Stephen Pallavicini, Senior Legal Counsel and Marie Boustani, Legal Counsel, Stockland
Originally authored by Natalie Ng, Executive Lawyer, Bartier Perry (NSW)
Chris Camillin, Solicitor, Camillins Solicitors (Vic)
Currently updated by Roger Wade, Director, WadeLegal (Qld)
Originally authored by Warren Wackerling, Senior Associate, Holman Webb (Qld)
Currently updated by Eric Ross-Adjie, Principal and Andrea Keri, Principal, Warren Syminton Ralph (WA)
Originally authored by Eric Ross-Adjie, Partner and Christopher Hall, Solicitor, Karp Steedman Ross-Adjie, Lawyers (WA)
Philip Page, Partner, Mellor Olsson Lawyers (SA)
Tim Tierney, Principal, Tierney Law (Tas)
Currently authored by Lyn Bennett, Consultant, Minter Ellison (NT)
Originally authored by Leon Loganathan, Managing Partner and Emma Farnell, Lawyer, Ward Keller Lawyers (NT)
Christine Murray, Partner, Meyer Vandenberg Lawyers (ACT)
Remedies and disputes considers some of the issues arising out of transactions involving the transfer of commercial property and the remedies available to purchasers and vendors. Issues and remedies arising from leasing transactions are dealt with under the guidance note Termination of leases under the Leasing property sub-topic.
Main principles are covered so as to provide practitioners with sufficient guidance regarding the range, prerequisites, advantages and disadvantages of particular remedies, and the process of seeking the client's instructions and choosing the most appropriate and effective remedies in the particular circumstances. It is also necessary to consider the possibility of reaching a compromise by negotiation.
While commercial property transactions are different from typical contracts (for example there is a standard form of contract and statutory disclosures and warranties) it is important for practitioners to remember that commercial property transactions are a species of contract. For this reason, some general principles have been set out in the first guidance note. See General principles.
The remedies discussed in this sub-topic include:
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claims for compensation and other claims under the contract for sale of land;
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termination (with a separate guidance note on Notices, which have the effect of making time under a contract essential, thereby entitling the innocent party to terminate for breach);
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rescission;
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damages;
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orders for repayment of the deposit;
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equitable remedies (with a separate guidance note on Specific performance, which is an equitable remedy); and
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statutory remedies.
Below is a very broad and general summary of the types of breaches for which the above remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.
New South Wales
Claim for compensation under cl 7 of the 2005 edition of the Contract for Sale of Land
Victoria
The table below provides a very broad and general summary of the types of breaches for which the above remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.
Queensland
The table below provides a very broad and general summary of the types of breaches for which the above remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.
Western Australia
The table below provides a very broad and general summary of the types of breaches for which the remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties' position.
South Australia
The table below provides a very broad and general summary of the types of breaches for which the remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.
Tasmania
The table below provides a very broad and general summary of the types of breaches for which the remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.
Northern Territory
The table below provides a very broad and general summary of the types of breaches for which the remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.
Australian Capital Territory
The table below provides a very broad and general summary of the types of breaches for which the remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.