The recent Supreme Court of Victoria decision of Clifford v
Solid Investments Australia Pty Ltd  VSC 223 (Cliffords
Case) confirms that special conditions in "off the plan"
contracts of sale need to be carefully reviewed to ensure
compliance with the Sale of Land Act 1962 (Vic) (Act).
A sunset date condition is one which stipulates the date by
which the registration of the plan of subdivision must occur as a
trigger to calling for settlement. Failure to register by that date
confers on a purchaser a right to rescind the contract. It is not
unusual for a contract to provide for the vendor to extend the
sunset date if registration of the plan is, or is likely to be,
delayed as a result of certain events occurring, usually delay
Cliffords Case held that clauses which provide for indefinite
extensions of sunset dates are unenforceable and will give a
purchaser a right to rescind the contract if the plan of
subdivision has not been registered by the registration date
specified in the contract. Such clauses go against the intention of
the Act which is to give purchasers certainty about the date upon
which they are entitled to exercise a right to rescind if the plan
of subdivision had not been registered.
Both lenders and developers should ensure presales contracts do
not provide for indefinite extensions to sunset dates to ensure
their contracts do not breach the principles of Cliffords case and
therefore may become voidable. Existing contracts should not be
relied upon as allowing an extension of the registration date and
ideally should be amended. That will require the purchaser's
consent. New contracts should have a sufficiently long enough
period to register the plan so the parties need not rely on
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