Divorce Property Settlement Examples In Australia

43.48% of Australian couples end up getting divorced, and one of the major issues besides the mental side of things are property disputes that occur between the former couple. We have provided you with 3 examples to help you get an idea of what actually happens in a property settlement. If you have any queries regarding your case after reading three examples, please feel free to reach out to us.

Case 1: Mr Field And Mrs Basson

Mr Field, aged 58 married to Mrs Basson, aged 57, got married In the year 1984 and got separated in 2009.

Assets Currently Present With the Couple:

1 . 6 Properties (5 On Mrs Basson’s Name and 1 on Mr Field)

2. 2 Cars (1 On Mrs Basson’s name and the other on Mr Fields)

3. Cash

4. Superannuation of $2000 in the name of Mr Field.

5. A business that the two of them started together, but got shut down in 2011.

Magistrate Orders:

In March 2012, the Federal Magistrate gave orders for a property settlement. All the assets and liabilities of the couple were calculated. Their assets included the business, their debts (Mortgage) and all the properties that the two of them owned. The Magistrate also took into consideration the contribution the two of them had financially and non-financially. Besides these, the amount the two of them earned were also taken into account.

After reading and analysing all the papers, the Federal Magistrate decided that Mrs Basson should receive 87.5% of the net assets with the remaining going to the Mr Field. Since Mrs Basson did not want to sell any of her properties, the Judge decided that the business stocks and 1 of the vehicles (Jeep) should be transferred to Mr Field while Mrs Basson would retain her property and her debt.

Case 2: Sam And Joanne

Sam And Joanne had been married for 5 years and got divorced on the 2nd of August 2017.

Assets Currently Present With The Couple

1 Property (Marital home) worth 1,000,000 which also had a mortgage of 800,000. Therefore, the total value is 1,800,000.

2. A Ford Falcon car that was worth $20,000.

3. Joanne’s Superannuation, worth 10,000

4. Sam’s Superannuation, Worth $30,000

Magistrate Orders:

The Federal Magistrate Gave orders for a property settlement in November 2019. All the assets and liabilities present with the couple were calculated. The two of them held a property, a car and superannuation. The contribution the two of them had financially or non-financially were also taken into consideration by the Magistrate.

After thinking about it, the Federal Magistrate declared that Joanne would get 70% of the Net Assets while Sam would get 30% of it. The percentages were based on their contribution and future needs. To divide their assets into equal proportions, it was decided that Joanne would keep the car while both of them got to keep their superannuation. The Magistrate said that Sam would have to refinance the home and pay Joanne a sum of money to buy out her share.

Case 3: Josh And Katie Stewart

Josh and Katie had been married for 15 years before their divorce in April 2015.

Assets Present With The Couple

1. 2 Properties worth 1.4 Million and 815,000 each. For reference, we are going to name these properties P and N, respectively.

Magistrate Orders:

Mrs Katie sought an order that Josh would pay her a sum of money and in case if he did not, that she would be appointed as the trustee to sell house P. Mr Josh sought an order he was to be declared the sole owner of house P and would buy Katie’s share of the house. Josh also wanted Katie to pay him a sum of money, and if she failed to do so, Josh would be allowed to sell house N.

In June 2018, the Magistrate learned that Katie did not have the funds available to pay for the ongoing proceeding. It was later decided that house N would be sold. They later formalised that Katie was allowed to sell Property N.

Their results were announced, taking into consideration the financial and non-financial contribution the two of them had.

Divorce Property Settlement Guidelines.

Here is a list of things you should do to get the best possible property settlement.

  • Make a list of all the assets, liabilities and debts that were accumulated during the marriage.
  • It is essential to inform your former partner in case you decide to sell a property.
  • Consider other alternatives before going to court. This will make it faster and cheaper.
    • Mediation:  A professional will guide you with the communication process; if you and your former partner agree on a settlement, it can late be formalised. 
    • Arbitration: Arbitration is very similar to a court. In this process, you will be required to have an arbitrator as the arbitral award is registered with the court when both the parties can come to an agreement. 
  • In case it is decided that you have to sell a property, it is best to hire a real estate lawyer to help you get the best price possible for the property. 

There are also a few things that you should not do during this procedure;

  • It would help if you did not ask for a property settlement for the last minute. 
  • NEVER try to hide a property or an asset. Doing this will reflect poorly on you and can affect the outcome of the property settlement. 

Why Choose Aries?

Going through a divorce can be painful and heart-breaking. The situation brings enough stress as it is with complications like child custody and property/financial division. Emotions may get the best of you at times like these. 

Our lawyers at Aries will guide you through the intensive procedures of a property settlement or any other family situations that need to be settled at court.  

Section 186 Visa – ENS Visa

Section 186 Visa in Melbourne Australia

Employer Nomination Scheme Visa is the section 186 Visa. This permanent residency visa is for applicants who are nominated by an Australian business for an eligible occupation. The three different streams under this visa are: 

  1. Temporary Residence Transition stream; 
  2. Direct Entry stream; 
  3. and Labour Agreement stream. 

Along with being nominated by an Australian employer, an applicant must meet the skills, qualifications and English language requirements of the position, and must also meet all other requirements of one of the streams of this visa. 

The application has two stages: 

  1. Nomination; 
  2. and Application. 

Different Visa Streams

Temporary Residence Transition stream 

The Temporary Residence Transition (TRT) stream is for applicants who hold either of the following:

 – Temporary Skill Shortage (TSS) visa (subclass 482) in the medium-term stream unless transitional arrangements apply;

 – Temporary Work (Skilled) visa (subclass 457) not granted under labour agreement arrangements; or

– related associated Bridging visa;

and have worked for the employer full-time in Australia on their subclass 457 and/or TSS visa(s) for at least:

− three out of the previous four years before the nomination is made; or 

− two out of the previous three years before the nomination is made if transitional arrangements apply because on 18 April 2017 the applicant either held a subclass 457 visa, or was an applicant for a 457 visa which was subsequently granted, in the same position as the nominated position.

 The applicant must also be under the age of 45 and have competent English unless they are a person specified by the Minister under legislative instrument IMMI 17/058. However, applicants over 45 but under 50 may still be able to apply under this visa if transitional arrangements apply because on 18 April 2017 the applicant either held a subclass 457 visa, or was an applicant for a 457 visa which was subsequently granted.

Labour Agreement stream 

The Labour Agreement stream is for applicants who are nominated by an Australian organisation through a formal labour agreement that provides for a permanent residence pathway. The applicant must demonstrate they have the qualifications, skills and experience relevant to fulfil the requirements of the position. 

The applicant must also be under the age of 45 unless the Minister has agreed that a person who has turned 45 may be employed in the relevant labour agreement. 

Direct Entry stream 

This stream is for applicants who do not meet the requirements under the TRT stream but have been nominated by an employer under this stream, with the nomination having been approved by the Regional Certifying Body as per r 5.19(4). The applicant must also be under the age of 45 and have competent English, unless they are a person specified by the Minister under legislative instrument IMMI 17/058. The Medium and Long-term Strategic Skills List applies. Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold. See Migration (IMMI 18/033: Specification of Income Threshold and Annual Earnings and Methodology of Annual Market Salary Rate) Instrument 2018. At least three years work experience relevant to the particular occupation is required.

The Direct Entry (DE) stream is for applicants who are nominated by an Australian business and who either do not meet the minimum time requirement for the TRT stream or have never worked in Australia. To be eligible for a DE stream visa the applicant must have successfully completed a skills assessment by the relevant authority specified in legislative instrument IMMI 17/040.

The applicant must also be under the age of 45 for this stream unless a person of a class specified in legislative instrument IMMI 17/058. The applicant must also demonstrate they have competent English, or higher, if required by the relevant assessment authority.

The Medium and Long-term Strategic Skills List applies and applicants must have skills which are included on the list.

Employers must pay the Australian market salary rate and meet the Temporary Skilled Migration Income Threshold requirements as set out in legislative instrument IMMI 18/033.

At least three years of work experience relevant to the particular occupation is required. This must be full-time and at the same level as the nomination occupation. Experience gained as a trainee cannot be counted. 

FAQs

How Long Can I Stay With The 186 Visa (Employer Nomination Visa)?

The 186 Visa is a permanent visa that allows you to stay in Australia for as long as you like. 

186 Visa Processing Time (Employer Nomination Visa)

The average time taken for the 186 Visa is 7-15 months. 

Why Choose Aries?

The whole ‘lawful visa acquisition’ process can be one lengthy and paperwork intensive task. Our Immigration Lawyers are well versed with the varied requisites and provisions and have helped over a thousand people across a wide range of work profiles and family status. Aries Lawers focuses on making the whole process easy and swift while you can concentrate on other important business. Head over to our Enquiry page by clicking on the button below, take a short and interactive visa interview therein for FREE and our team gets back to you in a jiffy.

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888 Visa – Business Innovation and Investment (Permanent) Visa

visa 888 for Business Innovation

This is a permanent resident visa for subclass 188 visa holders who are nominated by a state or territory government in the same stream as the subclass 188 visa held. Special Category (subclass 444) visa holders are also eligible for this visa.

This visa has the same streams as the subclass 188 visas, with the exception of the extension streams which are to extend temporary visas. Common criteria for this visa include:

− The applicant and the applicant’s spouse or de facto partner do not have a history of involvement in activities that are not acceptable in Australia;

− The applicant must have a genuine commitment to maintaining a business or investment in Australia;

− The applicant and the applicant’s spouse or de facto partner must have a satisfactory record of compliance with Australian laws.

Business Innovation stream

This stream requires the applicant to have been in Australia as a holder of a subclass 188 Business Innovation stream visa for at least one year in the two years immediately before applying. The applicant must have an ownership interest for the two years immediately before applying in an actively operating business in Australia with an annual turnover of at least AUD$300,000 in the 12 months immediately before applying. Further to this, unless exceptional circumstances apply for granting nomination, at least two of the following criteria must be met:

− The applicant and/or the applicant’s spouse or de facto partner must have personal assets for the 12 months immediately prior to applying of at least AUD$200,000;

− In the 12 months immediately prior to applying, the applicant’s main business must have provided the equivalent of full-time employment to two Australian citizens, permanent residents or holders of a valid New Zealand passport;

− Combined business and personal assets of the applicant and/or the applicant’s spouse or de facto partner of at least AUD$600,000 in the 12 months immediately before applying.

Investor stream

This stream requires the applicant to have been in Australia as the holder of a subclass 188 Investor stream visa for at least two years in the four years immediately before applying.

The applicant and/or the applicant’s spouse or de facto partner must have continuously held the designated investment for 3 years and 11 months if the subclass 188 visa application was made before 1 July 2015 or 4 years if the subclass 188 visa application was made on or after this date.

Significant Investor stream

This stream requires the applicant to have held a subclass 188 Significant Investment Extension stream visa for a continuous period of four years at the time of application, or 3 years and 11 months if the subclass 188 visa was granted before 1 July 2015.

The applicant must also meet one of the following criteria:

− For the whole period of the subclass 188 visa the applicant held a complying investment as described in r 5.19B Migration Regulations 1994 if the subclass 188 visa was granted based on a visa application lodged before 1 July 2015 supported by an approved Form 1413 – Declaration in relation to managed funds;

− For the whole period of the subclass 188 visa the applicant held a complying

investment as described in r 5.19C if the subclass 188 visa was granted based on a visa application lodged on or after 1 July 2015 supported by evidence that demonstrates the applicant meets this requirement; or

− If the applicant was unable to hold a qualifying business for the above period, the applicant must demonstrate a genuine attempt to operate a qualifying business.

The applicant must meet one of the following residence requirements:

1. The applicant has been in Australia for at least the number of days worked out by adding the following calculations:

(a) 40 multiplied by the number of years in the period which the applicant has held a subclass 188 visa in the Significant Investor stream; and

(b) 40 multiplied by the number of years (where part of a year rounds up to one year) in the period which the applicant held a subclass 188 visa in the Significant Investor Extension stream; or

2. The applicant’s spouse or de facto partner has been in Australia on the applicant’s subclass 188 visa for at least the number of days worked out by adding the results of the following calculations:

(a) 180 multiplied by the number of complete years in the period in which the applicant held a subclass 188 visa in the Significant Investor stream; and

(b) 180 multiplied by the number of years (where part of a year rounds up to one year) in which the applicant held a subclass 188 visa in the Significant Investor Extension stream.

Premium Investor stream

This stream is for applicants who have held a subclass 188 Premium Investment stream visa

for a continuous period of at least 12 months prior to applying.

Unless the Minister is satisfied that a genuine attempt was made to maintain a complying

investment, the applicant must demonstrate that they have held a complying investment as

per r 5.19D for at least 12 months prior to applying.

Entrepreneur stream

This stream is for applicants who hold a subclass 188 Entrepreneur stream visa for a period

of at least four years and have resided in Australia for at least two of those four years.

The applicant has demonstrated an overall successful record of business activities of an

entrepreneurial nature in Australia while holding the subclass 188 visa.

The success of the applicant’s record is measured against the following criteria:

− The number of Australian citizens and permanent residents that are employed in

relation to the entrepreneurial activities;

− The level and nature and ongoing funding of, or investment in, the activities; and

− The annual turnover of business in relation to the activities.

Why Choose Aries?

The whole ‘lawful visa acquisition’ process can be one lengthy and paperwork intensive task. Our Immigration Lawyers have helped over a thousand people with their immigration cases and know exactly what is required to get the immigration process done smoothly.  Ariel Lawers will make the whole process easy and comfortable for you. You would only have to answer a few simple questions on our Immigration page, and we will get back to you.

Read about other Australian Visa Categories

Contact our Immigration Lawyers

Partner Visas (Subclass 300/309/820)

How to get Partner Visa in Australia

A partner visa is for the spouse or de facto partner of an Australian citizen, permanent resident or eligible New Zealand citizen to live in Australia, and if the applicant holds a prospective marriage visa, the partner visa fees are reduced.

‘Spouse’ is defined in s 5F of the Migration Act 1958:

  1. For the purposes of this Act, a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection.(2), the 2 persons are in a married relationship.
  2. For the purposes of subsection (1), persons are in a married relationship if:
    • (a) they are married to each other under a marriage that is valid for the purposes of this Act; and
    • (b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
    • (c) the relationship between them is genuine and continuing; and
    • (d) they:
      1. live together; or
      2. do not live separately and apart on a permanent basis.
  3. The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Note: On 9 December 2017 the Migration Act 1958 was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017.

‘De facto partner’ and ‘de facto relationship’ are defined in s 5CB of the Act:

De facto partners

  • (1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person.

De facto relationship

  • (2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship (for the purposes of section 5F) with each other but:
    • (a) they have a mutual commitment to a shared life to the exclusion of all others; and
    • (b) the relationship between them is genuine and continuing; and
    • (c) they:
      • (i) live together; or
      • (ii) do not live separately and apart on a permanent basis; and
    • (d) they are not related by family (see subsection (4)). 
  • (3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.

Definition

  • (4) For the purposes of paragraph (2)(d), 2 persons are related by family if:
    • (a) one is the child (including an adopted child) of the other; or
    • (b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or
    • (c) they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

To be eligible for a Partner visa the applicant must be sponsored by an Australian citizen, permanent resident or eligible New Zealand citizen and must demonstrate that they are in a genuine and continuing relationship, that they have been living together, or not separately, on a permanent basis since they committed to a shared life together to the mutual exclusion of all others.

In order to do this it is important to assemble the various documents that show shared financial responsibilities such as bank statements, household bills and the like. A statement should also be prepared outlining details about the relationship itself and how household responsibilities are dealt with. Proof of mutual friendships and joint activities is also useful. See the Proof of Relationship Statement on the matter plan.

When assessing whether the relationship is genuine and continuing, the Department of Home Affair’s case officer must consider the following five main categories:

  1. The history of the relationship;
  2. The financial aspects of a relationship;
  3. The nature of the household;
  4. The social aspects of a relationship; and
  5. The nature of the commitment.

It is worth noting however that it would be an error of law if a refusal decision was based, or partly based, on a delegate of the Minister for Immigration’s assessment that one or more of the above matters was not met.

When considering a couple’s living situation, in relation to a de facto relationship as defined in s 5CB of the Act, Procedures Advice Manual 3 (PAM3) refers to the judgment of the Federal Court of Australia Full Court in SZOXP v Minister for Immigration and Border Protection [2015] FCAFC 69. The court’s judgment in this case means that a delegate of the Minister for Immigration cannot find that an applicant does not meet s 5CB(2)(c) solely on the basis that the applicant and their claimed de facto partner: −

  1. Never lived together before the visa application was made
  2. Were not living together at the time the application was made, that is, at the time of application; or
  3. Were not living together at the time the application is decided, that is, at the time of decision

Prospective marriage visa (subclass 300)

This is a temporary visa granted for nine months, allowing the visa holder to marry their partner in Australia. Once the visa holder has married the applicant is then eligible to lodge a Partner visa (subclasses 820/801) application. Additional fees are associated with the partner visa application however these are reduced if the applicant is the holder of a subclass 300 visa.

Partner visa (subclasses 309/100)

Offshore visa applicants Subclasses 309/100 are for offshore visa applicants. When applying for this visa the applicant applies for two separate visas at the same time: a provisional visa (subclass 309) and permanent visa (subclass 100). If the applicant is granted a subclass 309 visa two years from date of lodging the application, they will be invited to provide further information for the granting of a subclass 100 visa.

Partner visa (subclasses 820/801)

Onshore visa applicants Subclasses 820/801 operate similarly to the above subclasses. However, this option is for applicants who are applying onshore. Otherwise, the process is the same, with subclass 820 being a provisional visa and subclass 801 being a permanent residency visa.

Offshore and onshore applicants – Second stage partner visa

Two years after first applying for a partner visa subclass 309/100 or subclass 820/801 visa, the applicant and sponsor are invited to give further information prior to being assessed for permanent residency. This is not a new visa application, but rather known as the second stage of the partner visa application.

To satisfy the criteria for permanent residency the applicant and sponsor must demonstrate that they continue to be in a genuine relationship, again assessed against the five main categories outlined above. If the relationship has ended the applicant may still be eligible for a permanent residency visa through their original nomination under the following exceptions:

The sponsor has died: regulations 801.221(3), 801.221(5).

Family violence has been committed by the sponsor: regulations 100.221(3), 100.221(4), 100.221(4)(c)(i), 801.221(4), 801.221(6)(c)(i). See the Department of Home Affairs page on Family violence and your visa for further information on this exception.

The applicant is given shared custody or access rights to a child, where the sponsor also has rights and responsibilities towards that child: regulations 100.221(4)(c)(ii), 801.221(6)(c)(ii). See Schedule 2 of the Migration Regulations 1994.

Why Choose Aries?

The whole ‘lawful visa acquisition’ process can be one lengthy and paperwork intensive task. Our Immigration Lawyers have helped over a thousand people with their immigration cases and know exactly what is required to get the immigration process done smoothly. Aries Lawers will make the whole process easy and comfortable for you. You would only have to answer a few simple questions on our Immigration page, and we will get back to you.

Read about other Australian Visa Categories

Section 32 Of The Sale Of Land Act

Section 32 Sale of Land Act

Section 32A sets out the financial matters to be included in the statement.

Mortgage

This only relates to a mortgage that is not to be discharged. This is rare.

Charge

This only applies to charges arising by statute, such as a land tax charge. This is rare.

Outgoings

Details, or a summary, of outgoings must be provided. This would include an outgoing that only arises because of the transfer of the property to the purchaser, such as special land tax. It may also include GST that is payable by the purchaser because of a GST transfer clause in the contract. It might be argued that GST is a tax on the supply of the land rather than an outgoing ‘affecting the land’ but, given that s 32 is consumer protection legislation, this requirement may be read widely.

Terms contract

If the parties are entering into a terms contract involving multiple payments, then the vendor must provide an additional vendor statement setting out the cost of that vendor finance: Schedule 2 Sale of Land Act 1962. This requirement does not apply to a contract that is a terms contract only because possession is given to the purchaser prior to final settlement. It only applies to a ‘payments’ terms contract arising because the purchaser is obliged to make more than three payments.

Section 32B – Insurance

The vendor must disclose particulars of the vendor’s insurance, if any, but only if the contract does not provide for the property to remain at the risk of the vendor: s 32B. General condition 23(b) of the By Lawyers contract provides for the property to remain at the risk of the vendor, so particulars of insurance will not be required if either contract is used.

Particulars of any owner-builder insurance must be disclosed, even if the current vendor was not the owner builder. This is not a blanket insurance disclosure obligation. It only applies in relation to owner-builder insurance policies. There is no obligation to disclose insurance obtained by registered builders.

Section 32C – Restrictions (registered and unregistered)

Section 32C sets out land related matters to be included in the statement.

Easements

Registered easements are disclosed by annexure of a copy of the title.

 If the description of the easement on the title is insufficient to adequately describe the easement, a copy of the easement document must be provided.

Unregistered easements must be specifically identified. The existence of a water, sewerage or drainage pipe constitutes an unregistered easement.

A combined drain has been described as ‘a feature in the nature of an easement’ and will therefore need to be disclosed as an unregistered easement.

Covenants Registered covenants may be disclosed by annexure of a copy of the title, but sufficient particulars of the covenant must be given. If the title merely describes the covenant by reference to a number it will be necessary to include either a copy or description of the covenant in the statement.

Others

Previously a lease was not regarded as an ‘other similar restriction’ but a 2013 case suggested that a lease is similar to a ‘restriction’. A lease ought to be attached to the vendor statement but attaching the lease to the contract should satisfy the obligation. A continuing breach of the lease by a tenant may be something that the landlord may be obliged to disclose pursuant to fair trading principles. A s 173 agreement under the Planning and Environment Act 1987 may be an ‘other similar restriction’; however a requirement to enter into a s 173 agreement is not. A planning permit is not an ‘other similar restriction’. It may however fall within s 32D(a).

Breach of restriction

Section 32C(a) requires the disclosure of not only restrictions but also any current breach. A property subject to a restriction that is being breached at the time of sale may nevertheless be sold if the restriction and breach are disclosed to the purchaser at the time of sale. The vendor statement provides the vehicle for disclosure, but it would be prudent, although perhaps not essential, to include a special condition in the contract whereby the purchaser specifically acknowledges the disclosure.

Building over a registered easement constitutes a breach of that easement which must be disclosed to the purchaser. The existence of the easement is disclosed by annexure of the title showing the registered easement, but the breach must also be disclosed. A breach of an easement constituted by a build-over may be cured by obtaining the consent of the relevant authority. This may even be obtained during the contract period.

Building over an unregistered easement constitutes a breach of that easement.

Planning

The objective of this requirement is to bring to the attention of the purchaser the basic details of the relevant planning scheme, the responsible authority, the zoning or reservation of the property and the existence of an overlay. It does not require the vendor to annex parts of the planning scheme and to endeavour to explain the impact of the planning scheme on the particular property. Once the basic details are provided, it is for the purchaser to be satisfied as to the consequences of the planning restrictions affecting the property.

The vendor’s obligation in the case of a property affected by a reservation for road widening purposes is limited to disclosure of the details of the planning scheme, the responsible authority, the zoning and that reservation. It is then up to the purchaser to inquire as to the extent of that reservation and to be satisfied with that situation before signing the contract.

Where a property is affected by a site-specific provision in a planning scheme that a s 173 agreement restricts further subdivision, the vendor’s obligation is simply to disclose details of the planning scheme, the responsible authority, the zoning and overlays. It is then up to the purchaser to peruse the planning scheme and to be satisfied with the situation before signing the contract.

Section 32D – Notices Section

32D sets out the notices to be disclosed in the statement.

 It is important to analyse the various parts of this section. It requires disclosure of particulars of any: − notice, order, declaration, report or recommendation of a public authority or government department affecting the land; or

− approved proposal affecting the land;

that directly and currently affect the land and of which the vendor might reasonably be expected to have knowledge.

None of the words in subsection (a) are defined in the Act.

There is no overlap between s 32C and s 32D. Whilst planning proposals may fall within the ambit of s 32D during the time that they are being considered by a planning authority, once those proposals pass into the planning scheme they are covered by s 32C and cease to be notices within the meaning of s 32D.

A building permit requiring works to be performed on the property is an approved proposal affecting the land. A planning permit, whilst not within the ambit of s 32C(a) as a restriction or s 32C(d) as zoning, is an ‘approved proposal directly and currently affecting the land’ within the ambit of s 32D(a).

It is therefore necessary to attach a copy of any planning permit obtained in relation to the land. This would be particularly so if the property contravened the permit or the permit contained any ongoing restrictions or obligations, such as building envelopes. Even ‘positive’ permits, such as a permit to build units, should be attached: Downing v Lau [2018] VCC 33.

A planning application does not become an ‘approved proposal’ until formal approval has been granted by the planning authority.

It is uncertain whether an approved planning application relating to land adjoining or in the vicinity of the land sold will have sufficient nexus to be regarded as ‘affecting the land’. It may be that only proposals for use of the land sold fall within this requirement, and whilst proposals relating to other land certainly ‘affect’ that other land, they do not ‘affect’ the land sold. This argument has possibly been strengthened by the addition of the phrase ‘directly and currently’ to the section.

Possible scenarios raising such issues include applications for the construction of multistorey units on adjoining land and applications for use of land in the vicinity for ‘objectionable’ uses, such as quarrying. It is uncertain whether such applications ‘affect’ adjoining land.

Nomination of a property for consideration under the Heritage Act 2017 may constitute a ‘notice’ but the vendor has a separate obligation to notify a purchaser of that nomination. Failure to do so gives the purchaser the right to avoid the contract: s 48 Heritage Act 2017.

The more difficult aspect of s 32D(a) in such cases may be establishing the vendor’s knowledge of such matters, especially if the vendor does not reside in the area. Whether the local knowledge of the vendor’s practitioner might vicariously bind the vendor is uncertain.

In the conveyancing environment there are many notices that may come within the ambit of s 32D: − National Trust classification – This is not a public authority or government department, nor would it qualify as an approved proposal.

− Contamination – A notice from the EPA would certainly fall within s 32D, but a nonofficial report or recommendation from a private consultant would not be from a public authority or government department, nor be an approved proposal.

− Termite infestation or liable to flood – These might be traced back to a report or recommendation of a public authority but it will still be necessary to prove actual or constructive knowledge on the part of the vendor.

The Legal Practitioners’ Liability Committee takes the view that a s 158 statement that makes reference to liability for flooding is not a ‘notice’ within the meaning of the section.

An indemnity granted by a vendor to a sewerage authority in relation to the absence of a reflux valve has been held not to be covered by s 32D.

It is unlikely that general protestations added to rate notices advising of the obligation to fence a swimming pool or install smoke alarms would qualify as a ‘notice’ within s 32D.

Section 32E– If residence

Particulars of building permits issued in last seven years must be disclosed: s 32E. This does not require particulars of permits that should have been obtained or of work that has been done without a building permit.

Section 32F – Owners Corporation

Certificate Section 32F provides an Owners Corporation Certificate issued pursuant to s 151 Owners Corporations Act 2006 is to be attached to the vendor statement, together with copies of the documents required to be attached to the Owners Corporation Certificate pursuant to s 151(4)(b). These documents are:

− rules of the owners corporation;

− prescribed statement providing information to prospective purchasers;

− all resolutions made at the last annual general meeting; and

− a statement that further information can be obtained by inspecting the owners corporation register.

A vendor who is able to attach all of the required information may do so without obtaining a certificate from the owners corporation. An Owners Corporation Certificate is not required if the owners corporation is ‘inactive’, meaning that it has not met, struck levies or held insurance in the preceding 15 months.

Section 32G – GAIC

If the property is affected by a GAIC, ‘growth areas infrastructure contribution’, then relevant information must be included: s 32G. This will be revealed by the title search.

Section 32H – Services

The obligation is to list services that are not connected to the land: s 32H. There is no obligation to advise whether services are available.

Section 32I

Section 32I provides the evidence of title required to be disclosed.

Title

This requires a copy of the Register Search Statement obtained from Land Use Victoria or, if General Law land, a copy of the last conveyance and any other document evidencing the vendor’s right to sell. The requirement of a copy of the relevant documents implies that the documents provided would need to be current and true copies.

However, provided that the information is correct it is unlikely that the purchaser could rely on such a technical defect.

Proof of right to sell If the vendor is not the registered proprietor, evidence of the vendor’s right to sell is required.

Examples are:

− vendor is purchasing the property: copy of purchase contract or proposed transfer;

− vendor is executor: copy of will, probate or application by legal personal representative;

− vendor is mortgagee: copy of Notice to Pay.

Failure to include proof of right to sell is not likely to justify avoidance.

Sometimes this ‘evidence’ is provided by way of a statement or declaration from the vendor or vendor’s practitioner. The section only requires evidence, not copy documents, so such ‘evidence’ is sufficient.

Plan of subdivision

Historical If the land has ever been subdivided, a copy of the plan of subdivision is required. If the land is described as a lot on a plan, a copy of the plan must be provided. This applies to subdivisions no matter how hold. This is a requirement that is often overlooked.

Proposed

If the land is a lot on a proposed plan of subdivision, a copy of the proposed plan is required. This will be a copy of the certified plan if the plan has been certified by council, or a copy of the latest version of the plan, including any proposed amendments, if it has not as yet been certified. This plan can be quite informal and need not be a surveyor’s plan, but the vendor must be able to deliver the property substantially in accordance with the plan at settlement.

Staged

If the land is in the second or a subsequent stage the following are required:

− the plan for the first stage;

− details of any requirements in a statement of compliance for the stage in which the land is included that have not been complied with;

− details of any proposals relating to subsequent stages;

− details of the planning permit authorising staged subdivisions.

Section 32J – Certificates

Information may be provided by attaching certificates, but certificates are not compulsory: s 32J.

Section 32K

Section 32K sets out rescission provisions.

Breach

A purchaser may terminate the contract if the vendor fails to comply with the disclosure obligations. This right is subject to:

− the vendor having acted honestly and reasonably; and

− the purchaser being ‘substantially in as good a position’.

Honest and reasonable

It has been suggested that a vendor who acts negligently cannot be said to have ‘acted honestly and reasonably’, but a number of subsequent cases have excused vendors despite their negligent behaviour.

A vendor will not be vicariously liable for the negligence of the vendor’s agent or legal practitioner in preparation of the vendor statement. In determining whether the vendor has ‘acted honestly and reasonably’ only the conduct of the vendor is relevant.

Substantially in as good a position A breach of s 32 will be excused unless the purchaser establishes that the breach has caused the purchaser some detriment. This will be established if the purchaser can show that the purchaser would not have purchased the property if disclosure had have been made.

Action taken by the vendor during the course of the contract to overcome non-disclosure may mean that the purchaser is in as good a position.

Failure to provide a vendor statement does not make the contract illegal or void, it simply provides the purchaser with a possible right to terminate the contract.

Section 32L – Offence

It is an offence to supply false information or not supply information: s 32L.

Section 32M – Notice of acquisition

Where a notice to acquire land has been served under the Land Acquisition and Compensation Act 1986 and the land is subject to a contract of sale, the purchaser may rescind the contract: s 32M.

Section 32N – Contracting out

Any attempt by the vendor to contract out of the disclosure obligations is void: s 32N.

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