An Act to consolidate and provide for the law relating to property, and to
amend this Act, the Body Corporate and Community Management Act
1997, the Building Units and Group Titles Act
1980, the Land Title Act 1994, the Limitation of Actions Act 1974, the
Property Occupations Act 2014 and
the Acts mentioned in schedule 3 for particular purposes, and to repeal the
Property Law Act 1974
The Parliament of Queensland enacts—
Part 1
Preliminary
Division 1
Introduction
1
Short
title
This Act may be cited as the Property
Law Act 2023.
2
Commencement
This Act commences on a day to be fixed by proclamation.
Division 2
Application of Act
3
Act
binds all persons
(1)
This Act binds all persons, including the
State and, to the extent the legislative power of the Parliament
permits, the Commonwealth and the other States.
(2)
Nothing in this Act makes the State, the
Commonwealth or another State liable to be prosecuted for an
offence against this Act.
4
Act
applies to land, property and documents
This Act applies to—
(a)
land in Queensland; and
(b)
property, other than land, whether in
or outside Queensland, to the extent the general law of
Queensland applies to the property; and
(c)
documents, whether executed in or
outside Queensland, to the extent the general law of
Queensland applies to the documents.
5
Relationship with other Acts
(1)
This Act applies subject to the following
Acts—
(a)
the Land Act
1994;
(b)
the Land Title Act
1994;
(c)
the Mineral and Energy Resources
(Common Provisions) Act
2014;
(d)
each Resource Act.
(2)
If this Act is inconsistent with an Act
mentioned in subsection (1), unless this Act
or the Act mentioned in subsection (1) expressly
provides otherwise, the Act mentioned in subsection (1) prevails to the
extent of the inconsistency.
Division 3
Interpretation
6
Dictionary
The dictionary in schedule 2 defines particular words
used in this Act.
Note—
The Acts Interpretation Act
1954, schedule 1 defines
particular words used in this Act, including, for
example—
•
property
•
land
•
interest
•
estate
•
mortgage
•
lease
•
transfer
•
transmission
•
document
•
proceeding
•
corporation
Part 2
General rules
affecting property
Division 1
Requirement for writing
7
Contracts for disposition of land not enforceable unless in
writing
A contract for the disposition of land is not enforceable by action
in a proceeding unless—
(a)
the contract is in writing or some
memorandum or note of the contract is recorded in
writing; and
(b)
the contract or the memorandum or note
of the contract is signed by the party against whom the
contract is sought to be enforced.
8
Writing
required for creation of particular interests in land
(1)
The creation of a legal or equitable interest
in land must be in writing and signed by the person creating the
interest.
(2)
A trust relating to land must be created or
declared in writing and signed by the person creating or
declaring the trust.
9
Nature
of interest in land created by parol
(1)
An interest in land created by parol, and not
put in writing and signed by the person creating the interest,
has the effect of an interest at will only.
(2)
Subsection (1) applies despite
any consideration given for the interest.
10
Particular matters not affected
(1)
This division does not affect—
(a)
the creation of a short lease;
or
(b)
the application of the law
relating to part performance; or
(c)
the creation or operation of a
resulting, implied or constructive trust; or
(d)
the making or operation of a will;
or
(e)
the disposition of land by
operation of law; or
(f)
the disposition of land by order
of any court.
(2)
To remove any doubt, it is declared that a
short lease created by parol takes effect when the lessee has an
immediate entitlement to possession.
Division 2
Other
rules
11
Transfer or lease to self and others
A person may transfer or lease property to the person’s self, or to
the person’s self and others.
12
Merger
of estate
An estate does not merge by operation of law with
another estate unless the person acquiring both estates intends the
estates to merge.
Part 3
Freehold
estates
13
Freehold
estates capable of creation
The following estates of freehold are capable of being created and
subsisting in land—
(a)
an estate in fee simple;
(b)
a life estate.
14
Abolition
of obsolete estates and rules
(1)
The following estates can not be created—
(a)
an estate tail;
(b)
a quasi-entail.
(2)
In a document, words that, apart from this
section, would have created an estate tail are taken to create an
estate in fee simple.
(3)
The rule known as the rule in Shelley’s
Case is abolished.
15
Abolition
of incidents of tenure for benefit of State
A tenure created by the State on granting an estate in fee simple is in
free and common socage without any incident of tenure for the benefit of
the State.
16
Abolition
of quit rent
If quit rent issues to the State out of land, or the residue of quit
rent issues to the State out of land in relation to which quit rent has
been apportioned or redeemed, the land is released from quit rent.
17
Abolition
of escheat for dissolved corporation
If a corporation is dissolved or otherwise ceases to
exist, subject to the Corporations Act, the State is
entitled to take as bona vacantia any of the corporation’s
property that would have been liable to escheat if escheat had not been
abolished.
18
Waiver by
State of any remaining rights to property by escheat
(1)
This section applies if a person believes the
State may have a right to property by escheat, devolution or bona
vacantia on the death intestate of a person.
(2)
The person may apply to the Minister to waive the
State’s rights.
(3)
The Minister may waive the State’s rights on terms
the Minister considers appropriate.
(4)
The Minister must publish in the gazette the
details of a waiver under this section.
(5)
The Minister may delegate the Minister’s functions
or powers under this section to an appropriately qualified public
service employee.
(6)
In this section—
right includes a supposed right.
19
Voluntary
waste or equitable waste by life tenant
(1)
A life tenant who commits voluntary or equitable
waste in relation to land, other than under subsection (3) or (4), is liable in damages to the person
entitled, immediately after the life estate ends, to the fee simple
interest in remainder in the land (the remainder
person).
(2)
If the interest of the life tenant is an equitable
interest, the trustee for the remainder person may bring a
proceeding for the damages on behalf of the remainder person.
(3)
A life tenant may commit voluntary waste in
relation to land if an express or implied term in the document
creating the life estate permits the waste.
(4)
A life tenant may commit equitable waste in
relation to land if an express term in the document creating the
life estate permits the waste.
20
Recovery of
property when life estate ends
(1)
This section applies if—
(a)
a life estate ends; and
(b)
a person (the remainder person) is entitled,
immediately after the life estate ends, to an interest
in the property; and
(c)
a person, other than the remainder
person (the third
person), continues in possession of, or
receives rent or profits in relation to, the remainder
person’s interest in the property.
(2)
The remainder person may apply to the court for
any or all of the following in relation to the interest in the
property—
(a)
possession;
(b)
damages;
(c)
an account of rent or profits.
(3)
If the life tenant or third person has been absent
for at least 7 years, the court may presume the life tenant or third
person has died.
(4)
The presumption mentioned in subsection (3) is rebuttable.
(5)
The court may hear and decide the application and
make the orders it considers appropriate.
(6)
If, after the court has decided the application, a
life tenant or third person presumed dead by the court is proved to
be alive—
(a)
a person with an interest in the
property may apply to the court for any or all of the
following in relation to the property—
(i)
possession;
(ii)
damages;
(iii)
an account of rent or
profits; and
(b)
the court may hear and decide the
application and make the orders it considers
appropriate.
21
Penalty for
holding over possession after life estate ends
(1)
This section applies if—
(a)
a life estate ends; and
(b)
a person (the remainder person) is entitled,
immediately after the life estate ends, to an interest
in remainder in the land; and
(c)
another person (the third
person) holds over possession of the
remainder person’s interest in remainder in the land;
and
(d)
the remainder person gives the third
person a notice asking for possession of the remainder
person’s interest in remainder in the land; and
(e)
the third person does not give the
remainder person possession of the remainder person’s
interest in remainder in the land within 30 days after
the notice mentioned in paragraph (d) has been
given.
(2)
The third person is liable to the remainder person
for the market rent for the remainder person’s interest in remainder
in the land for the period—
(a)
starting on the day the life estate
ends; and
(b)
ending on the day the remainder person
is given possession of the land.
(3)
The remainder person may recover the market rent
for the remainder person’s interest in remainder in the land as a
debt due to the remainder person.
Part 4
Future
interests
22
Creation of
future interests in land
(1)
If a future interest in land is created, it takes
effect as an equitable and not a legal interest.
(2)
Despite the Land Title Act 1994, an
interest in remainder must not be registered in the freehold land
register.
(3)
In this section—
future
interest means—
(a)
a legal contingent remainder;
or
(b)
a legal executory
interest.
23
Creation
and disposition of interests in property
(1)
Each interest in property that can be created or
disposed of may be created or disposed of by an individual—
(a)
during the individual’s lifetime;
or
(b)
by will.
(2)
However, subsection (1) does not make a joint
tenancy severable by will.
24
When gift
over stops being capable of taking effect
(1)
This section applies if—
(a)
a person (the first
person) is entitled to an interest in
property; and
(b)
the interest in property is subject to
a gift over to another person if the first person has no
child, or no child of a stated class, whether at any
stated time or within any stated period.
(2)
The gift over stops being capable of taking effect
when the first person has a child, or a child of the stated class,
who attains 18 years.
(3)
Subsection (2) applies even if the
child dies after attaining 18 years.
(4)
For this section, a gift over includes a gift over
expressed to take effect on the ending of an interest preceding that
of the person whose interest is the subject of the gift over.
(5)
In this section—
child, of a person, has the meaning given by
the Succession Act 1981,
section 5A.
Part 5
Co-ownership of
property
Division 1
General
rules
25
Forms
of co-ownership
Property may be held by 2 or more persons—
(a)
as joint tenants; or
(b)
as tenants in common.
26
Corporation may hold property as joint tenant
(1)
A corporation may acquire and hold property in
joint tenancy in the same way as if it were an individual.
(2)
If a corporation and an individual, or 2 or
more corporations, become entitled to property under
circumstances or because of a document that would, if the
corporation or corporations had been individuals, have created a
joint tenancy, the corporation and the individual, or the 2 or
more corporations, are entitled to the property as joint
tenants.
(3)
However, the acquisition and holding of
property by a corporation in joint tenancy is subject to the
same conditions and restrictions as attach to the acquisition
and holding of property by a corporation in severalty.
(4)
If a corporation is a joint tenant of property
and the corporation is dissolved or otherwise ceases to exist,
the property devolves on the other joint tenant.
27
Liability of co-owners to account
If a co-owner of property receives more than the
co-owner’s just or proportionate share according to the co-owner’s
interest in the property, the co-owner is liable to account to each
other co-owner of the property.
28
Construction of disposition of property to 2 or more persons
(1)
A disposition of an equitable interest in
property, whether with or without a legal interest in the
property, to 2 or more persons together beneficially takes
effect as a disposition to the persons as tenants in common, and
not as joint tenants.
(2)
Subsection (1) does not apply
to—
(a)
a disposition to 2 or more persons
that provides the persons are to take as joint
tenants; or
(b)
a disposition to 2 or more persons
as administrators, executors, mortgagees or
trustees; or
(c)
a disposition to 2 or more persons
carrying on business in partnership for partnership
purposes.
(3)
Subject to the Partnership Act 1891 or
any agreement to the contrary, a disposition of property to 2 or
more persons carrying on business in partnership for partnership
purposes takes effect as—
(a)
a disposition of the legal
interest, if any, in the property to the persons as
joint tenants; and
(b)
a disposition of the equitable
interest, if any, in the property to the persons as
tenants in common.
(4)
In this section—
disposition includes a disposition that
is wholly or partly oral.
29
Tenants
in common of equitable interest who become entitled to legal
interest
(1)
This section applies if 2 or more persons
holding property—
(a)
are entitled beneficially as
tenants in common to an equitable interest in the
property; and
(b)
are or become entitled in their
own right, whether as joint tenants or tenants in
common, to a legal interest in the property equal to
and coextensive with their equitable interest in the
property.
(2)
Subject to any agreement to the contrary, both
the legal and equitable interests in the property are held by
the persons as tenants in common.
Division 2
Sale
and division of co-owned property
Subdivision 1
Preliminary
30
Definitions for division
In this division—
property does not include a future or
contingent legal or equitable interest in real or
personal property.
security interest—
(a)
means an interest in
property by way of security for the payment of a
debt or other pecuniary obligation; and
(b)
in relation to land—includes
a mortgage and a lien, whether or not registered
under the Land Title Act
1994.
31
Other forms of severance not affected
Nothing in this division affects or prevents the severing of a
joint tenancy under—
(a)
a provision of this Act other than
this division; or
(b)
another Act or law.
32
Security interests not affected
Despite anything to the contrary appearing in a document
creating or related to a security interest, the severing of a
joint tenancy under this division—
(a)
does not constitute a breach of
the terms of the document; and
(b)
does not affect any existing
powers, rights or interests of a person who holds a
security interest over the property to which the
severance relates.
Subdivision 2
Sale and division
33
Application to court for sale or division of co-owned
property
(1)
A co-owner of property may apply to the
court for an order under this subdivision to be made in
relation to the property.
(2)
The application may request—
(a)
the sale of the property and
the division of the proceeds among the co-owners;
or
(b)
the physical division of the
property among the co-owners; or
(c)
a combination of the actions
mentioned in paragraphs (a) and
(b).
(3)
The applicant must, within 30 days after
making the application, give a copy of the application to
each person who holds a security interest over the property.
34
Orders court may make
(1)
In the proceeding, the court may make any
order that the nature of the case requires to ensure a just
and fair sale or division of the property.
(2)
Without limiting subsection (1), the court
may make any of the following orders—
(a)
an order for the sale of the
property and the division of the proceeds among
the co-owners;
(b)
an order for the physical
division of the property among the
co-owners;
(c)
an order for a combination of
the actions mentioned in paragraphs (a) and
(b).
35
Sale and division of proceeds to be preferred
(1)
If the court decides to make an order for
the sale or division of the property, the court must make an
order under section 34(2)(a) unless the court considers an
order under section 34(2)(b) or (c) would be more just and fair.
(2)
In deciding whether an order under section 34(2)(b) or (c) would be more just and fair,
the court must consider—
(a)
the use being made of the
property, including, for example, any use of the
property for residential or business purposes;
and
(b)
whether the property is able
to be divided and the practicality of dividing the
property; and
(c)
any particular links with or
attachment to the property, including, for
example, whether the property is unique or has a
special value to 1 or more of the co-owners.
(3)
Subsection (2) does not
limit or otherwise affect the matters the court may
consider.
36
Order varying entitlements to property
In making an order under section 34, the court may order
that—
(a)
the property be physically divided
into parcels or shares that differ from the
entitlements of each of the co-owners; and
(b)
compensation be paid by a stated
co-owner to another stated co-owner to compensate
for any difference in the value of the parcels or
shares when the property is physically divided under
paragraph (a).
37
Order appointing trustee
(1)
In the proceeding, if the court considers
the appointment of a trustee for the sale or physical
division of the property is necessary or desirable, the
court may order—
(a)
the appointment of a trustee;
or
(b)
the removal of a
trustee.
(2)
In an order appointing a trustee for the
sale of the property, the court may make any order that the
nature of the case requires, including, for example, any of
the following orders—
(a)
an order directing the trustee
as to the terms and conditions on which the sale
is to be carried out;
(b)
an order directing the
distribution of the proceeds of the sale in a way
stated by the court;
(c)
an order that the remuneration
of the trustee be paid from the proceeds of the
sale.
(3)
In an order appointing a trustee for the
physical division of the property, the court may make any
order that the nature of the case requires, including, for
example, any of the following orders—
(a)
an order directing the trustee
as to the way in which the division is to be
carried out;
(b)
an order that the remuneration
of the trustee be paid by the parties to the
proceeding.
(4)
If the property is held by joint tenants,
an order of the court appointing a trustee for the sale of
the property does not of itself sever the joint
tenancy.
(5)
Subject to an order of the court, if the
property is land held by co-owners, an order of the court
appointing a trustee for the sale of the land converts the
interest of each co-owner into an interest in the proceeds
of the sale of the land.
(6)
Subject to an order of the court, a
trustee appointed by the court may pay the following amounts
out of income generated by the property or the proceeds of
the sale of the property—
(a)
costs, expenses and other
outgoings relating to the property;
(b)
costs and expenses relating to
the sale of the property.
38
Vesting of property in trustee
(1)
If the court orders the appointment of a
trustee for the sale or physical division of the property,
the order is taken to vest the property in the trustee in
the same way as a vesting order under the Trusts Act 1973,
section 90.
(2)
If the property is subject to a security
interest affecting the entirety, the property vests in the
trustee subject to the security interest.
(3)
If the property is subject to a security
interest affecting an undivided share of the property—
(a)
the property vests in the
trustee free of the security interest; and
(b)
the interest of the person
entitled to the benefit of the security interest
is converted to an equitable interest in the
proceeds of sale.
39
Other orders court may make
(1)
In the proceeding, the court may also make
any other order the court considers appropriate, including,
for example, any of the following orders—
(a)
an order that the property be
sold by private sale or at auction;
(b)
an order that the co-owners
may purchase the property at the sale or auction
mentioned in paragraph (a);
(c)
for a private sale—an order
that the sale be at market value as determined by
an independent valuation;
(d)
for an auction—an order that
the reserve price be the reserve price set by the
court;
(e)
an order that an independent
valuation of the property take place;
(f)
an order that a sale be
completed within a stated time;
(g)
an order that the costs of the
sale be paid—
(i)
by 1 or more of the
co-owners; or
(ii)
from the proceeds of the
sale;
(h)
an order that the sale and
division of the proceeds of sale or the physical
division of the property be subject to stated
terms and conditions;
(i)
an order that any document be
produced or other thing done that is necessary to
enable an order to be carried out
effectively.
(2)
This section does not limit or otherwise
affect section 34 or 37.
40
Orders for compensation and accounting
(1)
In the proceeding, the court may order
that—
(a)
a co-owner pay compensation or
make a reimbursement to another co-owner; or
(b)
a co-owner account to another
co-owner under section 27; or
(c)
a co-owner’s interest in the
property be adjusted to take account of amounts
payable by the co-owners to each other during the
co-ownership.
(2)
In deciding whether to make an order under
subsection (1), the court
must consider the following matters—
(a)
amounts reasonably spent by a
co-owner in improving the property;
(b)
costs reasonably incurred by a
co-owner in the maintenance or insurance of the
property;
(c)
damage caused by the
unreasonable use of the property by a
co-owner;
(d)
the payment by a co-owner of
more than that co-owner’s proportionate share of
rates, mortgage repayments, purchase money,
instalments or other outgoings in relation to the
property for which 1 or more of the other
co-owners are liable;
(e)
for land—whether or not a
co-owner who has occupied the land should pay an
amount equivalent to rent to a co-owner who did
not occupy the land;
(f)
for property other than
land—whether or not a co-owner who has used the
property should pay an amount equivalent to rent
to a co-owner who did not use the property.
(3)
The court must not make an order requiring
a co-owner who has occupied land (the occupying
co-owner) to pay an amount equivalent to rent
to a co-owner who did not occupy the land (the non-occupying co-owner) unless—
(a)
the occupying co-owner seeks
compensation, reimbursement or an accounting for
money expended by the occupying co-owner in
relation to the land; or
(b)
the non-occupying co-owner has
been excluded from occupation of the land;
or
(c)
the non-occupying co-owner has
suffered a detriment because it was not
practicable for the non-occupying co-owner to
occupy the land with the occupying co-owner.
(4)
The court must not make an order requiring
a co-owner who has used property other than land (the
using
co-owner) to pay an amount equivalent to rent
to a co-owner who did not use the property (the non-using
co-owner) unless—
(a)
the using co-owner seeks
compensation, reimbursement or an accounting for
money expended by the using co-owner in relation
to the property; or
(b)
the non-using co-owner has
been excluded from using the property; or
(c)
the non-using co-owner has
suffered a detriment because it was not
practicable for the non-using co-owner to use the
property with the using co-owner.
(5)
This section applies despite any other Act
or law.
Subdivision 3
Accounting of amounts
received by co-owners
41
Application to court for accounting
(1)
A co-owner of property may apply to the
court for an order for an accounting under section 42.
(2)
An application under subsection (1) may be made
whether or not an application is made under subdivision 2.
42
Orders court may make
(1)
In the proceeding, the court may make any
order that the nature of the case requires to ensure a just
and fair accounting of amounts received by the co-owners in
relation to the property.
(2)
Without limiting subsection (1), the court
may make an order that a co-owner, who has received more
than the share of rent or other payments from a third party
in respect of the property to which that co-owner is
entitled, account for that rent or those other payments to
the other co-owners.
Subdivision 4
Miscellaneous
matters
43
Adjournment or stay of co-ownership proceeding—family law
proceeding
(1)
The court may adjourn or stay a proceeding
under subdivision 2 or 3 in relation to property at any
time before it has made a final order if a co-owner starts,
or has started, a family law proceeding in relation to the
property.
(2)
Also, the court may adjourn a proceeding
under subdivision 2 or 3 in relation to property at any
time before it has made a final order to allow a co-owner of
the property to start a family law proceeding.
(3)
This section does not limit or otherwise
affect the power of the court to grant or refuse an
adjournment or stay in relation to a proceeding.
(4)
In this section—
family law proceeding means a
proceeding under the Family Law Act 1975
(Cwlth).
Part 6
Deeds and
covenants
Division 1
Deeds
Subdivision 1
Preliminary
44
Definitions for division
In this division—
copy, of an electronic document, means a
reproduction of the document in either electronic or
hard copy form.
counterpart, for a document, see section 45.
director, of a corporation, means—
(a)
if the corporation is
established under an Act of the Commonwealth or a
State—a director under that Act; or
(b)
if the corporation is
established under a constitution or another
governing document—a director under that
constitution or governing document; or
(c)
otherwise—a member of the
board of directors, council or other governing
body of the corporation.
document means a record of information
however recorded and includes—
(a)
a physical document;
and
(b)
an electronic
document.
information includes information in the
form of data, text or images.
seal, of a corporation, includes a common
seal of the corporation.
secretary, of a corporation, means the
clerk, secretary or other permanent officer of the
corporation.
sign, a document, means—
(a)
for a physical
document—physically sign the document; or
(b)
for an electronic
document—electronically sign the document.
45
What is a counterpart for a document
(1)
A counterpart, for a document, is a copy of the
document that includes the entire content of the
document.
(2)
Despite subsection (1), a
counterpart need not include—
(a)
the signatures of all persons
who have signed, or are to sign, the document;
or
(b)
if a seal is, or is to be,
fixed to the document—the seal.
46
Division does not apply to enduring documents
This division does not apply to an enduring
document under the Powers of Attorney Act
1998.
47
Application of division to powers of attorney
(1)
Each of the following documents made by an
individual must be a physical document that is signed by the
individual in the presence of a witness—
(a)
a general power of attorney
made under the Powers of Attorney Act
1998;
(b)
a power of attorney given
under a deed.
(2)
However, a document containing a power of
attorney given by an individual under a deed may be an
electronic document that is electronically signed by the
individual if—
(a)
the document is part of a
commercial or other arms-length transaction;
and
(b)
the power of attorney is given
for the purpose of the commercial or other
arms-length transaction.
Example of
a document that may be electronically signed—
a document containing a power of attorney given by
an individual under a deed as security for a
proprietary interest of another party to the
document or the performance of an obligation owed by
the individual
(3)
To remove any doubt, it is declared
that—
(a)
subsection (2) applies
to a document even if the document is executed at
a different time from, and is separate to, other
documents that form part of the transaction;
and
(b)
a power of attorney given by
an individual under a deed under subsection (2) may be
signed under subsection (2) whether
or not in the presence of a witness.
(4)
This section applies—
(a)
subject to section 53; and
(b)
despite another provision of
this division.
(5)
In this section—
individual includes an individual in
the individual’s capacity as a sole trader.
48
Execution of documents under other Acts
This division does not limit or otherwise
affect the way in which documents are validly executed under the
Land Act 1994 or the
Land Title Act
1994.
Subdivision 2
Form and
execution
49
How
deed is made generally
(1)
A document takes effect as a deed if the
document—
(a)
is in writing; and
(b)
contains a clear statement
that the document is a deed; and
(c)
is executed under this
division; and
(d)
is delivered in accordance
with section 56.
(2)
A document takes effect as a deed under
subsection (1) even
if—
(a)
it is not written on paper or
parchment; or
(b)
it is not an indenture or
stated to be an indenture; or
(c)
it is not sealed or stated to
be sealed.
50
Electronic document and electronic signing
A document that is to have effect as a deed
may be in the form of an electronic document and may be
electronically signed.
51
Execution by individual
(1)
An individual may execute a document that
is to have effect as a deed by signing the document.
(2)
An individual may sign a document under
subsection (1) whether or
not in the presence of a witness.
52
Execution by corporation
(1)
A corporation may execute a document that
is to have effect as a deed, without using a seal, if the
document is signed by—
(a)
2 directors of the
corporation; or
(b)
1 director and 1 secretary of
the corporation; or
(c)
for a proprietary company that
has a sole director—that director, if—
(i)
the director is also the
sole company secretary; or
(ii)
the company does not have a
company secretary; or
(d)
a lawfully authorised agent or
attorney of the corporation, whether or not the
agent or attorney is appointed under seal or under
a deed.
(2)
A corporation with a common seal may
execute a document that is to have effect as a deed if the
seal is fixed to the document and the fixing of the seal is
witnessed by—
(a)
2 directors of the
corporation; or
(b)
1 director and 1 secretary of
the corporation; or
(c)
for a proprietary company that
has a sole director—that director, if—
(i)
the director is also the
sole company secretary; or
(ii)
the company does not have a
company secretary.
(3)
Despite subsections (1) and (2), a corporation sole or
statutory corporation may execute a document that is to have
effect as a deed, without using a seal, if the document is
signed by a person, or in a way, authorised by the Act or another document under
which the corporation is established, incorporated or
registered.
(4)
For a corporation with a common seal
executing a document that is to have effect as a deed, or a
corporation sole or statutory corporation using a seal, the
fixing of the seal to the document is taken to have been
witnessed by a person if—
(a)
the person observes the fixing
of the seal by audio visual link; and
(b)
the person signs the document;
and
(c)
the document includes a
statement that the person observed the fixing of
the seal by audio visual link.
(5)
A corporation that is not incorporated
under a law of the Commonwealth or a State may execute a
document that is to have effect as a deed if the document is
signed by a person, or in a way, authorised by the law of
the place in which the corporation is incorporated.
(6)
A document that is to have effect as a
deed may be signed under this section whether or not in the
presence of a witness.
(7)
If a person signs a document that is to
have effect as a deed for a corporation as a lawfully
authorised agent or attorney for the corporation, the person
must—
(a)
sign the document in a way
that indicates the person is signing as a lawfully
authorised agent or attorney; and
(b)
if the person is an
individual—sign the document under section 51; and
(c)
if the person is a
corporation—sign the document under this
section.
(8)
This section does not limit or otherwise
affect the ways in which a document that is to have effect
as a deed for a corporation may be executed by the
corporation.
(9)
In this section—
attorney, for a corporation, means a
person acting under the authority of a power of
attorney given by the corporation under a deed, a
general power of attorney made under the Powers of Attorney Act
1998, or another law.
audio
visual link means facilities that enable
reasonably contemporaneous and continuous audio and
visual communication between persons at different
places and includes videoconferencing.
statutory corporation means an entity
established, incorporated or registered under an Act
of the Commonwealth or a State, that is not a
corporation registered under the Corporations
Act.
53
Execution by partnership or unincorporated association
(1)
An individual may execute a document that
is to have effect as a deed on behalf of a partnership or
unincorporated association by signing the document.
(2)
An individual may sign a document under
subsection (1) whether or
not in the presence of a witness.
(3)
If an individual signs a document under
subsection (1), the
individual must sign the document in a way that indicates
the person is executing the document on behalf of the
partnership or unincorporated association.
(4)
A reference in subsection (1) to a document
includes a document containing a power of attorney for the
partnership or unincorporated association.
(5)
This section does not limit or otherwise
affect another law or document that requires or permits a
document executed on behalf of a partnership or
unincorporated association to be executed in a particular
way.
Example—
This section does not affect a document that
requires or permits a document executed on behalf of
a partnership to be executed by a stated number of
partners.
54
Execution by the State
(1)
A person who is authorised to execute a
document that is to have effect as a deed for the State may
execute the document by signing the document.
(2)
The person may sign the document under
subsection (1) without using
a seal and whether or not in the presence of a witness.
(3)
If a seal is used to execute a document
that is to have effect as a deed for the State, the fixing
of the seal to the document is taken to have been witnessed
by a person who is authorised to witness the fixing of the
seal if—
(a)
the person observes the fixing
of the seal by audio visual link; and
(b)
the person signs the document;
and
(c)
the document includes a
statement that the person observed the fixing of
the seal by audio visual link.
(4)
This section does not limit or otherwise
affect—
(a)
section 52(3); or
(b)
the State’s powers or legal
capacity under another law.
(5)
In this section—
State includes a public sector unit and
any other entity that represents the State.
55
Signing counterpart or true copy
(1)
A document that is to have effect as a
deed for a person may be signed by or for the person by
signing a counterpart or true copy of the document.
(2)
For subsection (1), if the
counterpart or true copy is electronically signed by a
person, the counterpart or true copy need not include any
material included in the document about the method used for
electronically signing the document.
(3)
In this section—
person includes a partnership, an
unincorporated association and the State.
Subdivision 3
Miscellaneous
matters
56
Delivery
(1)
The execution of a document in the form of
a deed does not, of itself, constitute delivery of a deed,
unless it appears the execution of the document was intended
to constitute delivery of the document.
(2)
Subject to subsection (1), delivery of
a deed may be inferred from any fact or circumstance,
including, for example, words or conduct, that indicates
delivery.
(3)
In this section—
delivery, of a deed, means an intention
to be legally bound by the deed either immediately
or subject to the fulfilment of 1 or more
conditions.
57
Receipt in body of deed sufficient
(1)
A receipt for consideration in the body of
a deed or other document is a sufficient discharge for the
consideration to the person giving the consideration without
any further receipt for the consideration being endorsed on
the deed or document.
(2)
In this section—
consideration includes money and
securities.
58
Deposit of deed in registry
(1)
This section applies to a deed made under
this division that is proposed to be deposited in a registry
for the purpose of supporting another document lodged or
deposited in the registry.
(2)
If the deed is made in counterparts, each
counterpart must be deposited in the registry for the
purpose.
(3)
If the deed or a counterpart of the deed
is in the form of an electronic document, a printed copy of
the deed or counterpart certified under subsection (4) must be
deposited in the registry for the purpose.
(4)
For subsection (3), the printed
copy must be certified as a true copy of the original deed
or counterpart—
(a)
on a page of the printed copy;
and
(b)
by 1 of the following
persons—
(i)
1 of the signatories;
(ii)
a lawyer;
(iii)
a justice;
(iv)
a commissioner for
declarations;
(v)
a notary public;
(vi)
a trustee company under the
Trustee Companies Act
1968;
(vii)
a stockbroker.
(5)
In this section—
registry means—
(a)
the land registry; or
(b)
the water allocations
register under the Water Act
2000.
59
Protection for third parties
(1)
A person may assume that a document has
been duly executed by a corporation if—
(a)
the document appears to have
been signed under section 52(1) or (3); or
(b)
for a corporation using a
seal—
(i)
the seal of the corporation
appears to have been fixed to the document;
and
(ii)
the fixing of the seal
appears to have been witnessed under section 52(2) or (4).
(2)
This section does not limit or otherwise
affect any requirement to be satisfied that a person signing
a document is a director, secretary, or lawfully authorised
agent or attorney, of a corporation.
60
Abolition of rule in Pigot’s case
(1)
The rule of law known as the rule in
Pigot’s case is abolished.
(2)
Accordingly, a material alteration to a
deed does not, by itself, invalidate the deed or render it
voidable, or limit or otherwise affect any obligation under
the deed.
Division 2
Covenants
61
Construction of expressions used in deeds and other documents
(1)
In a deed, contract, will or other document,
unless the context otherwise requires—
(a)
the term month means
calendar month; and
(b)
the term person includes an
individual and a corporation; and
(c)
words indicating a gender include
each other gender; and
(d)
words in the singular include the
plural and words in the plural include the
singular.
(2)
A covenant, power or term implied in a deed,
contract, will, or other document under this Act or another Act
must be construed under subsection (1).
62
Implied
covenants may be negatived
(1)
A covenant, power or term implied, under this
Act or another Act, in a document has the same effect, and may
be enforced in the same way, as if the covenant, power or term
had been expressed in the document.
(2)
However, the covenant, power or term implied
in the document may be negatived, varied or extended by the
express terms of the document or another document.
(3)
This section is subject to this Act or another
Act.
63
Covenants and agreements made by person with self and others
(1)
A covenant, whether express or implied, or
agreement, entered into by a person with the person’s self and 1
or more other persons, has the same effect, and may be enforced
in the same way, as if the covenant or agreement had been
entered into by the person with the other person or persons
alone.
(2)
In this section—
implied includes implied under this Act
or another Act.
64
Covenants relating to land bind successors
(1)
A covenant relating to land of a covenantee is
taken to be made with each of the following—
(a)
the covenantee;
(b)
the covenantee’s successors in
title;
(c)
each person deriving title from a
person mentioned in paragraph (a) or
(b).
(2)
A covenant relating to land of a covenantor,
or land capable of being bound by a covenantor, is taken to be
made by each of the following—
(a)
the covenantor on behalf of the
covenantor’s self;
(b)
the covenantor’s successors in
title;
(c)
each person deriving title from a
person mentioned in paragraph (a) or
(b);
(d)
for a restrictive covenant—the
owners and occupiers for the time being of the land
burdened by the covenant.
(3)
Subsection (2) extends to a
covenant to do some act relating to the land, notwithstanding
that the subject matter of the covenant may not be in existence
when the covenant is made.
(4)
This section applies subject to any agreement
to the contrary.
65
Particular covenants in registered easements bind successors
(1)
This section applies to a covenant contained
in a registered easement over land (the burdened
land) for the benefit of other land.
(2)
If the covenant imposes an obligation, whether
positive or negative, in relation to the use, ownership or
maintenance of the burdened land, the covenant binds the grantor
and the grantee of the easement, and each of their successors in
title.
(3)
Without limiting subsection (2), a covenant
imposes an obligation in relation to the use, ownership or
maintenance of the burdened land if the covenant imposes an
obligation relating to any of the following matters—
(a)
maintenance or repair;
(b)
payment of rates or taxes;
(c)
building, maintenance or repair of
infrastructure used in connection with the
easement.
(4)
Subsection (2) does not apply if
the covenant is expressed to be personal to the grantor or the
grantee of the easement.
(5)
This section does not limit or otherwise
affect the Land Title Act 1994,
part 6, division 4 or 4A.
66
No
right to register restrictive covenant
To remove any doubt, it is declared that this Act
does not confer on any person a right to register a restrictive
covenant.
Part 7
Contracts, sales
of land, instalment contracts and seller disclosure for sales of lots
Division 1
Contracts
67
Effect
of joint promises and liabilities
(1)
Subject to this Act and any other Act—
(a)
a promise made by 2 or more
persons takes effect, unless a contrary intention
appears, as a promise made jointly and severally by
each of those persons; and
(b)
a joint liability is discharged,
or a cause of action with respect to a joint
liability is extinguished, by a fact, event or other
thing only to the extent the liability would be
discharged, or cause of action extinguished, by the
fact, event or other thing if the liability were
joint and several.
(2)
In this section—
promise includes—
(a)
a promise, bond or other
obligation under seal or under a deed; and
(b)
a covenant, whether express
or implied under this Act.
68
Contract containing promise for benefit of third party
(1)
This section applies if—
(a)
a person (the promisor) and another person (the
promisee) enter into a contract;
and
(b)
the contract contains a promise
that the promisor will do or refrain from doing an
act for the benefit of another person who is not a
party to the contract (the third
party).
(2)
The promisor is subject to a duty enforceable
by the third party to perform the promise.
(3)
Subject to the terms of the contract, the
contract or the promise may be terminated or modified by the
agreement of the promisor and promisee before the third party
accepts the benefit of the promise.
(4)
If the third party accepts the benefit of the
promise, either expressly or by conduct, an obligation imposed
by the contract on the third party for the benefit of the
promisor is enforceable by the promisor.
(5)
The promise is enforceable by the third party
in a proceeding brought in the third party’s own name.
(6)
If the third party brings a proceeding under
subsection (5)—
(a)
each party to the contract must be
joined as a party to the proceeding; and
(b)
a defence that would have been
available to the promisor had the third party been a
party to the contract is available to the
promisor.
(7)
If the promise creates an interest in land,
this section applies subject to part 2, division 1.
(8)
In this section—
contract includes a deed or another
document if the deed or other document provides for the
giving of consideration.
third
party includes—
(a)
a person designated by name,
description or class; and
(b)
a person not in existence
when a promise is made.
69
Guarantee not enforceable unless in writing
(1)
A guarantee is not enforceable in a proceeding
unless—
(a)
the guarantee is in writing or its
terms are recorded in writing; and
(b)
the guarantee or written record is
signed by the party against whom the guarantee is
sought to be enforced.
(2)
However, subsection (1) does not require
the consideration given for the guarantee to appear in writing
or by necessary inference from a written document.
(3)
Subject to the National Consumer Credit Protection Act
2009 (Cwlth), a guarantee may comply
with subsection (1) even if the
guarantee is—
(a)
an electronic document; or
(b)
digitally signed.
(4)
In this section—
digitally sign, an electronic document,
means sign the document using a method mentioned in the
Electronic Transactions
(Queensland) Act 2001, section 14.
guarantee includes an indemnity.
70
Effect
of conclusive evidence provision
(1)
If a contract or other document provides that
a certificate of a person is conclusive evidence of a fact, the
certificate is evidence, but not conclusive evidence, of the
fact.
(2)
However, subsection (1) does not apply
to—
(a)
a certificate of a person bound to
act judicially, quasi-judicially or as an arbitrator
in giving the certificate; or
(b)
a certificate of an expert,
including, for example, an architect or engineer,
required to be independent and act fairly to the
parties to the contract or other document in giving
the certificate; or
(c)
a provision in a contract or other
document agreed to after a dispute has arisen about
the fact.
(3)
Subsection (1) applies—
(a)
subject to any other Act;
and
(b)
despite any agreement to the
contrary.
(4)
In this section—
certificate includes a statement and an
opinion.
fact includes a circumstance, event,
matter and state of affairs.
71
Effect
on contract of non-compliance with statutory instrument
(1)
A statutory instrument, other than prescribed
subordinate legislation, does not and can not—
(a)
render voidable or unenforceable
any contract or disposition concerning property that
is made, entered into or effected contrary to the
statutory instrument; or
(b)
for a contract for the sale of
land—give a party to the contract a right to
terminate the contract for a failure by another
party to the contract to comply with the statutory
instrument.
(2)
In this section—
prescribed subordinate legislation means
subordinate legislation prescribed by regulation for
this section.
72
Effect
of statutory requirement for certificate
(1)
This section applies if an Act requires a
certificate to be obtained or given before or when—
(a)
entering a contract for the
disposition of property; or
(b)
making a disposition of
property.
(2)
It is sufficient compliance with the
requirement if the certificate is obtained or given before
settlement of the contract or disposition.
(3)
Subsection (2) does not apply if
this Act or another Act expressly provides otherwise.
(4)
In this section—
certificate includes an approval and a
consent.
settlement, of a contract or disposition,
means—
(a)
for a sale—settlement of the
sale; or
(b)
for a lease—entry into
possession under the lease by the lessee; or
(c)
for a mortgage—the
acceptance of liability under the mortgage by the
mortgagor; or
(d)
otherwise—the finalisation
of the contract or disposition.
73
Stipulations not of essence of contract
(1)
This section applies to a stipulation in a
contract, as to time or otherwise, that under the rules of
equity is not of the essence of the contract.
(2)
The stipulation must be construed, and has
effect at law, under the rules of equity.
Division 2
Sales
of land
74
Definitions for division
In this division—
computer means all or part of a computer,
computer system or computer network and includes, for
example, all external devices connected to the computer in
any way or capable of communicating with each other as part
of a system or network.
conveyancing transaction see the Electronic
Conveyancing National Law
(Queensland), section 3.
e-conveyance means a conveyancing transaction
to be completed using e-conveyancing.
e-conveyancing means a system of land
conveyancing that uses an ELN to lodge documents
electronically for the purpose of land titles
legislation.
electronic
workspace, for an e-conveyance, means a shared
electronic workspace within an ELN that allows the
participating subscribers to the e-conveyance—
(a)
to lodge a document
electronically under the Electronic
Conveyancing National Law
(Queensland); and
(b)
if relevant, to authorise or
complete financial settlement of the
e-conveyance.
ELN means an Electronic Lodgment Network
under the Electronic
Conveyancing National Law
(Queensland).
financial
settlement, of an e-conveyance, means the
exchange of value, in an ELN, between financial institutions
in accordance with the instructions of participating
subscribers to the e-conveyance.
land titles
legislation see the Electronic Conveyancing National Law
(Queensland) Act 2013, section 6.
participating subscriber, to an e-conveyance,
means a subscriber who is involved in the e-conveyance as a
party to the e-conveyance or as a representative of a
party.
sale, of land, includes an exchange for
value.
subscriber see the Electronic
Conveyancing National Law
(Queensland), section 3.
75
Reference to settlement of sale of land using e-conveyancing
(1)
A reference in this Act or another Act to the
settlement, however described, of the sale of land or a contract
for the sale of land, using e-conveyancing, is a reference to
the electronic workspace for the e-conveyance recording—
(a)
financial settlement of the sale;
or
(b)
if there is no financial
settlement of the sale—the acceptance by the
registrar, for electronic lodgement, of the
documents necessary to transfer title.
(2)
Subsection (1) does not apply if
this Act or another Act expressly provides otherwise.
76
Implied
conditions
(1)
The following conditions are implied in a
contract for the sale of land—
(a)
the seller must give the buyer, at
the cost of the seller, a copy of each document, in
relation to which a caveat is registered, that is in
the possession of the seller;
(b)
the seller must, at the cost of
the seller, remove any objection to the registration
of any document required to give effect to the
contract unless—
(i)
the objection arises from
the buyer’s own act or omission; or
(ii)
the objection may have been
discovered by a reasonable person in the position
of the buyer, and was not raised by the buyer,
before settlement;
(c)
if the seller is required under
the contract to transfer the land free from
encumbrances—the seller must, on settlement of the
contract—
(i)
discharge any encumbrances
out of the purchase money payable under the
contract by the buyer; and
(ii)
for an encumbrance
registered on the title to the land—give the buyer
a release of the encumbrance in registrable
form.
(2)
Also, if a sale of land is not an
e-conveyance, the following conditions are implied in the
contract for the sale of the land—
(a)
payment or tender of money payable
under the contract may be made by a cheque drawn on
a financial institution;
(b)
settlement of the contract must
take place at—
(i)
the office of the land
registry at which the document relating to the
sale may be lodged; or
(ii)
if there is more than 1
office under subparagraph (i)—the
office of the land registry nearest the
land.
(3)
This section applies subject to the terms of
the contract for the sale of the land.
77
Buyer
may rescind contract if residential dwelling unfit for
occupation
(1)
This section applies if—
(a)
parties enter into a contract for
the sale of land; and
(b)
the land contains or comprises a
residential dwelling; and
(c)
before the earlier of the
following to happen, the residential dwelling is so
damaged or destroyed as to be unfit for occupation
as a residential dwelling—
(i)
the settlement of the
contract;
(ii)
the buyer taking possession
of the land under the contract or another
document.
(2)
The buyer may rescind the contract by giving
notice to the seller of the rescission before the earliest of
the following to happen—
(a)
the settlement of the
contract;
(b)
the buyer taking possession of the
land under the contract or another document;
(c)
the seller restoring the
residential dwelling to the condition it was in
immediately before it was so damaged or destroyed as
to be unfit for occupation as a residential
dwelling.
(3)
If the seller restores the residential
dwelling to the condition it was in immediately before it was so
damaged or destroyed as to be unfit for occupation as a
residential dwelling, the seller must give notice to the buyer
of the restoration as soon as practicable after the
restoration.
(4)
The buyer may, after receiving notice under
subsection (3) and giving
reasonable notice to the seller, inspect the residential
dwelling.
(5)
On rescission of the contract, an amount, if
any, paid under the contract by the buyer must be refunded to
the buyer.
(6)
This section applies despite any agreement to
the contrary.
(7)
In this section—
residential dwelling—
(a)
means a building or part of
a building used, or currently designed for use,
only as a single dwelling; and
(b)
includes a residential
dwelling that comprises—
(i)
a lot included in a
community titles scheme; or
(ii)
a lot under the Building Units and Group
Titles Act 1980; or
(iii)
a leasehold building units
lot under the South Bank Corporation Act
1989, section 97B; and
(c)
does not include a building
or part of a building used, or currently designed
for use, as temporary accommodation.
78
When
day of settlement is next business day
(1)
This section applies if—
(a)
parties enter into a contract for
the sale of land; and
(b)
the contract provides that the day
of settlement of the contract is a day that is not a
business day in—
(i)
the place where the contract
is to be settled; or
(ii)
if the contract is to be
settled electronically and the contract does not
provide for a place where the contract is to be
settled—the place where the land is located;
and
(c)
the contract does not designate
the day mentioned in paragraph (b) as a
Saturday, Sunday or public holiday.
(2)
Despite the terms of the contract, the day of
settlement of the contract is—
(a)
if the parties to the contract
agree to another day of settlement—the day agreed;
or
(b)
otherwise—the next business day in
the place mentioned in subsection (1)(b) after the day of
settlement provided for in the contract.
79
Effect
of inoperative computers in office of the land registry on day of
settlement
(1)
This section applies if—
(a)
parties enter into a contract for
the sale of land; and
(b)
the contract provides that time is
of the essence; and
(c)
the buyer, without default on the
buyer’s part, can not, on the day of settlement of
the contract, verify the seller’s title because
computers in the office of the land registry being
used to verify the seller’s title are
inoperative.
(2)
Time stops being of the essence of the
contract.
(3)
The seller is taken—
(a)
not to have proved title to the
land; and
(b)
not to be in breach of the
contract only because of the failure to prove title
at that time.
(4)
The seller or buyer may give a notice to the
other party to the contract to complete the contract.
(5)
The notice must state—
(a)
that the computers are again fully
operational; and
(b)
the day, at least 3 business days
but not more than 7 business days after the day the
notice is given, for settlement of the
contract.
(6)
The notice may not be given earlier than the
day after the first continuous day of operation of the computers
after the computers are again fully operational.
(7)
From a party’s receipt of the notice, time is
again of the essence of the contract.
(8)
This section applies subject to the terms of
the contract for the sale of the land.
80
Effect
of inoperative computers in particular entities on day of
settlement
(1)
This section applies if—
(a)
parties enter into a contract for
the sale of land that is an e-conveyance; and
(b)
the contract provides that time is
of the essence; and
(c)
the contract can not, on the day
of settlement of the contract, be settled because
computers used by any of the following entities are
inoperative, including, for example, because the
entity is closed for business—
(i)
an office of the land
registry;
(ii)
an office of the
Commissioner of State Revenue under the Taxation Administration Act
2001;
(iii)
the Reserve Bank of
Australia;
(iv)
a financial
institution;
(v)
an ELN.
(2)
The parties to the contract are taken not to
be in breach of the contract only because of the failure, on the
day of settlement of the contract, to complete settlement of the
contract.
(3)
Time does not stop being of the essence of the
contract.
(4)
The day of settlement of the contract is taken
to be the next business day.
(5)
The parties must do everything required under
the ELN to enable the contract to be settled on the next
business day.
(6)
This section applies subject to any agreement
to the contrary.
(7)
In this section—
business day means a day that is
not—
(a)
a Saturday or Sunday;
or
(b)
a public holiday in—
(i)
the place where the contract
is to be settled; or
(ii)
if the contract is to be
settled electronically and the contract does not
provide for a place where the contract is to be
settled—the place where the land is located;
or
(c)
a day in the period starting
on 27 December and ending on 31 December.
81
Effect
of adverse event on day of settlement
(1)
This section applies if—
(a)
parties enter into a contract for
the sale of land; and
(b)
the contract provides that time is
of the essence; and
(c)
a party to the contract (the
non-attending party), because of an
adverse event, can not, on the day and at the time
of settlement of the contract, complete settlement
of the contract.
(2)
Time stops being of the essence of the
contract.
(3)
The non-attending party—
(a)
must take reasonable steps to
mitigate the effects of the adverse event on the
settlement of the contract; and
(b)
subject to compliance with paragraph (a)—is taken
not to be in breach of the contract only because of
the failure, on the day and at the time of
settlement of the contract, to complete settlement
of the contract.
(4)
Despite the terms of the contract, but subject
to any right under the contract to nominate a new day and time
of settlement of the contract, the day and time of settlement of
the contract are—
(a)
if the parties to the contract
agree to another day and time—the day and time
agreed; or
(b)
otherwise—the day and time
determined under subsections (5) to
(8).
(5)
The non-attending party must—
(a)
as soon as practicable after the
adverse event, tell the other party of the adverse
event and how the adverse event has caused the
non-attending party to fail to complete settlement
of the contract; and
(b)
as soon as practicable after the
adverse event stops preventing the non-attending
party from completing settlement of the contract,
give a notice to the other party to the contract to
complete the contract.
(6)
The notice under subsection (5)(b) must state—
(a)
a day, at least 5 business days
and not more than 10 business days after the day the
notice is given, for settlement of the contract;
and
(b)
a time for settlement of the
contract.
(7)
From a party’s receipt of a notice under
subsection (5)(b) and (6), time is again of the essence of
the contract.
(8)
If a notice is given under subsection (5)(b) by the buyer and the seller in
relation to the same adverse event on the same day of
settlement, the notice given by the seller prevails.
(9)
In this section—
adverse
event means an event that causes serious
disruption to a community, including, for example—
(a)
a cyclone, fire, flood,
landslide, seismic event, storm, storm tide,
tsunami or tornado; and
(b)
a public health emergency
under the Public Health Act
2005; and
(c)
a requirement to comply with
a lawful direction or order given by a government
entity under a law of the Commonwealth or a State;
and
(d)
an act of terrorism,
activity related to war, civil commotion, public
disturbance or riot; and
(e)
an explosion or sudden
impact of an object, including, for example, an
aircraft or object from space.
business day means a day that is
not—
(a)
a Saturday or Sunday;
or
(b)
a public holiday in—
(i)
the place where the contract
is to be settled; or
(ii)
if the contract is to be
settled electronically and the contract does not
provide for a place where the contract is to be
settled—the place where the land is located;
or
(c)
a day in the period starting
on 27 December and ending on 31 December.
82
Direction for payment given by seller’s authorised agent sufficient
discharge of buyer
(1)
A written direction given by a seller’s
authorised agent to the buyer or the buyer’s authorised agent in
relation to the payment of money under a contract for the sale
of land is sufficient discharge of the buyer in relation to the
payment of the money.
(2)
In this section—
authorised agent means—
(a)
a legal practitioner;
or
(b)
a manager of a financial
institution.
83
Buyer
may recover damages if defective title
(1)
The rule of law known as the rule in Bain v
Fothergill is abolished in relation to a contract for
the sale or other disposition of land.
(2)
The court may award damages for loss of
bargain against a seller who can not perform a contract for the
sale or other disposition of land because of a defect in the
seller’s title.
(3)
This section does not affect a right, power or
remedy available to a buyer under a contract for the sale or
other disposition of land in relation to a defect in the
seller’s title, or a failure of the seller to perform the
contract, that is available under a law other than this
section.
(4)
This section applies despite any agreement to
the contrary.
84
Buyer
may recover deposit and instalments if defective title but no
rescission
(1)
This section applies if a seller is not
entitled to specific performance of a contract for the sale of
land against a buyer because of a defect in the seller’s title
but the defect does not entitle the buyer to rescind the
contract.
(2)
The buyer may recover the buyer’s deposit and
any instalments under the contract and is relieved from all
liability under the contract, unless the contract discloses the
defect and contains a term precluding the buyer from objecting
to the defect.
(3)
If the defect was known, or should reasonably
have been known, to the seller at the date of the contract the
buyer may also recover the buyer’s expenses of investigating the
title.
(4)
Also, without being limited by subsection (1), in any
proceeding in which the court refuses to order specific
performance of a contract, or in which the buyer seeks return of
the deposit or any instalments under a contract, the court may
order the repayment of the deposit and any instalments.
(5)
This section applies despite any agreement to
the contrary.
85
Seller
may forfeit deposit of no more than 20 per cent if buyer breaches
contract for sale of proposed lot
(1)
This section applies in relation to a contract
for the sale of a proposed lot.
(2)
The contract may provide for a sum of not more
than 20% of the purchase price of the proposed lot that is paid
under the contract as a deposit, whether paid in 1 or more
amounts, to be forfeited and retained by the seller in the event
of a breach of the contract by the buyer.
(3)
However, the sum mentioned in subsection (2) may only be
forfeited or retained by the seller if the breach of the
contract by the buyer results in termination of the
contract.
(4)
The sum mentioned in subsection (2) is not, either at
law or in equity, a penalty if the sum is forfeited or retained
by the seller under subsection (3).
86
When
statutory right of termination on settlement ends if
e-conveyance
(1)
This section applies if—
(a)
an Act provides for a right of
termination, however described, in relation to a
sale of land or a contract for the sale of land;
and
(b)
the right is expressed to end on
settlement; and
(c)
the sale is completed using
e-conveyancing.
(2)
The right of termination—
(a)
ends on settlement; and
(b)
may not be exercised during any
period the electronic workspace for the e-conveyance
is locked for the purpose of settlement.
(3)
In this section—
locked, in relation to an electronic
workspace for an e-conveyance, means the ELN for the
workspace does not allow a participating subscriber to
the e-conveyance to change a document or instruction in
the workspace.
Division 3
Instalment contracts for sale of land
87
Definitions for division
In this division—
buyer, in relation to an instalment contract,
includes a person deriving an interest under the contract
from the original buyer.
contract, for the sale of land,
includes—
(a)
an agreement for the sale of
land; and
(b)
an option to purchase
land.
deposit, in relation to a contract for the
sale of land, means a sum of not more than the prescribed
percentage of the purchase price of the land that is payable
by the buyer in 1 or more amounts, and refundable to the
buyer if the seller breaches the contract or does not fulfil
a contingent condition of the contract.
instalment, in relation to a contract for the
sale of land, does not include—
(a)
an option fee relating to the
land; or
(b)
an amount paid by the buyer,
after the contract was entered into and before
settlement of the contract, in relation to any of
the following—
(i)
maintenance of the
land;
(ii)
rent and outgoings relating
to the land;
(iii)
rates and taxes relating to
the land;
(iv)
interest on any part of the
purchase price under the contract for the
land;
(v)
an extension of time to
complete the contract.
instalment
contract see section 89.
option
fee, relating to land, means an amount paid
for the grant or exercise of an option to purchase the
land.
prescribed
percentage, of the purchase price of land,
means—
(a)
if the land is a proposed
lot—20%; or
(b)
otherwise—10%.
seller, in relation to an instalment
contract, includes a person to whom the rights of the seller
under the contract have been assigned with the consent under
section 92 of the
buyer.
88
Application of division
(1)
This division applies in relation to an
instalment contract despite any agreement to the contrary.
(2)
However, despite section 3, this division does
not bind the State, the Commonwealth or the other States.
(3)
To remove any doubt, it is declared that this
division does not apply in relation to a contract for the sale
of land by the public trustee.
(4)
In this section—
public
trustee see the Public Trustee Act
1978, section 6.
89
What is
an instalment contract
An instalment
contract is a contract for the sale of land under
which the buyer is bound to make 1 or more payments by instalment of
the purchase price of the land, other than a deposit, and is not
entitled to receive a transfer of the title to the land in exchange
for the payments.
90
When
buyer must give seller notice to constitute contract an instalment
contract
(1)
This section applies if a contract for the
sale of land may, at the election of the buyer, be performed in
a way that would constitute the contract an instalment
contract.
(2)
The contract is not an instalment contract
unless and until the buyer gives the seller a notice stating
that the buyer elects to perform the contract in a way that will
constitute the contract an instalment contract.
91
Restriction on seller’s right to termination if buyer defaults on
payment of instalment
(1)
The seller under an instalment contract may
not terminate the contract because of default by the buyer in
payment of an instalment of the purchase price of the land, or
in payment of any other sum of money, other than a deposit,
until 30 days after the seller gives the buyer a notice in the
approved form about the default.
(2)
If a buyer receives a notice under subsection (1) about a default
by the buyer in payment of an instalment or sum of money
mentioned in subsection (1), the buyer may,
within 30 days after the seller gives the notice to the buyer,
pay the outstanding instalment or sum to the seller.
(3)
If a buyer pays the outstanding instalment or
sum to the seller under subsection (2), any right or
power of the seller to terminate the contract because of the
default ends and the buyer is taken not to be in default under
the instalment contract.
92
Seller
can not sell or mortgage land
(1)
The seller under an instalment contract must
not without the consent of the buyer sell or mortgage the land
the subject of the contract.
(2)
The buyer may give consent under subsection (1) only by giving
the seller a notice stating that—
(a)
the buyer has received a notice
from the seller stating the terms of the sale or
mortgage; and
(b)
the buyer consents to the sale or
mortgage on the stated terms.
(3)
If land is sold or mortgaged in contravention
of subsection (1), the instalment
contract is voidable by the buyer before settlement of the
contract.
(4)
If the buyer elects to render the instalment
contract void under subsection (3), the buyer may
recover as a debt a deposit or instalment paid to the seller
under the contract.
(5)
This section does not limit or otherwise
affect—
(a)
a right or remedy of the buyer
under a law other than this section; or
(b)
a right of another person who buys
from the seller in good faith, for value and without
notice of the instalment contract.
(6)
In this section—
consent, to a sale or mortgage, means consent
to the stated terms of the sale or mortgage.
93
Buyer
may lodge caveat
(1)
The buyer under an instalment contract may, by
a caveat under the Land Title Act 1994 that
is stated to be lodged under this section, forbid the
registration of any document affecting the land the subject of
the contract until settlement of the contract.
(2)
The caveat is taken, for the Land Title Act 1994, to
have been lodged other than under part 7, division 2 of that Act.
(3)
The caveat may, on the application of any
person interested, be removed on proof to the satisfaction of
the registrar or of the court that—
(a)
the buyer has consented to removal
of the caveat; or
(b)
the instalment contract has been
rescinded or terminated or discharged by performance
or otherwise; or
(c)
the caveat should be removed on
another ground.
(4)
This section does not limit or otherwise
affect the powers of the registrar in relation to caveats under
the Land Title Act
1994.
94
Buyer
not in default may require seller to transfer land
(1)
A buyer not in default under an instalment
contract may give a notice to the seller requiring the seller to
transfer the land on a stated day (the day of
settlement) in exchange for payment of the balance
of the purchase money owing at the day of settlement.
(2)
The notice must—
(a)
make time of the essence of the
contract, if time is not already of the essence of
the contract; and
(b)
be given to the seller at least 3
months before the day of settlement.
Division 4
Seller
disclosure for sales of lots
Subdivision 1
Preliminary
95
Definitions for division
In this division—
buyer, under a contract for the sale of a
lot, means—
(a)
if the contract is an
option—
(i)
for a call option—the
grantee of the option; or
(ii)
for a put option—the grantor
of the option; or
(iii)
for a put and call option—a
person who is the grantee of the call option or
grantor of the put option; or
(b)
otherwise—the person who is
bound under the contract, absolutely or
conditionally, to buy the lot.
call
option, for the sale of a lot, means an
agreement or promise under which the grantor of the
option agrees or promises to sell the lot to the grantee
of the option if requested by the grantee.
contract, for the sale of a lot,
includes—
(a)
an agreement or promise for
the sale of the lot; and
(b)
an option for the sale of
the lot.
disclosure documents, for a lot, means
the documents required to be given by the seller of the
lot to the buyer of the lot under section 99.
disclosure statement, for a lot, see
section 99(1)(a).
listed
corporation see the Corporations
Act, section 9.
lot—
(a)
has the meaning given by the
Land Title Act
1994; and
(b)
does not include a proposed
lot.
option, for the sale of a lot,
means—
(a)
a put option for the sale of
the lot; or
(b)
a call option for the sale
of the lot; or
(c)
a put and call option for
the sale of the lot.
prescribed certificate, applicable to a
lot, see section 99(1)(b).
put and
call option, for the sale of a lot, means
a contract under which there is a call option for the
sale of the lot and a put option for the sale of the
lot.
put
option, for the sale of a lot, means an
agreement or promise under which the grantor of the
option agrees or promises to purchase the lot from the
grantee of the option if requested by the grantee.
related, for a buyer of a lot and a
seller of a lot, see section 96.
seller, under a contract for the sale of
a lot, means—
(a)
if the contract is an
option—
(i)
for a call option—the
grantor of the option; or
(ii)
for a put option—the grantee
of the option; or
(iii)
for a put and call option—a
person who is the grantor of the call option or
grantee of the put option; or
(b)
otherwise—the person who is
bound under the contract, absolutely or
conditionally, to sell the lot.
statutory body—
(a)
has the meaning given by the
Financial Accountability Act
2009; and
(b)
includes—
(i)
an entity of the
Commonwealth or another State that is equivalent
to a statutory body under the Financial Accountability Act
2009; and
(ii)
an entity prescribed by
regulation to be a statutory body for this
definition; and
(c)
does not include an entity
prescribed by regulation not to be a statutory
body for this definition.
96
When buyer and seller are related
(1)
The buyer of a lot and the seller of a lot
are related if—
(a)
for a seller who is an
individual—
(i)
the buyer is a relative of
the seller; or
(ii)
the buyer is in a
partnership under the Partnership Act
1891 with the seller; or
(iii)
the buyer is a corporation
of which the seller is a director or member;
or
(iv)
the buyer is a related body
corporate of a corporation of which the seller is
a director or member; or
(b)
for a seller that is a
corporation—
(i)
the buyer is a related body
corporate; or
(ii)
if the seller is a
corporation other than a listed corporation—the
buyer is a director or member of the corporation
or of a related body corporate.
(2)
In this section —
related body corporate see the Corporations
Act, section 9.
relative, of a seller, means—
(a)
a parent, step-parent or
grandparent of the seller; or
(b)
a sibling, half-sibling or
step-sibling of the seller; or
(c)
an uncle, aunt, nephew,
niece or cousin of the seller; or
(d)
a child, step-child or
grandchild of the seller; or
(e)
a spouse of the seller;
or
(f)
if the seller has a spouse—a
person who is a relative, of the type mentioned in
any of paragraphs (a) to
(d), of the seller’s
spouse; or
(g)
if the seller is an
Aboriginal person or Torres Strait Islander—a
person who is a relative, of the type mentioned in
any of paragraphs (a) to
(f), of the seller under
Aboriginal tradition or Island custom.
97
References to things done by or in relation to buyer or
seller
(1)
This section applies in relation to a
provision of this division that refers to—
(a)
a thing required or permitted
to be done by or in relation to a buyer of a lot
or a seller of a lot; or
(b)
a thing having been done by or
in relation to a buyer of a lot or a seller of a
lot.
(2)
The thing may be done, or the thing may
have been done, by or in relation to the buyer of the lot or
seller of the lot either—
(a)
personally; or
(b)
by an agent who is authorised
to act for the buyer or seller in relation to the
thing.
Examples—
1
A seller of a lot may sign a
disclosure statement for the lot personally or by
an agent authorised to act for the seller.
2
A seller of a lot may give
to the buyer of the lot a disclosure statement for
the lot personally or by an agent authorised to
act for the seller.
98
Contracting out prohibited
This division applies despite any agreement to
the contrary.
Subdivision 2
Disclosure
requirement
99
Seller must give buyer disclosure documents
(1)
Before a contract for the sale of a lot is
signed by the buyer, the seller must give the buyer—
(a)
a statement (a disclosure statement) for the lot;
and
(b)
each document prescribed by
regulation (each a prescribed certificate) applicable to
the lot.
Note—
See section 97 in relation
to acting by an agent.
(2)
The disclosure statement must—
(a)
be in the approved form;
and
(b)
include the information
prescribed by regulation; and
(c)
be completed with the
information that is true at the time the statement
is given to the buyer; and
(d)
be signed by the seller.
(3)
The approved form must contain, in
appropriate places on the form, the warnings and other
statements prescribed by regulation.
(4)
A prescribed certificate may be a document
that is required to be given to the buyer under another
Act.
Examples of
prescribed certificates—
1
a document relating to the
lot issued under another Act
2
a document in which the
seller of the lot certifies a stated thing has
been done under another Act in relation to the
lot
3
a document containing
information about the lot in a register kept under
another Act
(5)
For a contract under which there are 2 or
more sellers of a lot, a reference in subsection (1) to the seller
of a lot giving a disclosure statement or prescribed
certificate is a reference to any of the sellers giving the
statement or certificate.
(6)
For a contract under which there are 2 or
more buyers of a lot—
(a)
a reference in subsection (1) to the
seller of a lot giving a disclosure statement or
prescribed certificate to a buyer of the lot is a
reference to giving the statement or certificate
to any of the buyers; and
(b)
a reference in subsection (1) to the
time the buyer of the lot signed the contract is a
reference to the time the first buyer signed the
contract.
(7)
To remove any doubt, it is declared that a
disclosure statement may be an electronic document and may
be electronically signed.
100
Exceptions to requirement
The seller of a lot is not required to comply
with section 99 if—
(a)
both of the following apply—
(i)
the buyer of the lot and the
seller of the lot are related, or if there is more
than 1, all of the buyers and all of the sellers
are related;
(ii)
before the buyer of the lot
signs the contract for the sale of the lot, the
buyer gives the seller of the lot, or if there is
more than 1, any of the sellers, a notice waiving
compliance with section 99; or
Example—
A seller is selling a lot to a parent and a
person who is not related to the seller. The buyer
who is the seller’s parent gives the seller a
notice waiving compliance with section 99. The
exception under paragraph (a) does not
apply in relation to the contract because not all
of the buyers are related to the seller.
(b)
the buyer of the lot is—
(i)
the State, the Commonwealth
or another State; or
(ii)
a local government or a
local government, however described, of another
State; or
(iii)
a constructing authority
under the Acquisition of Land Act
1967; or
(iv)
a statutory body; or
(v)
a listed corporation; or
(vi)
a subsidiary of a listed
corporation; or
(c)
the seller of the lot is the
Brisbane City Council or another local government
and—
(i)
the contract gives effect to
the exercise of a power under the City of Brisbane Act
2010 or the Local Government Act
2009 to sell land to recover
overdue rates or charges; and
(ii)
before the contract for the
sale of the lot is signed by the buyer of the lot,
the seller gives the buyer, or if there is more
than 1, any of the buyers, a notice stating
that—
(A)
the buyer needs to make the
buyer’s own enquiries about matters affecting the
property; and
(B)
the seller is not required
to comply with section 99; or
(d)
the seller of the lot is the State
and—
(i)
the buyer of the lot was a
tenant of the lot for at least 3 years immediately
before entering the contract; and
(ii)
before the contract for the
sale of the lot is signed by the buyer of the lot,
the seller gives the buyer, or if there is more
than 1, any of the buyers, a notice stating
that—
(A)
the buyer needs to make the
buyer’s own enquiries about matters affecting the
property; and
(B)
the seller is not required
to comply with section 99; or
(e)
the seller of the lot and the
buyer of the lot are co-owners of the lot and the
contract provides for the acquisition by 1 or more
co-owners of the whole or part of the interest of
another co-owner; or
(f)
the seller of the lot and the
buyer of the lot are owners of adjoining land and
the contract provides for the adjustment of a common
boundary; or
(g)
the contract gives effect
to—
(i)
a court order; or
(ii)
an enforcement warrant under
the Supreme Court of Queensland
Act 1991; or
(iii)
a financial agreement or a
part VIIIAB financial agreement under the Family Law Act 1975
(Cwlth); or
(h)
the contract gives effect
to—
(i)
the transmission of an
interest in the lot, because of the death of an
owner of the lot, to the owner’s personal
representative; or
(ii)
the transfer or transmission
of an interest in the lot, because of the death of
an owner of the lot, to a person under the owner’s
will, the rules of intestacy or a court order
under the Succession Act
1981, part 4; or
(i)
the contract is for the sale of a
lot under the Acquisition of Land Act
1967, section 41; or
(j)
all of the following apply—
(i)
the contract for the sale of
the lot arises from the exercise of an option for
the sale of the lot;
(ii)
the buyer under the contract
for the sale of the lot and the option for the
sale of the lot are the same;
(iii)
the seller of the lot
complied with section 99 in relation
to the option for the sale of the lot; or
(k)
both of the following apply—
(i)
the sale price under the
contract is more than—
(A)
the amount prescribed by
regulation for this subparagraph; or
(B)
if no amount is prescribed
for this subparagraph—$10m including GST;
(ii)
before the contract for the
sale of the lot is signed by the buyer of the lot,
the buyer gives the seller of the lot, or if there
is more than 1, any of the sellers, a notice
waiving compliance with section 99.
101
How disclosure documents to be given
(1)
A seller of a lot may give a buyer of the
lot the disclosure documents for the lot in a way mentioned
in—
(a)
section 231(1)(a)(i) or (ii) or (b)(i); or
(b)
section 102.
(2)
If the lot is sold by auction—
(a)
for section 99(1), the contract for the
sale of the lot is taken to be signed by the buyer
of the lot at the completion of the auction;
and
(b)
if the buyer of the lot was
registered as a bidder before the start of the
auction, the seller of the lot is taken to have
given the buyer the disclosure documents before
the completion of the auction only if the seller
gave the buyer the disclosure documents before the
start of the auction; and
(c)
if the buyer of the lot was
not registered as a bidder until after the start
of the auction and was not given the disclosure
documents under subsection (1), the
seller of the lot is taken to have given the buyer
the disclosure documents before the completion of
the auction only if the seller complies with
section 103.
(3)
The seller of a lot has the onus of
proving that the seller gave the buyer of the lot the
disclosure documents.
(4)
To remove any doubt, it is declared
that—
(a)
this section does not limit or
otherwise affect—
(i)
the Acts Interpretation Act
1954, section 39; or
(ii)
the Electronic Transactions
(Queensland) Act 2001; and
(b)
a seller of a lot may give a
buyer of the lot the disclosure documents by
separate or different communications and modes of
communications and is not required to give the
disclosure documents in a singular
communication.
(5)
In this section—
completion, of an auction for a lot,
means the time at which the auctioneer announces the
completion of the sale of the lot by the fall of the
hammer or in another customary way.
102
Electronic communication of disclosure documents
(1)
A seller of a lot may give a buyer of the
lot the disclosure documents for the lot by giving the buyer
a separate physical document (a communication) stating that—
(a)
the disclosure documents can
be viewed by using an electronic link; and
(b)
the buyer may ask the seller
for a copy of the disclosure documents.
(2)
Also, if the buyer has consented to the
disclosure documents being sent to an electronic address,
the seller may give the buyer the disclosure documents by
sending an electronic communication (also a communication) to the electronic address
that—
(a)
attaches the disclosure
documents; or
(b)
includes the content of the
disclosure documents; or
(c)
includes an electronic link
that allows the person to view and obtain a copy
of the disclosure documents.
(3)
For subsections (1)(a) and (2)(c), the buyer is taken to have
received the disclosure documents only if, by using the
electronic link, the buyer would have been able to view and
obtain a copy of the disclosure documents—
(a)
at the time the communication
was given or sent (the sending time); and
(b)
for a reasonable period after
the sending time.
(4)
Subsection (3) applies
whether or not the buyer used the electronic link.
(5)
Unless otherwise agreed between the seller
of the lot and the buyer of the lot, a communication under
subsection (1) or (2) is taken to be received by
the buyer—
(a)
for a physical document—
(i)
if the communication is
given to the buyer personally—when the
communication is given to the buyer personally;
or
(ii)
if the communication is sent
to the buyer by post— 7 business days after the
communication was sent unless the actual time the
document was received by post is proven; or
(b)
for an electronic
communication—
(i)
if the communication is sent
to the buyer at an electronic address designated
by the buyer—when the communication becomes
capable of being retrieved by the buyer at the
address; or
(ii)
if the communication is sent
to the buyer at another electronic address of the
buyer—when both of the following are
satisfied—
(A)
the buyer becomes aware that
the communication has been sent to the
address;
(B)
the communication becomes
capable of being retrieved by the buyer at the
address.
(6)
Unless otherwise agreed between the seller
of the lot and the buyer of the lot, an electronic
communication is taken to be capable of being retrieved by
the buyer at the electronic address of the buyer when the
communication reaches the address.
(7)
Subsection (8) applies if
the buyer of a lot is given a communication under subsection (1) and asks the
seller of the lot for a copy of the disclosure
documents.
(8)
The seller is taken to have given the
buyer the disclosure documents only if, before the contract
for the sale of the lot is signed by the buyer, the seller
gives the buyer a copy of the disclosure documents in hard
copy or electronic form.
(9)
In this section—
consent, to disclosure documents being
sent to an electronic address—
(a)
includes consent that can
reasonably be inferred from the conduct of the
buyer of the lot; and
(b)
does not include consent
given subject to conditions unless the conditions
are complied with.
103
Giving of disclosure documents to buyer who is not registered as
bidder until after start of auction
(1)
This section applies if—
(a)
a lot is sold by auction;
and
(b)
the buyer of the lot was not
registered as a bidder until after the start of
the auction.
(2)
The seller is taken to have given the
buyer the disclosure documents for the lot before the
completion of the auction if—
(a)
for an auction conducted in
person, either of the following documents was
displayed at the place of the auction from the
start of the auction until the completion of the
auction—
(i)
a physical copy of the
disclosure documents;
(ii)
a physical document stating
the disclosure documents could be viewed by using
a stated electronic link; or
(b)
for an auction conducted
electronically, either of the following documents
was made available in the same electronic medium
being used to conduct the auction from the start
of the auction until the completion of the
auction—
(i)
a copy of the disclosure
documents;
(ii)
a document stating the
disclosure documents could be viewed, and a copy
obtained, by using a stated electronic link.
(3)
However, if subsection (2)(a)(ii) applies and the buyer of the
lot asks the seller of the lot for a physical copy of the
disclosure documents, the seller is taken to have given the
buyer the disclosure documents for the lot before the
completion of the auction only if the seller—
(a)
gives the buyer a physical
copy of the disclosure documents; or
(b)
displays at the place of
auction a physical copy of the disclosure
documents.
(4)
For subsections (2)(a)(ii) and (b)(ii), the buyer of
the lot is taken to have received the disclosure documents
only if, by using the stated electronic link, the buyer
would have been able to view and obtain a copy of the
disclosure documents for the period—
(a)
starting at the time the
document containing the electronic link was
displayed or sent; and
(b)
ending at the completion of
the auction.
(5)
Subsection (4) applies
whether or not the buyer of the lot used the electronic
link.
Subdivision 3
Termination by
buyer
104
Buyer may terminate contract if seller fails to disclose or makes
inaccurate disclosure
(1)
This section applies if—
(a)
the seller of a lot fails to
give the buyer of the lot a disclosure statement
for, or prescribed certificate applicable to, the
lot before the contract for the sale of the lot is
signed by the buyer of the lot; or
(b)
the seller of a lot gives the
buyer of the lot a disclosure statement for, or
prescribed certificate applicable to, the lot
before the contract for the sale of the lot is
signed by the buyer of the lot and all of the
following apply—
(i)
the statement or certificate
is inaccurate or incomplete in relation to a
material matter affecting the lot at the time it
is given to the buyer;
(ii)
at the time the contract is
signed by the buyer, the buyer is not aware of the
correct state of affairs concerning the
matter;
(iii)
if the buyer had been aware
of the correct state of affairs concerning the
matter, the buyer would not have signed the
contract.
(2)
The buyer of the lot may terminate the
contract for the sale of the lot by giving a notice (a
termination
notice) to the seller terminating the
contract.
(3)
The termination notice may be given at any
time before settlement of the contract for the sale of the
lot.
(4)
However, subsection (2) does not
apply if—
(a)
the seller’s failure to give
the disclosure statement or prescribed
certificate, or the giving of the inaccurate or
incomplete statement or certificate, is also a
failure to comply with another Act; and
(b)
the other Act provides a
consequence to the seller for the failure, or for
the giving of the inaccurate or incomplete
statement or certificate, including, for example,
a remedy to the buyer.
Example of a consequence to the seller—
1
a requirement for the seller
to remedy the failure or the inaccurate or
incomplete statement or certificate
Examples of a remedy to the buyer—
1
the contract of sale is of
no effect
2
the buyer may terminate the
contract of sale
3
the seller is taken to have
given the buyer a contractual warranty about a
particular matter
(5)
For subsection (4)(b), the other Act is taken not
to provide a consequence to the seller for the failure, or
for the giving of the inaccurate or incomplete statement or
certificate, only because the failure, or the giving of the
inaccurate or incomplete statement or certificate, is an
offence under that Act.
(6)
In this section—
material matter, affecting a lot, does
not include a matter prescribed by regulation not to
be a material matter for this section.
105
Seller must repay amounts to buyer on termination
(1)
This section applies if a buyer of a lot
terminates a contract for the sale of the lot under section 104.
(2)
The seller of the lot must, within 14 days
after the termination, repay to the buyer—
(a)
any amount paid, towards the
purchase of the lot, to—
(i)
the seller or the seller’s
agent; or
(ii)
another entity to whom the
amount is paid under the contract; and
(b)
any interest that accrued on
the amount while it was held by the seller,
seller’s agent or other entity.
(3)
The buyer may recover an amount repayable
under subsection (2) as a
debt.
(4)
To remove any doubt, it is declared that
the seller of a lot is not required to repay an amount that
is collateral to the purchase of the lot and for which the
buyer receives consideration separate to the purchase.
Examples of
amounts—
1
occupation rent
2
contribution for rates and
maintenance
106
No
other remedy if prescribed certificate contains inaccurate
information given by statutory body or body corporate
(1)
This section applies if—
(a)
the seller of a lot gives the
buyer of the lot a prescribed certificate
applicable to the lot; and
(b)
the certificate contains a
true and complete copy of information given to the
seller by a body corporate or statutory body;
and
(c)
the information given to the
seller by the body corporate or statutory body is
inaccurate.
(2)
The buyer’s sole remedy against the seller
in relation to the inaccurate information is under this
division.
Note—
See section 104.
(3)
To remove any doubt, it is declared that a
reference in subsection (1) to
information given to a seller by a body corporate includes a
reference to information given to a seller by a body
corporate manager or another person who is authorised to
give the information for the body corporate.
(4)
This section does not limit the Body Corporate and Community
Management Act 1997, chapter 5, part 3.
(5)
In this section—
body
corporate means—
(a)
a body corporate created
under the Body Corporate and Community
Management Act 1997 for a
community titles scheme; or
(b)
a body corporate under the
Building Units and Group
Titles Act 1980, section 7(1).
body
corporate manager means—
(a)
a body corporate manager
under the Body Corporate and Community
Management Act 1997, section 14 for a
community titles scheme; or
(b)
a body corporate manager
under the Building Units and Group
Titles Act 1980, section 7(1).
Subdivision 4
Miscellaneous
matters
107
Original owner of lot in community titles scheme must give
statement describing power of attorney
(1)
This section applies in relation to a
contract for the sale of a lot included in a community
titles scheme if—
(a)
the seller is an original
owner for the scheme; and
(b)
the buyer gives the seller a
power of attorney to act for the buyer.
(2)
The power of attorney may be exercised
only if, before the power is given, the seller gives the
buyer a statement that includes a detailed description of
the circumstances in which the power may be exercised.
(3)
The power of attorney may be exercised
only in ways, and only for purposes, disclosed in the
statement.
(4)
The power of attorney expires 1 year after
it is given, unless it expires earlier other than under this
subsection.
(5)
In this section—
original owner, for a community titles
scheme, means an original owner for the scheme under the
Body Corporate and Community
Management Act 1997, section 13.
Part 8
Mortgages
Division 1
Preliminary
108
Definition for part
In this part—
term, to the extent the context permits,
includes agreement, condition and covenant.
109
Application of part
(1)
This part applies to a mortgage over land
subject to any of the following Acts—
(a)
the Land Act
1994;
(b)
the Land Title Act
1994;
(c)
the Housing Act
2003;
(d)
a Resource Act;
(e)
another Act.
(2)
Subject to this Act or another Act, this part
also applies to a mortgage over the following property—
(a)
land other than land mentioned in
subsection (1);
(b)
property other than land.
Division 2
General
rules
110
Variation of mortgage
(1)
A mortgage over land evidenced by an
instrument of mortgage may be varied by an instrument of
variation.
(2)
The instrument of variation may do any of the
following—
(a)
increase or reduce the rate of
interest payable in relation to the debt or
obligation secured by the mortgage;
(b)
increase or reduce the amount
secured by the mortgage;
(c)
shorten, extend or renew the term
of the mortgage;
(d)
vary a term of the instrument of
mortgage.
(3)
An instrument of variation relating to a
mortgage registered under the Land Act 1994 may be
registered under section 343 of that Act if it
complies with the requirements of that Act relating to
registration.
(4)
An instrument of variation relating to land
subject to the Land Title Act 1994 may
be registered under that Act if it complies with the
requirements of that Act relating to registration.
(5)
This section does not limit or otherwise
affect a power of, or procedure for, variation or amendment of a
mortgage under another law.
111
Effect
of advance out of joint account
(1)
This section applies in relation to—
(a)
a mortgage under which an amount
is expressed to be advanced by 2 or more persons
(the mortgagees) out of money belonging to
them on a joint account; or
(b)
a mortgage to 2 or more persons
(also the mortgagees) jointly.
(2)
An amount owing under the mortgage belongs to
the mortgagees on a joint account.
(3)
The receipt, for an amount paid under the
mortgage, given in writing by the survivors or last survivor of
the mortgagees is a complete discharge for the amount, despite
any notice to the mortgagor of a severance of the joint
account.
(4)
This section applies subject to any agreement
to the contrary.
(5)
In this section—
mortgage includes—
(a)
an obligation to pay money;
and
(b)
a transfer of a mortgage;
and
(c)
a transfer of an obligation to
pay money.
112
Mortgages lodged electronically
(1)
This section applies in relation to a mortgage
under this Act or another law if—
(a)
the mortgage is lodged under the
Electronic
Conveyancing National Law
(Queensland), section 7; and
(b)
the mortgagee holds a document
that grants a mortgage by the mortgagor that—
(i)
is on the same terms as the
lodged mortgage; and
(ii)
complies with section 8.
(2)
If the mortgage is required to be given,
produced or used for any purpose, the document mentioned in
subsection (1)(b) may be—
(a)
given, produced or used for the
purpose; and
(b)
relied on as evidence of the
mortgage.
(3)
Subsection (2) applies whether
or not the document mentioned in subsection (1)(b)—
(a)
was signed by or for the mortgagor
or mortgagee in the presence of a witness; or
(b)
was electronically signed by or
for the mortgagor or mortgagee.
Division 3
Powers
and rights of mortgagees
113
Implied powers of mortgagee
(1)
A mortgagee under a mortgage over land, or
over land and other property, has the following powers—
(a)
a power to sell, or concur with
another seller in selling, or bid at an auction of,
the mortgaged property, or any part of the mortgaged
property, on terms the mortgagee considers
appropriate;
(b)
a power to insure the mortgaged
property, or any part of the mortgaged property,
against loss or damage;
(c)
a power to appoint a receiver of
the mortgaged property, or any part of the mortgaged
property;
(d)
a power to grant an easement,
right or privilege in relation to the mortgaged
property, or any part of the mortgaged
property;
(e)
a power, if the mortgagee is in
possession, to—
(i)
cut and sell timber on the
mortgaged property, or any part of the mortgaged
property; or
(ii)
enter into a contract for
the cutting and selling of timber on the mortgaged
property, or any part of the mortgaged property,
provided the contract is to be completed within 12
months after the contract is made;
(f)
a power to sell any mines or
minerals apart from the surface of the mortgaged
property, or any part of the mortgaged property, to
the extent the mines or minerals are not vested in
the State;
(g)
a power to do whatever is
necessary or convenient in relation to the exercise
of a power under paragraphs (a) to
(f).
(2)
A power under subsection (1) takes effect as a
term of the mortgage.
(3)
If a mortgagee exercises a power under subsection (1)(b), the premiums paid for the
insurance are a charge on the mortgaged property, in addition to
the mortgage money, and with the same priority, and with
interest at the same rate, as the mortgage money.
(4)
This section applies subject to any agreement
to the contrary.
(5)
To remove any doubt, it is declared that the
power to sell land under subsection (1)(a) includes—
(a)
the power to vary or rescind a
contract for the sale of the land; and
(b)
the power to sell a fixture on the
land.
(6)
In this section—
timber does not include trees for shelter
or ornament.
114
Restriction on exercise of power of sale
(1)
A mortgagee under a mortgage over property
must not exercise a power to sell the property unless and
until—
(a)
a default has happened under the
mortgage; and
(b)
the mortgagee has given the
mortgagor a notice that—
(i)
states the nature of the
default; and
(ii)
requires the default to be
remedied within 30 days after the notice is given
to the mortgagor; and
Note—
If the chief executive has approved a form
for this paragraph under section 234, the
notice may, but need not, be in the approved
form.
(c)
the default has not been remedied
within the period mentioned in paragraph (b)(ii).
(2)
This section applies despite any agreement to
the contrary.
(3)
This section does not apply to the exercise by
a mortgagee of a power of sale given under the Land Act 1994.
115
Power
of sale if disclaimer of onerous property
(1)
This section applies if—
(a)
a trustee in bankruptcy disclaims
under the Bankruptcy Act 1966
(Cwlth), section 133(1) freehold land that is
subject to a registered mortgage; and
(b)
notice of the disclaimer is given
under the Bankruptcy Act 1966
(Cwlth), section 133(3).
(2)
Also, this section applies if—
(a)
a liquidator disclaims under the
Corporations
Act, section 568(1) freehold land that is
subject to a registered mortgage; and
(b)
notice of the disclaimer is given
to each person who appears to the liquidator to
have, or to claim to have, an interest in the
property under the Corporations
Act, section 568A;
and
(c)
the disclaimer takes effect under
the Corporations
Act, section 568C.
(3)
Despite the disclaimer, the mortgagee under
the registered mortgage may exercise a power to sell the land
if—
(a)
the mortgagee has given a notice
in the approved form to each person who appears to
the mortgagee to be an interested person for the
land stating—
(i)
the property has been
disclaimed by a trustee in bankruptcy under the
Bankruptcy Act 1966 (Cwlth)
or by a liquidator under the Corporations
Act; and
(ii)
the mortgagee intends to
exercise a power of sale in relation to the land
on or after a day (the notified day) at least 30 days after
the day the notice is given; and
(b)
on the day, on or after the
notified day, that the power to sell is exercised—
(i)
any application under the
Bankruptcy Act 1966
(Cwlth), section 133(9) or the Corporations
Act, section 568E or
568F in relation to the
land has been finally dealt with or withdrawn;
and
(ii)
no order, under the Bankruptcy Act 1966
(Cwlth), section 133(9) or the Corporations
Act, section 568F,
vesting the land in another person, has been
made.
(4)
The mortgagee may exercise a power to sell the
land under subsection (3) even if the
mortgagee has not complied with section 114.
(5)
In this section—
interested person, for land, means—
(a)
the registrar; or
(b)
a person who has an interest
in the land.
116
Duty
to sell at market value
(1)
This section applies if a mortgagee exercises
a power of sale given under an instrument of mortgage, or this
Act or another Act, in relation to property.
(2)
The mortgagee must take reasonable care to
ensure the property is sold at the market value of the
property.
(3)
Also, if the mortgage is a prescribed
mortgage, the mortgagee must, unless the mortgagee has a
reasonable excuse—
(a)
adequately advertise the sale;
and
(b)
obtain reliable evidence of the
property’s value; and
(c)
maintain the property, including,
for example, by undertaking reasonable repairs;
and
(d)
sell the property by auction,
unless it is appropriate to sell it in another way;
and
(e)
do anything else prescribed by
regulation.
Maximum penalty—
(a)
if the contravention relates
only to paragraph (e)—20
penalty units; or
(b)
otherwise—200 penalty
units.
(4)
Within 28 days after the sale of the property,
the mortgagee must give the mortgagor a notice in the approved
form about the sale, unless the mortgagee has a reasonable
excuse.
Maximum penalty—2 penalty units.
(5)
This section applies despite any agreement to
the contrary.
(6)
This section does not limit or otherwise
affect a law relating to the duty of a mortgagee to account to a
mortgagor.
(7)
Section 113(1)(a), 119(4) or 123(2) do not limit or otherwise affect
a duty imposed on a mortgagee under this section.
(8)
In this section—
mortgagee includes a person exercising a
power of sale under a mortgage, including, for example,
a receiver.
prescribed mortgage means a mortgage of a
type prescribed by regulation.
117
Protection of buyer
(1)
This section applies if a mortgagee exercises
a power of sale given under an instrument of mortgage, or this
Act or another Act, in relation to property.
(2)
The buyer—
(a)
is not answerable for the loss,
misapplication or non-application of the purchase
money paid for the property; and
(b)
need not inquire whether the power
of sale was properly exercised, including, for
example, whether notice of the sale was given, or
leave of the court, if required, was obtained.
(3)
A person who incurs loss or damage because of
a breach of the mortgagee’s duty under section 116, or an unauthorised
or improper exercise of the mortgagee’s power of sale, may claim
compensation for the loss or damage from the mortgagee.
(4)
In this section—
mortgagee includes a person exercising a
power of sale under a mortgage, including, for example,
a receiver.
118
Application of proceeds of sale
(1)
This section applies if a mortgagee exercises
a power of sale given under an instrument of mortgage, or this
Act or another Act, in relation to property.
(2)
The proceeds of sale must be held by the
mortgagee in trust to be applied in payment of the following
amounts in the following order—
(a)
the reasonable expenses incurred
in selling the property;
(b)
the following amounts—
(i)
if the property has only 1
mortgage—the principal amount, interest and other
amounts owing under the mortgage;
(ii)
if the property has more
than 1 mortgage—the principal amount, interest and
other amounts owing under the mortgages in order
of the priority of the amounts;
(c)
the balance to the owner of the
property.
(3)
However, if the property is disclaimed
property mentioned in section 115, the mortgagee must
pay into court the balance mentioned in subsection (2)(c).
(4)
A person claiming an amount paid into court
under subsection (3) may apply to the
court for an order dealing with the amount.
119
Other
matters relating to power of sale
(1)
This section applies to a power of sale given
under this Act.
(2)
The power of sale may be exercised by a person
entitled to receive and give a discharge for the mortgage.
(3)
The power of sale does not affect the right of
foreclosure.
(4)
The person exercising the power of sale is not
answerable for any involuntary loss relating to the exercise of
the power.
(5)
The person exercising the power of sale under
a mortgage may obtain from a person, other than a person having
an interest in priority to the mortgage, any document that a
purchaser under the power of sale would be entitled to obtain
from the person.
120
Receipt of mortgagee sufficient discharge
(1)
The receipt in writing of a mortgagee is
sufficient discharge for—
(a)
any money arising from a sale
under the power of sale given by this Act; or
(b)
any money or securities comprised
in, or arising under, the mortgagee’s
mortgage.
(2)
A person paying or transferring money or
securities mentioned in subsection (1) is not required
to—
(a)
ask whether any money remains due
under the mortgage; or
(b)
ensure the money or securities are
properly applied.
(3)
Money received by a mortgagee under the
mortgagee’s mortgage or from the proceeds of securities
comprised in the mortgagee’s mortgage must be applied as
if—
(a)
the money were money received by
the mortgagee under a power of sale under this Act;
and
(b)
a reference in section 118(2)(a) to the reasonable
expenses incurred in selling the property were a
reference to the reasonable expenses incurred in
recovering and receiving the money or securities, or
of converting the securities into money.
121
Insurance of mortgaged property
(1)
This section applies in relation to the
insurance against loss or damage of mortgaged property.
(2)
The mortgagee may not insure the property for
an amount of more than—
(a)
if the mortgage states an amount
for which the property may be insured—the amount
stated; or
(b)
otherwise—the lesser of the
following amounts—
(i)
the full insurable value of
the buildings and improvements on the property;
(ii)
the amount owing to the
mortgagee under the mortgage.
(3)
Despite section 113(1)(b), the mortgagee may not insure the
property if—
(a)
the mortgage states that no
insurance is required; or
(b)
the mortgagor insures the property
as required under the mortgage; or
(c)
the mortgagor insures the property
with the consent of the mortgagee.
(4)
Also, the mortgagee may not require a
mortgagor to insure the property for the reinstatement value of
the property if—
(a)
it is not possible to effect the
reinstatement of the property; or
(b)
it is not lawful to use the
property in the way in which the property was used
before the reinstatement of the property.
122
Application of insurance money
(1)
This section applies if money is received
under an insurance of mortgaged property.
(2)
The mortgagee may require that the money be
applied towards reinstatement of the property.
(3)
The mortgagor may require that the money be
applied towards reinstatement of the property only if—
(a)
the mortgage expressly states the
money may be applied towards reinstatement of the
property; or
(b)
the mortgagor insured the property
for the reinstatement value of the property—
(i)
to comply with a requirement
under the mortgage to insure the property for the
reinstatement value; or
(ii)
with the consent of the
mortgagee.
(4)
The mortgagee may require that the money be
applied towards discharge of the mortgage money only if—
(a)
the mortgagee insured the
property; and
(b)
the mortgage expressly states the
money may be applied towards discharge of the
mortgage money.
(5)
The right of the mortgagor under subsection (3) overrides any
right of the mortgagee under subsection (4).
(6)
This section applies despite any agreement to
the contrary.
(7)
In this section—
reinstatement includes replacement.
123
Appointment of receiver
(1)
This section applies if a mortgagee under a
mortgage over property is entitled to take or enter into
possession of the property.
(2)
The mortgagee may appoint an appropriately
qualified person as receiver of the property.
(3)
The appointment must be in the approved
form.
(4)
The receiver is the agent of the
mortgagor.
(5)
The receiver may take or enter into possession
of the property.
(6)
As soon as practicable after taking or
entering into possession of the property, the receiver must give
a receipt for the property to the person from whom the property
was taken or who held possession of the property.
(7)
The receiver may take or enter into possession
of the property despite a lien or other security over the
property claimed by another person.
(8)
However, the taking or entry into possession
does not affect the other person’s claim to the lien or other
security against a person other than the receiver.
(9)
The receiver may deal with the property in the
same way as the mortgagor may have lawfully dealt with the
property if the receiver had not taken or entered into
possession of the property, including, for example, claiming or
receiving an amount owing in relation to the property.
(10)
The receiver may insure the property, and deal
with money received under an insurance of the property, to the
extent the mortgagee is authorised under section 121 to insure the
property or under section 122 to deal with the
money.
(11)
The receiver is entitled to
remuneration—
(a)
if an amount of remuneration, of
not more than 5% of the gross amount of all money
received by the receiver, is stated in the
appointment—in the amount stated in the appointment;
or
(b)
if no amount of remuneration is
stated in the appointment—in the amount of 5% of the
gross amount of all money received by the receiver;
or
(c)
if the receiver makes an
application to the court to decide the amount of
remuneration—in the amount decided by the court.
(12)
The receiver must apply money received by the
receiver in payment of the following amounts in the following
order—
(a)
rents, taxes, rates, and outgoings
relating to the property;
(b)
amounts owing on other mortgages
over the property having priority to the mortgage,
including, for example, instalments of the principal
amount, and interest on the principal amount, owing
under those mortgages;
(c)
the receiver’s remuneration under
subsection (11);
(d)
premiums for insurance of the
property under section 121, if
any;
(e)
repairs of the property authorised
by the mortgagee, if any;
(f)
interest on the principal amount
owing under the mortgage;
(g)
the principal amount owing under
the mortgage, if authorised by the mortgagee;
(h)
amounts owing under other
mortgages over the property;
(i)
the balance to the owner of the
property.
(13)
However, if the property is disclaimed
property mentioned in section 115, the mortgagee must
pay into court the balance mentioned in subsection (12)(i).
(14)
A person claiming an amount paid into court
under subsection (13) may apply to the
court for an order dealing with the amount.
(15)
In this section—
remuneration includes costs, charges,
expenses and commission.
124
Judgment debt does not permit seizure
(1)
This section applies if a court gives judgment
to a claimant for the payment of a debt secured by a mortgage
over property.
(2)
The interest of the mortgagor in the property,
or any other property over which the mortgagor has granted a
mortgage to the claimant, may not be taken in execution of the
judgment.
(3)
This section applies despite any agreement to
the contrary.
(4)
This section does not limit or otherwise
affect a power of a mortgagee under section 113(1)(a).
(5)
In this section—
debt includes a liquidated demand.
125
Subsequent mortgage does not affect first mortgage
(1)
A mortgagor under a mortgage over property
(the first
mortgage) may grant a second or subsequent
mortgage over the property.
(2)
The granting of the second or subsequent
mortgage does not—
(a)
constitute a breach of a term of,
or proviso for re-entry contained in, the first
mortgage or second or subsequent mortgage; or
(b)
occasion any forfeiture or
penalty; or
(c)
make payable or accelerate the
time for payment of an amount that, if the second or
subsequent mortgage had not been granted, would not
have been payable or would not have been payable at
that time.
(3)
This section applies despite any agreement to
the contrary.
126
When
further advance ranks in priority to subsequent mortgage
(1)
A mortgagee (the prior
mortgagee) may make a further advance to rank in
priority to a subsequent mortgage granted by the mortgagor to
another person (the subsequent
mortgagee) only if—
(a)
the subsequent mortgagee agrees to
the further advance; or
(b)
the prior mortgagee has no actual
notice, when the further advance is made, of the
mortgage to the subsequent mortgagee; or
(c)
the prior mortgagee is required
under the terms of the mortgage, immediately before
the creation of the subsequent mortgage, to make the
further advance.
(2)
This section does not affect the right of the
prior mortgagee to rank in priority to a subsequent mortgagee in
relation to expenses reasonably incurred in preserving the
mortgaged property.
(3)
For subsection (1)(b), and despite any other Act, the
registration of the subsequent mortgage is not of itself actual
notice to the prior mortgagee of the subsequent mortgage.
Division 4
Obligations and rights of mortgagors
127
Contracting out prohibited
This division, other than section 128, applies despite any
agreement to the contrary.
128
Implied obligations of mortgagor
(1)
The mortgagor under a mortgage over property
has the following obligations—
(a)
to pay the principal amount and
interest secured by the mortgage according to the
terms of the mortgage without deduction;
(b)
if the property is land—
(i)
to keep buildings and other
improvements on the land in as good and
substantial repair as the buildings and other
improvements were in when the mortgage was entered
into; and
(ii)
to permit the mortgagee,
when reasonably convenient, to enter the land to
view and inspect the state of repair of buildings
and other improvements on the land.
(2)
An obligation under subsection (1) takes effect as a
term of the mortgage.
(3)
If the mortgage is under a deed, an obligation
under subsection (1) takes effect as a
covenant by the mortgagor.
(4)
This section applies subject to any agreement
to the contrary.
129
Right
to obtain copy of documents in possession of mortgagee
(1)
A mortgagor under a mortgage over property may
ask the mortgagee to give the mortgagor a copy of, or allow the
mortgagor to inspect at a reasonable time, each document in the
possession of the mortgagee that relates to the property.
(2)
The mortgagee must comply with the request if
the mortgagor pays the mortgagee’s reasonable costs and expenses
of complying with the request.
130
Right
to relief against payment of accelerated sum
(1)
This section applies in relation to a mortgage
over land if—
(a)
the mortgagor defaults under the
mortgage—
(i)
in payment of an instalment
of the principal amount or interest secured by the
mortgage; or
(ii)
in the performance of an
obligation or covenant under the mortgage; and
(b)
under the terms of the mortgage
the whole or part of the principal amount or
interest secured by the mortgage other than the
instalment mentioned in subsection (1)(a)(i) (the accelerated sum) is, or may become,
payable because of—
(i)
the default; or
(ii)
the exercise on the default
of an option or election under the mortgage.
(2)
The mortgagor can not be required to pay the
accelerated sum if the mortgagor, before the mortgagee exercises
a power of sale or starts a proceeding to enforce the
mortgagee’s rights—
(a)
for a default mentioned in subsection (1)(a)(i)—pays to the
mortgagee—
(i)
the amount of the instalment
or interest; and
(ii)
the reasonable expenses, if
any, incurred by the mortgagee because of the
default; or
(b)
for a default mentioned in subsection (1)(a)(ii)—performs the
obligation or covenant.
(3)
The mortgagor may, in a proceeding brought by
the mortgagee to enforce the mortgagee’s rights or in a
proceeding brought by the mortgagor, apply to the court for an
order for relief against payment of the accelerated sum (a
relief
order).
(4)
The court may make the relief order if the
court is satisfied that making the order is appropriate in the
circumstances.
(5)
In considering whether or not to make the
relief order, the court must take into account—
(a)
the conduct of the parties to the
proceeding; and
(b)
anything else the court considers
relevant.
(6)
The court may also make any other order it
considers appropriate, including, for example—
(a)
an order for the stay of a
proceeding brought by the mortgagee; or
(b)
an order removing a stay of a
proceeding if the mortgagor fails to comply with an
undertaking given to the court.
131
Right
to relief against payment of overdue principal amount if payment of
interest accepted
(1)
This section applies in relation to a mortgage
over land if—
(a)
the term of the mortgage has
expired; and
(b)
the principal amount secured by
the mortgage has not been repaid; and
(c)
the mortgagee has, after the end
of the term, accepted interest on the principal
amount, other than by entering into possession of
the property or appointing a receiver, for at least
3 months after the end of the term; and
(d)
the mortgagor has performed all
obligations or covenants under the mortgage other
than the obligation or covenant to repay the
principal amount on the due date.
(2)
The mortgagee must not call up as payable the
principal amount unless—
(a)
the mortgagee has given the
mortgagor notice of the mortgagee’s intention to
call up the amount at the end of the period stated
in the notice (the notice period); and
(b)
the notice period has
expired.
(3)
The notice period must be at least 3 months
starting on the day the mortgagee gives the notice to the
mortgagor.
(4)
In this section—
term, of a mortgage, includes a period
for which the original term has been renewed or
extended.
132
Right
to require transfer of mortgage instead of discharge
(1)
This section applies if a mortgagor is
entitled to discharge a mortgage over property.
(2)
The mortgagor may require the mortgagee (the
first
mortgagee), instead of discharging the mortgage,
to transfer the mortgage to another person as directed by the
mortgagor.
(3)
Also, if the property is subject to another
mortgage, the mortgagee under that mortgage (the subsequent
mortgagee), may require the first mortgagee,
instead of discharging the mortgage, to transfer the mortgage to
another person as directed by the subsequent mortgagee.
(4)
The transfer is on the terms on which the
first mortgagee would be required to discharge the
mortgage.
(5)
However, a requirement may not be made under
subsection (2) or (3) if—
(a)
a mortgagee is in possession of
the property; or
(b)
the mortgage contains an
enforceable condition in favour of a mortgagee in
restraint of the trade or business of the mortgagor
or any other collateral benefit or advantage in
favour of a mortgagee.
(6)
If a requirement of a mortgagor under subsection (2) is inconsistent
with a requirement of a subsequent mortgagee under subsection (3), the requirement
of the subsequent mortgagee under subsection (3) prevails.
(7)
Also, if more than 1 requirement of a
subsequent mortgagee is made under subsection (3), the requirement
of the subsequent mortgagee under whichever of the subsequent
mortgages is earlier prevails.
133
Abolition of consolidation of mortgages
A mortgagor seeking to discharge a mortgage over
property (the primary
mortgage) is entitled to the discharge without paying
any money due under another mortgage made by the mortgagor over
property other than the property the subject of the primary
mortgage.
Division 5
Proceedings
134
Court
may order sale of mortgaged property in proceeding for redemption or
foreclosure
(1)
The court may order the sale of mortgaged
property if a person entitled to redemption of the mortgaged
property brings a proceeding for either or both of the following
in relation to the property—
(a)
sale;
(b)
redemption.
(2)
Also, the court may order the sale of
mortgaged property if—
(a)
a person brings a proceeding for
any of the following in relation to the
property—
(i)
sale;
(ii)
redemption;
(iii)
foreclosure;
(iv)
the raising or payment in
any way of mortgage money; and
(b)
the mortgagee, or another person
interested in the mortgage money or right of
redemption, requests the sale of the property.
(3)
Subsection (2) applies even
if—
(a)
another person dissents; or
(b)
the mortgagee, or another person
interested in the mortgage money or right of
redemption, does not appear in the proceeding.
(4)
In making an order under subsection (2), the court is not
required to allow time for redemption or for payment of any
mortgage money.
(5)
Without limiting subsection (1) or (2), the court may also make any of
the following orders—
(a)
an order that the mortgagee
deposit in court a reasonable sum fixed by the court
to meet the expenses of sale and to secure
performance of the terms of sale;
(b)
an order giving the conduct of the
sale to a respondent in the proceeding;
(c)
an order vesting the mortgaged
property in a buyer;
(d)
for an equitable mortgage—an order
creating and vesting a legal interest in the
mortgagee to enable the mortgagee to carry out the
sale as if the mortgage were a legal mortgage.
(6)
The court may order a sale of mortgaged
property under subsection (1) or (2) without previously determining
the priorities of mortgages.
(7)
In this section—
mortgaged property includes the interest
the mortgagee would have power to transfer if the power
of sale under this Act were applicable.
135
Realisation of equitable mortgage of land
(1)
This section applies if the court makes an
order for sale in relation to an equitable mortgage of
land.
(2)
Without limiting section 134 or another power of
the court, the court may make any of the following orders—
(a)
an order creating and vesting a
legal interest in the mortgagee to enable the
mortgagee to carry out the sale as if the equitable
mortgage were a legal mortgage;
(b)
an order appointing a person to
conduct the sale as if the equitable mortgage were a
legal mortgage;
(c)
an order vesting the land in a
buyer as if the equitable mortgage were a legal
mortgage.
(3)
An order made by a court in relation to an
equitable mortgage of land is without prejudice to any mortgage
having priority to the equitable mortgage unless the mortgagee
consents to the sale.
136
Facilitation of redemption in case of absent or unknown
mortgagee
(1)
This section applies if land is subject to a
mortgage and the person entitled to receive, or alleged to have
received, payment of any money secured by the mortgage—
(a)
is out of the jurisdiction;
or
(b)
is not known or can not be found;
or
(c)
is deceased and no personal
representative is administering the deceased
person’s estate; or
(d)
is uncertain in identity.
(2)
The court may, on the application of the
person entitled to redeem the land, order—
(a)
the amount of the debt secured by
the mortgage to be determined in the way the court
considers appropriate; and
(b)
the amount of any outstanding debt
under the mortgage, if any, to be paid into
court.
(3)
If an order is made under subsection (2), and the person
entitled to redeem the land pays the amount of any outstanding
debt under the mortgage into court, the registrar of the court
must give the person a certificate stating that—
(a)
an order has been made under
subsection (2);
and
(b)
no amount remains payable under
the mortgage.
(4)
The certificate operates to discharge the
mortgage debt.
(5)
However, as between the mortgagor and another
person entitled to the mortgage debt, any amount shown by the
other person entitled to the mortgage debt to have been in fact
due or payable over the amount determined by the court under
subsection (2)(a), or paid into court under subsection (2)(b), continues to be a debt due under
the mortgage.
(6)
If an amount is paid into court under subsection (2)(b), the court must, on the
application of the person entitled to the amount, order the
amount to be paid to that person.
(7)
However, subsection (6) applies only
if—
(a)
an instrument releasing the
mortgage, capable of registration under the Land Act 1994,
section 342 or the
Land Title Act
1994, section 81, is given
to the person who paid the amount into court;
or
(b)
the court is satisfied the
mortgage has been discharged.
(8)
The certificate mentioned in subsection (3)—
(a)
for a mortgage registered under
the Land Act
1994—is capable of registration
under the Land Act 1994,
section 342 as a
release of mortgage; and
(b)
for a mortgage registered under
the Land Title Act
1994—is capable of registration
under the Land Title Act
1994, section 81 as an
instrument releasing the mortgage; and
(c)
for a mortgage under a Resource
Act or another Act—has effect under that Act as a
document signed by the mortgagee to the effect that
the debt secured by the mortgage has been
paid.
(9)
For the purpose of effecting registration
under subsection (8)(b), the registrar may dispense with
the publication of any notice or the doing of any other act
required under the Land Title Act
1994.
(10)
This section does not limit or otherwise
affect the Public Trustee Act 1978,
section 61.
Part 9
Leases
Division 1
Preliminary
137
Definition for part
In this part—
term, to the extent the context permits,
includes agreement, condition and covenant.
Division 2
General
rules
138
Lease
for term of years may take effect without entry into
possession
(1)
A lease of land for a term of years is capable
of taking effect at law or in equity from the start of the term,
without entry into possession of the land.
(2)
This section—
(a)
does not affect the right of a
person to recover rent or to take advantage of a
term of the lease; and
(b)
does not limit or otherwise affect
section 10(2).
(3)
In this section—
term of
years includes a term for less than a
year, or for 1 or more years or from year to year.
139
Implied terms
(1)
A lease of land includes the standard
terms.
(2)
This section is subject to—
(a)
this Act and any other Act;
and
(b)
any agreement to the
contrary.
(3)
In this section—
standard terms means the terms stated in
schedule 1.
Division 3
Transfer of reversion of lease
140
Effect
of transfer of reversion of lease by lessor
(1)
This section applies in relation to a lease of
land if the lessor transfers the reversion of the lease to
another person (the transferee).
(2)
Each right conferred under the terms of the
lease on the lessor—
(a)
runs with the reversion of the
lease; and
(b)
may be exercised by the
transferee, whether or not the lessee has
acknowledged that person as the lessor of the
land.
(3)
Each obligation imposed under the terms of the
lease on the lessor—
(a)
runs with the reversion of the
lease; and
(b)
may be enforced by the lessee
against the transferee.
(4)
Also, the transferee is—
(a)
bound by each term of the lease to
the extent the lessor was bound by the term
immediately before the transfer; and
(b)
entitled to the benefit of each
term of the lease to the extent the lessor was
entitled to the benefit of the term immediately
before the transfer.
(5)
Subsection (4) applies whether
or not the term—
(a)
touches and concerns the land the
subject of the lease; or
(b)
is express, implied or imposed by
law.
(6)
Subsections (2), (3) and (4) do not apply in relation to a
term of the lease to the extent—
(a)
the lease expressly provides the
term is personal; or
(b)
the lease expressly excludes the
operation of the subsection in relation to the term;
or
(c)
the lessor and the transferee
expressly agree in writing that the benefit of the
term remains with the lessor.
(7)
Also, the lessor remains liable for a breach
of a term of the lease committed by the lessor.
(8)
If a term of the lease restricts the use of
the land, the reference to the transferee in subsection (4) also includes a
reference to any person who is the owner of the land to which
the term relates.
(9)
This section applies despite the Land Title Act 1994,
section 62.
(10)
In this section—
right, conferred under the terms of a
lease, includes a right to—
(a)
receive the rent payable
under the lease; and
(b)
enforce a term of the lease,
whether or not the subject matter of the term was
in existence when the lease was made; and
(c)
enforce a guarantee of the
performance of a term mentioned in paragraph (b);
and
(d)
give a notice under the
lease; and
(e)
take advantage of a term of
the lease; and
(f)
re-enter, or apply for an
order for possession of, the land; and
(g)
terminate the lease.
transfer, of a reversion of a lease,
includes the passing of the reversion including by
transmission.
141
Payment of rent or other amount without notice of transfer of
reversion
(1)
This section applies in relation to a lease of
land if—
(a)
the lessor transfers the reversion
of the lease to another person; and
(b)
the lessee pays rent or another
amount to the lessor, without actual notice of the
transfer.
(2)
The lessee is discharged from liability to pay
the rent or other amount to the extent the rent or other amount
has been paid under subsection (1)(b).
(3)
For subsection (1)(b), and despite any other Act, the
registration of the transfer of the reversion of the lease is
not of itself actual notice to the lessee of the transfer.
Division 4
Dealings with leases
142
Effect
of requirement in lease for consent of lessor to assign lease or take
other action
(1)
This section applies if a lessee is required
under a lease of land to obtain the lessor’s consent to—
(a)
assign the lease; or
(b)
enter into a sublease; or
(c)
part with or share possession of
the leased premises; or
(d)
change the use of the leased
premises from a use that is permitted under the
lease; or
(e)
create a mortgage over the
lessee’s interest in the land; or
(f)
make an alteration or carry out
works in relation to the leased premises; or
(g)
act under paragraph (a), (b), (c), (d), (e) or (f) in relation to a part
of the leased premises or for a period of the term
of the lease.
(2)
The lessee may give the lessor a notice (a
proposal
notice), containing any information required under
the lease, asking for consent.
(3)
The lessor must not unreasonably withhold
consent.
(4)
If the lessor considers the information given
in the proposal notice is not sufficient to enable the lessor to
make a decision, the lessor may give the lessee a notice
requiring the further information the lessor considers is
required to make the decision.
(5)
The lessor must give the lessee a notice (the
decision
notice) stating the lessor’s decision within 1
month after receiving full particulars of the lessee’s
proposal.
(6)
The decision notice must also state—
(a)
if the lessor gives consent—the
conditions, if any, attached to the consent and the
reasons for the conditions; and
(b)
if the lessor withholds
consent—the reasons for the decision.
(7)
The lessor and lessee may, within the period
mentioned in subsection (5), agree to extend
the period for the giving of the decision notice.
(8)
The lessee may apply to the court to make a
decision about the lessee’s proposal if—
(a)
the lessee believes the lessor has
unreasonably withheld consent; or
(b)
the lessee believes a condition
attached to the lessor’s consent is unreasonable,
unnecessary or onerous; or
(c)
the lessor fails to give the
lessee a decision notice under subsection (5).
(9)
The court may hear and decide the application
and make the orders it considers appropriate.
(10)
If the lessee makes an alteration or carries
out work in relation to the leased premises without the consent
of the lessor, the lessee must restore the premises to the
condition the premises were in immediately before the alteration
or the carrying out of the work.
(11)
This section applies despite any agreement to
the contrary.
143
Effect
of assignment of lease by lessee to assignee
(1)
This section applies in relation to a lease of
land if the lessee assigns the lease to another person (the
assignee).
(2)
On and from the assignment, the assignee is—
(a)
bound by each term of the lease to
the extent the lessee was bound by the term
immediately before the assignment; and
(b)
entitled to the benefit of each
term of the lease to the extent the lessee was
entitled to the benefit of the term immediately
before the assignment.
(3)
Subsection (2) applies whether
or not the term—
(a)
touches and concerns the land the
subject of the lease; or
(b)
is express, implied or imposed by
law.
(4)
Subsection (2) does not apply in
relation to a term of the lease to the extent—
(a)
the lease expressly provides the
term is personal; or
(b)
the lease expressly excludes the
operation of subsection (2) in
relation to the term; or
(c)
the lessee and the assignee
expressly agree in writing that the benefit of the
term remains with the lessee and either—
(i)
the benefit of the term
accrued to the lessee before the assignment;
or
(ii)
the lessor consents to the
benefit of the term remaining with the
lessee.
(5)
If a term of the lease restricts the use of
the land, the reference to the assignee in subsections (2) and (4) also includes a reference to any
person who is the occupier of the land to which the term
relates.
(6)
This section—
(a)
applies despite the Land Title Act
1994, section 62; and
(b)
is subject to any agreement to the
contrary; and
(c)
does not limit or otherwise affect
rights and liabilities that have accrued between the
lessee and the lessor before the assignment.
144
Effect
of assignment of lease by transferee to subsequent transferee
(1)
This section applies in relation to a lease of
land if—
(a)
the lessee assigns the lease to
another person (the assignee); and
(b)
after the assignment of the lease,
the assignee assigns the lease to another person
(the subsequent assignee).
(2)
The lessee, and any guarantor of the lessee,
is released from liability to the lessor for a breach of the
lease by the subsequent assignee.
(3)
Subsection (2) applies despite
any agreement to the contrary.
145
Effect
of surrender or merger of lease
(1)
This section applies in relation to a lease of
land if—
(a)
the lease is surrendered; or
(b)
the lease is merged in another
interest in the land, including, for example, a
future interest.
(2)
The person entitled, on the surrender or
merger, to the reversion of the lease has the same rights and
obligations in relation to the lease as the person who, but for
the surrender or merger, would have been entitled to the
reversion.
146
Effect
of reconfiguration of land
(1)
This section applies in relation to a lease of
land if the land is reconfigured and 2 or more persons become
entitled to the income of the land.
(2)
The rights and obligations under the
lease—
(a)
must be apportioned between the
persons entitled to the land under the
reconfiguration; and
(b)
to the extent required by the
apportionment under paragraph (a), are
attached to the land under the reconfiguration and
bind successors in title.
(3)
In this section—
reconfigure, land, includes subdivide,
amalgamate, and reconfigure the boundaries of, the
land.
147
Head
lease may be surrendered and new head lease granted without affecting
other rights and obligations
If a head lease is surrendered in order to be
renewed, and another head lease (the new head
lease) is granted during the term of a sublease and
the parties to the surrendered head lease and the new head lease are
the same—
(a)
the new head lease takes effect as if
any sublease were surrendered; and
(b)
any sublease remains valid; and
(c)
the lessor under the new head lease,
any parties to any sublease and any guarantor, have the
same rights and obligations against each other as if the
surrendered head lease had not been surrendered.
148
Involuntary transmission not breach of lease
(1)
This section applies if a term of a lease of
land—
(a)
prohibits the lessee from
transferring the lease; or
(b)
grants the lessee a right to
transfer the lease with the consent of the
lessor.
(2)
A transmission of the lease by the lessee does
not cause a breach of the term of the lease.
(3)
This section applies despite any agreement to
the contrary.
Division 5
Relief
Subdivision 1
Preliminary
149
Definition for division
In this division—
lease includes an agreement for a
lease.
150
Application of division
(1)
This division applies to a lease of land
other than any of the following leases—
(a)
a housing lease;
(b)
a residential tenancy;
(c)
a resources lease;
(d)
a State land lease.
(2)
In relation to a lease of land of not more
than 1 year, this division applies only in relation
to—
(a)
an option to renew the lease;
or
(b)
an option to purchase the
reversion of the lease.
(3)
In this section—
housing lease—
(a)
means a lease of housing
under the Housing Act
2003; and
(b)
does not include a sublease
of a lease mentioned in paragraph (a).
residential tenancy means a residential
tenancy under the Residential Tenancies and
Rooming Accommodation Act
2008.
resources lease—
(a)
means any of the following
leases—
(i)
a mining lease under the
Mineral Resources Act
1989;
(ii)
a petroleum lease under the
Petroleum and Gas (Production
and Safety) Act 2004;
(iii)
a lease under the Petroleum Act
1923;
(iv)
a geothermal production
lease under the Geothermal Energy Act
2010;
(v)
a GHG lease under the
Greenhouse Gas Storage Act
2009; and
(b)
does not include a sublease
of a lease mentioned in paragraph (a).
State
land lease—
(a)
means a lease of land from
the State under the Land Act 1994;
and
(b)
does not include a sublease
of a lease mentioned in paragraph (a).
151
Contracting out prohibited
This division applies despite any agreement to
the contrary.
Subdivision 2
Relief against forfeiture
for breach of term of lease
152
Definitions for subdivision
In this subdivision—
breach, of a term of a lease, includes
the happening of an event of default that under the
terms of the lease gives the lessor a right to forfeit
the lease.
designated person, for a lease of land,
means—
(a)
a mortgagee or receiver of a
lessee’s interest in the land; or
(b)
a guarantor under the lease;
or
(c)
a sublessee under the lease;
or
(d)
a mortgagee or receiver of a
sublessee’s interest in the land; or
(e)
if the lease has been
assigned—an assignor under the lease, or a
guarantor of an assignor, who has not been
released from liability under the lease.
notice
to remedy breach see section 153(1)(a).
reasonable compensation, for a breach of
a term of a lease, means an amount in payment of
reasonable costs and expenses reasonably incurred by the
lessor in—
(a)
preparing and giving a
notice to remedy breach in relation to the breach;
or
(b)
obtaining legal or other
professional advice about the nature and extent of
the breach; or
(c)
doing any other reasonable
thing in relation to the breach, including, for
example, mitigating the loss or damage arising
from the breach.
153
Lessor must give lessee notice to remedy breach
(1)
A lessor may exercise a right to re-enter
land under a term of the lease for breach of a term of the
lease only if—
(a)
the lessor has given the
lessee a notice in the approved form (a notice to remedy breach) stating—
(i)
the nature and extent of the
breach; and
(ii)
if the breach is capable of
being remedied by the lessee—
(A)
that the lessee is required
to remedy the breach; and
(B)
a reasonable period within
which the lessee is required to remedy the breach;
and
(iii)
if the lessor claims an
amount of reasonable compensation for the
breach—
(A)
the amount claimed and how
the amount is calculated; and
(B)
a reasonable period within
which the lessee is required to pay the amount;
and
(iv)
that the lessor intends to
terminate the lease if the breach is not remedied,
or the amount is not paid, within the reasonable
period; and
(b)
at the end of the reasonable
period stated in the notice, the breach has not
been remedied or the amount of reasonable
compensation has not been paid.
(2)
For subsection (1)(a)(ii)(B) and (iii)(B), a period is
reasonable only if it is reasonable having regard to all of
the circumstances, including, for example—
(a)
the nature and the extent of
the breach; and
(b)
for subsection (1)(a)(ii)(B)—the nature of the
thing, if any, the lessee must do or stop doing to
remedy the breach.
154
Lessor must give copy of notice to designated persons
(1)
If a lessor gives a notice to remedy
breach to a lessee, the lessor must also give a copy of the
notice to each designated person for the lease whose name
and address is known to the lessor.
(2)
To remove any doubt, it is declared that
the lessor’s failure to comply with subsection (1) does not
prevent the lessor from exercising a right to terminate the
lease, re-enter land under a term of the lease, or make an
application to the court for any form of relief in relation
to the lease.
155
Acceptance of rent paid by lessee in possession not waiver of
lessor’s rights
(1)
This section applies if a lessor accepts
rent, or another amount, after the lessor gives the lessee a
notice to remedy breach.
(2)
The lessor’s acceptance of the rent, or
other amount, does not operate as a waiver of the lessor’s
right to forfeit the lease because of the breach.
(3)
Subsection (2) applies
subject to any agreement to the contrary.
156
Notice to remedy breach not required if lessee has given up
possession
(1)
Despite section 153, a lessor of
land may exercise a right to re-enter the land under a term
of the lease for breach of a term of the lease if the lessor
reasonably believes the lessee has given up possession of
the land.
(2)
A lessor exercising a right of re-entry
under subsection (1) is not
required to—
(a)
give the lessee a notice to
remedy breach; or
(b)
apply to the court for
recovery of possession of the land.
(3)
As soon as practicable after exercising a
right of re-entry under subsection (1), the lessor
must give each designated person for the lease whose name
and address is known to the lessor a notice stating the
lessor has exercised the right of re-entry.
157
How lessor may exercise right of re-entry
(1)
This section applies if a lessee of land
fails to remedy a breach or pay an amount of reasonable
compensation required under a notice to remedy breach given
to the lessee.
(2)
The lessor may exercise a right to
re-enter the land under a term of the lease for breach of a
term of the lease by—
(a)
peaceably re-entering the
land; or
(b)
if the lessor can not
peaceably re-enter the land—making a written
demand for possession of the land; or
(c)
if the lessee refuses to give
up possession of the land after a written demand
under paragraph (b)—applying
to the court for recovery of possession of the
land.
158
Powers of court in making order for possession
(1)
This section applies if a lessor of land
applies to the court for recovery of possession of the land
in exercise of a right to forfeit the lease because of a
breach by the lessee of a term of the lease.
(2)
The court may make any order that the
nature of the case requires, including, for example, any of
the following orders—
(a)
an order for possession of the
land;
(b)
an order forfeiting the lease;
(c)
an order that the lessee pay
to the lessor an amount owed under the lease;
(d)
an order that the lessee pay
to the lessor an amount of reasonable compensation
for the breach;
(e)
an order imposing a condition
on the lessee or lessor.
159
Lessor’s claim for damages not affected
This subdivision does not limit or otherwise affect a claim by
a lessor for damages for a breach of a term of the lease or
another obligation owed by the lessee to the lessor.
160
Proceedings for relief against forfeiture
(1)
The lessee or a designated person for the
lease may apply to the court for relief against the
forfeiture, or proposed forfeiture, of the lease because of
a breach by the lessee of a term of the lease.
(2)
The application may be—
(a)
an originating process;
or
(b)
made in a proceeding brought
by the lessor for recovery of possession of the
land.
(3)
An application mentioned in subsection (2)(b) must be made—
(a)
if the lessor has re-entered
the land under section 156 or 157(2)(a)—within 1 month after
the re-entry; or
(b)
if the lessor has applied to
the court for recovery of possession of the
land—before an order for possession of the land is
made by the court.
(4)
The court may extend the period in which
the lessee or designated person may bring an application
under subsection (3)(a) if the court considers it
appropriate.
161
Application for relief against forfeiture not admission
(1)
An application under section 160 is not an
admission by the lessee or designated person for the lease
that—
(a)
the lessee has breached a term
of the lease; or
(b)
the lessor has a right to
forfeit the lease; or
(c)
a notice to remedy breach has
been given; or
(d)
a period for remedying the
breach has ended.
(2)
A court may order relief against the
forfeiture, or proposed forfeiture, of a lease without
deciding a matter mentioned in subsection (1).
162
Powers of court in making order for relief against
forfeiture
(1)
This section applies if the lessee or a
designated person for the lease applies under section 160 to the
court.
(2)
The court may make any order that the
nature of the case requires, including, for example, any of
the following orders—
(a)
an order for relief against
the forfeiture, or proposed forfeiture, of the
lease;
(b)
an order that the lessee pay
to the lessor an amount owed under the lease;
(c)
an order that the lessee pay
to the lessor an amount of reasonable compensation
for the breach;
(d)
if the applicant is a
sublessee—an order that the lessor enter into a
lease of the land, or a part of the land, with the
sublessee;
(e)
an order imposing a condition
on the lessee, lessor or designated person.
(3)
The court may make an order that the
lessor enter into a lease of the land, or a part of the
land, with a sublessee only if the lease—
(a)
starts on a day not earlier
than—
(i)
the day the lessor re-enters
the land under section 156 or 157(2)(a); or
(ii)
the day the lessor recovers
possession of the land after making a written
demand for possession of the land or under an
order of the court; and
(b)
ends on a day not later than
the day the sublease would have ended but for the
forfeiture of the lease.
(4)
In making an order under subsection (3), the court
must take into account the terms of the sublease.
Subdivision 3
Relief against refusal to
renew, or extend term of, or sell reversion of, lease
163
Definitions for subdivision
In this subdivision—
breach
notice see section 164(2)(a).
designated person, for a lease of land,
means a mortgagee or receiver of a lessee’s interest in
the land.
164
When lessor may refuse to renew, or extend term of, or sell
reversion of, lease
(1)
This section applies to a lease of land
if—
(a)
the lessor has agreed in
writing with the lessee that at or before the end
of the term of the lease, the lessee has an
option—
(i)
to renew, or extend the term
of, the lease in relation to all or part of the
land; or
(ii)
to purchase the reversion of
the lease; and
(b)
the exercise of the option is
conditional on 1 or more of the following
matters—
(i)
the fulfilment by the lessee
of a condition precedent to the exercise of the
option;
(ii)
the performance by the
lessee of the terms of the lease;
(iii)
the lessee giving a notice
exercising the option (an option notice); and
(c)
1 or more of the following
apply (each a breach)—
(i)
for paragraph (b)(i)—the lessee has not
fulfilled the condition precedent;
(ii)
for paragraph (b)(ii)—the lessee has not
performed the terms of the lease;
(iii)
for paragraph (b)(iii)—the lessee has not
complied with a formal requirement in relation to
the giving of the option notice.
(2)
The lessor may refuse to renew, or extend
the term of, or sell the reversion of, the lease, only
if—
(a)
the lessor gives the lessee a
notice in the approved form (a breach notice) stating the following
matters—
(i)
that the lessor intends to
refuse to renew, or extend the term of, or sell
the reversion of, the lease, because of 1 or more
breaches;
(ii)
the details of the breach or
breaches;
(iii)
that the lessee or a
designated person for the lease may apply to the
court for relief against the refusal;
(iv)
that an application to the
court for relief against the refusal must be made
within 1 month after the lessee receives the
breach notice;
(v)
that the lessee should seek
independent legal advice about the refusal and its
implications; and
(b)
the lessee or a designated
person for the lease does not apply to the court
under section 166 within 1
month after the lessor gives the lessee the breach
notice.
(3)
The lessor must give the lessee the breach
notice—
(a)
within 10 business days after
the giving of the option notice, if the breach
relied on in the breach notice happened on or
before the giving of the option notice; or
(b)
within 10 business days after
the breach relied on in the breach notice, if the
breach happened after the giving of the option
notice.
(4)
In this section—
formal requirement, in relation to the
giving of an option notice—
(a)
means a requirement under
the lease about—
(i)
the form of the notice;
or
(ii)
the way in which the notice
is to be given; or
(iii)
the person to whom the
notice is to be given; and
(b)
does not include a
requirement under the lease about the period
within which the notice is to be given.
165
Lessor must give copy of notice to designated persons
(1)
This section applies if a lessor gives a
lessee a breach notice.
(2)
The lessor must also give a copy of the
breach notice to each designated person for the lease whose
name and address is known to the lessor.
(3)
To remove any doubt, it is declared that
the lessor’s failure to comply with subsection (2) does not
limit or otherwise affect any right of the lessor to refuse
to renew, or extend the term of, or sell the reversion of,
the lease.
166
Proceedings for relief against refusal
(1)
The lessee or a designated person for the
lease may apply to the court for relief against the refusal
to renew, or extend the term of, or sell the reversion of,
the lease, because of 1 or more breaches mentioned in
section 164(1)(c).
(2)
The application may be—
(a)
an originating process;
or
(b)
made in a proceeding brought
by the lessor for recovery of possession of the
land.
(3)
If the lessor gives the lessee a breach
notice relying on 1 or more breaches mentioned in subsection (1), the lessee,
or designated person for the lease, must make the
application under subsection (1) within 1
month after the giving of the breach notice to the
lessee.
167
Powers of court in making order for relief against
refusal
(1)
This section applies if the lessee or a
designated person for the lease applies to the court under
section 166.
(2)
In deciding whether to give the relief,
the court may consider anything the court considers
relevant, including, for example—
(a)
the nature of the breach or
breaches relied on in the breach notice; and
(b)
the extent to which the lessor
has been prejudiced by the breach or breaches
relied on in the breach notice; and
(c)
the conduct of the lessor and
the lessee, whether before or after the giving of
the breach notice; and
(d)
the rights relating to the
lease of persons other than the lessor and the
lessee, including, for example, a designated
person for the lease.
(3)
The court may make any order that the
nature of the case requires, including, for example, any of
the following orders—
(a)
an order that the lessor renew
the lease;
(b)
an order that the lessor sell
the reversion of the lease;
(c)
an order imposing a condition
on the lessor, lessee or designated person for the
lease.
(4)
If the lease ends before the court makes
an order under this section, the lease is taken to continue
on the same terms that were in effect immediately before the
application was made until the court makes an order under
this section.
Division 6
Apportionment of rent
168
Apportionment in respect of time
(1)
This section applies to a payment of rent
under a lease in relation to a fixed or ascertainable period,
whether or not the payment is reserved or made payable under a
document.
(2)
The payment—
(a)
is to be regarded as accruing from
day to day; and
(b)
is apportionable in respect of
time in relation to both the liability to make, and
the right to receive, the payment.
(3)
This section is subject to any agreement to
the contrary.
169
Payment and recovery of apportioned part of rent
(1)
An apportioned part of rent is payable and
recoverable—
(a)
for a continuing right to
payment—only when the entire payment becomes payable
and recoverable; or
(b)
for a right to payment the
continuing right to which has stopped for a reason,
including, for example, the death of a person or the
re-entry of land—only when the entire payment would
have become payable and recoverable had the
continuing right not stopped.
(2)
A person entitled to an apportioned part of
rent—
(a)
has, when the entire payment
becomes payable, the same rights and remedies for
recovering the apportioned part as would have been
available in relation to the entire payment;
and
(b)
must bear a proportionate part of
any allowance which would have been given in
relation to the entire payment.
Division 7
Termination of particular leases
170
Definitions for division
In this division—
lease
terminable at will see section 172.
party, to a lease, means a lessor or lessee under the
lease.
termination
notice see section 173.
171
Contracting out permitted
This division applies subject to any agreement to the
contrary.
172
Meaning of lease terminable at
will
A lease of land is a lease terminable at
will if—
(a)
the lessee is in possession of the
land, although the lessor and the lessee have not
agreed, expressly or impliedly, to the duration of the
term of the lease; or
(b)
the lessee remains in possession of
the land with the lessor’s consent, although the term of
the lease has ended, and the lessor and the lessee have
not agreed, expressly or impliedly, that the lessee may
continue in possession for another period.
173
What
is a termination notice
(1)
A termination
notice, in relation to a lease, is a notice given
by a party to the lease that—
(a)
identifies the land subject to the
lease; and
(b)
states that the party is
terminating the lease on a stated day; and
(c)
is signed by the party.
(2)
The notice may, but need not, be in the
approved form.
(3)
To remove any doubt, it is declared that this
section does not limit or otherwise affect the ability of a
party to sign by an agent.
174
Termination of lease terminable at will
A party to a lease terminable at will may
terminate the lease on a stated day (the termination
day) by giving a termination notice to the other party
at least 20 business days before the termination day.
175
Termination of periodic tenancy
(1)
A party to a periodic tenancy may terminate
the tenancy, on a stated day that is the last day of a period of
the tenancy (the termination
day), by giving a termination notice to the other
party—
(a)
for a weekly tenancy—at least 1
week before the termination day; or
(b)
for a monthly tenancy—at least 1
month before the termination day; or
(c)
for a yearly tenancy—at least 6
months before the termination day; or
(d)
for a tenancy for a period other
than a week, a month or a year—at least the required
period for the tenancy before the termination
day.
(2)
For subsection (1)(d), subject to any contrary
agreement, the period of the tenancy is taken to start on the
day on which rent under the tenancy is payable.
(3)
In this section—
required
period, for a tenancy, means the lesser of the
following periods—
(a)
the period of the
tenancy;
(b)
6 months.
176
Termination of other tenancies
(1)
This section applies to a tenancy other
than—
(a)
a periodic tenancy; or
(b)
a tenancy for a fixed term if the
fixed term has not expired; or
(c)
a tenancy for which a period of
notice has expressly or impliedly been agreed to by
the parties.
(2)
A party to the tenancy may terminate the
tenancy on a stated day (the termination
day) by giving a termination notice to the other
party a reasonable period before the termination day.
(3)
For subsection (2), whether a period
is reasonable depends on all of the circumstances, including,
for example—
(a)
the nature of the tenancy;
and
(b)
the circumstances surrounding the
creation of the tenancy; and
(c)
the terms of the tenancy;
and
(d)
any implications arising from the
agreement of the parties.
Division 8
Miscellaneous matters
177
Effect
of waiver
(1)
A waiver by a lessor of the benefit of a term
of the lease—
(a)
extends only to the instance or
breach to which the waiver particularly relates;
and
(b)
is not to be taken as a general
waiver.
(2)
This section applies subject to any agreement
to the contrary.
178
Limitation on award of damages for breach of obligation to
repair
(1)
This section applies if a lessor brings a
proceeding against the lessee claiming damages for breach of an
obligation to keep or put premises in good repair during the
term of the lease or when the lease ends.
(2)
In making an award of damages for breach of
the obligation, the court may not award more than the lesser of
the following amounts—
(a)
the amount, if any, by which the
value of the reversion is diminished by the
breach;
(b)
the amount of the actual cost of
remedying the breach.
(3)
Also, the court may not award damages for
breach of the obligation if the lessee proves that on or after
the termination of the lease—
(a)
the premises have been, or will
be, demolished; or
(b)
structural alterations have been,
or will be, made to the premises that would result
in the cost of remedying the breach being of no
value or of insufficient value to justify the cost.
Part 10
Neighbouring
land
Division 1
Support for land
179
Duty
of care in relation to support for land
(1)
For the common law of negligence—
(a)
the owner of supporting land owes
a duty of care to the owner of supported land not to
do or omit to do anything that adversely affects the
support provided by the supporting land to the
supported land; and
(b)
the owner of supported land owes a
duty of care to the owner of supporting land not to
do or omit to do anything that adversely affects the
support provided by the supporting land to the
supported land.
(2)
Subsection (1) applies—
(a)
whether or not the supporting land
and supported land share a common boundary;
and
(b)
to any support, whether from
structures anywhere on the land or on a common
boundary.
(3)
The duty of care may be excluded or modified
by express agreement between a person on whom the duty lies and
a person to whom the duty is owed.
(4)
If an agreement under subsection (3) is embodied in an
easement registered under the Land Title Act 1994, the
agreement binds the parties to the agreement and each of their
successors in title.
(5)
The right at common law, if any, to bring a
proceeding in nuisance in relation to acts or omissions that
adversely affect the support provided by supporting land to
supported land is abolished.
(6)
In this section—
adversely affect, support provided by
supporting land to supported land, includes reduce or
remove support.
owner, of supporting land or supported
land, includes a mortgagee or receiver in possession of
the land if the mortgagee or receiver has exclusive
management and control of the land.
supported land means land, including a
structure on the land, that is provided with support by
supporting land.
supporting land means land, including
each of the following aspects of the land, that provides
support to supported land—
(a)
the natural surface of the
land;
(b)
the subsoil of the
land;
(c)
the water, if any, on or
beneath the land;
(d)
a part of the land, if any,
that has been reclaimed;
(e)
a structure on the
land.
Division 2
Easements and rights of use
180
Power
of court to impose statutory right of use
(1)
A person having an interest in land (the
benefited
land) may apply to the court for an order imposing
a statutory right of use over other land (the burdened
land) if the statutory right of use is reasonably
necessary for the effective use and development of the benefited
land.
(2)
Also, a person having an interest in land
(also the benefited
land) may apply to the court for an order imposing
a statutory right of use over other land (the burdened
land), relating to a utility, in favour of the
public utility provider providing the utility, if the statutory
right of use is reasonably necessary for the effective use and
development of the benefited land.
(3)
A statutory right of use imposed under subsection (1) may take any
form, including, for example an easement or licence.
(4)
A statutory right of use imposed under subsection (2) must take the
form of an easement in gross.
(5)
The court may make the order if the court is
satisfied that—
(a)
the statutory right of use is
reasonably necessary for the effective use and
development of the benefited land; and
(b)
the statutory right of use is
consistent with the operation of the Planning Act
2016, including, for example, the
planning scheme under that Act that applies to the
land affected by the statutory right of use;
and
(c)
the use or development of the
benefited land is consistent with the public
interest; and
(d)
each person having an interest in
the burdened land can be adequately compensated for
any loss or disadvantage arising from the imposition
of the statutory right of use; and
(e)
the person applying to the court
has made reasonable attempts to obtain the easement,
or other statutory right of use, by agreement;
and
(f)
the attempts mentioned in paragraph (e) have
been unsuccessful because—
(i)
a person has refused to
agree to the statutory right of use and the
refusal is unreasonable in all the circumstances;
or
(ii)
a person who has capacity to
agree to the statutory right of use can not be
located.
(6)
Also, for a statutory right of use imposed
under subsection (2), the court may
make the order only if the court is satisfied—
(a)
the statutory right of use is able
to be registered; and
(b)
the public utility provider has
agreed to the terms of the statutory right of use;
and
(c)
the local government in whose area
the statutory right of use is located has agreed to
the terms of the statutory right of use.
(7)
If the court makes the order, the court must
state in the order—
(a)
the nature of the statutory right
of use, and its terms; and
(b)
the land to be benefited, and the
land to be burdened, by the statutory right of
use.
(8)
However, for subsection (7)(b), the court is not required to
state the land to be benefited if the statutory right of use is
imposed under subsection (2).
(9)
Also, if the court makes the order, and is
satisfied that a person having an interest in the burdened land
will suffer loss or disadvantage arising from the imposition of
the statutory right of use, the court must make an order that
the applicant pay an amount to the person, considered by the
court to be just in the circumstances, by way of compensation.
(10)
The court may make any order that the nature
of the case requires, including, for example, any of the
following orders—
(a)
an order requiring a plan of
survey, designating the area of the burdened land
subject to the statutory right of use, to be
prepared;
(b)
an order imposing a condition on
the applicant or a person having an interest in the
burdened land.
(11)
If the court makes an order that creates an
interest that may be registered—
(a)
the interest must be registered;
and
(b)
unless otherwise ordered by the
court, the applicant must register the
interest.
(12)
If an interest is registered under subsection (11), the order
creating the interest binds all persons, including, for example,
the parties to the proceeding and each of their successors in
title.
(13)
The costs of a proceeding under this section
are payable by the applicant unless special circumstances
exist.
(14)
Despite section 3, this section does not
bind the State, other than to the extent a public utility
provider is bound to comply with a statutory right of use in the
form of an easement in gross in favour of the public utility
provider.
(15)
In this section—
public
utility provider means a public utility
provider under the Land Act 1994,
schedule 6 or the
Land Title Act
1994, section 81A.
statutory right of use, over land,
includes—
(a)
a right of way over land;
and
(b)
a right to access, enter or
cross over land; and
(c)
a right to carry and place a
utility on, over or under land.
utility includes—
(a)
electricity, gas, power,
telecommunication, water, drainage, sewerage and
other service pipes or lines; and
(b)
facilities and structures
reasonably incidental to the service pipes or
lines mentioned in paragraph (a).
181
Power
of court to modify or extinguish easement or covenant
(1)
This section applies if land (the burdened
land) is subject to the burden of—
(a)
an easement or covenant benefiting
other land (the benefited land); or
(b)
an easement in gross.
(2)
A person having an interest in the burdened
land may apply to the court for an order modifying or
extinguishing the easement or covenant.
(3)
The court may make the order if the court is
satisfied—
(a)
the easement or covenant is
obsolete because of—
(i)
a change in the use of the
benefited land; or
(ii)
a change in the character of
the area in the vicinity of the benefited land;
or
(iii)
other circumstances the
court considers material; or
(b)
the continued existence of the
easement or covenant—
(i)
would impede a reasonable
use of the burdened land; or
(ii)
would not provide a
practical benefit of substantial value, utility or
advantage to any person entitled to the benefit of
the easement or covenant; or
(iii)
would be contrary to the
public interest; or
(c)
for an easement or covenant under
a building management statement—the modification or
extinguishment of the easement or covenant—
(i)
can not be obtained by an
amendment of the statement under the Land Act 1994,
section 294F or the
Land Title Act
1994, section 54E because
the signature of all persons required for the
amendment can not be obtained; and
(ii)
is just and equitable in the
circumstances; and
(iii)
is reasonably necessary in
the circumstances; or
(d)
each person entitled to the
benefit of the easement or covenant can reasonably
be considered to have abandoned, by an act or
omission, the easement or covenant; or
(e)
each person entitled to the
benefit of the easement or covenant has agreed to,
or would not be substantially injured by, the
modification or extinguishment of the easement or
covenant.
(4)
However, the court may make an order under
subsection (3)(c) only if the court is satisfied
that each person who will suffer loss or other disadvantage from
the modification or extinguishment of the easement or covenant
can be paid an amount as adequate compensation for the loss or
disadvantage.
(5)
In deciding whether to make an order under
subsection (3)(a) or (b), the court—
(a)
must take into account the
operation of the Planning Act
2016, including, for example, the
planning scheme under that Act that applies to the
benefited land and the burdened land; and
(b)
may take into account any other
matter the court considers appropriate.
(6)
The court may make any order that the nature
of the case requires, including, for example, any of the
following orders—
(a)
an order requiring the payment of
an amount to a person mentioned in subsection (4);
(b)
an order requiring the amendment
of a document creating the easement or covenant to
include a term relating to the use, repair or
maintenance of the burdened land;
(c)
an order requiring the
registration of a document necessary to give effect
to an amendment mentioned in paragraph (b).
Note—
See the Land Act 1994,
sections 294F and
294I and the Land Title Act
1994, sections 54E and
54H for the requirement to
register an instrument of amendment or
extinguishment of a building management
statement.
(7)
In this section—
building management statement means a
building management statement under the Land Act 1994,
section 294B(2) or the Land Title Act
1994, section 54A(2).
covenant includes—
(a)
a covenant registered under
the Land Act 1994
or the Land Title Act
1994 or arising under a contract
or other arrangement; and
(b)
a covenant imposed under a
building management statement.
easement includes—
(a)
a right of access, support
or shelter, or other right in the nature of an
easement, under a building management statement;
and
(b)
an easement in gross.
extinguish means wholly or partially
extinguish.
182
No
interest created by prescription
No interest under the Land Act 1994 or the Land Title Act 1994 can be
created by prescription or through the doctrine of lost modern
grant.
Division 3
Encroachment of buildings
183
Definitions for division
In this division—
affected
owner see section 185(2).
building—
(a)
means a substantial structure
of a permanent character; and
(b)
includes a part of a structure
mentioned in paragraph (a),
including, for example, a wall.
encroaching
owner see section 185(1).
encroachment means an encroachment by a
building on to land and includes—
(a)
encroachment by overhang of
the building on to the land; and
(b)
encroachment by intrusion of
the building on or into, or under the soil of, the
land.
184
Relationship with other Acts
This division applies despite any other Act.
185
Proceedings for relief
(1)
A person who has an interest in land from
which an encroachment extends on to other land (an encroaching
owner) may apply to the court for relief in
relation to the encroachment.
(2)
A person who has an interest in land on to
which an encroachment extends from other land (an affected
owner) may apply to the court for relief in
relation to the encroachment.
(3)
The court may make an order granting or
refusing to grant the relief.
(4)
In deciding whether to make an order under
subsection (3), the court may
take into account the following matters—
(a)
whether the application is made by
an encroaching owner or an affected owner;
(b)
the circumstances in which the
encroachment was made;
(c)
the nature and extent of the
encroachment;
(d)
the purposes for which the
encroachment may be used;
(e)
the situation and value of the
land affected by the encroachment;
(f)
the operation of the Planning Act
2016, including, for example, the
planning scheme under that Act that applies to the
land affected by the encroachment;
(g)
the loss or damage, if any, that
has been or will be incurred by the affected owner
because of the encroachment;
(h)
the loss or damage, if any, that
would be incurred by the encroaching owner if the
court required the encroachment to be removed;
(i)
any other circumstance the court
considers relevant.
(5)
The court may make any order that the nature
of the case requires, including, for example, any of the
following orders—
(a)
an order that an affected owner
transfer, lease, or grant an easement or another
interest in, the land affected by the encroachment,
to an encroaching owner;
(b)
an order in relation to land
reasonably required as curtilage and for access to
the encroachment;
(c)
an order requiring a plan of
survey, designating the boundary of land affected by
the encroachment and any land mentioned in paragraph (b), to be
prepared;
(d)
an order that an encroaching owner
pay an amount to an affected owner as compensation
for loss or other damage arising from the
encroachment;
(e)
an order that the encroachment be
modified or removed.
186
Minimum compensation
(1)
If the court makes an order under section 185(5)(d), the amount of compensation must
be at least—
(a)
if the encroaching owner satisfies
the court that the encroachment was not intentional
and did not arise from negligence—the market value
of the interest in the land affected by the
encroachment; or
(b)
otherwise—3 times the market value
of the interest in the land affected by the
encroachment.
(2)
In deciding whether to make an order under
section 185(5)(d) that is more than the minimum
amount of compensation under subsection (1), the court must
take into account—
(a)
the value of the interest in the
land affected by the encroachment; and
(b)
the loss or damage, if any, that
has been or will be incurred by the affected owner
because of the encroachment and any order proposed
to be made by the court in favour of the encroaching
owner; and
(c)
the circumstances in which the
encroachment was made.
Division 4
Improvements under mistake of title
187
Relationship with other Acts
This division applies despite any other Act.
188
Proceedings for relief
(1)
This section applies to each of the following
persons—
(a)
a person (the first
person) who makes a lasting improvement
on land owned by someone else in the genuine but
mistaken belief that the first person owns the land;
(b)
a person who, on behalf of another
person (the second person), makes a lasting
improvement on land owned by someone else in the
genuine but mistaken belief that the second person
owns the land;
(c)
a person who has an interest in
land, or a lasting improvement, mentioned in paragraph (a) or
(b);
(d)
a local government within whose
area any part of land, or a lasting improvement,
mentioned in paragraph (a) or
(b), is located.
(2)
The person may apply to the court for relief
in relation to the lasting improvement.
(3)
The court may make an order granting or
refusing to grant the relief.
(4)
In deciding whether to make an order under
subsection (3), the court may
take into account the following matters—
(a)
whether the application is made by
a person who held a mistaken belief about the
ownership of the land on which the lasting
improvement was made, or a person who has an
interest in the land or lasting improvement;
(b)
the circumstances in which the
lasting improvement was made;
(c)
the nature and extent of the
lasting improvement;
(d)
the purposes for which the lasting
improvement may be used;
(e)
the situation and value of the
land affected by the lasting improvement;
(f)
the operation of the Planning Act
2016, including, for example, the
planning scheme under that Act that applies to the
land affected by the lasting improvement;
(g)
the loss or damage, if any, that
has been or will be incurred by a person because of
the lasting improvement;
(h)
the loss or damage, if any, that
would be incurred by a person if the court required
the lasting improvement to be removed;
(i)
any other circumstance the court
considers relevant.
(5)
Without limiting subsection (3), the court may
make any of the following orders—
(a)
an order that a person transfer,
lease, or grant an easement or another interest in,
the land or any part of the land affected by the
lasting improvement, to another person;
(b)
an order declaring that an
interest in the land or any part of the land
affected by the lasting improvement is free from a
mortgage, lease, easement or other interest
affecting the land;
(c)
an order varying, to the extent
necessary in the circumstances, a mortgage, lease,
easement, contract or other document affecting or
relating to the land affected by the lasting
improvement;
(d)
an order in relation to land
reasonably required as curtilage and for access to
the lasting improvement;
(e)
an order that a person pay an
amount to another person as compensation for loss of
the land, or other loss or damage arising from the
lasting improvement;
(f)
an order that the lasting
improvement be modified or removed;
(g)
an order requiring a plan of
survey, designating the boundary of land affected by
the lasting improvement and any land mentioned in
paragraph (d), to be
prepared.
(6)
In this section—
fence has the meaning given by the
Neighbourhood Disputes (Dividing
Fences and Trees) Act 2011.
lasting
improvement does not include a
fence.
Part 11
Transactions
Division 1
Assignment of debts or things in action
189
Definitions for division
In this division—
absolute, in relation to an assignment,
means—
(a)
not conditional; and
(b)
not by way of charge
only.
debt includes part of a debt.
debtor means a person, including, for
example, a trustee, who is under an obligation to discharge
a debt.
thing in
action includes part of a thing in
action.
190
Assignment of debt or legal thing in action
(1)
The absolute assignment in writing of a debt
or legal thing in action, signed by the assignor, passes to the
assignee—
(a)
all the rights of the assignor in
relation to the debt or thing in action; and
(b)
all the remedies of the assignor
in relation to the debt or thing in action;
and
(c)
a power to give a good discharge
to the debtor, trustee or other person liable for
the debt or thing in action without the agreement of
the assignor.
(2)
However, subsection (1) applies only if
the debtor, trustee or other person liable for the debt or thing
in action is given actual notice of the assignment.
(3)
Also, an assignment under subsection (1) is subject to
equities in relation to the debt or thing in action that—
(a)
arose before the debtor, trustee
or other person liable for the debt or thing in
action was given notice of the assignment; and
(b)
would, but for the assignment,
have had priority over the rights of the
assignor.
191
Discharge of debt or legal thing in action when no actual notice of
assignment
(1)
This section applies if a debt or legal thing
in action is assigned under section 190 or in equity.
(2)
If the debtor, trustee or other person liable
for the debt or thing in action has actual notice of the
assignment, the debt or legal thing in action is payable to the
assignee.
(3)
If the debtor, trustee or other person liable
for the debt or thing in action does not have actual notice of
the assignment, and that person pays all or part of the debt or
legal thing in action to the assignor, the payment discharges
that person to the extent of the payment.
(4)
However, the debt or legal thing in action is
payable to another assignee if, before making the payment, the
debtor, trustee or other person liable for the debt or thing in
action receives actual notice of the assignment of the same debt
or legal thing in action to the other assignee.
(5)
If subsection (4) applies, the
rights of the other assignee in relation to the debt or legal
thing in action have priority over the rights of the earlier
assignee.
(6)
A debtor, trustee or other person liable for a
debt or thing in action may interplead in any proceeding brought
against that person for the payment of the debt or legal thing
in action, or may apply to a court for an order determining the
entitlement to any right in relation to the debt or thing in
action, if that person has actual notice—
(a)
that an assignment of the debt or
thing in action is disputed by the assignee or
anyone claiming under the assignor; or
(b)
that there are other opposing or
conflicting claims in relation to the debt or thing
in action.
192
Assignment in equity
(1)
A voluntary assignment of property is taken to
have been assigned in equity, whether the assignment is oral or
in writing, if the assignment is complete.
(2)
For subsection (1), an assignment is
complete when the assignor has done everything that needs to be
done by the assignor to transfer to the assignee, whether
absolutely, conditionally, or by way of charge, the rights of
the assignor in relation to the property.
(3)
Subsection (2) applies even if a
thing remains to be done, without the intervention or assistance
of the assignor, to transfer to the assignee the rights of the
assignor in relation to the property.
(4)
This section applies—
(a)
despite any rule of equity to the
contrary; and
(b)
subject to sections 7 and 8.
Division 2
Dispositions to defraud creditors
193
Disposition with intent to defraud creditor voidable
(1)
A disposition of property by a person (the
transferor) is voidable against the transferor,
by a person prejudiced by the disposition, if the transferor
made the disposition with intent to defraud the transferor’s
creditors.
(2)
A disposition is not voidable against the
transferor under subsection (1) if the
disposition was made to a person who—
(a)
became a party to the disposition
in good faith; and
(b)
at the time when the person became
a party, had no notice of the transferor’s intent to
defraud the transferor’s creditors; and
(c)
provided valuable
consideration.
(3)
A person whose interests are affected by a
disposition of property voidable under subsection (1) may apply to the
court for relief against the disposition.
(4)
The court may hear and decide the application
and make the orders it considers appropriate.
Part 12
Powers of
appointment
194
When
exercise of power of appointment valid
(1)
This section applies if—
(a)
a document, other than a will, gives a
person a power of appointment over property; and
(b)
the power of appointment is exercised
under—
(i)
a deed; or
(ii)
a document under the Land Act 1994;
or
(iii)
an instrument under the
Land Title Act
1994.
(2)
The deed, document or instrument is validly executed for the purpose of
the power of appointment if—
(a)
for a deed—the deed is executed under
part 6; or
(b)
for a document under the Land Act
1994—the document is executed under the
Land Act 1994;
or
(c)
for an instrument under the Land Title Act
1994—the instrument is executed
under the Land Title Act
1994.
(3)
Subsection (2) applies even if the
document giving the person the power of appointment requires the
deed, instrument or document to be executed
in another way.
(4)
Subsection (2) does not affect
either of the following requirements in a document, other than a
will, giving a person a power of appointment over property—
(a)
a requirement that the consent of
another person be obtained for the power of appointment
to be validly exercised;
(b)
a requirement that an act, not related
to the way in which a deed or other document is
executed, be performed for the power of appointment to
be validly exercised.
(5)
Also, subsection (2) does not prevent a
person from executing a document in writing in a way allowed under
the power of appointment.
195
Appointment among 2 or more objects
(1)
This section applies if a document gives a person
a power of appointment over property among 2 or more objects.
(2)
An appointment of property made in exercise of the
power is valid even if—
(a)
1 or more of the objects is excluded
from the appointment; or
(b)
1 or more of the objects is appointed
a nominal or illusory share in the property.
(3)
This section does not affect a term of the
document that states the amount of a share of the property from
which an object is not to be excluded.
196
Protection
of buyer if invalid appointment
(1)
This section applies if—
(a)
a document gives a person (the
appointor) a power of appointment over
property; and
(b)
the appointor invalidly appoints
property to another person (the appointee) in purported exercise of the
power; and
(c)
another person (the buyer) purchases the invalidly appointed
property from the appointee.
(2)
The buyer has a valid title to the property
if—
(a)
the appointee is at least 25 years;
and
(b)
the appointee is a person, or member
of a class of persons, entitled to the property in
default of exercise of the power of appointment;
and
(c)
the buyer did not know, and could not
reasonably be expected to have known, that the
appointment of the property to the appointee was
invalid; and
(d)
the buyer gave valuable consideration
for the purchase.
(3)
However, if the amount or value of the invalidly
appointed property is more than the value of the appointee’s
entitlement to the property immediately before the purported
exercise of the power of appointment, the buyer has a valid title to
the property only to the extent of the appointee’s entitlement to
the property at that time.
(4)
For subsection (3), the appointee’s
entitlement to the property immediately before the purported
exercise of the power of appointment must be calculated taking into
account—
(a)
any advance made to the appointee; and
(b)
any hotchpot provision in the power of
appointment.
(5)
In this section—
hotchpot
provision, in a power of appointment, means a
provision providing for the appointment of property to an object
after taking into account advances of property already made to
the object under the provision.
197
Release
and disclaimer of power
(1)
This section—
(a)
applies to a power to dispose of
property whether or not the person who can exercise the
power has an interest in the property; and
(b)
does not apply to a power to dispose
of property if the power is in the nature of a trust.
(2)
The person who can exercise the power may—
(a)
release the power under a deed or
contract; or
(b)
disclaim the power under a deed.
(3)
The release of the power extinguishes the
power.
(4)
If the power is disclaimed—
(a)
the person who disclaimed the power
may not exercise or join in the exercise of the power;
but
(b)
any other person who can exercise the
power, and who has not disclaimed it, may continue to
exercise the power.
(5)
Subsection (4)(b) applies subject to the terms of the
document creating the power.
Part 13
Perpetuities
Division 1
Preliminary
198
Definitions for part
In this part—
disposition includes the conferring or
exercise of—
(a)
a power of appointment;
and
(b)
any other power to dispose of
an interest in property.
perpetuity
period, for a disposition of property under a
trust, see section 201.
199
When
disposition in will made
For the purpose of this part, a disposition in a will is made at
the death of the testator.
Division 2
General rules
200
Abolition of rule against perpetuities
The common law rule known as the rule against perpetuities is
abolished.
201
What
is the perpetuity period
The perpetuity
period, for a disposition of property under a trust,
is—
(a)
125 years starting on the day on which
the disposition is made; or
(b)
if the terms of the trust state or
imply a shorter period to be the perpetuity period for
the disposition, including, for example, by stating a
mechanism for determining the day on which the trust
property will vest—the shorter period.
202
Vesting of trust property
(1)
This section applies to a disposition of
property under a trust to a person.
(2)
The disposition is valid only if the property
vests in the person before the end of the perpetuity period for
the disposition.
203
Wait
and see rule
A disposition of property under a trust to a person is not invalid
under section 202 merely because the
property may vest in the person after the end of the perpetuity
period for the disposition provided it is possible the property may
vest in the person before the end of the perpetuity period.
Division 3
Trust
saving devices
204
Reduction of age to ensure disposition within perpetuity
period
(1)
This section applies to a disposition of
property under a trust if—
(a)
the terms of the trust state or
imply a mechanism for determining the day on which
the property will vest in a person by reference to
the person attaining a stated age of at least 18
years; and
(b)
the reference to the stated age
would cause the disposition to be invalid under
section 202; and
(c)
the disposition would be valid
under section 202 if the
stated age were 18 years.
(2)
The stated age is taken to be reduced to an
age not less than 18 years to the extent necessary to cause the
disposition to be valid under section 202.
205
Exclusion of class members to ensure disposition within perpetuity
period
(1)
This section applies to a disposition of
property under a trust if—
(a)
the terms of the trust state or
imply a mechanism for determining the day on which
the trust property will vest in a class of persons;
and
(b)
the inclusion of potential members
of the class or of unborn persons who at birth would
become members or potential members of the class
(both non-qualifying members) would cause the
disposition to be invalid under section 202; and
(c)
the application of section 204 would not
cause the disposition to be valid under section 202.
(2)
The non-qualifying members are taken to be
excluded from the class to the extent necessary to cause the
disposition to be valid under section 202.
(3)
However, a non-qualifying member is not
excluded under subsection (2) if the member’s
exclusion would exhaust the class.
(4)
This section does not affect the validity of
anything done in relation to the trust property before the
disposition, including, for example, by way of advancement or
application of intermediate income.
(5)
In this section—
member, of a class, means a person who
satisfies all the conditions for being a member of the
class.
potential member, of a class, means a
person who—
(a)
satisfies 1 or more of the
conditions for being a member of the class;
and
(b)
may in time satisfy all the
conditions for being a member of the class.
206
Acceleration of prior disposition to ensure subsequent disposition
within perpetuity period
(1)
This section applies in relation to a
disposition of property under the terms of a trust (a prior
disposition) if the prior disposition is invalid
under section 202.
(2)
A disposition of property under the terms of
the trust that is ulterior to and dependent on the prior
disposition (a subsequent
disposition) may be accelerated so the subsequent
disposition is valid under section 202.
Division 4
Ambit
of perpetuity period
207
Non-charitable purpose trust
(1)
If a document creates a non-charitable purpose
trust, or a trust for the benefit of a corporation that is not a
charity, and the trust is not otherwise invalid, the property
must be applied for the purposes of the trust before the end of
the perpetuity period for the disposition of property under the
trust.
(2)
To remove any doubt, it is declared that
division 2 applies to a trust
mentioned in subsection (1).
208
Powers
of appointment
(1)
If a document creates a general power of
appointment relating to property, the property must vest before
the end of the perpetuity period.
(2)
For subsection (1), the perpetuity
period starts when the property is appointed by the donee of the
power.
(3)
If a document creates a special power of
appointment relating to property, both of the following must
happen before the end of the perpetuity period—
(a)
the exercise of the power;
(b)
the vesting of the property.
(4)
For subsection (3), the perpetuity
period starts when the power is created.
(5)
In this section—
general
power of appointment means—
(a)
a power of appointment
exercisable under a document other than a will
under which the person given the power—
(i)
is the only person capable
of exercising the power; and
(ii)
may appoint the whole of the
property to any person including the person’s self
without complying with any other condition;
or
(b)
a power of appointment
exercisable under a will under which the person
given the power—
(i)
is the only person capable
of exercising the power; and
(ii)
may appoint the whole of the
property to any person including the person’s
personal representative without complying with any
other condition.
special
power of appointment means a power of
appointment other than a general power of
appointment.
209
Conditions precedent and conditions subsequent
(1)
If a document limits property in trust so as
to create an interest in property subject to a condition
precedent, the property must vest before the end of the
perpetuity period for the disposition of the property.
(2)
If a document limits property in trust so as
to create an interest in property subject to a condition
subsequent—
(a)
if the property is land—a right of
re-entry exercisable if the condition subsequent is
broken must be exercised before the end of the
perpetuity period for the disposition of the
property; or
(b)
for property other than land—a
right equivalent to a right of re-entry exercisable
if the condition subsequent is broken may only be
exercised before the end of the perpetuity period
for the disposition of the property.
(3)
If a right mentioned in subsection (2) is not exercised
before the end of the perpetuity period for the disposition of
the property, the interest in the property is no longer subject
to the condition subsequent.
210
Determinable interests
(1)
This section applies if the terms of a trust
allow the disposition of property under—
(a)
a right of reverter on the
determination of a determinable fee simple; or
(b)
a resulting trust on the
determination of a determinable interest in
property.
(2)
If the property does not vest before the end
of the perpetuity period for the disposition of the
property—
(a)
for subsection (1)(a)—the determinable fee
simple becomes absolute; and
(b)
for subsection (1)(b)—the determinable
interest becomes absolute.
(3)
In this section—
determinable, interest in property, means an
interest created under the terms of a disposition that,
under the terms, is determinable on a contingency.
211
Accumulation of income
(1)
This section applies if property is held on
trust the terms of which confer a power or impose a duty on the
trustee to accumulate income of the property.
(2)
The power or duty is valid only to the extent
the disposition of the accumulated income is valid under this
part.
(3)
This section does not limit or otherwise
affect—
(a)
a power of a person to terminate
an accumulation of income from property that is for
the person’s benefit; or
(b)
a power of a court or trustee
relating to an accumulation of income mentioned in
paragraph (a).
212
Particular trusts, powers and funds
The perpetuity period does not apply in relation to any of the
following matters—
(a)
a charitable trust;
(b)
the trusts of a superannuation fund or
scheme;
(c)
the trusts of a pension fund or
scheme;
(d)
a trust that is created under, or is
subject to, another Act that allows the trust to
continue indefinitely;
(e)
a trust that may continue indefinitely
under common law or equity;
(f)
a trust or power to sell property, if
a trust of the proceeds of sale is valid;
(g)
a trust or power to lease or exchange
property, if the lease or exchange directed or
authorised by the trust or power is ancillary to the
carrying out of a valid trust;
(h)
a power that is ancillary to the
carrying out of a valid trust or the giving effect to a
valid disposition of property;
(i)
a provision for the remuneration of
trustees.
213
Commercial arrangements
The perpetuity period does not apply in relation
to any of the following dispositions of property—
(a)
an option to renew a lease of
property;
(b)
an option to acquire the reversion of
a lease of property;
(c)
an option to acquire an interest in
property given for valuable consideration or in a will
in relation to property;
(d)
a right of pre-emption given for
valuable consideration or in a will in relation to
property.
214
Gift
over from charity to charity
The perpetuity period does not apply in relation to a gift over
from 1 charity to another charity.
215
Particular matters relating to land
To remove any doubt, it is declared that the perpetuity period does
not apply in relation to any of the following matters—
(a)
a power to take possession of land or
the income of the land given by way of indemnity against
a rent, whether or not the rent is payable in relation
to the land;
(b)
the grant, or exercise of, a right,
power or privilege in relation to land, including, for
example, a right of entry or an easement relating
to—
(i)
mining; or
(ii)
the removal of timber;
or
(iii)
the construction or repair
of buildings; or
(iv)
the construction or
maintenance of infrastructure.
Division 5
Variation of vesting date
216
Variation of trust to opt in to 125-year perpetuity period if trustee
has power of variation
(1)
This section applies if a trustee has power,
under the terms of the trust, to vary the vesting date of a
disposition of property under the trust.
(2)
The trustee may vary the vesting date to a
date not later than the last day of the period of 125 years
starting on the day of the disposition of the property under the
trust.
217
Variation of trust to opt in to 125-year perpetuity period if trustee
does not have power of variation
(1)
This section applies if a trustee does not
have power, under the terms of the trust, to vary the vesting
date of a disposition of property under the trust.
(2)
If all of the beneficiaries under the trust
are adults and of full capacity, the beneficiaries may execute a
deed to vary the vesting date to a date not later than the last
day of the period of 125 years starting on the day of the
disposition of the property under the trust.
Division 6
Applications to court
218
Application to court for declaration of validity
(1)
A person interested in a disposition of
property may apply to the court for a declaration about the
validity of the disposition under this part.
(2)
The court may hear and decide the application
and make the orders it considers appropriate.
219
Application to court to opt in to 125-year perpetuity period
(1)
A person interested in a disposition of
property under the terms of a trust, settled before the
commencement, may apply to the court for an order that the
property vest within 125 years after the creation of the trust.
(2)
The court may hear and decide the application
and make the orders it considers appropriate.
(3)
Without limiting subsection (2), the court may
make an order about the disposition of property that, under the
terms of the trust, may have vested more than 125 years after
the creation of the trust.
Part 14
Corporations
sole and particular bodies corporate
220
Perpetual
succession of corporation sole
A corporation sole—
(a)
is taken to be a body corporate with
perpetual succession; and
(b)
may sue and be sued in its corporate
name.
221
Constitution of corporation sole
A corporation sole is constituted by the person who holds the
appointment to the office of the corporation sole.
222
Effect of
transaction if temporary vacancy in particular bodies corporate
(1)
This section applies if—
(a)
either—
(i)
the office of a corporation
sole is vacant; or
(ii)
the office of the head of a
corporation aggregate is vacant; and
(b)
before a successor to the office is
appointed, the corporation sole or corporation aggregate
purports to enter into a contract or other transaction,
acquire an interest in property, or is appointed as a
trustee.
(2)
The contract or other transaction, or acquisition
of property, or appointment as trustee, takes effect as if the
successor had already been appointed.
(3)
However, the successor may disclaim the contract
or other transaction or acquisition of property, or renounce the
appointment as trustee.
223
Powers of
particular corporations
(1)
This section applies to a corporation other
than—
(a)
a corporation under the Corporations
Act; or
(b)
a corporation incorporated under
another Act if the Act expressly provides for
the way in which the corporation may do each of the
things mentioned in subsection (2)(a) to (c).
(2)
The corporation has all the powers of an
individual and may, for example—
(a)
enter into contracts; and
(b)
acquire, hold, dispose of, and deal
with, property; and
(c)
appoint agents and attorneys.
(3)
If a contract made by an individual is valid only
if in writing signed by the individual, the contract may be made by
the corporation in writing signed by a person acting under the
express or implied authority of the corporation.
(4)
If a contract made by an individual is valid even
if made by parol, the contract may be made by parol by the
corporation by a person acting under the express or implied
authority of the corporation.
(5)
In this section—
contract includes transaction.
224
Appointment of administrator if particular corporations incapable of
acting
(1)
This section applies to a corporation, including,
for example, a corporation incorporated under the Associations Incorporation Act
1981, the Corporations
Act or another Act.
(2)
If the corporation is incapable of acting for any
reason, including, for example, the death or incapacity of an
officer or member of the corporation, a designated person for the
corporation may apply to the court for the appointment of an
administrator.
(3)
The court may order the appointment of an
administrator if the court considers the appointment is necessary or
desirable.
(4)
The court may make any order that the nature of
the case requires, including, for example, any of the following
orders—
(a)
an order that the appointment be for
an indefinite period, a fixed period or until the
happening of a stated event;
(b)
an order imposing conditions;
(c)
an order that the remuneration of the
administrator is to be paid from the assets of the
corporation.
(5)
Subject to an order of the court, the
administrator may—
(a)
to the exclusion of the corporation
and any officer or member of the corporation, exercise
all the powers of the corporation; and
(b)
delegate any of the powers exercisable
by the administrator.
(6)
The court may, on the application of an
administrator appointed under subsection (3), or a designated
person for the corporation—
(a)
give to the administrator directions
relating to the powers of the administrator or the
affairs of the corporation; or
(b)
remove or replace the
administrator.
(7)
If the court makes an order for the appointment,
removal or replacement of an administrator in relation to a
corporation incorporated under the Corporations
Act, the order does not take effect until the
order is lodged with ASIC.
(8)
The order mentioned in subsection (7) must be lodged with
ASIC—
(a)
within 7 days after the order is made;
or
(b)
if the court allows a longer
period—within the longer period.
(9)
For subsection (2), a corporation is
incapable of acting whether the corporation is incapable of
acting—
(a)
generally, or in relation to a
particular transaction; or
(b)
temporarily, or for an indefinite or
other period.
(10)
In this section—
designated
person, for a corporation, means—
(a)
an officer or member of the
corporation; or
(b)
the personal representative of
a person mentioned in paragraph (a);
or
(c)
a creditor or another person
claiming against the corporation.
Part 15
Unregistered
land
225
Registrar
must give public notice if request to register unregistered land
(1)
This section applies if—
(a)
a person asks the registrar to
register an instrument relating to land; and
(b)
the registrar believes the land is not
included in the land registry.
(2)
The registrar must give public notice of the
request.
(3)
The registrar may decide—
(a)
what is to be included in the public
notice; and
(b)
how many times the public notice is to
be published; and
(c)
how and when the public notice is to
be published.
(4)
The public notice must include an invitation to
any person who claims an interest in the land to give notice of the
person’s claim to the registrar within 2 months after the public
notice is published.
226
Registrar
must give public notice if registrar believes land unregistered
(1)
This section applies if—
(a)
the registrar believes land is not
included in the land registry; and
(b)
a request in relation to the land has
not been made under section 225.
(2)
The registrar must give public notice of the
registrar’s intention to include the land in the land
registry.
(3)
The registrar may decide—
(a)
what is to be included in the public
notice; and
(b)
how many times the public notice is to
be published; and
(c)
how and when the public notice is to
be published.
(4)
The public notice must include an invitation to
any person who claims an interest in the land to give notice of the
person’s claim to the registrar within 2 months after the public
notice is published.
227
Registrar
may hold inquiry
(1)
If an issue arises in relation to land mentioned
in section 225 or 226, the registrar may hold an inquiry
under the Land Title Act 1994, part 2, division 4 to consider the
issue.
(2)
To remove any doubt, it is declared that the
Land Title Act 1994, part 2, division 5 applies in relation to
the inquiry.
228
Obligations of registrar
(1)
This section applies—
(a)
when the 2-month period provided for
in a public notice under section 225 or 226 ends; or
(b)
if an inquiry is held under the
Land Title Act
1994, part 2, division 4—when the
inquiry is finally ended.
(2)
The registrar must consider the following
information—
(a)
a request, if any, under section 225(1)(a);
(b)
information, if any, provided by a
person claiming an interest under section 225(4) or 226(4);
(c)
information, if any, obtained under
section 227;
(d)
any other information the registrar
considers appropriate.
(3)
After considering the information mentioned in
subsection (2), the registrar must
decide to record in the land registry the particulars relating to
the land the registrar considers appropriate.
(4)
Without limiting subsection (3), the registrar may
decide to—
(a)
record the land as unallocated State
land or freehold land; or
(b)
record information, if any, provided
by a person claiming an interest under section 225(4) or 226(4), including, for example,
information relating to the use and possession of the
land.
(5)
The registrar must give the applicant, and any
person claiming an interest under section 225(4) or 226(4), notice of the decision.
Part 16
General
Division 1
Service
229
Application of division
This division applies if this Act, or an agreement or another
document relating to property, authorises or requires a document to
be served on a person.
230
Relationship of division with other matters
(1)
If this division is inconsistent with the
Acts Interpretation Act
1954, part 10 or the Electronic Transactions (Queensland) Act
2001, this division prevails to the
extent of the inconsistency.
(2)
This division is subject to this Act or an
agreement to the contrary.
(3)
To remove any doubt, it is declared that this
division does not limit or otherwise affect a power of a court
relating to service of a document.
231
General requirements for service
(1)
The document may be served on the
person—
(a)
if the person is an individual—
(i)
by delivering the document
to the person personally; or
(ii)
by leaving the document at,
or by sending the document by post to, the address
of the place of residence or place of business of
the person last known to the person serving the
document; or
(iii)
by electronic communication
to an electronic address under section 233; or
(b)
if the person is a body
corporate—
(i)
by leaving the document at,
or sending the document by post to, the body
corporate’s—
(A)
registered office; or
(B)
principal office; or
(C)
principal place of business
in the State; or
(ii)
by electronic communication
to an electronic address under section 233.
(2)
If the document is sent by post, the document
is taken to be served 7 business days after the document was
sent unless the actual time the document was served by post is
proven.
(3)
Despite subsection (1), the court may—
(a)
order that a document be served in
a particular way; or
(b)
dispense with the requirement to
serve a document.
(4)
In this section—
place
of business see the Electronic Transactions
(Queensland) Act 2001, schedule 2.
232
Individual absent from State or deceased
(1)
This section applies if the person is an
individual who is absent from the State or deceased.
(2)
The document may be served on the person’s
agent or personal representative in a way mentioned in section 231(1)(a).
(3)
If the person’s agent or personal
representative is not known, the document may be served under an
order of a court.
233
Electronic communication
(1)
This section applies if the person has
designated an electronic address for receiving the
document.
(2)
The document may be served on the person by an
electronic communication to the electronic address.
(3)
The electronic communication must—
(a)
attach the document in the form
required by the Act, agreement or other
document relating to property; or
(b)
include the content of the
document, as required by the Act, agreement or other
document relating to property; or
(c)
include an electronic link that
allows the person to view and obtain a copy of the
document mentioned in paragraph (a), or the
content mentioned in paragraph (b), for a
reasonable period.
(4)
The time of receipt of the electronic
communication is taken to be—
(a)
if the communication is sent
before 5p.m. on a business day—the business day;
or
(b)
if the communication is sent after
5p.m. on a business day—9a.m. on the next business
day; or
(c)
if the communication is sent on a
day other than a business day—9a.m. on the next
business day.
(5)
However, subsection (4)—
(a)
is subject to any agreement to the
contrary; and
(b)
does not apply if the actual time
the electronic communication became capable of being
retrieved by the person at the electronic address
designated by the person is proven.
(6)
To remove any doubt, it is declared that
subsection (3)(c) is satisfied whether or not the
person is required to take another step, including, for example,
accepting terms and conditions of the electronic link, to
access, and obtain a copy of, the document mentioned in subsection (3)(a), or the content mentioned in
subsection (3)(b).
Division 2
Miscellaneous
234
Approved forms
The chief executive may approve forms for use under this Act.
235
Regulation-making power
(1)
The Governor in Council may make regulations
under this Act.
(2)
A regulation may—
(a)
prescribe fees payable under the
Act; and
(b)
provide for a maximum penalty of
20 penalty units for a contravention of a
regulation.
236
Transitional regulation-making power
(1)
A regulation (a transitional
regulation) may make provision of a saving or
transitional nature about any matter—
(a)
for which it is necessary to make
provision to allow or facilitate the doing of
anything to achieve the transition from the repealed
Property Law Act
1974 to this Act; and
(b)
for which this Act or a regulation
does not make provision or sufficient
provision.
(2)
A transitional regulation may have
retrospective operation to a day that is not earlier than the
day this section commences.
(3)
A transitional regulation must declare it is a
transitional regulation.
(4)
This section and any transitional regulation
expire 2 years after this section commences.
Part 17
Repeal
237
Repeal of
Property Law Act
1974
The Property Law Act
1974, No. 76 is repealed.
Part 18
Savings and
transitional provisions
Division 1
Preliminary
238
Application of Acts Interpretation Act
1954
This part does not limit or otherwise affect the Acts Interpretation Act
1954, section 20 or 20A.
239
Definitions for part
In this part—
corresponding provision, for a repealed
provision, means a provision of this Act that is equivalent
to, or substantially the same as, the repealed
provision.
repealed
Act means the repealed Property Law Act
1974.
repealed
provision means a provision of the repealed
Act as in force immediately before the commencement.
Division 2
Savings provisions
240
Saving
of abolition or modification of common law provided for in repealed
Act
(1)
This section applies if a repealed provision
provided for the abolition or modification of a common law rule
about a matter.
(2)
To remove any doubt, it is declared that,
whether or not there is a corresponding provision for the
repealed provision, this Act does not affect the abolition or
modification of the common law rule effected by the repealed
provision.
(3)
Without limiting subsection (2), it is
declared that—
(a)
if a document taking effect after
the commencement of the repealed Act contains words
that would have created an estate tail, the document
is taken to create an estate in fee simple;
and
Note—
See section 14 and the repealed Act,
section 22.
(b)
if a tenure is created by the
State on granting an estate in fee simple after the
commencement of the repealed Act, the tenure is in
free and common socage without any incident of
tenure for the benefit of the State; and
Note—
See section 15 and the repealed Act,
section 20.
(c)
if quit rent, or the residue of
quit rent, issues to the State out of land after the
commencement of the repealed Act, the land is
released from quit rent; and
Note—
See section 16 and the repealed Act,
section 20.
(d)
if a corporation is dissolved, or
otherwise ceases to exist, after the commencement of
the repealed Act, subject to the Corporations Act,
the State is entitled to take as bona
vacantia any of the corporation’s property
that would have been liable to escheat if escheat had
not been abolished; and
Note—
See section 17 and the repealed Act,
section 20.
(e)
if a life tenant commits, after
the commencement of the repealed Act, voluntary or
equitable waste that is not permitted under the
document creating the life estate, the life tenant
is liable in damages to the person entitled,
immediately after the life estate ends, to the fee
simple interest in remainder in the land; and
Note—
See section 19 and the repealed Act,
sections 24 and 25.
(f)
if 2 or more persons acquire land
after the commencement of the repealed Act in
circumstances in which they would have acquired the
land as coparceners, the persons acquire the land as
tenants in common and not as coparceners; and
Note—
See section 25 and the repealed Act,
section 33.
(g)
if a receipt for consideration is
in the body of a deed or other document executed on
or after the commencement of the repealed Act, the
receipt is a sufficient discharge for the
consideration to the person giving the consideration
without any further receipt for the consideration
being endorsed on the deed or document; and
Note—
See section 57 and the repealed Act,
section 51.
(h)
if a seller can not perform a
contract for the sale or other disposition of land,
after the commencement of the repealed Act, because
of a defect in the seller’s title, the court may
award damages for loss of bargain against the
seller; and
Note—
See section 83 and the repealed Act,
section 68.
(i)
for a mortgage entered into before
or after the commencement of the repealed Act, other
than in regard to the making of further advances as
mentioned in the repealed Act, section 82(1),
the right to tack is abolished; and
Note—
See section 126 and the repealed Act,
section 82.
(j)
a lease of land for a term of
years entered into before or after the commencement
of the repealed Act is capable of taking effect at
law or in equity from the start of the term, without
entry into possession of the land; and
Note—
See section 138 and the repealed Act,
section 102.
(k)
no interest under the Land Act 1994
or the Land Title Act
1994 can be created, after the
commencement of the repealed Act, by prescription or
through the doctrine of lost modern grant.
Note—
See section 182 and the repealed Act,
section 198A.
241
Saving
of abolition of common law rule that alien can not take, give, buy or
sell property
To remove any doubt, it is declared that the repeal of the repealed
Act, section 15A does not affect the abolition of the
common law rule that an alien can not take, give, buy or sell
property.
242
Particular provisions do not apply in relation to matters that happened
before 1 December 1975
(1)
This section applies if a repealed provision
provided that the provision applied only in relation to a matter
that happened after the commencement of the repealed Act.
(2)
To remove any doubt, it is declared that a
corresponding provision for the repealed provision does not
apply in relation to a matter for which the corresponding
provision provides that happened before the commencement of the
repealed Act.
(3)
Without limiting subsection (2), it is
declared that a corresponding provision for the repealed
provision does not apply in relation to the following matters
that happened before the commencement of the repealed Act—
(a)
the creation of a future interest
in land;
Note—
See section 22 and the repealed Act,
section 30.
(b)
the making of a document
containing an executory limitation on a gift over to
another person;
Note—
See section 24 and the repealed Act,
section 32.
(c)
the acquisition or holding of
property as a joint tenant by a body
corporate;
Note—
See section 26 and the repealed Act,
section 34.
(d)
the disposition of an equitable
interest in property to 2 or more persons together
beneficially;
Note—
See section 28 and the repealed Act,
section 35.
(e)
the making of a promise by 2 or
more persons;
Note—
See section 67 and the repealed Act,
section 54.
(f)
the making of a contract
containing a promise to do or refrain from doing an
act for the benefit of a third party;
Note—
See section 68 and the repealed Act,
section 55.
(g)
the making of a contract or other
document providing that a certificate of a person is
conclusive evidence of a fact;
Note—
See section 70 and the repealed Act,
section 57.
(h)
the creation of either of the
following mortgages—
(i)
a mortgage under which an
amount is expressed to be advanced by 2 or more
persons out of money belonging to them on a joint
account;
(ii)
a mortgage to 2 or more
persons jointly;
Note—
See section 111 and the repealed Act,
section 93.
(i)
the discharge of a mortgage.
Note—
See section 133 and the repealed Act,
section 98.
Division 3
Transitional provisions
243
Waiver
of State’s rights to property by escheat on death intestate of person
before commencement
A person may apply under section 18 for the waiver of the
State’s rights to property by escheat, devolution or bona
vacantia on the death intestate of a person whether the
death happens before or after the commencement.
244
Liability of co-owner of property to account for interest in property
arising before commencement
A co-owner of property is liable to account under section 27
to each other co-owner of the property whether the interest in the
property of the co-owners arises before or after the commencement.
245
Abolition of rule in Pigot’s case
(1)
Section 60 applies in relation
to a material alteration of a deed whether the alteration is
made before or after the commencement.
(2)
However, section 60 does not apply in
relation to a proceeding started before the commencement.
246
Covenant or agreement made by person with self and others before
commencement
(1)
Section 63 applies in relation
to a covenant or agreement entered into by a person with the
person’s self and 1 or more other persons, whether the covenant
or agreement is entered into before or after the commencement.
(2)
However, section 63 does not apply in
relation to an order of the court made before the
commencement.
247
Particular covenants in registered easements created before
commencement
Section 65 applies in relation to a
covenant contained in a registered easement over land for the
benefit of other land whether the easement is created or registered
before or after the commencement.
248
Effect
of inoperative computers in office of the land registry on day of
settlement on contract entered into before commencement
Section 79 applies in relation to a
contract for the sale of land whether the contract is entered into
before or after the commencement.
249
Effect
of inoperative computers in particular entities on day of settlement on
contract entered into before commencement
Section 80 applies in relation to a
contract for the sale of land whether the contract is entered into
before or after the commencement.
250
Effect
of adverse event on day of settlement on contract entered into before
commencement
Section 81 applies in relation to a
contract for the sale of land whether the contract is entered into
before or after the commencement.
251
Seller
disclosure for sales of lots
(1)
Part 7, division 4 applies in relation
to a contract for the sale of a lot only if the contract is
entered into after the commencement.
(2)
If a contract for the sale of a lot arises
from the exercise of an option, part 7, division 4 applies in relation
to the contract only if the option is granted after the
commencement.
252
Mortgagee’s power of sale in relation to disclaimed property mortgaged
before commencement
A mortgagee may sell under section 115 land subject to a
registered mortgage that has been disclaimed by a trustee in
bankruptcy or a liquidator whether the registered mortgage is
entered into, or the disclaimer happens, before or after the
commencement.
253
Court
may order sale of mortgaged property in proceeding for redemption or
foreclosure started before commencement
The court may order in a proceeding a sale of mortgaged property
under section 134 whether the proceeding is started before or
after the commencement.
254
Realisation of equitable mortgage in proceeding started before
commencement
The court may make an order under section 135 in a proceeding
brought in relation to an equitable mortgage whether the proceeding
is brought before or after the commencement.
255
Dealings with leases entered into before commencement
(1)
Subject to subsection (2), part 9,
division 4 applies in relation to a dealing with a lease if
the dealing happens after the commencement, whether the lease is
entered into before or after the commencement.
(2)
Section 144 applies only if the lease is
entered into after the commencement.
256
Relief
in relation to leases entered into before commencement
Part 9, division 5 applies in relation to a
lease as mentioned in section 150 whether the lease is
entered into before or after the commencement.
257
No
interest created by prescription before commencement
Section 182 applies whether the interest is alleged to have
been created before or after the commencement.
258
Disposition with intent to defraud creditor before
commencement
Section 193 applies in relation to the disposition of property
whether the disposition happens before or after the
commencement.
259
Powers
of appointment over property created before commencement
Part 12 applies in relation to a document giving a person a
power of appointment over property, including, for example, an
appointment, or purported appointment, of property under the
document, whether the document, or the appointment or purported
appointment, is made before or after the commencement.
Part 19
Amendment of
Acts
Division 1
Amendment of this Act
260
Act
amended
This division amends this Act.
261
Amendment of long title
Long title, from ‘, and to amend’—
omit.
Division 2
Amendment of Body Corporate and Community
Management Act 1997
262
Act
amended
This division amends the Body Corporate and Community Management Act
1997.
263
Amendment of s 205 (Information to be given to interested
persons)
Section 205(4) to (6)—
omit, insert—
(4)
An interested person may ask the body
corporate for a certificate under this section (a
body
corporate certificate) giving financial
and other information about a lot included in the
scheme.
(5)
The request must be in writing and
accompanied by the fee prescribed by the regulation
module applying to the scheme.
(6)
Within 5 business days after receiving
the request, the body corporate must give the person a
body corporate certificate in the approved form for the
lot.
Maximum penalty—20 penalty units.
(7)
A person who obtains a body corporate
certificate may rely on the certificate against the body
corporate as conclusive evidence of matters stated in
the certificate other than to the extent to which the
certificate contains an error that is reasonably
apparent.
(8)
An interested person may ask the body
corporate for stated financial information, of the type
included in the approved form for a body corporate
certificate, about a lot included in the scheme.
(9)
The request must be in writing and
accompanied by the fee required by the body
corporate.
(10)
The fee required under subsection (9)
must not be more than the amount payable under
subsection (5) for a request for a body corporate
certificate for the lot.
(11)
Within 5 business days after receiving
the request, the body corporate must give the person the
requested financial information.
Maximum penalty—20 penalty units.
(12)
A person who obtains financial
information under this section may rely on the
information against the body corporate as conclusive
evidence of the information other than to the extent to
which the information contains an error that is
reasonably apparent.
(13)
In this section—
interested person, for a lot included
in a scheme, means—
(a)
an owner of the lot;
or
(b)
a mortgagee of the lot;
or
(c)
a buyer under a contract for
the sale of the lot; or
(d)
a person to whom an owner of
the lot has given a disclosure statement under the
Property Law Act
2023, section 99(1)(a); or
(e)
another person who satisfies
the body corporate of a proper interest in the
information sought by the person under this
section; or
(f)
an agent of a person
mentioned in any of paragraphs (a) to (e).
264
Insertion of new s 205AAA
After section 205—
insert—
205AAA
Approved form
for body corporate certificate
The approved form for a body corporate certificate for
a lot included in a scheme—
(a)
must include provision for
information about the matters prescribed by the
regulation module applying to the scheme;
and
(b)
may include other
matters.
265
Amendment of s 205A (Definitions for ch 5)
Section 205A, definition disclosure
statement—
omit, insert—
disclosure statement means a statement
complying with section 213(2) to (4).
266
Amendment of s 205C (References to disclosure statement)
Section 205C(3), definition prescribed
documents, ‘and (f)’—
omit, insert—
, (f) and (fa)
267
Omission of ss 206–209
Sections 206 to 209—
omit.
268
Omission of s 211 (Restriction on powers of attorney in favour of
original owner)
Section 211—
omit.
269
Amendment of s 213 (Information to be given by seller to
buyer)
Section 213(2)—
insert—
(fa)
must be accompanied by a copy
of any building management statement, proposed to
be registered under the Land Title Act
1994, that would apply to the
scheme land after the establishment of the scheme
or after the scheme is changed; and
270
Insertion of new s 214A
After section 214—
insert—
214A
Variation of
proposed building management statement by further
statement
This division applies as if a reference in section 214
to a disclosure statement included a reference to a copy
of any building management statement given to the buyer
under section 213(2)(fa).
271
Insertion of new ch 8, pt 15
Chapter 8—
insert—
Part 15
Transitional
provision for Property Law Act 2023
447
Contracts
entered into before commencement
(1)
This section applies to the
sale of a lot under a contract entered into before
the commencement.
(2)
Chapter 5, as in force
immediately before the commencement, continues to
apply in relation to the sale despite the
amendment of chapter 5 by the Property Law Act
2023.
272
Amendment of sch 6 (Dictionary)
(1)
Schedule 6, definition body
corporate information
certificate—
omit.
(2)
Schedule 6—
insert—
body
corporate certificate see section
205(4).
Division 3
Amendment of Building Units and Group Titles Act
1980
273
Act
amended
This division amends the Building Units and Group Titles Act
1980.
274
Amendment of s 40 (Supply of information, certificates and copies
by body corporate)
(1)
Section 40, heading, ‘,
certificates’—
omit.
(2)
Section 40(1)(c)—
omit.
(3)
Section 40(4)—
omit.
275
Insertion of new s 40AA
After section 40—
insert—
40AA
Body corporate
certificate
(1)
An interested person may ask a
body corporate incorporated by the registration of a
plan for a certificate under this section (a
body
corporate certificate) giving financial
and other information about a lot the subject of the
plan.
(2)
The request must be in writing and
accompanied by the fee prescribed by
regulation.
(3)
Within 5 business days after
receiving the request, the body corporate must give
the person a body corporate certificate in the
approved form for the lot.
Maximum penalty—20 penalty units.
(4)
A person who obtains a body
corporate certificate may rely on the certificate
against the body corporate as conclusive evidence of
matters stated in the certificate, other than to the
extent to which the certificate contains an error
that is reasonably apparent.
(5)
The approved form for a body
corporate certificate—
(a)
must include provision for
information about the matters relating to a lot
that are prescribed by regulation; and
(b)
may include other
matters.
(6)
An interested person may ask the
body corporate for stated financial information, of
the type included in the approved form for a body
corporate certificate, about a lot the subject of
the plan.
(7)
The request must be in writing and
accompanied by the fee required by the body
corporate.
(8)
The fee required under subsection
(7) must not be more than the amount payable under
subsection (2) for a request for a body corporate
certificate for the lot.
(9)
Within 5 business days after
receiving the request, the body corporate must give
the person the requested financial
information.
Maximum penalty—20 penalty units.
(10)
A person who obtains financial
information under this section may rely on the
information against the body corporate as conclusive
evidence of the information other than to the extent
to which the information contains an error that is
reasonably apparent.
(11)
In this section—
interested person, for a lot the
subject of a plan, means—
(a)
a proprietor of the lot;
or
(b)
a mortgagee of the lot;
or
(c)
a buyer under a contract for
the sale of the lot; or
(d)
a person to whom a
proprietor of the lot has given a disclosure
statement under the Property Law Act 2023,
section 99(1)(a); or
(e)
another person who satisfies
the body corporate of a proper interest in the
information sought by the person under this
section; or
(f)
an agent of a person
mentioned in paragraphs (a) to (e).
276
Amendment of pt 4, div 3, hdg (Sale of lots and proposed lots)
Part 4, division 3, heading, ‘lots
and’—
omit.
277
Amendment of s 48E (References to disclosure statement)
Section 48E, ‘lot or’—
omit.
278
Amendment of s 48F (References to things done by or in relation to
original proprietor or purchaser)
Section 48F(1), ‘lot or’—
omit.
279
Amendment of s 49 (Duties of original proprietor)
(1)
Section 49(1), (2)(a), (4) and (6)(a), ‘lot or’—
omit.
(2)
Section 49(2)(b) and (c)—
omit, insert—
(b)
be accompanied by a disclosure
plan, complying with section 49A, for the proposed
lot; and
(ba)
state the date by which the
original proprietor must settle the contract for
the sale of the proposed lot as provided under
section 49B; and
(c)
set out or be accompanied by
particulars of the proposed lot entitlement of
every proposed lot and the proposed aggregate lot
entitlement; and
(3)
Section 49(2)(d), ‘plan or’—
omit.
(4)
Section 49(2)(e), ‘the by-laws in force in respect
of the plan or’—
omit.
(5)
Section 49(9), ‘any lot or’—
omit.
280
Insertion of new pt 7, div 6
Part 7—
insert—
Division 6
Transitional
provision for Property Law Act 2023
150
Contracts
entered into before commencement
(1)
This section applies to the
sale of a lot under a contract entered into before
the commencement.
(2)
Part 4, division 3, as in
force immediately before the commencement,
continues to apply in relation to the sale despite
the amendment of that division by the Property Law Act
2023.
Division 4
Amendment of Land Title Act
1994
281
Act
amended
This division amends the Land Title Act 1994.
Note—
See also amendments in schedule 3.
282
Amendment of s 54E (Amending a building management
statement)
(1)
Section 54E—
insert—
(2A)
Subsection (2) does not apply if
the instrument of amendment relates to an order of
the court under the Property Law Act 2023,
section 181.
(2)
Section 54E(2A) and (3)—
renumber as section 54E(3) and (4).
283
Amendment of s 54H (Extinguishing a building management
statement)
(1)
Section 54H—
insert—
(3A)
Subsection (3) does not apply if
the instrument of extinguishment or partial
extinguishment relates to an order of the court
under the Property Law
Act 2023, section 181.
(2)
Section 54H(3A) and (4)—
renumber as section 54H(4) and (5).
Division 5
Amendment of Limitation of Actions Act
1974
284
Act
amended
This division amends the Limitation of Actions Act
1974.
285
Amendment of s 10 (Actions of contract and tort and certain other
actions)
(1)
Section 10(1)(c), from ‘, where’ to ‘seal’—
omit.
(2)
Section 10(3), ‘specialty’—
omit, insert—
deed
(3)
Section 10(3), ‘12 years’—
omit, insert—
6 years
(4)
Section 10(6)(b), after ‘contract’—
insert—
or deed
286
Insertion of new s 51
Part 5—
insert—
51
Transitional
provision for Property Law Act 2023
The amendments made to section 10(3) and (6)(b) by the
Property Law Act
2023 apply in relation to a deed
only if the deed is made after the commencement.
Division 6
Amendment of Property Occupations Act
2014
287
Act
amended
This division amends the Property Occupations Act
2014.
288
Insertion of new s 229A
Before section 230—
insert—
229A
Disclosure of
seller’s right to bid at auction
(1)
This section applies if—
(a)
property is to be, may be or
is being, offered for sale by auction; and
(b)
the seller wishes to reserve
the seller’s right to bid at the auction.
(2)
The seller may bid at the auction,
and the auctioneer may accept a bid of the seller,
only if the conditions of sale for the auction that
are notified to prospective bidders for the auction
include a condition that the sale is subject to the
seller’s right to bid at the auction.
(3)
If property is sold in
contravention of subsection (2), the contract is
voidable by the buyer before settlement of the
contract.
(4)
To remove any doubt, it is
declared that a bid of the seller includes a bid on
behalf of the seller.
Division 7
Minor
and consequential amendments
289
Legislation amended
Schedule 3 amends the legislation it
mentions.
Schedule 1
Standard
terms
section 139
1
Payment of
rent
The lessee must pay the rent payable under the lease when it is due.
2
Payment of
taxes, rates and other assessments
The lessee must pay all taxes, rates and assessments of any kind that are
charged or chargeable on the land or the lessor, in relation to the leased
premises for the term of the lease in the proportion that the area of the
leased premises bears to the land subject to the assessment.
3
Maintain
and leave the premises in good repair
(1)
The lessee must at all times during the term of the
lease—
(a)
keep the leased premises, including any
improvements made to the leased premises by the lessee with
the consent of the lessor, and excluding any structural
elements of the leased premises, in good condition;
and
(b)
at the end of the lease, whether by
expiration of the lease term or otherwise, surrender and
yield up the leased premises to the lessor in at least the
same repair and condition in which the premises were in at
the start of the lease.
(2)
However, the lessee is not bound to repair any damage
to the leased premises caused by—
(a)
reasonable wear and tear; or
(b)
any of the following—
(i)
fire, flood, or explosion,
whether or not the fire, flood, or explosion is
caused or contributed to by the lessee’s
negligence;
(ii)
lightning, storm or
earthquake;
(iii)
any other cause the risk for
which the lessor has insured the premises.
(3)
Despite subclause (2)(b), the lessee is not excused
from liability to repair any damage caused by any of the events
mentioned in that subclause if, and to the extent that, any insurance
moneys that would otherwise have been payable to the lessor for the
destruction of or damage to the leased premises can not be recovered
because of an act or omission of—
(a)
the lessee; or
(b)
the lessee’s agent, contractor or invitee;
or
(c)
any other person under the lessee’s
direction or control.
4
Abatement
of rent if premises are destroyed or damaged
(1)
If the leased premises or any part of them are
destroyed or damaged by a relevant cause to the extent that they become
unfit for occupation and use by the lessee, the rent and any
contribution payable by the lessee to the outgoings on those premises
abates, in fair and just proportion to the destruction or damage, until
the premises or part of them—
(a)
have been repaired and reinstated;
and
(b)
are again fit for occupation and use by
the lessee.
(2)
Despite subclause (1), the lessee is not entitled to
the abatement referred to in that subclause if, and to the extent that,
any insurance moneys that would otherwise have been payable to the
lessor for the destruction of or damage to the leased premises can not
be recovered because of an act or omission of—
(a)
the lessee; or
(b)
the lessee’s agent, contractor or invitee;
or
(c)
any other person under the lessee’s
direction or control.
(3)
In this clause—
relevant
cause means—
(a)
fire, flood, or explosion, whether
or not the fire, flood or other inundation of water,
or explosion is caused or contributed to by the
lessee’s negligence; or
(b)
lightning, storm or earthquake;
or
(c)
any other cause the risk for which
the lessor has insured the premises.
5
Assignment
of the lease
(1)
The lessee must not assign the lease without first
obtaining the lessor’s written consent.
(2)
The lessor’s written consent must not be unreasonably
withheld.
6
Noxious or
offensive acts or things
(1)
The lessee must not do, or permit to be done, on the
leased premises a prohibited thing to—
(a)
the lessor; or
(b)
the other lessees of the lessor; or
(c)
the owners or occupiers of neighbouring
properties.
(2)
Subclause (1) does not apply to a prohibited thing
contemplated under the lease.
(3)
In this clause—
prohibited
thing means—
(a)
any noxious or offensive act or
thing; or
(b)
any act or thing that is, or is
likely to be, a nuisance or that causes, or is
likely to cause, any nuisance, damage, or
disturbance.
7
Commission
of waste
The lessee must not commit, or permit any of the lessee’s agents,
contractors, or invitees to commit, voluntary waste in relation to the
leased premises.
8
Lessee
entitled to quiet enjoyment
(1)
The lessee and all persons claiming under the lessee
must be able quietly to enjoy the leased premises without disturbance
by—
(a)
the lessor; or
(b)
the lessor’s agent, contractor or invitee;
or
(c)
any other person under the lessor’s
direction or control.
(2)
The lessor must not derogate from the lease.
9
Change of
use
(1)
The lessee must not use the premises for any purpose
other than the purpose permitted under the lease unless the lessor
consents to the change of use.
(2)
The lessor must not unreasonably withhold consent to a
request from the lessee for a change in use of the premises.
10
Power to
inspect premises
(1)
The lessor may at all reasonable times, either
personally or by the lessor’s agent, enter the leased premises for the
purpose of—
(a)
inspecting their state of repair; or
(b)
carrying out repairs; or
(c)
complying with the requirements of—
(i)
any Act or other law; or
(ii)
any notice given by a
competent authority.
(2)
The lessor must not unreasonably interfere with the
lessee’s occupation and use of the leased premises in the exercise of
the power conferred by subclause (1).
11
Power to
terminate lease for non-payment of rent or other breach
(1)
The lessor may terminate the lease if—
(a)
any rent is unpaid for 1 month after the
due date for payment, whether or not a demand for payment
has been made to the lessee by written notice signed by the
lessor or the lessor’s agent; or
(b)
the lessee has failed, for a period of 2
months, to observe or perform any other covenant, condition,
or stipulation on the part of the lessee expressed or
implied in the lease.
(2)
The lessee is not released from liability for the
payment of any unpaid rent or for the breach or non-observance of any
other covenant, condition, or stipulation mentioned in subclause (1) if
the lessor terminates the lease.
(3)
Subclause (1) is subject to part 9, division 5, subdivision 2.
12
Lessee
must remove lessee’s fixtures
(1)
Before or at the end of the lease, whether by
expiration of the lease term or otherwise, the lessee must remove and
take away from the leased premises all fixtures, fittings, plant,
machinery, utensils, shelving, counters, safes and other items owned by
the lessee.
(2)
The lessee must repair any damage caused to the leased
premises by the removal of the items mentioned in subclause (1).
(3)
If the lessee does not comply with subclause (1) or
(2) within 1 month after the end of the lease term then the items
mentioned in subclause (1) are taken to be abandoned items and the
lessor is entitled to remove, sell or otherwise dispose of the abandoned
items and to repair any damage caused to the leased premises by the
removal of the items.
(4)
The lessor may recover from the lessee any loss or
damages incurred in exercising its rights under subclause (3).
Schedule 2
Dictionary
section 6
absolute, in
relation to an assignment, for part 11, division 1, see section 189.
accepted
method, for electronically signing a document, means a
method that—
(a)
identifies the signatory for the document
and the signatory’s intention in relation to the content of
the document; and
(b)
is either—
(i)
as reliable as appropriate for
the purposes for which the document is made or
signed, having regard to all the circumstances,
including any relevant agreement; or
(ii)
proven in fact to have
fulfilled the functions mentioned in paragraph (a), by
itself or together with further evidence;
and
(c)
is consented to by each other signatory to
the document.
affected
owner, for part 10, division 3, see section 185(2).
approved form
means a form approved under section 234.
boundary
means the boundary line between contiguous parcels of land.
breach, of a
term of a lease, for part 9, division 5, subdivision 2, see section 152.
breach
notice, for part 9, division 5, subdivision 3, see section 164(2)(a).
building, for
part 10, division 3, see section 183.
buyer—
(a)
means a buyer for valuable consideration,
and includes a lessee, mortgagee, and other person who for
valuable consideration acquires an interest in property;
or
(b)
in relation to an instalment contract, for
part 7, division 3, see section 87; or
(c)
under a contract for the sale of a lot,
for part 7, division 4, see section 95.
call option,
for the sale of a lot, for part 7, division 4, see section 95.
computer, for
part 7, division 2, see section 74.
consent, to a
method by a signatory to a document under the definition accepted
method, paragraph (c)—
(a)
includes consent that can reasonably be
inferred from the conduct of the signatory; and
(b)
does not include consent given subject to
conditions unless the signatory complies with the
conditions.
contract—
(a)
for the sale of land, for part 7, division 3, see section 87; or
(b)
for the sale of a lot, for part 7, division 4, see section 95.
conveyancing
transaction, for part 7, division 2, see section 74.
co-owner, of
property, means a person who has an interest in the property with 1 or
more other persons as—
(a)
joint tenants, whether at law or in
equity; or
(b)
tenants in common, whether at law or in
equity.
copy, of an
electronic document, for part 6, division 1, see section 44.
counterpart,
for a document, for part 6, division 1, see section 45.
court means
the Supreme Court.
debt, for
part 11, division 1, see section 189.
debtor, for
part 11, division 1, see section 189.
deed means a
document that has under this Act or another Act the effect of a
deed.
deposit, in
relation to a contract for the sale of land, for part 7, division 3, see section 87.
designated
person—
(a)
for a lease of land, for part 9, division 5, subdivision 2, see section 152; or
(b)
for a lease of land, for part 9, division 5, subdivision 3, see section 163.
director, of
a corporation, for part 6, division 1, see section 44.
discharge, a
mortgage, includes redeem and release the mortgage.
disclosure
documents, for a lot, for part 7, division 4, see section 95.
disclosure
statement, for a lot, for part 7, division 4, see section 99(1)(a).
disposition—
(a)
of property—
(i)
includes the following—
(A)
a sale of property;
(B)
a mortgage of
property;
(C)
a transfer of
property;
(D)
a grant of property;
(E)
a partition of
property;
(F)
an exchange of
property;
(G)
a lease of property;
(H)
an assignment of
property;
(I)
an instrument that vests
property;
(J)
a declaration of a trust of
property;
(K)
a surrender, disclaimer or
release of property;
(L)
the creation of an interest
in property, including, for example, an easement
or profit a prendre;
(M)
the assurance of an interest
in property by a document; and
(ii)
does not include the
following—
(A)
a will;
(B)
a devise of property;
(C)
a bequest of property;
(D)
an appointment by will in
relation to property; and
(b)
for part 13, see section 198.
document, for
part 6, see section 44.
e-conveyance,
for part 7, division 2, see section 74.
e-conveyancing, for part 7, division 2, see section 74.
electronic
address includes an email address, internet protocol
address, digital mailbox address and mobile telephone number.
electronically
sign, a document, means sign the document using an
accepted method.
electronic
communication see the Electronic Transactions (Queensland) Act
2001, schedule 2.
electronic
document means a record of information that is—
(a)
a thing from which sounds, images or
writings can be reproduced with or without the aid of
anything else; or
(b)
a record of information reproduced from a
thing mentioned in paragraph (a); or
(c)
a record of information that exists in
digital form and is capable of being reproduced,
transmitted, stored or duplicated by electronic means.
electronic
link includes a link to—
(a)
a website; and
(b)
a file hosting service; and
(c)
a digital repository, including, for
example, a drop box cloud storage platform; and
(d)
another electronic medium.
electronic
workspace, for an e-conveyance, for part 7, division 2, see section 74.
ELN, for
part 7, division 2, see section 74.
encroaching
owner, for part 10, division 3, see section 185(1).
encroachment,
for part 9, division 3, see section 183.
financial
settlement, of an e-conveyance, for part 7, division 2, see section 74.
income, in
relation to land, includes rents and profits from the land.
information,
for part 6, see section 44.
instalment,
for part 7, division 3, see section 87.
instalment
contract, for part 7, division 3, see section 89.
intestate see
the Succession Act 1981, section 5.
land registry
means the land register under the Land Act 1994, section 275.
land titles
legislation, for part 7, division 2, see section 74.
lease, for
part 9, division 5, see section 149.
lease terminable at
will, for part 9, division 7, see section 172.
listed
corporation, for part 7, division 4, see section 95.
lot, for
part 7, division 4, see section 95.
mortgagee,
for a mortgage, includes a person who derives title to the mortgage from
another person who was a mortgagee for the mortgage.
mortgage
money means money or money’s worth secured by a
mortgage.
mortgagor,
for a mortgage, includes a person who derives title to the mortgage from
another person who was a mortgagor for the mortgage.
National Law,
for part 7, division 2, see section 74.
notice means
written notice.
notice to remedy
breach, for part 9, division 5, subdivision 2, see section 153(1)(a).
office of the land
registry has the meaning given by the Land Title Act 1994.
Note—
See also the Land Title Act 1994,
section 9(4).
option, for
the sale of a lot, for part 7, division 4, see section 95.
option fee,
relating to land, for part 7, division 3, see section 87.
participating
subscriber, to an e-conveyance, for part 7, division 2, see section 74.
party, to a
lease, for part 9, division 7, see section 170.
perpetuity
period, for a disposition of property under a trust, for
part 13, see section 201.
physical
document means a record of information that is—
(a)
a thing on which there is writing;
or
(b)
a thing on which there are marks, symbols
or perforations having a meaning for persons qualified to
interpret them.
possession,
in relation to land, includes the receipt of income from the land.
power of
appointment, over property, means a discretionary power to
create or transfer a beneficial interest in the property without the
provision of valuable consideration.
prescribed
certificate, applicable to a lot, for part 7, division 4, see section 99(1)(b).
prescribed
percentage, of the purchase price of land, for part 7, division 3, see section 87.
property, for
part 5, division 2, see section 30.
proposed lot
means—
(a)
a proposed lot within the meaning of the
Land Sales Act 1984;
or
(b)
a proposed lot within the meaning of the
Body Corporate and Community
Management Act 1997; or
(c)
land that will be shown as a lot on a
building units plan or group titles plan registered under
the Building Units and Group Titles Act
1980; or
Note—
There is limited scope for the registration of new
building units plans and group titles plans under
the Building Units and Group
Titles Act 1980—see section 5A of that
Act.
(d)
a proposed lot within the meaning of the
South Bank Corporation Act
1989, section 97B.
put and call
option, for the sale of a lot, for part 7, division 4, see section 95.
put option,
for the sale of a lot, for part 7, division 4, see section 95.
reasonable
compensation, for a breach of a term of a lease, for
part 9, division 5, subdivision 2, see section 152.
register, a
document, an interest, land or another thing, means record the
particulars of the thing in the appropriate register in the land
registry.
registrar
means the registrar of titles under the Land Title Act 1994, section 6.
related, for
a buyer of a lot and a seller of a lot, for part 7, division 4, see section 96.
rent includes
rent payable in advance.
Resource Act
see the Mineral and Energy Resources (Common Provisions)
Act 2014, section 9.
sale—
(a)
means a transfer for valuable
consideration; or
(b)
of land, for part 7, division 2, see section 74.
seal, of a
corporation, for part 6, division 1, see section 44.
secretary, of
a corporation, for part 6, division 1, see section 44.
security
interest, for part 5, division 2, see section 30.
seller—
(a)
in relation to an instalment contract, for
part 7, division 3, see section 87; or
(b)
under a contract for the sale of a lot,
for part 7, division 4, see section 95.
short lease
means—
(a)
a lease for a term of not more than 3
years, including, for example, a lease created by parol
taking effect in possession; or
(b)
a tenancy from year to year or a shorter
period.
sign, a
document, for part 6, division 1, see section 44.
standard
terms, of a lease, see section 139.
statutory
body, for part 7, division 4, see section 95.
subscriber,
for part 7, division 2, see section 74.
successor
includes a personal representative and an assign.
term—
(a)
for part 8, see section 108; or
(b)
for part 9, see section 137.
termination
notice, for part 9, division 7, see section 173.
thing in
action, for part 11, division 1, see section 189.
time, of
settlement of a contract, means the time provided for under the
contract.
unregistered
land means land that has been granted in fee simple and is
not land under the provisions of the Land Title Act 1994 or land
granted in trust under the Land Act 1994.
valuable
consideration does not include a nominal consideration in
money.
Schedule 3
Legislation
amended
section 289
Aboriginal Land Act 1991
1
Section 181, ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
2
Section 183(2), ‘Property Law Act 1974’—
omit, insert—
Property Law Act 2023,
section 118
Airport Assets (Restructuring and Disposal) Act
2008
1
Section 18, heading, ‘Property Law Act 1974,
s 121’—
omit, insert—
Property Law Act
2023, s 142
2
Section 18, ‘Property Law Act 1974, section 121’—
omit, insert—
Property Law Act 2023,
section 142
Building Boost Grant Act
2011
1
Section 9(1)(b)(ii), ‘Property Law Act 1974, part 6, division 4’—
omit, insert—
Property Law Act 2023,
section 89
Dalrymple Bay Coal Terminal (Long-term Lease) Act
2001
1
Long title and section 2, ‘Property Law Act 1974, section 121’—
omit, insert—
Property Law Act 2023,
section 142
2
Section 2, heading, ‘Property Law Act 1974,
s 121’—
omit, insert—
Property Law Act
2023, s 142
District Court of Queensland Act
1967
1
Section 68(1)(b)(vi)—
omit, insert—
(vi)
for the sale or division of property
under the Property Law Act
2023, part 5, division 2, where
the property does not exceed in amount or value the
monetary limit;
2
Section 70, ‘Property Law Act 1974, sections 124, 125 and 127’—
omit, insert—
Property Law Act 2023,
part 9, division 5
Farm Business Debt Mediation Act
2017
1
Schedule 1, definition statutory enforcement notice,
paragraph (a), ‘Property Law Act 1974, section 84’—
omit, insert—
Property Law Act 2023,
section 114
Fire and Emergency Services Act
1990
1
Section 104RA(1), definition transferor, paragraph (a), ‘in possession under the
Property Law Act 1974’—
omit.
First Home Owner Grant and Other Home Owner Grants
Act 2000
1
Section 8(1)(f)(ii), ‘Property Law Act 1974, part 6, division 4’—
omit, insert—
Property Law Act 2023,
section 89
Forestry Act 1959
1
Section 61RV(1)(b), ‘in accordance with the Property Law Act 1974, section 46F’—
omit, insert—
under the Property Law Act
2023, section 52
2
Section 61TM—
omit, insert—
61TM
Relationship with
Property Law Act
2023
(1)
For parts 6D and 6E, the following
provisions of the Property
Law Act 2023 do not apply to a
mortgage of a plantation licence or plantation
sublicence—
•
section 110
•
section 113
•
section 116(3)
•
section 117
•
section 119
•
section 121
•
section 125
•
section 126
•
section 129
•
section 134
•
section 135
•
section 136
(2)
The Property Law Act 2023,
section 123 applies to a mortgage under this Act.
Gladstone Power Station Agreement Act
1993
1
Section 7(2)(a)—
omit, insert—
(a)
applies subject to the Property Law Act
2023, section 68; and
Guardianship and Administration Act
2000
1
Section 45(4), ‘Property Law Act 1974, section 46F’—
omit, insert—
Property Law Act 2023,
section 52
Hospital Foundations Act
2018
1
Section 26, heading, ‘Property Law Act 1974, pt 14’—
omit, insert—
Property Law Act
2023, pt 13
2
Section 26, ‘Property Law Act 1974, part 14’—
omit, insert—
Property Law Act 2023,
part 13
Housing (Freeholding of Land) Act
1957
1
Section 8A(8), ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
2
Section 9(3)—
omit.
Infrastructure Investment (Asset Restructuring and
Disposal) Act 2009
1
Section 15, heading, ‘Property Law Act 1974,
s 121 and pt 8, div 3’—
omit, insert—
Property Law Act
2023, s 142 and pt 9, div 5
2
Section 15(2), ‘Property Law Act 1974, section 121 and part 8, division 3’—
omit, insert—
Property Law Act 2023,
section 142
and part 9, division 5
Land Act 1994
1
Section 310(1)(b), ‘in
accordance with the Property Law Act 1974, section 46F’—
omit, insert—
under the Property Law Act
2023, section 52
Land Tax Act 2010
1
Section 60(6), note, ‘Property Law Act 1974, section 83’—
omit, insert—
Property Law Act 2023,
section 113
Land Title Act 1994
1
Section 78(1), ‘Property Law Act 1974, part 7’—
omit, insert—
Property Law Act 2023,
part 8
2
Section 92, heading, ‘Property Law Act 1974,
s 181’—
omit, insert—
Property Law Act
2023, s 181
3
Section 92, ‘Property Law Act 1974, section 181’—
omit, insert—
Property Law Act 2023,
section 181
4
Section 97DA, heading, ‘Property Law Act 1974,
s 181’—
omit, insert—
Property Law Act
2023, s 181
5
Section 97DA, ‘Property Law Act 1974, section 181’—
omit, insert—
Property Law Act 2023,
section 181
6
Section 98(2), definition encroachment, paragraph (a), ‘Property Law Act 1974, part 11, division 1’—
omit, insert—
Property Law Act 2023,
part 10, division 3
7
Section 161(1)(b), ‘in
accordance with the Property Law Act 1974, section 46F’—
omit, insert—
under the Property Law Act
2023, section 52
Magistrates Courts Act
1921
1
Section 45(1)(d)—
omit.
Manufactured Homes (Residential Parks) Act
2003
1
Schedule 2, definition mortgagee in
possession—
omit.
Mineral Resources Act
1989
1
Section 334ZM, ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
Neighbourhood Disputes (Dividing Fences and Trees)
Act 2011
1
Section 66(4)—
omit.
Powers of Attorney Act
1998
1
Sections 5(3), 6, 7(2), 28, 32(2), 45(1), 46, 60(1), 65(a), 83 and 99(1)(a),
note—
omit.
2
Section 12(1), note 1, ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
3
Section 12(1), note 2, ‘Property Law Act 1974, section 46A’—
omit, insert—
Property Law Act 2023,
section 47
4
Section 69(4), ‘Property Law Act 1974, section 46F’—
omit, insert—
Property Law Act 2023,
section 52
5
Section 72(2), note, ‘or the Property Law Act 1974,’—
omit.
6
Section 84(1)—
omit.
7
Section 84(2) to (4)—
renumber as section 84(1) to (3).
Public Trustee Act 1978
1
Section 11C—
omit, insert—
11C
Contracts and
transactions of public trustee not under seal
Despite the Property Law Act
2023, section 223(1)(b), section 223
applies to the public trustee as if the public trustee were
a corporation to which that section applies.
Queensland Future Fund (Titles Registry) Act
2021
1
Schedule 1, part 2,
division 3, subdivision 4, heading, before ‘Property Law Act
1974’—
insert—
repealed
2
Schedule 1, part 2,
division 3, subdivision 4, paragraph 1—
omit.
3
Schedule 1, part 2,
division 3, subdivision 4, paragraph 2, before
‘Act’—
insert—
repealed
4
Schedule 1, part 2,
division 3, subdivision 4, paragraph 2—
renumber as schedule 1, part 2,
division 3, subdivision 4, paragraph 1.
Queensland International Tourist Centre Agreement
Act Repeal Act 1989
1
Section 8, ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
Queen’s Wharf Brisbane Act
2016
1
Chapter 5, part 3,
heading, ‘Property Law Act
1974’—
omit, insert—
Property Law Act
2023
2
Section 59,
heading, ‘s 121’—
omit, insert—
s 142
3
Section 59, ‘Property Law Act 1974, section 121’—
omit, insert—
Property Law Act 2023,
section 142
4
Section 59,
note—
omit.
Residential Tenancies and Rooming Accommodation Act
2008
1
Section 27,
heading, ‘Property Law
Act’—
omit, insert—
Property Law Act
2023
2
Section 27, ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
Retail Shop Leases Act
1994
1
Section 94(3)(a), ‘notice under
section 124 of the Property Law Act 1974’—
omit, insert—
notice to remedy breach under the Property Law Act 2023, section 153
2
Section 94(3)(b), ‘notice under
section 131 of the Property Law Act 1974’—
omit, insert—
termination notice under the Property Law
Act 2023, part 9, division 7
Roman Catholic Church (Incorporation of Church
Entities) Act 1994
1
Section 25A(6), ‘Property Law Act 1974, section 11(1)(b)’—
omit, insert—
Property Law Act 2023,
section 8(2)
South Bank Corporation Act
1989
1
Schedule 4, part 2, division 4,
section 24A(1), ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
2
Schedule 4, part 2, division 4,
section 24C(3), ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
3
Schedule 4, part 2, division 4,
section 24D(1), ‘Property Law Act 1974, section 115’—
omit, insert—
Property Law Act 2023,
section 145
4
Schedule 4, part 2, division 4,
section 24F(1), ‘Property Law Act 1974, section 124(6)’—
omit, insert—
Property Law Act 2023,
section 150
5
Schedule 4, part 2, division 4,
section 24F(1), ‘section 124 of that
Act’—
omit, insert—
Property Law Act 2023,
section 153 of
that Act
Surat Basin Rail (Infrastructure Development and
Management) Act 2012
1
Section 3(2)(a), ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
2
Section 9, heading, ‘Property Law Act
1974’—
omit, insert—
Property Law Act
2023
3
Section 9(b), ‘Property Law Act 1974, section 121 and part 8, division 3’—
omit, insert—
Property Law Act 2023,
section 142
and part 9, division 5
Survey and Mapping Infrastructure Act
2003
1
Section 62, definition Property Law Act
relief provisions, ‘Property Law Act 1974, part 11’—
omit, insert—
Property Law Act 2023,
part 10, divisions 3 and
4
Torres Strait Islander Land Act
1991
1
Section 137, ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
2
Section 139(2), ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
Transport Infrastructure Act
1994
1
Section 240C(4), ‘Property Law Act 1974, section 115’—
omit, insert—
Property Law Act 2023,
section 145
2
Section 240D(5), ‘Property Law Act 1974, section 115’—
omit, insert—
Property Law Act 2023,
section 145
Water Act 2000
1
Section 174(1), ‘Property Law Act 1974’—
omit, insert—
Property Law Act
2023
© State of Queensland 2023