Enforcing Rights & Remedies under a Contract for the Sale of Land

(c) contravention of terms required by statute 29 .
3.3 Vitiating factors in the formation of a contract which give
the right to rescind at law or in equity:
3.3.1 There are matters which may affect a contract in its formation and will
render it voidable at law for fraudulent misrepresentation, or duress,
and enable the innocent party to rescind ab initio rather than have the
contract merely discharged in futuro. This remedy is rarely given,
because of the equivalent right in equity and the related rights under
the ACL 30 .
3.3.2 Transactions and dispositions (not just contracts) may be set aside ab
initio (and not merely in futuro) in equity which have been improperly
procured by equitable fraud, innocent misrepresentation, undue
influence, breach of fiduciary duty or other unconscionable conduct 31 .
3.4 Statutes which give a right to rescind a contract:
3.4.1 The principal statute in the context of contracts for the sale of land, is
the SLA which gives the purchaser many different rescission rights.
The SLA also often specifies consequences of rescission 32 .
3.4.2 Under the SLA, a purchaser has the right to rescind a contract for
the sale of land in a variety of circumstances including:
(a)
contracts for the sale of land in a subdivision prior to
registration of the plan, including: a material amendment to the
plan 33 ; vendor failing to comply with ss. 9AA or 9AB 34 ; plan of
subdivision not being registered within 18 months or other
29 eg. s. 31 Sale of Land Act 1962 (Vic)(SLA) - cooling off and note the repeal of s. 31(5)(e) which provided
that cooling off did not apply to a contract where the purchaser has sought and received independent
advice form a legal practitioner before signing the contract; or if the contract is a prescribed contract of
sale under s. 9AA(7) SLA, terms to satisfy s. 9AA (1), which if breached give the purchaser a right to
rescind under s. 9AE SLA
30 The Australian Consumer Law (ACL) is Sched. 2 to the Competition and Consumer Act 2010 (Cth.) which
was formerly the Trade Practices Act 1974 (Cth.), for example, s. 18 ACL formerly Trade Practices Act
1974 (Cth.), s. 52; Fair Trading Act 1999 (Vic.), s. 9
31 ibid, Meagher Gummow & Lehane at para 2403-4
32 which it does for both parties under s. 26 SLA
33 s. 9AC(2)
34 s.9AE(1)
8