As a result of both the unfair contract terms law aspects of the new Australian Consumer Law, and the decision in Riggall v Thompson [2010] QCA 144, the REIQ Residential Land and Building Contract has been amended from 1 July 2010.
Previously, a buyer only had a right to return of its deposit if the seller defaulted under the contract, although it had some rights under common law. Under the new version seven of the contract, both parties have rights to terminate for the breach of an essential term of the contract.
If either a buyer or a seller breaches an essential term, the other party may affrm the contract and may sue the defaulting party for damages, specifc performance or damages and specifc performance, including costs on an indemnity basis.
If a buyer terminates a contract due to a breach by the seller, the buyer may recover the deposit and sue the seller for damages.
After terminating a contract for the buyer's default, the seller resold a property within two years. Previously if a seller resold a property after terminating a contract for the buyer's default, the seller could also claim the expenses incurred under the original contract, however the Queensland Supreme Court of Appeal found in Riggall v. Thompson that this was a penalty and was not a genuine cost caused by the default. The ability to claim those expenses has been removed from the new version 7 of the contract. This decision may have implications for contracts in use in other states and territories. Contact your local Hunt & Hunt offce.
Trade Practices Amendment (Australian Consumer Law) Act(No. 1) 2010
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