Spotlight on ADLS’ Property Disputes Committee

Property law practitioners are encouraged to take advantage of the excellent cost-efficient service that the ADLS Property Disputes Committee provides to resolve difficulties arising in relation to property matters including issues relating to settlement, boundaries, default, conditions and other property issues.

Mark Colhart

Committee members have a wide range of experience in conveyancing matters and also cover the broader commercial and property law specialties.

The service is only available to law firms and sole practitioners, and only if the conditions listed below are met.

The Committee has welcomed a new Convenor, Mark Colthart, when former Convenor Joanna Pidgeon stepped down from the Committee after she was elected as ADLS President in February this year. Mr Colthart is a barrister and arbitrator specialising in commercial litigation and arbitration, property disputes, and construction law. He notes:

“In a legal environment where access to justice is a constant issue, this is an invaluable service to practitioners and their clients.”

“Provided that both parties to a property dispute consent, and can provide an agreed set of basic facts, the Committee can provide a binding ruling from a panel of senior and experienced members of the profession for only $100 per party,” Mr Colthart continues.

“This includes property issues, which are often outside the jurisdiction of the Disputes Tribunal, meaning that the only other alternatives to obtain a binding decision are arbitration or litigation.

“The disputes we have determined over the years have covered a huge range of property issues, including commercial lease disputes, interpretation of agreements for sale and purchase and boundary disputes to name but a few.”

Prior to submitting a dispute, practitioners are advised to visit the ADLS website to obtain a copy of the Committee Guidelines, which are available from the ADLS website (see /media/7778875/Property-Disputes-Guidelines-2017-update-2-.pdf).

Before a matter is referred to the Committee for a determination, practitioners are also asked to check the most current Rulings Manual, also available from the ADLS website (see /media/7547928/28-04-2016-ADLS-Rulings-Manual-April-2016.pdf), to see if it is a matter which has been the subject of a previous determination.

However, it is to be noted that the rulings in the Rulings Manual must be viewed carefully in the light of changes to legislation and documentation.

The Committee meets as and when disputes are submitted to it, ensuring that the disputes referred to it are dealt with as expediently as possible.

Before the Committee will meet to consider a dispute, certain conditions must be met, namely that the parties:

  • agree to be bound by the decision and undertake not to take action against any Committee member acting in good faith in making a determination (the Committee operates according to a set of guidelines that require the solicitors involved to confirm in writing that they agree to the specified conditions);
  • submit an agreed “statement of facts” (as disputed facts will not be ruled on) and include any relevant documents relied upon;
  • pay a fee of $100 each when submitting the agreed statement of facts and submissions; and
  • may also submit their respective submissions.

Once the Committee Secretary is satisfied the above conditions have been fulfilled and the necessary information provided, a meeting date will be set for the Committee.

The Committee makes its determination “on the papers” – i.e. neither the solicitors nor their clients attend. The Committee has discretion to call for further and better particulars, or to decline to determine a dispute submitted to it which it considers outside its jurisdiction.

Every effort is made to resolve the dispute adopting the correct legal principles, but “equity and good conscience” can bear on a decision where necessary.

By way of example, the Committee has dealt with a range of issues over the years, but recently has considered:

  • whether additional legal costs incurred by the vendors, as a direct result of a delay by the purchaser in completing settlement on the settlement date, are recoverable from the purchaser;
  • a dispute regarding a sunset clause and the stakeholder’s obligations under clause 2.4 of the ADLS Agreement for Sale and Purchase of Real Estate;
  • a dispute regarding the interpretation of “gross rental” in a Bank Guarantee clause in an Agreement to Lease Retail Premises; and
  • a claim by the purchaser for compensation based on alleged breaches by the vendors of the warranty in relation to chattels and in relation to a title defect.

Practitioners contemplating the service provided by the ADLS Property Dispute Committee may contact the Committee Secretary by email for more information.

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