Important Update: The below article is not current. The position has now changed with amendments to section 31 of the Sale of Land Act and an overturning of the decision at the Court of Appeal, thus allowing real estate agents to receive cooling off notices.


Most of us are aware of the purchaser’s right to terminate a contract of sale within 3 business days after a signing a contract of sale. This is commonly referred to as the ‘cooling off right’ or the ‘cooling off period’. You can read more about this on our Cooling Off FAQ Page. The 2016 case of Eng Kiat Tan and Cheng Lo v Thomas Russell [2016] VSC 93 at the Supreme Court of Victoria dealt with the question of whether or not a vendor’s estate agent is authorised to accept notices by a purchaser exercising their right to cool off.

Summary
The vendor successfully argued in Eng Kiat Tan that the purchaser’s delivery of the cooling off notice to the real estate agent was not a delivery to an “agent” under s 31 of the Sale of Land Act. In other words, by default real estate agents have no authority to accept the purchaser’s cooling off notice (termination notice) unless there is an actual or ostensible authority to do so.

The Facts
In the case, the purchasers gave the cooling off notice to the real estate agent within the required timeframe of three business days. There was a dispute about whether or not the contract was validly terminated by the purchaser. The vendor then proceeded to resell the property for $4,070,000 ($410,000 below the original sale price). The original purchasers commenced proceedings to recover the deposit retained by the vendor. The vendor counter-claimed and succeeded.

The Decision
The trial judge held that section 31 did not grant an authority for a real estate agent to accept a cooling off notice. Without an actual authority to accept the cooling off notice, a real estate agent is not authorised to do anything which would affect the vendor’s legal position.

Purchasers should take extra care when exercising their cooling off right and ensure that notices are given to agents with authority to receive cooling off notices.

Source: roberthaypropertybarrister.wordpress.com

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