galifassi v Kelly [2014] NSWCA 190 20. RESCISSION and TERMINATION for REPUDIATION LECTURE 9 Shimden Pty Ltd v Rona [2006] NSWCA 256 Foran v Wight [1989] 168 CLR 385 Laurinda v Capalaba Park Shopping Centre (1989) 166 CLR 623 McQueen v Leduva Pty Ltd [2008] NSWSC 284 Sunbird Plaza Pty Ltd v Maloney [1988] 166 CLR 245 Galifassi v Kelly [2014] NSWCA 190 Article P Butt & D Warren: “Sunset Clause Rescissions” - S. 66ZL of CA 1919 21. REMEDIES LECTURE 9

Ogle v Comboyuro Investments [1976] HCA 21; (1976) 136 CLR 444 DTR Nominees Pty Ltd v Mona Homes [1978] NCA 12; (1978) 138 CLR 423 (1) Rescission (2) Termination for breach (Repudiation) CSL 2016 cll 8.2 & 9 Ebadeh-Ahvazi v Namrood [2017} NSWSC 399 (3) Equitable remedies

(a) Specific performance

PNC Lifestyle Investments PL V REWo8 Projects PL [2017] NSWSC 27 (b) Injunction

(c) Rectification SAMM Property Holdings PL v Shaye Properties PL [2016] NSWSC 362

(d) Relief against forfeiture of interest in land Tanwar Enterprises Pty Limited v Cauchi (2003) 77 ALJR 1853 Romanos v Pentagold Investments Pty Limited (2003) 77 ALJR 1882 Fairmede Pty Ltd v Von Pein [2004] QSC 220

(4) Statutory remedies Relief against forfeiture of deposit Conveyancing Act, ss 55, 55(2A) Tsekos v Finance Corporation Aust Ltd [1982] 2 NSWLR 347 Lucas and Tait (Investments) v Victoria Securities (1973) 2 NSWLR 268 Shimden Pty Ltd v Rona (2007) ANZ Conv R 15 Chambers v Borness [2014] NSWSC 890 Donald on Danks PL v Alio PL [2014] NSWSC 753 5 Ridge PL v Tryname PL [2017] NSWSC 371 Ebadeh-Ahvazi v Namrood [2017} NSWSC 399 (5) Alternative dispute resolution Options for consensual resolution of conveyancing disputes

22. ELEMENTS OF TORRENS TITLE LECTURE 10

17

23. STRATA TITLE AND COMMUNITY TITLE LECTURE 10 Strata Schemes Management Act 2015 (Part 11, cl 15 of Sch 1 and cl 16 of Sch 3 will commence on 1 July 2017) Community Land Management Act 1989 Strata Schemes Management Regulation 2016 Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 52-54 Lin v Owners – Strata Plan 50276 (2004) BPR 21,463 at [27], [30] and [34] 24. MORTGAGES, LEASES AND OTHER INTERESTS LECTURE 10 Breskvar v Wall (1971) 126 CLR 376 Epic Feast v Mawson KLM Holdings (1998) 71 SASR 161 Farrow Mortgage Services v Victor Tunevitsch (1998) 8 Tas R 65 Darling Point Securities v Industrial Equity (1991) NSW Conv R 55-589 City of Rockingham v PMR Quarries (2001) 118 LGERA 93 Abbeyfield (Harpenden) Society v Woods [1968] 1 WLR 374 Fush v McKendrick (2004) V Conv R 54-686 195 Crown Street v Hoare [1969] 1 NSWR 193 Castle Constructions P/L v Sahab Holdings P/L [2013] HCA 11 (10 April 2013) McGrath v Mestousis [2017] NSWSC 995 (Easement of Necessity S88K C.A.) REVISION LECTURE 11 At the conclusion there will be Revision which will take the form of a review and discussion of the whole subject.