Abandoned Land

Abandoned Land Tender No. 19/40

Particulars and Conditions of Sale

Particulars and conditions of sale of land to be offered for sale by public tender on the 12th day of December 2019 on account of the SOUTHLAND DISTRICT COUNCIL acting under the provisions of the Local Government (Rating) Act 2002 as to sale of abandoned land.

Particulars of Property

Estate: An estate in fee simple being all that piece of land containing 8,094 (2 x 4,047) square metres more or less being comprised and described in the attached record of title (“title”) for the property.

Address: 635 & 1035 Birchwood Wairio Road, Woodlaw-Twinlaw

Conditions of Sale

1. Definitions

1.1 In these particulars and conditions of sale unless a contrary intention appears:

Act means the Local Government (Rating) Act 2002.

Agreement means this document including these particulars and conditions of sale, memorandum of contract and any schedules and attachments.

Closing Date and Time means the closing date and time for the provision of tenders as set out in clause 2.1.

Council means the Southland District Council.

Default GST means any additional GST, penalty or other sum levied against the Council under the GST Act by reason of non-payment of the GST payable in respect of the taxable supply made pursuant to this agreement but does not include any such sum levied against the Council by reason of a default by the Council after payment of the GST to the Council by the purchaser.

Default Interest Rate means the rate of interest specified in clause 6.

Deposit means the amount that is equivalent to 10% of the purchase price offered by the tenderer.

GST means Goods and Services Tax.

GST Act means the Goods and Services Tax Act 1985 (as amended from time to time).

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NZLS Guidelines means the most recent edition, as at the date of this agreement, of the Property Law Section of the New Zealand Law Society’s Property Transaction & Edealing Guidelines.

Property means the property described in the particulars of property.

Purchase Price means the purchase price set out in the tender accepted by the Council.

Purchaser means the purchaser of the property under this agreement.

Reserve means the reserve placed on the property by the Council as required by section 79(2) of the Act.

Tender means the tender conducted pursuant to these particulars and conditions of sale.

Working Day means any day of the week except Saturday, Sunday and any national public holiday or public holiday in the region where the property is located. A working day commences at 9am and ends at 5pm.

1.2 In these particulars and conditions of sale unless a contrary intention appears:

(a) a reference to a person includes any other entity or association and vice versa; (b) words referring to the singular include the plural and vice versa; (c) any reference to any of the parties includes that party’s executors, administrators and/or

permitted assigns or, being a company, its successors and/or permitted assigns; (d) every agreement or undertaking expressed or implied by which more than one person agree or

undertake any obligation and/or derive any benefit under this agreement binds and is for the benefit of such persons jointly and severally;

(e) clause headings are for reference only; (f) references to clauses and subclauses are references to clauses and subclauses in these

particulars and conditions of sale; (g) where any word or phrase is given a defined meaning in these particulars and conditions of

sale, any other part of speech or other grammatical form in respect of such word or phrase has a corresponding meaning.

2. Conduct of Tender

2.1 An interested party must complete the attached memorandum of contract on page 13 hereon and submit this entire form in a sealed envelope marked “Tender no. 19/40 - Abandoned Land – 635 & 1035 Birchwood Wairio Road, Woodlaw-Twinlaw, c/- Property Advisor” to the Council. The tender must be received at the address below by 3.30pm on 17th January 2020 (time being of the essence):

(a) If posting, to:

Southland District Council PO Box 903 Invercargill 9840; or

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(b) If hand delivering, to:

Southland District Council Office Tenders Box 15 Forth Street Invercargill.

2.2 A tender must state the purchase price as an exact dollar amount without reference to any calculation or variation or to the purchase price contained in any other tender.

2.3 If the purchase price offered by the tenderer is $500 or more, the tender must be accompanied by a bank cheque addressed to the Council in the amount of the deposit. If the purchase price offered by the tenderer is less than $500, no deposit is required.

2.4 Amounts received from unsuccessful tenderers will be returned as soon as reasonably practicable. No interest shall be payable on any amounts received from unsuccessful tenderers.

2.5 A tender must be executed as follows:

(a) In the case of a partnership, by all partners or, if all partners have not signed, by a duly authorised partner;

(b) In the case of a company, by a director of the company; (c) In the case of an attorney, accompanied by a copy of the power of attorney and certification of

non-revocation.

2.6 The Council will not accept:

(a) the tender of any person who is, at the time of the closing of this tender, in rates arrears or any other arrears owing to the Council;

(b) the tender of any person who previously purchased property from the Council but failed to lodge the transfer for registration against the relevant record of title; or

(c) a tender which gives the name of the tenderer "as agent" or "as trustee" or "on behalf of a company to be formed".

2.7 The Council has placed a reserve on the property.

2.8 The Council is not bound to accept the highest or any tender, notwithstanding that a tender may have met the reserve. The Council may re-advertise for public tenders, or subsequently run a public auction for the property, or enter into an agreement by private treaty, as often as may be required until the property is sold at not less than the reserve.

2.9 A tender will not be opened before the closing date and time.

2.10 A tender cannot be withdrawn.

2.11 The tender acceptance date is 20 working days after the closing date and time.

2.12 A tender is deemed to be accepted on signing by the Council of the acceptance of tender as set out in the memorandum of contract. Acceptance will be communicated by the Council to the successful tenderer and/or the tenderer’s solicitor as soon as reasonably practicable.

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3. Purchase price

3.1 The successful tenderer for the property (if that tenderer complies with the conditions precedent fixed by the Council) will be the purchaser of the property.

4. Risk

4.1 From the date of acceptance of the successful tender the property is at the sole risk of the purchaser.

5. Settlement

5.1 The purchaser must pay the balance of the purchase money (“settlement funds”) to the Council’s solicitor on the date that is 20 working days following the date of acceptance of the tender (“settlement date”).

5.2 The Council shall prepare a settlement statement in accordance with the terms of this agreement and provide the settlement statement to the purchaser or the purchaser’s solicitor a reasonable time prior to the settlement date.

5.3 The purchaser’s solicitor shall within a reasonable time prior to the settlement date create a Landonline workspace for the transaction, notify the Council’s solicitor of the dealing number allocated by LINZ, and prepare in that workspace a transfer instrument in respect of the property. The cost of registration of the transfer shall be met by the purchaser. The transfer instrument shall be prepared as follows:

(a) Using “part of land/complex”; (b) Selecting the justification “for abandoned land pursuant to section 77 of the Local

Government (Rating) Act 2002”; (c) Recording the Council as “third party transferor”.

5.4 The purchaser’s solicitor shall prior to settlement lodge in that workspace the tax information contained in the transferee’s tax statement and certify and sign the transfer instrument.

5.5 The Council’s solicitor shall, prior to settlement, upload the Court Order declaring the property abandoned land and authorising the sale of the property, lodge in that workspace the tax information contained in the transferor’s tax statement and certify, sign and where possible pre-validate the instrument.

5.6 On the settlement date:

(a) The settlement funds, interest and other moneys (if any) shall be paid by the purchaser in cleared funds into the Council’s solicitor’s trust account in accordance with the protocol for remote settlement recommended in the NZLS Guidelines;

(b) The Council’s solicitor will immediately thereafter release or procure the release of the transfer instrument so that the purchaser’s solicitor can lodge the transfer instrument for registration.

The obligations in this clause are interdependent.

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5.7 The purchaser is entitled to possession following settlement.

6. Interest

6.1 If for any reason other than the default of the Council, the purchase of the property is not completed on the settlement date, the purchaser must pay to the Council interest at the rate of 12% per annum on the unpaid portion of the purchase price from the due date for payment until payment. Any payment received on a day which is not a working day or after 4pm on a working day is deemed to be made on the following working day.

7. Exclusion of Requisitions and Misdescriptions

7.1 The area, dimension and description of the property is taken by the purchaser as correct. No error or misdescription will annul the sale. No compensation will be payable by the Council for any such error or misdescription.

7.2 The Council is not required to point out the boundary of the property or any corner or boundary pegs. The Council is not required to have boundary pegs on the property in place.

7.3 The purchaser is deemed to have inspected the property including all improvements and to have purchased solely in reliance upon his/her own judgment and not upon any representation or warranty made by the Council or any agent of the Council.

7.4 The Council is selling the property pursuant to the provisions of the Act and the purchaser shall not make any objections or requisitions in respect of the title.

7.5 The property is sold subject to all interests noted on the title which will not lapse by law following settlement (“limitations”). The purchaser is deemed to have notice of the existence of all such limitations and to buy the property subject to all limitations. The Council is not responsible for any costs, compensation, damages or interest under any circumstances.

7.6 The Council is not liable for any building or erection upon the property that encroaches on an adjoining property, any neighbouring building that encroaches on the property, or any fence is not erected on its true boundary.

8. Exclusion of Liability

8.1 The Council does not warrant the accuracy of any matter or fact in these particulars and conditions of sale or in any advertisement of the sale. The purchaser must verify those details to the purchaser's own satisfaction.

8.2 The Council will not in any way be responsible for the correctness of these particulars and conditions of sale or any advertisement of the sale.

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9. No Reliance

9.1 This agreement is the sole evidence of the purchaser's contract. The purchaser warrants that it has inspected the property and that it enters into this agreement solely in reliance upon the purchaser's own judgment and not rely upon any statement made by the Council or any agent of the Council or contained in any advertisement of sale.

9.2 No covenants or warranties are expressed or implied in this agreement except to the extent that the Council has not knowingly encumbered the property. The purchaser shall not call for the Council to produce any evidence of its power to sell the property which is not in the possession or custody of the Council.

10. Possession

10.1 The Council will not be asked to deliver possession (vacant or otherwise) of the property or any key for the property on settlement.

10.2 Subject to clause 10.3, the purchaser shall not require the Council to pay or to apportion with the purchaser any outgoing in respect of the property and the purchaser expressly takes over liability for any outstanding and future outgoings from the settlement date.

10.3 Where possible, the Council will apply the deposit (if any) and settlement funds received towards meeting the disposal costs, outstanding or due rates and associated penalties payable to the Council in respect of the property (“Council rates and penalties”) in accordance with sections 75-76 of the Act. Where the purchase price is not sufficient to clear all the Council rates and penalties, the balance of the unpaid Council rates and penalties for the period up to the settlement date will be written off by the Council in accordance with section 82 of the Act.

10.4 The Council is not required to pay any Crown grant fees in respect of the property or any charges whatsoever in respect of the property whether or not registered or registrable under subpart 5 of part 3 of the Land Transfer Act 2017 or any other Act or any regulation.

10.5 The Council shall not be liable to pay or contribute towards the cost of erecting or repairing any fence or fences upon the boundaries of the property or of any adjoining property of the Council.

11. Council’s Remedies on Default

11.1 If the sale is not settled on the settlement date the Council may any time thereafter (unless the agreement has been cancelled or become void) serve on the purchaser written notice to settle the transaction but such notice shall only be effective if the Council is at the time the notice is served either ready able and willing to settle or is not ready able and willing only by reason of the default or omission of the purchaser.

11.2 Upon service of an effective notice under clause 12.1, the purchaser shall settle the transaction within 10 working days after the date of service of the notice, time being of the essence.

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11.3 If the purchaser does not comply with the terms of an effective notice served by the Council under clause 12.1, or otherwise defaults in its performance or fulfilment of this agreement or in payment of any money under them (time being of the essence), then without prejudice to any other rights or remedies available to it at law or in equity the Council may:

(a) Affirm this agreement and sue the purchaser for specific performance or for damages for breach of contract, but giving credit for any deposit retained;

(b) Cancel this agreement by written notice and retain the deposit; or (c) Proceed to sell the property to a third party on terms and conditions that the Council in its sole

discretion thinks fit, with or without notice to the purchaser.

11.4 Where the Council is entitled to cancel the agreement, the entry by the Council into a conditional or unconditional contract for the resale of the property or any part of it (“resale”) by the Council will take effect as a cancellation of the agreement by the Council if the agreement has not previously been cancelled and the resale will be deemed to have occurred after cancellation.

11.5 The damages claimable by the Council after cancellation by the Council will include all damages claimable at common law or in equity and will include (without limitation) any loss incurred by the Council on any bona fide resale contracted within one year from the settlement date. The amount of that loss may include:

(a) The difference between the purchase price and the price paid pursuant to the resale; (b) Interest on the unpaid portion of the purchase price at the default interest rate calculated from

the settlement date to the settlement of the resale; (c) All costs and expenses reasonably incurred in any resale or attempted resale; (d) All outgoings (other than interest) from the settlement date to the settlement of the resale; less

any deposit or other monies paid by the purchaser towards the purchase price.

11.6 Any surplus money arising from the resale may be retained by the Council.

12. Goods and Services Tax

12.1 Unless clause 12.2 applies, the purchase price is inclusive of GST if applicable.

12.2 If the purchaser is registered for GST, the purchaser will pay GST in addition to the purchase price and the following clauses 12.3 to 12.6 shall apply.

12.3 Any GST payable by the purchaser pursuant to this clause will be payable on the date on which the supply of the property is deemed to take place under the GST Act but in any event no later than the settlement date.

12.4 If the purchaser does not pay GST on the due date for payment, then, without prejudice to the Council’s other rights and remedies, the purchaser agrees to pay to the Council upon demand:

(a) Interest at the default interest rate on the amount of GST unpaid from the due date for payment until payment; and

(b) Any default GST.

12.5 As between the Council and the purchaser the Council is not to pay any GST or additional tax or to take any other steps to minimise the liability in respect of such tax or additional tax until the corresponding payment is received from the purchaser.

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12.6 The Council will deliver a tax invoice to the purchaser on or before the date on which the purchaser is due to pay GST to the Council pursuant to this agreement.

13. Notices

13.1 Any notice required to be served on the purchaser under this agreement shall be sufficiently served on the purchaser at the address recorded in the memorandum of contract or on the purchaser’s solicitors. Any notice required to be served on the Council under this agreement shall be sufficiently served on the address sin clause 2.1 or on the Council’s solicitors. Service shall occur only upon such notice actually being received by the Council or the Council’s solicitors.

13.2 Delivery may be effected by hand, post or email. A notice or other communication will be deemed to have been received:

(a) An the case of hand delivery, at the time of actual delivery to the recipient’s address; (b) In the case of delivery, on the third working day after posting; (c) In the case of an email, at the time of receipt in the inbox of the recipient.

13.3 If a notice or other communication is received or deemed to have been received after 5pm on a working day in the place to which it is sent, or on a day which is not a working day in that place, it will be deemed not to have been received until the next working day in that place.

14. Purchaser Agents

14.1 Any purchaser whose tender is submitted through a licensed land agent shall be responsible for the payment of that agent’s commission in respect of any sale resulting from such tender. Such commission shall be payable over and above the amount of the accepted tender.

15. Overseas Investment Act 2005

15.1 The purchaser warrants that the purchaser does not require consent to purchase the property under the Overseas Investment Act 2005.

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Memorandum of Contract

Abandoned Land 2019– Tender no. 19/40

635 & 1035 Birchwood Wairio Road, Woodlaw-Twinlaw

Tenders close at 3.30pm on 17th January 2020

Offer by tenderer to purchase

To: Southland District Council

I/We of

NAME POSTAL ADDRESS

Offer by tender to purchase the property on the particulars and conditions of sale for a purchase price of $_______________________ inclusive of GST (if any)/plus GST (if any) (select one)

[NOTE: select plus GST (if any) only if the purchaser is registered for GST. If neither option is selected then the purchase price will be inclusive of GST (if any)]. I/we further agree that in the event of this offer being accepted I/we will pay the purchase price and complete the purchase in accordance with the particulars and conditions of sale.

My/our cheque for $____________________ being the deposit payable is attached (if applicable).

DATED this day of

Signature of Tenderer:

Contact Telephone Number:

Email:

Tenderer’s Solicitor Details:

Individual

Company

Address

Telephone Number

Email:

Acceptance of Tender

Southland District Council accepts the above offer and declares the tenderer the purchaser of the property.

DATED this day of

Signature of Southland District Council: