Class Notes (808,146)
Australia (1,838)
Law (441)
JSB171 (400)
All (349)

5 Relief Against Forfeiture

5 Pages
Unlock Document

Queensland University of Technology

V Relief against Forfeiture Outline for Instalment Contract Questions • Relief o Statutory Relief: PLA ss 72 & 75 (deposit < 10%) o Equitable relief  Mortgage analogy  Traditional heads  Contributed to breach? (Legione)  Specific Performance • Damages inadequate • Discretionary factors o Hardship o Mutuality, etc • Depends on existence of binding contract: s 59 PLA • Part Performance • Specific Performance or Damages in lieu (Lord Cairns’ Act) • Estoppel Equitable jurisdiction o Generally equity does not interfere with contractual obligations o BUT it will not allow a person to enforce their strict legal rights, where to do so would be unconscionable: Legione v Hately FORFEITURE OF INTEREST IN LAND Forfeiture = loss of estate in property Remedy = specific performance Penalty Legione v Hately: = punishment for non-observance of contract. (usually money) o If Agreed damages clause → acceptable o If amount owed is not proportionate to the loss suffered → penalty (unconscionable): Dunlop Pneumatic o Remedy = no obligation to pay/return of money Breach of non-essential term o Prima facie penalty → equity will relieve. o Whether it is an essential term or not depends on whether the parties would have entered into the contract in its absence: Associated Tramways Breach of essential term  A Statutory Relief = Payment of final purchase price over instalments. Andrew Trotter LWB240 Principles of Equity (1) Application • Does not bind the Crown: s71A(1) • Cannot be excluded by the contract: s71A(3)(b) (2) Definitions: s71 PLA • Deposit means a sum: (a) not exceeding 10%; and (b) paid or payable in 1 or more amounts; and (c) liable to be forfeited and retained by the vendor in the event of a breach of contract by the purchaser • instalment contract means: - executory contract for the sale of land - payment(s) (other than deposit) to be made without conveyance o Contracts which the purchaser may perform as an instalment contract are instalment contracts unless the purchaser elects otherwise: s71A(2) • mortgage includes any encumbrance or charge other than a charge attaching by the operation of any statutory enactment. • purchaser person with interest under an instalment contract • sale includes an agreement for sale and an enforceable option for sale. • Deposit > 10% → payment made without conveyance → instalment contract (3) Restriction on vendor’s right to rescind: s72 • Seller must serve notice on defaulting purchaser and cannot rescind until 30 days after notice: s72(1) o Notice must notify of purchaser’s default and effect of failure to remedy: s72(4) • If purchaser pays the money owing, the vendor loses the right to rescind: s72(3) (4) Restriction on vendor’s right to mortgage: s73 • Vendor cannot mortgage (or sell) without consent of purchaser: s73(1) • If mortgaged— o Instalment contract voidable by purchaser at any time before completion of contract: s73(2)(a) o Offence—9 penalty units: s73(2)(b) • Section does not affect the right of bona fide third parties: s71(3)(a) (5) Right of purchaser to lodge caveat: s74 • Purchaser under instalment contract has an interest allowing them to lodge a caveat to protect their interest against other instruments to be lodged: s71(1) (6) Right to require conveyance: s75 • Conditions o After 1/3 of purchase price paid o Purchaser not in default • → Purchaser may serve notice in writing requiring the vendor to convey the land: s75(1) Andrew Trotter LWB240 Principles of Equity o purchaser at the same time mortgages land in favour of the vendor or 3 party ← to secure payment of all money payable • Same may be required by a vendor: s75(2) • Legal costs: o Where vendor serves notice—vendor must advance the following amounts to the purchaser, but then add them to the mortgage so the purchaser pays them in the end— - Transfer duties under Duties Act 2001: s75(3)(a) - Legal costs of preparing & executing documents: s75(3)(b) o Mortgage preparation funded by the party requesting it: s75(4)(b) • Mortgage must accord with all obligations of the purchaser under the purchase contract: s75(4)(a) • Failure to comply— o Deemed to be in breach of contract—normal remedies apply o Offence—9 penalty units (7) Deposit of title deed and conveyance: s76 • Purchaser not in default • under an instalment contract • may direct the vendor to deposit with a prescribed authority— (s76(1)) o the title deed or deeds relating to the land the subject of the contract; and o a duly executed conveyance or instrument of transfer of
More Less

Related notes for JSB171

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.