stage 1 annexure a stage plan, lot plan and local ... · contract. the deed of restrictive covenant...

STAGE 1

ANNEXURE A

STAGE PLAN, LOT PLAN

AND LOCAL DEVELOPMENT PLAN (IF APPLICABLE)

STAGE 1

ANNEXURE B

SPECIAL CONDITIONS

1. DEFINITIONS

1.1 Definitions

In this Contract, unless the context otherwise requires:

(a) Contract means the REIWA offer and acceptance form to which this annexure is attached, all annexures attached thereto and the 2011 General Conditions;

(b) Estate means the development being carried out by the Seller and known as Lot 545 of which the Property forms part;

(c) Lot Plan means the draft plan detailing the Property contained in annexure A of this Contract;

(d) Objection means any objection, requisition, claim for compensation, withholding all or part of the Purchase Price, refusing to complete Settlement or delaying Settlement;

(e) Special Conditions means the special conditions contained in this annexure B and Special Condition shall have a corresponding meaning;

(f) Stage Plan means the draft plan setting out the stage of the Estate of which the Property forms part contained in annexure A of this Contract;

(g) terms that are defined in the 2011 General Conditions shall have the same meaning when used as defined terms; and

(h) terms that are defined in the REIWA offer and acceptance form to which this annexure is attached shall have the same meaning when used as defined terms.

2. THE 2011 GENERAL CONDITIONS

2.1 Amendments to the 2011 General Conditions

The 2011 General Conditions form part of this Contract except that:

(a) for the purpose of clause 3.2(b) of the 2011 General Conditions, the “reasonable time before the Settlement Date” referred to shall be at least five (5) Business Days (excluding the day on which the Seller receives the Transfer and the day of Settlement);

(b) clause 9 of the 2011 General Conditions does not form part of this Contract;

(c) the conditions referred to in clause 13 of the 2011 General Conditions do not apply to this Contract to the extent that the subject matter of any such condition was completed prior to the Contract Date;

(d) clause 15 of the 2011 General Conditions does not form part of this Contract; and

(e) clause 24.18 of the 2011 General Conditions does not form part of this Contract.

2.2 Inconsistency

These Special Conditions shall override the 2011 General Conditions to the extent of any inconsistency.

2.3 GST

For the purposes of clause 4 of this Contract (as set out on the REIWA offer and acceptance form that is part of this Contract) and clause 18.2 of the 2011 General Conditions, the Parties acknowledge that the Purchase Price was negotiated on the basis that it includes GST with that GST being calculated on the basis that the Seller has elected to apply the Margin Scheme.

2.4 Land Tax - Notice

Pursuant to clause 7.4(c) of the 2011 General Conditions, the Seller hereby notifies the Buyer that:

(a) the Seller is the registered proprietor of land other than the Land the subject of this Contract; and

(b) both the Land the subject of this Contract and the other land owned by the Seller are liable for Land Tax.

2.5 Land Tax – Bulk Assessment

(a) The Buyer acknowledges that it is aware that the Seller owns land other than the Land the subject of this Contract and, as a consequence, receives a bulk assessment for Land Tax from the Office of State Revenue in respect of all the land owned by the Seller. On this basis, the Buyer agrees that, irrespective of any provision of the 2011 General Conditions (including but not limited to clause 7.2) the Seller is not required to pay an entire bulk assessment for Land Tax prior to Settlement irrespective of whether or not that bulk assessment relates in part to the Property and the Buyer may not make any Objection in relation to the subject matter of this Special Condition 2.5(a).

(b) The Seller undertakes to the Buyer to pay to the Office of State Revenue all amounts owing by the Seller pursuant to any bulk assessment for Land Tax it receives that relates in part to the Property in accordance with the terms of that bulk assessment or otherwise in accordance with an agreement in place between the Seller and the Office of State Revenue and further indemnifies the Buyer from any liability in that regard.

(c) Nothing in this Special Condition 2.5, effects the Buyer’s obligation to pay to the Seller at Settlement the Buyer’s portion of Land Tax that the Seller is liable for pursuant to the 2011 General Conditions.

3. ENCUMBRANCES

3.1 Section 136D Restrictive Covenant

The Buyer acknowledges that:

(a) the Property will be subject to the deed of restrictive covenant contained in annexure C of this Contract. The deed of restrictive covenant will be registered on the Property’s Certificate of Title prior to Settlement pursuant to section 136D of the Transfer of Land Act 1893 (WA) and accordingly the deed of restrictive covenant is a Specified Encumbrance for the purpose of the 2011 General Conditions;

(b) whilst the deed of restrictive covenant which shall be registered on the Certificate of Title for the Property shall generally be in accordance with the restrictive covenant contained in annexure C, the Buyer acknowledges that the deed of restrictive covenant contained in annexure C is a draft version only and as such it may be necessary or the Seller may consider it preferable to change or vary the deed of restrictive covenant and the Buyer is not entitled to make any Objection in relation to any such change or variation provided it does not materially prejudice the Buyer; and

(c) it has made its own enquiries about the effect the deed of restrictive covenant detailed in Special Condition 3.1(a) will have on the Buyer’s use and enjoyment of the Property and is satisfied with the same.

3.2 Mosquito Breeding Area


(a) the Certificate of Title for the Property will be encumbered by a notification registered pursuant to section 165 of the Planning and Development Act 2005 (WA) which will state as follows:

“This lot is in close proximity to known mosquito breeding areas. The predominant mosquito species is known to carry viruses and other diseases”

(b) whilst the wording of the notification shall be generally in accordance with Special Condition 3.2(a) above the Buyer acknowledges that the wording above is a draft version only and as such it may be necessary to change or vary the wording and the Buyer is not entitled to make any Objection in relation to any such change or variation provided it does not materially prejudice the Buyer; and

(c) it has made its own enquiries about the effect the notification the subject of this Special Condition 3.2 will have on the Buyer’s use and enjoyment of the Property and is satisfied with the same.

3.3 Fire Management Plan

(a) This Special Condition 3.3 only applies if this Contract relates to one of lots 1 to 7 or one of lots 34 to 46 on the Stage Plan.

(b) The Buyer acknowledges that:

(i) The Property will be subject to a Fire Management Plan (“FMP”), a full copy of which is available from the Seller upon request and an extract of which is set out below:

“The owners/occupiers of future individual residential lots… are to maintain a reduced level of risk from bushfire, and will be responsible for undertaking, complying and implementing measures to protect their own assets (and people under their care) from the threat and risk of bushfire. Property owners and occupiers will be responsible for:

• Ensuring that all lots comply with the City of Rockingham Fire Control Notices as published.

• Maintaining each property in good order to minimise bushfire fuels, and maintain BPZ areas (where applicable) in accordance with the requirements outlined in the FMP.

• Ensuring that where hydrants are located, they are not obstructed and remain visible at all times.

• Ensuring construction of dwellings complies with AS 3959, if required.

• If dwellings are subject to additional construction in the future, such as renovation, AS 3959 compliance is required.”

(ii) the Certificate of Title for the Property will be encumbered by a notification registered pursuant to section 70A of the Transfer of Land Act 1893 (WA) which will state as follows:

“The lot is subject to a fire management plan”

(iii) whilst the wording of the notification shall be generally in accordance with Special Condition 3.3(b)(ii) above the Buyer acknowledges that the wording above is a draft version only and as such it may be necessary to change or vary the wording and the Buyer is not entitled to make any Objection in relation to any such change or variation provided it does not materially prejudice the Buyer; and

(iv) it has made its own enquiries about the effect the FMP and the notification the subject of this Special Condition 3.3 will have on the Buyer’s use and enjoyment of the Property and is satisfied with the same.

3.4 Local Development Plan

(a) This Special Condition 3.4 only applies if this Contract relates to one of lots 1 to 8, 16, 34 to 46, 48, or 59 on the Stage Plan.

(b) The Buyer acknowledges that:

(i) the Property will be subject to the local development plan contained in annexure A;

(ii) whilst the local development plan which shall apply to the Property shall be generally in accordance with the local development plan contained in annexure A the Buyer acknowledges that the local development plan included in annexure A is a draft version only and as such it may be necessary or the Seller may consider it preferable to change or vary the local development plan and the Buyer is not entitled to make any Objection in relation to any such change or variation provided it does not materially prejudice the Buyer; and

(iii) it has made its own enquiries about the effect the local development plan the subject of this Special Condition 3.4 will have on the Buyer’s use and enjoyment of the Property and is satisfied with the same.

3.5 Further Encumbrances

In addition to the encumbrances noted above, the Buyer acknowledges that, provided they do not materially prejudice the Buyer, the Property is sold subject to the following Encumbrances which are Specified Encumbrances for the purposes of the 2011 General Conditions:

(a) all Encumbrances including but not limited to all easements, notifications, memorials and restrictive covenants noted on the Plan prior to Settlement; and

(b) any other Encumbrance including but not limited to any easements, positive covenants, restrictive covenants, notifications and memorials which are not specified in this Contract but which may be required by an Authority as a condition of subdivision or otherwise including but not limited to the following:

(i) any notification registered against the Certificate of Title for the Property pursuant to section 70A of the Transfer of Land Act 1893 (WA);

(ii) any restrictive covenant registered against the Certificate of Title for the Property pursuant to sections 129BA and 136D of the Transfer of Land Act 1893 (WA);

(iii) any covenant registered against the Certificate of Title for the Property pursuant to section 150 of the Planning and Development Act 2005 (WA); and

(iv) any notification registered against the Certificate of Title for the Property pursuant to section 165 of the Planning and Development Act 2005 (WA).

3.6 No Objections

The Buyer may not make any Objection in relation to any of the matters it is acknowledging in this Special Condition 3.

4. RETAINING WALLS AND FENCING

4.1 Positioning of Retaining Walls and Boundary Fencing

The Buyer acknowledges that it is aware that:

(a) if the finished level of the Property is different than the level of a neighbouring lot such that lateral support is required, the Seller will construct a retaining wall along any such boundary or at least part thereof as is necessary;

(b) the Seller will construct any retaining wall required in accordance with Special Condition 4.1(a) wholly within the higher of the two adjacent lots; and

(c) boundary fencing, when constructed on a boundary that has been retained, will be constructed on the centreline of the retaining wall (such line to be projected for the length of the boundary, even if the retaining wall does not run the entire length of the boundary) and consequently, the owner of the higher lot will not have access to a portion of their lot.

4.2 Release re: Separated Land

If the Buyer cannot access a part of the Property as a result of the issues the subject of Special Condition 4.1, the Buyer acknowledges that it was aware of those issues prior to entering into this Contract and hereby waives any and all claims that it may have against the Seller in relation to any land

that is part of the Property but separated from the Property due to the positioning of any retaining walls and/or boundary fences constructed or to be constructed on the Property by the Seller.

4.3 Buyer’s Acknowledgements

(a) The Buyer acknowledges that any boundary fencing and/or retaining walls either erected by the Seller as at the Contract Date or to be erected by the Seller prior to Settlement that relate to the Property are not or will not necessarily be located precisely on the boundaries of the Property.

(b) Subject to the Seller’s express obligations under this Contract, the Buyer acknowledges that the Seller has no liability to the Buyer or any other person claiming through the Buyer including its successors in title to contribute to the cost of erecting or repairing any dividing fence, retaining wall or other wall whether under the Dividing Fences Act 1961 (WA) or otherwise and the Buyer shall indemnify the Seller against any such claim.

(c) The Buyer acknowledges that further site works and/or retaining walls may be required depending on the design of the specific residence and associated improvements that the Buyer elects to construct on the Property and the Buyer further acknowledges that the Buyer shall be responsible for all costs and expenses associated with any such additional site works and/or retaining walls and that the Seller has no liability or responsibility in that regard.

4.4 No Objections

The Buyer may not make any Objections in relation to any of the matters it is acknowledging in this Special Condition 4.

5. CHANGES AND VARIATIONS

5.1 Reservation of Right to Change

(a) The Buyer acknowledges that the Estate of which the Property forms part is still in the process of being developed/constructed and that it may become necessary or the Seller may consider it preferable to change or vary the Estate during its development/construction. For the avoidance of doubt, as the Estate is subject to variation, the Stage Plan and the Lot Plan are draft versions only and are also subject to variation.

(b) The Seller, in light of Special Condition 5.1(a), reserves the right to vary the Estate, which for the avoidance of doubt, includes but is not limited to the right to vary the Stage Plan, the Lot Plan and/or the Property.

(c) The Parties agree that:

(i) if the Estate is varied in a way that, in the Seller’s reasonable opinion, will not have a material prejudice on the Buyer, then the Buyer shall not be entitled to make any Objection with respect to any such variation; and

(ii) if the Estate is varied in a way that, in the Seller’s reasonable opinion, will have a material prejudice on the Buyer, then the Seller must notify the Buyer of any such change as soon as reasonably possible and the Buyer, upon being so notified, shall have the rights set out in Special Condition 5.2.

5.2 Buyer’s Right to Terminate

(a) After being notified of a variation pursuant to Special Condition 5.1(c)(ii), the Buyer shall have ten (10) Business Days from the date it was notified to decide whether or not it wants to terminate this Contract as a result of the variation stipulated in the notice.

(b) If the Buyer elects to exercise its right to terminate this Contract then it must provide written notice of its intention to terminate this Contract to the Seller within the ten (10) Business Day time frame. In the event that the Buyer properly notifies the Seller then this Contract shall immediately come to an end and the Deposit shall be refunded to the Buyer.

(c) If the Buyer does not provide notice of its intention to terminate this Contract to the Seller within the ten (10) Business Day time frame then the Buyer shall be deemed to have accepted the variation and the Buyer shall not be entitled to make any Objection in relation to the variation of which it was notified.

5.3 Decrease in Area

(a) The Parties agree that, in the event that the area of the Property, upon the issue of a separate Certificate of Title for the Property, decreases by less than three percent (3%) compared to the area of the Property as shown on the Lot Plan then the Buyer is not materially prejudiced for the purposes of Special Condition 5.1(c)(i) however the Buyer, in full and final settlement of any and all issues relating to the decrease in the area of the Property, shall be entitled to a discount to the Purchase Price at Settlement calculated as follows:

×=BA P- P D

where:

(i) D is the discount the Buyer is to receive:

(ii) P is the Purchase Price (included in this Contract as at the Contract Date);

(iii) A is the area of the Property upon the issue of a separate Certificate of Title; and

(iv) B is the area of the Property as disclosed in the Plan.

(b) If the Buyer becomes entitled to a discount in accordance with Special Condition 5.3(a) then the Buyer, aside from its entitlement to that discount, shall not make any Objection in relation to the decrease in the area of the Property.

6. BUYER’S ACKNOWLEDGEMENTS

6.1 Stage Plan and Lot Plan

The Buyer acknowledges that it has reviewed and is satisfied with both the Stage Plan and the Lot Plan and all of the details shown thereon as they relate to the Property.

6.2 Physical Characteristics


(a) it has made its own enquiries and has satisfied itself with respect to the physical characteristics that the Property will possess once completed, including but not limited to site conditions, site structures, soil types, levels, slopes, infrastructure, services and vegetation;

(b) it is responsible for ensuring that all buildings, structures, footings and other improvements that it erects on the Property are suitable in relation to the site conditions, site structures, soil types, levels, slopes, infrastructure, services and vegetation;

(c) whilst the Seller has made reasonable efforts to ensure that there is no condition on or below the Property that will effect the Buyer’s use of the Property, the Buyer has made its own enquiries and has satisfied itself with respect to whether any condition on or below the Property will affect the Buyer’s intended use of the Property and the Buyer agrees to purchase the Property subject to any sub-surface conditions that may exist; and

(d) it shall be solely liable for all site clearance and building preparation costs on the Property and is responsible for managing the associated impacts including but not limited to appropriateness for intended use and building restrictions and the costs which may result.

6.3 NBN


(a) the Land is or will be serviced by NBN Co Limited, however the Seller has no control over, and makes no representation or warranty, as to when the NBN network infrastructure will be installed or be available at the Land, or as to when the Buyer will be able to connect to the NBN network infrastructure, accordingly as at Settlement and for a period thereafter, the Buyer may not have land-line access to internet or telephone services;

(b) the Seller is not responsible for, and the Buyer has no claim whatsoever against the Seller in relation to, the NBN network infrastructure not being installed on or available at the Land on the

date of Settlement, or if there is any delay in the Buyer being able to connect to the NBN network infrastructure;

(c) the Buyer has been provided with a copy of NBN Co Limited’s new homeowner and builder guide and NBN key information for builders and cablers;

(d) the Buyer will comply with NBN Co Limited’s building ready specifications when constructing a residence on the Land, to enable the Buyer’s residence to be connected to the NBN network infrastructure; and

(e) if the Buyer fails to comply with NBN Co Limited’s building ready specifications when constructing a residence on the Land, the Buyer will be unable to connect the Buyer’s residence to the NBN network infrastructure, or will incur additional costs in order to connect the residence to the NBN network infrastructure.

6.4 No Warranty/Representation


(a) other than any warranties or representations contained in this Contract, no warranty or representation has been given or made by the Seller or the Seller Agent or by any other person with the authority of the Seller or Seller Agent in relation to the Estate, the Property, the services to be supplied to the Property and/or the suitability of the Property for any particular use;

(b) the Buyer is deemed to have purchased the Property in reliance solely on the terms and conditions of this Contract, the Buyer’s enquiries in relation to the Property and, if possible as at the date of this Contract, the Buyer’s examination and inspection of the land that, upon the issuance of a separate certificate of title for the Property, will form the Property and any improvements thereto that exist as at the date of this Contract and the Buyer’s examination and inspection of the Estate generally;

(c) Special Conditions 6.4(a) and 6.4(b) apply despite the contents of any brochure, document, letter or publication made, prepared or published by the Seller or the Seller Agent or by any other person with the authority of the Seller or the Seller Agent in relation to the Property; and

(d) any representation or warranty implied by virtue of any statute or otherwise will not apply to, or be implied in, this Contract and any such representation or warranty is excluded to the extent permitted by law.

6.5 Issue of Titles


(a) no warranty or representation has been given or made by the Seller or the Seller Agent or by any other person with the authority of the Seller or Seller Agent in relation to the timing for the issuance of a separate Certificate of Title for the Property; and

(b) except in the case of fraud or misrepresentation by the Seller or the Seller Agent, the Seller is not liable for any loss, damage, cost or expense (including, but not limited to, the increase in the money payable in any other agreement entered into by the Buyer concerning the Property), loss of profits or economic loss sustained by the Buyer, in any way arising out of the timing for the issue of a separate Certificate of Title for the Property or the timing of Settlement.

6.6 Staged Development

(a) The Buyer acknowledges that:

(i) the Seller intends to subdivide the Original Land in stages, and accordingly, the Seller may undertake works in the vicinity of the Property, which may generate noise, vibration, rubbish and dust;

(ii) the Seller will endeavour to minimize the noise, vibration, rubbish and dust to the extent reasonably practicable;

(iii) the Buyer will have no right to terminate this Contract, defer or delay Settlement or claim compensation against the Seller or the Seller’s agents/contractors in relation to the carrying out of such works or for any nuisance resulting from the emission of dust, sand or noise; and

(iv) the Seller makes no representation or warranty as to the subdivision of the future stages of the Original Land and will not be liable to the Buyer, and the Buyer will have no claim whatsoever (for compensation or otherwise) against the Seller if the Seller fails to complete the subdivision of those future stages.

(b) The Buyer must not make any objection to any future subdivision applications which may be lodged by the Seller or its agent for approval with any Authority.

6.7 No Objection

The Buyer may not make any Objection in relation to any of the matters it is acknowledging in this Special Condition 6.

7. CONSTRUCTION

7.1 Compliance with Restrictive Covenants

The Buyer must not construct any building or structure on the Property unless the building or structure complies with the section 136D deed of restrictive covenant that encumbers the Property.

7.2 Approval of the Covenant Administrator

(a) The Buyer must not construct any building or structure on the Property unless the building plans in respect of that building or structure have the prior written approval of the Lot 545 Covenant Administrator.

(b) The Lot 545 Covenant Administrator must approve any building plans submitted to it by the Buyer in accordance with Special Condition 7.2(a) if the building plans are in accordance with the section 136D deed of restrictive covenant that encumbers the Property.

(c) In approving any building plans pursuant to this Special Condition, neither the Lot 545 Covenant Administrator nor the Seller gives any warranty to the Buyer as to whether the proposed building or structure can be built, complies with applicable Encumbrances effecting the Property or otherwise complies with the requirements of any relevant Authority.

8. MISCELLANEOUS PROVISIONS

8.1 Finance Pre-Approval

(a) This Contract is subject to and conditional upon the Buyer providing the Seller with a letter of pre-approval from the Buyer’s nominated Lender for the Amount of Loan or alternate proof of the Buyer’s financial capacity to proceed with this Contract in a form acceptable to the Seller in the Seller’s absolute discretion within fourteen (14) days of the Contract Date.

(b) This Special Condition 8.1 is intended to operate for the benefit of the Seller only. Accordingly if the Buyer does not provide the Seller with a letter of pre-approval or alternative proof within fourteen (14) days of the Contract Date the Seller may either elect to waive the benefit of Special Condition 8.1(a) or terminate this Contract.

(c) In the event that the Buyer provides the Seller with a letter of pre-approval in accordance with Special Condition 8.1(a) above then the Buyer must also ensure that its pre-approval remains valid at all times while this Contract is on foot and must advise the Seller immediately in the event that the pre-approval lapses or otherwise expires.

8.2 Finance Approval

If clause 1 (entitled “Subject to Finance”) of the REIWA offer and acceptance form that is part of this Contract (for the purposes of this Special Condition 8.1 “the Finance Condition”) applies to this Contract, the Finance Condition shall be deemed to be satisfied upon Finance Approval being obtained even if that Finance Approval lapses or expires prior to Settlement. For the avoidance of doubt, the Seller is under no obligation to agree to an extension of the Latest Time referred to in the Finance Condition or the Settlement Date in the event that Finance Approval lapses or otherwise expires.

8.3 Disclosure


(a) a business and financial relationship exists between the Seller and Combined Property Settlements Agency Pty Ltd (ACN 008 963 513) (“Combined Property Settlements”) in that

both companies have common ownership and consequently the Seller will profit if the Buyer appoints Combined Property Settlements as the Buyer’s Settlement Agent;

(b) as the Seller has an interest in the settlement of the Property proceeding, it is possible that Combined Property Settlements may be faced with a conflict of interest if the Buyer appoints Combined Property Settlements to act as its Settlement Agent; and

(c) if a conflict of interest occurs, Combined Property Settlements will not be able to continue to act for the Buyer.

8.4 Survey Pegs

The Seller is not under any obligation to ensure that the Property is marked out with survey pegs or, if there are survey pegs marking out the Property, to ensure that they are in the correct position at or after Settlement.

8.5 Assignment

Neither Party may assign its rights and obligations under this Contract without the prior written consent of the other Party which consent may not be unreasonably withheld.

8.6 No Caveat

The Buyer must not, before the issue of a separate Certificate of Title for the Subdivision Lot, lodge any caveat against the title to the Original Land or any part of the Original Land to protect the Buyer’s interest under this Contract.

8.7 Buyer’s Authority

The Buyer covenants and warrants with the Seller (which warranty the Buyer acknowledges has induced the Seller to enter into this Contract) that the Buyer has full power and capacity to enter into this Contract and the Buyer has obtained all relevant approvals necessary to enter into and complete this Contract.

8.8 Severance

If any Special Condition in this Contract becomes invalid, illegal or unenforceable in any respect under any law, then the validity, legality and enforceability of the remaining conditions of this Contract shall not in any way be affected or impaired.

8.9 Entire Agreement

(a) The terms of this Contract represent the entire agreement between the Parties and no other terms or conditions shall be implied into this Contract by way of collateral or other agreement.

(b) Neither Party can rely on an earlier document, or anything said or done by another party, or by a director, officer, agent or employee of that party, before this Contract was executed.

8.10 Waiver and Variation

A provision of or a right created under this Contract shall not be waived or varied except in writing signed by the Party or Parties to be bound.

8.11 Independent Legal Advice

The Parties acknowledge that they have had ample opportunity prior to the execution of this Contract to obtain independent legal advice as to the extent and implications of this Contract and the Parties execute this Contract accordingly having either obtained such advice or having elected not to on the basis that they understand and accept all of their rights and obligations under this Contract.

_______ _______ Buyer(s) initial here

© The copyright in this annexure is the property of Hale Legal Pty Ltd trading as Hale Legal. Any unauthorised use of this annexure will be prosecuted.

STAGE 1

ANNEXURE C

RESTRICTIVE COVENANTS

DEED OF RESTRICTIVE COVENANT

THIS DEED IS MADE THE DAY OF 20__

BY

ROCKINGHAM PARK PTY LTD (ACN 008 687 965) of PO Box 907, Claremont, Western Australia 6910 (“the Developer”)

RECITALS

A. The Developer is the registered proprietor of the Land.

B. The Developer intends to register the Deposited Plan in relation to the Land.

C. Pursuant to section 136D of the Transfer of Land Act 1893 (WA), the Developer wishes to create restrictive covenants which burden the Lots in accordance with the terms and conditions of this deed for the benefit of the Lots.

D. Those parts of the Land burdened by the restrictive covenants contained in this deed are subject to the encumbrances noted in the schedule to this deed and where necessary, the Developer has obtained the encumbrancers’ consent to this deed.

OPERATIVE PART

1. Construction

Definitions

(a) In this deed, unless the context otherwise requires:

(i) Construct means to construct, erect or install or permit to be constructed, erected or installed;

(ii) Deposited Plan means deposited plan 411742;

(iii) Floor Area means the total internal floor area of a residence which, for the avoidance of doubt, excludes the area of all garages, verandas, alfrescos and other unenclosed areas;

(iv) Land means lot 545 on deposited plan 202744 being the whole of the land contained in certificate of title volume 2045 folio 363;

(v) Lots means lots 1 to 16 (inclusive) and lots 34 to 63 (inclusive) on the Deposited Plan;

(vi) Main Building Line means the forward most wall of a habitable room of the residence excluding any wall attachments. For the avoidance of doubt, porticos and other minor attachments do not form part of the “Main Building Line” however full width verandas do form part of the “Main Building Line”; and

(vii) Public View means the view from all public streets, public thoroughfares and public open spaces.

Interpretation

(b) In this deed, unless the context otherwise requires:

(i) the single includes the plural and vice versa;

(ii) an agreement, representation or warranty on the part of two (2) or more persons shall bind them jointly and severally; and

(iii) headings are for reference purposes only and do not affect the interpretation of this deed.

2. Restrictive Covenants - Construction

Permanent Residence

(a) The registered proprietor shall not Construct on the Lot a residence unless it is a permanent and non-transportable residence.

Colours & Materials

(b) The registered proprietor shall not Construct on the Lot a residence or any alteration or addition to a residence unless the primary materials used are brick, external brick veneer, limestone, stone, finished or rendered masonry or cladding.

(c) The registered proprietor shall not Construct on the Lot a residence unless the wall elements on the primary street front elevation comprise of at least two (2) different colours and/or materials, with each colour or material making up at least twenty percent (20%) of the total surface area of the facade.

Roof

(d) The registered proprietor shall not Construct on the Lot a residence unless the residence has a roof that is:

(i) constructed from concrete tiles, clay tiles or 'Colorbond';

(ii) painted or otherwise coated, sealed or treated in one colour;

(iii) not highly reflective (zincalume is not permitted); and

(iv) is pitched at an angle of more than twenty five (25) degrees in relation to traditional pitched/hipped rooves (excluding any part of the roof that covers veranda areas) or in relation to skillion/mono pitch rooves, one portion of the roof must be greater than eight (8) degrees to the front elevation.

Garages

(e) The registered proprietor shall not Construct on the Lot a carport.

(f) The registered proprietor shall not Construct on the Lot a residence unless the residence has a garage that is:

(i) a double car garage capable of housing two (2) cars parked side by side;

(ii) not more than 6 metres wide as viewed from the street;

(iii) constructed at least 0.5 metres behind the Main Building Line of the residence;

(iv) located under the main roof of the residence; and

(v) constructed from like materials to the residence.

Crossover/Driveway

(g) The registered proprietor shall not Construct on the Lot a residence, unless the residence has a driveway and crossover constructed of segmental clay or concrete brick pavers or monolithic exposed aggregate concrete.

Solar Water Heaters and Solar PV Panels

(h) The registered proprietor shall not Construct on the Lot a solar water heater panel or any solar PV panels unless they:

(i) are located on the roof of the residence;

(ii) follow the profile of the roof surface; and

(iii) are located in the least visually obtrusive areas from the street or public open space areas.

Air Conditioners

(i) The registered proprietor shall not Construct on the Lot an air conditioner located on the exterior of the residence, unless it:

(i) is installed below the ridge line of the roof;

(ii) matches the colour of the roof; and

(iii) is screened from Public View.

Antennas

(j) The registered proprietor shall not Construct on the Lot a television or radio antennae unless it is wholly contained within the roof space of the residence between the ceiling and the underside of the roof or, if that is not possible and the antenna has to be mounted on the roof of the residence, then unless the antenna is mounted on a rear facing section of the roof of the residence such that the antenna is completely screened from Public View.

Satellite Dishes

(k) The registered proprietor shall not Construct on the Lot a satellite dish unless it is screened from Public View.

Clothes Lines

(l) The registered proprietor shall not Construct on the Lot a clothes line; hoist or other drying or airing facility unless it is screened from Public View.

Outbuildings

(m) The registered proprietor shall not Construct on the Lot an outbuilding unless it is:

(i) screened from Public View;

(ii) less than sixty (60) square metres in floor area or, ten percent (10%) of the area of the Lot, whichever is the lesser;

(iii) less than 2.4 metres in height; and

(iv) constructed behind the Main Building Line of the residence.

Fencing

(n) The registered proprietor shall not Construct on the Lot any boundary fence forward of the Main Building Line of the residence.

(o) The registered proprietor shall not Construct on the Lot any boundary fence behind the Main Building Line of the residence unless it is:

(i) constructed of TBA fencing with a TBA profile, brick, brushwood, limestone or timber slats; and

(ii) 1800 millimetres or more in height.

Retaining

(p) The registered proprietor shall not Construct on the Lot any precast concrete panel and post retaining wall unless it is:

(i) constructed behind the Main Building Line of the residence; and

(ii) screened from Public View.

3. Restrictive Covenants - Use

The registered proprietor shall not:

Domestic Pets

(a) raise, breed, keep or permit to be raised, bred or kept more than four (4) domestic pets on the Lot;

Signage

(b) erect or permit to be erected any signage or advertisements on the Lot unless it is a builder's sign required during construction and is no more than 600 millimetres x 600 millimetres or a real estate sign associated with the sale of an established residence. For the avoidance of doubt, signs for the sale of vacant land are not permissible however this restriction in no way prevents the registered proprietor from selling the Lot in the event an established residence has not yet been constructed on the Lot);

Vehicles

(c) repair or maintain or permit to be repaired or maintained on the Lot any motor vehicle, boat, trailer or any other vehicle or machinery unless it occurs behind the Main Building Line of the residence and is screened from Public View;

(d) park or permit to be parked commercial vehicles including trucks, buses and tractors (excluding panel vans and utilities) unless screened from Public View;

Rubbish

(e) permit any rubbish disposal containers on the Lot to be in Public View except on days allocated by the local authority for rubbish collection;

Fencing

(f) do or permit any act or thing which may cause the removal, alteration, marking or defacement of any existing fence or retaining wall on the Lot;

(g) permit any existing fence or retaining wall on the Lot to fall into a state of disrepair or to become unsafe;

(h) permit any tree, plant, building or any other thing to cause an existing fence or retaining wall on the Lot to become structurally unsound; and/or

(i) permit any existing fence or retaining wall on the Lot to be repaired or replaced unless the repair or replacement is in the same material, style and colour as the existing fence or retaining wall.

4. Miscellaneous Provisions

(a) The registered proprietor acknowledges that the burden of the restrictive covenants contained in this deed runs with the Lot for the benefit of the registered proprietors of all other Lots and shall be enforceable against the registered proprietor of the Lot and every subsequent registered proprietor of the Lot.

(b) The registered proprietor acknowledges that each restrictive covenant contained in this deed is separate from the other and therefore if any restrictive covenant becomes invalid or unenforceable then the remaining restrictive covenants will not be affected and each remaining restrictive covenant will be valid and enforceable to the fullest extent permitted by law.

(c) The registered proprietor acknowledges that the restrictive covenants contained in this deed must not be modified, surrendered, released or abandoned whether wholly or partially.

(d) The registered proprietor shall not make an application to any Court or the Registrar of Titles for the partial or complete modification, removal or extinguishment of the restrictive covenants contained in this deed.

(e) The restrictive covenants contained in this deed shall expire and cease to have effect from and including 31 December 2027.


STAGE 1

ANNEXURE D

LANDSCAPING & FENCING BONUSES

1. LANDSCAPING BONUS

1.1 Landscaping Works

(a) Subject to clause 1.3 below, the Seller hereby agrees to supply and install, at the Seller’s expense, verge and front garden landscaping comprising “winter green” instant roll-on turf, mulched garden beds and selected plants (“the Landscaping Works”).

(b) The Landscaping Works will be designed, supplied and installed by a reputable landscape contractor nominated by the Seller, to the verge area in front of the Property (if applicable) and to the front garden area of the Property forward of the front building line, up to a maximum total area of 115 square metres (if the Property is a non-corner lot) or 235 square metres (if the Property is a corner lot).

(c) Prior to installation of the turf, the soil beneath the turfed area will be prepared with soil conditioner, wetting agents and fertiliser.

(d) All garden beds will be comprised of organic mulch and plants selected by the Buyer (subject to the Seller’s approval).

(e) The Landscaping Works include a water wise irrigation system consisting of:

(i) fixed below ground 25 mm Class 9 / 20 mm Class 12 rigid PVC pipe work;

(ii) an automatic 6 station water wise controller installed adjacent to the Western Power meter box; and

(iii) pop up sprinklers to turf and a combination of fixed head and dripper sprinklers (in poly) to the garden beds.

1.2 Completion of Landscaping Works

Subject to the Buyer’s compliance with the terms and conditions of this annexure, the Landscaping Works shall be completed by the Seller as soon as reasonably possible after the date that the Buyer provides the Seller with notice pursuant to clause 1.3(a)(iii) below and the Buyer having the site suitably prepared for the Landscaping Works.

1.3 Conditions of Landscaping Bonus

(a) This landscaping bonus is subject to and conditional upon:

(i) the Buyer submitting and receiving approval for their building plans by the Lot 545Covenant Administrator prior to the building plans being submitted to the City of Rockingham;

(ii) the Buyer commencing construction of its residence on the Property within 6 months of the Settlement Date and completing construction of the residence within 2 years of the Settlement Date;

(iii) the Buyer, within 2 months of completion of the residence, providing the Seller with written notice advising that the residence has been completed and requesting that the Seller carry out the Landscaping Works;

(iv) the Buyer removing all rubbish and rubble and levelling the area to be grassed and reticulated in preparation for the Landscaping Works to commence. Where the proposed turfed area meets a kerb, driveway or path, the Buyer must ensure that the final level of the soil is approximately 40 millimetres below the top of that hard area of kerb, driveway or path;

(v) the Buyer installing a 90 millimetre PVC stormwater pipe beneath the driveway, offset 4 metres from the front of the garage. The storm water pipe will assist in minimising disruption to paving which may otherwise occur during installation of the irrigation system; and

(vi) the Buyer not breaching any of the terms and conditions of this Contract including the restrictive covenants as set out in annexure C of this Contract.

(b) In the event that the Buyer does not comply with the conditions set out at clause 1.3(a) above then the Seller is under no obligation to provide the Landscaping Works to the Buyer.

1.4 Buyer’s Acknowledgments

The Buyer acknowledges:

(a) that it must grant the Seller (and any contractor/s nominated by the Seller to carry out the Landscaping Works) the right to enter upon the Property for the purpose of carrying out the Landscaping Works;

(b) that while the Seller will use its best endeavours to take into account the requirements of the Buyer, all decisions with respect to the extent of the Landscaping Works are to be determined by the Seller in the Seller’s absolute discretion;

(c) the Landscaping Works do not include rockeries, retaining walls or any other type of landscaping treatments other than selected plants included as part of the Landscaping Works at the Seller’s absolute discretion;

(d) a 12-month warranty period covers faulty workmanship of the manufactured goods only including valves, sprinklers, controllers and pipework; and

(e) that this landscaping bonus is not transferable to a third party and will become null and void should the Property be on-sold to another party.

2. FENCING BONUS

2.1 Fencing Works

Subject to clause 2.3 below, the Seller hereby agrees to provide, at the Seller’s expense, side and rear boundary fencing (using steel sheet style fencing with the colour, profile and brand of the fencing to be determined by the Seller in the Seller’s absolute discretion) to be installed on the side boundaries of the Property up to the front building line and the rear boundary of the Property (“the Fencing Works”).

2.2 Completion of Fencing Works

Subject to the Buyer’s compliance with the terms and conditions of this annexure, the Fencing Works shall be completed by the Seller as soon as reasonably possible after the date that the Buyer provides the Seller with notice pursuant to clause 2.3(a)(iii) below.

2.3 Conditions of Fencing Bonus

(a) This fencing bonus is subject to and conditional upon:

(i) the Buyer submitting and receiving approval for its building plans by the Lot 545 Covenant Administrator prior to the building plans being submitted to the City of Rockingham;

(ii) the Buyer commencing construction of its residence on the Property within 6 months of the Settlement Date and completing construction of the residence within 2 years of the Settlement Date;

(iii) the Buyer within 2 months of completion of the residence providing the Seller with written notice advising that the residence has been completed and requesting that the Seller carry out the Fencing Works; and

(iv) the Buyer not breaching any of the terms and conditions of this Contract including the restrictive covenants as set out in annexure C of this Contract.

(b) In the event that the Buyer does not comply with the conditions set out at clause 2.3(a) above then the Seller is under no obligation to provide the Fencing Works to the Buyer.

2.4 Buyer’s Acknowledgments

The Buyer acknowledges:

(a) that it must grant the Seller (and any Contractor/s engaged by the Seller to provide the Fencing Works) the right to enter upon the Property for the purposes of carrying out the Fencing Works;

(b) that it shall not be entitled and agrees not to claim any amounts back from any adjoining lot owners for fencing supplied by the Seller;

(c) that, where the fencing is set directly into soil, the bottom of the fencing shall be set as close as reasonably possible to the “paving height” shown on the Buyer’s building plans. For the avoidance of doubt, this may result in a gap at the base of the fencing if the Property has a slope however the Buyer shall not make any Objection in relation to any such issues and furthermore the Buyer shall be solely responsible for any site works and/or retaining that the Buyer considers necessary as a result of any such issues;

(d) if the Seller has constructed a fence on any boundary of the Property prior to the Seller providing this fencing bonus then the Seller’s obligation under this fencing bonus shall be limited to constructing a boundary fence only on any unfenced boundary of the Property and, for the avoidance of doubt, the Seller shall not be required to adjust the height of any existing fencing relative to the “paving height” shown on the Buyer’s building plans or otherwise;

(e) this fencing bonus does not apply to and the Seller is under no obligation to provide fencing in relation to any section of a boundary that has a nil setback or any section of a boundary that an applicable local development plan indicates is not to be fenced;

(f) in the event that the Buyer does not comply with the conditions set out at clause 2.3(a) and the Seller does not provide the Fencing Works or the Seller does not supply the Fencing Works for any other reason, the Buyer agrees to erect fencing to the quality and standard as the fencing that would have been provided by the Seller as part of the Fencing Works;

(g) that this fencing bonus is not transferable to a third party and will become null and void should the Property be on-sold to another party; and

(h) that the Seller does not guarantee that the Fencing Works, if provided by the Seller pursuant to this clause, will be located on the exact boundary of the Property and the Buyer shall not make any Objection if the Fencing Works are not constructed on the exact boundary of the Property.


STAGE 1

ANNEXURE E

ADVICE TO PURCHASERS

1. OFF THE PLAN CONTRACT

(a) You are signing a contract for the purchase of what is described in this contract as the Property. Currently, the Property is not yet a separate lot with its own certificate of title.

(b) Also, the physical construction of the Property as a separate lot may not yet be complete and may not be complete at settlement. For example, all retaining walls and roads may not be complete and drainage, water supply and sewerage may not yet be reticulated to the Property.

(c) You need to be aware that:

(i) the separate certificate of title for the Property may not be issued for quite some time; and

(ii) the separate certificate of title may issue and you may be required to settle the purchase of the Property before the physical construction of the Property as a separate lot is complete.

2. TIMING OF ISSUE OF A SEPARATE CERTIFICATE OF TITLE

(a) When you have been talking to the Seller or the Seller’s real estate agent about the Property, you may have been given an estimate of the likely or possible time it will take for the separate certificate of title to issue.

(b) You need to be aware that any date which you have been advised as being the date by which the separate certificate of title will have been issued is an estimate only. In making your plans for the Property (for example: raising finance or entering into a building contract to build your home), you need to take into account the fact that the actual timeframe for the issue of the separate certificate of title may be significantly shorter or longer than the estimated date given to you (perhaps by a period of several months). The reason for this is that there are a number of things which need to happen in order for a separate certificate of title for the Property to issue and a lot of these things are beyond the Seller’s direct control.

(c) You should ask the Seller or the Seller’s real estate agent to keep you up to date regarding the issue of the separate certificate of title. Once again, any estimate by or on behalf of the Seller of the likely date for the issue of a separate certificate of title is an estimate only. The Seller or the Seller’s real estate agent will not be responsible for any loss you may incur if the separate certificate of title is not issued by the estimated date.

3. PHYSICAL CONSTRUCTION OF THE PROPERTY AS A SEPARATE LOT

(a) You need to be aware that one of things which is not a requirement for the issue of the separate certificate of title is the completion of the physical construction of the Property as a separate lot.

(b) You need to bear this in mind that if you are planning to start building a residence on the Property shortly after settlement. The fact that, at settlement, physical construction of the Property may not be complete may cause delays in construction of your residence. As some

building contracts contain provisions for price increases over time, the delays in construction resulting from the fact that the physical construction of the Lot has not been completed may cause the cost of constructing your residence to increase. You should consider this carefully before entering into the building contract as the Seller will not be responsible for any building price increases as a result of any delays in completing the physical construction of the Property.

Please note that this annexure is advisory in nature only and is provided as a courtesy to you, the Buyer. It is merely a guide intended to help you to understand some of the important issues concerning your purchase of the Property and, in particular, the timing for settlement. This annexure does not modify, negate or alter in any way any of the conditions of this contract including, without limitation, the Special Conditions contained in annexure B or the 2011 General Conditions. You should not rely on this annexure as a substitute for reading this contract or obtaining independent legal advice in respect of any matters you are unsure of. In fact, if there are matters you are unsure of, you should not sign this contract until you have obtained your own independent legal advice and, as a result, are satisfied that you now understand the matter in question.


STAGE 1

ANNEXURE F

HOUSE AND LAND PACKAGE

1. DEFINITIONS

In this annexure, unless the context otherwise requires:

(a) Building Contract means a building contract between the Buyer and Tangent for the construction of a house on the Property;

(b) Building Contract Date means the date on which the last party to sign the Building Contract signs it;

(c) Finance Condition means clause 1 (entitled “Subject to Finance”) of the REIWA offer and acceptance form that is part of this Contract;

(d) Latest Building Contract Date means the date which is ____ days after the Contract Date or such later date agreed between the Parties in writing; and

(e) Tangent means Tangent Nominees Pty Ltd (ACN 008 865 585), a company which is wholly owned by the Seller and which, for the avoidance of doubt, incorporates the brands Summit Homes, Lifestyle Homes, New Generation Homes and Easystart Homes.

2. SUBJECT TO BUILDING CONTRACT

(a) The Buyer must:

(i) immediately following the Contract Date begin negotiations with Tangent in relation to the finalisation of a Building Contract; and

(ii) use all best endeavours in good faith to execute a Building Contract as soon as possible following the Contract Date and in any event on or before the Latest Building Contract Date.

(b) This Contract is subject to and conditional upon the Buyer entering into a Building Contract on or before the Latest Building Contract Date. This condition is intended to operate for the benefit of the Seller only. Accordingly if the Buyer does not enter into a Building Contract in satisfaction of this condition then the Seller may either elect to waive the benefit of this condition or terminate this Contract.

3. AMENDMENTS TO THE FINANCE CONDITION

The Parties agree that the Finance Condition shall be amended by:

(a) deleting clause 1.1(a)(1) and replacing it with the following: “immediately after the issue of a separate certificate of title for the Property or the Building Contract Date, whichever is the later, make an application for Finance Approval to the Lender using the Property and the Building Contract as security; and

(b) adding to the end of the definition of Amount of Loan in clause 1.9 of the Finance Condition the following: “plus the total amount payable by the Buyer in accordance with the Building Contract”; and

(c) Deleting the definition of Latest Time in clause 1.9 of the Finance Condition and replacing it with “Latest Time means either 21 days from the date upon which a separate Certificate of Title issues for the Property or 21 days from the Building Contract Date, whichever is the later”.


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