Overview — Remedies and disputes

Remedies and disputes considers some of the issues arising out of transactions involving the transfer of commercial property and the remedies available to purchasers and vendors. Issues and remedies arising from leasing transactions are dealt with under the guidance note Termination of leases under the Leasing property sub-topic.

Main principles are covered so as to provide practitioners with sufficient guidance regarding the range, prerequisites, advantages and disadvantages of particular remedies, and the process of seeking the client's instructions and choosing the most appropriate and effective remedies in the particular circumstances. It is also necessary to consider the possibility of reaching a compromise by negotiation.

While commercial property transactions are different from typical contracts (eg, there is a standard form of contract and statutory disclosures and warranties) it is important for practitioners to remember that commercial property transactions are a species of contract. For this reason, some general principles have been set out in the first guidance note. See General principles.

The remedies discussed in this sub-topic include:

• claims for compensation and other claims under the contract for sale of land;
• termination (with a separate guidance note on Notices, which have the effect of making time under a contract essential, thereby entitling the innocent party to terminate for breach);
• rescission;
• damages;
• orders for repayment of the deposit;
• equitable remedies (with a separate guidance note on Specific performance, which is an equitable remedy); and
• statutory remedies.

Below is a very broad and general summary of the types of breaches for which the above remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.

New South Wales

Claim for compensation under cl 7 of the 2005 edition of the Contract for Sale of Land

Victoria

The table below provides a very broad and general summary of the types of breaches for which the above remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties’ position.

Queensland

Western Australia

The table below provides a very broad and general summary of the types of breaches for which the remedies are available. The summary does not attempt to cover the entire range of contractual principles or remedies as it is difficult to categorise particular types of breaches and indicate the remedy by the non-defaulting party because of the diverse nature of breaches, factual issues and the seriousness of the breach, the parties' perceptions of the validity of the transaction and the degree of certainty regarding the parties' position.

Remedy	Type of breach
Claim for compensation under cll 4, 14 and 24 of the 2018 General Conditions Joint Form of General Conditions of the Sale of Land	•	delay in competition of settlement (cl 4);
	•	error or misdescription (cl 15); and
	•	in the event of a default: cl 24.
Termination	•	breach of an essential term;
	•	breach of a condition;
	•	repudiation of the contract by the other party;
	•	breach innominate or intermediate term (depending on how seriously the innocent party is affected by breach); and
	•	failure to comply with the default notice (see cll 22, 23 and 24 of the 2018 General Conditions — Joint Form of General Conditions for the Sale of Land).
Rescission	In certain circumstances as prescribed in ss 6, 10 and 18 of the Sale of Land Act 1970 (WA).
	Subject to any provisions included in a contract of sale by agreement, giving rise to a right to rescind.
Damages	•	breach of an innominate or intermediate term (depending on how seriously the innocent party is affected by the breach);
	•	breach of the contract including warranties and non-essential or essential terms; and
	•	pursuant to cl 24 of the 2018 General Conditions — Joint Form of General Conditions of the Sale of Land.
An order for the return of the deposit	See cl 1 of the 2018 General Conditions — Joint Form of General Conditions of the Sale of Land.
Equitable remedies
Rectification	To rectify an instrument if there is a mistake.
Specific performance	Performance of the contractual obligations have not taken place, usually the payment of the purchase price and the execution of the instrument vesting title.
Relief against forfeiture (of the purchaser’s interest in the land)	May be granted notwithstanding the purchaser’s prior breach of an essential term of the contract, if it will not cause injustice but will prevent injustice.
Injunction	To prevent wrongful dealing with or misuse of the property, pending completion or prevent the vendor from frustrating any relief, which the purchaser may claim.

Remedy	Type of breach
Declaration	Declares the rights of the parties so as to give certainty, as far as possible, as to the position of each of the purchaser and vendor.
Statutory remedies
Competition and Consumer Act 2010 (Cth)	Misleading and deceptive conduct.
Australian Consumer Law 2010 (Cth)	•	unfair contracts; and
	•	unconscionable conduct.
Corporations Act 2001 (Cth)	Winding up of the vendor.
An order for the return of the deposit	See cl 1 of the 2018 General Conditions — Joint Form of General Conditions of the Sale of Land.

South Australia

Tasmania

Northern Territory

Australian Capital Territory

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