DIPLOMA IN LAWLEGAL PROFESSIONADMISSION BOARD

LAW EXTENSION COMMITTEE

LAW EXTENSION COMMITTEE SUBJECT GUIDE

14 CONVEYANCINGWINTER SESSION 2016

This Guide includes the Law Extension Committee’s course information and teaching program and the Legal Profession Admission Board’s syllabus. The syllabus is contained under the heading “Prescribed Topics and Course Outline” and has been prepared in accordance with Rule 27H(a) of the NSW Admission Board Rules 2015.

Course Description and Objectives 1Lecturers 1Assessment 1-2September 2016 Examination 2Lecture Program Prescribed Topics and Course Outline (Course Outline cont. on page 9) 3-6Weekend Schools 1 and 2 6Texts and Materials 7Compulsory Assignment 8Assignment Question 8Prescribed Topics and Course Outline (Cont. from page 3) 9-17

LAW EXTENSION COMMITTEE WINTER 201614 CONVEYANCING

COURSE DESCRIPTION AND OBJECTIVES

The objective of the Conveyancing course is to familiarise students with the concept of conveyancing. Particular emphasis is placed on the structure of the Standard Form Contract for Sale of Land 2005 and how the new 2014 edition relates to it.

Whilst the course is to some degree involved with practical issues of conveyancing, a good deal of relevant case law is discussed in order that students will be in a position to recognise problem areas in practice. The course also provides for a consideration of various issues of contract law, equity and planning law.

LECTURERS

Mr W A Henningham, PSM, LLB (Syd)

Mr Bill Henningham, who teaches the evening lecture students, is a solicitor and mediator in private practice who has long specialised in conveyancing. He also specialises in local government and environmental planning law which has important implications for conveyancing. Mr Henningham has written and addressed conferences and seminars on topics covered in the course. He is the author of chapters on Local Government Law and Practice in Lexis-Nexis Local Government and Planning Service (NSW) Vol C and is the teacher of the subject Local Government and Planning in the Diploma in Law course.

If you wish to discuss any aspect of the subject matter of the Conveyancing course, you may consult Mr Henningham, whose telephone number is (02) 9427 0519.

Mr D H W Ross, LLB (Syd)

Mr David Ross, who teaches the external (Weekend) students, has been a solicitor in private practice for over 50 years and has also long specialised in conveyancing practice. In 1996 he taught Property Law and Commercial Law at Seaforth TAFE and has been the weekend lecturer and examiner in Conveyancing since Winter Semester 2010.

His experience in also practising in Business and Commercial Law and in related litigation gives him a very relevant understanding of the pitfalls which can arise in conveyancing practice. Mr Ross’s three years of legal practice in Byron Bay gave him a valuable insight into legal issues faced by rural conveyancing practitioners. He is able to be contacted by leaving a message with (02) 9546 7362.

ASSESSMENT

To be eligible to sit for the Board’s examinations, all students must complete the LEC teaching and learning program, the first step of which is to ensure that you have registered online with the LEC in each subject for which you have enrolled with the Board. This gives you access to the full range of learning resources offered by the LEC.

To register with the LEC, go to www.sydney.edu.au/lec and click on the WEBCAMPUS link and follow the instructions. Detailed guides to the Webcampus are contained in the material distributed by the LEC, in the Course Information Handbook, and on the Webcampus.

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Eligibility to Sit for Examinations

In accordance with the Legal Profession Admission Rules, the LEC must be satisfied with a student’s performance in a subject in order for the student to be eligible to sit for the examination, conducted by the Legal Profession Admission Board (LPAB). Assignments are used to assess eligibility.

Students are expected to achieve at least a pass mark of 50% in assignments to be eligible to sit for examinations. However, a category of “deemed eligible” has been introduced to offer students whose assignment mark is between 40-49% an opportunity to sit for the examination. In these circumstances students are often advised not to sit. A mark below 40% means a student is not eligible to sit for the examination.

Assignments as part of the Board’s Examinations

Assignment results contribute 20% to the final mark in each subject.

The Law Extension Committee (LEC) administers the setting and marking of assignments. The LEC engages the LPAB’s Examiners to assess or supervise the assessment of assignments.

Submission

Assignments must be submitted by 11:59pm on the due date unless an extension has been granted. Extensions must be requested by email prior to the due date. Specific supporting evidence must be provided. Assignments that are more than ten days late will not be accepted. Late assignments attract a penalty of one mark out of 20, or 5% of the total marks available, per day.

Assessment

Assignments are assessed according to the “Assignment Grading and Assessment Criteria” outlined in the Guide to the Presentation and Submission of Assignments. Prior to the examination, assignments will be returned to students and results posted on students’ individual results pages of the LEC Webcampus. Students are responsible for checking their results screen and ascertaining their eligibility to sit for the examination.

Review

Where a student’s overall mark after the examination is between 40-49%, the student’s assignment in that subject will be included in the Revising Examiner’s review. The final examination mark is determined in accordance with this review. Assignment marks will not otherwise be reviewed.

SEPTEMBER 2016 EXAMINATION

Candidates will be expected to have a detailed knowledge of the prescribed topics set out and referred to on pages 3–6 and 9–17 in this Subject Guide.

Candidates will be expected to have made a study of the prescribed materials in relation to those topics, and to have analysed cases contained in the Law Extension Committee's course outline.

Please contact the Legal Profession Admission Board for any enquiries in relation to examinations.

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LECTURE PROGRAM

Lectures in Conveyancing will be held on Mondays, commencing 9 May 2016, from 6.00pm until 9.00pm. In the first half of semester they will be held in New Law School Lecture Theatre 026 (New LSLT 026). Lecture venues for the second half of the semester have yet to be confirmed. Weekend lectures will be held in Lecture Theatres at times as advised on page 6. A map of the University of Sydney’s main campus showing the location of these lecture venues is included at the back of the Course Information Handbook.

PRESCRIBED TOPICS AND COURSE OUTLINE(COURSE OUTLINE CONT. ON PAGE 9)

LECTURE TOPICS KEY READING1

9 MayIntroduction to conveyancing – what transactions are involvedResidential Conveyancing Protocol entered into by the Law Society of NSW and the Real Estate Institute on behalf of their members: seewww.lawsociety.com.auFormation of an enforceable contract -what is required? exchange of contracts; what is involved in a typical conveyancing matter

Skapinker, (5th ed 2010) Ch 1Rossiter, Ch 1

216 May

The Standard Form of Contract for Sale of Land, 2014 ed., formerly 2005 ed. (CSL)The Law Society of NSW and the Real Estate Institute of NSW have issued the new Contract for Sale and Purchase of Land 2014 Edition in electronic format only. The 2005 Edition of the Contract for Sale of Land will be available in both hardcopy and electronic format until 30 June 2016

An (amended) Summary of the Main Changes in the 2014 Edition prepared by the Law Society appears on the LEC Webcampus.

Subject matter of the saleCaveat emptor and the vendor’s general law duty of disclosureVendor’s statutory duties of disclosureConsequences of active concealment of defectsWhat is a “proposal” in the context of adverse affectations?“Prescribed documents” under S 52A of Conveyancing Act 1919 and Conveyancing (Sale of Land) RegulationPrudent pre-contract inquiries and actions by a purchaser and a purchaser’s solicitorUnfulfilled conditions of consentWhether to choose E-Conveyancing; seeCl 30 CSLRequirements under the Home Building Act 1989 (as amended 2014) and Swimming Pool Act 1992 and

Skapinker, Ch 3Note that the 2010 ed of Skapinker cannot canvas the 2014 contract amendments.

Skapinker, Ch 3Rossiter, Ch 5

Skapinker, Ch 4

Note: 2010 ed of Skapinker (5th edition) quotes superseded editions of the Conveyancing (Sale of Land) Regulation

Henningham, Planning Law implications for conveyancing – negotiating the planning control minefield (LEC Website)

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Swimming Pool Regulation 2008 Swimming Pools Act 1992 and Swimming Pools Regulation 2008

323 May

Deposit and deposit-bond alternatives to a cash deposit; cll 2 & 3 CSLDeposit and penalty; status of vendor’s agent holding the deposit as “stakeholder”; forfeiture of deposit;issues related to part-paid deposits; “cooling off” provisions; vendor’s duty of care pending completionStatus of vendor between exchange and completion – trustee?Passing of risk and protecting purchaser’s beneficial interest prior to completionNeed for vendor to maintain comprehensive insurance until after completion and desirability of purchaser obtaining comprehensive “replacement” cover after exchange of contractsCaveats by purchasers and their relevance; in what circumstances should they be lodged including compensation from caveator who is taken to have lodged a caveat without reasonable cause Do caveats have any limitations?

Skapinker, Ch 7Rossiter, Ch 4

Skapinker, Ch 8

Skapinker, Ch 8

Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website)Skapinker, Ch 8

430 May

Requisitions and objections - cl 5 CSLResponses to requisitions et al.Vendor’s entitlement to rescind (cl 8.1) and purchasers right to terminate (cl 8.2)of the CSLMisrepresentation/misleading and deceptive conduct in conveyancing transactions - Australian Consumer Law and common law

Who could have actionable liability apart from parties?

Skapinker, Ch 10; Rossiter, Ch 6Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website)

Izaz Khan, Barrister, “Misrepresentations in Land Transactions” (LEC Website)

Stephen Climpson, The Impact of Misleading and Deceptive Conduct on Contracts for the Sale of Land(LEC Website)

56 Jun

Title defects and their effect upon a vendor’s titleRule in Flight v Booth; purchaser’s remedies for undisclosed defects; Undisclosed stormwater mainsWhat is a material or substantial defect?Prescribed term in contract re encroachmentsPrescribed warranties in contractsErrors and misdescriptionsClaims under cl 7 of the standard form of contractConsequence of changes in planning controls after issue of s 149(2) cert. attached to contractNew opportunities for relief for purchasers now available by virtue of clause 8.2 of

Skapinker, Ch 5; Rossiter, Ch 5

Skapinker, Ch 6

Skapinker, Ch 11

Rossiter, Ch 8

Note: 2010 ed of Skapinker quotes superseded editions of the Conveyancing (Sale of Land) Regulation

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CSL 2014 ed

No Lecture on Monday 13 June 2016 – Queen’s Birthday Public Holiday

Study Break: Saturday 18 June – Sunday 3 July 2016

No Conveyancing Lecture on Monday 4 July

611 Jul

Survey certificates and their importanceBuilding certificates – relevance to prescribed warranty in the context of unlawful building workRegularisation of breaches of Planning LawSection 52A of the Conveyancing Act cannot be excludedInquiries and adverse affectationsPurchaser’s right to rescind and limitations on rightsDoctrine of electionWhat constitutes affirmation of a contract?Does the purchaser’s solicitor have any responsibility to enquire in relation to surrounding properties? How should a solicitor for a purchaser deal with a request that such enquiries be made?

Skapinker, Ch 5Skapinker, Ch 4Skapinker, Ch 12Skapinker, Ch 6.40 et seq

Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website)

718 Jul

Preparing for completionRates and adjustments; what constitutes vacant possessionExisting uses; what are the duties of a solicitor acting for a purchaser if it is asserted that there is an existing use?Heritage and conservation issuesIssues relating to s 149 certificatesShould information under s149(5) be supplied by vendor in contract and obtained by purchaser if not provided?

Occupation certificates, what is their importance?Status under Planning Law of restrictive covenants and easements. Can their operation be suspended?

Suggested special conditions. What special conditions should be rejected by a solicitor for the purchaser?Is interest required to be paid on the balance of purchase price after the completion date a penalty? Note interest rate guideline in cl 18.5.2 CSL.

Skapinker, Ch 14;Butt, Ch 14 [1447], [20116] Rossiter, Ch 8Skapinker, Ch 13Henningham, Exemptions from Rating and other Rating Issues (LEC Website)

Henningham, Planning Law implications for conveyancing – negotiating the planning control minefield (LEC Website)

Henningham, More Pitfalls for the Unwary Conveyancing Practitioner(LEC Website)Butt, Ch 7 [17138-17142], [16134]

825 Jul

TimePrecautions on behalf of purchaser prior to completionRequirements for valid notice to complete

Skapinker, Ch 15; Rossiter, Chs 4, 6, 7Skapinker, [8.35]; Rossiter, Ch 7Butt, [2048-2049]

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Henningham, More Pitfalls for the Unwary Conveyancing Practitioner (LEC Website)

91 Aug

Remedies including rescission and terminationIn what circumstances can repudiation of a contract be inferred?Alternative dispute resolutionThe options for consensual resolution of conveyancing disputes

Skapinker, Chs 16, 17, 18; Rossiter, Chs 1, 2, 8CSL cll 7,8.1, 8.2, 9, 17.3, 19, 23.9, 27.4-27.6, 28.3, 29.5-29.8.

108 Aug

The elements of Torrens TitleStrata Title and Community TitleMortgages, leases, easements and other interestsWhat is e-Conveyancing and how will it provide an electronic environment for participating practitioners to conduct the financial settlement of conveyancing transactions.(Cl 30 CSL)

Butt, Ch 20Butt, Ch 21Butt, Ch 18, 15, 16

For Registrar Generals FAQs one-conveyancing visit………………….. http://rgdirections.lpi.nsw.gov.au/e-dealings/faqs

1115 Aug

Revision which will take the form of a review and discussion of the whole subject

WEEKEND SCHOOLS 1 AND 2

There are two weekend schools principally for external students. Lecture students may attend on the understanding that weekend school classes aim to cover the same material as provided in weekly lectures and are primarily for the assistance of external students. External students should refer to the detailed material in the Prescribed Topics and Course Outline

It may not be possible to cover the entire course at the weekend schools.

Weekend School 1 Prescribed topics covered in Lectures 1 - 5

Friday 27 May 2016 5.00pm – 9.00pm in Carslaw Lecture Theatre 373 (CLT 373) and Saturday 28 May 2016 Noon – 4-00pm in New Law School Lecture Theatre 106 (New LSLT 106)

Weekend School 2 Prescribed topics covered in Lectures 6 – 10and Revision, being a review and discussion of the whole subject of Conveyancing

Friday 22 July 2016 5.00pm – 9.00pm in New Law School Lecture Theatre 026 (New LSLT 026) and Saturday 23 July 2016 Noon – 4.00pm in New Law School Lecture Theatre 106 (New LSLT 106)

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TEXTS AND MATERIALS

For the period from 21 April to 30 May 2016, LexisNexis is offering our students a special discount and free shipping on purchases made through the LexisNexis e-store at www.store.lexisnexis.com.au. Students quoting the promo code LECW2016 will receive a 15% discount on all text titles (except for those authored by John Carter). This discount is not limited to the prescribed or recommended texts for our courses. Students should, however, still compare LexisNexis’s discounted price with that of other outlets. The Co-op Bookshop, for example, offers a discount on texts sold to its members.

Course Materials

Guide to the Presentation and Submission of Assignments (available on the LEC Webcampus)

Prescribed Materials

Skapinker and Lane, Sale of Land: Commentary and Materials, 5th ed. Thomson Reuters, 2010 Butt, Land Law, 6th ed. Thomson Reuters, 2009 Rossiter, Principles of Land Contracts and Options in Australia, LexisNexis, 2003 Standard Form of Contract for Sale of Land, 2014 ed. approved by the Law Society of New South

Wales and the Real Estate Institute of New South Waleswith other materials Note: The Standard Form of Contract for Sale of Land 2005 ed approved by the Law Society of New South Wales will continue to be included with other materials for cross reference with texts published before 2014, as well as the 2014 ed. CSL, including A Summary of the Main Changes in the 2014 Edition prepared by the Law Society, in the Course Materials section of the LEC Webcampus.

Relevant Legislation

Internet access to the relevant legislation can be readily obtained through:http://www.austlii.edu.au for section by section references and for unbroken presentation (more convenient for printing), www.legislation.nsw.gov.au and www.commlaw.gov.au

Conveyancing Act 1919 and Conveyancing (General) Regulation 2013 Real Property Act 1900 and Regulations NSW Conveyancing (Sale of Land) Regulation 2010 NSW (CSL Reg 2010) with amended Schedule 1 which

took effect on 29 April 2016 Environmental Planning and Assessment Act 1979 NSW Environmental Planning and Assessment Regulation 2000 NSW Strata Schemes Management Act 1996 NSW; it is anticipated that this Act will be replaced by the Strata

Schemes Management Act 2015 (NSW) on 1 July 2016 July Competition and Consumer Act 2010 and Fair Trading Act 1987 – Australian Consumer Law (Cwlth) Community Land Management Act 1989 NSW Electronic Conveyancing (Adoption of National Law) Act 2012 NSW Home Building Act 1989 (as amended 2014) Encroachment of Buildings Act 1922 Swimming Pools Act 1992 and Swimming Pools Regulation 2008

LEC Webcampus

Once you have registered online with the LEC, you will have full access to the facilities on the LEC Webcampus including the Course Materials section containing links to cases and legislation as well as three papers by Bill Henningham: Planning Law Implications for Conveyancing – Negotiating the planning control minefield More Pitfalls for the Unwary Conveyancing Practitioner Exemptions from Rating and other Rating Issues, a paper by David Ross, The Advent of Electronic Conveyancing, January 2015

And a paper by Stephen Climpson, Barrister, entitled “The Impact of Misleading and Deceptive Conduct on Contracts for the Sale of Land”, 2014.

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COMPULSORY ASSIGNMENT

In Conveyancing, there is only ONE ASSIGNMENT. This assignment is compulsory and must be submitted by all students. Students must submit the assignment by the due date. A pass mark is 50%. Refer to the Guide to the Presentation and Submission of Assignments for the assignment grading and assessment criteria. Students who fail to satisfy the compulsory requirements will be notified through the Results screen on the Webcampus before the examination period of their ineligibility to sit the examination in this subject. The maximum word limit for the assignment is 2000 words (inclusive of all footnotes but not bibliography).

The rules regarding the presentation of assignments and instructions on how to submit an assignment are set out in the LEC Guide to the Presentation and Submission of Assignments which can be accessed on the LEC Webcampus. Please read this guide carefully before completing and submitting an assignment.

The completed assignment should be lodged through the LEC Webcampus by 11:59pm on the following date:

Compulsory Assignment Thursday 21 July 2016 (Week 9)

ASSIGNMENT QUESTION

To obtain the Conveyancing assignment question for the Winter Session 2016, please follow the instructions below:

1. Register online with the LEC (see page 26 of the Course Information Handbook for detailed instructions). Once you have registered, you will have full access to all the facilities on the LEC Webcampus.

2. Then go into the Webcampus, select the Course Materials section and click on the link to the assignment question for this subject.

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PRESCRIBED TOPICS AND COURSE OUTLINE (CONT. FROM PAGE 3) INCLUDING RELEVANT CASES

1. INTRODUCTION LECTURE 1

(1) Sale and purchase of land

(2) Mortgages

(3) Leases

(4) Other interests and dealing

2. FORMATION OF AN ENFORCEABLE CONTRACT FOR THE SALE OF LAND LECTURE 1

(1) Certainty of agreement

Air Great Lakes P/L v KS Easter (Holdings) P/L (1985) 2 NSWLR 209Hall v Busst (1960) 104 CLR 206Bushwall Properties v Vortex Properties [1976] 1 WLR 591Sudbrook Trading Estate v Eggleton [1982] 3 WLR 315Booker Industries v Wilson Parking (Queensland) (1982) 149 CLR 600Meehan v Jones (1982) 149 CLR 571Igloo Homes Pty Ltd v Sammut Constructions Pty Ltd (2006) ANZ ConvR 143

(2) Intention to be immediately bound

Masters v Cameron (1954) 91 CLR 353Guilfoyle Developments P/L v Frumar [2012] NSWSC 859Allen v Carbone (1975) 49 ALJR 161G R Securities v Baulkham Hills Private Hospital (1986) 40 NSWLR 631Waltons Stores (Interstate) v Maher (1988) 164 CLR 87Arfaris v Vosnakis [2016] NSWCVA 65 Welch v Welch [2012] NSWSC 1128Teviot Downs Estate Pty Ltd v MTAA Superannuation Fund (Flagstone Creek and Spring Mountain Park) Property Pty Ltd (2004) ANZ ConvR 152Peter Warren (Properties) Pty Ltd v Jalvoran Pty Ltd (2005) ANZ ConvR 52Article : “Is there a Binding Contract?” : Peter Butt (2005) 79 ALJ 205Grave v Blazevic Holdings P/L [2012] NSWCA 329

(3) Conveyancing Act , s 54A – contracts for sale must be in writing

(4) Conveyancing Act , s 66S – 66Y – cooling off provisions

(5) Methods of exchange of contracts

Eccles v Bryant [1948] 1 Ch 93Domb v Isoz [1980] 1 All ER 942Sindel v Georgiou (1984) 154 CLR 661Longpocket Investments v Hoadley (1985) NSW Conv R 55-244

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3. SUBJECT MATTER OF SALE LECTURE 2

(1) Standard contract

Changes made by CSL Reg 2010 including the warning required in relation to a landowner’s obligations under the Swimming Pools Act 1992 requiring Certificates of Compliance for properties sold with a pool after 29 April 2016.

The Law Society of NSW and the Real Estate Institute of NSW have issued the new Contract for Sale and Purchase of Land 2014 Edition (CSL 2014 ed.) in electronic format only. The 2005 Edition of the Contract for Sale of Land will be available in both hardcopy and electronic format until 30 June 2016.

A table prepared by the Law Society containing a summary of the main changes in the CSL 2014 ed. appears on the LEC Webcampus.

(2) Description of the subject of the sale

Travinto Nominees P/L v Vlattas (1973) 129 C1 LR (also lecture 5)Palumberi v Palumberi (1986) NSW ConvR 55-287Abraham v Mallon (1975) 1 BPR 9157Nicita v Maloney (1971) 1 BPR 9105Avim v Guilianotti [1989] NSW Conv R 55-479Harris v Harris [2008] NSWSC 545

4. CAVEAT EMPTOR AND PRE-CONTRACT ENQUIRIES LECTURE 2

(1) Vendor's general law duty of disclosure

Best v Glenville [1960] 3 All ER 478Dormer v Solo Investments (1974) 1 NSWLR 428Anderson v Daniels (1983) NSW Conv R 55-144Tsekos v Finance Corporation of Australia (1982) 2 NSWLR 347

(2) Vendor's statutory duty of disclosure

Conveyancing Act, s 52A(2)(a)Lismore CC v Stewart (1989) 68 LGRA 445Verman v McLaughlin (1990) NSW Conv 55-521Port Stephens SC v Booth (2006) 148 LGERA 351Mid Density Developments v Rockdale MC (1993) 81 LGERA 104Conveyancing (Sale of land) Regulation 2010Standard Form Contract for Sale of LandGibson v Francis (1989) NSW Conv R 55-458Argy v Blunts and Lane Cove Real Estate (1990) 94 ALR 719Pisano v Dandris [2014] NSWSC 1070Williams v Pisano [2015] NSWCA 177 (The High Court refused leave to appeal) See also Anderson v Daniels ((1) above)

(3) Prudent Pre-Contract Enquiries

Hillpalm Pty Limited v Heaven’s Door Pty Limited [2004] HCA 59Article: “Indefeasibility Overriden – Significantly”: Peter Butt and Scott Freidman (2003) 77 ALJ 88Adderton v Festa Holdings Pty Limited & Ors [2003] NSWSC 1065Luxford v Sidhu [2007] NSWSC 1356Article: ”The importance in Evidence of Usual Practice” Tony Cavanagh (2009) July LSJ 48

(4) Vendor's contractual duty of disclosure Standard Form Contract for Sale of Land, case law, legislation and the Regulation.

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(5) Requirements under the Home Building Act 1989 as amended 2014

5. DEPOSIT LECTURE 3

(1) Functions of a deposit

Brien v Dwyer (1978) 141 CLR 378 (HCA)

(2) Status of agent in relation to the deposit

(3) Holding and contractual deposits

Sorrell v Finch [1976] 2 WLR 833

(4) Split Payment of Deposits– steps to take if the deposit is only part paid on exchange

CSL cl 2 2014 ed.Luong Dinh Luu v Sovereign Developments Pty Ltd and 2 Ors (2006) NSWCA 40Ianello v Sharpe [2007] NSWCA 61Ashdown v Kirk [1999] 2 Qd 1Boyarsky v Taylor [2008] NSWSC 1415; (22-12-2008); [2009] NSWSC 468; (1-5-2009);Cloud Top PL v Toma Services PL [2008] NSWSC 568Rana v Dalla Costa [2014] NSWSC 1113; @para 35-72

(5) Forfeiture of deposit {see also Remedies Lecture 9 Chap 21(3) (d)}

CSL: cl 9 2014 ed.Conveyancing Act, s 55(2A)Lucas and Tait (Investments) v Victoria Securities (1973) 2 NSWLR 268Romanos v Pentagold (2003) ANZ Conv R 601Tsekos v Finance Corporation of Aust Ltd (1982) 2 NSWLR 347Timanu PL v Clurstock PL (1988) 15 NSWLR 338

(6) Deposit-Bond CSL 2014 ed. Cl 3

(7) Cooling-Off Provisions Conveyancing Act S 66V

(8) GST on Deposits

Commissioner of Taxation v Reliance Carpet Co P/L (2008) 236 CLR 342ATO Decision Impact Statement 4/6/08 (Skapinker 7.230)

6. RISK AND DUTY OF CARE PENDING COMPLETION LECTURE 3

(1) Vendor's duty of care

Bunny Industries v F S W Enterprises [1982] ANZ Conv R 627Phillips v Lamdin [1949] 2 KB 33Trust Company of Australia Ltd v Commissioner of State Revenue [2007] VSC 451

(2) Status of vendor between exchange and completion – trustee?

Bunny Industries LTD v FSW Enterprises Pty Ltd (1982) ANZ ConvR 627Kern Corporation v Walter Reid Trading Pty Ltd (1987) 163 CLR 164Carpenter v McGrath (supra; lecture 6 Chapter 11)Chang v Registrar of Titles (1976) 137 CLR 177

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(3) Protection of purchaser's equitable interest – Insurance & Passing of Risk

(a) Caveats Black v Garnock [2007] HCA 31Credit Finance Australia Ltd (in liq) v Panella [2011] NSWSC 311Beca Developments v Idameneo (No. 92) Pty Ltd(1990) 21 NSW LR 459Source and Resources Pty Ltd v Porada [2007] NSWSC 883Hillpalm Pty Ltd v Wilson [2009] NSWSC 362 Real Property Act 1900 Part 7B (Priority notices); Ss74S to 74Z amended by Real Property Act (Electronic Conveyancing) Act 2015 assented 15/9/15

(b) Insurance and passing of riskInsurance Contracts Act 1984, s 50Conveyancing Act, ss 66J-0 (comm 1.5.1986)Stephenson v State Bank of NSW (1996) 39 NSWLR 101 Shadlow v Skiadopolous (1988) NSW Conv R 55-383 Robert Pryke Investments v Blazai [2000] NSWCA 222 (18 August 2000)Nevitoro Investments v Turner [2004] NSWSC 1315Ziel Nominees v V A C C Insurance Co (1978) 50 ALJR 106 (pre 1984)Kern Corporation Ltd v Walter Reid Trading PL (supra) Qld law (dissenting Deane J )

7. REQUISITIONS AND OBJECTIONS LECTURE 4

(1) Types of requisitions and objections

Godfrey Constructions v Kanangra Park (1972) 128 CLR 529Gardiner v Orchard (1910) 10 CLR 722Sullivan & Ors v Dan & Ors (1999) ANZ ConvR 32Crowe v Rindock [2005] NSWSC 375Avim v Guilianotti (supra lecture 2)

(2) Time for making requisitions and objections

CSL 2014 cl 5

(3) Vendor's entitlement to rescind

CSL 2014 cl 8Duddell v Simpson [1866] LR 2 Ch App 102Pierce Bell Sales v Frazer (1973) 130 CLR 575Noske v McGinnes (1932) 47 CLR 563Crowe v Rindock (supra)

8. BREACHES OF COMPETITION AND CONSUMER ACT 2010 (Australian Consumer Law) & REMEDIES; MISREPRESENTATION UNDER THE GENERAL LAW LECTURE 4

Statewide Developments P/L v Higgins [2011] NSWCA 35Ackers v Austcorp International Ltd [2009] FCA 432Kyriacou v Kogarah MC (1995) 88 LGERA 110Havyn PL v Webster 2005 NSWCA 182Butcher v Lachlan Elders Realty PL (2004) 218 CLR 592 Zhang v VP302SPV PL [2009] NSWSC 73Boyana PL v Jainran [2010] NSWCA37

9. TITLE DEFECTS LECTURE 5

(1) General law position

Flight v Booth (1834) 131 ER 1160Lee v Rayson [1917] 1 Ch 613

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Fuller’s Theatre Ltd v Musgrove (1923) 31CLR524 @538Hamilton v Munro (1951 SR (NSW) 250 @253-4Carpenter v McGrath (1996) 40 NSWLR 39Sullivan & Ors v Dan & Ors (1999) ANZ ConvR 32Festa Holdings Pty Ltd v Adderton & Ors (2004) ANZ Conv R 341

(2) Contract

CSL Cl 6 (errors and misdescriptions)Travinto Nominees PL v Vlattas (1973) 129 CLR 1 @14

(3) Statutory position

CSL Reg 2010 Sched 2(1) (prescribed terms); Sched 3 Part 1

(4) Undisclosed stormwater mains and other underground pipes of service authorities

Micos v Diamond (1970) 92 WN (NSW) 513

(5) Changes in planning controls after the date of the s 149 certificate attached to the contract or controls omitted from that certificate.

Verman v McLaughlin (1990) 70 LGRA 19

10. ERRORS AND MISDESCRIPTIONS LECTURE 5

(1) General law position

(2) Contract

(3) CSL cl 6 2014 ed.

Travinto Nominees v Vlattas (1973) 129 CLR 1Drummoyne MC v Beard (1970) 1 NSWLR 432Owmist v Twynam Pastoral (1984) NSW Conv R 55-165

11. LEGALITY OF STRUCTURES AND USER LECTURE 6

(1) Survey certificates

CSL cl 10.1.1 2014 ed.Svanasio v McNamara (1956) 96 CLR 186

(2) Illegal and non-complying buildings

Environmental Planning and Assessment Act 1979CSL Reg 2010– Sched 3 Part 1Carpenter v McGrath (1996) 40 NSWLR 39(but see now Conveyancing (Sale of Land) Regulation 2010 Sched 3 Part 1(d))Tambel v Field (1982) NSW Conv R 55-077

(3) Building certificates

Cramer v Leichhardt MC (1992) 130 LGERA 182Ireland v Cessnock CC (1999) 110 LGERA 311Mineral Wealth v Gosford CC (2003) 127 LGERA 74

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12. INQUIRIES AND AFFECTATIONS LECTURE 6

(1) Statutory duty of disclosure & Purchaser’s right to rescind

Conveyancing Act, s 52A(2)(b)CSL Reg 2010 Cll 16-18CSL cll 19, 23.9, 29.5, & 29.8; 2014 ed.

(2) Limitations on purchaser's right to rescind

Arias v Brigden [1986] NSW Conv R 55-278 Korbol Holdings v Johnson [1987] NSW Conv R 55-337Chantaloup v Thomas (1975) 2 NSWLR 38Little v Piccin [1983] NSW Conv R 55-152Jones v Assef (1976) 1 NSWLR 467Marinkovic v Pat McGrath Engineering [2004] NSWSC 571Timanu v Clurstock (1988) 15 NSWLR 338 @ 339

(3) Doctrine of Election

Sargent v A S L Developments (1974) 131 CLR 634Turner v Labafox International (1974) 131 CLR 660Zucker v Straightlace (1987) 11 NSWLR 87Molotu v Solar Power [1989] NSW Conv R 55-490Uremovic v P E I [1986] NSW Conv R 55-311Copmar Holdings v The Commonwealth [1988] NSW Conv R 55-404; [1989] NSW Conv R 55-451

(4) Is there any obligation on a purchaser’s solicitor to make enquiries about surrounding properties?

Luxford & Anor v Sidhu & Ors [2007] NSWSC 1356 (See Lecture 4 (3) supra.)

13. RATES AND NOTICES LECTURE 7

(1) Council and water rates

(2) Land tax

Lynch v Olympic Bowling Centres (1969) 90 WN (pt 1) (NSW) 44D and B Eastern Units v C A G A [1981] NSW Conv R 55-034Dainford v Yulora [1984] NSW Conv R 55-184; [1984] NSW Conv R 55-185

14. VACANT POSSESSION LECTURE 7

Cumberland Consolidated Holdings v Ireland [1946] 1 KB 264Point Glebe v Lidofind [1988] NSW Conv R 55-412Austral Standard Cables v Walker Nominees (1992) NSW Conv R 55-630Smilie v Bruce (1999) NSW Conv R 55-886

15. EXISTING USES, OTHER LAWFUL USES AND EXISTING CONSENTS LECTURE 7

Environmental Planning and Assessment Act 1979, ss106, 107 and 109Shire of Perth v O’Keefe (1964) 110 CLR 529Lane Cove MC v Lujeta (1986) 58 LGERA 157Kyriacou v Kogarah MC (1995) 88 LGERA 110Caltex Australia Petroleum v Manly Council (2007) 155 LGERA 255Grace & Anor v Thomas Street Café & Ors (2007) 159 LGRA 57Grace & Anor v Thomas Street Café & Ors (No 2) [2008] NSWCA 72North Sydney MC v Boyts Radio & Electrical (1989) 67 LGRA 344

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16. ISSUES RELATING TO s 149 (5) CERTIFICATES LECTURE 7

Mid Density Developments v Rockdale MC (1993) 81 LGERA 104

17. OCCUPATION CERTIFICATES LECTURE 7

Environmental Planning and Assessment Act 1979 ss 109C – 109I and ss 109M and 109 N

18. STATUS OF RESTRICTIVE COVENANTS AND EASEMENTS LECTURE 7

Environmental Planning and Assessment Act 1979 s 28Lennard v Jessica Estates [2008] NSWCA 121 (30 May 2008)Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd & Ors [2010] NSWCA 214 (2 September 2010)Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd [2011] HCA 27 (3 August 2011)Challister Ltd v Blacktown CC (1992) 76 LGRA 10 Ludwig v Coshott (1994) 83 LGERA 22Cracknell v Lonergon v Sydney CC (2007) NSWLEC 392; 155 LGERA 29 19. TIME FOR COMPLETION LECTURE 8

(1) Historical background

Conveyancing Act, s 13

(2) Time clauses in contracts

Raineri v Miles [1980] 2 WLR 847Neeta (Epping) v Phillips (1974) 131 CLR 286Louinder v Leis (1982) 149 CLR 509Sindel v Georgiou (1984) 154 CLR 661Pastizzi Café Pty Ltd v Hossain (No. 4) (2011) NSWSC 808

(3) Time and requirements for notices to complete

Michael Realty v Carr (1977) 1 NSWLR 553Ng v Chong [2005] NSWSC 270 (31.3.05) Castle Hill Tyres PL v Luxspice PL (1996) 7 BPR 14,959 @14,964McNally v Waitzer (1981) 1 NSWLR 294Balog v Crestani (1975) 132 CLR 289Laurinda v Capalaba Park Shopping Centre (1989) 166 CLR 623Sindel v Georgiou (1984) 154 CLR 661Wood v Lyons (2009) NSWSC 419Galifassi v Kelly [2014] NSWCA 190 (13.6.14)

20. RESCISSION and TERMINATION for REPUDIATION LECTURE 9

Shimden Pty Ltd v Rona [2006] NSWCA 256 (19 September 2006)Foran v Wight [1989] 168 CLR 385Laurinda v Capalaba Park Shopping Centre (1989) 166 CLR 623McQueen v Leduva Pty Ltd [2008] NSWSC 284 (3 April 2008)Sunbird Plaza Pty Ltd v Maloney [1988] 166 CLR 245Galifassi v Kelly [2014] NSWCA 190 (13.6.14)

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21. REMEDIES LECTURE 9

Ogle v Comboyuro Investments [1976] HCA 21; (1976) 136 CLR 444DTR Nominees Pty Ltd v Mona Homes [1978] NCA 12; (1978) 138 CLR 423

(1) Rescission

(2) Termination for breach CSL 2014 cll 8.2 & 9

(3) Equitable remedies

(a) Specific performance

(b) Injunctions

(c) Relief against forfeiture of deposit

(d) Relief against forfeiture of interest in land

Tanwar Enterprises Pty Limited v Cauchi (2003) 77 ALJR 1853Romanos v Pentagold Investments Pty Limited (2003) 77 ALJR 1882Fairmede Pty Ltd v Von Pein [2004] QSC 220 (5 August 2004)

(4) Statutory remedies Orders for repayment of deposit

Conveyancing Act, ss 55, 55(2A)Tsekos v Finance Corporation Aust Ltd [1982] 2 NSWLR 347Lucas and Tait (Investments) v Victoria Securities (1973) 2 NSWLR 268Shimden Pty Ltd v Rona (2007) ANZ Conv R 15Chambers v Borness [2014] NSWSC 890Donald on Danks PL v Alio PL [2014] NSWSC 753

(5) Alternative dispute resolution

Options for consensual resolution of conveyancing disputes

22. ELEMENTS OF TORRENS TITLE LECTURE 10

23. STRATA TITLE AND COMMUNITY TITLE LECTURE 10

Houghton v Immer (No 155) Pty Ltd (1997) 44 NSWLR 46 at 52-54Lin v Owners – Strata Plan 50276 (2004) BPR 21,463 at [27], [30} and [34]Halpin v Sydney City Council [2000] NSWLEC 218

24. MORTGAGES, LEASES AND OTHER INTERESTS LECTURE 10

Breskvar v Wall (1971) 126 CLR 376Epic Feast v Mawson KLM Holdings (1998) 71 SASR 161Farrow Mortgage Services v Victor Tunevitsch (1998) 8 Tas R 65Darling Point Securities v Industrial Equity (1991) NSW Conv R 55-589City of Rockingham v PMR Quarries (2001) 118 LGERA 93Abbeyfield (Harpenden) Society v Woods [1968] 1 WLR 374Fush v McKendrick (2004) V Conv R 54-686195 Crown Street v Hoare [1969] 1 NSWR 193Castle Constructions P/L v Sahab Holdings P/L [2013] HCA 11 (10 April 2013)

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25. E-CONVEYANCING LECTURE 10

National e-Conveyancing NSW NSW Land & Property Information advises that Property Exchange Australia (PEXA) was formed to fulfil a Council of Australian Governments (COAG) agenda item to deliver a national electronic conveyancing solution to the Australian property industry.

Supported by the NSW Government PEXA will enable industry participants to settle property transactions, lodge instruments with land registries, and pay associated duty and other disbursements.

Electronic conveyancing went live in New South Wales on 8 October 2013. The initial release provided functionality for financial institutions to lodge Mortgages and Discharges through the PEXA platform. 

On 10 November 2014 the second release of electronic conveyancing expanded the range of functions to include financial settlement and the lodgment of transfers and caveats. This release allows subscribers such as solicitors and conveyancers to transact through PEXA. Legislation in NSW has introduced priority notices as part of our electronic conveyancing reforms. At the present time, the take-up of electronic transactions has been slow, due to the conservative nature of the conveyancing profession, what seems to be a mistaken belief in its complexity, the need to subscribe to PEXA and the need for all parties to a transaction to agree to participate electronically. An energetic program is being run by PEXA to win the profession over.

The Electronic Conveyancing National Law is an appendix to NSW Electronic Conveyancing (Adoption of National Law) Act 2012.

See paper by David Ross on ‘Advent of Electronic Conveyancing’ on WebCampus. Note amendments have been made to Real Property Act 1900 to accommodate electronic conveyancing to the Torrens System by the Real Property Act (Electronic Conveyancing) Act 2015 assented 15/9/15.

REVISION LECTURE 10At the conclusion there will be Revision which will take the form of a review and discussion of the whole subject.

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