Rescinded contract - waiting for vendor response/deposit.

Hi,

developer took approximately 25sqm of courtyard from us that was included in draft plan. The change is far more than 5% to the original plan.

agent showed us the changed in April - we could see physically what was changed. Also offered a $10,000 discount verbally on behalf of the vendor.

Finally, in July we received a copy of the final strata plan.

I instructed my solicitor to rescind contract - the contract says we have 7 days to rescind. This was done within the 7 day time frame.

It's now been over 2 weeks since we rescinded the contract and the vendor has not replied to our request to rescind and refund out deposit.

Our deposit is being held in the real estate agent trust account.

Has anyone been in this situation before? Any suggestions on where to go from here? Initiate court proceedings?

 

instruct the agent to give you the money back.

 

silence as acceptance on behalf of the vendor?

 

Why no be radical, pick up the phone and talk to the agent.

 

yeah, like I haven't already done that. He keeps telling me to talk to my solicitor.

He also said he needs approval from both solicitors to make payment.

 

Sounds like sensible advice from the agent.

 

if you have followed the terms of the contract then you have successfully terminated the contract and the agent has no legal basis to keep holding your deposit.

 

Once you get to the maximum time frame (depends on state and contract) for refund then you can get your solicitor to write a letter of demand to the agent.

 

I have made a complaint with Fair Trading, I will then follow up with a complaint to NCAT after that.

 

Wouldn't it be quicker just to get your solicitor to issue a demand to release.

 

I have emailed him asking if he thinks it is a good idea, and if he agrees, to issue a letter of demand.

Will still keep my complaint with Fair Trading against the agent, then lodge a complaint with NCAT after as that is a very time consuming process.

 

I always understood that the deposit was held by the agent as trustee on behalf of both the buyer and seller. If the agent wont release the deposit because the vendor won't consent, and its not clear on what basis consent is being withheld, then you need to deal with the vendor. The agent is not a party to the contract. Best of luck

 

Got a call from Fair Trading today, Stewart is correct.

It is a legal dispute between me and the vendor.

Contract says the deposit is to be refunded immediately. Not sure how long a time frame is considered reasonable for a reply, but I'd guess over 2 weeks is reasonable.

Maybe we can sue them for part of our costs.

Strata plan is not registered yet, so need to stress. They haven't even made an application to Council for subdivision yet... this could take some time.

One thing is for sure, I'm glad I paid for a top notch solicitor instead of some two bit conveyancer.

 

With all due respect if you did a hire a top notch solicitor then why isn't he handling the issue and advising you on what needs to be done? He would've told you that contacting Fair Trading was pointless, as you discovered.

You should be calling your solicitor directly, not sending emails. It's pretty clear this developer isn't intimidated by your threats so far. If I were you I'd instruct your solicitor to start issuing actual legal threats/ breach of contract notices.

Good luck.

 

Costs nothing to make a complaint to Fair Trading and I lose nothing in an unsuccessful complaint.

Solicitor said nothing about Fair Trading, I wouldn't waste his time or money. I'd use him to go to Court.

Haven't made any threats to the developer. Not sure where you got that from.

I cannot hear very well on the phone because I'm deaf, that's why I email him. Is that okay with you?

 

So why did you hire him if you don't want to 'waste his time or money'?
Wouldn't it be easier/cheaper to engage him now instead of waiting for the matter to reach court?

You stated in your earlier post that you rescinded the contract within the 7 days allowed time frame and it has now been over 2 weeks without any response. Do you honestly believe they'll even bother returning your calls/emails without the threat of legal action? They have no incentive to do so.

This is something you've just disclosed in this post which I wasn't aware of. Obviously I wouldn't have made such an insensitive comment had I known you were deaf so I apologise if you found my comment offensive.

Again, I do wish you good luck. If your intention is to exhaust all avenues before you engage your solicitor then that is your choice. But if I were in your shoes I'd make him earn his money coz lord knows they ain't cheap.

 

We are giving to COB Friday for a response. We will then initiate court proceedings on Monday as that will be 28 days without a response.

I guess it makes sense the developer is not going to give this up without a fight. They want me to wear the losses so they're not out of pocket for it.

I am also assuming since the contract says the deposit is to refunded immediately if the contract is rescinded, they are in breach of contract and I can probably claim some damages at court. I would hazard a guess that a reasonable time frame for immediately would fall well short of 21-28 days. My solicitor did say we could recover about 60-70% of the costs.

Glad I got a solicitor. The conveyancer I was using before was suggesting we have plan B like getting an agent to sell it for us.