Was I tricked? RE off the plan purchase

Discussion in 'The Buying & Selling Process' started by VinMariani, 29th Mar, 2016.

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  1. larrylarry

    larrylarry Well-Known Member

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  2. VinMariani

    VinMariani Well-Known Member

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    I am keen to send her a text message saying that if she does the right thing and returns the money quickly, I will take no further action, otherwise I will take it to consumer affairs, ASIC and through the courts to sue her. So far she is keeping quiet.

    I should probably wait until Monday and keep steady nerves. Maybe sending her messages will just irritate her.
     
  3. Terry_w

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

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    I would refrain from contacting her now you have your lawyer involved.
     
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  4. VinMariani

    VinMariani Well-Known Member

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    Latest update.

    She has agreed to refund my $25000, however wants me to sign this document which releases her of any responsibility and any further liabilities when it comes to these two apartments which I am the nominee for. When I sign it, she will release the $25000 to me.

    My lawyer has looked over the document and said that they are not happy that she is asking for total release and that she wants to make some changes to it BUT it can potentially cost me another $2500 in lawyer fees.

    I am considering signing it so I don't incur any more lawyer fees because I can't see what could possibly be in that document that I would need to have that property manager involved after the settlement which is in November.

    My friend who works with the property manager (who is now pretty much sacking my friend because she has lost face over this) is asking me to sign the document, get my money back and move on.

    I do want to get my funds back ASAP, but at the same time I keep wondering whether my lawyer simply wants more funds from me for their services to rewrite the document or is there really is something concerning which must be changed prior to me signing it.

    My friend said that I need to deal with another guy who is above the property manager and sort out any questions with him as he is one of the property developers.
     
  5. Terry_w

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

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    what if you need to sue the agent later if something pops up?
     
  6. EN710

    EN710 Well-Known Member

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    I'd ask what's the risk of giving her a total release.

    .....
     
  7. Nick Valsamis

    Nick Valsamis Well-Known Member

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    Moral of the story, real friends do not sell you properties that they don't buy themselves.
     
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  8. VinMariani

    VinMariani Well-Known Member

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    The funny thing is I would not have had any further business matters with her even if I kept to myself and lost those $25000.

    So it makes no sense to keep dealing with the property manager in the future, unless I am missing something,

    I have been nominated for the two apartments, my name is on the contract now, I have paid two deposits.

    So the next step would be finalising the settlement in November, getting the keys and then doing what I want with the properties... right?
     
  9. VinMariani

    VinMariani Well-Known Member

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    I just spoke with the property developer who is above the property manager and he basically said I will just deal with him from now and he will show me everything once the settlement comes.

    I can also post here the release in the legal document... maybe some lawyers on here can see what they think?
     
  10. Nick Valsamis

    Nick Valsamis Well-Known Member

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    It may be something to do with liability. You should also speak with your lawyer to find out why they are not happy with the current agreement. Then you can determine what you want to do.

    You will also need to pay the stamp duty and organise finance if required before settlement.
     
  11. VinMariani

    VinMariani Well-Known Member

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    Here is the release clause:

    (names changed to protect the innocent)


    Release by Goldberg (property manager)

    5.1 Save for VinMariani's obligations under this Deed and the substitution of VinMariani as

    purchaser under the Contracts Goldberg acknowledges and agrees that on and from the date

    of the execution of this Deed VinMariani forever releases and discharges VinMarianiand his

    agents servants officers and employees from any claims, actions, costs, demands,

    proceedings or expenses in relation to the Contracts, the Nominations, the Nomination

    Forms any agreement, transaction, facts, matters or circumstances arising out of the

    dealings between the Parties as described in the Recitals section to this Deed.

    5.2 Goldberg acknowledges and agrees that the release given under this clause and the

    acknowledgments under clause 2 of this Deed may be pleaded as a full and complete

    defence by VinMariani to any claim, action, referral for determination, cost, demand,

    expense or proceeding commenced or taken by Goldberg or on her behalf in connection with

    any matters released under this Deed.



    Release and indemnity by VinMariani

    6.1 Save for Goldberg's obligations under this Deed, including payment of the Agreed Sum to

    VinMariani as provided under clause 3 herein VinMariani forever releases and discharges

    Goldberg and all her agents servants officers and employees from any claims, actions, costs,

    demands, proceedings or expenses in relation to the Contracts, the Nominations, the

    Nomination Forms and any agreement, transaction, facts, matters or circumstances arising

    out of the dealings between the Parties as described in the Recitals section to this Deed.

    6.2 VinMariani acknowledges and agrees that the release given under this clause and the

    acknowledgments under clause 2 of this Deed may be pleaded as a full and complete

    defence by Goldberg to any claim, action, referral for determination, cost, demand, expense

    or proceeding commenced or taken by VinMariani or on his behalf in connection with any

    matters released under this Deed.

    6.3 VinMariani agrees to indemnify and hold Goldberg harmless in respect of any claims,

    actions, costs, demands proceedings or expenses that may be made against Goldberg by

    the Owner and/or the Car Space Owner upon VinMariani's failure or inability to perform his

    obligations as purchaser under any or all of the Contracts.
     
  12. VinMariani

    VinMariani Well-Known Member

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    These apartments are off the plan purchase so the initial deposit should cover this, unless I am mistaken but I will confirm.

    I am working on my finance at the moment.

    This is what my lawyer wrote about the potential problem if I sign the document:

    "You will have no recourse against her in respect to your nomination.
    If you have been mislead or deceived in respect to signing the nomination documents and there are issues with the property, you have released her from all obligations."

    I can't see what issues there could be as we dealt with this before I asked for my $25000 back. From anyone's experience, what could be hidden in there? She nominated me for two apartments, I paid the deposits, what else would I need from her?

    If there are any issues, I would just go to Body Corporate, am I wrong?
     
  13. Nick Valsamis

    Nick Valsamis Well-Known Member

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    Stamp duty is paid to the government, not to the agent or vendor. Are the purchases for NSW? If not, then it may be a different procedure in other states which you would need to find out about.
     
  14. Terry_w

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

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    Yes.
     
  15. Property Twins

    Property Twins Mortgage Brokers & Buyers Agents Business Member

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    @VinMariani - are these in Sydney? Have you considered the risks with OTP purchases? Fyi the banks don't value these until 3 monrhs prioe to settlement. Do you have your basis covered to complete these deals in an event of the valuation not stacking up?
     
  16. CosmicTrevor

    CosmicTrevor Well-Known Member

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    I think you need to stop referring to them as a PM, they are currently acting as a REA in that they sold you the properties (unless I misunderstand things). It would also be prudent to stop referring to various parties as friends and leave the developer out of it as well.

    You've asked for legal advice and got it, however before committing to the extra $, ask the Lawyer (hopefully not another "friend") what course of action you have if the REA doesn't agree to the amendments. Also ask what specific risks you face if you sign the release as it is.
     
  17. JDM

    JDM Well-Known Member

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    My comments are in bold below. This is based on the limited information you have provided so should be taken in context of any advice received from your lawyer.

    Release by Goldberg (property manager)

    5.1 Save for VinMariani's obligations under this Deed and the substitution of VinMariani as

    purchaser under the Contracts Goldberg acknowledges and agrees that on and from the date

    of the execution of this Deed VinMariani forever releases and discharges VinMarianiand his

    agents servants officers and employees from any claims, actions, costs, demands,

    proceedings or expenses in relation to the Contracts, the Nominations, the Nomination

    Forms any agreement, transaction, facts, matters or circumstances arising out of the

    dealings between the Parties as described in the Recitals section to this Deed.

    Basically you have no recourse against the agent for anything arising from the nomination or their dodgy dealings. If the unit that is built is substantially different from the unit you were promised, you would often have recourse against both the agent and the seller. In this case you are forfeiting your right to sue the agent. You should consider whether you are willing to accept this in the interest of getting your money back quickly.

    5.2 Goldberg acknowledges and agrees that the release given under this clause and the

    acknowledgments under clause 2 of this Deed may be pleaded as a full and complete

    defence by VinMariani to any claim, action, referral for determination, cost, demand,

    expense or proceeding commenced or taken by Goldberg or on her behalf in connection with

    any matters released under this Deed.

    Ties in with 5.1 - If you try and sue the agent they can present the settlement deed and the matter is over.

    Release and indemnity by VinMariani

    6.1 Save for Goldberg's obligations under this Deed, including payment of the Agreed Sum to

    VinMariani as provided under clause 3 herein VinMariani forever releases and discharges

    Goldberg and all her agents servants officers and employees from any claims, actions, costs,

    demands, proceedings or expenses in relation to the Contracts, the Nominations, the

    Nomination Forms and any agreement, transaction, facts, matters or circumstances arising

    out of the dealings between the Parties as described in the Recitals section to this Deed.

    6.2 VinMariani acknowledges and agrees that the release given under this clause and the

    acknowledgments under clause 2 of this Deed may be pleaded as a full and complete

    defence by Goldberg to any claim, action, referral for determination, cost, demand, expense

    or proceeding commenced or taken by VinMariani or on his behalf in connection with any

    matters released under this Deed.

    I'm a bit confused on the parties but this seems to be the same release in reverse, in which case this is in your favour so not an issue.

    6.3 VinMariani agrees to indemnify and hold Goldberg harmless in respect of any claims,

    actions, costs, demands proceedings or expenses that may be made against Goldberg by

    the Owner and/or the Car Space Owner upon VinMariani's failure or inability to perform his

    obligations as purchaser under any or all of the Contracts.

    I would not be providing an indemnity to the agent. I see no reason for you to agree to clause 6.3.

     
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