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Each week we publish three interesting

Questions & Answers

This week - 25 July 2014

Question 1

Hi, I act for an estate that is selling a residential property. I have received 2 sales advices (different purchasers and solicitors, same price) from the one agent in relation to the sale. The agent is asking for two contracts and suggesting the first to exchange gets the house. Besides being a nuisance and an expense for my client, is there any other prohibition on this practice?
NSW question

Answer

There is no prohibition on this practice.

Question 2

Retail Leases Act s 28. In light of Xiao v Perpetual Trustees how should a company tenant be "notified" to be effective?
VICTORIAN question

Answer

Service on a corporation has always been regarded as being by service on the registered office of the corporation. This is usually by post but could be personal service at that office.
Xiao throws doubt on that as many registered offices are just "nominal" and it may be difficult to establish that the corporation was in fact "notified".
The matter does not seem to have been considered further. In the interim, as well as service at the registered office, notification should also include service, by post and perhaps personal, at the retail premises.

Question 3

A Power of attorney stipulated in a joint venture agreement was not separately prepared. What must be done before the attorney can sign contracts for sale of land? Does a separate power of attorney document have to be prepared and registered or can the joint venture agreement be registered?
NSW question

Answer

See section 8 of the Powers of Attorney Act:
An instrument (whether or not under seal) that is in or to the effect of a form prescribed by the regulations for the purposes of this section and if duly executed creates a "prescribed power of attorney" for the purposes of this Act.
If the joint venture agreement complies with this section then it may be relied upon. The power of attorney will need to be registered if any registrable documents are to be signed by the attorney, for example, transfers or mortgages.
The power need not be registered to sign a contract.
A separate power avoids the terms of the joint venture becoming public.

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