Waiver of statutory requirements : Property Agents and Motor Dealers Act 2000 (Qld)

Dixon, William M. (2007) Waiver of statutory requirements : Property Agents and Motor Dealers Act 2000 (Qld). The Queensland Lawyer, 27(4), p. 174.

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One of the many difficulties associated with the drafting of the Property Agents and Motor Dealers Act 2000 (Qld) (‘the Act’) is the operation of s 365. If the requirements imposed by this section concerning the return of the executed contract are not complied with, the buyer and the seller will not be bound by the relevant contract and the cooling-off period will not commence. In these circumstances, it is clear that a buyer’s offer may be withdrawn. However, the drafting of the Act creates a difficulty in that the ability of the seller to withdraw from the transaction prior to the parties being bound by the contract is not expressly provided by s 365.

On one view, if the buyer is able to withdraw an offer at any time before receiving the prescribed contract documentation the seller also should not be bound by the contract until this time, notwithstanding that the seller may have been bound at common law. However, an alternative analysis is that the legislative omission to provide the seller with a right of withdrawal may be deliberate given the statutory focus on buyer protection. If this analysis were correct the seller would be denied the right to withdraw from the transaction after the contract was formed at common law (that is, after the seller had signed and the fact of signing had been communicated to the buyer).

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ID Code: 42469
Item Type: Journal Article
Refereed: Yes
Keywords: Property Law, Property Agents and Motor Dealers Act 2000 (Qld), cooling-off period
ISSN: 0312-1658
Subjects: Australian and New Zealand Standard Research Classification > LAW AND LEGAL STUDIES (180000) > LAW (180100) > Property Law (excl. Intellectual Property Law) (180124)
Divisions: Current > QUT Faculties and Divisions > Faculty of Law
Copyright Owner: Copyright 2007 Lawbook Company/Thomson Legal & Regulatory
Deposited On: 06 Jul 2011 22:03
Last Modified: 10 Jul 2011 02:27

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