News and Insights

Written by Julie Barkla, Partner

I’ve never been a person who has regarded “busyness” as some sort of professional or personal achievement. I suspect a life well lived may actually involve a lot less busyness and striving, and a lot more smelling of the roses.

So it’s not a humblebrag when I say that my life has experienced a serious recalibration over the last 6 months, of the hours I allocate to “work” versus the hours I can allocate to “not work”. This recalibration has sadly involved an exponential increase in the former.

I think this is possibly a worry for more than just me and my family, because the cause of this explosion is property law defaults. Giving advice to mortgagees (primarily small banks and private lenders) in relation to arrears and defaults under credit contracts and mortgages has always been a part of my practice. As has advising vendors and purchasers staring down the barrel of failed settlements of conveyances and other property contracts. But now this is almost ALL I’m doing. And I’m doing it for many, many more hours each week than I’d like to be.

It’s hard to imagine that this state of affairs is not being caused primarily by rising interest rates and cost of living pressures (including the current horrors of utilities costs, insurance costs and land tax). The financial pressures being experienced by builders is impacting those relying on them too.

Sadly, it’s often not until a default occurs that a hard look is taken at the documents and legislation which give the aggrieved party their legal rights.

So these are my learnings:

1. 1. 1. In a property sale scenario, get your Vendor’s Statement right. Saving money on conveyancing fees is the world’s greatest false economy if the purchaser can walk away from the Contract at any time until settlement, and be entitled to a return of their deposit;
      2. Sadly, the counterpoint to 1) is that if a purchaser cannot complete a contract, they should get the Vendor’s Statement reviewed. Whilst many may (entirely legitimately) question the morality of a purchaser walking away from a Contract with a return of their deposit, when the reality is that they simply could not get finance to complete the purchase, the penetrating eye of the law may be on the conduct of the vendor, not the purchaser;
      3. For vendors, purchasers and lenders, make sure you get your Default Notice or Rescission Notice right. This is often the foundation upon which everything which may follow rests. Get it wrong and the gates of hell may open.