National diversified developer Fortis has officially launched Crest &amp; Walker, its latest Brisbane apartment development, with construction now underway on the 20-storey Newstead project.

Award-winning builder BINAH has commenced construction on the Bureau^Proberts-designed building, which will deliver a limited collection of 65 two and three-bedroom apartments on Kyabra Street.

[smartcode_project:default project_id=145922 project_image_fid=373556]

The project marks Fortis' fourth active residential development in Brisbane, following River House, which is nearing completion, alongside projects in New Farm and Hamilton as the national developer continues to expand its South East Queensland pipeline.

Fortis General Manager – Development Queensland Dan Boman said Crest &amp; Walker reflects the developer's long-term commitment to delivering design-led residential projects in Brisbane's established inner-city suburbs.

"We're proud to be strengthening our presence in Brisbane with Crest &amp; Walker, particularly in such a sought-after lifestyle destination as Newstead," Boman said.

"Every Fortis project is shaped by its context, and we approach each one with the respect and care it deserves.

"Our focus is always on creating places that feel connected to their neighbourhood and elevate the everyday experience for residents. Newstead continues to evolve as one of Brisbane's most sought-after urban communities, and Crest &amp; Walker reflects our ambition to contribute meaningfully to that story."

[smartcode_project:default project_id=145922 project_image_fid=373559]

Positioned between Gasworks Plaza and James Street, <a href="https://www.apartments.com.au/new-apartments/crest-walker-newstead-12-kyabra-street-newstead-qld-4006">Crest &amp; Walker</a> has been designed as a boutique residential address offering privacy and generous living spaces within one of Brisbane's most established lifestyle precincts.

The building features a contemporary brick podium softened by integrated landscaping, while the upper levels are characterised by restrained architecture and enduring materiality. Interiors have been designed to maximise natural light, acoustic performance and long-term liveability.

[smartcode_project:default project_id=145922 project_image_fid=373583]

Residences comprise spacious two and three-bedroom floorplans, with two-bedroom apartments priced from $1.55 million and three-bedroom, half-floor residences from $3.95 million.

Residents will have access to a wellness-focused rooftop featuring a swimming pool, sauna, steam room, landscaped dining spaces and outdoor lounge areas overlooking Newstead and the Brisbane CBD.

[smartcode_project:default project_id=145922 project_image_fid=373571]

Sales are being managed by Slaite Projects, with Fortis expecting strong demand from owner-occupiers seeking a high-quality, design-focused apartment in one of Brisbane's most tightly held inner-city suburbs.

Completion of Crest &amp; Walker is slated for late 2028.

[smartcode_project_cta:default project_id=145922]

Joel Robinson

Fortis expands Brisbane pipeline with launch of Crest & Walker in Newstead

The enormity of delivering a true skyscraper in Australia's new development market is often overlooked.

It has taken the best part of a decade since plans for Chevron One were first unveiled, but the 52-storey tower is now complete, with residents collecting their keys and moving into what has become one of the Gold Coast's most recognisable new landmarks.

Rising 127 metres above Chevron Island, Chevron One stands almost twice as high as any other building on the island. Its scale places it alongside the trio of towers at Jewel, arguably the last truly significant addition to the central Gold Coast skyline when they were completed around six years ago.

While there are several developments underway around a similar height to Chevron One, they are more concentrated within clusters of the highest towers in the city. The fact Chevron One sits within a developing precinct, looking back at the other high-rise developments in Surfers Paradise and Broadbeach, makes it a different proposition altogether. It will certainly become a reference point on the Gold Coast skyline.

[smartcode_project:default project_id=6515 project_image_fid=68833]

Developer Bensons Property Group is behind the 52-storey tower, which has just shy of 250 apartments, along with an exhaustive list of resident amenity spread across what is the largest development site ever assembled on Chevron Island.

The tower has been the talk of the town for years, says Ray White Projects Gold Coast agent Caitlin Rosenboom, who is selling the remaining apartments.

"People have been watching Chevron One go up for years," Rosenboom says, adding that many prospective buyers have been surprised by the scale of the views once they step inside.

"It's only when they walk through a completed apartment that they truly understand the position of the building," Rosenboom says.

"The views are jaw-dropping. Whether you're looking east over the ocean, across Surfers Paradise, along the river systems or out to the hinterland, every level offers something different but equally impressive."

[smartcode_project:default project_id=6515 project_image_fid=360215]

One of Chevron One's defining advantages is its location on the eastern side of Chevron Island on Stanhill Drive, a position which protects the views forever.

"There's only one row of houses between Chevron One and the water, and the height restrictions along the river means views from Chevron One can never be built out,"&nbsp;Rosenboom says.

While new apartment developments continue to emerge across the Gold Coast, Rosenboom says opportunities to secure a completed apartment with this level of outlook are becoming increasingly rare.

"The size of the site is something that would be incredibly difficult to replicate today," she says.

"That's allowed Chevron One to deliver the sort of amenity, open space and resident facilities that very few projects can offer. There are not many completed apartment buildings on the Gold Coast right now that can compete with the combination of scale, quality and amenity."

[smartcode_project:default project_id=6515 project_image_fid=68839]

There's around 2,000 sqm of amenity solely for the use of residents of Chevron One. Club One features a uniquely shaped swimming pool that mirrors the footprint of the building itself, set within a extensively landscaped gardens. There's also an indoor pool and spa, a fully equipped gym with a Pilates room, a yoga garden, a bookable private dining area and lounge that can host up to 30 people, and a 24-hour concierge service.

As for the buyers, Rosenboom is fielding enquiry from everywhere: Sydneysiders and Melburnians looking at the new and off-the-plan market following the changes in the Federal Budget, as well as those looking to relocate, through to South East Queenslanders seeking either a permanent home or a weekender bolthole.

"The Gold Coast lifestyle continues to resonate with people relocating from the southern states, and when they see the views and the quality of what's been delivered at Chevron One, it becomes very easy for them to understand the appeal," Rosenboom says.

A diverse mix of one, two and three-bedroom apartments remain available, with each offering "something a little different", be it the orientation and views, configuration, or level, to suit a wide variety of buyers.

The remaining apartments are ready to inspect in person, by appointment.

[smartcode_project_cta:default project_id=6515]

A decade in the making: Residents to move into Chevron One as construction wraps up

A general rule of thumb in new apartment developments is that the penthouses get the rooftop.

It's a formula that's become commonplace across Australia's apartment market. Residents might have access to a pool, gym or barbecue facilities on a dedicated lower level, but the most desirable outdoor spaces are typically reserved for the highest-priced homes at the top of the building.

<a href="https://www.apartments.com.au/developers/sherpa-property-group">Sherpa Property Group</a> has taken the opposite approach.

Rather than dedicating the rooftop to a handful of buyers, the Gold Coast developer has made it the centrepiece of its Flourish collection, creating expansive shared spaces from the best vantage point in the building.

The philosophy has reached its most ambitious expression at <a href="https://www.apartments.com.au/new-apartments/flourish-soleira-palm-beach-1150-1160-gold-coast-highway-palm-beach-qld-4221">Flourish Soleira</a> in Palm Beach, where two rooftop precincts connected by a skybridge will deliver one of the most extensive lifestyle offerings seen in a residential apartment project on the Gold Coast.

[smartcode_project:default project_id=150017 project_image_fid=374053]

"We're seeing a clear move toward developments that offer more than just an apartment," Sherpa Group founder Christie Leet said.

"People want spaces that support how they actually live, whether that's working from home, staying active, or spending time with family and friends.

"That's where amenity becomes critical. It's not just about what's included, but how those spaces are designed to be used every day."

[smartcode_project:default project_id=150017 project_image_fid=374052]

The breadth of amenity has already attracted buyers across multiple demographics. Younger first home buyers have been drawn to Soleira's one-bedroom apartments, a product rarely delivered in Palm Beach, while families have responded to practical inclusions such as the shallow children's pool adjoining the main lap pool and the extensive communal recreation areas.

Instead of a single rooftop, Soleira delivers two distinct lifestyle zones.

[smartcode_project:default project_id=150017 project_image_fid=372547]

The southern rooftop has been dedicated to wellness, featuring a gym, yoga and Pilates studio, work-from-home facilities, a wellness centre, spa, and hot and cold plunge pools.

The northern rooftop focuses on recreation and entertaining, incorporating a heated resort-style pool, private dining rooms, pizza ovens, barbecues, a golf simulator, children's recreation areas, and what is expected to be the Gold Coast's first rooftop basketball court, which will also double as a squash court.

[smartcode_project:default project_id=150017 project_image_fid=374054]

Beyond the rooftops, Soleira will introduce 1,500 sqm of curated retail beneath the towers, creating one of Palm Beach's first genuinely mixed-use lifestyle precincts where cafés, restaurants and convenience retail become part of residents' everyday lives.

Sherpa has also retained management rights across the development, allowing it to oversee the long-term operation of the building through a 24-hour concierge model. The developer is also exploring additional revenue streams within the precinct aimed at helping offset ongoing body corporate costs for residents.

[smartcode_project:default project_id=150017 project_image_fid=370962]

While Soleira is the largest project Sherpa has delivered, the rooftop-first philosophy has been evolving for several years.

It began with <a href="https://www.apartments.com.au/new-apartments/amargo-6-12-sixth-avenue-palm-beach-qld-4221">Flourish Amargo</a>, the first project released under the Flourish brand. Rather than competing at the ultra-luxury end of the market with oversized half-floor and full-floor residences, Sherpa focused on creating lifestyle-driven apartments supported by resort-style shared spaces.

Amargo introduced more than 800 sqm of rooftop amenity, combining wellness facilities, heated pools, entertaining areas, cabanas, pizza ovens and private dining spaces into what was designed as an extension of residents' homes rather than a facility used only occasionally.

[smartcode_project:default project_id=146527 project_image_fid=366550]

That approach continued with Flourish Oasis, where the same amenity-led philosophy was refined into a more boutique development. Strong demand from Sherpa's growing VIP database saw much of the project sold before it reached the broader market, reinforcing buyer appetite for apartment communities centred around shared lifestyle experiences.

Flourish Amargo is slated for completion mid-way-through next year, with Oasis to be delivered by late 2027. Flourish Soleira is expected to complete in 2030.

[smartcode_project_cta:default project_id=150017]

Sherpa takes amenity to the sky as Flourish Soleira captures booming Palm Beach demand

As apartment living continues to evolve across Sydney's growth corridors, the quality and distribution of shared spaces is increasingly shaping how residents experience home. Rather than functioning as add-ons, amenities are being embedded into the daily rhythm of a building, supporting everything from quiet retreat to social interaction, often within a single vertical community.

At <a href="https://www.apartments.com.au/new-apartments/aeris-melrose-park-nursery-street-melrose-park-nsw-2114">Aeris</a> in Melrose Park, this approach is resolved through a layered amenity offering that unfolds from ground level through to its upper podium. Developed by <a href="https://www.apartments.com.au/developers/sekisui-house-australia">Sekisui House Australia</a> in partnership with Hankyu Hanshin Properties, the project introduces 468 apartments across two towers and a mid-rise building, positioned at the highest point of the broader masterplan.

[smartcode_project:default project_id=426 project_image_fid=359199]

The amenity experience begins at street level, where two courtyards sit within a landscaped setting that connects residents to the wider network of parks and green spaces. These green spaces are not isolated pockets but part of a wider pedestrian network that links Aeris to the surrounding <a href="https://www.apartments.com.au/developments/melrose-park-nsw-2114">Melrose Park</a> precinct, including Central Park, future schools, and the Town Centre opening in July 2026. The result is a transition that moves from public to private without abrupt boundaries, allowing residents to pass through shaded, tree-lined environments before reaching the building itself.

Moving upward, the focus shifts to the level five podium, where the primary communal facilities are concentrated. This space brings together a 16-metre swimming pool, outdoor seating areas, and a communal BBQ zone arranged to take advantage of elevated outlooks. Seating is positioned beneath pergolas, creating pockets of shade that extend the usability of the space throughout the day. The pool edge aligns with views toward the wider district, reinforcing the sense of elevation that defines the project’s positioning.

In the adjacent building, this is complemented by quieter, more contemplative spaces, including an outdoor cinema set within the same level. Positioned to operate primarily in the evening, it introduces a different tempo to the shared environment, shifting from daytime activity to after-hours use without requiring separate zones.

[smartcode_project:default project_id=426 project_image_fid=360299]

The podium also accommodates an intimate private resident gym. Located on the lower levels, it gives residents convenient access to fitness facilities without leaving the building.

Above, the elevated podium sky deck extends the amenity offering, providing additional open-air spaces with elevated outlooks across the surrounding landscape. While more restrained in program, this upper level reinforces the project’s vertical progression, from ground-level greenery to elevated outlook, allowing residents to move between distinct spatial conditions within a single address.

This distribution of amenities reflects a deliberate response to how residents use space across the day. Sekisui House Australia Sales and Marketing Director Peter Kalaf points to the role these shared areas play in shaping buyer demand. Aeris has been conceived as more than a collection of apartments, with the podium pool, gym and outdoor cinema forming part of a broader lifestyle offering that extends the home beyond each individual residence.

[smartcode_project:default project_id=426 project_image_fid=360300]

What distinguishes Aeris is not the inclusion of these elements individually, but how they are arranged in relation to one another. Active, social, and passive spaces are layered vertically rather than separated, allowing residents to choose between them without leaving the building or moving far from their apartment. This proximity supports both routine use, such as a morning swim or evening workout, and more occasional gatherings, whether around the BBQ area or within the cinema setting.

The amenity design also sits within a broader framework of connectivity across Melrose Park. The Melrose Park Town Centre, anchored by Coles and Dan Murphys, features a mix of retail, dining, health and lifestyle offerings, bringing everyday convenience closer to residents. By the end of the year, more than five hectares of parks and open space, equivalent to around seven football fields of green space on residents' doorstep, will further enhance the precinct, allowing the internal facilities at Aeris to operate as an extension of the wider neighbourhood rather than a substitute for it.

Construction at Aeris continues to gather momentum, with ground floor slabs expected to be completed in late 2026 before the first sections of the buildings begin to rise above ground.

[smartcode_project_cta:default project_id=426]

Elevated amenity anchors daily life at Aeris, Melrose Park

Repeat buyers are one of the strongest measures of confidence in any apartment development.

At <a href="https://www.apartments.com.au/new-apartments/era-newcastle-west-124-126-bull-street-newcastle-west-nsw-2302">ERA</a> in Newcastle West, some purchasers are returning to <a href="https://www.apartments.com.au/developers/gwh">GWH</a> after living at the developer's One Apartments. Their decision to purchase again was driven by the quality of life they found after moving into their first GWH home.

Keith Wilton had spent years living in a house in East Maitland before deciding it was time for a change. Apartment living had always been on his radar, but he was selective about what he wanted.

<iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share" allowfullscreen="" frameborder="0" height="315" referrerpolicy="strict-origin-when-cross-origin" src="https://www.youtube.com/embed/FH_1EzB-1vs?si=XScVlP1ERsTDJoME" title="YouTube video player" width="560"></iframe>

"I had some boxes I wanted to tick," he says.

Keith points to the open-plan design, generous outdoor areas and considered inclusions as key reasons One Apartments worked for him.

“One of those things was a nice indoor open plan area, but also I wanted a nice outdoor open area that I could entertain on in summer or Christmases or birthdays,” he says.

He also found value in the smaller details, from integrated appliances to shared resident spaces including the pool, cinema and rooftop areas.

[smartcode_project:default project_id=135096 project_image_fid=356818]

After comparing several developments, he chose One Apartments because of GWH's longstanding local reputation and his own experience working with the developer on a commercial project more than a decade earlier.

"I knew that they were local, that the quality of the build was going to be up there. I'd looked at other apartment complexes around and close by, and I just knew that here was a better decision location wise."

Today, Keith says the move has completely changed how he experiences Newcastle.

"I enjoy living in this location because it's more of a lifestyle change. That Newcastle city living where you can walk to restaurants and bars and even beaches and parks and even shopping across the road."

[smartcode_project:default project_id=135096 project_image_fid=356828]

Beyond the location, he says it's the sense of community that has surprised him most.

"Everyone loves living here because they chose to live here, but everyone looks out for each other. It's a real great community feel here."

For Aimee and Lyle Goodman, the journey started almost by chance.

<iframe allow="accelerometer; autoplay; clipboard-write; encrypted-media; gyroscope; picture-in-picture; web-share" allowfullscreen="" frameborder="0" height="315" referrerpolicy="strict-origin-when-cross-origin" src="https://www.youtube.com/embed/tsioMLcnjas?si=zq-ys3JuWpfa5hFv" title="YouTube video player" width="560"></iframe>

The couple happened to be having coffee in Newcastle when they noticed the site where One Apartments was about to begin construction.

"We were aware GWH was planning a development," Aimee says. "We made one phone call and things moved pretty quickly after that."

As busy business owners, they initially thought apartment living would simply reduce the maintenance that came with larger homes. Instead, it fundamentally changed how they spent time together.

"We actually catch up more as a family now," Aimee says.

"We've had homes with big yards and lots of space, but everyone ended up in different rooms. Here we'll have dinner together, the kids can play, and we spend far more quality time together."

[smartcode_project:default project_id=135096 project_image_fid=356829]

Lyle says their confidence came from GWH's reputation within Newcastle's building industry.

"I know people who've worked across different apartment projects, and whenever GWH came up the feedback was always the same. They're rock solid. They're quality."

That confidence only grew throughout the buying process.

"One of the things that really impressed us with GWH was the whole process, was the communication," Lyle says. "It was consistent, it was regular, there was no problem if we had some weird questions, there was no problems in getting answers."

[smartcode_project:default project_id=135096 project_image_fid=351104]

Aimee says one moment stood out.

"The project actually finished on time. We realised we needed to hurry up and sell our house because everything was happening exactly when they said it would."

The positive experience at One Apartments ultimately gave all three buyers the confidence to purchase again with GWH, this time at ERA.

Their confidence reflects what many buyers are seeking in today's apartment market. Location remains important, but so too does certainty around delivery, quality and long-term liveability.

[smartcode_project:default project_id=135096 project_image_fid=356822]

ERA builds on those foundations with 280 one, two and three-bedroom apartments across two landmark towers in <a href="https://www.apartments.com.au/developments/newcastle-west-nsw-2302">Newcastle West</a>.&nbsp;

Designed by <a href="https://www.apartments.com.au/architects/fk-australia">Fender Katsalidis</a>, the project will include more than 2,000 square metres of resident amenities, including a resort-style pool, gym, sauna, private cinema and rooftop entertaining spaces overlooking the harbour and coastline.&nbsp;

The development is also within walking distance of the Newcastle Interchange, Honeysuckle, Darby Street, the harbour foreshore, restaurants, retail and the city’s beaches, continuing the walkable lifestyle that existing GWH buyers say has transformed how they live.

[smartcode_project:default project_id=135096 project_image_fid=356826]

For Keith, the appeal remains straightforward.

"You feel at home even before you've moved into your home."

For Aimee, the change is measured in time.

“I just felt like I had more time,” she says.

[smartcode_project:default project_id=135096 project_image_fid=351102]

Construction at ERA is now underway, with more than half of the residences already sold and limited two and three-bedroom apartments remaining in the East Tower release. Priced from $980,000 for two-bedroom residences and $1.46 million for three-bedroom residences, buyers can secure an apartment with a 10 per cent deposit, with premium homes offering ocean views from Level 8 and harbour views from Level 10.

ERA is also backed by Resilience Insurance's 10-year Latent Defects Insurance policy, providing protection against structural or waterproofing defects for 10 years after completion. The project is anticipated to be completed in early 2028.

[smartcode_project_cta:default project_id=135096]

From ONE to ERA: Why buyers are choosing GWH again in Newcastle West

Legal

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The latest NSW 2014 edition of the Contract for Sale and Purchase of Land features a number of changes to the 2005 edition, including new clauses on electronic conveyancing.
The new 2014 edition of the Contract for Sale and Purchase of Land was issued by the Joint Copyright Holders, Law Society of New South Wales and the Real Estate Institute of New South Wales, last month.
While the 2005 edition of the contract was issued in both paper and electronic formats, the new contract has been released in an electronic format only, <a href="https://www.cbp.com.au/People/Gary-Newton?utm_source=Mondaq&amp;utm_medium=syndication&amp;utm_campaign=author-bio-link">CBP Lawyers</a> has advised.
Although the contract is largely the same as the 2005 edition, it contains a few changes:
<ul>
<li>The contract has been renamed, from "Contract for Sale of Land" to "Contract for Sale and Purchase of Land". </li>
<li>The front page of the contract has a few changes, including the addition of buyer's agent as well as storage spaces as an improvement and solar panels as a possible inclusion. </li>
<li>There are a few new boxes to tick, including the vendor agreeing to accept a deposit bond and the parties electing to use the new electronic conveyancing for completing the purchase. </li>
<li>One change that was badly needed was the removal of references to "vendor's duty". Although it was still relevant at the time the 2005 edition was being prepared, shortly after release the vendor's duty was scrapped. </li>
<li>A new clause on "breach by the vendor" has been added. This new clause 8.2 is important because in the previous drafts of the contract there had been extensive clauses in relation to termination for default by the purchaser, but there was no corresponding clause in relation to default by the vendor. This lack of mutual breach clauses could be seen as being an unfair contract term. The new clause restores the balance. </li>
<li>There is a new clause 30 on electronic conveyancing. Given the rollout of electronic conveyancing over the last year and the fact that it is expected that the first settlements of transfers in NSW will occur using the new electronic system at the time of publication of this article, the joint copyright holders thought it would be a good idea to put in an extensive clause that dealt with all of the key steps and processes required in order to complete a matter using the new electronic conveyancing.</li>
</ul>
Gary Newton, a partner at CBP Lawyers<a href="https://www.cbp.com.au/People/Gary-Newton?utm_source=Mondaq&amp;utm_medium=syndication&amp;utm_campaign=author-bio-link"></a>, says the new clause 30 on electronic conveyancing sets out a mechanism for the party's representatives to confirm if it is proposed that the matter will proceed using electronic conveyancing and a mechanism for a party's representative to notify the other party that the matter will need to default to the paper environment, as well as the payment of fees and costs associated with that change.
The electronic conveyancing clause sets out:
<ul>
<li>How to go about creating the work space </li>
<li>How to populate the work space with data </li>
<li>How to send certain invitations to join the work space </li>
<li>Subsequent communications between the parties as they prepare for settlement </li>
<li>Time frames for the supply of adjustment figures, completion of a financial settlement schedule and digital signings of all things necessary for each settlement</li>
</ul>
Newton, who is the author of the new book Real Property Law (4th edition, 2014) and is the co-author and co-editor of a new book titled Annotated Conveyancing of Real Property Legislation in NSW, noted the new clause 30 on electronic conveyancing provides a default mechanism for the provision of settlement documents outside the work space if not otherwise agreed by the parties and sets out the consequences of the computer systems of the land registry, the Reserve Bank of Australia or the electronic platform being inoperative at the completion time.
"Finally, the electronic conveyancing clause provides for amendment of other clauses of the contract as necessary, for example clause 16 is amended such that the place for settlement becomes the work space," he advised.
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jchancellor-FAypfDUnLy

Contract changes that buyers and sellers of land in NSW should know about

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GUEST OBSERVATION
Back in 2010 we received an enquiry about the real estate auction method in NSW and the sharp, deceptive practices that are sometimes used to enforce a contract.
A consumer buyer, whom we spoke to, believed they were induced to enter into a contract at auction by misleading and deceptive conduct and was considering a civil action against the agent and vendor involved. After listening to their concerns we decided to invest some time into completing a legal study of the real estate auction method, while obtaining some powerful legal advice along the way to substantiate the findings.
This is what we found.
The Statute of Frauds, is an Act passed in England in 1677. What has this got to do with modern-day Australia? Well, back in the 17th century, the law of contract was beginning to take shape. In particular it was becoming possible to enforce executory (future) promises.
The law of evidence, however, was still back in the dark ages. It did not allow anyone to give evidence to support their own case. It was possible to prove a case by simply getting 12 of your mates to come along and swear, for example, that so and so made a promise to pay some money.
This laid the way open to make fraudulent claims by simply getting others to commit perjury on your behalf. The answer was provided by the Statute of Frauds which stipulated that certain contracts had to be evidenced in writing. Not all contracts – only a limited class of contracts.
To this day, the same statutory provision, re-enacted (or even still applying in their own right in NT and WA) in the states and ACT, governs at least contracts involving interests in land and one or two other contracts. Still, to this day, the legislation is referred to generally as the Statute of Frauds.
The Statute of Frauds has, it must be said, got a bad smell about it. It can be used as a technical defence to a contract claim. That is, it enables someone who has committed himself or herself to a contract to simply wriggle out of it on the basis that there is not a sufficient writing to satisfy the legislation.
There is no merit, no plausible or understandable excuse for not performing; only a fortuitous, technical defence which would only be apparent to the person after they have talked to their lawyer.
The Statute of Frauds is invoked by a defendant in a breach of contract action. If the defendant can establish that the contract he has failed to perform is legally unenforceable because it has not satisfied the requirement of the statute, then the defendant cannot be liable for its breach.
For example, suppose that a plaintiff claims that a defendant agreed to pay her a commission for selling his building. If the defendant can demonstrate that no commission contract was signed, the statute of frauds will prevent the plaintiff from recovering the commission.
The legal advice we received, would be of interest to many auctioneers’ in NSW and other states in Australia. But firstly we need to establish that a bid is, in effect, an offer of a price for the property being sold, and the fall of the auctioneer’s hammer the acceptance.
Once the auctioneer’s hammer has fallen, the auctioneer has by implication the authority of the highest bidder to sign any memorandum on the bidder’s behalf embodying the conditions of the sale, such memorandum being sufficient to satisfy the requirements of the Statute of Frauds and the Sales of Good Act.
However, if a successful bidder for certain land at an auction sale refused to sign a written sale agreement, it would be difficult to enforce specific performance of an agreement to purchase the property under the Statute of Frauds. This is due to there being no expressed authority under auction laws in NSW and on the bidder’s register, which permits the auctioneer at the fall of the hammer to sign any memorandum or contract of sale on the bidder’s behalf.  
Although, in the old case of Phillips vs. Butler [1945], where a successful bidder declined to sign a contract for the sale of land at the conclusion of an auction, a judge ruled there was an irrevocable authority to sign the contract, due to evidence proving that both parties had finalised a contract and specific performance of the contract in this case was required.
However, this ruling to some may seem straightforward on its face, but not quite.
The auctioneer’s authority to sign on the purchaser’s and, if necessary, the vendor’s behalf is only an irrevocable authority once the contract is final and both parties have agreed to be legally bound.
Further to this, under contract law, for an agreement to be regarded as a contract, it must contain four essential ingredients: if any one of them is absent the agreement will not be legally binding.
Article continues on the next page. Please click below.
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One of the essential ingredients of a contract is the ‘Intention of legal consequences’. The parties to the agreement must understand that the agreement can be enforced by law. For a contract to be binding, it does not have to expressly state that you understand and intend legal consequences to follow.
For commercial contracts your intentions are presumed, for example, to be legally bound. The parties to a contract can decide not to be legally bound by the agreement – this must be clearly stated and is then an agreement that is not legally enforceable.
In NSW under the standard contract for sale of land the following warning statement is located on page 3 of the contract:
“IMPORTANT NOTICE TO VENDORS AND PURCHASERS
“Before signing this contract, you should ensure that you understand your rights and obligations, some of which are not written in this contract but implied by law.”
This provision of the contract gives each party more freedom to further negotiate the terms of the contract before deciding to be legally bound. The negotiation stage of a contract would likely challenge and override the irrevocable authority to sign after the fall of the hammer.
Furthermore, the principles of contract law require that consideration be given for the contract to be valid. Consideration means that something of value for example a deposit was given to the vendor by the purchaser.
Under auction conditions in NSW, it doesn’t state that all bids must be unconditional and at the fall of the hammer is forming of the contract. Surprisingly, there is such a thing called conditional bidding and this is permissible at auctions in NSW and in the other states as well. It is advised that such information be disclosed to bidders prior to commencement of the auction; this not only will prevent allegations of mismanagement and fraud, but should also come as a timely reminder, that a successful bidder is not always a true unconditional bidder.
All estate agents should be aware, that all financial institutions have never operated in line with real estate auction conditions, therefore, any winning bidder who is still subject to a loan doc approval with the bank, should be given the courtesy and respect of their offer being made subject to finance.
In other words, if the winning bidder was restrained from signing the contract under auction conditions, due to unavoidable circumstances relating to finance approval, the contract of sale, should therefore be entered into under private treaty conditions and not under the traditional auction conditions. The contract would need to include also, a seller’s warning statement and remain on the market until such time the contract is unconditional.
National Unfair Contract Terms Laws (part of the Australian Consumer Law)
One of the most significant reforms for New South Wales businesses and consumers are the provisions addressing the use of unfair contract terms in standard form consumer contracts, contained in Part 2-3 of the Australian Consumer Law (commenced on 1 July 2010 at the Commonwealth level.
This law has the potential to create a basis for a significant amount of litigation. The definition of ‘unfair’ adopted in Part 2-3 may cause uncertainty over the enforceability of contract terms which favour one party over another, providing all consumers additional grounds upon which to challenge and potentially avoid their contractual obligations.
While there have not yet been any instances of enforcement of the national unfair contract terms law, publications released by the ACCC give some indication as to what will be considered to be an ‘unfair term’ under these provisions.
A term of a consumer contract will be void if:
<ul>
<li>The term is unfair; and</li>
<li>It is a standard form contract.</li>
</ul>
A consumer contract is defined as a contract for the supply of goods or services or a sale or grant of an interest in land to an individual whose acquisition of the goods, services or interest is wholly or predominantly for personal, domestic or household use or consumption.
For example, a buyer acquiring an off the plan apartment for investment purposes will not be a ‘consumer’ because of their reasons for buying. However, if it is for their own occupation the buyer will be a ‘consumer’.
The test for unfairness, under Sch 2, s. 24(1) of the Act and s. 12BG of the ASIC Act, states that a term of a consumer contract is unfair if it:
<ul>
<li>Would cause a significant imbalance in the parties’ rights and obligations arising under the contract and</li>
<li>Is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term and</li>
<li>Would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.</li>
</ul>
All three limbs of the unfairness test must be proven, on the balance of probabilities, to exist for a court to decide that a term is unfair.
In light of the unfair contract law, businesses should prepare themselves and adjust the way in which they deal with individual consumers in the following ways:
<ol>
<li>Be aware and take note of whether a consumer is purchasing for investment purposes or for their own personal use;</li>
<li>Be willing to negotiate the terms of the contract with the consumer and keep detailed records of any negotiations;</li>
<li>Obtain an acknowledgement from the consumer that they are aware of and understand any terms  in the contract which may be seen to favour one party over another; and</li>
<li>Have your standard form consumer contracts reviewed to ensure that their terms are not at risk of being voided for being ‘unfair’.</li>
</ol>
Finally, the law in NSW requires that an agent must also; act honestly, fairly and professionally with all parties in a transaction. An agent must not mislead or deceive any parties in negotiations or a transaction.
Silent Auction – The Alternative Method
<a href="https://www.wikihow.com/Run-a-Silent-Auction" target="_blank">Silent auctions</a> are auctions held without an auctioneer. People place their bids on sheets of paper instead. They're often used by charities to raise money, but actually can be a useful method in real estate.
When there are multiple buyers under Private Treaty - converting to either a “Sale by Tender method (where buyers get one opportunity to put forward their most competitive offer and once the vendor makes their final decision on a specified time and date, the decision is announced) or “Silent Auction Method” makes perfect sense to avoid engaging in misleading and deceptive conduct.
As previously mentioned, the auction is "silent" in that there is no auctioneer selling the property and bids are written on a sheet of paper. After each pre-determined round, the agent announces the highest bidder. Bids continue to escalate in subsequent rounds. At the end of the final round, the highest registered bidder is the purchaser.
There are variations to silent auctions which may include sealed bids. The highest bidder pays the price he or she submitted. However, the capability of inducing bidders into error or refusing to disclose any competing bid relevant to the decision of the other party, would likely lead to an allegation of misleading and deceptive conduct. All agents must engage in full disclosure, but set pre-determine bidding increments at the start, to avoid non - genuine bidding on the day.
It is important to point out under the standard sales agency agreement, that services detailed in the agreement can be varied providing it is in writing and signed by both parties. Furthermore, the definition of an "auction" under the Property Stock and Business Agents Act 2002 refers to the person who claims the property submitted for sale at a certain price is named by the person acting as auctioneer. As with silent auctions there is no auctioneer. This gives real estate agency businesses the flexibility to draft terms and conditions that are not based on the unnecessary and unproductive rules of public auctions – only laws applicable to contract law and consumer law.
In closing the purpose of this article is to alert all agents, with intention of preventing any future allegations and claims of fraudulent misrepresentation in tort, when facilitating the sale of a property at auction.
Article continues on the ext page. Please click belown.
<hr class="system-pagebreak">
A RECENT COURT RULING:
Auctions — Did residential property bidder engage in misleading and deceptive conduct? (Carter &amp; Anor v Delgrove Holdings Pty Ltd &amp; Anor[2 September 2013] FCCA 783.)
This is an interesting decision from the Federal Circuit Court of Australia for its consideration of when the provisions of the Australian Consumer Law will apply to the sale of residential property.
Facts
The respondents were engaged in the business of property acquisitions for the purposes of deriving rental income. The first respondent was a company which was the trustee of a family trust and the second respondent was a director of the first respondent and a beneficiary of the family trust.
The second respondent attended the auction of the vendor applicants’ home in Western Australia. During the course of the auction, he placed a bid for $3.6 million. He was the only genuine bidder at the auction.
As the reserve price had not been met, the auctioneer suspended the auction to consult with the vendor. After gaining approval to sell at $3.6 million, the auctioneer recommenced the auction, inviting further bids. There were no further bids. The property was then knocked down to the second respondent. However, after the other potential bidders had left the property, he refused to sign the contract or pay the requested deposit asserting that he no longer wanted to buy the property.
When the respondents refused attempts at settlement, the property was placed upon the market again. Additional costs were incurred in respect of the marketing of the property. The property did not sell.
The vendor brought an application against the respondents for (inter alia) damages for misleading or deceptive conduct under s 18 of the Australian Consumer Law (ACL).
Section 18 of the ACL provides that “A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”.
The respondents countered that the matter involved the sale of a private house without any business character and was not conduct in trade or commerce for the purposes of the ACL.
Decision
The court held that the s 18 misleading and deceptive conduct provision did apply even though the matter involved the sale of a private house without any business character.
It sufficed that the respondents were engaged in commercial activity (acquiring properties to rent out). However, despite the finding that s 18 applied, no damages were awarded because the vendor could not demonstrate that the loss incurred resulted from the respondents’ conduct.
George Rousos is director and training Consultant with <a href="https://www.itc.nsw.edu.au/" target="_blank">Industry Training Consultants</a>.
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How the auction system is being derailed by contract and consumer laws

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Home owners won't lose protections and rights when new home building reforms come in, NSW Fair Trading Minister Matthew Mason-Cox has claimed.
His reassurance comes after a recent court decision in favour of Brookfield Multiplex in a case regarding commercial property. The High Court's ruled that Brookfield Mutliplex was not liable for alleged building defects in a commercial development was a complex and technical decision,
According to Mason-Cox, the owners corporation deemed not vulnerable in legal terms, with no duty of care from Brookfield Multiplex to a commercial property owners corporation.
"I have obtained legal advice from the Crown Solicitor's Office that confirms the decision does not affect the consumer protections offered by the state's home building legislation,'' Mason-Cox said.
"This case refers to the law of negligence and involved a commercial development.
"The case does not affect the separate NSW statutory scheme of a residential development.
"Consumers continue to enjoy all the protections afforded to them by home building laws, including the statutory warranty scheme. Any suggestions to the contrary are simply false.''
A number of reforms relating to home owner rights have been passed in the Home Building Amendment Act 2014.
Some claim the reforms will <a href="/expert-insights/investing/nsw-home-owners-dodgy-construction-claims-curbed-by-government">degrade consumers' rights</a> when their building is found to be defective, with a government-granted six-year warranty for "structural defects" now applicable only for "major defects".
However, Mason-Cox says the amendments "provide significant protection for consumers and offer clarity about rights and responsibilities of builder's liabilities, particularly in relation to defects".
"The Home Building Amendment Act 2014 was passed by Parliament in May and is expected to start in mid-January," said Mason-Cox.
"Under the new Act, if a strata scheme discovers a major defect up to six years after the building has been built, then they can pursue their builder under the statutory warranties in the Act to rectify that defect.
"In particular, our reforms ensure that all home owners continue to have the benefit of a six year warranty for major defects and two years for minor defects."
Fire safety and waterproofing will be considered "major elements" of a building under the changes.
"By clarifying the nature of major defects, this key reform will save owners, and owners corporations, tens of thousands of dollars in legal costs incurred in protracted litigation," claimed Mason-Cox.
"We are also introducing changes to the licensing system, making it harder for unscrupulous builders to illegally 'phoenix', which is where a failed company starts up under a new or similar name to avoid scrutiny by consumers or NSW Fair Trading."
Individuals who were once involved in companies closed by their directors to avoid their obligations will now risk having their licence applications denied or their licenses revoked.
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Home owner rights still strong, despite building reforms: NSW Fair Trading

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The ‘cooling off period’ is a right that the buyer has when they sign the contract for sale of a residential property. It provides them a number of days to back out of the contract.
If you don’t know what a cooling off period is, you can <a href="/expert-insights/buying/what-is-the-cooling-off-period-investment-terms-explained">read more about it in our quick explainer here</a>.
The terms of the contract vary from state to state, though there are many similarities.
Consumer Affairs Victoria details six occasions where a buyer, usually, cannot cool off. They also note that a clause in a contract cannot be used to remove the right to cool off where it is allowed.
<ol>
<li>On commercial or industrial properties. 
</li>
<li>On rural properties larger than 20 hectares. 
</li>
<li>On a property sold at public auction, or within three clear business days before or after an auction. 
</li>
<li>If they are an estate agent or an agent's representative. 
</li>
<li>If they are a company. 
</li>
<li>If they have previously entered into a contract of sale with the seller for the same property with substantially the same terms.</li>
</ol>
Ensure you obtain legal advice around the nature of your cooling off period.
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Six times the “cooling off period” does not apply: Consumer Affairs Victoria

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Is e-Conveyancing going to be a way of ensuring that foreign nationals comply with Australian foreign investment rules?
The Real Estate Institute of Australia suggests that this might be exactly the case.
As part of the House of Representatives Standing Committee on Economics’ public hearings into the Inquiry into Foreign Investment in Australian real estate, REIA board member First National's Ray Ellis is to address the inquiry and detail the possibility of using e-Conveyancing to improve compliance.
This would ensure greater inter-departmental and agency communication, including with the Department of Immigration, with REIA CEO Amanda Lynch noting that later in the year the first national e-Conveyancing platform will be rolled out.
“While it is important to stress that the new online platform is heavily regulated with keen focus on protecting privacy of individuals, it will be capturing a rich set of data including identification where the transaction involves foreign nationals,” said Lynch.
“Lawyers and conveyancers will have to verify the identity of the clients they represent and reflect the client’s foreign residency status while filling the form in an online workspace,” she said.
They will reflect the paper versions of transfer in each state and territory, with the same data fields, however will store data electronic – something that matches the expectation for 85% of all property transactions over the next two years to be electronic, explained Lynch.
Monitoring could more easily be undertaken under this system.
“The transition towards e-Conveyancing provides the opportunity for easier detection of irregular activity,” said Lynch.
“The last thing that the sector wants to see is unnecessary red tape around foreign investment in Australia and here is an ideal platform that is available for all property purchases, not just those involving foreign investment,” she said, noting the REIA supports both foreign investment in Australia, and the current guidelines.
Ellis noted that the issue isn't that foreign investment happens, but that it is inadequately monitored and regulated.
"Australia has long depended upon migration and foreign investment. It’s vital to a thriving economy in a country with a comparatively small population," he said.   "However, there appears to be evidence that some wealthy foreign investors have been purchasing existing homes and leaving them vacant to avoid detection by the Foreign Investment Review Board (FIRB)."
He noted that there is currently an $85,000 fine for breaching this law.
"Foreign developer investment, when compliant with our laws, creates jobs and benefits the construction industry. However, if foreign residential property investors believe they can buy existing properties and leave them vacant, to avoid detection, this is clearly against the rules and objectives of the FIRB scheme and measures should be put in place to address this cavalier attitude," he said.
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How e-Conveyancing can help ensure foreign investors comply with rules: REIA

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GUEST OBSERVATION
Looking to ensure a smooth property transaction? Congratulations, you’ve already taken the first step, which is to begin to learn about how property transactions usually work.
The more you know about the process, the easier it is on the blood pressure. Buyers, sellers and conveyancing solicitors all agree that the best surprise at settlement is no surprise at all.
Most property transactions go through six steps:
<ol>
<li>Financing 
</li>
<li>The execution of the contract of sale 
</li>
<li>Review of searches and removal of conditions 
</li>
<li>Preparation of settlement figures 
</li>
<li>Settlement 
</li>
<li>Post settlement matters</li>
</ol>
At each step there may be twists and turns, but these too are generally somewhat predictable. 
Step one – Obtain financing 
Finding the home of your dreams and only then going to look for money guarantees anxiety. 
Most buyers seek preapproval for a mortgage before they go house hunting. That way they know what they can afford.
First time home buyers should explore <a href="/expert-insights/buying/the-national-guide-to-first-home-buyer-grants">whether they are eligible for a First Home Owner Grant scheme</a> (FHOG scheme).  
Step two – Exchange of contracts
Supposing that buyer and seller have met and agreed upon a price, step two is the exchange of contracts. The seller’s real estate agent, conveyancer or solicitor generally prepares the contract, which will set out the description of the property, price, warranties, contingencies and other terms and conditions. 
The buyer’s solicitor will carefully review the contract and negotiate any changes before the parties sign and the buyer pays the deposit. This is known as the “exchange of contracts”.
During a <a href="/expert-insights/buying/what-is-the-cooling-off-period-investment-terms-explained">“cooling off” period</a>, of a few business days, the buyer may withdraw from the agreement, forfeiting the deposit but incurring no legal penalty. 
As an aside, we advocate retaining a conveyancing solicitor rather than a conveyancer because the solicitor has the legal background to evaluate any unanticipated legal issues that may arise in the course of the conveyance.
Step three – Searches and inspections 
The buyer’s obligation to buy the property is generally contingent on satisfactory results from things like pest inspections and property searches. The buyer’s solicitor will order and review the property searches.
In New South Wales, these include a title search, zoning search, strata plan search and a historical search. If there are termites or a problem with the title, for example, the parties may choose to re-negotiate or walk away.
Step four - Pre-settlement Process
This is where the number crunching begins. Smart clients ask for an itemised list of estimated costs before the work begins. In addition to fees for legal services, a buyer should anticipate charges for inspections, searches and building insurance. 
There may also be a category of fees associated with the mortgage, including mortgage insurance, establishment and registration of the mortgage and mortgage duty. Other miscellaneous costs may include photocopying, certificate fees charged by water, utility, roads and school authorities, adjustment for council and water rates, stamp duty and the goods and services tax.
Your job, as a client, is to make a complete pest of yourself at this point. Ask to be updated regularly on costs and ask for an explanation of what those costs are if they seem mysterious.
Step five – Settlement 
This is the exciting part – when the purchase of your property is finalised.
Your conveyancer or solicitor (known as your settlement agent) will meet with your lender and a seller's representative to sign and exchange documents and cheques. The documents will then be lodged with the Titles Office to register you as the new property owner.
Do not be alarmed if at the settlement the costs change to adjust for taxes, rental fees and fees for the release of an existing mortgage. In the spirit of being a nuisance, you should ask your solicitor to estimate these costs for you in advance.
Step six – Post settlement Matters
Remember that the job is not done until the paperwork is finished, so step six involves notifying relevant authorities of the change in ownership and lodging transfer documents with the Land Titles Office. This is often done by the buyer’s lending institution, but to be secure buyers should follow up to confirm with the lender.
Property transactions involve money, quite a lot of it. Where there is money, there can be complications. You can minimise these, however, by understanding the process and insisting that you be updated regularly on costs and progress.
Rolf Howard is managing partner of <a href="https://www.owenhodge.com.au/">Owen Hodge Lawyers</a>. 
Rolf concentrates on business planning and formation, directors’ duties, corporate governance, fund raising and business succession. His major interest is to assist business owners and their financial advisers plan and implement strategies to build and exit from successful businesses.<a href="https://www.owenhodge.com.au/" style="line-height: 1.3em;"> </a>
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The six steps to ensure a smooth property transaction

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GUEST OBSERVATION
Buying a property is one of the most important financial decisions you will ever make.
It's easy to get swept up in emotions when you think you've found "the one", especially when you're a first home buyer or you've been searching for ages. But it's very important to carefully consider the legal and financial implications before you sign a contract. Thorough research could save you a fortune and ensure you avoid a serious mistake.
From the hundreds of real estate contracts I've read during my career, below are my top five legal tips to keep in mind when you're considering a purchase:
<ol start="1">
<li>
Carefully inspect the property and check the condition of everything before you sign the contract. A standard clause in the contract makes the vendor (or seller) only responsible for delivering the property to you at settlement in the condition it was on the day of sale, fair wear and tear excepted. So if the central heating wasn't working on the day you signed the contract, bad luck. Turning on all appliances and checking all light fittings beforehand will give you an accurate picture of the state of the property; you may be able to negotiate on price if something like an oven or garage door isn't working. 
</li>
<li>
Understand the zoning of the land and how it may affect your use of the property. Beware of flood paths or special building overlays, especially if there is a basement car park involved. It is prudent not to purchase a lower basement level car park in a flood zone (keep in mind that some apartments are sold with particular car parks allocated). The zoning of the land can prevent commercial or business activities being conducted. If you'd like to run a business from home, whether it's a professional service, childcare, wholesaling or anything else, always check if the planning scheme will allow it. You may require a permit or your proposed use may even be prohibited. Check with the local council if you're in any doubt. 
</li>
<li>
Beware of water easements. It is illegal to build on top of water drains and sewerage pipes without the permission of the water company. Look carefully at the water easement plan in the contract. You will not be allowed to build anything, even a deck, on top of a water easement and even if permission is granted, the water company can destroy any structure if they need access - and you are solely responsible for the cost. Look out for garages, carports and decks on the property: could they be built over water easements? If so, has permission been given? If not, the Council and water company could come knocking in the future and you'll be responsible, not the previous owner, unless you negotiate the wording of the contract. 
</li>
<li>
Don't be seduced by display units and rent guarantees. Spacious and well-lit display units are not a representation of your finished off-the-plan apartment. The fine print of the contract will make it very clear that you cannot rely on what you see in a display unit. Rather, carefully check the plans for your chosen apartment that are included in the contract. Use a tape measure to actually measure out the size of the apartment. How does it compare to your current home? What is the orientation of the apartment? Will it have enough natural light? North-facing properties are always preferable. And as for rent guarantees: these often aren't worth the paper they're written on. These guarantees are often provided by companies that are financially worthless or are wound up and closed by the time any purchaser may want to enforce a guarantee. Instead, do your homework about the rental market in the area. What rent could you achieve if all or most of the apartments in the building were all released onto the rental market at the same time? Always budget for conservative rent receipts. 
</li>
<li>
Don't rush, get advice and read the fine print. Resist any pressure from the real estate agent to quickly sign the contract. Never sign on the spot without getting advice – if possible, legal advice but at the very least advice from someone experienced in the property market. Remember that real estate agents are looking out for the vendor's best interests, not yours. If it's a private sale, take the contract home and 'sleep on it'. If there's an upcoming auction, request the contract at least a week in advance, to give you enough time to properly consider everything. Speak to your accountant and lender: can you afford it? Are there tax implications? Read the fine print and never assume that it's straight-forward. One hour of your life spent checking or consulting with a lawyer may save you an enormous amount of grief and money. Remember, buying a property is a life-changing decision.</li>
</ol>
Note: the above is general information and should not be considered as legal advice.
Kate Ashmor is president of <a href="https://www.australianwomenlawyers.com.au/" target="_blank">Australian Women Lawyers</a> (AWL) and a commercial lawyer for the Victorian government.
This article originally appeared on <a href="https://www.womensagenda.com.au/personal-freedom/investment/top-five-legal-tips-for-buying-property/201407234364#.U9GUM-OSy0d">Women’s Agenda</a>. 
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