Ref: RG/DE MIRV11193-9070262 9503423/2
© Corrs Chambers Westgarth
Contract of Sale [5 September 2013 revision]
Stage 8 (land only), Harcrest, 525 Stud Road,
Wantirna South
Lot No.: on proposed Plan of Subdivision No. PS705529Y
Important notices to Purchasers of ‘Off the Plan’ Properties
• The Purchaser may negotiate with the Vendor about the amount of the deposit moneys payable under the contract, up to 10 per cent of the purchase price.
• A substantial period of time may elapse between the day on which the Purchaser signs the contract of sale and the day on which the Purchaser becomes the registered proprietor of the lot.
• The value of the lot may change between the day on which the Purchaser signs the contract for the sale of that lot and the day on which the Purchaser becomes the registered proprietor.
9503423/2 page i
Form 2
Estate Agents Act 1980
CONTRACT OF SALE OF REAL ESTATE
IMPORTANT NOTICE TO PURCHASER
Cooling-off period Section 31 Sale of Land Act 1962
If none of the exceptions listed below applies to you, you may end this contract within 3 clear business
days of the day that you sign the contract.
To end this contract within this time, you must either give the vendor or the vendor’s agent written notice
that you are ending the contract or leave the notice at the address of the vendor or the vendor’s agent.
If you end the contract in this way, you are entitled to a refund of all of the money you paid EXCEPT for
$100 or 0.2% of the purchase price (whichever is more).
EXCEPTIONS - The 3 day cooling-off period does not apply if-
• You bought the property at or within 3 clear business days before or after a publicly advertised auction
• You received independent advice from a solicitor before signing the contract
• The property is used mainly for industrial or commercial purposes
• The property is more than 20 hectares in size and is used mainly for farming
• You previously signed a similar contract for the same property
• You are an estate agent or a corporate body
The conditions of this contract are contained in the attached-
Particulars of Sale, and
Schedule, and
General Conditions, and
Special Conditions (if any).
The vendor sells and the purchaser buys both the property and the chattels for the price and upon the
conditions set out in this contract.
The Vendor’s Statement required by section 32(1) of the Sale of Land Act 1962 is attached to, and
included in, this contract.
Where the signature of any party to this contract is secured by an agent, the parties acknowledge being
given a copy of this contract by the agent at the time of signing.
DO NOT SIGN HERE - SEE THE EXECUTION PAGE LATER IN THIS CONTRACT
Vendor
DO NOT SIGN HERE - SEE THE EXECUTION PAGE LATER IN THIS CONTRACT
Purchaser
9503423/2 page ii
GENERAL CONDITIONS (GC)
Encumbrances
1.1 The purchaser buys the property and the chattels subject to the encumbrances shown in Item 1 of the Schedule.
1.2 If the purchaser is taking over an existing mortgage-
(a) the purchaser assumes liability for the mortgage
(b) the price is satisfied to the extent of any mortgage money owing at the settlement date, and
(c) the vendor must treat any payment made by the purchaser under the mortgage as a payment made to the vendor under this contract.
Loss or Damage Before Settlement
2.1 The vendor carries the risk of loss or damage to the property and the chattels until settlement.
2.2 The vendor must deliver the property and the chattels to the purchaser at settlement date in their present condition (fair wear and tear excepted).
2.3 If any chattel is not in its present condition (fair wear and tear excepted) at settlement, the purchaser is only entitled to compensation from the vendor.
Finance
3 This contract is subject to the lender approving the loan on the security of the property by the approval date or any later approval date allowed by the vendor. The purchaser may end the contract if the loan is not approved by the approval date only if the purchaser-
(a) has made immediate application for the loan
(b) has done everything reasonably required to obtain approval of the loan
(c) serves written notice ending the contract on the vendor on or before 2 business days after the approval date, and
(d) is not in default under any other condition of this contract when the notice is given.
All money must be immediately refunded to the purchaser if the contract is ended.
Terms Contracts
4 If this is a “terms contract” as defined in section 2(1) of the Sale of Land Act 1962, then-
(a) the vendor must arrange the discharge of any mortgage affecting the land by the settlement date
(b) all money payable under the contract must be paid to a duly qualified legal practitioner or a licensed estate agent to be applied towards discharging the mortgage
(c) the purchaser must pay interest to the vendor from the settlement date upon the balance outstanding at the rate, on the days, and with the adjustments set out in Item 2 of the Schedule
(d) the vendor must apply instalments under this contract first to pay interest and then to reduce the balance owing.
Nominee
5 If the contract says that the property is sold to a named purchaser “and/or nominee” (or similar words), the named purchaser may, at least 14 days before settlement date, nominate a substitute or additional purchaser, but the named purchaser remains personally liable for the due performance of all the purchaser’s obligations under this contract.
Payment
6.1 The purchaser must pay all money (except the deposit) to the vendor, the vendor’s solicitor or at the direction of the vendor.
6.2 The purchaser must pay the deposit-
9503423/2 page iii
(a) to the vendor’s estate agent or, if there is no estate agent, to the vendor’s solicitor, or
(b) if the vendor directs, into a special purpose banking account specified by the vendor in the joint names of the purchaser and the vendor.
6.3 If the land sold is a lot on an unregistered plan of subdivision then the deposit-
(a) must not exceed 10% of the price, and
(b) must be paid-
(i) to the vendor’s solicitor or estate agent to be held by the solicitor or estate agent on trust for the purchaser, or
(ii) if the vendor directs, into a special purpose banking account in Victoria specified by the vendor in the joint names of the purchaser and the vendor-
until the registration of the plan.
Breach
7 A party who breaches this contract must pay to the other party on demand-
(a) compensation for any reasonably foreseeable loss to the other party resulting from the breach, and
(b) any interest due under this contract as a result of the breach.
Time
8 If the time for performing any action expires on a Saturday, Sunday or bank holiday, then time is extended until the next business day.
General Conditions in Legislation
9.1 The general conditions in Table A of the Seventh Schedule of the Transfer of Land Act 1958 apply if the land is under the operation of that Act.
9.2 The general conditions in the Third Schedule of the Property Law Act 1958 apply if the land is not under the operation of the Transfer of Land Act 1958.
9.3 General Condition 9 in Table A or in the Third Schedule applies as if its second last sentence ended with the additional words, “as a resident Australia beneficial owner of the land”.
Conflict Between Conditions
10 In case of a conflict between the conditions the order of priority is-
(a) any special conditions in this contract
(b) general conditions in this contract
(c) general conditions in legislation.
Conditions
11 These conditions prevail over the conditions in any earlier contract and any requisitions and answers properly made and given under that contract are deemed to be requisitions and answers properly made and given under this contract.
Service
12 Any document served by post is deemed to be served on the next business day after posting unless proved otherwise.
Transfer and Settlement
13.1 The purchaser must provide the instrument of transfer required by General Condition 12 of Table A, or the assurance required by the Third Schedule (as the case may be), to the vendor or the vendor’s solicitor at least 10 days prior to the settlement date.
13.2 The vendor must pay the bank fees on all bank cheques exceeding 3 that are required by the vendor for settlement
9503423/2 page iv
Particulars of sale
Vendor’s
Estate Agent
Mirvac Real Estate Pty Ltd
of Level 5, Q3, 6 Riverside Quay, Southbank, Victoria 3006
ACN 003 342 452
E-mail: Phone: Fax:
Ref:
Vendor’s
Solicitor
Corrs Chambers Westgarth
of Bourke Place, 600 Bourke Street, Melbourne, Victoria 3000
ABN 89 690 832 091
E-mail:
Phone:
9672 3348
Fax: 9672 3010
Ref: RG/KH 9070262
Purchaser’s
Solicitor
of
ABN
E-mail: Phone: Fax:
Ref:
Vendor The Trust Company Limited as custodian and agent for the
Mirvac Wholesale Residential Development Partnership Trust
of Level 26, 60 Margaret Street, Sydney, New South Wales 2000
ACN 004 027 749
Purchaser
of
ABN
E-mail:
Phone:
Mobile:
Ref: Fax:
Purchaser’s
FIRB
Declaration
Foreign Acquisition and Takeovers Act 1975 (Cth) applied
Yes No
9503423/2 page v
Land Lot _________ on proposed plan of subdivision no. PS705529Y being part of the land in
certificate of title volume 11406 folio 807
Property
Address the Land together with any Improvements known as
Lot _________, Stage 8, Harcrest, 525 Stud Road, Wantirna South, Victoria 3152
Chattels Nil
Price $ including GST
Deposit
(10% of Price)
$
The Purchaser will pay:
□ *the whole of the Deposit on the Day of Sale
□ *$ on the Day of Sale and the balance within 5 Business Days
*strike out whichever is inapplicable
Balance $ including GST
Payment of
Balance
10 Business Days after the date on which the Vendor’s Solicitor serves notice on the
Purchaser or the Purchaser’s Solicitor that the Plan of Subdivision has been registered by
the Registrar of Titles.
Bank
Guarantee
The Purchaser will pay the Deposit by:
□ *paying the whole of the Deposit by cash or cheque
□ *securing the whole Deposit by Bank Guarantee or Deposit Bond
□ *paying part of the Deposit by cash or cheque, and securing the remainder of the
Deposit by Bank Guarantee or Deposit Bond
*strike out whichever is inapplicable
Settlement
Date
is the date upon which vacant possession of the Property must be provided, namely, upon
acceptance of title and payment of the consideration then due to the Vendor under this
Contract.
Day of Sale is the date of this contract namely
Builder
9503423/2 page vi
Schedule
ITEM 1 (GC1) Encumbrances
(1) any easements, covenants or other like restrictions disclosed in the
Vendor's Statement (including the Restriction), but excluding any
mortgage;
(2) the reservations, exceptions and conditions contained in the relevant
Crown Grant.
(3) any easements, covenants or other like restrictions created after the
Day of Sale or created or reserved in the instrument of transfer, or
otherwise as contemplated by special condition 3.1;
(4) the access rights referred to in special condition 16;
(5) any encumbrance created by section 98 of the Transfer of Land Act
1958 (Vic) or section 24 of the Subdivision Act 1988 (Vic);
(6) the Section 173 Agreements; and
(7) any other encumbrances or restrictions created after the Day of Sale
as contemplated in the special conditions.
ITEM 2 (GC 4) Not applicable.
SPECIAL CONDITIONS ATTACHED
9503423/2 page vii
Signing page
Signed by the Vendor
Signed sealed and delivered on
behalf of The Trust Company
Limited by its attorneys
and
under a Power of Attorney dated 5
July 2012 who declares that they
have not received any notice of the
revocation of that Power of Attorney in
the presence of
←
←
Signature of Witness
Signature of Attorney
Name of Witness (print) Name of Attorney (print)
←
←
Signature of Attorney
Name of Attorney (print)
Execution by Purchaser – if an individual(s)
Executed by )
)
))
)
in the presence of:
�
�
...........................................................
Witness
...........................................................
Signature of Purchaser
...........................................................
Name of Witness (print)
9503423/2 page viii
Executed by )
)
)
)
in the presence of:
�
�
...........................................................
Witness
...........................................................
Signature of Purchaser
...........................................................
Name of Witness (print)
Execution by Purchaser – if a company with more than one director
Executed by )
)
)
)
)
in accordance with section 127(1) of the
Corporations Act 2001 (Cth)
�
�
...........................................................
Company Secretary/Director
...........................................................
Director
...........................................................
Name of Company Secretary/Director
(print)
...........................................................
Name of Director (print)
Execution by Purchaser – if a company with a sole director and sole company secretary
Executed by )
)
)
)
in accordance with section 127(1) of the
Corporations Act 2001 (Cth)
�
...........................................................
Sole Director and Sole Company
Secretary
...........................................................
Name of Sole Director and Sole
Company Secretary (print)
9503423/2 page ix
Execution by Purchaser – pursuant to an unregistered power of attorney
Signed by ) ) ) ) ) ) ) ) ) ) )
by the party’s attorney pursuant to a power of attorney dated
who states that he or she has received no notice of the revocation of the power of attorney in the presence of:
� �
........................................................... Witness
........................................................... Signature of Attorney
........................................................... Name of Witness (print)
........................................................... Name of Attorney (print)
9503423/2 page 1
Agreed terms
1 Condition to settlement 1.1 Settlement of this Contract is subject to the condition subsequent that the Plan of
Subdivision is registered by the Registrar of Titles before the end of the Registration
Period.
1.2 If the Plan of Subdivision is not registered before the end of the Registration Period,
either the Vendor or the Purchaser may, at any time after the end of the Registration
Period but only before the Plan of Subdivision is registered, terminate this Contract by
written notice served on the other.
1.3 If this Contract is terminated under special conditions 1.2:
(a) any money paid by the Purchaser on account of the Price will be refunded to the
Purchaser (less all proper bank and government charges, fees and taxes); or
(b) any Bank Guarantee or Deposit Bond accepted by the Vendor under special
condition 12 will be returned to the Purchaser or the Bank Guarantor or Deposit
Bond Issuer for cancellation,
and the Purchaser will not be entitled to any compensation from the Vendor in respect
of any losses, costs, fees or other expenses paid or incurred by the Purchaser in
relation to this Contract.
1.4 Subject to the Purchaser's rights under the Sale of Land Act 1962 (Vic) and under
special conditions 1.2, the Purchaser agrees not to make any objection, requisition or
claim because of anything connected with registration of or failure to obtain registration
of the Plan of Subdivision.
2 Matters to which Land is subject 2.1 The Purchaser buys the Land subject to:
(a) the encumbrances described in Item 1 of the Schedule, including those that may
be created or come into existence after the Day of Sale as contemplated by any
paragraph of Item 1 of the Schedule;
(b) the provisions of the Subdivision Act 1988 (Vic), including any easements
(whether express or implied) affecting the Land by virtue of that Act or registration
of the Plan of Subdivision;
(c) any restrictions imposed on the Land by:
(i) any Act, order, regulation, by-law or Planning Scheme affecting the Land;
or
(ii) any governmental, semi-governmental or judicial entity; and
(d) any easement or other right held or claimed by any statutory authority or supply
authority or company.
9503423/2 page 2
3 Vendor's rights to create further encumbrances and restrictions
3.1 The Purchaser acknowledges and agrees:
(a) that the Vendor may be required to:
(i) enter into leases with statutory authorities, supply authorities or companies
or other entities; and
(ii) create easements, enter licences, enter covenants and grant or create
other like rights or restrictions (including, without limitation, positive
covenants under agreements pursuant to section 173 of the Planning and
Environment Act 1987 (Vic) or pursuant to section 148 of the Water Act
1958 (Vic)),
to ensure the provision of services to the Property or other lots on the Plan of
Subdivision, or to enable certification or registration of the Plan of Subdivision, or
otherwise in connection with the Vendor’s development of the Site;
(b) that the Vendor may require the Purchaser to create in the instrument of transfer
of the Land, easements or covenants which burden the Land, which the Vendor
(acting reasonably) considers necessary for the development and proper
functioning of the Site; and
(c) if, for any reason, the Restrictions cannot be registered, the Purchaser must
create a restrictive covenant in the instrument of transfer of the Land on the same
terms as the Restrictions.
3.2 Subject to the Purchaser's rights under the Sale of Land Act 1962 (Vic), the Purchaser
must not make any objection, requisition or claim, nor rescind, terminate or delay
Settlement because of anything contemplated by special condition 3.1.
4 Plan of Subdivision and identity of Land 4.1 The Vendor may make any amendments and alterations to the Plan of Subdivision
which are necessary to obtain the certification or registration of the Plan of Subdivision
or which the Vendor considers reasonably necessary.
4.2 The Vendor shall notify the Purchaser of any amendment or alteration to the Plan of
Subdivision in accordance with the requirements of the Sale of Land Act 1962 (Vic).
4.3 Subject to the Purchaser's rights under of the Sale of Land Act 1962 (Vic), the
Purchaser must not make any objection, requisition or claim, nor rescind, terminate or
delay completion of this Contract because of:
(a) any amendment or alteration to the Plan of Subdivision which does not materially
and detrimentally affect the Purchaser;
(b) any alleged misdescription of the Land or deficiency in its area or measurements;
(c) any re-numbering of lots on the Plan of Subdivision;
(d) any consolidation of lots on the Plan of Subdivision; or
(e) any matter or thing or intention of the Vendor disclosed or referred to in this
Contract,
nor shall the Purchaser call upon the Vendor to amend title or pay all or any part of the
9503423/2 page 3
cost of doing so and condition 3 of Table A does not apply to this Contract.
5 Location of easements and natural surface levels 5.1 The Purchaser agrees that section 10(1) of the Sale of Land Act 1962 (Vic) will not
apply in respect of the final location of any easements shown on the Plan of
Subdivision.
5.2 For the purposes of section 9AB of the Sale of Land Act 1962 (Vic), the Purchaser
acknowledges and agrees that:
(a) the Vendor or Builder may carry out works that will affect the natural surface level
of the land in the Plan of Subdivision including:
(i) excavation works relating to the foundations of the dwellings and laying of
concrete slabs;
(ii) roadworks and drainage works;
(iii) landfill works; and
(iv) construction of retaining walls,
as set out in the engineering plans included in the Vendor’s Statement as
amended from time to time;
(b) the Vendor may, or may be directed by the municipal authority or a public
authority to, carry out works which will affect the natural surface levels of the Land
or the balance of the land in the Plan of Subdivision after the Day of Sale and,
subject to the Purchaser’s rights under the Sale of Land Act 1962 (Vic), the
Purchaser must not make any objection, requisition or claim nor delay completion
of this Contract because any such works are carried out; and
(c) in subdividing and constructing dwellings on the balance of the Site, the Vendor
or a Builder may carry out works which will affect the natural surface level of that
land.
5.3 The Purchaser must not make any objection, requisition or claim, nor rescind, terminate
or delay Settlement because of anything contemplated by special condition 5.2.
6 Title to issue 6.1 If, on the Settlement Date, the certificate of title for the Land:
(a) has not issued; or
(b) is not available from the Land Registry,
the Purchaser must accept an order to register the instrument of transfer of the Land
endorsed on that instrument by the Vendor.
6.2 If, after the Settlement Date, the certificate of title for the Land is issued from the Land
Registry to the Vendor, the Vendor will arrange for the certificate of title to be delivered
to the Purchaser’s Solicitor.
9503423/2 page 4
7 Adjustments 7.1 For the purposes of condition 9 of Table A:
(a) where separate assessments have not been issued in relation to the Property,
outgoings for which there are no separate assessments will be apportioned to the
Property on the basis of the area of the Property as a proportion of the area of all
of the land the subject of the assessment; and
(b) where land tax has been assessed but:
(i) is not due at the Settlement Date, the Purchaser agrees that:
(A) the Vendor will not be obligated to pay the amount of the
assessment until it is due; and
(B) the Purchaser will proceed with Settlement notwithstanding that
the land tax assessed has not been paid by the Vendor; and
(ii) where the land tax has been assessed and is due prior to the Settlement
Date, the Purchaser must accept evidence of payment of an assessment
which includes the Property, as proof of the Vendor having discharged its
obligation to pay land tax for the Property.
7.2 Without limiting special condition 8.3, if at any time prior to the Day of Sale of the
Settlement Date the Vendor has paid, is required to pay or becomes liable for a
contribution towards the construction of a boundary fence between the Property and
any neighbouring property, an adjustment must be made at settlement in favour of the
Vendor for this amount.
8 Statutory obligations, notices and inspection of the Property
8.1 The Purchaser acknowledges that:
(a) prior to execution of this Contract and any document relating to this sale, the
Purchaser received a statement in writing under section 32 of the Sale of Land
Act 1962 (Vic) from the Vendor; and
(b) at the time of signing this Contract, the Purchaser received a copy of this
Contract.
8.2 Subject to special condition 8.3, condition 15 of Table A will not apply to this Contract
and the Purchaser will only assume liability for compliance with any notices or orders
relating to the Property which are made or issued after the Settlement Date.
8.3 Condition 15 of Table A applies with respect to any notices or orders relating to the
Property and referring to either:
(a) apportionable outgoings; or
(b) fencing of the Property or neighbouring properties.
8.4 In accordance with condition 15 of Table A, the Purchaser may inspect the condition of
the Property at any reasonable time during the period of seven (7) days preceding the
Settlement Date, but not more than once (Pre-settlement Inspection), and on the
condition that in exercising its rights under this special condition 8.4, the Purchaser:
(a) must be accompanied by a customer relations consultant of the Vendor;
9503423/2 page 5
(b) must give reasonable prior notice to the Vendor of its wish to undertake a Pre-
settlement Inspection; and
(c) acknowledges that failure to undertake a Pre-settlement Inspection must not, in
any way, delay Settlement.
8.5 The Purchaser acknowledges that it:
(a) may not be able to undertake a Pre-settlement Inspection if, in the Vendor’s
absolute discretion, works at the Site render the Pre-settlement Inspection unsafe
or undesirable;
(b) may be required to undertake a Site induction program before conducting the
Pre-settlement Inspection;
(c) must comply with all reasonable requirements of the Vendor in relation to the Pre-
settlement Inspection including, without limitation, all requirements relating to
occupational health and safety; and
(d) must not make any objection, requisition or claim, nor rescind, terminate or delay
Settlement if, as a result of special condition 8.5(a), 8.5(b) or 8.5(c), the
Purchaser is not able to undertake a Pre-settlement Inspection.
9 Purchaser not to lodge caveat 9.1 The Purchaser must not lodge (nor have lodged on its behalf) nor allow any person
claiming an interest through the Purchaser to lodge any caveat in relation to the Land,
which will delay or prevent registration of the Plan of Subdivision.
9.2 If the Purchaser lodges (or allows to be lodged on the Purchaser’s behalf), or a person
claiming through the Purchaser lodges, a caveat which delays or prevents registration
of the Plan of Subdivision or any other dealing (provided that the dealing is not in
breach of this Contract), the Purchaser must immediately on receipt of written notice
from the Vendor or the Vendor’s Solicitor:
(a) withdraw that caveat or have that caveat withdrawn; or
(b) consent to the registration of the Plan of Subdivision or other dealing at the
Purchaser’s cost.
9.3 If the Purchaser fails to comply with special condition 9.2(a) or 9.2(b) within seven (7)
days of receipt of written notice, the Purchaser irrevocably nominates and appoints the
Vendor’s Solicitor as its attorney to withdraw the caveat or consent to the registration of
the Plan of Subdivision or other dealing (as the case may be).
9.4 Subject to special condition 21, If the Purchaser enters into an agreement of the type
described in special condition 21, that agreement must contain provisions for the benefit
of the Vendor on the same terms as special conditions 9.1, 9.2 and 9.3 (with all
necessary changes).
9.5 The Purchaser agrees to indemnify the Vendor against all claims, damages, losses,
liabilities or proceedings of any nature arising from breach of this special condition 9 by
the Purchaser.
9503423/2 page 6
10 Foreign purchaser 10.1 On the Day of Sale, the Purchaser warrants to the Vendor that the Purchaser’s FIRB
Declaration in the Particulars of Sale is true and correct.
10.2 Where the provisions of the Foreign Acquisitions and Takeovers Act 1975 (Cth) apply to
the Purchaser or the purchase of the Property by the Purchaser, this Contract is
conditional on:
(a) the Treasurer of the Commonwealth of Australia approving the purchase of the
Property by the Purchaser under this Contract (such approval is to be free of any
conditions or subject only to conditions acceptable to the Purchaser acting
reasonably);
(b) the Treasurer of the Commonwealth of Australia becoming precluded from
making an order in respect of the purchase of the Property by the Purchaser
under the Foreign Acquisitions and Takeovers Act 1975 (Cth); or
(c) the Treasurer of the Commonwealth of Australia notifying the Purchaser of there
being no objection to the purchase of the Property by the Purchaser.
10.3 The Purchaser must use its best endeavours to ensure that the conditions referred to in
special condition 10.2 are satisfied as soon as practicable after the Day of Sale.
10.4 The Purchaser must give the Vendor notice in writing immediately upon:
(a) the satisfaction of any of the conditions of special condition 10.2; or
(b) the Purchaser becoming aware that any of the conditions referred to in special
condition 10.2 are incapable of being or will not be satisfied.
10.5 If within 55 days of the Day of Sale (or within such further period as the Vendor may
allow) the Purchaser receives notification from the Treasurer of the Commonwealth of
Australia notifying the Purchaser that approval has not been granted, then:
(a) all money paid by the Purchaser on account of the Price will be refunded to the
Purchaser together with any interest earned (less all proper bank and government
charges, fees and taxes); or
(b) any Bank Guarantee accepted by the Vendor under special condition 12, will be
returned to the Purchaser or the Bank Guarantor for cancellation,
and the Purchaser will not be entitled to any compensation from the Vendor in respect
of any losses, costs, fees or other expenses paid or incurred by the Purchaser in
relation to this Contract.
10.6 If none of the conditions referred to in special condition 10.2 are satisfied within 55 days
from the Day of Sale (or within such further period as the Vendor may allow), then this
Contract shall no longer be subject to the conditions in special condition 10.2 and the
Purchaser shall be bound by this Contract as if this Contract did not contain special
condition 10.
10.7 The Purchaser shall not make any objection, requisition or claim, nor rescind, terminate
or delay Settlement because of anything contemplated by special condition 10.
9503423/2 page 7
11 Deposit and Payment 11.1 The Purchaser must either:
(a) pay the Deposit (or part of it) by cheque to the Vendor’s Solicitor in accordance
with the Particulars of Sale to be held in accordance with General Condition 6.3;
or
(b) provide a Bank Guarantee or Deposit Bond in the amount equal to the Deposit or
that part of the Deposit not paid by cheque, in accordance with special
condition 12.
11.2 In compliance with General Condition 6.3, if the Deposit (or any part of it) is paid by
cheque, the Vendor and the Purchaser authorise the Vendor's Solicitor to invest the
Deposit (or that part of it) in an interest bearing trust account with the Vendor's
Solicitor’s Bank until the earliest to occur of:
(a) Settlement;
(b) release of the Deposit to the Vendor under the provisions of section 27 of the
Sale of Land Act 1962 (Vic); or
(c) termination or rescission of the Contract.
11.3 Any interest earned on the money invested under special condition 11.2 (less all proper
bank and government charges, fees and taxes) will be paid to the Vendor.
11.4 Neither party will make any claim against the Vendor's Solicitor for any taxes deducted
from the interest earned on the money invested under special condition 11.2, because
of failure by that party to give its tax file number to the Vendor's Solicitor’s Bank.
11.5 Neither the Vendor nor the Vendor’s Solicitor is liable to the Purchaser under any
circumstances if withholding tax is deducted from the interest.
12 Bank Guarantee and Deposit Bond 12.1 If the Vendor accepts a Bank Guarantee or Deposit Bond from the Purchaser in lieu of
actual payment of the Deposit or any part of the Deposit, the Purchaser acknowledges
that the delivery of the Bank Guarantee or Deposit Bond to the Vendor's Solicitor within
10 Business Days of the Day of Sale will, to the extent of the amount guaranteed or
undertaken to be paid under the Bank Guarantee or Deposit Bond, be treated as
compliance with the Purchaser’s obligation to pay the Deposit or part of the Deposit (as
the case may be) to the Vendor’s Solicitor.
12.2 Any Bank Guarantee or Deposit Bond delivered to the Vendor’s Solicitor under special
condition 12.1, must be held by the Vendor’s Solicitor on trust for the Purchaser until
registration of the Plan of Subdivision in accordance with section 9AA(1)(a)(i) of the
Sale of Land Act 1962 (Vic).
12.3 The Purchaser must pay the amount stipulated in the Bank Guarantee or Deposit Bond
to the Vendor by unendorsed bank cheque on the Settlement Date, or such other time
as the Vendor is entitled to the Deposit under section 27 of the Sale of Land Act 1962
(Vic). On payment of the amount stipulated in the Bank Guarantee or Deposit Bond,
the Vendor’s Solicitor will return the Bank Guarantee or Deposit Bond to the Purchaser
or to the Bank Guarantor for cancellation by the Bank Guarantor or to the Deposit Bond
Issuer, as the case may be.
9503423/2 page 8
12.4 If the Vendor rescinds or otherwise lawfully terminates this Contract, then to the extent
that the amount has not already been paid to the Vendor’s Solicitor by the Bank
Guarantor or the Deposit Bond Issuer, the Purchaser must immediately pay the Deposit
(or so much of the Deposit as is unpaid) to the Vendor's Solicitor.
12.5 If the Vendor, despite the other provisions of this Contract, accepts a Bank Guarantee
or Deposit Bond with an expiry date that is a date that is before the end of the
Registration Period, or if Settlement has not occurred by the end of the Registration
Period, the Purchaser agrees that on or before the date 20 Business Days prior to the
expiry day of the Bank Guarantee or Deposit Bond, the Purchaser will provide to the
Vendor’s Solicitor a replacement Bank Guarantee or Deposit Bond with an expiry date
at least 30 days after the expiry date of the Registration Period (or such other date
nominated by the Landlord, acting reasonably).
12.6 The Purchaser agrees that, without limiting the Vendor's other remedies, if the
Purchaser fails to comply with special condition 12.5 then:
(a) the Vendor’s Solicitor may call upon the Bank Guarantee or Deposit Bond; and
(b) the Vendor may terminate this Contract by written notice to the Purchaser.
12.7 If at any time the issuer of the Bank Guarantee or Deposit Bond Issuer is not of at least
the Required Rating then, at the request of the Vendor, the Purchaser must serve on
the Vendor’s Solicitor a replacement Bank Guarantee or Deposit Bond, as applicable.
The replacement Bank Guarantee or Deposit Bond must be from an issuer of at least
the Required Rating.
12.8 The obligations of the Purchaser under this special condition 12 are an essential term of
this Contract.
12.9 The Vendor is not obliged to accept a Bank Guarantee or Deposit Bond under special
condition 12.1.
12.10 Pending Settlement or termination or rescission of the Contract occurring, the
Purchaser may not and must not request that the Vendor or the Vendor’s Solicitor
return the Bank Guarantee or Deposit Bond to the Purchaser.
13 Requisitions The Purchaser waives its right to make any requisition or enquiries under this Contract.
Conditions 1 and 2 of Table A do not apply to this Contract.
14 Guarantees and joint purchasers 14.1 If the Purchaser is or includes a corporation that is not listed on the Australian Stock
Exchange:
(a) where that corporation is not a wholly owned subsidiary of a corporation that is
listed on the Australian Stock Exchange, the Purchaser must cause the
Guarantee and Indemnity to be executed by all directors of the purchaser
corporation on the Day of Sale or within such period after the Day of Sale as the
Vendor may allow; or
(b) where that corporation is a wholly owned subsidiary of a corporation listed on the
Australian Stock Exchange, the Purchaser must cause the Guarantee and
9503423/2 page 9
Indemnity to be executed by the listed corporation on the Day of Sale or within
such period after the Day of Sale as the Vendor may allow.
14.2 Despite anything else in this Contract, if there is more than one Purchaser, this Contract
will bind all of them jointly and each of them severally.
15 GST 15.1 The Price is inclusive of GST.
15.2 The parties agree that the margin scheme as referred to in Division 75 of the GST Law,
will not apply to the supply of the Property.
16 Access for post-settlement matters 16.1 The Purchaser acknowledges and agrees that:
(a) not all of the lots on the Plan of Subdivision may be sold before the Settlement
Date;
(b) the Vendor may conduct marketing activities in or about the land in the Plan of
Subdivision and the Site generally for the marketing of unsold lots on the Plan of
Subdivision and for the marketing of previous (if any) or future developments of
the Site involving, among other things, placing signs and other marketing material
on lots and or dwellings (except the Property, unless the Purchaser agrees
otherwise) and using dwellings for display purposes (Marketing Activities) after
the Settlement Date;
(c) there will be continuing surveying, engineering and construction works on the
land in the Plan of Subdivision, and the balance of the Site (Ongoing Works) and
the Vendor or Builder may need access to the Property to carry out the Ongoing
Works after Settlement Date; and
(d) the Vendor (and its contractors) and the Builder (and its contractors) may:
(i) be obliged to carry out rectification and repair works after the Settlement
Date to dwellings constructed on other lots in the Plan of Subdivision
(Repair Works); and
(ii) be undertaking construction or Repair Works on a lot adjacent to the
Property (Construction Works),
and may need access to the Property to carry out those works.
16.2 The Purchaser grants to the Vendor (and its contractors) and the Builder (and its
contractors) a right to access the Property (but only where reasonably necessary) to
carry out the Ongoing Works and the Repair Works.
16.3 The Purchaser must not make any objection or requisition, or bring any claim or action
against either the Vendor or the Builder as a consequence of anything relating to:
(a) the Ongoing Works, Repair Works or Construction Works and any access rights
exercised by the Vendor in respect of them and any inconvenience, nuisance,
noise, dust, vibration or loss of amenity that may result from the Ongoing Works,
Repair Works or Construction Works; and
(b) the Marketing Activities and any inconvenience that may result from them.
9503423/2 page 10
16.4 Subject to special condition 21, if the Purchaser enters into an agreement of the type
described in special condition 21.1, that agreement must contain provisions for the
benefit of the Vendor on the same terms as this special condition 16 (with the
necessary changes).
17 Fibre infrastructure 17.1 The Purchaser acknowledges and agrees that:
(a) it is intended that optic fibre infrastructure will be provided to the Property for the
purpose of providing internet and phone services;
(b) Mirvac intends to enter into an agreement with NBN Co Limited ABN 86 136
533 741 for the provision of the optic fibre infrastructure;
(c) the Vendor and Mirvac make no warranties or representations and provide no
guarantee in relation to the availability, specifications, provision or timing for
provision (if applicable) of optic fibre infrastructure;
(d) it has not relied on any warranty or representation made by the Vendor or
Mirvac in relation to availability, provision or timing for provision (if applicable) of
the installation of the optic fibre infrastructure, the capacity or speed of the
internet services available after installation or in relation to the availability or
number of services that the Purchaser may access once connected to the optic
fibre infrastructure and to the full extent permitted by the law, the Purchaser
waives any liability which the Vendor or Mirvac may otherwise have to the
Purchaser in relation to such matters;
(e) to the extent it is made available, optic fibre infrastructure will be provisioned in
the street and the Purchaser must extend it to the Property; and
(f) it is the Purchaser’s sole responsibility to ensure that the Property is designed,
constructed and wired so that it is compatible with the optic fibre infrastructure
and the services provided via that infrastructure.
17.2 The Purchaser acknowledges that there is no intention to:
(a) provide copper telecommunications access to any part of the land in the Plan of
Subdivision; or
(b) install copper telecommunications conduits or apparatus on or in any part of the
land in the Plan of Subdivision.
17.3 The Purchaser will not make any objection, requisition or claim, nor rescind, terminate
or delay Settlement because of anything contemplated by this special condition 17.
17.4 The Vendor will have no liability or obligation in respect of any of the matters
contemplated by this special condition 17.
18 Free to air television and pay TV 18.1 The Purchaser acknowledges and agrees that:
(a) the Purchaser may need to install a television antenna for ‘free to air’ television
or pay TV within or on top of the roof of the Property in compliance with the
Restrictions and Harcrest Design Guidelines;
9503423/2 page 11
(b) all costs associated with access and connection to pay TV are at the
Purchaser’s expense and must be in compliance with the Restrictions;
(c) the availability, provision or timing for provision (if applicable) of a pay TV
service is dependent on third party network providers and is not guaranteed by
the Vendor; and
(d) in relation to any television to be used on the Property, the Purchaser may be
required to:
(i) arrange a technician to re-tune a television;
(ii) for analogue televisions, connect a digital set top box (that suits the
television’s specifications) to each television in the Property;
(iii) purchase additional equipment and arrange a technician to fit the
equipment; or
(iv) purchase a new television,
in order to ensure that the television is compatible with the optic fibre
infrastructure.
18.2 The Purchaser acknowledges and agrees that it is the Purchaser’s sole responsibility to
ensure that the Property is designed, constructed and wired to be compatible with any
optic fibre infrastructure and any other applicable infrastructure and the services
provided by that optic fibre infrastructure, and the Vendor will have no liability or
obligation in respect of any of the matters contemplated by this special condition 18.
19 Capacity 19.1 If the Purchaser:
(a) being an individual:
(i) dies;
(ii) becomes incapable of managing the Purchaser’s affairs; or
(iii) becomes bankrupt; or
(b) being a company:
(i) resolves to go into liquidation;
(ii) has an application for its winding up presented and not withdrawn within 30
days of its presentation;
(iii) enters into any scheme of arrangement with its creditors under the relevant
provisions of the Corporations Act 2001 (Cth) or any similar legislation; or
(iv) has a liquidator, provisional liquidator, receiver, receiver and manager or
administrator appointed,
the Purchaser will be taken to have repudiated its obligations under this Contract and
the Vendor may, without limiting in any way the Vendor's other rights or remedies,
accept such repudiation and rescind this Contract at any time before Settlement in
which case the provisions of conditions 6(3)(b) and 7 of Table A will apply.
9503423/2 page 12
20 Representations, warranties and acknowledgements 20.1 This Contract contains the entire agreement between the parties as at the Day of Sale,
notwithstanding any negotiations or discussions held or documents signed or brochures
produced prior to the Day of Sale.
20.2 The Purchaser acknowledges and agrees that:
(a) in entering into this Contract, the Purchaser has not relied on any warranty or
representation made by or any other conduct of the Vendor, or any person on
behalf of the Vendor, except as expressly set out in this Contract or in legislation;
(b) any plans and specifications, including (without limitation) a master plan of the
Site and multimedia, provided by or discussed with the Vendor prior to entering
into this Contract were indicative only, may not be relied upon by the Purchaser
and are subject to change (in the Vendor’s absolute discretion) without prior
notice to the Purchaser;
(c) the Purchaser has had sufficient opportunity to carry out appropriate due
diligence and otherwise satisfy itself in all respects in relation to the Property;
(d) notwithstanding that the Purchaser has not inspected the Land or the Site prior to
the Day of Sale, it is relying entirely upon its own enquiries with respect to:
(i) the fitness or suitability for any particular purpose of the Property;
(ii) the Purchaser’s obligations and rights under this Contract;
(iii) the value and any financial return the Purchaser may make from the
Property;
(iv) all other matters which relate to or are incidental to the Purchase of the
Property,
and the Purchaser has fully satisfied itself in respect of all such matters prior to
the Day of Sale.
(e) The Purchaser waives its rights and releases the Vendor to the full extent
permitted by law from all actions, claims and liabilities that it may have against the
Vendor in relation to the matters set out in this special condition 20.
(f) The Purchaser must not make any objection, requisition or claim, nor rescind,
terminate or delay Settlement because of anything contemplated by this special
condition 20.
21 Restriction on Further Sale 21.1 Subject to special condition 21.3, unless the Purchaser has obtained the prior written
approval of the Vendor (which approval may be given or withheld in the Vendor’s
absolute discretion), the Purchaser must not Sell or otherwise dispose of the Property:
(a) before Settlement; or
(b) before issue of a Certificate of Occupancy for the dwelling on the Property and
satisfaction of all requirements of special condition 27.1,
and in the case that the Vendor’s prior approval has been obtained, the Purchaser must
only permit a Sale in circumstances where the requirements of special condition 21.2
are satisfied.
9503423/2 page 13
21.2 The Purchaser must procure the new purchaser to prepare and deliver to the Vendor a
deed under which the new purchaser:
(a) agrees to be bound by and comply with special conditions 8.4, 9, 16, 27, 29, 32,
34, 35.1, 37, 38, 40, 41, 45 and 48.6 in place of the outgoing Purchaser; and
(b) agrees to procure any subsequent purchaser to comply with this special condition
21.
21.3 Unless the Purchaser has completed construction of a dwelling on the Property, the
Purchaser must not Sell the Property after the Settlement Date except where:
(a) the transferee is a Relative of the Purchaser; or
(b) the Purchaser has provided full details of the Purchaser’s financial position or
other relevant circumstances to the Vendor and the Vendor, acting reasonably,
agrees in writing either that a Sale of the Property is reasonable and appropriate
in the circumstances or that to prevent that Sale would cause unjustifiable
hardship to the Purchaser,
and in each such case:
(c) the Purchaser has complied with special conditions 21.1 and 21.2.
21.4 The Vendor acknowledges that for the purposes of special condition 21.3(b) it would
cause unjustifiable hardship to the Purchaser if the Vendor refused to grant consent
where:
(a) the Purchaser is in default under a mortgage, registered in respect of the
Property, for three consecutive months; and
(b) the mortgagee has commenced action to enforce the mortgage.
21.5 The parties acknowledge and agree that:
(a) nothing in this special condition precludes a mortgagee from entering into
possession of the Property and exercising its power of sale in accordance with
the provisions of a mortgage provided that the mortgagee complies with this
special condition 21; and
(b) the Purchaser must bring this special condition 21 to any mortgagee’s attention
before granting a mortgage over the Property.
21.6 The Purchaser agrees to keep the Vendor indemnified against all claims incurred by the
Vendor and arising in respect of the matters set out in this special condition 21
(including failure by the Purchaser to comply with this special condition).
22 Nominee 22.1 This special condition 22 applies if the contract says that the property is sold to the
Purchaser “and/or nominee” (or similar words).
22.2 If the Purchaser is in default under this contract, the Purchaser may only nominate a
substitute or additional purchaser if the Purchaser obtains the Vendor’s prior written
consent (which consent may be withheld in the Vendor’s absolute discretion) and
provided that the Purchaser complies with special condition 22.3.
22.3 Subject to special condition 22.2, if the Purchaser wishes to nominate a substitute or
additional purchaser, it must deliver to the Vendor’s Solicitor at least 14 days before the
Settlement Date:
9503423/2 page 14
(a) a nomination notice in a form required by the Vendor in its absolute discretion,
executed by the nominee or additional purchaser and by the Purchaser;
(b) if the nomination notice is executed under a power of attorney, a copy of the
relevant power of attorney;
(c) a copy of the duly signed nominee statutory declaration required by the State
Revenue Office; and
(d) where the nominee purchaser is or includes a company, a Guarantee and
Indemnity executed by the directors of the nominee purchaser in accordance
with special condition,
22.4 The Purchaser may only apply to the Vendor to nominate a substitute or additional
purchaser if the Purchaser strictly complies with this special condition. Any other
purported nomination will not be considered by the Vendor.
22.5 In the case of any nomination, the Purchaser named in this Contract remains personally
liable for the due performance of all the Purchaser’s obligations and is not released of
any liability under this Contract whatsoever.
23 Agent 23.1 The Purchaser warrants that the Purchaser was not introduced to the Vendor or to the
Property by or through the medium of:
(a) a real estate agent; or
(b) an employee of a real estate agent,
other than the Vendor’s sales representative or by a representative of one of the
Display Builders.
24 General Conditions 24.1 General Conditions 1.2, 2.2, 2.3, 3, 4, 5, 6.2, 6.3(b)(ii) and 13.2 do not apply to this
Contract.
24.2 For the purposes of condition 13 of Table A, the term “legal practitioner” will include any
conveyancing company or similar entity appointed to act on behalf of the Purchaser.
24.3 Without affecting any other right, a party who has issued a notice of default or
rescission notice under Table A of the Seventh Schedule of the Transfer of Land Act
1958 (Vic) can, at any time before the expiration of the notice, revoke the notice by
serving a notice of revocation.
25 Privacy Act 25.1 The Purchaser consents to:
(a) the collection of Personal Information;
(b) the use and disclosure by the Vendor of Personal Information for the purposes of:
(i) enabling the Vendor to comply with its obligations under, associated with
and arising in connection with this Contract, including any obligations to any
9503423/2 page 15
third parties, such as the Vendor's financiers or proposed purchasers of the
Site (or part of the Site); or
(ii) facilitating any sale or potential sale or financing or potential financing of the
whole or any part of the Development or the Vendor’s activities.
(c) the disclosure to, and use by, any third party contractors and service providers
engaged by the Vendor of the Personal Information for the purpose of:
(i) enabling the Vendor to comply with and fulfil its obligations under or arising
under or in connection with this Contract; and
(ii) procuring the provision to the Purchaser of products and services
contemplated by this Contract; and
(d) the use and disclosure by the Vendor of Personal Information for the purposes of
enabling the Vendor to enforce its rights under this Contract.
25.2 The Purchaser acknowledges and agrees that:
(a) the Personal Information is held by the Vendor subject to the requirements of the
Privacy Act, and accordingly the Purchaser may request access to that Personal
Information at any time; and
(b) the Purchaser may request that Personal Information be corrected and should do
so by contacting the Privacy Officer.
26 Harcrest Design Documentation 26.1 The Purchaser acknowledges and agrees that:
(a) the Purchaser has read and understood the Memorandum of Common Provisions
and the Harcrest Design Guidelines;
(b) the Memorandum of Common Provisions and the Harcrest Design Guidelines
may be varied after the Day of Sale; and
(c) the Purchaser must not object to or oppose, or procure any other person to object
to or oppose, the Memorandum of Common Provision being lodged with the Land
Registry in accordance with section 91A of the Transfer of Land Act 1958 (Vic).
26.2 The Purchaser acknowledges and agrees that the Vendor may make those changes to
the Memorandum of Common Provisions and the Harcrest Design Guidelines which the
Vendor considers necessary or desirable or as otherwise required by authorities.
26.3 Subject to special condition 26.4, the Purchaser cannot make a claim or requisition, or
rescind or otherwise terminate this Contract in respect of any changes to the
Memorandum of Common Provisions and the Harcrest Design Guidelines.
26.4 Subject to special condition 26.5, if there is any change to the Memorandum of
Common Provisions and the Harcrest Design Guidelines relating to:
(a) the minimum set back of a building so as to increase that set back for the Land;
(b) allowable site coverage on the Land, so as to decrease permissible site coverage
on the Land; or
(c) any other change,
prior to the Settlement, that substantially and detrimentally affects the maximum
permissible habitable floor area of a dwelling that could be constructed on the Land, the
9503423/2 page 16
Vendor must serve a notice on the Purchaser advising of the change, and the
Purchaser can end this Contract but only within 10 Business Days of service of that
notice, and this time is of the essence.
26.5 Despite special condition 26.4, a Purchaser may not end this Contract if the change to
the Memorandum of Common Provisions and/or the Harcrest Design Guidelines has
arisen due to the requirements or preferred changes of any authority, including the
Registrar of Titles.
27 Construction of a dwelling on the Property 27.1 The Purchaser must, in accordance with this special condition:
(a) commence construction of a dwelling on the Property on or before the date 12
months after the Settlement Date;
(b) complete construction of the dwelling on the Property (including, subject to
special condition 31, all landscaping, construction of a driveway and fencing
works) within 12 months of commencing the dwelling works (and in any event
within 24 months after the Settlement Date); and
(c) subject to special condition 31, complete landscaping works to the front of the
Property within 90 days of a Certificate of Occupancy being issued for the
Property.
27.2 If the commencement and completion of construction is delayed due to circumstances
outside of the control of the Purchaser, then the Purchaser may apply in writing to the
Vendor for an extension to the relevant dates in special conditions 27.1(a) and/or
27.1(b). Such extensions may be granted in the Vendor’s absolute discretion.
27.3 The Purchaser must submit all plans and specifications in respect of the works to the
Property to the MDC in accordance with the Harcrest Design Guidelines before the
Purchaser applies for any necessary permits from the local authority or building
surveyor.
27.4 The Purchaser acknowledges and agrees that:
(a) it must comply with the Memorandum of Common Provisions and the Harcrest
Design Guidelines in the form as at the Settlement Date;
(b) failure to comply with this special condition 27 will result in serious consequences,
and such consequences include forfeiture of the Completion Bond or Completion
Bank Guarantee (as the case may be) in accordance with special condition 28
and/or a right by the Vendor to buy back the Property pursuant to the conditions
in special condition 29;
(c) under the terms of the Harcrest Design Guidelines, where any ambiguity or
dispute arises as to their interpretation or meaning, the matter shall be
determined by the MDC whose decision shall be final and binding;
(d) the Purchaser has read and understood the Harcrest Design Guidelines,
Memorandum of Common Provisions and the associated Building Envelope
Plans;
(e) in the event of any inconsistency between the Harcrest Design Guidelines and
the Memorandum of Common Provisions, the Memorandum of Common
Provisions prevail;
9503423/2 page 17
(f) a fee of $200 payable to The Trust Company Limited as custodian for the Mirvac
Wholesale Residential Development Partnership Trust must accompany each
application to the MDC and may be payable more than once when multiple
submissions are required;
(g) the MDC may, but is not obliged to, endorse a development for the Property or
any other property within the Land which varies from the specific requirements of
the Harcrest Design Guidelines provided the general intent of the Harcrest Design
Guidelines are met, in its opinion;
(h) neither the Vendor nor the MDC will be liable to the Purchaser in respect of any
approval given in accordance with special condition 27.4(g) or the failure of the
Vendor or MDC or any other person to enforce the Memorandum of Common
Provisions and/or the Harcrest Design Guidelines;
(i) if an endorsement by the MDC is given with respect to plans for a proposed
dwelling on a lot adjoining or in close proximity to the Property, the MDC may (but
is not obliged to) take those plans into account in assessing whether the design
and construction for the Property comply with the Memorandum of Common
Provisions and/or the Harcrest Design Guidelines; and
(j) a design approval of the Purchaser’s final design drawings and documents by the
MDC does not warrant, imply or in any way suggest that the endorsed
development plans comply with the Planning Scheme or with the Building
Regulations 2006 (Vic) in force at the time of the endorsement or with the
requirements of any other law or authorities.
27.5 The Purchaser must carry out any building works:
(a) in accordance with the terms and conditions of the Memorandum of Common
Provisions and the Harcrest Design Guidelines;
(b) with due diligence; and
(c) in a proper and workmanlike manner.
27.6 The Purchaser acknowledges that adjacent property owners or their builders may need
to obtain access to the Property to carry out or complete building works benefiting
adjacent properties. The Purchaser agrees that it must not unreasonably withhold
consent to an adjacent property owner or their builders obtaining access to the Property
for the purposes of facilitating completion of adjacent building works.
27.7 The Purchaser acknowledges that it may be required to obtain access to an adjacent lot
to carry out or complete building works on the Property, if such building works are on or
near the boundary of the Property. No warranty is given by the Vendor that such rights
will be made available and it is the Purchaser’s sole responsibility to obtain such rights
of access (at its cost).
27.8 Construction of a dwelling to be constructed on the Property is deemed to have
commenced when the footings for the dwelling have been laid.
27.9 If the Purchaser breaches the Purchaser’s obligations imposed under special condition
27.1 or 27.5, the Purchaser agrees that:
(a) damages are an inadequate remedy to the Vendor; and
(b) the Vendor shall be entitled to seek injunctive relief in respect of that breach.
9503423/2 page 18
27.10 The Purchaser acknowledges that it is responsible for complying with the requirements
of the Occupational Health and Safety Act 2004 (Vic) after the Settlement Date in
relation to the Property and the construction of a dwelling on the Property.
28 Completion of a dwelling on the Property 28.1 The Purchaser must on or before the Settlement Date:
(a) pay $10,000 by bank cheque to the Vendor’s Solicitor (Completion Bond); or
(b) provide a Completion Bank Guarantee for an equivalent amount.
28.2 Without limiting the Vendor’s other rights under this Contract, if:
(a) if the Purchaser fails to commence or complete construction of the dwelling in
accordance with special condition 27.1; or
(b) the dwelling does not comply with the Memorandum of Common Provisions
and/or the Harcrest Design Guidelines; or
(a) the Purchaser, its builder, contractors or invitees cause or contribute to any
damage to the Site including to any landscaping, road, footpath, guttering, nature
strip or other dwelling or lot,
the Vendor’s Solicitor may, on 30 days prior notice to the Purchaser, draw on the
Completion Bond or call upon the Completion Bank Guarantee (as the case may be).
28.3 Subject to the Vendor’s rights under special condition 28.2, if the Purchaser has
satisfied all of its obligations under this Contract, (including under special condition
28.4), the Vendor must return the Completion Bond or the Completion Bank Guarantee
(as the case may be) within four (4) months of issue of a Certificate of Occupancy for
the dwelling on the Property.
28.4 The Purchaser grants to the Vendor (and its contractors) and the Builder (and its
contractors) a right to access the Property (where reasonably necessary) at any time
after a Certificate of Occupancy has been issued for the Property, but before the
Vendor returns the Completion Bond or the Completion Bank Guarantee, to inspect the
dwelling and to confirm the Purchaser’s compliance with the provisions of this Contract.
28.5 The Purchaser must not make any objection or requisition, or bring any claim or action
against either the Vendor or the Builder as a consequence of anything relating to the
Vendor’s inspection in accordance with special condition 28.4.
28.6 If the Purchaser provides a Completion Bank Guarantee, special condition 28.7 will
apply.
28.7 If at any time the issuer of the Completion Bank Guarantee is not of at least the
Required Rating then, at the request of the Vendor, the Purchaser must serve on the
Vendor’s Solicitor a replacement Completion Bank Guarantee. The replacement
Completion Bank Guarantee must be from an issuer of at least the Required Rating.
28.8 The Vendor and the Purchaser authorise the Vendor’s Solicitor to invest the Completion
Bond in an interest bearing trust account with the Vendor’s Solicitor’s bank until the
earlier to occur of:
(a) the Vendor (acting reasonably) determining that the Purchaser has completed
construction of the dwelling in accordance with special condition 27.1 and in
compliance with the Memorandum of Common Provisions and the Harcrest
Design Guidelines; or
9503423/2 page 19
(b) the Vendor draws down on the Completion Bond in accordance with special
condition 28.2.
28.9 Any interest earned on the money invested under special condition 28.8(less proper
bank and government charges, fees and taxes) will be paid to the party entitled to the
Completion Bond.
28.10 Neither party shall make any claim against the Vendor's Solicitor for any taxes deducted
from the interest earned on the money invested under special condition 28.8 because of
failure by that party to give its tax file number to the Vendor's Solicitor’s Bank.
28.11 Neither the Vendor nor the Vendor’s Solicitor is liable to the Purchaser under any
circumstances if withholding tax is deducted from the interest.
29 Right to Purchase 29.1 This special condition 29 applies if:
(a) the Purchaser does not commence construction of the dwelling on the Property
on or before the date 12 months after the Settlement Date; or
(b) the Purchaser does not complete construction of the dwelling on the Property
including all landscaping, driveway, and fencing works on or before the date 12
months after commencement of the works (and in any event within 24 months
after the Settlement Date),
(both dates being the Construction Date).
29.2 In consideration of the Vendor agreeing to enter into this Contract, the Purchaser
irrevocably grants to the Vendor an option to buy back the Property from the Purchaser
for an amount determined in accordance with special condition 29.4. The option is
exercisable by the Vendor at any time when the Purchaser is in breach of the
Purchaser’s obligations under special condition 29.1 until construction of a house on the
Property is completed in accordance with this Contract.
29.3 The option may be exercised by the Vendor by giving to the Purchaser or the
Purchaser’s Solicitor a notice signed by the Vendor or the Vendor’s Solicitor stating that
the Vendor is exercising the Vendor’s option under this special condition and stating the
Consideration (which statement is, in the absence of manifest error, conclusive as to
the amount of the Consideration).
29.4 The Consideration is the amount “A” in the formula:
(a) A = B - C
where
A is the Consideration;
B is the current market value of the Property as determined by a valuer
appointed by the Vendor; and
C is the aggregate of:
(i) the stamp duty and registration fee which will be payable by the Vendor on
a transfer of the Property to the Vendor;
(ii) an amount nominated by the Vendor as likely legal fees and agent’s fees
expected on a resale of the Property;
9503423/2 page 20
(iii) the cost of the valuation obtained by the Vendor; and
(iv) all legal and other costs incurred or likely to be incurred by the Vendor in
exercising its rights under this special condition 29.
29.5 The Vendor and the Purchaser agree that in assessing the current market value of the
Property, the Vendor’s valuers must:
(a) disregard the value of any Improvements which do not comply with this Contract,
the Memorandum of Common Provisions and/or the Harcrest Design Guidelines
or any approval or consent issued by any authority;
(b) take into account the cost to the Vendor of converting any Improvements on the
Property to a standard compliant with this Contract, the Memorandum of
Common Provisions and/or the Harcrest Design Guidelines or any approval or
consent issued by any authority;
(c) take into account the cost to the Vendor of:
(i) acquiring the right to use the copyright to the design of the Improvements;
(ii) novating any existing contract entered into by the Purchaser in connection
with the Improvements including settling any outstanding claims or other
penalties in connection with that contract; and
(iii) acquiring warranties in connection with the completed Improvements if
warranties are not available from the contractors who carried out those
works;
(d) have regard to:
(i) the deterioration of the Property which is likely to have occurred between
completion and the date of the transfer of the Property to the Vendor;
(ii) the works which the Vendor is likely to be required to undertake to bring the
Property to a reasonable state of repair;
(iii) costs, charges and expenses incurred by the Vendor in connection with the
sale of the Property to the Purchaser including agent’s commission and
legal costs on an indemnity basis; and
(iv) the rectification of any part of the Improvements which does not comply
with any approval or consent issued by any authority; and
(v) the costs which will be incurred by the Vendor in completing the
Improvements (if the Vendor chooses to do so).
29.6 The current market value attributed to the Property and the Improvements by the valuer
referred to in special conditions 29.4 and 29.5 shall be final and binding on the Vendor
and the Purchaser.
29.7 For the purpose of this special condition, the valuer engaged must not be a Related
Entity of the Vendor or an employee of the Vendor.
29.8 Subject to and without limiting the operation of special condition 21, if the Purchaser
mortgages the Purchaser’s interests in the Property on or before the Construction Date:
(a) the Purchaser must incorporate in the mortgage a condition that any such
mortgagee is bound to comply with all of the obligations of the Purchaser under
special conditions 27 and 29;
9503423/2 page 21
(b) the Purchaser must serve a notice on the Vendor at least 5 Business Days prior
to the date the Purchaser mortgages the Purchaser’s interests in the Property;
(c) the Purchaser must if required by the Vendor procure that the mortgagee enters
into a deed with the Vendor confirming it is bound to comply with the obligations
of the Purchaser under special conditions 27 and 29; and
(d) the provisions of special conditions 27 and 29 must be included in any further
mortgage or other document effecting the mortgage.
29.9 Special conditions 27 and 29 are for the benefit of the Vendor only. The Vendor can
serve a notice or notices on the Purchaser at any time waiving or modifying its rights or
compliance by the Purchaser with specified obligations under special condition 27 or
29.
29.10 The Vendor is entitled at its absolute discretion to serve a notice pursuant to special
condition 29.9. The Purchaser will not be entitled to make a claim against the Vendor
where the Vendor waives or modifies similar rights or obligations of another Purchaser
of a lot in the Plan of Subdivision but the Vendor refuses a request by the Purchaser for
a similar notice under this Contract.
29.11 The Purchaser must provide a copy of this special condition 29 to a mortgagee prior to
the Purchaser signing a mortgage in respect of the Property. The Purchaser agrees to
keep the Vendor indemnified against all claims and in relation to all costs, loss or
damage incurred by the Vendor and arising in respect of the matters set out in this
special condition 29 (including failure by the Purchaser to comply with this special
condition).
30 Owner Builders 30.1 The Purchaser acknowledges that to ensure the Development is completed in a timely
and consistent fashion and in accordance with the Vendor’s usual standards of quality
and design, any dwelling on the Property must be constructed by a registered builder or
under a Major Domestic Building Contract.
30.2 The Purchaser warrants that it will engage a registered builder or will enter into a Major
Domestic Building Contract in relation to the construction of any dwelling on the
Property and that the Purchaser will not commence or carry out any work in a capacity
as an Owner Builder.
31 Landscaping 31.1 If the Purchaser has:
(a) completed construction of a dwelling on the Property in accordance with special
condition 27, the Memorandum of Common Provisions and the Harcrest Design
Guidelines; and
(b) rectified all damage, at its cost and to the satisfaction of the Vendor, that the
Purchaser, its builder, contractors or invitees caused or contributed to on the Site
including to any landscaping, road, footpath, guttering, nature strip or other
dwelling or lot,
but not otherwise, the Purchaser may submit a duly completed application in the form
approved by the Vendor (Landscape Request Form) requesting that the Vendor
9503423/2 page 22
complete the Landscaping to the front of the Property in accordance with special
condition 31.3.
31.2 The Landscape Request Form must be submitted to the Vendor within 120 days of
issue of a Certificate of Occupancy for the dwelling on the Property. The Vendor will
only be obligated to undertake landscaping works provided that:
(a) the driveway for the dwelling of the Property has been completed;
(b) the front of the lot is level and has been prepared for Landscaping (including
removal of debris and excess sand and soil, and leveling and compacting of soil,
to ensure a consistent gradient as reasonably required by the Vendor from time to
time);
(c) construction of retaining walls has been completed if required to ensure the lot is
level as determined by the Vendor in its absolute discretion;
(d) the Purchaser has installed sufficient drainage components (which may include
“ag drains” and pits as required) such that the front of the lot is free draining, as
determined by the Vendor in its absolute discretion;;
(e) if the Purchaser intends to construct any decks, paths or similar, such work has
been completed; and
(f) the Purchaser has rectified all damage, at its cost and to the satisfaction of the
Vendor, that the Purchaser, its builder, contractors or invitees caused or
contributed to on the Site including to any landscaping, road, footpath, guttering,
nature strip or other dwelling or lot;
at the time the Landscape Request Form is received by the Vendor.
31.3 If the Purchaser has not prepared the Property for Landscaping in accordance with
special condition 31.2 to the Vendor’s satisfaction, the Vendor may require the
Purchaser to undertake additional works within 60 days of the Vendor receiving the
Landscape Request Form.
31.4 If the Purchaser does not complete any additional works as required under special
condition 31.3 within 60 days, the Vendor may (acting reasonably) require the
Purchaser to pay the Vendor’s costs for undertaking additional inspections of the
Property.
31.5 Subject to the Purchaser complying with special condition 31.1 and 31.2, the Vendor
will, within 6 months of receiving the Landscape Request Form, or within 6 months after
any additional works required under special condition 31.3 are completed, procure for
the Purchaser good quality landscaping works, including provision and installation of
suitable plants as determined by the Vendor in its absolute discretion (Landscaping)
to the front of the Property.
31.6 The Purchaser acknowledges and accepts that in the case that Landscaping is
procured by the Vendor:
(a) the composition and extent of such Landscaping will be in accordance with the
agreed landscaping plans and will be adjusted to suit specific geometry of the
Property, species availability and suitability at the time and will be at the
discretion of the Vendor;
(b) the Landscaping will be carried out at the direction of the Vendor by a contractor
or contractors nominated by the Vendor; and
9503423/2 page 23
(c) the risk of all Landscaping (including but not limited to theft of plants or
reticulation components, damage to any existing drainage, structures or garden
kerbing and the health of all plants and lawn areas) will be at the sole risk of the
Purchaser from the date that the Landscaping commences.
31.7 The Purchaser grants to the Vendor and its respective contractors a licence to access
the Property for the purposes of completing the Landscaping in accordance with this
special condition 31.
31.8 If the Purchaser does not submit a Landscape Request Form in accordance with
special condition 31.1 or does not comply with special condition 31.2, the Purchaser
must complete the landscaping of the Property in accordance with the Harcrest Design
Guidelines within 90 days of the issue of a Certificate of Occupancy for the dwelling on
the Property.
32 Restriction as to use 32.1 The Purchaser purchases the Property subject to the Restrictions and must comply with
the Restrictions.
32.2 The Vendor and Purchaser acknowledge and agree that:
(a) if the Purchaser fails to comply with all or any of the Restrictions, the Purchaser
grants the Vendor a licence to enter the Property for the purposes of rectifying the
Purchaser’s breach of the relevant Restriction;
(b) if required by the Vendor at the Vendor’s sole discretion, the Purchaser must
promptly pay or reimburse the Vendor on request, the costs incurred by the
Vendor in remedying the Purchaser’s breach of any Restriction; and
(c) the Vendor must not exercise its rights under special condition 32.2(b), unless
and until the Vendor provides the Purchaser with at least 14 days prior written
notice, advising the Purchaser of the particular Restriction that has been
breached and providing the Purchaser with 14 days in which to remedy the
breach of the Restrictions.
32.3 So long as the Vendor is the owner or occupier of any part or parts of the Site:
(a) the Purchaser unconditionally and irrevocably assigns the benefit of the
Purchaser’s right as a benefited lot owner on the Plan of Subdivision to enforce
the Restrictions against other lot owners on the Plan of Subdivision; and
(b) the Purchaser must, if requested by the Vendor, permit the Vendor to exercise
the Purchaser’s rights as a benefited lot owner on the Plan of Subdivision in the
name of the Purchaser. The Purchaser must do all things reasonably required by
the Vendor, at the Vendor’s reasonable cost, to enable the Vendor to exercise the
Purchaser’s rights.
32.4 Subject to special condition 21, if the Purchaser enters into an agreement of the type
described in special condition 21, that agreement must contain provisions for the benefit
of the Vendor on the same terms as this special condition 32 (with the necessary
changes).
9503423/2 page 24
33 Display home restriction The Purchaser must not use the Property as a display home or as a show home at any
time. This restriction may be included in the Restriction.
34 Construction on the Site 34.1 The Vendor or the Builder or other party may (but is not obliged to) carry out
Development Activities on the Site generally, including on and in the vicinity of the land
in the Plan of Subdivision, and those Development Activities will be ongoing after the
Settlement Date. The Development Activities may:
(a) cause significant noise, dust, vibration and disturbance to the occupiers of the lots
in the Plan of Subdivision within the lawful requirements of any relevant authority
or council and during any hours permitted by any relevant authority or council;
(b) cause temporary obstruction or interference with services to the Property;
(c) result in access roads in the vicinity of the Property being temporarily diverted
during the course of the Development Activities on the adjoining lots; and
(d) result in construction traffic using the northern Stud Road entrance to the Site to
carry out Development Activities after Settlement has occurred.
34.2 The Purchaser must not make any claim or objection or commence any action or
enforce any judgement or order against the Vendor or the Builder or any other party
carrying out the Development Activities unless the Development Activities are not being
carried out in accordance with the relevant consent, authority, approvals or lawful
requirements.
34.3 Subject to special condition 21, if the Purchaser enters into an agreement of the type
described in special condition 21.1, that agreement must contain provisions for the
benefit of the Vendor on the same terms as this special condition 34 (with the
necessary changes).
34.4 The Purchaser agrees to indemnify the Vendor against all claims, damages, losses,
liabilities or proceedings of any nature arising from breach of this special condition 34
by the Purchaser.
35 Further development 35.1 The Purchaser acknowledges that the Development is a long term project and that the
Vendor cannot give any assurance as at the Day of Sale as to:
(a) the timetable for carrying out the Development or the Development Activities;
(b) the nature of the Development (including the number of lots, types of uses and
facilities to be provided); or
(c) the manner in which the Development will be carried out.
35.2 The Purchaser acknowledges that at the Day of Sale the Vendor intends to develop and
construct on the Site:
(a) a lake and wetlands area;
(b) community gardens;
(c) landscaping; and
9503423/2 page 25
(d) a retail centre,
and that such works are subject to:
(i) planning or other approvals;
(ii) the Vendor’s further analysis and viability assessments; and
(iii) change (in the Vendor’s absolute discretion) without prior notice to the
Purchaser.
35.3 Subject to special conditions 35.5 and 35.6, the Vendor does not make any
representation or warranty about any further Development or the Development Activities
or any of the matters referred to in special condition 35.2 and the Purchaser
acknowledges and agrees that it has not relied on any representations or warranties
from the Vendor in relation to such matters.
35.4 The Purchaser must not make any objections, requisition or claim, nor rescind,
terminate or delay Settlement or seek compensation of any kind by reason of:
(a) any alteration:
(i) to the Development (including but not limited to changes in uses, layouts or
facilities and services);
(ii) in the number of lots in the Plan of Subdivision or in any future other stage
or plan of subdivision relating to any other part of the Development; or
(iii) to the number, size, shape or location or liability or permitted use of any lot
or any other part of the Site which is not a lot in the Plan of Subdivision
(other than the Property) or in any future stage or plan of subdivision
relating to any other part of the Development;
(b) any changes, alteration, delay, or abandonment of the works contemplated in
special condition 35.2;
(c) any delay in the completion of the Development; or
(d) the abandonment of any part of the Development.
35.5 The Vendor intends to construct the lake and wetlands area referred to in special
condition 35.2(a) on the basis that:
(a) there is no fence constructed around that lake and wetlands;
(b) the lake and wetlands will be constructed on the north east corner of the Site,
comprising an area of approximately 25,761 m2;
(c) there will be significant undulations to the level of the land throughout the lake
and wetlands area;
(d) drainage components, including retarding basins and other infrastructure, will be
constructed as required to facilitate a functional lake and wetlands area; and
(e) the Vendor makes no representations or warranties as to the accuracy of the
design, location or size of the lake and wetlands area as described in any
marketing collateral issued by the Vendor from time to time, as such details may
be subject to change during the development of the lake and wetlands area.
35.6 As at the day of sale, the retail centre referred to in special condition 35.2(d) consists of
an IGA supermarket and other specialty shops but the Vendor makes no
representations or warranties in relation to the type, quality or mix of the tenancies of
9503423/2 page 26
the retail centre that will exist at any time after the Day of Sale, including after the
Settlement Date.
35.7 The Purchaser acknowledges that:
(a) it has reviewed plan of subdivision no. PS630773C and it is aware that the area
marked “Road R2” previously formed part of the Site and has now vested in the
Roads Corporation, as delineated on the plan;
(b) the Vendor has indicated that to its knowledge the area marked “Road R2” and
other parts of the Site which are to be vested in the Roads Corporation may
subsequently be used to facilitate widening of Stud Road. The impact of that
road widening is that it may reduce the distance between Stud Road and the
Property and the other housing lots on the Site; and
(c) to the Vendor’s knowledge, despite such road widening, Knox City Council
proposes to retain a reserve of land between Stud Road and the residential lot
boundaries of approximately 10 metres.
35.8 The Purchaser must not object to or oppose or procure any other person to object to or
oppose any application which the Vendor or any person with the authority of the Vendor
makes for any planning or other approval required to vary the Development or to carry
out any part of the Development (including any part of the Development as varied),
Development Activities or anything else contemplated by this special condition 35.
35.9 The Purchaser acknowledges that any successor body or authority who exercises
control over any part of the Development will not be under an obligation to provide
irrigation to any part of the Development.
35.10 The Purchaser will not make any objection, requisition or claim, nor rescind, terminate
or delay Settlement because of anything contemplated by this special condition 35.
36 Acknowledgement regarding display village 36.1 The Vendor and Purchaser acknowledge and agree that:
(a) the Vendor will operate a display village(s)/sales centre(s) on the Site (Display
Villages);
(b) the Display Builders have constructed a display home on lots on the Site near the
corner of Appledale Way and Harcrest Boulevard;
(c) the Vendor intends to construct, or to the procure the construction of, a second
display village near the corner of Appledale Way and Harcrest Boulevard;
(d) members of the public will be encouraged to attend the Display Villages and
temporary car parks may be established to accommodate the additional traffic;
and
(e) the Display Builders, the Vendor and Mirvac may display signage and undertake
other marketing activities in the Display Villages.
36.2 The Purchaser must not make any objection, requisition or claim, nor rescind, terminate
or delay Settlement because of anything contemplated by special condition 36.1.
9503423/2 page 27
37 Section 173 Agreements 37.1 Registered 173 Agreement
The Purchaser acknowledges and agrees that:
(a) the Registered 173 Agreement is registered on the certificates of title which
comprise the Site;
(b) the Registered 173 Agreement requires the Vendor, among other things, to make
a proportion of the Site available for the provision of Social Housing or to provide
Compensation-in-Lieu (as defined in the Registered 173 Agreement);
(c) the Vendor is in discussions with Knox City Council and the Department of
Human Services in relation to an alternative proposal for the provision of Social
Housing, which, if agreed, may result in the Registered 173 Agreement being
varied and/or the integration of Social Housing throughout the Site, including
within the vicinity of the Property;
(d) the Registered 173 Agreement is not intended to impose positive obligations or
restrictions on the Purchaser; and
(e) it is intended that the Registered 173 Agreement will be removed from the
certificates of title which comprise the Site prior to the registration of the Plan of
Subdivision and therefore the Registered 173 Agreement will not be registered on
the certificate of title for the Property.
37.2 Wallace Road Agreement
The Purchaser acknowledges and agrees that:
(a) the Wallace Road Agreement is not, and will not be, registered on the certificates
of title which comprise the Site;
(b) despite using its reasonable endeavours, the Vendor has been unable to
purchase a Wallace Road Property and as such, the Vendor is not under any
obligation to construct a pedestrian link between Wallace Road and the Site;
(c) the Vendor has notified Knox City Council that is has not purchased a Wallace
Road Property in accordance with the Wallace Road Agreement; and
(d) in accordance with clause 7 of the Wallace Road Agreement, the balance of the
Wallace Road Agreement does not bind the Purchaser.
37.3 DPO8 Agreement
The Purchaser acknowledges and agrees that:
(a) the DPO8 Agreement is registered on the certificates of title which comprise the
Site;
(b) the DPO8 Agreement requires the Vendor to comply with a number of obligations
to ensure that the Development occurs in a manner generally consistent with the
Austral Bricks Scoresby Urban Planning Guidelines, May 2007;
(c) in accordance with clause 6.2 of the DPO8 Agreement, the DPO8 Agreement is
not intended to bind the Purchaser; and
(d) the Vendor may, but is not obliged to, make application to the Registrar of Titles
under section 183(1) of the Planning and Environment Act 1987 (Vic) to cancel
the recording of the DPO8 Agreement on the register prior to the Settlement
Date.
9503423/2 page 28
37.4 The Purchaser acknowledges that the Section 173 Agreements have been entered into
under section 173 of the Planning and Environment Act 1987 (Vic) to achieve and
advance the objective of planning in Victoria and the objectives of the Knox Planning
Scheme.
37.5 The Purchaser for valuable consideration (receipt of which is acknowledged by the
Purchaser) irrevocably appoints the Vendor as the Purchaser’s attorney to agree in the
Purchaser’s capacity as owner of the Property to variations to the Section 173
Agreements and to execute any deed effecting any such variation.
37.6 The Purchaser must not make any objection, requisition or claim, nor rescind, terminate
or delay Settlement because of anything contemplated by this special condition 37.
38 Caveat 38.1 The parties acknowledge and agree that:
(a) Telstra Corporation Limited (Telstra) has registered caveat number AJ792945R
on the title for Lot B10 on PS705515L being certificate of title volume 11406 folio
807 (Caveat);
(b) the Caveat relates to a lease between the Vendor and Telstra for an area located
along the southern boundary of the Site;
(c) the Caveat is not intended to impose positive obligations or restrictions on the
Purchaser;
(d) the Vendor will use its reasonable endeavours to remove, or procure the removal
of, the Caveat from the certificate of title for the Land, or alternatively, ensure that
the Caveat be amended such that it is limited to the land the subject of the lease;
(e) if the Vendor has been unable to procure the removal or amendment of the
Caveat as referred to in special condition 38(d) prior to the Settlement Date, the
Purchaser must not delay Settlement and will accept the Vendor’s or the Vendor’s
Solicitor's assurances that a withdrawal of caveat will be procured from Telstra
and lodged with the Registrar of Titles as soon as reasonably practicable; and
(f) the Purchaser must not make any objection, requisition or claim, nor rescind,
terminate or delay Settlement because of anything contemplated by this special
condition 38.
39 Vehicle crossover 39.1 The Purchaser acknowledges that:
(a) the Vendor shall (at its cost) construct a vehicle crossover to allow the Purchaser
to access the Property;
(b) the location of the designated vehicle crossover is shown on the Building
Envelope Plans; and
(c) if the Purchaser wants the vehicle crossover relocated to a different location, the
Purchaser must:
(i) obtain approval of MDC whose consent may be withheld acting reasonably
(unless the Memorandum of Common Provisions specify that the vehicle
9503423/2 page 29
crossover is fixed where the MDC will be entitled to withhold its consent in
its absolute discretion);
(ii) apply, at its cost, to Knox City Council for the relevant permits and
approvals (Application);
(iii) ensure that the proposed location conforms with the Memorandum of
Common Provisions;
(iv) provide written notice to the Vendor of the Application and provide such
other information as the Vendor may request (acting reasonably) from time
to time; and
(v) notify the Vendor immediately on notification that the Application has been
approved.
39.2 If the Purchaser obtains approval to relocate the vehicle crossover in accordance with
special condition 39.1(c), the Purchaser must:
(a) not commence construction of the new vehicle crossover (Crossover Works)
until after Settlement; and
(b) remove, at its cost, the existing vehicle crossover as soon as reasonably
practicable after completion of the Crossover Works.
40 Geotechnical Conditions 40.1 On or prior to the Settlement Date, the Vendor shall provide to the Purchaser a soil
classification report in relation to the Property prepared by A.S. James Pty Limited ACN
004 584 534 (Report).
40.2 The Purchaser acknowledges that the Site is the former Austral Bricks site which
included a quarry. As a result, the Site shall have varying degrees of cut and fill as
contemplated in special condition 5.2.
40.3 A.S. James Pty Limited ACN 004 584 534 is solely responsible for the representations
and warranties in relation to the soil conditions and other information contained in the
Report and the Vendor shall not have any liability to the Purchaser in respect of such
matters.
40.4 The Purchaser must not make any objection, requisition or claim, nor rescind, terminate
or delay Settlement because of anything contemplated by this special condition 40 or
contained in the Report.
41 Electricity Supply
41.1 The Purchaser acknowledges and agrees that:
(a) it is intended that electricity supply infrastructure will be provided to the Property
but the Property may not benefit from an electricity supply at the Settlement Date;
(b) the availability, provision and timing of electricity supply is dependent on third
party providers being willing and able (at their cost) to provide and install the
necessary infrastructure and enter the appropriate agreements with electricity
suppliers and the Vendor makes no warranties or representations in respect of
such matters;
9503423/2 page 30
(c) it is the Purchaser’s sole responsibility to ensure that any Improvements on the
Property are designed, constructed and wired to be compatible with the services
provided via that electricity infrastructure; and
(d) if the Purchaser requires power to commence construction of a dwelling prior to
energisation of the electrical infrastructure, the Purchaser, at its cost, must
provide temporary power to the Property for the period prior to energisation of the
permanent power supply.
41.2 The Purchaser agrees that it must not make any representation to any third parties
including any statutory or other local authority in relation to any matters contemplated
by this special condition 41 which may in the opinion of the Vendor have an adverse
effect on the Vendor.
41.3 The Purchaser waives its rights and releases the Vendor to the full extent permitted by
law from all actions, claims and liabilities that it may have against the Vendor in relation
to the matters set out in this special condition 41.
41.4 The Purchaser must not make any objection, requisition or claim, nor rescind, terminate
or delay Settlement because of anything contemplated by this special condition 41.
41.5 The Purchaser must, on demand, immediately make payment to the Vendor or to any
third party nominated by the Vendor of any costs attributable to the provision of
temporary power to the Property for the purposes of special condition 41.1(d).
42 Maintenance of Land 42.1 At all times after Settlement until construction of a dwelling on the Property under
special condition 27 is completed, the Purchaser must keep the Land clean and tidy and
free from debris.
42.2 If, in the Vendor’s absolute discretion, the Purchaser fails to comply with special
condition 42.1, the Vendor or its agents may enter the Land, without notice to the
Purchaser and without creating liability for trespass or otherwise, to maintain, slash or
mow the Land.
42.3 If the Vendor enters the Land under special condition 42.2, the Purchaser must
promptly pay the Vendor a sum of $250 upon receipt of an invoice from the Vendor, or
the Vendor may draw down on the Completion Bond or call upon the Completion Bank
Guarantee provided in accordance with special condition 28 (as the case may be).
43 Secured Interests under the PPSA 43.1 In this special condition:
(a) PPSA means the Personal Property Securities Act 2009 (Cth); and
(b) Security Interest and Secured Party have the meaning given in the PPSA.
43.2 The Purchaser must give written notice to the Vendor of any Security Interest affecting
the Property that the Purchaser reasonably requires to be released at Settlement before
the earlier of:
(a) 21 days after the Day of Sale; and
9503423/2 page 31
(b) 7 Business Days before the date for Payment of Balance in accordance with the
Particulars of Sale
(Notice Period).
43.3 Subject to special conditions 43.4, 43.9 and 43.10, if the Purchaser gives notice in
accordance with special condition 43.2, the Vendor must use its reasonable endeavours
to procure the Secured Party to provide a letter or deed poll confirming the release of
the Property from the Secured Interest at Settlement.
43.4 If the Purchaser does not give notice in accordance with special condition 43.2 within
the Notice Period, the Purchaser acknowledges that the Vendor is under no obligation
to provide, or to procure the provision of, a letter or deed poll confirming the release of
the Property from the Secured Interest at Settlement, (subject to special condition
43.11) the Vendor is discharged from the obligation to provide the Property free of any
Secured Interest and the Vendor may require Settlement without providing such a letter
or deed poll.
43.5 If the Purchaser gives notice to the Vendor that it reasonably requires a Security
Interest affecting the Property to be released other than during the Notice Period, the
Vendor may, but is under no obligation to, use its reasonable endeavours to procure the
Secured Party to provide a letter or deed poll confirming the release of the Property
from the Secured Interest and delay settlement until the date 7 days after the Vendor
receives the letter or deed poll from the Secured Party.
43.6 If settlement is delayed under special condition 43.5, the Purchaser must pay the
Vendor:
(a) interest from the date for Payment of Balance in accordance with the Particulars
of Sale until the date on which Settlement occurs; and
(b) any reasonable costs (including legal costs on a solicitor/own client basis)
incurred by the Vendor as a result of the delay,
as though the Purchaser was in default.
43.7 If the Purchaser gives notice in accordance with this special condition advising the
Vendor of a Security Interest affecting the Property that the Purchaser reasonably
requires to be released and, in the Vendor’s opinion, that Security Interest does not
relate, extend or apply to the Property, the Vendor may provide a letter confirming (or
may instruct the Vendor’s Solicitors to provide a letter in which they confirm that the
Vendor has instructed them) that the Property is not affected by that Security Interest.
43.8 The parties acknowledge and agree that:
(a) any letter or deed poll provided in accordance with this special condition shall be
taken to be conclusive evidence of the accuracy of its contents;
(b) subject to special condition 43.11, any letter or deed poll provided in accordance
with this special condition is sufficient to discharge the Vendor’s obligation to
provide the Property free of any Secured Interest; and
(c) the Purchaser must not make any objection, requisition or claim, delay completion
of, or rescind or terminate this Contract in relation to any matter contemplated by
this special condition.
43.9 Despite any other provision of this special condition, the Vendor is not obliged to ensure
that the Purchaser receives a release, statement, approval or correction (as
9503423/2 page 32
contemplated in the PPSA) in respect of the Property or any part of the Property that is
sold in the ordinary course of the Vendor’s business of selling property of that kind.
43.10 Despite any other provision of this special condition, the Vendor is not obliged to ensure
that the Purchaser receives a release, statement, approval or correction (as
contemplated in the PPSA) in respect of any personal property that:
(a) is not described by serial number in the Personal Property Securities Register
under the PPSA; and
(b) is predominantly used for personal, domestic or household purposes; and
(c) has a market value of not more than $5,000 or, if a greater amount has been
prescribed for the purposes of section 47(1) of the PPSA, not more than the
prescribed amount.
43.11 Nothing in this special condition limits the obligation of the Vendor to provide a
discharge or withdrawal of any mortgage or caveat lodged under the Transfer of Land
Act 1958 (Vic) (other than those, if any, to which the sale of the Property is subject
under this Contract).
44 Vendor limitation of liability 44.1 The Vendor enters into this Contract as custodian and agent of the Responsible Entity
of the Trust and in no other capacity.
44.2 The parties other than the Vendor acknowledge that the Obligations are incurred by the
Vendor solely in its capacity as custodian of the Assets of the Trust and as agent of the
Responsible Entity and that the Vendor will cease to have any obligation under this
Contract if the Vendor ceases for any reason to be custodian of the Assets of the Trust.
44.3 The Vendor will not be liable to pay or satisfy any Obligations except to the extent to
which it is indemnified by the Responsible Entity or except out of the Assets against
which it is entitled to be indemnified in respect of any liability incurred by it.
44.4 The parties other than the Vendor may enforce their rights against the Vendor arising
from non-performance of the Obligations only to the extent of the Vendor’s indemnity as
provided above in special condition 44.3.
44.5 If any party other than the Vendor does not recover all money owing to it arising from
non-performance of the Obligations it may not seek to recover the shortfall by:
(a) bringing proceedings against the Vendor in its personal capacity; or
(b) applying to have the Vendor wound-up or proving in the winding-up of the
Vendor.
44.6 The parties other than the Vendor waive their rights and release the Vendor from any
personal liability whatsoever, in respect of any loss or damage:
(a) which they may suffer as a result of any:
(i) breach of the Vendor of any of its Obligations; or
(ii) non-performance by the Vendor of the Obligations; and
(b) which cannot be paid or satisfied from the indemnity set out above in special
condition 44.3 in respect of any liability incurred by it.
9503423/2 page 33
44.7 The parties other than the Vendor acknowledge that the whole of this Contract is
subject to this special condition and, subject to special condition 44.10, the Vendor shall
in no circumstances be required to satisfy any liability arising under, or for non-
performance or breach of any Obligations under or in respect of, this Contract or under
or in respect of any other document to which it is expressed to be a party out of any
funds, property or Assets other than to the extent that this Contract requires satisfaction
out of the Assets of the Trust under the Vendor’s control and in its possession as and
when they are available to the Vendor to be applied in exoneration for such liability.
44.8 The parties acknowledge that the Responsible Entity of the Trust is responsible under
the Constitution of the Trust for performing a variety of obligations relating to the Trust,
including under this Contract. The parties agree that no act or omission of the Vendor
(including any related failure to satisfy any Obligations) will constitute fraud, negligence
or breach of duty of the Vendor for the purposes of special condition 44.10, to the extent
to which the act or omission was caused or contributed to by any failure of the
Responsible Entity or of any other person or fulfil its obligations relating to the Trust or
by any other act omission of the Responsible Entity or any other person.
44.9 No attorney, agent or other person appointed in accordance with this Contract has
authority to act on behalf of the Vendor in a way which exposes the Vendor to any
personal liability and no act or omission of such a person will be considered fraud,
negligence or breach of duty of the Vendor for the purposes of special condition 44.10.
44.10 This special condition does not apply to the extent that the Obligations arise out of, or
the Vendor’s right or indemnity out of the Assets is prejudiced by, the fraud, negligence
of breach of duty on the part of the Vendor under its custody agreement with the
Responsible Entity.
45 Trust limitation of liability 45.1 To the extent the Responsible Entity is a party to this Contract through its custodian and
agent being the Vendor, it is only in its capacity as responsible entity of the Trust and in
no other capacity. A liability arising under or in connection with this Contract is limited
to and can be enforced against the Responsible Entity only to the extent to which it can
be and is in fact satisfied out of the property of the Trust from which the Responsible
Entity is actually indemnified for the liability. This limitation of the Responsible Entity’s
liability applies despite any other provision of this Contract and extends to all liabilities
and obligations of the Responsible Entity in any way connected with any representation,
warranty, conduct, omission, document or transaction related to this Contract.
45.2 Except where the limitation of liability in this special condition 45, does not apply, no
person may sue the Responsible Entity in any capacity other than as the responsible
entity of the Trust, excluding seeking the appointment of a receiver (except in relation to
the property of the Trust), a liquidator, an administrator or any similar person to the
Responsible Entity or proving in any liquidation, administration or arrangement of or
affecting the Responsible Entity (except in relation to the property of the Trust).
45.3 The provisions of this special condition 45 shall not apply to any obligation or liability of
the Responsible Entity to the extent that it is not satisfied because under this Contract
or by operation of the law, the Responsible Entity is not entitled to be indemnified out of
the property of the Trust or there is a reduction in the extent of the Responsible Entity’s
indemnification out of the Trust as a result of the Responsible Entity’s failure to properly
perform its duties as responsible entity of the Trust.
9503423/2 page 34
46 Transfer of the Site from the Vendor 46.1 If the Vendor transfers the Site (or that part of the Site which includes the Property) to
another party (Transferee) prior to the Settlement Date, the Purchaser agrees and
consents to:
(a) the transfer of the Site to the Transferee;
(b) the Vendor assigning or novating the benefit of this Contract to the Transferee;
and
(c) accept on Settlement a transfer of the Property in registrable form duly executed
by the Transferee.
46.2 Any notice of assignment or novation of this Contract to the Transferee given by the
Vendor to the Purchaser will be conclusive evidence of an assignment or novation (as
the case may be) of this Contract, and the Purchaser must perform the obligations
under this Contract in relation to the rights assigned or novated (as the case may be) as
if the Transferee were the Vendor.
47 Commercial interests 47.1 The Vendor discloses, and the Purchaser acknowledges and agrees that all of the
provisions in this Contract, including the provisions listed below in special condition
47.2, are reasonably necessary to protect the Vendor’s legitimate interests by:
(a) providing the Vendor with sufficient flexibility in the design, planning, construction
and management of the Development due to the Development being at a stage
where the Vendor has no certainty as to design and construction constraints; and
(b) ensuring that the Vendor has sufficient flexibility under this Contract if the
economic viability of the Development for the Vendor is affected by anything
including changes in market conditions, construction costs or other matters.
47.2 Without limiting the operation of special condition 47.1, the parties agree that the
following provisions of this Contract are reasonably necessary to protect the Vendor’s
legitimate interests for the reasons stated in special condition 47.1:
(a) the Vendor’s rights to rescind this Contract contained in special conditions 1.2;
(b) the reservation of the Vendor’s rights to:
(i) make changes to the Plan of Subdivision contained in special conditions
4.1;
(ii) vary the final location of easements contained in special condition 5.1; and
(iii) create easements, restrictions on use and other encumbrances contained
in special condition 3.1;
(c) the Vendor’s and the Builder’s rights in connection with Marketing Activities,
Ongoing Works and Repair Works contained in special condition 16;
(d) the Vendor’s rights in relation to Restrictions contained in special condition 32;
(e) the Vendor’s right to require the Purchaser to provide a Completion Bond or
Completion Bank Guarantee, and to draw on or call upon that security (as the
case may be) in accordance with special condition 28;
9503423/2 page 35
(f) the restriction on the Purchaser’s right to resell the Property contained in special
condition 21;
(g) the Vendor’s right to:
(i) purchase the Property in special condition 29;
(ii) operate a Display Village in special condition 36; and
(iii) restrict inspections of the Property in accordance with special condition 8.5
(h) the restriction on the Purchaser’s rights to make claims, requisitions, rescind or
terminate contained in special condition 1.4, 3.2, 4.3, 5, 8.5, 10.7, 16.3, 17.3,
20.2, 26.3, 28.5, 28.10, 29.11, 34.2, 35, 36.2, 37.6, 40.4, 41.4 and 43.8.
48 Definitions and Interpretation 48.1 In this Contract:
Expressions included in the Particulars of Sale have the meaning set out against them;
Application means the application referred to in special condition 39.1(c)(ii);
Assets (for the purposes of special condition 44) includes all assets, property and rights
real and personal of any value whatsoever of the Trust;
Bank Guarantee means an unconditional and irrevocable guarantee or undertaking by
an Australian trading bank with a branch in Melbourne to pay money to the Vendor’s
Solicitor:
(a) without reference to the Purchaser;
(b) with an expiry date at least 30 days after the expiry date of the Registration
Period; and
(c) in a form satisfactory to the Vendor including that the Bank Guarantee must be
made in favour of the The Partners of the firm trading as Corrs Chambers
Westgarth,
and Bank Guarantor means the bank giving such guarantee or undertaking;
Builder means Mirvac Home Builders (Vic) Pty Ltd ACN 096 010 785 or such other
builder as the Vendor may nominate from time to time;
Building Envelope Plans means the building envelope plans forming part of the
Memorandum of Common Provisions, with or without changes permitted by this
Contract;
Business Day means any day which is not a Saturday, Sunday or a proclaimed public
holiday in the State of Victoria;
Caveat has the meaning given in special condition 38.
Completion Bank Guarantee means an unconditional and irrevocable guarantee or
undertaking by an Australian trading bank with a branch in Melbourne to pay money to
the Vendor’s Solicitor:
(a) without reference to the Purchaser;
(b) with an expiry date at least 25 months after the Settlement Date; and
(c) in a form satisfactory to the Vendor.
9503423/2 page 36
Constitution means the trust deed of the Trust as amended from time to time;
Construction Date has the meaning given in special condition 29.1;
Contract means this Contract as it may be amended from time to time by agreement in
writing signed by both parties;
Crossover Works has the meaning given in special condition 39.2;
Deposit Bond means an unconditional and irrevocable undertaking by an insurance company with the Required Rating to pay the money to the Vendor’s Solicitor:
(a) without reference to the Purchaser;
(b) with an expiry date at least 30 days after the expiry date of the Registration
Period; and
(c) in a form satisfactory to the Vendor,
and Deposit Bond Issuer means the insurance company issuing a Deposit Bond;
Development means the proposed use and development of the whole or part of the
Site for the project known as Harcrest and includes the Development Activities;
Development Activities means any work carried out or intended to be carried out by
the Vendor or Builder or any other party to complete any development on the Site
including:
(a) the subdivision of land forming part of the Site;
(b) any form of demolition work, building work and work ancillary to or associated
with the building work or installation of infrastructure including services to the Site;
(c) any form of landscaping work or work ancillary to or associated with landscaping
work on the Site;
(d) construction of the Lake and Wetlands in the northeast area of the Site;
(e) a retail centre on that part of the Site zoned Mixed Use Zone;
(f) design and construction of a community garden on the Site (other than in Stages
1 or 2); and
(g) carrying out the development of the Site in stages;
Director of Housing means the Director of Housing being a body corporate pursuant to
section 9 of the Housing Act 1983 (Vic) or its nominee;
Display Builders means Metricon Homes Pty Ltd (ABN 55 201 276 124), PDH
Displays Pty Ltd (ACN 125 143 425) Mirvac or any Related Entity of Mirvac, Metricon
Homes Pty Ltd, PDH Displays Pty Ltd and such other builder as the Vendor may invite
from time to time;
Display Village has the meaning given in special condition 36;
DPO8 Agreement means the agreement entered into under section 173 of the
Planning and Environment Act 1987 (Vic) between the Council and the Vendor dated 17
September 2010, a copy of which is attached to the Vendor’s Statement;
General Conditions means the General Conditions published by the Law Institute of
Victoria and the Real Estate Institute of Victoria Ltd which are replicated in the
beginning of this Contract;
9503423/2 page 37
Guarantee and Indemnity means the guarantee and indemnity included in Annexure A
of this contract;
GST means tax payable under the GST Law;
GST Law means the goods and services tax system which is Australian law under the
A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated legislation
or any amendment or replacement of that Act or legislation;
Harcrest Design Guidelines means the design guidelines specified by the MDC from
time to time as being applicable to that part of the Development which includes the
Property;
Improvements means any structures, buildings or improvements on the Property
including any fencing and landscaping;
Landscape Request Form means the landscape request form in the form provided by
the Vendor from time to time;
Landscaping means the landscaping referred to in special condition 31;
Marketing Activities has the meaning given in special condition 16.1(b);
Major Domestic Building Contract means a major domestic building contract as
defined in section 3 of the Domestic Building Contracts Act 1995 (Vic);
MDC means the Mirvac Design Committee as referred to in the Harcrest Design
Guidelines as amended by the Vendor from time to time;
Memorandum of Common Provisions means the memorandum of common
provisions to be lodged with the Registrar of Titles and referred to in the Restriction, a
copy of which is attached to the Vendor’s Statement;
Mirvac means Mirvac Victoria Pty Limited or any Related Entity of Mirvac Victoria Pty
Limited;
Moody's means Moody’s Investor Services Inc., a corporation organised and existing
under the laws of the State of Delaware in the United States of America;
Obligations (for the purposes of special condition 44) means all obligations and
liabilities of whatever kind undertaken or incurred by, or devolving upon, the Vendor
under or in respect of this Contract;
Ongoing Works has the meaning given in special condition 16.1(c);
Owner Builder means a person who is not a registered building practitioner within the
meaning of the Building Act 1993 (Vic) and is not using a registered building practitioner
to carry out building work within the Development;
Personal Information means all personal information (as defined in the Privacy Act)
relating to the purchaser, including all personal information set out in this Contract and
otherwise collected by the Vendor whether prior to or after the Day of Sale;
Plan of Subdivision means the proposed plan of subdivision no. PS705529Y, a copy
of which is included in the Vendor's Statement, and includes the Restrictions noted on
the plan;
Planning Scheme means the Knox Planning Scheme and any other planning scheme
that applies to the Site;
Pre-settlement Inspection has the meaning given in special condition 8.4;
9503423/2 page 38
Privacy Act means the Privacy Act 1988 (Cth) and any regulations, ancillary rules,
guidelines, orders, directions, directives, codes of conduct or other instrument made or
issued under that act, as amended from time to time;
Privacy Officer means "the Privacy Officer", Mirvac Group, Level 26, 60 Margaret
Street, Sydney, New South Wales, 2000, facsimile +61 2 9080 8198, telephone +61 2
9080 8000, telephone (02) 9080 8437, email [email protected];
Registered 173 Agreement means the agreement entered into under section 173 of
the Planning and Environment Act 1987 (Vic), registered dealing number AF636445X, a
copy of which is attached to the Vendor’s Statement;
Registration Period means the period expiring on30 June 2018;
Related Entity has the meaning given to it in the Corporations Act 2001 (Cth);
Relative has the same meaning as in the Duties Act 2000 (Vic);
Repair Works has the meaning given in special condition 16.1(d);
Report means the report referred to in special condition 40.1;
Required Rating means:
(a) a financial strength rating of A1 or higher from Moody's; or
(b) a financial strength rating of A+ or higher from S & P;
Responsible Entity means Mirvac Funds Management Limited ABN 78 067 417 663;
Restriction means a restriction noted on the Plan of Subdivision and Restrictions
means all and every Restriction as amended from time to time;
Sale or Sell includes a sale, agreement to sell, the granting of an option and a transfer;
Section 173 Agreements means the Registered 173 Agreement, the DPO8 Agreement
and the Wallace Road Agreement;
Settlement means settlement as contemplated by this Contract which shall take place
on the Settlement Date;
Site means all the land in the Harcrest development, 525 Stud Road, Wantirna South;
Social Housing means housing provided on a rent reduced or a rent subsidized basis
or housing which is allocated under a program administered by the Director of Housing;
S & P means Standard and Poor’s (Australia) Pty Limited, a company incorporated in
Victoria;
Table A means Table A of the Seventh Schedule of the Transfer of Land Act 1958 (Vic)
as it was in force immediately before the commencement of section 71 of the Land
Legislation Amendment Act 2009 (Vic);
Transferee means the party referred to in special condition 46.1(a);
Trust means the Mirvac Wholesale Residential Development Partnership Trust;
Vendor's Statement means the statement given by the Vendor under section 32 of the
Sale of Land Act 1962 (Vic), a copy of which is annexed to this Contract;
Wallace Road Agreement means the agreement entered into under section 173 of the
Planning and Environment Act 1987 (Vic) between the Council and the Vendor dated 31
August 2010, a copy of which is attached to the Vendor’s Statement; and
9503423/2 page 39
Wallace Road Property means a lot situated at 95 Wallace Road to 139 Wallace
Road, Wantirna South (inclusive) and directly abutting the Site.
48.2 In this Contract, unless the context requires otherwise:
(a) a reference to any legislation or legislative provision includes any statutory
modification or re-enactment of, or legislative provision substituted for, and any
statutory instrument issued under, that legislation or legislative provision;
(b) the singular includes the plural and vice versa;
(c) a reference to an individual or person includes a corporation, firm, authority,
government or governmental authority and vice versa;
(d) a reference to any gender includes all genders;
(e) a reference to a thing includes the whole and each and every part of that thing;
(f) a reference to a party to this Contract includes that party's executors,
administrators, successors and permitted assigns;
(g) a reference to a condition, annexure or schedule is a reference to a condition,
annexure or schedule of this Contract; and
(h) "including" and similar expressions are not words of limitation.
48.3 In this Contract, headings are for convenience of reference only and do not affect
interpretation.
48.4 No provision of this Contract, which is capable of applying, continuing to apply or taking
effect after Settlement, merges on or by virtue of Settlement of this Contract or transfer
of the Land.
48.5 If a provision of this Contract is void or voidable, unenforceable or illegal but would not
be void, voidable, unenforceable or illegal if it were read down and it is capable of being
read down, then the provision must be read down. If, despite being read down, a
provision is still void, voidable, unenforceable or illegal and the provision would not be
void, voidable, unenforceable or illegal if words were severed, then those words must
be severed. In any other case, the whole provision must be severed. If any event
under this special condition occurs, then the remainder of this Contract continues in full
force and effect.
48.6 The Purchaser acknowledges that Mirvac may act as the Vendor’s agent in respect to
the exercise of any right conferred on the Vendor pursuant to this Contract.
9503423/2 page 40
Annexure A
Guarantee and Indemnity
TO: The vendor/s (Vendor) named in the annexed Contract of Sale (Contract)
The parties described in the Schedule as Guarantor (Guarantor), FOR VALUABLE CONSIDERATION, including the Vendor having agreed at the request of the Guarantor (acknowledged by this document) to enter into the Contract between the Vendor and the Purchaser (Purchaser), agree as follows:
1. Guarantee
The Guarantor unconditionally and irrevocably guarantees to the Vendor:
(a) punctual payment of all sums of purchase price, other money, interest and damages now or in the future owing, actually or contingently, by the Purchaser to the Vendor or which now or in the future there is a prospect may become owing
actually or contingently by the Purchaser to the Vendor, and
(b) punctual performance and observance of all the Purchaser’s obligations,
under, in relation to or arising from the Contract, its subject matter or any relationship
referrable to them, alone or jointly with any person (collectively Guaranteed
Obligations).
2. Vendor indemnified
The Guarantor irrevocably indemnifies the Vendor against all liability, damage, loss and expense which the Vendor suffers or incurs now or in the future because the Purchaser defaults in performance or observance of the Guaranteed Obligations.
3. Unconditional and continuing liability
The obligations under this document constitute a continuing guarantee for the whole of
the Guaranteed Obligations, and the Guarantor’s obligations (as guarantor, indemnifier or otherwise) and the Vendor’s rights will not be affected in whole or in part by anything which might abrogate, prejudice or limit them or the effectiveness of this document,
including without limitation, any of the following:
(c) any release, termination, variation, novation, renewal or assignment of the Contract;
(d) this document or any other security or guarantee now or in the future held by the Vendor for the Guaranteed Obligations (Collateral Security) or any other transaction or agreement between the Vendor and the Purchaser or any
obligation owed by the Purchaser to the Vendor in relation to the Guaranteed Obligations being void, voidable or otherwise unenforceable by the Vendor in accordance with its terms or the Vendor being estopped from receiving the
performance and observance of the Guaranteed Obligations from the Purchaser;
(e) the granting of any forbearance, time or other indulgence to or the making of any composition, compromise or arrangement with or the discharge or release of the
Guarantor, Purchaser or any other person;
9503423/2 page 41
(f) the failure of any person intended to be a Guarantor to become bound by this document (whether by a failure to execute, a lack of capacity to execute or
otherwise);
(g) the death, administration or mental illness of the Guarantor or the Purchaser;
(h) the amendment of the memorandum, articles of association, trust deed or other
constitutional document of the Guarantor or the Purchaser or any change in the membership of any partnership, joint venture or association of which the Purchaser or the Guarantor is a member;
(i) the Purchaser or the Guarantor becoming a member of a partnership, joint venture or association (whether incorporated or unincorporated);
(j) the fact that no demand for the performance or observance of the Guaranteed
Obligations has been made on the Purchaser or the Guarantor;
(k) any failure by the Vendor to disclose any information to the Guarantor or any representation made or information given by the Vendor to the Guarantor;
(l) the failure to give the Guarantor notice of default by the Purchaser or to obtain consent from the Guarantor to any arrangement or agreement made with the Purchaser;
(m) any breach of trust by the Guarantor or the Purchaser which is a trustee;
(n) the value of any Collateral Security or the value placed on it by the Vendor in the bankruptcy or insolvency of the Guarantor or the Purchaser;
(o) any negotiable or other instrument being in circulation or outstanding;
(p) the obtaining, release, variation or renewal by the Vendor of any Collateral Security or any agreement or arrangement affecting the priority of any Collateral
Security;
(q) any refusal or failure by the Vendor to obtain perfect, register, stamp, enforce or assign any Collateral Security or any negotiable instrument, judgment, order or
award relating to the Guaranteed Obligations, or
(r) any act or omission of the Vendor which prejudices the Guarantor.
4. Primary obligations of guarantor
Each obligation of the Guarantor under this document is a primary obligation. The
Vendor is not obliged to proceed against or enforce any Collateral Security or any other
right against the Purchaser or demand payment from the Purchaser before the Vendor
is entitled to enforce the Guaranteed Obligations.
5. Costs and duties
The Guarantor shall pay to the Vendor:
(a) the Vendor’s costs of and incidental to the preparation, execution and enforcement of this document on a solicitor/own client full indemnity basis; and
(b) any duty, taxes or registration or other fees payable or assessed in relation to this document.
6. Vendor’s certificate
A certificate by the Vendor or any attorney, agent, director, secretary or officer of the
Vendor relating to this document is, in the absence of manifest error, conclusive
evidence against the Guarantor of the matters certified.
9503423/2 page 42
7. Notices
Any demand or notice under this document may be signed by the Vendor or on behalf
of the Vendor by any attorney, director, secretary, manager or officer of the Vendor or
the Vendor’s solicitors and without prejudice to any other lawful mode of service, may
be served by delivering it to the Guarantor to whom it is addressed at the address set
out in this document, or by posting it to that address or the Guarantor’s residence or
place of business last known to the vendor, and if posted, a notice or demand shall be
deemed to have been served on the day following the date of posting, but the making of
a demand shall not be a condition precedent to the liability of the Guarantor under this
document.
8. Interpretation
In this document, unless the context otherwise requires:
(s) words importing the singular include the plural and vice versa;
(t) where the Guarantor comprises two or more parties, the Guarantor’s obligations
shall bind them jointly and severally;
(u) a reference to a person includes a corporation and a government body;
(v) a reference to a person includes the legal personal representatives successors
and assigns of that person;
(w) if there is more than one Guarantor or more than one Purchaser, a reference to the Guarantor or the Purchaser respectively means all or any of them; and
(x) a reference to any thing (including without limitation, any amount) is a reference to the whole or any part of it and a reference to a group of things or persons is a reference to any one or more of them.
9. Substituted contract
If the Vendor and the Purchaser substitute a contract (“substituted contract”) in place
of the contract to which this guarantee and indemnity is annexed, then this guarantee
and indemnity shall extend to a guarantee and indemnity of the substituted contract and
shall bind the purchaser under that substituted contract, and the definitions of purchaser
and contract shall be interpreted accordingly.
Schedule
Guarantor:
9503423/2 page 43
DATE: The day of 2013
EXECUTED as a deed
Signed, Sealed and Delivered by ) ) ) ) )
in the presence of:
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� ........................................................... Witness
........................................................... Signature of Guarantor
........................................................... Name of Witness (print)
Signed, Sealed and Delivered by ) ) ) ) )
in the presence of:
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� ........................................................... Witness
........................................................... Signature of Guarantor
........................................................... Name of Witness (print)
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