Can we assume our contract is now dead - Queensland specific please?

Discussion in 'Legal Issues' started by wylie, 12th May, 2017.

Join Australia's most dynamic and respected property investment community
Tags:
Page 1 of 2
  1. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    We have had an agent take a contract and leave it with a buyer last night. This buyer has been stuffing us about for over a week and we are sick of it. He refused to sign it last night and our agent asked that he give us a yes or no by 10am today.

    This morning we decided to withdraw our offer and agent called and left a message and also emailed the buyer -

    Please be advised the owners of (property address) have made the decision to withdraw their offer of $xx presented to you. Due to the property having a bank valuation of $xx, they feel they will be under selling their property."

    Are we safe to assume this contract is now dead?

    The contract is signed and initialled, but isn't dated, and I believe until it is dated, it is not a contract.

    If the buyer dates it and sends it back to the agent, are we still safe that our email withdrawing the offer was sent to him before he got back to the agent with a yes or no?

    (I have asked a lawyer, but have nothing in writing and want to be sure.)
     
    wylie, 12th May, 2017
    #1
  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,985
    Location:
    Australia wide
    You should withdraw in writing so that you have proof of communication.
     
    Terry_w, 12th May, 2017
    #2
  3. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    The agent has withdrawn via email. Do you mean we should personally withdraw and email agent as well, so he can send it to buyer?

    Wouldn't the agent's email be enough?

    I've just emailed the agent, as a back up to the email he sent (above).

    It will be after he emailed the buyer, but should I ask him to forward my email to the buyer as well as his own email (sent earlier)?

    I want to make sure this buyer cannot try to say he signed it last night. He could say that, and I don't want to get into a "two contracts" situation.
     
    wylie, 12th May, 2017
    #3
  4. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,985
    Location:
    Australia wide
    Agent is your agent so that should be the same as you withdrawing
     
    Terry_w, 12th May, 2017
    #4
  5. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    Thanks Terry. A lawyer I was able to speak with this morning initially made me think we might be on shaky ground. When we ran through the timeline, he made me think that as the agent has not been advised by phone or email that the buyer has agreed to sign at our counter-offer price, nor that he has signed and dated the contract, that we should be safe to assume the contract is now dead.

    Would you think that is right?
     
    wylie, 12th May, 2017
    #5
  6. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,985
    Location:
    Australia wide
    Not yet. look up the 'postal evidence rule'
     
    Terry_w, 12th May, 2017
    #6
  7. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    I'm thinking this buyer might sign and date it this morning and try to say it is a watertight contract. But he has neither returned it to the agent, emailed the agent or called the agent to advise he has signed.

    So, I'm hoping our agent's email withdrawing our offer is enough to stand up if this joker tries to say he's signed it and wishes to proceed.
     
    wylie, 12th May, 2017
    #7
  8. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    Just googled this. What do we need to be sure we won't enter into another contract and then have this person try to claim he has a watertight contract?

    I'd like to physically get hold of the contract, but I'm not sure that can easily happen.

    And if he ends up pushing then we would just run with it, but with two other people sniffing about, I want to be sure we are clear of this before signing any other contract.
     
    wylie, 12th May, 2017
    #8
  9. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,985
    Location:
    Australia wide
    Just put a time limit on the acceptance and specify how it is to be communicated.
     
    Terry_w, 12th May, 2017
    #9
  10. kierank

    kierank Well-Known Member

    Joined:
    20th Jan, 2016
    Posts:
    8,415
    Location:
    Gold Coast
    I know it is a bit late in this case but that is why I like to include a clause along the lines of:

    This Contract is subject to and conditional upon all parties accepting and signing the Contract before 5pm on dd/mm/yyyy; if this Contract has not been accepted and signed by all parties (including initialling of all changes by all parties), then the Buyer's offer will be considered by all parties as withdrawn by the Buyer and this Contract will be null and void.
    ​
    Stops both parties from playing funny games.
     
    kierank, 12th May, 2017
    #10
    PaulB likes this.
  11. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    Thanks @kierank
    This buyer set his own deadline, which has passed. However, he is a lawyer and his own deadline was for his second counter-offer, which we crossed out and countered with a slightly higher figure.

    That countered offer was not signed last night, nor this morning.

    Our agent has left a phone message and emailed him (both around 8.30am) and has heard nothing more.

    Just waiting now to see what happens.
     
    wylie, 12th May, 2017
    #11
    kierank and Perthguy like this.
  12. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,985
    Location:
    Australia wide

    What about the communication of the acceptance. In Wylie's case they could have signed before 5pm but sat on the contract for 24 hrs before sending it back
     
    Terry_w, 12th May, 2017
    #12
  13. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    Terry I wonder if I should pop to the post office and send a formal letter withdrawing (rescinding?) our offer (or contract)?

    That would be time and date stamped and he certainly has not called or emailed the agent with his acceptance. He hadn't done that before 8.30am this morning when our agent advised him we don't wish to proceed.
     
    wylie, 12th May, 2017
    #13
  14. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,985
    Location:
    Australia wide
    Too late for that now I think.
     
    Terry_w, 12th May, 2017
    #14
  15. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    Just heard from our sales agent that the buyer has just acknowledged by email that he understands we have withdrawn our interest in this contract/offer.

    I think this means we can move forward happily.
     
    wylie, 12th May, 2017
    #15
    KayTea, Gockie, Marg4000 and 3 others like this.
  16. Yson

    Yson Well-Known Member

    Joined:
    4th Jan, 2016
    Posts:
    361
    Location:
    Sydney
    what is Postal evidence rule?
     
    Yson, 12th May, 2017
    #16
  17. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

    Joined:
    18th Jun, 2015
    Posts:
    41,985
    Location:
    Australia wide
    Here is a quote:
    To be effective, acceptance must be communicated - a mental decision to accept is not sufficient. The general rule is that an agreement is concluded when and where communication of acceptance is received - in relation to instantaneous modes of communication acceptance is deemed to be received when it is given to the offeror (even if they do not read it). Where post (or possibly other non-instantaneous methods of acceptance) is used a special rule applies (the postal rule!): provided post is contemplated by the parties (expressly or by implication) acceptance occurs when and where the letter is posted.
    Australian Contract Law | Julie Clarke
     
    Terry_w, 12th May, 2017
    #17
  18. Bonz

    Bonz Well-Known Member

    Joined:
    23rd Oct, 2015
    Posts:
    144
    Location:
    Fremantle
    Withdrawing an offer is all about communicating your intention to the other side. Read the notice provisions in your contract and follow those obligations to the letter.

    If you withdraw and properly communicate the withdrawal in accordance with the contractual provisions to the other side prior to them communicating their acceptance, it's Job done.
     
    Bonz, 13th May, 2017
    #18
  19. wylie

    wylie Moderator Staff Member

    Joined:
    18th Jun, 2015
    Posts:
    14,015
    Location:
    Brisbane
    I've just read the terms of the contract. They are in legal speak. I don't understand them at all. A lawyer did confirm early yesterday that we should be covered with the way our agent handled it. However, the purchaser was a lawyer too. So it could have got tricky.

    I've been on the "you cannot lose" end of a legal situation and we lost $1m. I don't take chances.

    Without the purchaser confirming via email that he understood we had withdrawn, I wouldn't have entered another contract. But I feel safe now.
     
    wylie, 13th May, 2017
    #19
    kierank and Marg4000 like this.
  20. RPI

    RPI SDA Provider, Town Planner, Former Property Lawyer

    Joined:
    18th Jun, 2015
    Posts:
    2,025
    Location:
    Brisbane
    Withdrawal via email from your agent to the buyer, as long as sent to the email address that they have previously communicated with the buyer on, is effective. Withdrawal via text message also effective in QLD - but print out text message.

    The interpretation by the courts of the various Electronic Transactions Acts (as in each state has one) has been vary liberal.
     
    RPI, 13th May, 2017
    #20
    Terry_w likes this.
Page 1 of 2