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Ask Leon Your Own Question
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44177
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I have just purchased a house in Victoria and the vendor

Customer Question

Hello
I have just purchased a house in Victoria and the vendor failed to disclose the approved plans for the re-development of a property next door (even though they were aware of said development). This affects my property during and after the construction.
Is this a breach of section 32(2)(e) of the Sale of Land Act or any other section? And if so, do I have grounds to seek compensation?
Submitted: 1 year ago.
Category: Australia Law
Customer: replied 1 year ago.
FYI, I plan to seek $8k compensation which is less than the prescribed penalty for the vendor of 60 penalty units or $9,100.
Customer: replied 1 year ago.
I'd like the compensation in the form of a price reduction on the contract of sale - note contracts have been exchanged, and we are awaiting settlement).
Customer: replied 1 year ago.
Correction - I meant to write Section 32D(a) of the Sale of Land Ammendment Act 2014. I assume that's correct.
Expert:  Leon replied 1 year ago.

Good Evening

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Have you settled on the purchase?

Customer: replied 1 year ago.
Hello, no net yet. Settlement is next month.
Customer: replied 1 year ago.
I did mention that in the posts following my original. Did you see those? Thanks. Mark.
Expert:  Leon replied 1 year ago.

There was not mention of whether you settled or not.

Do you have a solicitor acting for you?

Customer: replied 1 year ago.
Hello, I did say "we are awaiting settlement". I am doing my own conveyancing. Here is my entire question again:Hello
I have just purchased a house in Victoria and the vendor failed to disclose the approved plans for the re-development of a property next door (even though they were aware of said development). This affects my property during and after the construction.
Is this a breach of section 32D(a) of the Sale of Land Amendment Act 2014 or any other section? And if so, do I have grounds to seek compensation?I plan to seek $8k compensation which is less than the prescribed penalty for the vendor of 60 penalty units or $9,100.
(I'd like the compensation in the form of a price reduction on the contract of sale - note contracts have been exchanged, and we are awaiting settlement).
Expert:  Leon replied 1 year ago.

Good Morning

The effects of non compliance can be very severer on the vendor.

You have to raise this with them and if they do not meet your requirements you can sue and terminate

Here are the penalties followed by the link it came from

Effect of non-compliance The current position remains: a. The purchaser has a right to rescind a contract of sale (at any time before purchaser accepts title, becomes entitled to possession or to receipt of the rent/profits) if the vendor has: i. Supplied false information; or ii. Failed to supply all the information required; or iii. Failed to supply a vendor’s statement. b. Where the vendor has acted honestly and reasonably, and the purchaser is in as good a position as if all the relevant provisions had been complied with, a court may excuse the vendor for the contravention. New penalty It is now an offence for the vendor to supply false information or fail to supply all the required information. The Act also creates an offence for failure to provide a vendor’s statement at all. The section introduces increased penalties: a. For body corporate: 300 penalty units ($44,283.00 at current rates); and b. In any other case: 60 penalty units ($8.856.60 at current rates).

http://www.millsoakley.com.au/docs/Sale%20of%20Land%20Amendment%20Act%20V2%20(2).pdf

I would suggest you get a solicitor to assist you with this

But you notify them of their non compliance

This is not a clause for compensation. Any compensation would be in a settlement.

You cannot demand compensation for the breach. You have to put forward that you will take them to court for the breach. In settlement negotiations to not go to court you reach an agreement. But a Solicitor should be involved to make sure you are protected in the end.

I hope this makes sense and is of assistance. If there is nothing further

thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards

Leon

Customer: replied 1 year ago.
Hello
Thank you for that. However my question is specifically: is the failure to inform me of a approved planning permit for the development of an adjoining property a breach of section 32 of the sale of land act. Is that considered to be "affecting" my property (per 32D(a)? Is there any precedent for this situation?
Expert:  Leon replied 1 year ago.

Good Morning

He has failed to inform you so you have a right to terminate.

By precedent if you mean a letter no. Most solicitors set out what the breach is and what rights the purchaser has.

You have a right to terminate.

As you have now become aware of the development you have to set out the negative impacts on what you are buying eg privacy, shadowing and removal of natural light, and anything else based on the development that has been approved.

You advise what your rights are and also the penalties for their failure.

You have to be prepared to follow through with your threats. If they refuse to pay you anything and you do not follow through with the termination or suing them, you are then in the weaker position.

But your letter should be "Without Prejudice" so they cannot use it against you in court.

Customer: replied 1 year ago.
Hello, but again, that doesn't quite answer my question. they claim 32D does not apply and they don't have to inform me of developments next door. That piece of legislation is a little vague on that fact (it just says anything that affects the property). I guess the question is, from a legal perspective, is a next door development consider to affect the development?
Customer: replied 1 year ago.
Ps I don't wish to terminate the contact. I just wish to seek 8k compensation in exchange for not pursuing the matter further so they avoid the fine.
Expert:  Leon replied 1 year ago.

Good Morning

If you look at the link it clearly sets out your rights. Compensation is not one of them.

You have a right to terminate.

If you are going to try and seek compensation in lieu of the termination it has to be an alternative. Also compensation is payable if you can show you have suffered loss.

Section 32D says that they have to disclose any approval that affects the property. So I disagree with them about it not having to be disclosed.

I have tried to find cases on this section and I cannot find any.

But I believe that they have to disclose

Customer: replied 1 year ago.
Ok thank you for checking. Perhaps what I mean is I'm looking to "settle" rather than seek compensation. But don't want to terminate. I would settle for the 8k in lieu of reporting the breach to the relevant authority (who is that by the way) and getting the 60 penalty point fine.
Expert:  Leon replied 1 year ago.

Good Morning

I suggest that you make the threat and the offer. Do it without prejudice. You have nothing to lose. If they refuse you proceed to settlement.

The proceed to reporting them.

Good Luck

Have a Great Christmas if I do not hear form you before then.

You are very welcome and thank you for using my services.

If I have missed anything, or you have any further questions please let me know

If there is anything else in the future please do not hesitate to ask.

Please do not forget to leave positive feedback.

Regards
Leon

Customer: replied 1 year ago.
Thank you. Who is the relevant authority I would report this breach to if I'm not satisfied with their response?
Customer: replied 1 year ago.
Ie who issues the 60 penalty unit fine?)
Expert:  Leon replied 1 year ago.

Good Afternoon

I think it may be Consumer Affairs.

If they say it is not them, then it is a matter where the court will decide and issue the fine.

Customer: replied 1 year ago.
Thank you.
Expert:  Leon replied 1 year ago.

All the best