Discrepancy In The Final Sunset Date

Discussion in 'Legal Issues' started by Tnoz, 25th Mar, 2020.

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  1. Tnoz

    Tnoz Member

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    Hi All,

    I would like to firstly apologise for this very long post and in no mean trying to gather any proper legal advise here but to rather seek other people's experience and opinion on this matter and see if anyone has gone through this same situation.

    So basically i purchased an OTP back in August 2016, the construction is now beyond the sunset date but vendor was able to extend the sunset date to a final sunset date, due to the clauses listed below. We were aware of this when we signed the contract, so there is no dispute there.

    In our contract, we have sunset date which is 10 October 2019 and a final sunset date as 27 February 2020. I will list the clauses under Extension of Sunset Date:

    54.2

    (a) If at any time the Vendor considers that it may be unable to complete construction of the property and to register the Strata Plan by the Sunset Date, the Vendor may at any time give to the Purchaser one or more certificates specifying the nature and extent of the delay and nominate a new Sunset Date.

    (b) On Service of a copy of a certificate/s to the Purchaser, the Sunset Date is automatically extended by the period specified in the certificate/s. The Vendor certificate/s is conclusive evidence of the nature and extent of the delay, and the extension of time is binding on the parties.

    (c) The Vendor agrees that the Vendor may not extend the Sunset under this clause 54.2 beyond the Final Sunset Date.


    I'm currently now in the process of rescinding this contract and have written the timeline below to help me dispute this matter and hope it gives everyone a clear idea of whats going on.


    • On the 8th January 2019, the vendor solicitor had requested for an extension to sunset date as “pursuant to clause 54.2(a) of the Contract, the Sunset Date is extended to 30 April 2020”.
    • On the 23rd January 2019, my solicitor advised me that “As per section 54.2 of the special condition, the vendor may not extend the sunset day beyond the final sunset day being 27 February 2020.” On this same day, we responded with “We do not accept the extension for the sunset date”, accordingly my solicitor had notified vendor solicitor of our intention.
    • On the 24th January 2019, we received a letter from vendor solicitor with the AMENDED date. As per letter received, it states “pursuant to clause 54.2(a) of the Contract, the Sunset Date is extended to 28 February 2020”.
    • On the 7th February 2020, we had contacted our solicitor to express our intention to rescind contract come 27.02.2020.
    • On the 27th February 2020, we received a letter from vendor solicitor, in the letter it states “ We refer to previous correspondences and note the sunset date has been extended to 27th February 2020. In this regard, we are instructed to request for a further extension of the sunset date by way of variation to the Contract on the followings terms:- “
      - Sunset Date be amended to read 10 October 2020.
      - Final Sunset Date be amended to read 10 October 2021.
    • On the 1st March 2020, we advised our solicitor we will still proceed with rescinding the contract.
    • On the 9th March 2020, we received an email from vendor solicitor, in the email they stated “Further to our letter, and in good faith, we are instructed that our client is agreeable to offering credit for strata levies in connection with the property for a period of one (1) year following completion should your client be minded to agree to our client’s request.”

    • On the 10th March 2020, we advised our solicitor that we did not accept their offer and to proceed with the notice of rescinding, thus the notice was sent out to vendor solicitor on the same day providing them with 14 day notice.

    • On the 24th March 2020, the vendor solicitor has replied back to dispute the discrepancy with contract final sunset date from both sides. The letter states “final sunset date specified on their contract (which is signed by me) is 10 October 2020.”

    So according to the vendor solicitor, there is a discrepancy in the Final Sunset Date between the vendor's counterpart contract and the purchasers' counterpart contract. Though it was very clear that when the vendor solicitor attempted to extend the final sunset date to 30 April 2020 back in 8th January 2019, he acknowledged that the sunset date could not be extended further than 27 February 2020.
    It is only 1 day before we had served them with the rescission notice, did the vendor solicitor dispute the final sunset date specified on the contract.

    My solicitor has advised me to seek a barrister advice going forward. There is a possible chance this matter will go to court, and i am ready to battle this out if necessary.

    I apologise again for this very long post, though i would really appreciate all your opinions on this matter.

    Thank you very much.
     
  2. Terry_w

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

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    Its too long for me to read, but I barrister will cost an arm and a leg, why not just get another solicitor's opinion?
     
  3. Trainee

    Trainee Well-Known Member

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    Are you really saying that your copy of the contract says 28 feb 2020, and their copy says 10 oct 2020? Did you take a copy of what you signed?
     
    Propertunity likes this.
  4. Paul@PFI

    [email protected] Tax Accounting + SMSF Business Plus Member

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    So the solicitor said seek expert opinion but you ask forum members? That seems strange. Second opinion would be worth exploring from a state based property solicitor
     
  5. Stoffo

    Stoffo Well-Known Member

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    @Tnoz is saying that after all the documented communications back and forward that the developers legal department is grasping at straws and trying to further delay the rescinding of the contract.

    @Tnoz what date does your copy of the contract say ?
    Original sunset on 10 October 2019, or 10 October 2020, because that document will give you your answer !

    If it does say 10 October 2019 have your legal team reply stating such, and that they are instucted to pursue this matter to recover your deposit and all legal costs incurred :p