&nbsp;

A local Australian has spent a Lower North Shore record $15.1 million at <a href="https://www.apartments.com.au/new-apartments/elevate-hume-place-crows-nest-25-hume-street-crows-nest-nsw-2065">Elevate Hume Place</a>, the new TOD above the recently opened Crows Nest Metro Station.

The buyer amalgamated a penthouse and sub-penthouse to create the triplex apartment that will have five bedrooms, five bathrooms, a private rooftop pool, expansive terrace, and panoramic views of Sydney Harbour and skyline. The building is being created by burgeoning developer Third.i, alongside joint venture partner Phoenix Property Investors.

The buyer was drawn to Elevate’s unrivalled connectivity, situated directly above the&nbsp;<a href="https://www.apartments.com.au/developments/crows-nest-nsw-2065">Crows Nest</a> Metro Station, and the vibrant lifestyle precinct that surrounds it. The Metro connects to the CBD in just seven minutes, and Chatswood in four.

[smartcode_project:default project_id=142550 project_image_fid=309367]

Designed by internationally acclaimed architects <a href="https://www.apartments.com.au/architects/woods-bagot">Woods Bagot</a>, Elevate draws inspiration from the ancient blue gum forests native to the area. The building is a Net Zero development, created in consultation with Indigenous communities and exceeding sustainability benchmarks. Interiors feature chevron-engineered timber flooring, natural stone benchtops, and premium Sub-Zero Wolf appliances, delivering timeless elegance and next-level comfort.

The exchange of the $15.1 million apartment, follows a recent $5 million sale, and over $30 million currently in expressions of interests. Interest in Elevate’s penthouse stock has surged, reflecting a strong appetite for ultra-luxury residences that combine design excellence with unmatched connectivity.

[smartcode_project:default project_id=142550 project_image_fid=309369]

“We’re seeing a significant uptick in interest from local and international buyers who are prioritising connectivity, sustainability, and lifestyle,” said Callum Billinghurst, Head of Sales at Third.i Group.&nbsp;

“These recent sales are a testament to the vision behind Elevate. It’s not just about luxury finishes or panoramic views, it’s about creating homes that are deeply connected to the city and the community. Buyers are responding to that. They want to live somewhere that offers more than just a postcode, they want culture, convenience, and long-term value. Elevate delivers all of that, and more.”

[smartcode_project:default project_id=142550 project_image_fid=297878]

As part of the Hume Place precinct, Elevate is transforming Crows Nest into Sydney’s most dynamic urban village. Elevate’s unique position directly above the metro, combined with its curated amenity offering, has made it a magnet for buyers seeking a future-proof investment and a vibrant urban lifestyle.

The next release at Elevate is expected later this year.

[smartcode_project_cta:default project_id=142550]

“We’re seeing a significant uptick in interest from local and international buyers who are prioritising connectivity, sustainability, and lifestyle,” said Callum Billinghurst, Head of Sales at Third.i Group


Joel Robinson

Third.i & PPI set Lower North Shore apartment record with $15.1m sale at Elevate Hume Place penthouse amalgamation

Sydney developer Deicorp is set to officially open its <a href="https://www.apartments.com.au/new-apartments/hills-showground-village-castle-hill-2-mandala-parade-castle-hill-nsw-2154">Showground Village</a> precinct in Castle Hill.

NSW Premier Chris Minns will attend the opening on Sunday August 31, alongside&nbsp;Minister for Planning and Public Spaces Paul Scully, The Hills Shire Council Mayor Dr Michelle Byrne, Landcom CEO Alex Wendler, and Deicorp Founder Fouad Deiri.

Located just moments from Hills Showground Metro Station, the centre spans 9,500 sqm across four levels and features 26 specialty retailers as well as a 1,400 sqm public plaza, creating a new community meeting point for shopping, dining, fitness, and everyday convenience.&nbsp;

Showground Village forms part of the Hills Showground Station Precinct, an urban renewal initiative led by Landcom and Sydney Metro that will provide for around 2,300 new jobs over the next 20 years and around 9,000 new homes.&nbsp;

Deicorp was recently approved for another new development next door to Showground Village.

The new five residential buildings in the East Showgrounds Precinct, will see another 873 dwellings delivered, as well as&nbsp;3,500 sqm of open public space in the form of landscaped courtyards, a public park and communal outdoor recreational space including a playground, barbeque area, and outdoor seating.

“This approval will allow us to start construction on a range of beautifully designed, conveniently located apartments and create another vibrant, walkable and well-connected community,” said&nbsp;<a href="https://www.apartments.com.au/developers/deicorp" target="">Deicorp</a>&nbsp;Founder Fouad Deiri.

“These new homes will provide their residents with a seamless connection to jobs and services along Metro North West, and the new&nbsp;<a href="https://www.apartments.com.au/new-apartments/hills-showground-village-castle-hill-2-mandala-parade-castle-hill" target="">Hills Showground Village</a>&nbsp;retail precinct currently under construction."

Deicorp has several thousand apartments in planning and under construction across Sydney, from Zetland and Five Dock to Crows Nest and Macquarie Park.

[smartcode_project_cta:default project_id=133881]

Deicorp, NSW Premier officially open Showground Village, new retail and hospitality hub in Castle Hill

ASX-listed developer Cedar Woods is progressing its plans for its Southbank arts precinct site.&nbsp;

The developer has filed plans, which are now with the&nbsp;Department of Transport and Planning, for a new 20-level tower at&nbsp;<a href="https://www.apartments.com.au/new-apartments/141-151-sturt-street-southbank-vic-3006">141–151 Sturt Street</a>, a 2,718 sqm block opposite the Habitat Filter sculpture.

The proposal seeks to demolish the two-level&nbsp;commercial building, including a small supermarket and medical tenancies, and create a new building with 180 apartments and a focus on an&nbsp;active public realm and arts integration.

&nbsp;

<img alt="Southbank site" data-entity-type="file" data-entity-uuid="76a72db6-91ef-43ae-827d-a9cfa72893d2" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/Site.png?VersionId=DZgtB4K6BswVh0QtCs3iLjXaLp0CbcEb" />

&nbsp;

There will be a full mix of apartment configurations, including 28 studio apartments, 16 one-bedroom, 104 two-bedroom, and 32 three-bedroom units.

Retail, creative arts, and residential amenity functions are integrated across the lower levels. A food and drink tenancy is planned to front Dodds Street, while a retail tenancy fronting Sturt Street will be accessed via an elevated walkway. The first floor includes a substantial 734 sqm creative arts space, envisioned to support Melbourne’s growing cultural and digital industries.

Architecture firm <a href="https://www.apartments.com.au/architects/rothelowman">Rothelowman</a> has put together the plans. In their&nbsp;Urban Design Report they highlighted the project’s ambition to embed itself within Southbank’s evolving cultural fabric.

A central feature of the design is a through-block link connecting Sturt and Dodds Streets, landscaped with native plantings and embedded with universal access ramps.

“The ramp has been thoughtfully integrated as the primary access point, ensuring universal accessibility for all users,” the report noted, with the link offering “a direct response to the urban planning scheme of creating more green spaces within our communities”.

<img alt="Southbank podium" data-entity-type="file" data-entity-uuid="4d24b1b2-d69c-4a11-a11d-ec6df432221c" src="https://s3.ap-southeast-2.amazonaws.com/www.urban.com.au/s3fs-public/inline-images/podium.png?VersionId=geWoJyZDmPSLODZ_.PNJ0LvpOmyyCdpo" />

The building’s podium form responds to the mandatory height limits along Dodds Street and maintains a fine-grain interface to adjoining developments. Above the podium, the tower is articulated with recessed balconies and a focus on views toward the CBD and surrounding arts institutions. A communal rooftop recreation deck and indoor lounge are positioned on level four, adjoining seven apartments and providing over 900 sqm of resident amenity space.

Vehicle access and loading will be provided via Dodds Street, with 155 resident car spaces located across two basement levels and the first three above-ground floors. Bicycle storage is more generous, with 226 spaces distributed across resident, staff and visitor needs.

Rothelowman describes the architecture as “humanist,” with ground-level interfaces designed to encourage social interaction and provide a dignified entry for both residents and passers-by. “All street interfaces are crafted to invite and nurture human connections,” the design report states. “The façade transitions to a human scale, providing an approachable and engaging streetscape”.

Cedar Woods, while well-known for its large communities it develops outside of Australia's capital cities, they have recently developed in Melbourne's inner-ring before. They are approaching completion at <a href="https://www.apartments.com.au/new-townhouses/88-leveson-north-melbourne-88-leveson-street-north-melbourne-vic-3051">88 Leveson</a>, just 15 townhouses in the heart of North Melbourne.

Cedar Woods progresses with new apartment plans in Southbank arts precinct

Brisbane developers Core Property Partners and Vector Property Australia has teamed up for Brisbane's newest apartment development.

The duo identified <a href="https://www.apartments.com.au/developments/east-brisbane-qld-4169">East Brisbane</a> as their preferred suburb, on the fringe of the Gabba Precinct, where they've just revealed BANKSII, 72 apartments opposite Raymond Park.

[smartcode_project:default project_id=136432 project_image_fid=5481]

The one-, two-, and three-bedroom apartments will sit in a glass-wrapped building that will also feature a rooftop with an&nbsp;infinity-edge pool, a BBQ area and alfresco dining spaces, sun lounges, and a sauna, as well as a resident-only gym and a ground-floor cafe.

Rhett Williams, Director of Vector Property Australia, said the project will lift the quality of the East Brisbane community and set a new benchmark.

"In Brisbane’s current property landscape, <a href="https://www.apartments.com.au/new-apartments/banksii-east-brisbane-169-wellington-road-east-brisbane-qld-4169">BANKSII</a> stands out through its emphasis on lifestyle-oriented living, connectivity and sophisticated design," Williams says.

[smartcode_project:default project_id=136432 project_image_fid=5479]

The 10-level building has been designed by MAS Architecture. Their designs were inspired by the native Banksia flower, with the architecture and interiors reflecting the organic symmetry of its namesake flora. MAS has interpreted this throughout the building’s curved form, façade detailing and interior palette.&nbsp;

The building’s flowing geometry and natural tones are complemented by large balconies and floor-to-ceiling glazing, maximising cross-breezes, daylight and views over the city, parklands and river.

“Having a strong narrative for a building helps us architecturally,” MAS noted. "We can choose colours that come off that species of flowers. The trunk and the trees and the flower elements all are now visible in our joinery on the inside and in our architectural finishes on the outside."

[smartcode_project:default project_id=136432 project_image_fid=5485]

Apartments will feature timber floors, soft porcelain tiles, brushed bronze fittings, and stone benchtops with warm veining.&nbsp;

Kitchens feature premium SMEG appliances and generous storage, while bathrooms have been designed as calming retreats with curved cabinetry and twin sinks in the master ensuites.

The building will feature a suite of rooftop and wellness amenities. Residents will have access to an infinity-edge pool, BBQ and alfresco dining areas, sun lounges and a rooftop sauna.&nbsp;

A residents-only gym will be located on the podium level, while a ground-floor café and landscaped laneway will further activate the site and improve neighbourhood connectivity.

[smartcode_project:default project_id=136432 project_image_fid=5488]

BANKSII will rise from a prime Wellington Road site, with the building oriented to overlook the adjacent Raymond Park and take in extensive city views. It is also on the doorstep of key&nbsp;lifestyle infrastructure, including the future Kangaroo Point Green Bridge, The Gabba stadium, and the planned Brisbane Live arena.&nbsp;

Public transport options, including ferry, bus and rail - including the future Cross River Rail Woolloongabba station - are all nearby, supporting a car-optional lifestyle just minutes from the CBD.

Williams said the team spent over a year searching for the ideal site before securing this location.

"We were attracted to <a href="https://www.apartments.com.au/developments/east-brisbane-qld-4169">East Brisbane</a> as it is a vibrant and growing community that offers a perfect balance of urban convenience and natural beauty with the parklands and river on our doorstep.”

The project is part of the broader Woolloongabba Games precinct, which is undergoing significant investment in the lead-up to the 2032 Brisbane Olympics. This urban renewal, coupled with infrastructure upgrades, is expected to enhance long-term liveability and capital growth in the area.

Given the wide max of configurations, BANKSII is expected to suit everyone from first home buyers and investors to families and downsizers.

[smartcode_project_cta:default project_id=136432]

BANKSII sales launch in booming East Brisbane apartment market

The Minns Labor Government will deliver Sydney’s first new heavy rail station in more than a decade – enabling up to 10,000 new homes by rezoning land around Woollahra and Edgecliff stations, right next to the CBD, to tackle the housing crisis and rebalance growth across the city.

Recent reports by the NSW Productivity Commission have warned that Sydney is losing twice as many young people as it is gaining, while also finding that Woollahra is the most feasible Local Government Area (LGA) in New South Wales to build new housing.

Despite this, housing approvals in Woollahra consistently lag well behind other LGAs, and the population has declined by 11 per cent over the past 50 years while Greater Sydney as a whole has grown by 74 per cent.

The new station that will be an eight-minute trip from Sydney CBD, will be located on the Eastern Suburbs train line in Woollahra, where a station build was started in the 1970s but never completed.

To enable the delivery of new homes the NSW Government will lead a rezoning of Woollahra and Edgecliff stations similar to other state led rezonings to allow additional homes to be built around the stations.

Affordable housing will also make up a proportion of development on the site with the final amount of affordable housing required, to be determined as part of the rezoning process.

The area surrounding the new station is within walking distance of major green and recreational space including Cooper, Trumper, Rushcutters Bay and Centennial Parks.

The Eastern Suburbs train line between Bondi Junction and Sydney CBD also has the lowest passenger usage rates during the AM peak of any line on the Sydney network, with only 43 per cent of operating capacity during the AM peak currently being utilised by passengers.

Sydney Water and Infrastructure NSW have confirmed there is capacity in the water and wastewater systems to accommodate the proposed 10,000 dwellings without major upgrades.

The rezoning is expected to take around two years and will further support the Government’s housing targets that rebalance the delivery of new homes around existing infrastructure.

&nbsp;

&nbsp;

Next stop Woollahra train station - delivering up to 10,000 new homes in the heart of Sydney

Sunset clause

It&#39;s often written about in the media when talking about off the plan property - but what actually is a sunset clause?

Essentially, a&nbsp;sunset clause is a condition included in some contracts of sale&nbsp;to protect the buyer and seller. It effectively puts a time limit on the contract&rsquo;s validity.

Use of the sunset clause is open to the buyer or the seller, and either party can choose to invoke the clause if the expiry date has passed. If settlement has not taken place by the end date included in the contract, both parties are legally entitled to walk away and the buyer would receive their deposit back in full.

While sunset clauses may exist to offer security and protection for buyers when purchasing off-the-plan, they don&rsquo;t always pan out this way and can sometimes be manipulated, which is why being aware whether it is in your contract of purchase is crucial.

Buyers can get their money back should construction timelines blow out further than what was forecasted by the developer as per the contract.

However, while not frequent, but a much publicised practice, is developers pulling apartments back from buyers if they go over the agreed upon construction timeline. The allowance of this has seen developers drag their feet in the construction phase, so they can take the apartments back and re-sell them at a higher price than initially sold if the market has grown during construction.

That then unfortunately&nbsp;leaves the buyer without a leg to stand on. They will get their deposit back that they initially paid, and begin the hunt again, in a market where prices are potentially, 10, 20, or even 30 per cent higher than what they thought they were buying in to years earlier.

<h2>The breakdown</h2>

A sunset clause is generally used in one of two situations in off-the-plan developments.

Firstly, it is routinely included in off-the-plan property exchanges. In this context, the clause stipulates the date by which the developer must finish the project and that if it is not finished by the proposed date, the buyer is legally&nbsp;entitled to walk away from the contract and receive their deposit back in full.

Most of the time however, developments are finished well in advance of the outlined date, as developers often exaggerate the required timeframe to allow for delays.

Another time a sunset clause is often used is when a buyer makes a purchase conditional on the sale of their current home. The sunset clause is normally included here to protect the vendor, if the buyer fails to sell their current home within the timeframe outlined. In this context, a sunset clause protects the seller by offering them a way back onto the market, should the buyer take too long.

There are, however, cases where invoking the clause may be more difficult for one party than the other.

Legislation has been passed in some states to make it more onerous for building developers to invoke the sunset clause. In October 2015, the New South Wales Government legislated that a developer would require written consent from either the buyer or the Supreme Court if they wished to terminate the contract if the project was delayed. These changes have been made due to instances of some developers stalling projects when property prices skyrocket, backing out of contracts to then put the development back on the market at a higher price. The Victorian Government followed suit in 2018, preventing developers from using sunset clauses to intentionally delay building projects with the aim of exploiting buyers.

It is possible for two parties to come to a mutual agreement to extend the terms of a sunset clause.

<h2>Urban&#39;s advice</h2>

Be fully aware if there is a sunset clause in your contract. This should be discussed with your solicitor when signing the contract, and be aware of the construction date agreed upon in the contract.

As with all off the plan apartment development purchases, check the developers track record. It will be well covered if the developers has previously evoked a sunset clause and left previous buyers without their apartments.

While often as a buyer you will deal with the agent in charge of the sales, don&#39;t be afraid to call the developer if that puts your mind at east. They should have a website for the development with contact details.

At Urban we attempt to track every developer across Australia, and keep their track record on our site so buyers can see whether they have delivered previous projects.

Essentially, a sunset clause is a condition included in some contracts of sale to protect the buyer and seller. It effectively puts a time limit on the contract’s validity


alisonwarters@gmail.com

What is a sunset clause in off-the-plan developments?

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When buying a property – be it a detached dwelling or an <a href="/developments">off-the-plan</a> apartment, it’s essential to make sure you have your legal documents drawn up correctly. Which is why getting legal advice early in the process is so important. 

Here’s what a sound off-the-plan contract should include: 

<h2>A reasonable cooling-off period</h2>

The cooling-off period affords the buyer time to change their mind. Once this period ends, the buyer is legally bound to buy the property. 

In NSW, new legal protections (which came into effect in December 2019) give buyers a 10-business day cooling-off period. This period is longer than the usual five business days for most properties. Buyers who change their mind will forfeit 0.25% of the purchase price. The cooling-off period can be waived or shortened, but only if the buyer’s lawyer or <a href="/guides/a-new-step-by-step-home-buyer-checklist-for-2020-post-covid-19">conveyancer</a> provides a certificate to prove the buyer understands the consequences of varying the cooling-off period. This helps protect the buyer from exploitation. 

Make sure the cooling-off period in your contract is reasonable and in line with the legislation in your state. If the seller asks to shorten or waive it, give this a serious consideration first and talk to your lawyer or conveyancer about whether this is a good idea. 

<h2>The disclosure of key information by the developer</h2>

Your off-the-plan contract must include <a href="/news/everything-you-need-to-know-about-australias-25-000-homebuilder-grant-how-much-off-the-plan-homebuyers-could-save">key information about the project</a> such as proposed plans and specifications, a floor plan, a detailed list of fixtures and finishes, sunset clause dates, other conditional events, and draft by-laws.

Before signing the contract, ensure you have a thorough understanding of the plans and are satisfied with the level of disclosure. Make sure you have asked questions if you’re confused about anything listed in the plans. 

Remember that developers will almost always have a right to alter their plans, within reason, to complete the project. Make sure your conveyancer reviews the contract to make sure enough information has been disclosed and that only reasonable alterations are permitted. 

<h2>The ability to withdraw or be compensated if significant alterations take place</h2>

While the contract will require the property to be constructed in accordance with what is disclosed in the contract, developers usually have the right to alter things in certain circumstances. Those changes must be delivered at the same quality and must not materially prejudice the buyer. 

To mitigate the risk of the <a href="/news/why-is-design-important-is-bigger-better-a-developer-s-perspective">developer making alterations</a> which substantially change the quality of the project and disadvantage the buyer, the contract should be very clear on warranties and inclusions. It should also give the buyer the right to withdraw and have the deposit returned to them or claim compensation. 

In NSW, for contracts entered into from 1 December 2019, vendors must notify purchasers of changes outside of what was disclosed, and which will adversely affect the use or enjoyment of the lot being purchased. Make sure you seek legal advice on the rules in your state. 

<h2>Other things to consider:</h2>

Building/apartment defects 

Other parts of the contract that require <a href="/guides">close review</a> include how defects are treated. Ideally, it will be up to the developer to remedy defects prior to settlement. Your lawyer and conveyancer should review your contract to make sure you are protected. 

Deposits

You should also have a look at the rules in your state on who holds your <a href="/expert-insights/buying/build-your-deposits-to-grow-a-large-investment-portfolio">deposit</a>. In NSW, for example, deposits are held by the stakeholder (usually the real estate agent) and that money cannot be released to the developer before settlement. That protects the buyer in the event the developer becomes insolvent. 

Sunset clauses 

A <a href="/guides">sunset clause</a> provides a deadline whereby if the property has not been completed in time then the potential buyer’s deposit is refunded, and the contract is cancelled. The problem is that the clause has been exploited by developers who were delaying completion of projects in order to cancel contracts and re-sell properties at a higher price in a rising market. 

In NSW, new legislation has been introduced which requires that developers seek the buyers’ consent before ending contracts using the sunset clause. Alternatively, the developer will need to apply to the NSW Supreme Court to justify terminating the contracts. Seek advice from your lawyer or conveyancer on the sunset clause in your contract and the rules in your state. 

For both property investors and potential new homeowners, the <a href="/guides">concept of buying off-the-plan</a> is enticing due to its affordability and flexibility compared to buying an already existing property. However, it is important that you take all these considerations into account and seek legal/conveyancing advice before you sign the contract of your future home or investment property. 

Want to learn more about off-the-plan contracts? Leave a comment below.
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vivian_48447

Sign with confidence: How to ensure you have a sound off-the-plan contract

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<a href="https://www.premier.vic.gov.au/new-laws-pass-protecting-victorian-homeowners/">New laws have been passed</a> in Victoria under the Andrews Labor Government with the intent to protect <a href="/new-apartments">off-the-plan</a> buyers against negligent sunset clause arrangements, among other new bills included in <a href="https://www.parliament.vic.gov.au/legislation/343-legislation-and-bills/articles/1824-bills-this-week">The Sale of Land Amendment Bill 2019</a>.

The new sunset clause regulations will retrospectively come into effect from 23rd August 2018, ensuring both current and future <a href="/new-apartments">off-the-plan</a> homeowners will be covered.

Up until now, developers have been able to include a sunset clause provision in <a href="/new-apartments">off-the-plan</a> contracts, meaning that they can terminate the contract where the plan of subdivision hasn’t been registered by a specific date. This has led to exploitation by some accounts whereby the developer has deliberately delayed delivery of a project to terminate <a href="/new-apartments">off-the-plan</a> contracts and then resell the apartment for a higher price.

The new initiative will mean developers may only exercise a sunset clause if written consent is provided by the buyer or Supreme Court of Victoria.

<blockquote>
“We’re ensuring that current or future homeowners aren’t being ripped off by dishonest developers, being misled about the history of their property and that vendors who do the wrong thing are punished accordingly.”
</blockquote>

- Minister for Consumer Affairs Marlene Kairouz

New laws will also:

<ul>
<li>Prohibit public auctions of land before 1 pm on Anzac Day, bringing the industry into line with the standard restricted business hours for the day</li>
	<li>Strengthen the existing requirement for vendors or real estate agents to disclose material facts about a property, and enable guidelines to detail what a material fact is likely to be (for example, a property’s past history as a clandestine drug laboratory or the site of a homicide)</li>
	<li>Introduce greater protections for people who purchase options to buy land as part of a land banking scheme, including requiring money paid for options to be held in a trust</li>
	<li>Prohibit certain terms contracts and rent-to-buy arrangements, with significant fines and potential jail time for vendors and third-party intermediaries to act as a strong deterrent.</li>
</ul>
<blockquote>
“Knowing they have the law behind them will give families and young people peace of mind when investing in the often-intimidating property market.”
</blockquote>

- Minister for Consumer Affairs Marlene Kairouz
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Olivia Round

New changes to sunset clause provide more protection to Victorian off-the-plan buyers

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The Australian Securities and Investments Commission has remade Class Order Mortgage schemes – Chapter 5C and disclosure relief, which was due to expire on October 1.
The new instrument, ASIC Corporations (Mortgage Investment Schemes) Instrument 2017/857, continues to provide:
<ul>
<li>scheme registration, licensing, disclosure, and hawking relief for certain small-scale schemes with no more than 20 members;</li>
<li>scheme registration relief in relation to individual mortgages in a scheme; and</li>
<li>withdrawal-related relief for individual mortgages in a scheme.</li>
</ul>
ASIC has temporarily extended the relief for small, industry-supervised schemes. The Legal Profession Uniform Law as it applies to the promotion and operation of managed investment schemes by law practices is due to come into force on 1 July 2018. 
The regulator said it will review the extension within 12 months of issue and assess whether it should be remade and, if so, whether it is operating effectively and efficiently.
ASIC has not continued the transitional 'run-out' relief as it was no longer necessary.
The relief was remade following public consultation in Consultation Paper 287 Remaking ASIC class order on mortgage schemes and proposed relief for multiple withdrawal periods (CP 287), issued in June 2017.
All respondents were supportive of the proposals in CP 287. ASIC has included material in the explanatory statement for the new instrument to provide clarity regarding:
<ul>
<li>the status of the temporarily extended, industry-supervised scheme relief if section 258 of the Legal Profession Uniform Law comes into effect; and</li>
<li>the scope of the withdrawal-related relief for individual mortgages in a scheme.</li>
</ul>
Under the Legislation Act 2003, all class orders are repealed automatically or 'sunset' after a period of time (mostly 10 years) unless we take action to preserve them. 
All government organisations are responsible for considering whether the legislative instruments they have made that are due to sunset will be relevant after their sunset date.
 
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jonathanchancellor-7SQnKwU6yx

ASIC remakes 'sunsetting' class order about mortgage schemes

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GUEST OBSERVER
The Conveyancing Amendment (Sunset Clauses) Act 2015 came into effect on 2 November 2015, as the new division 10 s66ZL of the Conveyancing Act 1919 (NSW).
The amendments require vendors to either obtain the consent of all of the purchasers before they can rescind an off-the-plan contract in reliance on a sunset clause in the contract, or alternatively, obtain the permission of the Supreme Court to rescind.
These new laws apply to all attempts to rescind for sunset dates in all off-the-plan contracts for sale of residential lots in New South Wales after 2 November 2015, no matter when the contract was entered.
The Case
Jobema Developments Pty Limited v Zhu &amp; Ors [2016] NSWSC 3 is the first case in which the Supreme Court had a developer's request to rescind a contract in reliance of a sunset clause for an off-the-plan property since new laws came into effect. The Court rejected the developer’s application to rescind a contract pursuant to a sunset clause.
Background
Mr Wu (defendant) entered into the contract with Xycom, the original vendor, on 6 December 2013, to purchase a home unit off-the-plan. It was in a 14 storey property development project for 72 residential units and 7 commercial lots in Dora Street, Hurstville. The sunset date for the registration of the Strata Plan was 31 December 2015. After that date, either party had 14 days to rescind the contract. The developer’s right to rescind the contract was qualified by the requirement to ‘use all reasonable endeavours to have the Strata Plan registered by the sunset date'.
However, although Xycom obtained the development approval, they carried out little to no construction work after entering into the contracts to the Purchasers. Subsequently, in October 2014, Xycom sold the development site to Jobema Developments (plaintiffs) which settled in January 2015. The sale was subjected to the existing off-the-plan sale contracts, which were novated to Jobema. Jobema assumed the development and other obligations of Xycom under the existing off-the-plan contracts, however was unable to get the strata plan registered within the contemplated time in the contract. 
On 1 December, Jobema served a notice to Mr Wu proposing to rescind the contract under s66ZL(4):
"Jobema is proposing to rescind the contract because:
<ol>
<li>Since the date that the Contract was entered into, construction costs have increased significantly;</li>
<li>(Xycom) did not advance the property to the time that Jobema acquired it in 2015;</li>
<li>The contract does not meet the financial requirements for funding the project in 2015;</li>
<li>Jobema has offered [Mr Wu] the opportunity to continue with the purchase at a new price which reflects 2015 current market conditions;</li>
<li>[Mr Wu] [has] elected not to continue on the basis set out in paragraph (d);</li>
<li>Jobema has the opportunity to sell the property in the Contract at a price which reflects the 2015 market and takes into account the increased construction costs referred to in paragraph (a).</li>
</ol>
The lot which is the subject of a Contract has not yet been created for the following reasons:
<ol>
<li>From the date of the Contract until 5 February 2015 [Xycom] carried out little or no physical work for the Project;</li>
<li>Since 5 February Jobema has entered into contracts to sell other lots in the Project in order to secure finance for the Project;</li>
<li>Jobema has commenced physical works but anticipates that the lot will not be created until sometime in 2017.”</li>
</ol>
Mr Wu did not consent to the rescission and Jobema applied to the Supreme Court under s66ZL of the Conveyancing Act seeking the Court’s permission to rescind the contract pursuant to the sunset date clause contained in the contract. 
The Court's Decision 
Justice Black of the Supreme Court found against the developer in all factors outlined in s66ZL.
In s66ZL(7)(g) – any other matters or factors that the Court may consider to be relevant, the developer raised two matters:
<ol>
<li>That there was an increase in construction costs that affected the construction funding. However, the Court noted that ‘an inability to rescind’ the contract would not affect the availability of construction finance – it would only result in a requirement ‘to contribute additional capital to meet its lender’s requirements’.</li>
<li>That the new Sunset Clause Law was unforeseeable when Jobema purchased the property from Xycom, and thus Jobema’s rights should not be restricted. The Court disagreed, stating that legislative change is generally a foreseeable risk of business activity.</li>
</ol>
Not Just and Equitable
An order under s66ZL(6) of the Act is only made if the Court is satisfied that the order is just and equitable in all the circumstances to do so. Whilst the Court accepted that the evidence indicated that since buying the site in 2014, Jobema had exercised diligence in progressing the construction of the site, the court was unable to disregard Xycom’s lack of diligence in considering an order where Jobema had expressly assumed Xycom’s obligations. 
The Court dismissed the application for an order allowing the developer to rescind for the sunset date under s66ZL(6) because it was not satisfied that it was just and equitable to make the order.
Importance
The reason sunset clauses are included in “off-the-plan” contracts is to protect both parties and prevent contracts with no end date from going for too long. The new laws do not prohibit or discourage sunset clauses, however they do put the onus on the developer to show that the rescission is just and equitable (s66ZL(6)) when the purchaser does not consent to the rescission. 
The Court took into account the prescribed factors laid out in s66ZL of the Act, including that it will look at what was done by the present vender developer and also what was done by the prior vendors. This case serves as guidance as to how the Court is likely to interpret these new provisions of the Act in the future. 
If you have any queries regarding Sunset Clauses or this case please do not hesitate to contact TressCox Lawyers <a href="https://www.tresscox.com.au/" target="_blank">here</a>.
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Property 101: Developer's application to rescind contract rejected in first case on new Sunset Clause Laws 

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GUEST OBSERVER
The Urban Development Institute of Australia (UDIA) NSW urges the state government to conduct an independent review into the reported misuse of sunset clauses in off-the-plan property contracts to understand how widespread the issue is.
The state government needs to establish how many incidences there have been of developers purposely rescinding contracts after the sunset clause to sell properties at a higher price, and who these operators are. As far as I am aware, such behaviour is not common practice. 
Our view is if this is happening, and it’s rare that it does happen, then it needs to be stopped because people act in good faith they expect the counter party to act in good faith, and we have to resolve this issue
It is crucial that the government does not base its policy responses on anecdotal reports. 
We need an independent review into the problem before making any policy changes to understand the extent of the problem. 
Any reform to the Conveyancing Act 1919 would need to consider implications to housing supply as it could impact on the ability to raise development finance. 
The government’s proposal to allow only purchasers the option to rescind contracts during the sunset clause could have a negative impact on a project investor’s ability to secure finance to build homes because of the increased risk. 
The market is also rising now, but if and when it dips, purchasers should not have the option to rescind a contract simply because a dwelling is worth much less than it was when they entered into it. 
Any new legislation must be measured and balanced, and before any changes, it’s vital the government establishes the scope of the issue.
It is also important that reputable developers who deliver a project beyond the sunset clause because of reasons beyond their control – such as delays getting applications through councils or financing issues – do not get penalised. 
The Urban Development Institute of Australia NSW is the state’s leading property industry body. It advocates for better planning; timely and affordable housing, and the building of vibrant communities to increase local job opportunities.  
Stephen Albin is chief executive of UDIA NSW and can be contacted <a href="https://www.udia.com.au" target="_blank">here</a>.
 
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