How a 'cooling off ' is not a 'cooling off'

Probably. Let's see if I can find the Judgment.

 

Tan v Russell [2016] VSC 93
Tan v Russell [2016] VSC 93 (11 March 2016)

 

http://scv2.webcentral.com.au/judgm...avpanes=0&toolbar=1&scrollbar=1&pagemode=none

PROPERTY – Contract of Sale – Agency – Where the plaintiffs purportedly exercised their
statutory rights under s 31 of the
Sale of Land Act 1962
– Where plaintiffs sent a notice of
termination to the real estate agent by email – Whether plaintiffs validly terminated the
Contract of Sale through the real estate agent – Whether the real estate agent had authority
to receive the notice –
Sale of Land Act 1962
s 31.

 

(a) Was Mr Gibbons the agent of Mr Russell for the purposes of receiving a notice
of termination during the cooling off period pursuant to s 31 of the Act?
(b) If so, did the signature by Mr Tan meet the requirement of s 9 of the
ElectronicTransactions Act?
(c) Does the failure of Dr Lo to provide written authority, as opposed to oral
authority, for Mr Eng to give the notice of termination to dispose an interest
of land on his behalf, contravene s 126 of Instruments Act 1958 (Vic), and render the notice of termination invalid or inoperative?

Cameron J concludes:
Decision
82
It may be, and I accept, a common occurrence in commercial life for parties to
assume that a real estate agent is an agent for the vendor of a property for all
purposes. However, this is not necessarily the case.
83
An agent, and a real estate agent, is defined by their mandate, absent any ostensible
authority with which they are clothed.
84
An assumption by a purchaser as to the scope of the authority of an agent does not
equate to a ‘holding out’ of that agent by the vendor.
85
The exercise of a statutory ‘cooling off’ period is a serious matter. It involves a
contract, validly entered into, and its termination. The parties may prescribe the
circumstances in which a contract may be terminated if they wish.
86
The legislature has decreed how this valid termination may occur. However, it has
not, in my opinion, relieved a party who chooses to take advantage of this provision,
from complying with the specific provisions of a particular contract and its special
conditions or having regard to common law principles of agency.
SC:HJ
24
JUDGMENT
Tan v Russell
87
Mr Tan and Dr Lo entered into the Contract with Mr Russell. In exercising their
statutory right to a ‘cooling off’ period they, it appears, made an assumption that a
communication with Mr Russell’s real estate agent was sufficient.
88
I do not accept, based on my observations above, that Mr Russell ‘held out’
Mr Gibbons to be his agent for all purposes, thus granting him ostensible authority
to receive notices pursuant to s 31(3) of the Act. There was no evidence that Mr Tan
or Dr Lo made any inquiries as to Mr Russell’ details for the purposes of serving the
notice nor, indeed, sought to ascertain whether Mr Gibbons had authority to accept
the notice.
89
It follows that Mr Tan and Dr Lo’s claim must fail. Mr Russell, in my opinion, has
complied with his contractual obligations regarding the provision of a notice of
default and rescission of the contract. Accordingly, his counterclaim must succeed.
90
I will hear the parties on the form of orders and on the question of costs.

 

So I have invalidly accepted a cooling off notice advised to my agent and relayed verbally.

Dang too late to sue for specific performance

I'm crying all the way to the bank.

 

so if im selling a house get a too high offer, and the agent tells me the buyer has withdrawn,

but if I deny it , and say there is no contract between me and the buyer, im keeping the deposit

this would work????

seems ridiculous

 

How could you keep the deposit if there was no contract?

 

OMG
I love this property, Richmond nice area.

 

your line of thinking is the only ridiculous thing here.

im not sure how youre extrapolating the current situation with keeping a deposit when there is no contract. as terry said how would there be a deposit paid without a contract, at the very least, as stupid as that option would be for someone to take, there would be a verbal contract.

 

so the buyer decides to legally pull out of a contract,
sms and emails teh agent who theyve been dealing with,

and this is deemed insufficent and they lose their depost

how ridiculous is that?

are you a real estate agent? you sound like one

 

The buyer was legally entitled to pull out of the contract but did not take the appropriate steps to do so. that is really all there is to the discussion.

you are perfectly entitled to disagree but the law, common sense and a judge all happen to disagree with you. too bad, so sad.

no, I'm not a real estate agent.

 

Analogy:
You promise John you will go to his party. 3 days you tell Sue you are not going. John gets ****** off because you don't turn up.

 

So, John Sue You

 

are you a trapeze artist? you sound like one.

 

No, a comedian.

 

Irregardless of personal opinions, this is someone else's very expensive lesson.
I sure have learnt from this (and for free). Thanks for bringing this up.

 

wtf!! where did the original title go ?

The decision detracts from the utility (hopefully commission ) of a REA.
The buyer might as well start off the buying process directly with the solicitor / seller and ignore the REA.

Current contracts rely on caveat emptor. For the sake of clarity, the clause for cooling off , should say something to the effect that the rescinding of the contract can be done only by informing the seller or his/her representative.

 

haha. the law is common sense,

thats the funniest thing ive read all day

thanks for the laugh

 

In this case it would be common sense to tell the party you are contracting with that you are pulling out.

 

ive pulled out of contracts a few times in my life, through failed BP inspections,

everytime ive emailed the agent twice and made sure they replied

seemed to be crossing my Ts and dotting my Is