2007 was something of a “patchy” year for the subcommittee. Overall, the number of disputes referred to the subcommittee during 2007 was slightly up from 2006. This was possibly due to the “marketing” of the services provided by the subcommittee by the publication of several of the rulings and through the publication of an article on the workings of the subcommittee.

Problems with possession/settlement dates, interest for late settlement and leasing matters were again the matters most commonly referred to the subcommittee.

It was clear from a number of the disputes that all too often they arose as a result of obligations not being clearly recorded in an agreement or where special terms added to an agreement were in conflict with the general conditions. Often these additional clauses are added by agents or by the parties themselves without reference to their lawyers but a number of disputes would have been avoided if more careful attention had been paid to the drafting.

It also became apparent to the Committee that a number of disputes could have been avoided if the parties or their legal advisers had been prepared to be more flexible and each had been prepared to compromise a little in what they believe to be the correct position for their client. In many disputes there is no right or wrong. The words in standard documents or specially drafted terms do not exactly fit the situation which develops and if the parties cannot compromise or be flexible in their approach then attitudes harden and this results in a delay in settlement at which point the stakes inevitably become higher.

It is pleasing to see that a number of disputes which arose prior to settlement were set to one side and referred to the subcommittee for determination rather than increase the losses or potential claims for costs, expenses and interest.

The guidelines which are published by the Society sets out the procedure which the Committee follows. The subcommittee does not resolve conflicts of facts and generally the dispute must be on an agreed statement of facts signed off by the parties. Every effort is made to resolve the dispute adopting the correct principles of law but “equity and good conscious” can bear on a decision where necessary.

The subcommittee encompasses a wide range of talents and experience and a number of the disputes produced very lively and lengthy debates in the interests of trying to arrive at the right conclusion. The subcommittee endeavours to reach a unanimous decision but that is not always possible and sometimes the consensus or general view has to prevail.

It was intended that during 2007 the rulings manual would be revised in the light of the 8th edition of the agreement for sale and purchase. That did not eventuate but is a priority task for the subcommittee in 2008. Changes which will also be required as a result of the coming into effect of the Property Law Act 2007 will also be taken into account in revising the rulings manual.

The level of commitment to the subcommittee and the efforts put in by all members of the subcommittee are appreciated. Again, the work of the subcommittee has been greatly assisted by the work of the Society’s representatives, particularly Janeen Parker and John Wallace. Their helpfulness and knowledge has been greatly appreciated.

back to top